[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 1998 Edition]
[From the U.S. Government Printing Office]


          49



          Transportation



[[Page i]]

          PARTS 1 TO 99

                         Revised as of October 1, 1998

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF OCTOBER 1, 1998
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1998



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 49:
          Subtitle A--Office of the Secretary of 
          Transportation                                             3
  Finding Aids:
      Material Approved for Incorporation by Reference........     639
      Table of CFR Titles and Chapters........................     641
      Alphabetical List of Agencies Appearing in the CFR......     659
      List of CFR Sections Affected...........................     669



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  49 CFR 1.1 refers 
                       to title 49, part 1, 
                       section 1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 1998), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 523-4534.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I), and Acts Requiring Publication 
in the Federal Register (Table II). A list of CFR titles, chapters, and 
parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.

[[Page vii]]

    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, The United States 
Government Manual, the Federal Register, Public Laws, Weekly Compilation 
of Presidential Documents and the Privacy Act Compilation are available 
in electronic format at www.access.gpo.gov/nara (``GPO Access''). For 
more information, contact Electronic Information Dissemination Services, 
U.S. Government Printing Office. Phone 202-512-1530, or 888-293-6498 
(toll-free). E-mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 1998.



[[Page ix]]



                               THIS TITLE

    Title 49--Transportation is composed of seven volumes. The parts in 
these volumes are arranged in the following order: Parts 1-99, parts 
100-185, parts 186-199, parts 200-399, parts 400-999, parts 1000-1199, 
part 1200 to End. The first volume (parts 1-99) contains current 
regulations issued under subtitle A--Office of the Secretary of 
Transportation; the second volume (parts 100-185) and the third volume 
(parts 186-199) contain the current regulations issued under chapter I--
Research and Special Programs Administration (DOT); the fourth volume 
(parts 200-399) contains the current regulations issued under chapter 
II--Federal Railroad Administration (DOT), and chapter III--Federal 
Highway Administration (DOT); the fifth volume (parts 400-999) contains 
the current regulations issued under chapter IV--Coast Guard (DOT), 
chapter V--National Highway Traffic Safety Administration (DOT), chapter 
VI--Federal Transit Administration (DOT), chapter VII--National Railroad 
Passenger Corporation (AMTRAK), and chapter VIII--National 
Transportation Safety Board; the sixth volume (parts 1000-1199) contains 
the current regulations issued under chapter X--Surface Transportation 
Board and the seventh volume (part 1200 to End) contains the current 
regulations issued under chapter X--Surface Transportation Board and 
chapter XI--Bureau of Transportation Statistics, Department of 
Transportation. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 1998.

    In the volume containing parts 100-185, see Sec. 172.101 for the 
Hazardous Materials Table, and Sec. 172.102 for the Optional Hazardous 
Materials Table. An Identification Number Cross Reference Index to 
Proper Shipping Names in Secs. 172.101 and 172.102 appears at the 
beginning of part 172. The Federal Motor Vehicle Safety Standards appear 
in part 571.

    Redesignation tables for chapter X--Surface Transportation Board, 
Department of Transportation appear in the Finding Aids section of the 
sixth and seventh volumes.

    For this volume Melanie L. Marcec was the Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

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

[[Page 1]]



                        TITLE 49--TRANSPORTATION




                   (This book contains parts 1 to 99)

  --------------------------------------------------------------------



  Editorial Note: Other regulations issued by the Department of 
Transportation appear in 14 CFR chapters I and II, 23 CFR, 33 CFR 
chapters I and IV, 44 CFR chapter IV, 46 CFR chapters I and II, 48 CFR 
chapter 12, and 49 CFR chapters I through VI.
                                                                    Part

SUBTITLE A--Office of the Secretary of Transportation.......           1

[[Page 3]]



          Subtitle A--Office of the Secretary of Transportation




  --------------------------------------------------------------------
Part                                                                Page
1               Organization and delegation of powers and 
                    duties..................................           5
3               Official seal...............................          52
5               Rulemaking procedures.......................          52
6               Implementation of Equal Access to Justice 
                    Act in agency proceedings...............          55
7               Public availability of information..........          61
8               Classified information: Classification/
                    declassification/access.................          75
9               Testimony of employees of the Department and 
                    production of records in legal 
                    proceedings.............................          83
10              Maintenance of and access to records 
                    pertaining to individuals...............          88
11              Protection of human subjects................         101
17              Intergovernmental review of Department of 
                    Transportation programs and activities..         112
18              Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............         115
19              Uniform administrative requirements for 
                    grants and agreements with institutions 
                    of higher education, hospitals, and 
                    other non-profit organizations..........         144
20              New restrictions on lobbying................         172
21              Nondiscrimination in federally-assisted 
                    programs of the Department of 
                    Transportation--Effectuation of title VI 
                    of the Civil Rights Act of 1964.........         184
23              Participation by minority business 
                    enterprise in Department of 
                    Transportation programs.................         195
24              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         236
25              [Reserved]
27              Nondiscrimination on the basis of disability 
                    in programs and activities receiving or 
                    benefitting from Federal financial 
                    assistance..............................         273

[[Page 4]]

28              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Transportation.......................         284
29              Governmentwide debarment and suspension 
                    (nonprocurement) and governmentwide 
                    requirements for drug-free workplace 
                    (grants)................................         292
30              Denial of public works contracts to 
                    suppliers of goods and services of 
                    countries that deny procurement market 
                    access to U.S. contractors..............         311
31              Program fraud civil remedies................         316
37              Transportation services for individuals with 
                    disabilities (ADA)......................         331
38              Americans with Disabilities Act (ADA) 
                    accessibility specifications for 
                    transportation vehicles.................         509
40              Procedures for transportation workplace drug 
                    testing programs........................         547
41              Seismic safety..............................         595
71              Standard time zone boundaries...............         597
79              Medals of honor.............................         602
89              Implementation of the Federal Claims 
                    Collection Act..........................         603
91              International air transportation fair 
                    competitive practices...................         609
92              Recovering debts to the United States by 
                    salary offset...........................         612
93              Aircraft allocation.........................         622
95              Advisory committees.........................         622
98              Enforcement of restrictions on post-
                    employment activities...................         625
99              Employee responsibilities and conduct.......         627

Appendix to Subtitle A--United States Railway Association--
  Employee Responsibilities and Conduct.....................         630

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PART 1--ORGANIZATION AND DELEGATION OF POWERS AND DUTIES--Table of Contents




                           Subpart A--General

Sec.
1.1  Purpose.
1.2  Definitions.
1.3  Organization of the Department.
1.4  General responsibilities.

                   Subpart B--Office of the Secretary

1.21  Purpose.
1.22  Structure.
1.23  Spheres of primary responsibility.
1.24  Authority.
1.25  Relationships.
1.26  Secretarial succession.

                         Subpart C--Delegations

1.41  Purpose.
1.42  Exercise of authority.
1.43  General limitations and reservations.
1.44  Reservation of authority.
1.45  Delegations to all Administrators.
1.46  Delegations to Commandant of the Coast Guard.
1.47  Delegations to Federal Aviation Administrator.
1.48  Delegations to Federal Highway Administrator.
1.49  Delegations to Federal Railroad Administrator.
1.50  Delegation to National Highway Traffic Safety Administrator.
1.51  Delegations to Urban Mass Transportation Administrator.
1.52  Delegations to Saint Lawrence Seaway Development Corporation 
          Administrator.
1.53  Delegations to the Administrator of the Research and Special 
          Programs Administration.
1.54  Delegations to all Secretarial Officers.
1.55  Delegations to Deputy Secretary.
1.56  Delegations to the Assistant Secretary for Transportation Policy.
1.56a  Delegations to the Assistant Secretary for Aviation and 
          International Affairs.
1.56b  Delegations to the Designated Senior Career Official, Office of 
          the Assistant Secretary for Aviation and International 
          Affairs.
1.57  Delegations to General Counsel.
1.57a  Delegations to Deputy General Counsel.
1.57b  Delegations to the Assistant General Counsel for Environmental, 
          Civil Rights, and General Law.
1.58  Delegations to Assistant Secretary for Budget and Programs.
1.59  Delegations to Assistant Secretary for Administration.
1.59a  Redelegations by the Assistant Secretary for Administration.
1.60  Delegations to the Inspector General.
1.61  Delegations to Assistant Secretary for Governmental Affairs.
1.62  Delegations to the Director of Small and Disadvantaged Business 
          Utilization.
1.63  Delegations to Assistant to the Secretary and Director of Public 
          Affairs.
1.64  Delegations to the Director, Transportation Administrative Service 
          Center.
1.65  Authority to classify information.
1.66  Delegations to Maritime Administrator.
1.67  Delegations to Maritime Subsidy Board.
1.68  [Reserved]
1.69  Delegations to the Director of Intelligence and Security.
1.70  Delegations to the Director of the Departmental Office of Civil 
          Rights.
1.71  Delegations to the Director of the Bureau of Transportation 
          Statistics.
1.72  Delegations to the Office of the Chief Information Officer.

Appendix A to Part 1--Delegations and Redelegations by Secretarial 
          Officers

    Authority: 49 U.S.C. 2104(a); Pub. L. 101-552; 28 U.S.C. 2672, 31 
U.S.C. 3711(a)(2), 46 U.S.C. 2104(a).

    Source: Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, unless otherwise 
noted.



                           Subpart A--General



Sec. 1.1  Purpose.

    This part describes the organization of the Department of 
Transportation and provides for the performance of duties imposed upon, 
and the exercise of powers vested, in the Secretary of Transportation by 
law.



Sec. 1.2  Definitions.

    As used in this part, Administrator includes:
    (a) The Coast Guard Commandant.
    (b) The Federal Aviation Administrator.
    (c) The Federal Highway Administrator.
    (d) The Federal Railroad Administrator.
    (e) The National Highway Traffic Safety Administrator.
    (f) The Urban Mass Transportation Administrator.
    (g) The Administrator of the St. Lawrence Seaway Development 
Corporation.

[[Page 6]]

    (h) The Research and Special Programs Administrator.
    (i) The Maritime Administrator.
    (j) The Director of the Bureau of Transportation Statistics.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 
FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28, 1981; Amdt. 
1-270, 60 FR 30196, June 8, 1995]



Sec. 1.3  Organization of the Department.

    (a) The Secretary of Transportation is the head of the Department.
    (b) The Department is comprised of the Office of the Secretary and 
the following operating elements, the heads of which report directly to 
the Secretary:
    (1) The U.S. Coast Guard, headed by the Commandant.
    (2) The Federal Aviation Administration, headed by the 
Administrator.
    (3) The Federal Highway Administration, headed by the Administrator.
    (4) The Federal Railroad Administration, headed by the 
Administrator.
    (5) The National Highway Traffic Safety Administration, headed by 
the Administrator.
    (6) The Urban Mass Transportation Administration, headed by the 
Administrator.
    (7) The St. Lawrence Seaway Development Corporation, headed by the 
Administrator.
    (8) The Research and Special Programs Administration, headed by the 
Administrator.
    (9) The Maritime Administration, headed by the Administrator and 
including within it the Maritime Subsidy Board composed of the Maritime 
Administrator, the Deputy Maritime Administrator, and the Chief Counsel 
of the Maritime Administration.
    (10) The Bureau of Transportation Statistics, headed by the 
Director.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 
FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28, 1981; Amdt. 
1-270, 60 FR 30196, June 8, 1995]



Sec. 1.4  General responsibilities.

    (a) Office of the Secretary. Provides for:
    (1) Leadership in formulating and executing well-balanced national 
and international transportation objectives, policies, and programs;
    (2) Stimulating and promoting research and development in all modes 
and types of transportation, with special emphasis on transportation 
safety;
    (3) Coordinating the various transportation programs of the Federal 
Government;
    (4) Encouraging maximum private development of transportation 
services;
    (5) Responsive, timely, and effective liaison with Congress, and 
public and private organizations on transportation matters;
    (6) Innovative approaches to urban transportation and environmental 
enhancement programs; and
    (7) Effective management of the Department as a whole.
    (b) U.S. Coast Guard. Is responsible for:
    (1) Upon the high seas and waters subject to the jurisdiction of the 
United States:
    (i) Enforcing or assistance in enforcing applicable Federal laws;
    (ii) Administering laws and promulgating and enforcing regulations 
for promoting safety of life and property, covering all matters not 
specifically delegated by law to some other executive department or 
reserved to the States;
    (iii) Developing, establishing, maintaining, and operating, with due 
regard to the requirements of national defense, aids to navigation, 
icebreaking facilities, and rescue facilities for promoting safety; and
    (2) Maintaining a state of readiness to function as a specialized 
service in the Navy, in time of war or when the President shall direct, 
as provided in section 3 of title 14, United States Code.
    (c) The Federal Aviation Administration. Is responsible for:
    (1) Promulgating and enforcing regulations on all safety matters 
relating to the manufacture, operation, and maintenance of aircraft;
    (2) Registering aircraft and recording rights in aircraft;
    (3) Developing, modifying, testing, and evaluating systems, 
procedures, facilities, and devices needed for the safe and efficient 
navigation and traffic control of aircraft;

[[Page 7]]

    (4) Locating, constructing or installing, maintaining, and operating 
Federal aids to air navigation, wherever necessary;
    (5) Developing air traffic regulations, and administering air 
traffic control of civil and military air operations within U.S. 
airspace;
    (6) Providing grants-in-aid for developing public airports;
    (7) Promoting and encouraging civil aviation abroad through 
technical aviation assistance to other governments; and
    (8) Promulgating and enforcing regulations on all safety matters 
relating to commercial launch activities.
    (d) The Federal Highway Administration. Is responsible for:
    (1) Planning, in cooperation with the States, the national highway 
system;
    (2) Providing for improving, in cooperation with the States, roads 
on the Federal-aid primary, secondary, and interstate highway systems 
and urban extensions thereof;
    (3) Highway beautification and scenic enhancement of the Federal-aid 
highway systems;
    (4) Surveying and constructing forest highway system roads, defense 
highways and access roads, and parkways and roads in national parks and 
other federally administered areas;
    (5) Inspecting records of motor carriers operating in interstate 
commerce, inspecting motor carrier vehicles, and investigating accidents 
and reporting violations of motor carrier safety regulations; and
    (6) Developing and administering uniform State standards for highway 
safety programs with respect to identification and surveillance of 
accident locations; highway design, construction, and maintenance, 
including highway related aspects of pedestrian safety; and traffic 
control devices.
    (e) The Federal Railroad Administration. Is responsible for:
    (1) Operating and managing the Alaska Railroad;
    (2) Conducting research and development activity in support of 
improved rail transportation;
    (3) Regulating safety functions pertaining to railroads, express 
companies, and water carriers operating in connection with railroads 
under a common control, management, or arrangement for continuous 
carriage or shipment; and
    (4) Investigating and issuing reports concerning collisions, 
derailments, and other railroad accidents resulting in serious injury to 
persons or to the property of a railroad.
    (f) The National Highway Traffic Safety Administration. Is 
responsible for:
    (1) Promulgating uniform standards for developing State highway 
safety programs, except for those standards the development and 
administration of which are delegated to the Federal Highway 
Administration.
    (2) Establishing, prescribing, and enforcing National standards for 
improving safety in the operation and performance of motor vehicles and 
equipment.
    (3) Informing the public of the comparative characteristics and 
operational cost of passenger motor vehicles and requiring display of 
comparative insurance costs by automobile dealers.
    (4) Administering a program of mandatory automotive fuel economy 
standards for passenger and non-passenger automobiles for model year 
1978 and beyond.
    (5) Establishing safeguards for the protection of purchasers with 
respect to the sale of motor vehicles having altered or reset odometers 
and enforcing the prohibition against tampering with odometers.
    (g) The Urban Mass Transportation Administration. Is responsible 
for:
    (1) Exercising the authority vested in the Secretary for developing 
comprehensive and coordinated mass transportation systems to serve 
metropolitan and other urban areas;
    (2) Administering urban mass transportation programs and functions; 
and
    (3) Assuring appropriate liaison and coordination with other 
governmental organization, with respect to the foregoing.
    (h) The St. Lawrence Seaway Development Corporation. Is responsible 
for the development, operation, and maintenance of that part of the St. 
Lawrence Seaway within the territorial limits of the United States.
    (i) The Research and Special Programs Administration. Is responsible 
for:

[[Page 8]]

    (1) Planning, developing, initiating and managing programs in all 
fields of transportation research and development. Maintaining the 
capability to perform research and analysis in transportation planning 
and socioeconomic effects, program management, and technological support 
in response to request for line participation in DOT policy 
formulations. Particular efforts will be made on transportation systems 
problems, advanced transportation concepts, and on multimodal 
transportation. RSPA will develop and maintain a vital statistics and 
related transportation information data base;
    (2) Exercising for the Secretary the multimodal hazardous materials 
(HM) program and prescribing and enforcing safety regulations for the 
transportation of gases or hazardous liquids by pipeline;
    (3) Developing, managing, and evaluating programs and research 
activities for the security of passengers and cargo in the 
transportation systems and for the prevention of unlawful or other acts 
adversely affecting the efficiency or integrity of the Nation's 
transportation systems and providing leadership in the development and 
improvement of coordinated domestic and international transportation 
services;
    (4) Providing leadership on all technical, navigation and 
communication, and systems engineering activities;
    (5) Providing a point of contact for the Department with the 
academic community to encourage transportation research;
    (6) Overseeing the effective discharge of the Secretary's statutory 
and administrative transportation responsibilities in all emergencies 
affecting the national defense and in national or regional crises; and
    (7) Managing a Transportation Safety Institute which designs and 
conducts training programs responsible to the requirements of Government 
and industry as expressed by the operating elements of the Department.
    (j) The Maritime Administration. Is responsible for:
    (1) Fostering the development and maintenance of an American 
merchant marine sufficient to meet the needs of the national security 
and of the domestic and foreign commerce of the United States;
    (2) Awarding and administering construction-differential subsidy 
contracts and operating-differential subsidy contracts to aid the 
American merchant marine, and trade-in allowances for new ship 
construction;
    (3) Entering into and administering agreements for capital 
contruction funds (excepting fishing vessels) and construction reserve 
funds;
    (4) Providing insurance on construction loans and ship mortgages or 
guarantees on ship financing obtained from private sources for ship 
construction and reconstruction (excepting fishing vessels);
    (5) Providing assistance to the shipping industry to generate 
increased trade and cargo shipments on U.S. flag ships;
    (6) Promoting development of ports and intermodal transportation 
systems;
    (7) Promoting development of the domestic waterborne commerce of the 
United States;
    (8) Overseeing the administration of cargo preference statutes;
    (9) Entering into and administering charters and general agency 
agreements for operation of Government-owned merchant ships;
    (10) Maintaining custody of, and preserving, ships in the National 
Defense Reserve Fleet;
    (11) Selling surplus Government-owned ships;
    (12) Supervising design and construction of ships for Government 
account;
    (13) Furnishing war risk insurance on privately owned merchant 
ships;
    (14) Administering the foreign transfer program regarding ships and 
other maritime properties;
    (15) Training merchant marine officers;
    (16) Conducting research and development to improve and promote the 
waterborne commerce of the United States; and
    (17) Issuing rules and regulations with respect to the foregoing 
functions.
    (k) The Maritime Subsidy Board (within the Maritime Administration). 
Is responsible for:
    (1) Making, amending, and terminating subsidy contracts, which shall 
be

[[Page 9]]

deemed to include, in the case of construction-differential subsidy: (i) 
The contract for the construction, reconstruction, or reconditioning of 
a vessel, and (ii) the contract for the sale of the vessel to the 
subsidy applicant or the contract to pay a construction-differential 
subsidy and the cost of the national defense features, and, in the case 
of operating-differential subsidy, the contract with the subsidy 
applicant for the payment of the subsidy.
    (2) Conducting hearings and making determinations antecedent to 
making, amending, and terminating subsidy contracts, under the 
provisions of titles V, VI, and VII, and sections 301 (except 
investigations, hearings, and determinations, including changes in 
determinations, with respect to minimum manning scales, minimum wage 
scales, and minimum working conditions), 708, 805(a), and 805(f) of the 
Merchant Marine Act, 1936, as amended (the ``Act'').
    (3) Approving the sale, assignment, or transfer of any operating 
subsidy contract under section 608 of the Act.
    (4) Performing so much of the functions with respect to adopting 
rules and regulations, subpoenaing witnesses, administering oaths, 
taking evidence, and requiring the production of books, papers, and 
documents, under sections 204 and 214 of the Act, as they relate to the 
functions of the Board.
    (5) Performing as much of the functions specified in section 12 of 
the Shipping Act, 1916, as amended, as the same relate to the functions 
of the Board under paragraphs (k) (1) through (4) of this section.
    (l) The Bureau of Transportation Statistics. Is responsible for:
    (1) Compiling, analyzing, and publishing a comprehensive set of 
transportation statistics to provide timely summaries and total 
(including industrywide aggregates and multiyear averages) of 
transportation-related information;
    (2) Establishing and implementing, in cooperation with the modal 
administrators, the States, and other Federal officials, a 
comprehensive, long-term program for the collection and analysis of data 
relating to the performance of the national transportation system;
    (3) Issuing guidelines for the collection of information by the 
Department required for statistics to be compiled pursuant to 49 U.S.C. 
111(c)(1) in order to ensure that such information is accurate, 
reliable, relevant, and in a form that permits systematic analysis;
    (4) Coordinating the collection of information by the Department 
required for statistics to be compiled pursuant to 49 U.S.C. 111(c)(1) 
with related information-gathering activities conducted by the other 
Federal departments and agencies collecting appropriate data not 
elsewhere gathered;
    (5) Making the statistics published under this subsection readily 
accessible, in compliance with all disclosure laws, regulations, and 
requirements; and.
    (6) Identifying information that is needed in accordance with 49 
U.S.C. 111(c)(1) but which is not being collected, reviewing such needs 
at least annually with the Advisory Council on Transportation 
Statistics, and making recommendations to appropriate Department of 
Transportation research officials concerning extramural and intramural 
research programs to provide such information.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-120, 41 
FR 42956, Sept. 29, 1976; Amdt. 1-125, 41 FR 53798, Dec. 9, 1976; Amdt. 
1-157, 45 FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28, 
1981; Amdt. 1-211, 51 FR 29471, Aug. 18, 1986; Amdt. 1-270, 60 FR 30196, 
June 8, 1995; Amdt. 1-274, 60 FR 62762, Dec. 7, 1995]



                   Subpart B--Office of the Secretary



Sec. 1.21  Purpose.

    This subpart establishes the basic organizational structure, spheres 
of primary responsibility, and lines of authority in the Office of the 
Secretary. It also describes the relationships between the Office of the 
Secretary and the operating administrations, and provides for succession 
to the position of Secretary in case of need.



Sec. 1.22  Structure.

    (a) Secretary and Deputy Secretary. The Secretary and Deputy 
Secretary are assisted by the following, all of which report directly to 
the Secretary: The Associate Deputy Secretary and

[[Page 10]]

Director, Office of Intermodalism; the Executive Secretariat; the Board 
of Contract Appeals; the Departmental Office of Civil Rights; the Office 
of Small and Disadvantaged Business Utilization; the Office of 
Intelligence and Security; the Office of Public Affairs; and the Office 
of the Chief Information Officer. The Assistant Secretaries, the General 
Counsel, and the Inspector General also report directly to the 
Secretary.
    (b) Office of the Assistant Secretary for Transportation Policy. 
This Office is composed of the Offices of Environment, Energy and 
Safety; and Economics.
    (c) Office of the Assistant Secretary for Aviation and International 
Affairs. This Office is composed of the Offices of Aviation 
International Economics; International Transportation and Trade; 
International Aviation; and Aviation Analysis.
    (d) Office of the General Counsel. This Office is composed of the 
Offices of Environmental, Civil Rights, and General Law; International 
Law; Litigation; Legislation; Regulation and Enforcement; the Board for 
Correction of Military Records; and Aviation Enforcement and 
Proceedings.
    (e) Office of the Assistant Secretary for Budget and Programs. This 
Office is composed of the Offices of Programs and Evaluation; and 
Budget.
    (f) Office of the Assistant Secretary for Governmental Affairs. This 
office is composed of the Offices of Congressional Affairs and 
Intergovernmental Affairs.
    (g) Office of the Assistant Secretary for Administration. This 
Office is composed of the Offices of Personnel; Management Planning; 
Information Resource Management; Administrative Services and Property 
Management; Hearings; Acquisition and Grant Management; Security; 
Financial Management; and Administrative Systems Development.
    (h) Office of the Inspector General. The duties and responsibilities 
of the Office of Inspector General are carried out by the Assistant 
Inspector General for Auditing; the Assistant Inspector General for 
Investigations; the Assistant Inspector General for Policy, Planning, 
and Resources; and the Assistant Inspector General for Inspections and 
Evaluations.

[Amdt. 1-261, 59 FR 10061, Mar. 3, 1994, as amended by Amdt.1-268, 60 FR 
14226, Mar. 16, 1995; Amdt. 1-269, 60 FR 15877, Mar. 28, 1995; Amdt. 1-
274, 60 FR 62762, Dec. 7, 1995; Amdt. 1-290, 62 FR 51804, Oct. 3, 1997]



Sec. 1.23  Spheres of primary responsibility.

    (a) Secretary and Deputy Secretary. Overall planning, direction, and 
control of departmental affairs including civil rights, contract 
appeals, small and disadvantaged business participation in departmental 
programs, transportation research and technology, commercial space 
transportation, intelligence and security, and public affairs.
    (b) Associate Deputy Secretary and Director, Office of 
Intermodalism. Assists the Secretary and Deputy Secretary in carrying 
out a variety of executive and managerial policies, programs and 
initiatives. Focal point within the Federal Government for coordination 
of intermodal transportation policy which brings together departmental 
intermodal perspectives, advocates intermodal interests, and provides 
secretarial leadership and visibility on issues that involve or affect 
more than one operating administration.
    (c) General Counsel. Legal services as the chief legal officer of 
the Department, legal advisor to the Secretary and the Office of the 
Secretary; final authority within the Department on questions of law; 
professional supervision, including coordination and review, over the 
legal work of the legal offices of the Department; drafting of 
legislation and review of legal aspects of legislative matters; point of 
coordination for the Office of the Secretary and Department Regulations 
Council; advice on questions of international law; exercise of 
functions, powers, and duties as Judge Advocate General under the 
Uniform Code of Military Justice (Chapter 47 of Title 10, U.S.C.) with 
respect to the United States Coast Guard; advice and assistance with 
respect to uniform time matters; ensures uniform departmental 
implementation of the Freedom of Information Act (5 U.S.C. 552); 
responds to requests for records of the Office of the Secretary

[[Page 11]]

including the Office of the Inspector General, under that statute; 
review and final action on applications for reconsideration of initial 
decisions not to disclose unclassified records of the Office of the 
Secretary requested under 5 U.S.C. 552(a)(3); promotion and coordination 
of efficient use of Departmental legal resources; recommendation, in 
conjunction with the Assistant Secretary for Administration, of legal 
career development programs within the Department; review and final 
action on application for correction of military records of the United 
States Coast Guard.
    (d) Assistant Secretary for Transportation Policy. Principal policy 
advisor to the Secretary and the Deputy Secretary. Public policy 
development, coordination, and evaluation for all aspects of 
transportation, with the goal of making the Nation's transportation 
resources function as an integrated national system; evaluation of 
private transportation sector operating and economic issues; evaluation 
of public transportation sector operating and economic issues; 
regulatory and legislative initiatives and review; energy, 
environmental, disability, and safety policy and program development and 
review; and transportation infrastructure assessment and review.
    (e) Assistant Secretary for Aviation and International Affairs. 
Public policy assessment and review; private sector evaluation; 
international transportation and transport-related trade policy and 
issues; regulatory and legislative initiatives and review of maritime/
shipbuilding policies and programs; transport-related trade promotion; 
coordination of land transport relations with Canada and Mexico; 
technical assistance and science and technology cooperation; 
international visitors' programs; economic regulation of the airline 
industry; and essential air service program.
    (f) Assistant Secretary for Budget and Programs. Preparation, review 
and presentation of Department budget estimates; liaison with OMB and 
Congressional Budget and Appropriations Committees; departmental 
financial plans, apportionments, reapportionments, reprogrammings, and 
allotments; program and systems evaluation and analysis; program 
evaluation criteria; program resource plans; analysis and review of 
legislative proposals and one-time reports and studies required by the 
Congress; budgetary and selected administrative matters relating to the 
Immediate Office of the Secretary.
    (g) Assistant Secretary for Governmental Affairs. Coordination of 
legislative and non-legislative relationships; congressional affairs; 
communications and coordination with Federal, State and local 
governments, industry and labor, and with citizens and organizations 
representing consumers.
    (h) Assistant Secretary for Administration. Organization; 
delegations of authority; personnel ceiling control; management studies; 
personnel management; acquisition and grant management (except for the 
responsibility listed for the Office of Small and Disadvantaged Business 
Utilization in this section); information resource management; financial 
management; development and implementation of a Departmental Accounting 
and Financial Information System (DAFIS); property management 
information; security; computer support; telecommunications; and 
administrative support services for the Office of the Secretary and 
certain other components of the Department.
    (i) Inspector General. Conduct, supervise, and coordinate audits and 
investigations, review existing and proposed legislation and make 
recommendations to the Secretary and Congress (Semiannual reports) 
concerning their impact on the economy and efficiency of program 
administration, or the prevention and detection of fraud and abuse; 
recommend policies for and conduct, supervise, or coordinate other 
activities of the Department for the purpose of promoting economy and 
efficiency in program administration, or preventing and detecting fraud 
and abuse.
    (j) Executive Secretary. Central facilitative staff for the 
Immediate Office of the Secretary and the Secretarial Officers.
    (k) Board of Contract Appeals. Conducts trials and issues final 
decisions, which are appealable to the United States Court of Appeals 
for the Federal Circuit, on appeals from contracting officer decisions 
under contracts

[[Page 12]]

awarded by the Department and its constituent administrations in 
accordance with the Contract Disputes Act of l978, 41 U.S.C. 601 et 
seq.; sits as the Contract Adjustment Board with plenary authority to 
grant extraordinary contractual relief in accordance with 50 U.S.C. 
1431-1435 and Executive Order 10789 (3 CFR, 1954-1958 comp., p. 426), as 
amended; hears and decides all contractor and subcontractor debarment, 
suspension, or ineligibility cases pursuant to the Federal Acquisition 
Regulation, 48 CFR 9.402; judges serve as ``neutrals'' under the 
Administrative Dispute Resolution Act, 5 U.S.C. 581 et seq., in 
contract-related matters; and performs such other adjudicatory functions 
assigned by the Secretary as are consistent with the duties and 
responsibilities of the Board as set forth in 41 U.S.C. 601 et seq.
    (l) Departmental Office of Civil Rights. The Director of the 
Departmental Office of Civil Rights serves as the Department's Equal 
Employment Opportunity (EEO) Officer and Title VI Coordinator. The 
Director also serves as principal advisor to the Secretary and the 
Deputy Secretary on the civil rights and nondiscrimination statutes, 
regulations, and executive orders applicable to the Department, 
including titles VI and VII of the Civil Rights Act of 1964, as amended, 
the Age Discrimination in Employment Act of 1967, as amended, the Age 
Discrimination Act of 1975, as amended, section 504 of the 
Rehabilitation Act of 1973, as amended, the Americans with Disabilities 
Act of 1990, and the Equal Pay Act of 1963. The Office of Civil Rights 
also provides policy guidance to the operating administrations and 
Secretarial officers on these matters. Also, the Office periodically 
reviews and evaluates the civil rights programs of the operating 
administrations to ensure that recipients of DOT funds meet applicable 
Federal civil rights requirements.
    (m) Office of Small and Disadvantaged Business Utilization. 
Responsible for the Department's implementation and execution of the 
functions and duties under sections 8 and 15 of the Small Business Act, 
as amended, (15 U.S.C. 637 and 644), and for other departmental small 
and disadvantaged business policy direction.
    (n) [Reserved]
    (o) Office of Intelligence and Security. Focal point within the 
Department of Transportation for intelligence and security matters which 
affect the safety of the traveling public.
    (p) Office of Public Affairs. Focal point for public information and 
departmental relations with the news media, the general public, and 
selected special publics.
    (q) Office of the Chief Information Officer. Serves as principal 
advisor to the Secretary on matters involving information resources and 
information systems management.

[Amdt. 1-261, 59 FR 10062, Mar. 3, 1994, as amended by Amdt. 265, 60 FR 
2891, Jan. 12, 1995; Amdt. 1-274, 60 FR 62762, Dec. 7, 1995; Amdt. 1-
290, 62 FR 51804, Oct. 3, 1997]



Sec. 1.24  Authority.

    (a) The Deputy Secretary may exercise the authority of the 
Secretary, except where specifically limited by law, order, regulation, 
or instructions of the Secretary.
    (b) Acting in his or her own name and title, each Assistant 
Secretary, the Inspector General, or the General Counsel, within his or 
her sphere of responsibility, is authorized to identify and define the 
requirements for, and to recommend to the Secretary, new or revised 
Departmental policies, plans, and proposals. Each of these officers is 
authorized to issue Departmental standards, criteria, systems and 
procedures that are consistent with applicable laws, Executive Orders, 
Government-wide regulations and policies established by the Secretary, 
and to inspect, review, and evaluate Departmental program performance 
and effectiveness and advise the Secretary regarding the adequacy 
thereof.
    (c) Except for nondelegable statutory duties, including those which 
devolve as a result of succession to act as Secretary of Transportation, 
each Deputy Assistant Secretary, the Deputy Inspector General, and the 
Deputy General Counsel is authorized to act for and perform the duties 
of his or her principal in the absence or disability of the principal 
and as otherwise directed by the principal.
    (d) Inspector General. The Inspector General shall report to and be 
under

[[Page 13]]

the general supervision of the Secretary and Deputy Secretary. In 
accordance with the statutory intent of the Inspector General Act to 
create an independent and objective unit, the Inspector General is 
authorized to make such investigations and reports relating to the 
administration of the programs and operations of the Department as are, 
in the judgment of the Inspector General, necessary and desirable. 
Neither the Secretary nor the Deputy Secretary shall prevent or prohibit 
the Inspector General from initiating, carrying out, or completing any 
audit or investigation, or from issuing any subpoena during the course 
of any audit or investigation.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 
FR 83404, Dec. 18, 1980]



Sec. 1.25  Relationships.

    (a) Normal staff role. Normally, the functions of the Assistant 
Secretaries are staff and advisory in nature. In performing their 
functions, the Assistant Secretaries are responsible for continuing 
liaison and coordination among themselves and with the operating 
administrations to:
    (1) Avoid unnecessary duplication of effort by or in conflict with 
the performance of similar activities by the operating administrations 
and the other Assistant Secretaries pursuant to their Secretarial 
delegations of authority; and
    (2) Assure that the views of the operating administrations are 
considered in developing Departmental policies, plans, and proposals.

The Assistant Secretaries are also available to assist, as appropriate, 
the operating administrations in implementing Departmental policy and 
programs. As primary staff advisors to the Secretary, the Assistant 
Secretaries are concerned with transportation matters of the broadest 
scope, including modal, intermodal, and other matters of Secretarial 
interest.
    (b) Exceptions. There are exceptions to the normal staff role 
described in paragraph (a) of this section. In selected instances, the 
Secretary has specifically delegated to Assistant Secretaries authority 
which they may exercise on the Secretary's behalf. For example, the 
Secretary has delegated authority to the Assistant Secretary for 
Transportation Policy and the Assistant Secretary for Aviation and 
International Affairs, as appropriate, to decide on most requests to 
intervene or appear before administrative agencies, subject to the 
concurrence of the General Counsel. Also, from time to time, activities 
of an operational character may be delegated to an Assistant Secretary 
when the nature of the function or its stage of development makes it 
untimely to effect assignment to an operating administration.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 
FR 83405, Dec. 18, 1980; Amdt. 1-261, 59 FR 10063, Mar. 3, 1994]



Sec. 1.26  Secretarial succession.

    (a) The following officials, in the order indicated, shall act as 
Secretary of Transportation, in case of the absence or disability of the 
Secretary, until the absence or disability ceases, or, in case of a 
vacancy, until a successor is appointed:
    (1) Deputy Secretary.
    (2) General Counsel.
    (3) Assistant Secretary for Transportation Policy.
    (4) Assistant Secretary for Aviation and International Affairs.
    (5) Assistant Secretary for Governmental Affairs.
    (6) Assistant Secretary for Budget and Programs.
    (7) Associate Deputy Secretary.
    (8) Federal Aviation Administrator.
    (9) Assistant Secretary for Administration.
    (b) Without regard to the foregoing, a person directed to perform 
the duties of the Secretary pursuant to 5 U.S.C. 3347 shall act as 
Secretary of Transportation.

[Amdt. 1-157, 45 FR 83405, Dec. 18, 1980, as amended by Amdt. 1-184, 48 
FR 44079, Sept. 27, 1983; Amdt. 1-261, 59 FR 10063, Mar. 3, 1994; Amdt. 
1-291, 62 FR 55357, Oct. 24, 1997]



                         Subpart C--Delegations



Sec. 1.41  Purpose.

    (a) Except as provided in paragraph (b) of this section, this 
subpart provides for the exercise of the powers and performance of the 
duties vested in the Secretary of Transportation by law.

[[Page 14]]

    (b) For delegations of authority vested in the Secretary by 
Executive Order 11652 originally to classify documents as secret or 
confidential, see Sec. 8.11 of this subtitle.



Sec. 1.42  Exercise of authority.

    In exercising powers and performing duties delegated by this subpart 
or redelegated pursuant thereto, officials of the Department of 
Transportation are governed by applicable laws, Executive orders and 
regulations and by policies, objectives, plans, standards, procedures, 
and limitations as may be issued from time to time by or on behalf of 
the Secretary, or, with respect to matters under their jurisdictions, by 
or on behalf of the Deputy Secretary, an Assistant Secretary, the 
Inspector General, the General Counsel, or an Administrator. This 
includes, wherever specified, the requirement for advance notice to, 
prior coordination with, or prior approval by an authority other than 
that of the official proposing to act.

[Amdt. 1-114, 41 FR 1288, Jan. 7, 1976, as amended by Amdt. 1-157, 45 FR 
83405, Dec. 18, 1980]



Sec. 1.43  General limitations and reservations.

    (a) All powers and duties that are not delegated by the Secretary in 
this subpart, or otherwise vested in officials other than the Secretary, 
are reserved to the Secretary. Except as otherwise provided, the 
Secretary may exercise powers and duties delegated or assigned to 
officials other than the Secretary.
    (b) Except as provided in Sec. 1.42 and subject to paragraph (a) of 
this section and Sec. 1.44, the Deputy Secretary, the Assistant 
Secretaries, the Inspector General, the General Counsel, and the 
Administrators exercise the powers and perform the duties delegated to 
them under this subpart.
    (c) Notwithstanding the provisions of paragraph (a), the delegation 
of authority in Sec. 1.56b of this title to the Designated Senior Career 
Official in the Office of the Assistant Secretary for Aviation and 
International Affairs to make decisions in certain aviation hearing 
cases is exclusive, and may not be exercised by any other Departmental 
official, including the Secretary. The Secretary reserves (and delegates 
to the Assistant Secretary for Aviation and International Affairs) only 
the authority to make discretionary review of any such decision and to 
approve it or to remand it for reconsideration by the Designated Senior 
Career Official, with a full written explanation of the basis for the 
remand.

[Amdt. 1-157, 45 FR 83405, Dec. 18, 1980, as amended by Amdt. 1-199, 49 
FR 50996, Dec. 31, 1984; Amdt. 1-261, 59 FR 10061, 10063, Mar. 3, 1994]



Sec. 1.44  Reservation of authority.

    The delegations of authority in Secs. 1.45 through 1.53 and 
Secs. 1.66 and Sec. 1.67 do not extend to the following actions, 
authority for which is reserved to the Secretary or the Secretary's 
delegatee within the Office of the Secretary:
    (a) General transportation matters. (1) Transportation leadership 
authority under section 4(a) of the Department of Transportation Act (49 
U.S.C. 1653(a)).
    (2) Functions relating to transportation activities, plans, and 
programs under section 4(g) of the Department of Transportation Act (49 
U.S.C. 1653(g)).
    (3) Authority to develop, prepare, coordinate, transmit, and revise 
transportation investment standards and criteria under section 7 of the 
Department of Transportation Act (49 U.S.C. 1656).
    (4) Authority relating to standard time zones and advanced 
(daylight) time (15 U.S.C. 260 et seq.).
    (5) Authority related to national transportation policy under 
section 3 of the Airport and Airway Development Act of 1970 (84 Stat. 
219).
    (b) Legislation and reports. (1) Submission to the President, the 
Director of the Office of Management and Budget, or the Congress of 
proposals or recommendations for legislation, Executive orders, 
proclamations or reorganization plans or other Presidential action.
    (2) Submission to Congress or the President of any report or any 
proposed transportation policy or investment standards or criteria, 
except with the prior written approval of the Secretary.

[[Page 15]]

    (3) Submission of the annual statement on systems of internal 
accounting and administrative control under the Federal Managers' 
Financial Integrity Act of 1982 (Pub. L. 97-255).
    (c) Budget and finance. (1) Approval and submission to the Office of 
Management and Budget of original or amended budget estimates or 
requests for allocations of personnel ceiling (31 U.S.C. 22-24).
    (2) Approval of requests for legislation which, if enacted, would 
authorize subsequent appropriations for the Department (31 U.S.C. 581b).
    (3) Transfer of the balance of an appropriation from one operating 
element to another within the Department (31 U.S.C. 581c).
    (4) Submission to the Director of the Office of Management and 
Budget of requests for the transfer of the balance or portions of an 
appropriation from one element to another within the Department (31 
U.S.C. 665).
    (d) Interventions and appearances. Except with respect to 
proceedings relating to safety fitness of an applicant (49 U.S.C. 
1653(e)), the making of decisions on requests to intervene or appear 
before courts and administrative agencies to present the views of the 
Department.
    (e) Personnel. (1) Recommendations to the Civil Service Commission 
of the allocation of a position to GS-16, 17, or 18 or an equivalent 
level (5 U.S.C. 5108).
    (2) Recommendations to the Civil Service Commission of approval of 
the qualifications of any candidate for a position at grade GS-16, 17, 
or 18 or an equivalent level (5 U.S.C. 3324), or to an executive level 
position.
    (3) Recommendations to the Civil Service Commission of a Lump-Sum 
Incentive Award in Excess of $5,000 (5 U.S.C. 4502).
    (4) Approval of the following actions relating to Schedules A, B, 
and C and noncareer executive assignment positions or incumbents, except 
for actions under Schedules A and B limited to one year or less at grade 
GS-9 or lower, or an equivalent level:
    (i) Establishment or abolition of positions;
    (ii) Hires;
    (iii) Promotions other than quality and periodic within-grade 
promotions;
    (iv) Transfer of personnel to Schedule A, B, or C positions or non-
career executive assignment positions, either permanently or on detail; 
and
    (v) Transfer of personnel from Schedule A, B, or C or non-career 
executive assignment positions to career Civil Service positions.
    (5) Approval of employment of experts or consultants.
    (6) Authority relating to scientific and professional positions 
under section 6(a) (5) of the Department of Transportation Act (49 
U.S.C. 1655(a)(5)).
    (7) Authority to determine the maximum limit of age for appointment 
of air traffic controllers as provided by 5 U.S.C. 3307(b) (86 Stat. 
141).
    (8) Authority to develop, coordinate, and issue wage schedules under 
the Federal Wage system, except as delegated to the Commandant of the 
Coast Guard at Sec. 1.46.
    (f) Security. (1) Suspension or removal of an employee from a 
position in the Department for security reasons under Executive Order 
10450 (3 CFR, 1949-53 Comp., p. 936) or the employment in the Department 
of a person who was previously separated for security reasons from any 
Federal agency.
    (2) Authorizing the filling of a critical-sensitive position for a 
limited period by a person on whom a preappointment full field 
investigation has not been completed (Executive Order 10450).
    (3) Requesting Presidential approval of a claim of executive 
privilege with respect to information requested by a congressional 
committee or Member of Congress.
    (4) Making determinations prescribed by sections 4(a)(2)(B), 
4(b)(3), 5(b), and 9 of Executive Order 10865 (3 CFR, 1959-63 Comp., p. 
398) relating to the adjudication and final denial of access to 
classified information to industry personnel.
    (5) Making those determinations or delegations prescribed by 
sections 2(B) (3), 5(E) (1) and (2) of Executive Order 11652 (37 FR 
5209, March 10, 1972) which are reserved to the head of the Department.
    (g) Procurement. Exercise of the extraordinary authority for defense 
contracts provided for in Public Law 85-804 (50 U.S.C. 1431-1435), and 
considerations

[[Page 16]]

and decisions on contract appeals and other matters pursuant to the 
Department of Transportation Contract Appeals Regulations (41 CFR part 
12-60).
    (h) Printing. Requesting approval of the Joint Committee on Printing 
for any procurement or other action requiring Committee approval.
    (i) Interagency agreements. Execution of any written 
interdepartmental or interagency agreement with the head of another 
executive department or agency.
    (j) Withholding of funds. Withholding or suspension of Federal-Aid 
Highway funds on a state-wide basis and the waiver or compromise of such 
withholding or suspension, except for the administration of 23 U.S.C. 
141 and 154, which are specifically delegated in Sec. 1.48(b) (23) and 
(28) and in Sec. 1.50(i) (1) and (2).
    (k) Alaska Railroad. Extension or abandonment of railroad service.
    (l) National Highway Safety Advisory Committee. Directing the 
National Highway Safety Advisory Committee to meet (23 U.S.C. 404(c)).
    (m) Coast Guard. The following powers relating to the Coast Guard:
    (1) Appointment of Advisory Committee to the Academy (14 U.S.C. 
193).
    (2) Fixing date for visit to Academy by Board of Visitors (14 U.S.C. 
194(b)).
    (3)-(4) [Reserved]
    (5) Responsibility for supervising activities of Reserve components 
(10 U.S.C. 264(b)).
    (6) Convening General Courts-Martial under the personal authority 
granted by law (10 U.S.C. 822(a)(2)).
    (7) Approval of execution of a sentence dismissing a commissioned 
officer or cadet (10 U.S.C. 871(b)).
    (8) Approval of vacation of a suspension of dismissal (10 U.S.C. 
872(b)).
    (9) Establishing procedures for the correction of military records 
(10 U.S.C. 1552(a)).
    (10) Establishing a Discharge Review Board under 10 U.S.C. 1553 and 
reviewing and taking final action on its findings in the following 
cases:
    (i) Those cases in which a minority of the Board requests that their 
written opinion be forwarded to the Secretary for consideration;
    (ii) Those cases selected by the Commandant to inform the Secretary 
of aspects of the Board's functions which may be of interest to the 
Secretary;
    (iii) Any case in which the Secretary demonstrates an interest; and
    (iv) Any case which the president of the Board believes is of 
significant interest to the Secretary.
    (11) [Reserved]
    (12) Substitute administrative discharge for dismissal of an officer 
under 10 U.S.C. 804 (a) and (b).
    (13) Designation of commanding officers and officers in charge who 
may convene general, special and summary courts-martial. (10 U.S.C. 
822(a)(6), 823(a)(7), and 824(a)(4).
    (14) In time of war certify cases to President to extend statute of 
limitations until after termination of hostilities. (10 U.S.C. 843(e)).
    (15) Direct Judge Advocate General to establish branch office. (10 
U.S.C. 868).
    (16) Designate officers authorized to remit or suspend any part of 
amount of unexecuted part of any sentence. (10 U.S.C. 874(a)).
    (17) Substitute administrative form of discharge for discharge or 
dismissal executed in accordance with sentence of court-martial (10 
U.S.C. 874(b)).
    (18) Substitute administrative discharge for previously executed 
sentence of dismissal when dismissal not imposed at new trial. (10 
U.S.C. 875(c)).
    (19) Designate persons to convene courts of inquiry. (10 U.S.C. 
935(a)).
    (n) Automatic data processing. Approval authority relating to 
automatic data processing equipment and services as delimited by DOT 
1370.2A, Procurement of Automatic Data Processing Equipment and 
Services, of 7.22.70.
    (o) Deepwater ports. The authority to issue, transfer, or amend a 
license for the construction and operation of a deepwater port (33 
U.S.C. 1503(b)).
    (p) [Reserved]
    (q) Review and finality of actions by Maritime Subsidy Board. (1) 
Review of any decision, report, and/or order of the Maritime Subsidy 
Board, as described in 46 CFR part 202, as amended.
    (r) Approval of cash purchases of passenger transportation. The 
authority under FPMR G-72, as amended, to authorize and approve cash 
purchases for

[[Page 17]]

emergency passenger transportation services costing more than $100.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]

    Editorial Note: For Federal Register citations affecting Sec. 1.44, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 1.45  Delegations to all Administrators.

    (a) Except as prescribed by the Secretary of Transportation, each 
Administrator is authorized to:
    (1) Exercise the authority of the Secretary over and with respect to 
any personnel within their respective organizations.
    (2) Exercise the authority of the Secretary as executive head of a 
department, under any statute, Executive order or regulation.
    (3) Request the Attorney General to approve the award, compromise, 
or settlement of any tort claim for an amount exceeding $100,000 
(excluding interest) (28 U.S.C. 2672).
    (4) Carry out the functions vested in the Secretary concerning 
environmental enhancement by 49 U.S.C. 303.
    (5) Carry out the emergency preparedness functions assigned to the 
Secretary by Executive Order 12656 and by the Federal Emergency 
Management Agency, General Services Administration (FEMA/GSA) as they 
pertain to his administration, including those relating to continuity of 
operations, emergency resource management, associated Federal claimant 
procedures, facilities protection and warfare effects monitoring and 
reporting, research, stockpiling, financial aid, and training.
    (6) Enter into inter- and intradepartmental reimbursable agreements 
other than with the head of another department or agency (31 U.S.C. 
686). This authority may be redelegated only to Office Directors, 
Regional Directors, District Commanders or other comparable levels and 
Contracting Officers.
    (7) Determine the existence and amount of indebtedness and the 
method of collecting repayments from employees and members within their 
respective administrations and collect repayments accordingly, as 
provided by 5 U.S.C. 5514. Redelegation of this authority may be made 
only to the principal officials responsible for financial management or 
such officials' principal assistants.
    (8) Waive claims and make refunds in connection with claims of the 
United States for erroneous payment of pay and allowances or of travel, 
transportation, and relocation expenses and allowances in amounts 
aggregating not more than $1,500 without regard to any repayments, and 
deny requests for waiver of such claims regardless of the aggregate 
amount of the claim, as provided by 4 CFR parts 91, 92, and 93. 
Redelegation of this authority may be made only to the level of Regional 
Director or District Commander.
    (9) Settle and pay claims by employees for personal property losses 
as provided by 31 U.S.C. 3721. This authority may be redelegated only to 
Office Directors, Regional Directors, District Commanders, or other 
comparable levels and to those individuals that report to the above 
officials.
    (10) Exercise the authority of the Secretary to resolve informal 
allegations of discrimination arising in or relating to their respective 
organizations through Equal Employment Opportunity counseling or the 
Alternative Dispute Resolution process and to develop and implement 
affirmative action and diversity plans within their respective 
organizations. With regard to external civil rights programs, each 
Administrator exercises authority pursuant to statutes, regulations, 
executive orders, or delegations in subpart C of this part to carry out 
these programs, under the general policy guidance of the Director of the 
Departmental Office of Civil Rights, including conducting compliance 
reviews and other activities relating to the enforcement of these 
statutes, regulations, and executive orders.
    (11) Review and approve for payment any voucher for $25 or less the 
authority for payment of which is questioned by a certifying or 
disbursing officer.
    (12) Authorize and approve official non-foreign travel and 
transportation for themselves, their subordinates, and others performing 
services for, or in cooperation with, their operating administrations. 
Additionally, heads of operating administrations, through a redelegation 
from the Deputy Secretary,

[[Page 18]]

may authorize and approve routine operational foreign travel, as defined 
in DOT 1500.6A, Travel Manual, of 1-2-85. These authorities may be 
redelegated in accordance with regulations issued by the Assistant 
Secretary for Administration.
    (13) Exercise the authority of the Secretary to make certifications, 
findings and determinations under the Regulatory Flexibility Act (Pub. 
L. 96-354) with regard to any rulemaking document for which issuance 
authority is delegated by other sections in this part. This authority 
may be redelegated to those officials to whom document issuance 
authority has been delegated.
    (14) Carry out the functions vested in the Secretary by section 2 of 
the Federal Technology Transfer Act of 1986, (Pub. L. No. 99-502; 15 
U.S.C. 3710a), which authorizes agencies to permit their laboratories to 
enter into cooperative research and development agreements.
    (15) Compromise, suspend collection action on, or terminate claims 
of the United States not exceeding $100,000 (excluding interest) that 
are referred to, or arise out of the activities of, his or her Operating 
Administration;
    (16) Compromise, suspend collection action on, or terminate claims 
against the United States not exceeding $100,000 (excluding interest) 
that are referred to, or arise out of the activities of, his or her 
Operating Administration; provided that when the Administrator believes 
that a claim against the United States presents a novel question of law 
or of policy, he or she shall obtain the advice of the Assistant 
Attorney General in charge of the Civil Division; and provided further 
that whenever he or she settles any administrative claim against the 
United States for an amount in excess of $50,000, the Administrator 
shall prepare a memorandum fully explaining the basis for the action 
taken and send a copy of the memorandum to the Director, Federal Torts 
Claims Act Staff, Torts Branch of the Civil Division, U.S. Department of 
Justice.
    (17) Enter into memoranda of understanding with the Occupational 
Safety and Health Administration (OSHA) in regard to setting and 
enforcing occupational safety or health standards for employees in DOT-
regulated industries. The General Counsel shall concur in each 
memorandum of understanding with OSHA prior to its execution by the 
Administrator of the operating administration concerned.
    (18) Exercise the authority vested in the Secretary by Section 329A 
of the Department of Transportation and Related Agencies Appropriations 
Act, 1995, Pub. L. No. 103-331, Sec. 329A, 108 Stat. 2471, 2493 
(September 30, 1994), to enter into grants, cooperative agreements, and 
other transactions with any person, agency, or instrumentality of the 
United States, any unit of state or local government, any educational 
institution, and any other entity in execution of the Technology 
Reinvestment Project authorized under the Defense Conversion, 
Reinvestment, and Transition Assistance Act of 1992, Pub. L. No. 102-
484, 106 Stat. 2658 (October 23, 1992), and related legislation.
    (b) Except as otherwise specifically provided, each official to whom 
authority is granted by Secs. 1.45 through 1.53, 1.66, and 1.68 may 
redelegate and authorize successive redelegations of that authority 
within the organization under that official's jurisdiction.
    (c) Except as provided in Secs. 1.48 and 1.59 and 49 CFR 25.302, the 
functions, powers, and duties of the Secretary of Transportation, with 
respect to the Uniform Relocation Assistance and Real Property 
Acquisition Act of 1970, Public Law 91-646, 84 Stat. 1984, are delegated 
to:
    (1) The head of each of the following Operating Administrations with 
respect to programs administered by their respective organizations:
    (i) U.S. Coast Guard;
    (ii) Federal Aviation Administration;
    (iii) Federal Highway Administration;
    (iv) Federal Railroad Administration;
    (v) Urban Mass Transportation Administration;
    (vi) National Highway Traffic Safety Administration;
    (vii) St. Lawrence Seaway Development Corporation; and
    (viii) Maritime Administration.
    (2) [Reserved]
    (d) Each office to whom authority is delegated by either 
Sec. 1.45(c) or Sec. 1.59(p)

[[Page 19]]

may redelegate and authorize successive redelegations of that authority 
within the organization under the Administrators' or Assistant Secretary 
for Administration's jurisdiction.
    (e) Each office to whom authority is delegated by either 
Sec. 1.45(c) or Sec. 1.59(p) may prescribe additional procedures, 
requirements and regulations that are appropriate to the particular 
programs administered by the preparing official's organization, 
provided:
    (1) Any such additional guidance is not inconsistent with the Act, 
49 CFR part 25 or subpart C of this manual;
    (2) Any such additional guidance is approved prior to issuance by 
the Federal government's designated lead agency, the Federal Highway 
Administration (see Sec. 1.48(cc)), in coordination with the Assistant 
Secretary for Transportation Policy.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]

    Editorial Note: For Federal Register citations affecting Sec. 1.45, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 1.46  Delegations to Commandant of the Coast Guard.

    The Commandant of the Coast Guard is delegated authority to:
    (a) [Reserved]
    (b) Carry out all the activities of the Coast Guard, including, but 
not limited to, law enforcement, safety of life and property at sea 
(excluding 46 U.S.C. 170 (7), (10) and (11)), aids to navigation, search 
and rescue, icebreaking, oceanographic research and military readiness 
functions (49 U.S.C. 1655(b)(1)).
    (c) Carry out the following laws relating generally to water vessel 
anchorages, drawbridge operating, regulations, obstructive bridges, 
pollution of the sea by oil and the locations and clearances of bridges 
and causeways over the navigable waters of the United States:
    (1) Section 7 of the Act of March 4, 1915, as amended (38 Stat. 
1053; 33 U.S.C. 471);
    (2) Section 5 of the Act of August 18, 1894, as amended (28 Stat. 
362; 33 U.S.C. 499);
    (3) The Act of June 21, 1940, as amended (54 Stat. 497; 33 U.S.C. 
511 et seq.);
    (4) The Oil Pollution Act, 1961, as amended (75 Stat. 402; 33 U.S.C. 
1001 et seq.);
    (5) Sections 9 and 18 of the Act of March 3, 1899, as amended (30 
Stat. 1151; 33 U.S.C. 401, 502);
    (6) The Act of March 23, 1906, as amended (34 Stat. 84, 33 U.S.C. 
491 et seq.) except section 3 (33 U.S.C. 493) and that portion of 
section 4 (33 U.S.C. 494) that relates to tolls.
    (7) The General Bridge Act of 1946, as amended (60 Stat. 847, 33 
U.S.C. 525 et seq.) except sections 502(c) and 503.
    (d) Carry out the functions vested in the Secretary by the Vessel 
Documentation Act (94 Stat. 3453, 46 U.S.C. 65a et seq.) and the Tonnage 
Measurement Simplification Act (94 Stat. 3461, 46 U.S.C. 71 et seq.), 
and the functions assigned to the Secretary by Executive Order 12419 
relating to admeasurement of ships; and carry out Reorganization Plan 
No. 1 of 1967, relating to ship mortgages.
    (e) Request the Secretary of the Navy to build at naval shipyards 
Coast Guard vessels not normally or economically obtainable from private 
contractors (14 U.S.C. 145(a)(1)).
    (f) Administer Executive Order 11459 (34 FR 5057), relating to 
approval of containers for transport under Customs seal.
    (g) Exchange information, through the Secretary of State, with 
foreign governments on matters dealing with the safety of life and 
property at sea, other than radio communications, but not including the 
submission of suggestions to the Secretary of State on international 
collaboration and conferences (14 U.S.C. 142).
    (h) Exchange personnel, vessels, facilities, and equipment with the 
Secretary of the Navy to facilitate operational readiness for wartime 
service with the Navy, and agree to undertake such assignments and 
functions for the mutual benefit of the Navy and Coast Guard as are 
necessary and advisable, except with respect to those exchanges and 
agreements which, in the Commandant's judgment, may have substantial 
political impact or adversely affect mission performance (14 U.S.C. 
145(c)).

[[Page 20]]

    (i) Approve retention of a rear admiral on active duty for a period 
not exceeding one year (14 U.S.C. 290(b)).
    (j) Through the Chief Counsel, U.S. Coast Guard, settle and pay 
claims against the United States as provided by 10 U.S.C. 2733.
    (k) Award life-saving medals and military decorations (except the 
Medal of Honor, the Distinguished Service Medal, and the Legion of 
Merit) and carry out the laws and Executive orders relating to those 
awards (14 U.S.C. 492a, 493, 494, 496, 497, 498, 500, 501, 502; 
Executive Order 4601, Mar. 1, 1926, as amended by Executive Order 7786 
(3 FR 39); Executive Order 9158 (7 FR 3541), as amended by Executive 
Order 9242A (7 FR 7874); Executive Order 10637 (20 FR 7025); Executive 
Order 11016 (27 FR 4139); Executive Order 11046 (27 FR 8575); Executive 
Order 11448 (34 FR 915)).
    (l) Carry out the functions vested in the Secretary by sections 
104(i), 104(j), 311(b), 311(j) (2) and (3), 311(m)(2), 312, and 
402(b)(6) of the Federal Water Pollution Control Act (33 U.S.C. 1321), 
as amended by the Oil Pollution Act of 1990 (August 18, 1990; Pub L. 
101-380; 104 Stat. 484), and sections 4202(b) (2) and (3) of the Oil 
Pollution Act of 1990.
    (m) Carry out the functions assigned to the Secretary by Executive 
Order 12777 (3 CFR, 1991 Comp.; 56 FR 54757) in sections 1(b), 2(a), 
2(b)(2), 2(c), 2(d)(2), 2(e)(2), 2(f), 2(g)(2), 3, 5(a)(2), 5(b)(1) and 
(3), 6, 7(a) (1) and (3), 7(b), 7(c), 7(d), 8(d), 8(f), 8(g), 8(h), 9, 
and 10(c), excepting that portion of section 2(b)(2) relating to the 
establishment of procedures, methods, and equipment and other 
requirements for equipment to prevent and to contain discharges of oil 
and hazardous substances from pipelines, motor carriers, and railroads; 
and further excepting the exercise of the authority in section 2(d)(2) 
over motor carriers and railroads, other than for operations incident to 
the transfer of oil or hazardous substances to or from vessels, and the 
exercise of the authority in section 2(d)(2) over pipelines.
    (n) Carry out the functions vested in the Secretary by the following 
statutes:
    (1) Federal Boat Safety Act of 1971 (85 Stat. 213);
    (2) Vessel Bridge-to-Bridge Radio-Telephone Act (85 Stat. 164);
    (3) Public Law 92-339, relating to the licensing of personnel on 
certain towing vessels (86 Stat. 423);
    (4) Port and Tanker Safety Act of 1978 (92 Stat. 1471), except 
sections 4, 5, 6, 7, 8, 12 and 13 of Sec. 2 to the extent that those 
sections pertain to the operation of the St. Lawrence Seaway;
    (5) Sections 104 (a) and (g), 107(c), 108, 201, and 302(a) of the 
Marine Protection, Research, and Sanctuaries Act of 1972 (Pub. L. 92-
532) relating to ocean dumping;
    (6) International Voyage Load Line Act of 1973 (Pub. L. 93-115);
    (7) Intervention on the High Seas Act (Pub. L. 93-248) except 
section 13(a);
    (8) Public Law 93-524 (88 Stat. 1694) which relates to waste 
materials on vessels (46 U.S.C. 77(e));
    (9) Public Law 94-85 (89 Stat. 426), which relates to carriage of 
additional passengers on documented vessels in emergency situations;
    (10)(i) Section 304(a)(1) of the Independent Safety Board Act of 
1974 (49 U.S.C. 1903(a)(1)) insofar as it relates to the promulgation of 
joint regulations with the National Transportation Safety Board (NTSB) 
governing investigations of major marine casualties and casualties 
involving public and non-public vessels, and the conduct of accident 
investigations upon request of the Board;
    (ii) Section 307 of the Independent Safety Board Act of 1974 (49 
U.S.C. 1906) insofar as it relates to responses to NTSB recommendations 
regarding marine casualties;
    (11) International Navigational Rules Act of 1977 (Pub. L. 95-75, 91 
Stat. 308);
    (12) International Safe Container Act (Pub. L. 95-208, 91 Stat. 
1475), except section 4(e);
    (13) 14 U.S.C. 195, relating to instruction of foreign nationals at 
the Coast Guard academy; and
    (14) Inland Navigational Rules Act of 1980 (Pub. L. 96-591).
    (o) Carry out the functions vested in the Secretary by 14 U.S.C. 475 
and Executive Order 11645, 3 CFR 371 (1973), 37 FR 2923, February 10, 
1972, relating to the rental of housing facilities at or near Coast 
Guard installations.

[[Page 21]]

    (p) Carry out the functions vested in the Secretary by Public Law 
92-425 and Executive Order 11687 (37 FR 21479), relating to the Retired 
Serviceman's Survivor Benefit Plan.
    (q) Carry out the functions vested in the Secretary by section 5 of 
the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to 
navigable waterways other than the St. Lawrence River.
    (r) Carry out the functions vested in the Secretary by 14 U.S.C. 
657, relating to schooling and transportation to schools for dependents 
of Coast Guard personnel.
    (s) Carry out the following powers and duties vested in the 
Secretary by the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-
1524):
    (1) The authority to process applications for the issuance, transfer 
or amendment of a license for the construction and operation of a 
deepwater port (33 U.S.C. 1503(b)) in coordination with the 
Administrator of the Maritime Administration.
    (2) Carry out other functions and responsibilities vested in the 
Secretary by the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-
1524), except as reserved by Sec. 1.44(o) and delegated by 
Secs. 1.53(a)(3) and 1.66(aa).
    (t) Carry out the functions vested in the Secretary by 49 App. 
U.S.C. 1801-1819, and 46 App. U.S.C. 3306(a)(5) to the extent they 
relate to regulations and exemptions governing the bulk transportation 
of hazardous materials that are loaded or carried on board a vessel 
without benefit of containers or labels, and received and handled by the 
vessel carrier without mark or count, and regulations and exemptions 
governing ships' stores and supplies.
    (u) Carry out the functions vested in the Secretary by 49 U.S.C. 
1808(a), (b), and (c) and 1809 and 1810, relating to investigations, 
records, inspections, penalties, and specific relief, so far as they 
apply to the transportation or shipment of hazardous materials by water.
    (v) Carry out the functions vested in the Secretary by the Magnuson 
Fishery Conservation and Management Act (Pub. L. 94-265, as amended; 16 
U.S.C. 1801 et seq.) except that the authority to approve seizure of a 
foreign vessel may not be redelegated and shall be exercised in each 
instance only after consultation with the Department of State.
    (w) Issue wage schedules for trades, crafts, and laboring employees 
in nonappropriated fund activities.
    (x) Carry out the functions vested in the Secretary by 10 U.S.C. 
2683 insofar as it relates to the relinquishment to a state of 
legislative jurisdiction of the United States over lands and interests 
under the control of the Coast Guard in that state.
    (y) Carry out the functions and responsibilities vested in the 
Secretary by the Natural Gas Pipeline Safety Act of 1968, as amended (49 
U.S.C. 1671 et seq.) relating to rulemaking so far as it applies to 
liquefied natural gas facilities adjacent to the navigable waters of the 
United States: Provided, That such rulemaking is in accordance with the 
Memorandum of Understanding between the Coast Guard and Materials 
Transportation Bureau executed on February 7, 1978, for regulation of 
such facilities.
    (z) Carry out the functions vested in the Secretary by the Outer 
Continental Shelf Lands Act (43 U.S.C. 1331 et seq.), as amended, title 
VI of the Outer Continental Shelf Lands Act Amendments of 1978 
(September 18, 1978; Pub. L. 95-372; 92 Stat. 629), except as delegated 
by Sec. 1.53(a)(6).
    (aa) Carry out the functions vested in the Secretary by the Federal 
Land Policy and Management Act of 1976 (43 U.S.C. 1714(i)) for lands 
under the administration of the U.S. Coast Guard.
    (bb) Carry out the functions vested in the Secretary by the Act of 
September 10, 1976 (90 Stat. 1236, 46 U.S.C. 420) relating to the 
issuance of permits exempting specific cargo-carrying vessels operating 
within the State of Alaska from all or part of 46 U.S.C. 88, 391, 391a, 
and 404 and the regulations issued thereunder.
    (cc) Carry out the requirements of section 146 of the Surface 
Transportation Assistance Act of 1978 (Pub. L. 95-599, 92 Stat. 2689) 
relating to foreign-built hovercraft in Alaska.
    (dd) Exercise all functions of the General Services Administrator 
pertaining to the acquisition of special purpose space in urban centers, 
as defined in 41 CFR 101-18.102, to house U.S.

[[Page 22]]

Coast Guard Recruiting Offices pursuant to the Federal Property and 
Administrative Services Act of 1949 (63 Stat. 377), as amended, and to 
acquire such space by firm term leases up to five (5) years in 
accordance with the authority contained in section 210(h) (1) of the 
Federal Property and Administrative Services Act of 1949, as amended. 
Provided, that such authority is exercised in accordance with the 
Memorandum of Understanding between the Department of Transportation and 
the General Services Administration executed on January 27, 1981, for 
implementation of this delegation.
    (ee) Carry out all functions vested in the Secretary in any capacity 
by the Ocean Thermal Energy Conversion Act of 1980 (Pub. L. 96-320, 
August 3, 1980), except title II.
    (ff) Carry out the functions vested in the Secretary by:
    (1) Section 108(a)(3) of the Comprehensive Environmental Response, 
Compensation, and Liability Act, as amended (42 U.S.C. 9608(a)(3)), and 
by sections 7(b)(1), 7(b)(2), and 7(c) (2) of Executive Order 12580 
relating to vessel financial responsibility; and
    (2) Sections 2(e)(1), 2(e)(2), 2(i), 2(j)(1), 2(j)(2), 2(k), 3(a), 
4(b)(1), 4(b)(2), 6(c), 9(d), 9(i), and 11(b)(2) of Executive Order 
12580 relating to facilities and vessels under the jurisdiction, 
custody, or control of the Coast Guard.
    (gg) Carry out the functions, relating to releases or threatened 
releases involving the coastal zone, Great Lakes waters, and ports and 
harbors, vested in the Secretary by sections 2(f), 2(i), 2(j)(2), 2(k), 
4(c)(1), 4(c)(2), 5(b), 6(c), 9(d), 9(i), and 11(b)(2) of Executive 
Order 12580 insofar as they relate to:
    (1) Responses to releases or threats of releases from vessels;
    (2) Emergency action concerning releases or threats of releases at 
facilities other than active or inactive ``hazardous waste management 
facilities'' (as defined in 40 CFR 270.2); and
    (3) Emergency action concerning releases or threats of releases at 
active or inactive ``hazardous waste management facilities'' only when 
the Coast Guard On-Scene Coordinator determines that such action must be 
taken pending the arrival on scene of an Environmental Protection Agency 
(EPA) On-Scene Coordinator (OSC). Unless otherwise agreed upon by the 
EPA and Coast Guard, this authority will not be exercised unless the EPA 
OSC is scheduled to arrive on scene within 48 hours of notification of 
the release or threat of release.

As used in this paragraph ``emergency action'' includes any removal 
action which, in the view of the Coast Guard On-Scene Coordinator, must 
be taken immediately to prevent or mitigate immediate and significant 
danger to the public health, welfare, or the environment. Situations in 
which such actions may be taken include, but are not limited to, fire, 
explosions, and other sudden releases; human, animal, or food chain 
exposure to acutely toxic substance; and the contamination of a drinking 
water supply. All functions listed in this paragraph include the 
authority to contract for, obligate monies for, and otherwise arrange 
for and coordinate the responses included within such functions.
    (hh) Carry out the functions vested in the Secretary by the Act to 
Prevent Pollution from Ships (October 21, 1980; Pub. L. 96-478; 94 Stat. 
2297) except section 10(b) and (c) and except as limited by 
Sec. 1.47(n), Sec. 1.52(c), and Sec. 1.66(u) of this title.
    (ii) Carry out the functions vested in the Secretary by the Deep 
Seabed Hard Mineral Resources Act (June 21, 1980; Pub. L. 96-283; 94 
Stat. 553), except section 118.
    (jj) Carry out the functions vested in the Secretary to convene and 
approve a Coast Guard Reserve Policy Board as provided in 14 U.S.C. 703.
    (kk) Carry out the functions vested in the Secretary by the 
Fisheries Amendments of 1982 (Pub. L. 97-389; 96 Stat. 1949) relating to 
implementation of the Convention for the Conservation of Salmon in the 
North Atlantic Ocean and to documentation and certification of 
inspection of certain vessels.
    (ll) Carry out the functions vested in the Secretary by sections 
1004(d)(2)(C), 1015(b), 1016, 4107(b), 4109, 4110, 4111, 4114(a), 
4115(b), 4115(e), 4116(c), 4118, 4203, 5002(c)(4), 5002(i), 5002(k), 
5003, 5004, 5005(a)(5), 7001(a), 7001(b)(2) and 7001(c) (6) and (11) of 
the Oil Pollution Act of

[[Page 23]]

1990 (August 18, 1990; Pub. L. 101-380; 104 Stat. 484). (See 49 CFR 1.53 
and 1.66).
    (mm)--(oo) [Reserved]
    (pp) Except as specifically reserved in 49 CFR 1.44, carry out the 
responsibilities of, and exercise the authority of the Secretary 
contained in the Uniform Code of Military Justice, chapter 47 of title 
10 United States Code, and the Manual for Courts-Martial, United States.
    (qq) Carry out the functions and exercise the authority vested in 
the Secretary by 14 U.S.C. 659 relating to providing assistance to film 
producers and obtaining reimbursement for assistance provided.
    (rr) Exercise the authority of the Secretary contained in 10 U.S.C. 
1588 to accept voluntary services for a museum or a family support 
program operated by the Coast Guard; to determine which expenses are 
eligible for reimbursement; and to provide reimbursement from 
nonappropriated funds of incidental expenses incurred by persons 
providing voluntary services as an ombudsman or for a family service 
center program.
    (ss) Carry out the functions and exercise the authority vested in 
the Secretary by chapter 125, title 46 U.S.C., to establish and maintain 
a vessel identification system and to charge fees to persons providing 
information to or requesting information from the system.
    (tt) Carry out the functions and exercise the authority vested in 
the Secretary by chapter 19, title 14 U.S.C., to establish and carry out 
a program of environmental compliance and restoration at current and 
former Coast Guard facilities and to expend funds from the Environmental 
Compliance and Restoration Account.
    (uu) Carry out the functions and exercise the authority vested in 
the Secretary by 46 U.S.C. 2110 to establish, collect, and enforce the 
fees and charges required by that section.
    (vv) Carry out the functions and exercise the authority vested in 
the Secretary by 46 U.S.C. 8103(b)(3) to waive the citizenship 
requirements on vessels documented under U.S. law.
    (ww) Carry out the functions and exercise the authority vested in 
the Secretary by 16 U.S.C. 4711 to establish and enforce regulations to 
prevent the introduction and spread of aquatic nuisance species into the 
Great Lakes through the ballast water of vessels. This authority may be 
redelegated.
    (xx) Carry out the functions and exercise the authority vested in 
the Secretary by 33 U.S.C. 1226 to prevent or respond to acts of 
terrorism and 46 U.S.C. app. 1803, subsections (a) and (b), to assess 
the state of security standards at foreign ports. This authority may be 
redelegated.
    (yy) Carry out the functions and exercise the authority vested in 
the Secretary by 42 U.S.C. 7511b(f), concerning tank vessel emissions, 
to promulgate safety regulations, to consult with the Administrator of 
the Environmental Protection Agency concerning emission standards, and 
to enforce compliance of emission standards as determined by such 
consultation. This authority may be redelegated.
    (zz) Carry out the functions and exercise the authority vested in 
the Secretary by 46 U.S. Code Chapter 47 (abandonment of barges) and 
Sec. 12301(b) (numbering of undocumented barges), as enacted by the 
Oceans Act of 1992, Title V, section 5301 et seq., Pub. L. No. 102-587, 
106 Stat. 5081. This authority may be redelegated.
    (aaa) Establish the promotion zone for rear admiral (lower half), 
provided all captains eligible for consideration under the provisions of 
section 257(a)(5), Title 14, U.S. Code, are placed in the zone.
    (bbb) Remove an officer from active duty under section 326, Title 
14, U.S. Code.
    (ccc) Carry out the functions and exercise the authority vested in 
the Secretary by 46 U.S. Code Chapter 45 (uninspected commercial fishing 
industry vessels), as enacted by the Commercial Fishing Industry Vessel 
Safety Act of 1988, as amended, Title 46, 4501 et seq., Pub. L. No. 100-
424, 102 Stat. 1585. This authority may be redelegated.
    (ddd) Carry out the functions and exercise the authority vested in 
the Secretary by 46 U.S. Code Chapter 33 pertaining to the delegation of 
authority to classification societies to review and approve commercial 
vessel plans and conduct commercial vessel inspections and examinations, 
as enacted by the Coast Guard Authorization Act of 1996,

[[Page 24]]

title 46, section 3316 (classification societies), Pub. L. 104-324, 110 
Stat. 3901.
    (eee) Carry out the functions vested in the Secretary by 46 U.S.C. 
14104 to prescribe alternate tonnages for vessels.
    (fff) Carry out the functions and responsibilities and exercise the 
authorities vested in the Secretary by 46 U.S.C. 3203-3205 (safety 
management system, implementation of safety management system, and 
certification), that pertain to the approval, certification, and 
enforcement of safety management systems for vessels engaged in foreign 
trade.
    (ggg) Carry out the functions and exercise the authorities vested in 
the Secretary by 46 U.S.C. 3103 to rely on reports, documents, and 
records of other persons determined by the Secretary to be reliable, and 
other methods determined by the Secretary to be reliable, as evidence of 
compliance with title 46, subtitle II (46 U.S.C. 3103).
    (hhh) Carry out the functions and exercise the authority vested in 
the Secretary by 16 U.S.C. 2405 to issue such regulations as are 
necessary and appropriate to implement the Antarctic Science, Tourism, 
and Conservation Act of 1996, Pub. L. No. 104-227, 110 Stat. 3034.
    (iii) Carry out the functions and responsibilities and exercise the 
authorities vested in the Secretary by the Coast Guard Authorization Act 
of 1996, Pub. L. 104-324.
    (jjj) Carry out the functions and responsibilities and exercise the 
authorities vested in the Secretary by the National Defense 
Authorization Bill of Fiscal Year 1995, Pub. L. 103-337, pertaining to 
benefits for Coast Guard members that are being separated or have 
recently been separated (10 U.S.C. Chapter 58).
    (kkk) Carry out the functions and responsibilities and exercise the 
authorities vested in the Secretary by 14 U.S.C. 670 pertaining to 
procurement authority for Coast Guard family housing and by 14 U.S.C. 
672 pertaining to long-term lease authority for navigation and 
communications systems sites.
    (lll) Carry out the functions and responsibilities and exercise the 
authorities vested in the Secretary by 33 U.S.C. 1908(b), that pertain 
to payments of civil penalties assessed for violations of the MARPOL 
Protocol, Annex IV to the Antarctic Protocol, or regulations issued 
thereunder, to persons who provide information leading to the assessment 
of such penalties.
    (mmm) Carry out the Great Lakes Pilotage Act of 1960, as amended, 
(46 U.S.C. 9301 et seq.).
    (nnn) Under the 1977 Memorandum of Arrangements with Canada and the 
Great Lakes Pilotage Act of 1960, as amended in 1983 (46 U.S.C. 9305), 
enter into, revise, or amend arrangements with Canada.
    (ooo) Carry out the functions and responsibilities and exercise the 
authorities vested in the Secretary by the National Defense 
Authorization Act for Fiscal Year 1998, Pub. L. 105-85, pertaining to 
authority for personnel to participate in management of certain non-
Federal entities (10 U.S.C. Chapters 53 and 81).

(Sec. 9(e), Department of Transportation Act, 49 U.S.C. 1657(e); 49 CFR 
1.57(l); 49 U.S.C. 322)

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]

    Editorial Note: For Federal Register citations affecting Sec. 1.46, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 1.47  Delegations to Federal Aviation Administrator.

    The Federal Aviation Administrator is delegated authority to:
    (a) Carry out the powers and duties transferred to the Secretary of 
Transportation by, or subsequently vested in the Secretary by virtue of, 
section 6(c)(1) of the Department of Transportation Act (49 U.S.C. 
1655(c)(1)), including those pertaining to aviation safety (except those 
related to transportation, packaging, marking, or description of 
hazardous materials) and vested in the Secretary by section 308(b) of 
title 49 U.S.C. and sections 306-309, 312-314, 1101, 1105, and 1111 and 
titles VI, VII, IX (excluding section 902(h)), and XII of the Federal 
Aviation Act of 1958, as amended.
    (b) Carry out title XIII of the Federal Aviation Act of 1958, as 
amended (72 Stat. 800; 49 U.S.C. 1531 et seq.), relating to aviation 
insurance.

[[Page 25]]

    (c) Carry out the functions vested in the Secretary by the Act of 
September 7, 1957 (71 Stat. 629; 49 U.S.C. 1324 note), as amended by 
section 6(a)(3)(B) of the Department of Transportation Act, relating to 
the guarantee of aircraft purchase loans, and those functions which 
relate to the issuance of obligations to finance the expenses of such 
guarantees.
    (d) Administer Executive Orders 11419 and 11322 relating to 
prohibited aviation operations and the prohibited carriage of 
commodities and products to and from Southern Rhodesia. Carry out the 
functions vested in the Secretary by Executive Order 12183.
    (e) Provide certain facilities and services to FAA employees and 
their dependents at remote locations (49 U.S.C. 1659).
    (f) Carry out the functions vested in the Secretary by:
    (1) The Airport and Airway Development Act of 1970, as amended (49 
U.S.C. 1701 et seq.), except sections 3 and 4 (49 U.S.C. 1702, 1703).
    (2) Sections 208 and 209 of the Airport and Airway Revenue Act of 
1970, as amended (49 U.S.C. 1742, 1742 note); and
    (3) Sections 21, 22, 23(b), 24, and 25 of the Airport and Airway 
Development Act Amendments of 1976 (49 U.S.C. 1346(a), 1348 note, 1713 
note, 1356a, 1704).
    (g) Carry out the functions vested in the Secretary by part B of 
title II of the Clean Air Act, as amended (84 Stat. 1703), and by 40 CFR 
part 87 as it relates to exemptions from aircraft air pollution 
standards.
    (h) Carry out the functions of the Secretary under section 208 of 
the Appalachian Regional Development Act of 1965 (85 Stat. 168; 40 
U.S.C. App. 208).
    (i) Carry out the functions vested in the Secretary by section 
902(h)(2) of the Federal Aviation Act of 1958, as amended, as it relates 
to enforcement of hazardous materials regulations as they apply to the 
transportation or shipment of such materials by air.
    (j) Carry out the functions vested in the Secretary by 49 U.S.C. 
1807 as it relates to the establishment of procedures for monitoring and 
enforcing provisions of regulations with respect to the transportation 
of radioactive materials on passenger-carrying aircraft.
    (k) Carry out the functions vested in the Secretary by 49 App. 
U.S.C. 1808 (a), (b), and (c), 1809 and 1810 relating to investigations, 
records, inspections, penalties and specific relief so far as they apply 
to the transportation or shipment of hazardous materials by air, 
including the manufacture, fabrication, marking, maintenance, 
reconditioning, repair, or test of containers which are represented, 
marked, certified, or sold for use in the bulk transportation of 
hazardous materials by air.
    (l) Serve, or designate a representative to serve, as Vice Chairman 
and alternate Department of Transportation member of the Interagency 
Group on International Aviation (IGIA) pursuant to interagency agreement 
of December 9, 1960, and Executive Order 11382, and provide for the 
administrative operation of the IGIA Secretariat.
    (m) Carry out the functions vested in the Secretary by sections 4(a) 
and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, Aug. 
20, 1981) (delegating sections 107(c)(1)(c) and 108(b), respectively, of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1981, Pub. L. 96-510), insofar as they relate to aircraft.
    (n) Carry out the functions vested in the Secretary by section 3(d) 
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it 
relates to ships owned or operated by the Federal Aviation 
Administration when engaged in noncommercial service.
    (o) [Reserved]
    (p) Carry out the functions vested in the Secretary by:
    (1) Section 553(b) of Public Law 99-83 (99 Stat. 226), which relates 
to the authority of Federal Air Marshals to carry firearms and make 
arrests, in coordination with the General Counsel; and
    (2) The following subsections of section 1115 of the Federal 
Aviation Act of 1958, as amended, which relates to the security of 
foreign airports: Subsection 1115(a), in coordination with the General 
Counsel and the Assistant Secretary for Aviation and International 
Affairs; subsection 1115(b), in coordination with the Assistant 
Secretary for Aviation and International Affairs; and subsection 
1115(e)(2)(A)(ii), in coordination with the General Counsel and the

[[Page 26]]

Assistant Secretary for Aviation and International Affairs.
    (q) Carry out all of the functions vested in the Secretary under 
section 404(d) of the Federal Aviation Act of 1958 (49 U.S.C. 1374(d)), 
as amended by section 328(a) of the Department of Transportation and 
Related Agencies Appropriations Act of 1988 (Pub. L. 100-202).
    (r) Carry out the functions vested in the Secretary by the Airport 
Safety and Capacity Expansion Act of 1990, title IX, subtitle B of the 
Omnibus Budget Reconciliation Act of 1990, Public Law 101-508 (except 
those functions vested in the Secretary by sections 9113, 9125, 9127 and 
9130).
    (s) Carry out functions vested in the Secretary by Airport Noise and 
Capacity Act of 1990, title IX, subtitle D of the Omnibus Budget 
Reconciliation Act of 1990, Public Law 101-508.
    (t) Carry out the functions vested in the Secretary by sections 321 
and 410 of the Federal Aviation Act, as amended by the Aviation Security 
Improvement Act of 1990, Public Law 101-604, November 16, 1990.
    (u) Carry out the functions assigned to the Secretary by Executive 
Order 12465 (February 24, 1984) (3 CFR, 1984 Comp., p. 163) relating to 
commercial expendable launch vehicle activities.
    (v) Carry out the functions vested in the Secretary by 49 U.S.C. 
Subtitle IX.
    (w) Carry out the functions vested in the Secretary by the National 
Aeronautics and Space Administration Authorization Act, Fiscal Year 1993 
(Pub. L. 102-588, 106 Stat 5119, November 4, 1992).


(Secs. 3(e), 6(c), and 9(e), Department of Transportation Act (49 U.S.C. 
1652(e), 1655(c), and 1657(e)); 49 U.S.C. 322; 49 CFR 1.57(l))


[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]

    Editorial Note: For Federal Register citations affecting Sec. 1.47, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 1.48  Delegations to Federal Highway Administrator.

    The Federal Highway Administrator is delegated authority to:
    (a) Investigate and report on the safety compliance records of 
applicants seeking operating authority, or approval of transactions 
involving transfer of operating authority, from the Interstate Commerce 
Commission, and to intervene and present evidence concerning applicants' 
fitness in Commission proceedings under 49 U.S.C. 307, so far as it 
relates to motor carriers.
    (b) Administer the following sections of title 23, U.S.C.:
    (1)(i) 101(a); and
    (ii) 101(b), (c), (d), and (e), except as they involve mass 
transportation projects authorized by sections 103(e)(4), 142(a)(2), or 
142(c);
    (2) 103, except as it involves the substitution of non-highway 
public mass transit projects authorized by section (e)(4);
    (3) 104, including the apportionment of funds for Federal-aid 
highways once Congress approves estimates submitted by the Secretary;
    (4) 105, except as subsections (a) and (g) involve mass 
transportation projects authorized by sections 103(e)(4), 142(a)(2), or 
142(c);
    (5) 106, except subsections (a), (c), and (d) as they involve mass 
transportation projects authorized by sections 103(e)(4), 142(a)(2), or 
142(c);
    (6) 107;
    (7) 108, except as it involves mass transportation projects 
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
    (8) 109, except subsections (a), (g), and (h) as they involve mass 
transportation projects authorized by sections 103(e) (4), 142(a)(2), or 
142(c);
    (9) 110, except as it involves mass transportation projects 
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
    (10) 111;
    (11) 112, 113, 114, except as they involve transportation projects 
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
    (12) 115;
    (13) 116, except subsections (a) and (c) as they involve mass 
transportation projects authorized by sections 103(e)(4), 142(a)(2), or 
142(c);
    (14) 117, except as it involves mass transportation projects 
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
    (15) 118, 119, 120;
    (16) 121 and 122, except as they involve mass transportation 
projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);

[[Page 27]]

    (17) 123;
    (18) 124, except as it involves mass transportation projects 
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
    (19) 125, 126, and 127;
    (20) 128, except as it involves mass transportation projects 
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
    (21) 129, 130, 131, 132, 134, 135, 136, 137, 138, and 139;
    (22) 140, except paragraph (a) of this section, as it involved mass 
transportation projects authorized by sections 103(e)(4), 142(a)(2), or 
142(c);
    (23) 141, with the concurrence of the National Highway Traffic 
Safety Administrator as it relates to certification of the enforcement 
of speed limits;
    (24) 142, except as it involves mass transportation projects 
authorized by subsections (a)(2) and (c) and by 103(e)(4);
    (25) 143 and 144;
    (26) 145, except as it involves mass transportation projects 
authorized by sections 103(e)(4), 142(a)(2), or 142(c);
    (27) 146 through 152 and 155 through 157, inclusive;
    (28) 154 and 158 each with the concurrence of the National Highway 
Traffic Safety Administrator;
    (29) 201 through 205, 210, 212, 214 through 218, (Chapter 2);
    (30) 301, 302, and 303;
    (31) 304, 305, 306, except as they involve mass transportation 
projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);
    (32) 307 through 314 inclusive;
    (33) 315 and 317, except as they involve mass transportation 
projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);
    (34) 318 through 321, inclusive; and
    (35) 323 and 324, except as they involve mass transportation 
projects authorized by sections 103(e)(4), 142(a)(2), or 142(c).
    (c) Administer the following laws relating generally to highways:
    (1) Sections 105, 107(c) through (e), 123(a) and (b), 124(c), 126(d) 
through (g), 138(c), 140, 142 through 145, 147 through 154, 167, and 
171, and title IV, as amended (as it relates to matters within the 
primary responsibility of the Federal Highway Administrator), of the 
Surface Transportation Assistance Act of 1978, Public Law 95-599, 92 
Stat. 2689; and sections 502-504, title V, of the Highway Revenue Act of 
1978.
    (2) Sections 103, 104, 111(b), 128(b), 131, 135, 136, 141, 147, 149, 
154, 158 through 161, 163, 203, 206, 401, and 402 of the Federal-Aid 
Highway Act of 1973, as amended (Pub. L. 93-87, 87 Stat. 250; Pub. L. 
93-643, 88 Stat. 2281).
    (3) The Federal-Aid Highway Act of 1970, as amended (except section 
118) (84 Stat. 1713).
    (4) The Federal-Aid Highway Act of 1968, as amended (82 Stat. 815);
    (5) The Federal-Aid Highway Act of 1966, as amended (80 Stat. 766);
    (6) The Federal-Aid Highway Act of 1962, as amended (76 Stat. 1145, 
23 U.S.C. 307 note);
    (7) The Federal-Aid Highway Act of 1956, as amended (70 Stat. 374);
    (8) The Federal-Aid Highway Act of 1954, as amended (68 Stat. 70);
    (9) The Act of September 26, 1961, as amended (75 Stat. 670);
    (10) The Highway Revenue Act of 1956, as amended (70 Stat. 387, 23 
U.S.C. 120 note);
    (11) The Highway Beautification Act of 1965, as amended (79 Stat. 
1028, 23 U.S.C. 131 et seq., notes);
    (12) The Alaska Omnibus Act, as amended (73 Stat. 141, 48 U.S.C. 21 
note prec.);
    (13) The Joint Resolution of August 28, 1965, as amended (79 Stat. 
578, 23 U.S.C. 101 et seq., notes);
    (14) Section 502(c) of the General Bridge Act of 1946, as amended 
(60 Stat. 847, 33 U.S.C. 525(c));
    (15) The Act of April 27, 1962 (76 Stat. 59);
    (16) Reorganization Plan No. 7 of 1949 (63 Stat. 1070); and
    (17) Sections 102(b) (except subparagraph (2)) and (c); 105 (b)(1) 
and (c); 141; 146; 147; and 152 of the Federal-Aid Highway Act of 1976 
(Pub. L. 94-280; 90 Stat. 425).
    (18) The Federal-Aid Highway Act of 1982 (Pub. L. 97-327), except 
section 6 as it relates to matters within the primary responsibility of 
the Urban Mass Transportation Administrator.
    (19) The Surface Transportation Assistance Act of 1982, Public Law 
97-424, as amended,
    (i) Except sections 165 and 531 as they relate to matters within the 
primary

[[Page 28]]

responsibility of the Urban Mass Transportation Administrator; 105(f), 
413; 414(b)(1) and (2); 421, 426, and title III; and
    (ii) Section 414(b)(1), with the concurrence of the National Highway 
Traffic Safety Administrator.
    (20) Sections 103(e), 105(a) through (g), 106(a), and (b), 110(b), 
114(d), 117(f), 120(c) and (d), 123(g) and (i), 133(f), 134, 136, 137, 
139 through 145, 146(b), 147(c), 149(a) through (f), (h), (i), (k), 151 
through 157, 164, and 208 of the Surface Transportation and Uniform 
Relocation Assistance Act of 1987 (Pub. L. 100-17, 101 Stat. 132).
    (d) Carry out the functions vested in the Secretary of 
Transportation by section 601 of the Pipeline Safety Act of 1992, Public 
Law 102-508, relating to construction of the Page Avenue Extension 
Project in Missouri.
    (e) Carry out 49 U.S.C. 3103 relating generally to investigation of 
the need for regulation of sizes, weights, and combinations of motor 
vehicles and qualifications and maximum hours of service of employees of 
motor carriers and motor private carriers.
    (f) Carry out 49 U.S.C. 3102 relating generally to qualifications 
and maximum hours of service of employees and safety of operation and 
equipment of motor carriers, motor private carriers and motor carriers 
of migrant workers.
    (g) Carry out 49 U.S.C. 503 and 3104 relating generally to service 
of process, designation of agents to receive service of process, and 
identification of interstate motor vehicles so far as they pertain to 
motor private carriers of property and motor carriers of migrant workers 
(except motor contract carriers).
    (h) Carry out the functions and exercise the authority vested in the 
Secretary by 49 U.S.C., Subtitle IV, Part B,:
    (1) Chapter 131;
    (2) Chapter 133;
    (3) Chapter 135;
    (4) Chapter 137, sections 13702(a), 13702(c)(1), 13702(c)(2), 
13702(c)(3), 13704, 13707, and 13708;
    (5) Chapter 139;
    (6) Chapter 141, Subchapter I and sections 14121 and 14122 of 
Subchapter II;
    (7) Chapter 145, sections 14501, 14502, and 14504;
    (8) Chapter 147, sections 14701 through 14708; and
    (9) Chapter 149, sections 14901 through 14913.
    (i) Carry out the functions and exercise the authority vested in the 
Secretary by sections 104, 403(a), and 408 of the ICC Termination Act of 
1995, Pub. L. 104-88, relating to miscellaneous motor carrier 
provisions, railroad-highway grade crossing regulation and fatigue-
related issues pertaining to commercial motor vehicle safety.
    (j) Carry out the functions of the Secretary under the Appalachian 
Regional Development Act of 1965 (79 Stat. 5; 40 U.S.C. App.) except 
section 208.
    (k) Initiate proceedings as a complainant under 49 U.S.C. 10925 to 
revoke, suspend or amend the certificates, permits or licenses of a 
motor carrier.
    (l) Carry out the Act of September 21, 1966, Public Law 89-599, 
relating to certain approvals concerned with a compact between the 
States of Missouri and Kansas.
    (m) Carry out the law relating to the Chamizal border highway (80 
Stat. 1477).
    (n) Carry out the Highway Safety Act of 1966, as amended (80 Stat. 
731) and chapter 4 of title 23 U.S.C. as amended by section 207 of the 
Surface Transportation Assistance Act of 1978 for highway safety 
programs, research and development relating to highway design, 
construction and maintenance, traffic control devices, identification 
and surveillance of accident locations, and highway-related aspects of 
pedestrian and bicycle safety.
    (o) Exercise the authority vested in the Secretary by section 204(b) 
of the Federal Railroad Safety Act of 1970 (84 Stat. 972, 45 U.S.C. 
433(b)) with respect to the laws administered by the Federal Highway 
Administrator pertaining to highway safety and highway construction.
    (p) Carry out the functions vested in the Secretary provided by 42 
U.S.C. 4917 relating to procedures for the inspection, surveillance and 
measurement of commercial motor vehicles for compliance with interstate 
motor carrier noise emission standards and related enforcement 
activities including the promulgation of necessary regulations.

[[Page 29]]

    (q) Carry out the functions vested in the Secretary by section 5 (as 
it relates to bridges, other than railroad bridges, not over navigable 
waters), and section 8(a) (as it relates to all bridges other than 
railroad bridges) of the International Bridge Act of 1972 (Pub. L. 92-
434, 86 Stat. 731).
    (r) Carry out the functions vested in the Secretary by the following 
sections of the Urban Mass Transportation Act of 1964 as amended (78 
Stat. 302, 49 U.S.C. 1601 et seq.):
    (1) Sections 3(a)(3), 3(e)(1), 5(g)(1), and 8 as they relate to 
urban planning (49 U.S.C. 1602 (a)(3) and (e)(1), 1603(a), and 
1604(g)(1); and 1604(l)).
    (2) Section 12(c)(11) relating to approval of boundaries of 
urbanized areas (49 U.S.C. 1608(c)(11));
    (3) Section 18 as it relates to the formula grant program for non-
urbanized areas in the Commonwealth of Puerto Rico.
    (s) Exercise the authority vested in the Secretary by sections 101, 
118, 120(b), 123 and 124 of the Federal-Aid Highway Amendments of 1974 
(Pub. L. 93-643, January 4, 1975, 88 Stat. 2281).
    (t) [Reserved]
    (u)(1) Carry out the functions vested in the Secretary by 49 App. 
U.S.C. 1808 (a), (b), and (c), 1809, and 1810 relating to 
investigations, records, inspections, penalties, and specific relief so 
far as they apply to the transportation or shipment of hazardous 
materials by highway, including the manufacture, fabrication, marking, 
maintenance, reconditioning, repair or test of containers which are 
represented, marked, certified, or sold for use in the bulk 
transportation of hazardous materials by highway.
    (2) Carry out the functions vested in the Secretary by 49 App. 
U.S.C. 1804 (b) and (c); 1805(d), except paragraph (3) (49 App. U.S.C. 
1805(d)(3)); 1811 relating to highway routing, except for pending 
applications for inconsistency rulings and nonpreemption determinations; 
1813(d); and 1819.
    (v) Carry out the functions vested in the Secretary by the 
Commercial Motor Vehicle Safety Act of 1986, title XII of Public Law 99-
570, 100 Stat. 3207-170.
    (w) Carry out the functions vested in the Secretary by section 30 of 
the Motor Carrier Act of 1980 (Pub. L. 96-296, 94 Stat. 820), as amended 
by section 108(b)(5) of Public Law 96-510, 94 Stat. 2767; section 406 of 
Public Law 97-424, 96 Stat. 2158; and section 222 of Public Law 98-554, 
98 Stat. 2846 (49 U.S.C. 10927 note).
    (x) Carry out the functions vested in the Secretary by sections 4(a) 
and (5)(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, 
August 20, 1981) (delegating sections 107(c)(1)(C) and 108(b), 
respectively, of the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980, Public Law 96-510, 94 Stat. 2781), insofar as 
they relate to motor carriers.
    (y) Carry out the functions vested in the Secretary by section 118 
of the National Visitor Center Facilities Act of 1968 (Pub. L. 90-264, 
82 Stat. 43), as added by the Union Station Redevelopment Act of 1981 
(Pub. L. 97-125; 95 Stat. 1672), with respect to the completion of the 
parking facility and associated ramps at Union Station in Washington, DC 
(40 U.S.C. 818).
    (z) Carry out the functions vested in the Secretary by sections 18 
and 25(c) of the Bus Regulatory Reform Act of 1982 (Pub. L. 97-261, 96 
Stat. 1102), as amended by section 224 of Public Law 98-554, 98 Stat. 
2847 (49 U.S.C. 10927 note).
    (aa) Carry out the functions vested in the Secretary by the Tandem 
Truck and Motor Carrier Safety Acts of 1984 (Pub. L. 98-554), except 
section 209.
    (bb) Carry out the functions vested in the Secretary by Public Law 
98-229, 98 Stat. 55, insofar as it relates to apportioning certain funds 
for construction of the Interstate Highway System in Fiscal Year 1985, 
apportioning certain funds for Interstate substitute highway projects, 
and increasing amounts available for emergency highway relief.
    (cc) Prescribe regulations, as necessary, at parts 24 and 25 of this 
title, to implement Public Law 91-646, 84 Stat. 1894, and any amendments 
thereto, as appropriate, in coordination with the Assistant Secretary 
for Transportation Policy, and carry out all other functions vested in 
the Secretary by the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970, Public Law 91-646, 84 Stat. 1894, and 
any amendments thereto.

[[Page 30]]

    (dd)-(ee) [Reserved]
    (ff) Carry out the functions vested in the Secretary of 
Transportation by section 114 of the ``Act Making Continuing 
Appropriations for Fiscal Year 1987 and for Other Purposes,'' Public Law 
99-591, October 30, 1986, relating to construction of Interstate Highway 
H-3 in Hawaii.
    (gg) Carry out all of the functions vested in the Secretary under 
section 324 of the Fiscal Year 1986 Department of Transportation 
Appropriations Act (Pub. L. 99-190, 99 Stat. 1288), notwithstanding the 
reservation of authority under Sec. 1.44(j) of this part.
    (hh) Carry out the functions vested in the Secretary by sections 9, 
10, 11, 12, 13, 15(b), 15(c), 15(d), and 15(e) of the Sanitary Food 
Transportation Act of 1990 (Pub. L. 101-500; 104 Stat. 1213), with 
respect to transportation by highway.
    (ii) Carry out the functions vested in the Secretary by sections 16, 
23, 24, and 27 of the Hazardous Materials Transportation Uniform Safety 
Act of 1990 (Pub. L. 101-615; 104 Stat. 3244 (49 App. U.S.C. 1813 note; 
49 U.S.C. 10927 note; 49 App. U.S.C. 2509).
    (jj) Carry out the functions and exercise the authority delegated to 
the Secretary in section 2(d)(2) of Executive Order 12777 (3 CFR, 1991 
Comp.; 56 FR 54757), with respect to highway transportation, relating to 
the approval of means to ensure the availability of private personnel 
and equipment to remove, to the maximum extent practicable, a worst case 
discharge, the review and approval of response plans, and the 
authorization of motor carriers, subject to the Federal Water Pollution 
Control Act (33 U.S.C. 1321), to operate without approved response 
plans, except as delegated in Sec. 1.46(m).
    (kk) Carry out the functions vested in the Secretary of 
Transportation by section 505 of the Railroad Revitalization and 
Regulatory Reform Act of 1976, as amended, relating to the Alameda 
Corridor Project in consultation with the Federal Railroad 
Administrator.


(49 U.S.C. 322, 49 CFR 1.57(l))


[Amdt. 1-157, 45 FR 83405, Dec. 18, 1980]

    Editorial Note: For Federal Register citations affecting Sec. 1.48, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 1.49  Delegations to Federal Railroad Administrator.

    The Federal Railroad Administrator is delegated authority to:
    (a) Investigate and report on safety compliance records of 
applicants seeking railroad operating authority from the Interstate 
Commerce Commission, and to intervene and present evidence concerning 
applicants' fitness in Commission proceedings under 49 U.S.C. 1653(e), 
relating to railroads.
    (b) Carry out the Act of September 30, 1965, as amended (79 Stat. 
893, 49 U.S.C. 1631 et seq.), relating generally to high speed ground 
transportation, except issuance of reports required by section 13(c) (49 
U.S.C. 1643(c)).
    (c) Carry out the following laws relating generally to safety 
appliances and equipment on railroad engines and cars, and protection of 
employees and travelers:
    (1) The Act of March 2, 1893, as amended (27 Stat. 531, 45 U.S.C. 1 
et seq.);
    (2) The Act of March 2, 1903, as amended (32 Stat. 943, 45 U.S.C. 8 
et seq.);
    (3) The Act of April 14, 1910, as amended (36 Stat. 298, 45 U.S.C. 
11 et seq.);
    (4) The Act of May 30, 1908, as amended (35 Stat. 476, 45 U.S.C. 17 
et seq.);
    (5) The Act of February 17, 1911, as amended (36 Stat. 913, 45 
U.S.C. 22 et seq.);
    (6) The Act of March 4, 1915, as amended (38 Stat. 1192, 45 U.S.C. 
30);
    (7) Reorganization Plan No. 3 of 1965 (79 Stat. 1320, 45 U.S.C. 22 
note);
    (8) Joint Resolution of June 30, 1906, as amended (34 Stat. 838, 45 
U.S.C. 35);
    (9) The Act of May 27, 1908, as amended (35 Stat. 325, 45 U.S.C. 36 
et seq.);
    (10) The Act of March 4, 1909, as amended (35 Stat. 965, 45 U.S.C. 
37); and
    (11) The Act of May 6, 1910, as amended (36 Stat. 350, 45 U.S.C. 38 
et seq.).
    (d) Carry out the Act of March 4, 1907, as amended (34 Stat. 1415, 
45 U.S.C. 61 et seq.), relating generally to hours of service of 
railroad employees.
    (e) Carry out the functions vested in the Secretary by section 5 of 
the International Bridge Act of 1972 (Pub. L. 92-

[[Page 31]]

434) as it relates to railroad bridges not over navigable waterways.
    (f) Carry out section 25 of the Interstate Commerce Act, as amended 
(49 U.S.C. 26), relating generally to railroad safety appliances, 
methods, and systems.
    (g) Exercise the administrative powers under the Interstate Commerce 
Act with respect to powers and duties pertaining to railroad safety 
transferred to the Secretary (49 U.S.C. 1655(f)).
    (h) Operate and administer the Alaska Railroad under the Act of 
March 12, 1914, as amended (38 Stat. 305), and Executive Order 11107 (28 
FR 4225 (1963)).
    (i) Make individual and general changes in freight rates and 
passenger fares for the Alaska Railroad, without power to redelegate 
authority for general changes in freight rates and passenger fares.
    (j) Promote and undertake research and development relating to rail 
matters generally (49 U.S.C. 1653(a), 1657(e)(1), 1657(n)(1), and 
1657(q)(1)).
    (k) Carry out the functions vested in the Secretary by subtitle B of 
the National Visitor Center Facilities Act of 1968, as added by the 
Union Station Redevelopment Act of 1981 (Pub. L. 97-125; 95 Stat. 1667) 
except section 114(e) and such parts of section 118 as provided for the 
completion of the parking facility and associated ramps at Union Station 
in Washington, DC.
    (l) Exercise the authority vested in the Secretary by the Emergency 
Rail Services Act of 1970 (Pub. L. 91-663) except the authority to make 
findings required by section 3(a) of that Act and the authority to sign 
guarantees of certificates issued by trustees.
    (m) Carry out the functions vested in the Secretary by the Federal 
Railroad Safety Act of 1970 (title II of Pub. L. 91-458); 84 Stat. 971, 
45 U.S.C. 421 et. seq.), except section 204(b) (84 Stat. 972, 45 U.S.C. 
433(b)) with respect to highway, traffic, and motor vehicle safety and 
highway construction.
    (n) Carry out the functions vested in the Secretary by the Emergency 
Rail Facilities Restoration Act of 1972 (Pub. L. 92-591).
    (o) Carry out the functions vested in the Secretary by subsection 
(b) (except as it relates to conducting consultations with the 
Administrator of the Environmental Protection Agency) and (c) of section 
17 of the Noise Control Act of 1972 (Pub. L. 92-574).
    (p) Carry out the functions vested in the Secretary by sections 
201(i)(3); 202(b)(7); 203, except authority to issue subpoenas; 210; 
212; 213; 215; 402; 403; and 601 of the Regional Rail Reorganization Act 
of 1973 (Pub. L. 93-236) as amended by the Rail Transportation 
Improvement Act (Pub. L. 94-555).
    (q) Carry out the functions vested in the Secretary by subsections 4 
(h) and (i) of the Department of Transportation Act, as amended (49 
U.S.C. 1653(h), (i)).
    (r) [Reserved]
    (s)(1) Carry out the functions vested in the Secretary by 49 App. 
U.S.C. 1808 (a), (b), and (c), 1809, and 1810 relating to 
investigations, records, inspections, penalties, and specific relief so 
far as they apply to the transportation or shipment of hazardous 
materials by railroad, including the manufacture, fabrication, marking, 
maintenance, reconditioning, repair or test of containers which are 
represented, marked, certified, or sold for use in the bulk 
transportation of hazardous materials by railroad.
    (2) Carry out the functions vested in the Secretary by 49 App. 
U.S.C. 1813 (a) and (b); and 1817.
    (t) Carry out the functions vested in the Secretary by sections 
204(c); except authority to issue subpoenas; 402; 403; 502; 503; 504; 
505; 506, except (c); 507; 508; 511; 512; 513; 515; 517; 606; 610; 703; 
704, except (c)(1); and 705; 707; 901; 905, as applicable, of the 
Railroad Revitalization and Regulatory Reform Act of 1976, as amended, 
section 5 of the Department of Transportation Act (49 U.S.C. 1654), 
except authority to issue subpoenas.
    (u) Carry out functions vested in the Secretary by sections 17(a) 
and (b) (as they relate to consultations with the Administrator of the 
Environmental Protection Agency) of the Noise Control Act of 1972 (Pub. 
L. 92-574, 49 U.S.C. 1431).
    (v) Carry out the functions vested in the Secretary by the Rock 
Island Railroad Transition and Employee Assistance Act (title I of Pub. 
L. 96-254) and by section 18 of the Milwaukee Railroad Restructuring Act 
(49 U.S.C. 916).

[[Page 32]]

    (w) Carry out the functions vested in the Secretary by section 305 
of the Regional Rail Reorganization Act of 1973, as amended (45 U.S.C. 
745).
    (x) Carry out the functions vested in the Secretary by sections 4(a) 
and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, Aug. 
20, 1981) (delegating sections 107(c)(1)(c) and 108(b), respectively, of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1981, Pub. L. 96-510), insofar as they relate to rolling stock.
    (y) Carry out the functions vested in the Secretary by the Northeast 
Rail Service Act of 1981 (Pub. L. 97-35).
    (z) Carry out the functions vested in the Secretary by section 3 of 
the Bridge Act of 1906, as amended (33 U.S.C. 493), relating to disputes 
over the terms and compensation for use of railroad bridges built under 
the Act.
    (aa) Carry out the functions vested in the Secretary by titles II 
through VII of the Rail Safety and Service Improvement Act of 1982 (Pub. 
L. 97-468), which relates to rail safety, rail finances, and the 
transfer of The Alaska Railroad to the State of Alaska.
    (bb) Carry out the functions vested in the Secretary by section 4031 
of the Budget Reconciliation Act of 1986 (Pub. L. 99-509), which relates 
to the abolition of the United States Railway Association, and the 
execution of the functions and duties of the Association transferred to 
the Secretary, effective April 1, 1987.
    (cc) Carry out the functions vested in the Secretary by section 18 
(g) and (h) of the Rail Safety Improvement Act of 1988 (Pub. L. 100-
342).
    (dd) Carry out the function vested in the Secretary by section 1163 
of the Bankruptcy Code (11 U.S.C. 1163), which relates to the nomination 
of trustee for rail carriers in reorganization, with the concurrence of 
the Office of the General Counsel.
    (ee) Carry out the functions vested in the Secretary by sections 9, 
10, 11, 12, and 13 of the Sanitary Food Transportation Act of 1990 (Pub. 
L. 101-500; 104 Stat. 1213), with respect to transportation by railroad.
    (ff) Exercise the authority vested in the Secretary by the Crime 
Control Act of 1990 (Pub. L. 101-647) as it relates to a railroad police 
officer's authority to enforce the laws of any jurisdiction in which the 
police officer's rail carrier employer owns property.
    (gg) Carry out the functions vested in the Secretary by sections 16 
and 21 of the Hazardous Materials Transportation Uniform Safety Act of 
1990 (Pub. L. 101-615; 104 Stat. 3244 (49 App. U.S.C. 1813 note and 1817 
note)).
    (hh) Exercise the authority vested in the Secretary by Section 601 
(d) and (e) of the National and Community Service Act of 1990 (45 U.S.C. 
546 note) as it relates to the discharge of human waste from railroad 
passenger cars.
    (ii) Carry out the functions and exercise the authority delegated to 
the Secretary in section 2(d)(2) of Executive Order 12777 (3 CFR, 1991 
Comp.; 56 FR 54757), with respect to rail transportation, relating to 
the approval of means to ensure the availability of private personnel 
and equipment to remove, to the maximum extent practicable, a worst case 
discharge, the review and approval of response plans, and the 
authorization of railroads, subject to the Federal Water Pollution 
Control Act (33 U.S.C. 1321), to operate without approved response 
plans, except as delegated in Sec. 1.46(m).
    (jj) Exercise the authority vested in the Secretary by the Swift 
Rail Development Act of 1994, being Title I--High-Speed Rail of Public 
Law 103-440 (108 Stat. 4615), as it relates to the provision of 
financial assistance for high-speed rail corridor planning and 
technology improvements, the promulgation of necessary safety 
regulations, and the redemption of outstanding obligations and 
liabilities with respect to the Columbus and Greenville Railway under 
Sections 505 and 511 of the Railroad Revitalization and Regulatory 
Reform Act of 1976 (45 U.S.C. 825 and 831, respectively).

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]

    Editorial Note: For Federal Register citations affecting Sec. 1.49, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 1.50  Delegation to the National Highway Traffic Safety Administrator.

    The National Highway Traffic Safety Administrator is delegated 
authority to:

[[Page 33]]

    (a) Carry out the National Traffic and Motor Vehicle Safety Act of 
1966, as amended (15 U.S.C. 1381 et seq.).
    (b) Carry out the Highway Safety Act of 1966, as amended (23 U.S.C. 
401 et seq.), except for highway safety programs, research and 
development relating to highway design, construction and maintenance, 
traffic control devices, identification and surveillance of accident 
locations, and highway-related aspects of pedestrian and bicycle safety.
    (c) Exercise the authority vested in the Secretary by section 210(2) 
of the Clean Air Act, as amended (42 U.S.C. 7544(2)).
    (d) Exercise the authority vested in the Secretary by section 204(b) 
of the Federal Railroad Safety Act of 1970 (45 U.S.C. 433(b)) with 
respect to laws administered by the National Highway Traffic Safety 
Administrator pertaining to highway, traffic and motor vehicle safety.
    (e) Carry out the Act of July 14, 1960, as amended (23 U.S.C. 313 
note) and the National Driver Register Act of 1982 (23 U.S.C. 401 note).
    (f) Carry out the functions vested in the Secretary by the Motor 
Vehicle Information and Cost Savings Act of 1972, as amended (15 U.S.C. 
1901 et seq.), except section 512.
    (g) Administer the following sections of title 23, United States 
Code, with the concurrence of the Federal Highway Administrator:
    (1) 141, as it relates to certification of the enforcement of speed 
limits;
    (2) 154 (a), (b), (d), (e), (f), (g) and (h); and
    (3) 158.
    (h) Carry out the consultation functions vested in the Secretary by 
Executive Order 11912, as amended.
    (i) Carry out section 209 of the Surface Transportation Assistance 
Act of 1978, as amended (23 U.S.C. 401 note) and section 165 of the 
Surface Transportation Assistance Act of 1982, as amended (23 U.S.C. 101 
note), with respect to matters within the primary responsibility of the 
National Highway Traffic Safety Administrator.
    (j) Administer section 414(b)(1) of the Surface Transportation 
Assistance Act of 1982, as amended (49 U.S.C. 2314) with the concurrence 
of the Federal Highway Administrator, and section 414(b)(2).
    (k) Carry out section 2(c) of the Truth in Mileage Act of 1986 (15 
U.S.C. 1988 note).
    (l) Carry out section 204(b) of the Surface Transportation and 
Uniform Relocation Assistance Act of 1987, Public Law 100-17 (101 Stat. 
132) with the coordination of the Federal Highway Administrator.
    (m) Carry out the functions vested in the Secretary by section 15(f) 
of the Sanitary Food Transportation Act of 1990 (Pub. L. 101-500; 104 
Stat. 1213).

[Amdt. 1-226, 53 FR 23122, June 20, 1988, as amended by Amdt. 1-239, 56 
FR 6810, Feb. 20, 1991]



Sec. 1.51  Delegations to Urban Mass Transportation Administrator.

    The Urban Mass Transportation Administrator is delegated authority 
to exercise the functions vested in the Secretary by:
    (a) The Urban Mass Transportation Act of 1964, as amended (78 Stat. 
302, 49 U.S.C. 1601 et seq.), except section 18 as it relates to the 
formula grant program for non-urbanized areas in the Commonwealth of 
Puerto Rico and section 22, relating to intercity bus service.
    (b) Section 1 of Reorganization Plan No. 2 of 1968 (84 Stat. 1369).
    (c) Section 10 of the Urban Mass Transportation Assistance Act of 
1970, Public Law 91-453, 84 Stat. 962, 968).
    (d) Sections 3 and 9 through 15 of the National Capital 
Transportation Assistance Act of 1969, as amended (D.C. Code, Sec. 1-
2441 et seq).
    (e) The following sections of title 23, United States Code:
    (1) 103 as it involves the withdrawal of Interstate routes and the 
substitution of non-highway public mass transit projects authorized by 
subsection (e)(4);
    (2) 101(a) as it involves approval of boundaries of urban and 
urbanized areas, 104(f)(4), 105(d), 106(b) as it involves the Federal-
aid urban system, and 134; and
    (3) 101 (b), (c), (d), and (e); 105 (a) and (g); 106 (a), (c) and 
(d); 108; 109 (a), (g), and (h); 110; 112; 113; 114; 116 (a) and (c); 
117; 121; 122; 124; 128; 140(a); 142; and 145 as they involve mass 
transportation

[[Page 34]]

projects authorized by sections 103(e)(4), 142(a)(2), or 142(c).
    (f) Sections 140, 146, 147, 164 and 165 of the Federal-Aid Highway 
Act of 1973, as amended (Pub. L. 93-87, title I, 87 Stat. 250; Pub. L. 
93-643, 88 Stat. 2281).
    (g) Section 813 of the Housing and Community Development Act of 1974 
(Pub. L. 93-383).
    (h) Section 107 of the National Mass Transportation Assistance Act 
of 1974 (Pub. L. 93-503, November 26, 1974).
    (i) Title II of the National Mass Transportation Assistance Act of 
1974 (Pub. L. 93-503, November 26, 1974), except sections 204 and 205.
    (j) Sections 804, insofar as it relates to 45 U.S.C. 744(e)(5); and 
805, as applicable, of the Railroad Revitalization and Regulatory Reform 
Act of 1976 (Pub. L. 94-210).
    (k) Section 148 of the Federal-Aid Highway Act of 1976 (Pub. L. 94-
280, 90 Stat. 425).
    (l) The following sections of the Surface Transportation Assistance 
Act of 1978 (Pub. L. 95-599, 92 Stat. 2689): 155, 316, 320, and title 
IV, as amended (as it relates to matters within the primary 
responsibility of the Urban Mass Transportation Administrator).
    (m) Section 601(d) of the Rail Passenger Service Act, as amended.
    (n) Section 2 of Public Law 98-229, 98 Stat. 55, insofar as it 
relates to apportioning certain funds for Interstate substitute transit 
projects.

[Amdt. 1-157, 45 FR 83408, Dec. 18, 1980, as amended by Amdt. 1-168, 47 
FR 16632, Apr. 19, 1982; Amdt. 1-180, 48 FR 15476, Apr. 11, 1983; Amdt. 
1-187, 48 FR 52678, Nov. 21, 1983; Amdt. 1-191, 49 FR 6908, Feb. 24, 
1984; Amdt. 1-203, 50 FR 30275, July 25, 1985]



Sec. 1.52  Delegations to Saint Lawrence Seaway Development Corporation Administrator.

    The Administrator of the Saint Lawrence Seaway Development 
Corporation is delegated authority to:
    (a) Carry out the functions vested in the Secretary by sections 4, 
5, 6, 7, 8, 12 and 13 of section 2 of the Port and Tanker Safety Act of 
1978 (92 Stat. 1471) as they relate to the operation of the St. Lawrence 
Seaway.
    (b) Carry out the functions vested in the Secretary by section 5 of 
the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to 
the St. Lawrence River.
    (c) Carry out the functions vested in the Secretary by section 3(d) 
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it 
relates to ships owned or operated by the Corporation when engaged in 
noncommercial service.
    (d)-(e) [Reserved]

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by 45 FR 48630, 
July 21, 1980; Amdt. 1-167, 47 FR 11677, Mar. 18, 1982; 60 FR 38971, 
July 31, 1995; Amdt. 1-272, 60 FR 63450, Dec. 11, 1995; Amdt. 1-292, 63 
FR 10782, Mar. 5, 1998]



Sec. 1.53  Delegations to the Administrator of the Research and Special Programs Administration.

    Administration. The Administrator of the Research and Special 
Programs Administration is delegated authority to exercise powers and 
perform duties, including duties under the specified statutes as 
follows:
    (a) Pipelines. (1) Natural Gas Pipeline Safety Act of 1968, as 
amended (49 U.S.C. 1671 et seq.).
    (2) Mineral Leasing Act, as amended (Pub. L. 93-153, 30 U.S.C. 185).
    (3) Deepwater Port Act of 1974 (Pub. L. 93-627, 33 U.S.C. 1501 et 
seq.) relating to the establishment, enforcement and review of 
regulations concerning the safe construction, operation or maintenance 
of pipelines on Federal lands and the Outer Continental Shelf (33 U.S.C. 
1520).
    (4) Section 5 of the International Bridge Act of 1972 (Pub. L. 92-
434, 33 U.S.C. 535) as it relates to pipelines not over navigable 
waterways.
    (5) Hazardous Liquid Pipeline Safety Act of 1979, as amended (49 
U.S.C. 2001 et seq.).
    (6) Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.) as 
amended, with respect to establishment, enforcement and review of 
regulations concerning pipeline safety.
    (7) Sections 4(a) and 5(c) of Executive Order 12316 of August 14, 
1981 (46 FR 42237, August 20, 1981) (delegating sections 107(c)(1)(c) 
and 108(b), respectively, of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1981, Pub. L. 96-510), insofar as 
they relate to pipelines.

[[Page 35]]

    (8) Section 7005 of the Consolidated Omnibus Budget Reconciliation 
Act of 1985, as it relates to pipeline safety user fees.
    (b) Hazardous materials. (1) Sections 101-121 of the Hazardous 
Materials Transportation Act of 1975 (49 App. U.S.C. 1801-1819), as 
amended by the Hazardous Materials Transportation Uniform Safety Act of 
1990 (104 Stat. 3244), except as delegated by Secs. 1.46(t), 1.47(j), 
1.48(u)(2), and 1.49(s)(2), and except that the enforcement activities 
of the Research and Special Programs Administration (RSPA) shall be 
limited to any matter relating to or concerning any of the following:
    (i) Any violation of an exemption or approval issued under that Act;
    (ii) Any violation of any requirement for a telephonic or written 
report of a hazardous materials incident or any other reporting 
requirement imposed under that Act;
    (iii) Any manufacture, fabrication, marking, maintenance, 
reconditioning, repair, testing, or retesting of any packaging, except 
modal-specific bulk packaging, which is represented, marked, certified, 
or sold for use in the transportation of hazardous materials, including 
any United Nations standard or DOT specification or exemption packaging;
    (iv) Any manufacture, fabrication, marking, maintenance, 
reconditioning, repair, testing, or retesting of any modal-specific bulk 
packaging, which is represented, marked, certified, or sold for use in 
the transportation of hazardous materials, including any United Nations 
standard or DOT specification or exemption packaging, only when 
requested by the modal administration with primary responsibility for 
such activity;
    (v) Any carrier of hazardous materials only when requested by the 
modal administration with primary responsibility for inspecting such 
carrier;
    (vi) Any offeror of any hazardous material for transportation with 
respect to its offering of any hazardous material for transportation in:
    (A) Any modal-specific bulk packaging only when requested by the 
modal administration with primary responsibility for inspecting such 
packaging; or
    (B) Any other packaging.

This delegation to the Administrator of RSPA does not limit the 
enforcement authority of the Administrators of FHWA, FRA, and FAA, and 
the Commandant of the Coast Guard under the Hazardous Materials 
Transportation Act, as amended. Those agencies have enforcement 
authority over all aspects of the transportation or shipment of 
hazardous materials by their respective modes, including the 
manufacture, fabrication, marking, maintenance, reconditioning, repair, 
testing, or retesting of any bulk packaging intended or represented as 
intended for use in the transportation of hazardous materials by their 
respective modes.
    (2) Serves as the Department's point of contact and consults with 
the Environmental Protection Agency on matters arising under section 
3003 of the Resources Conservation and Recovery Act (42 U.S.C. 6923) and 
section 9 of the Toxic Substances Control Act (15 U.S.C. 2608).
    (3) Sections 601(c) and 902(h)(1) of the Federal Aviation Act of 
1958, as amended (49 U.S.C. 1421 and 1472(h)(1), respectively), as they 
relate to regulations governing the transportation of hazardous 
materials by air.
    (4) Section 16, 25, 26, and 29 of the Hazardous Materials 
Transportation Uniform Safety Act of 1990 (Pub. L. 101-615; 104 Stat. 
3244 (49 app. U.S.C. 1813 note, 1804 note; 29 U.S.C. 655 note)).
    (5) Section 406 of the ICC Termination Act of 1995 (Public Law 104-
88) relating to the issuance of regulations concerning the use of 
certain fiber drum packagings for the transportation of liquid hazardous 
materials, including contracting for a study by the National Academy of 
Sciences.
    (c) Passenger and cargo security. (1) Serve as the Department's 
point of contact in relationships with Government, state, regional, 
local and private groups and organizations in matters relative to the 
Department-wide program for enhancing the safety and security of 
passengers and cargo in transit.
    (d) Intermodal transport. (1) Section 4(e) of the International Safe 
Container Act (Pub. L. 95-208, 91 Stat. 1475).
    (2) [Reserved]

[[Page 36]]

    (e) Emergency preparedness. Carry out the functions related to 
emergency preparedness vested in the Secretary by 49 U.S.C. 101 and 301 
or delegated to the Secretary by or through the Defense Production Act 
of 1950, 50 U.S.C. App. 2061 et seq.; Executive Order 10480, as amended; 
Executive Order 12148; Executive Order 12656; Executive Order 12742; 
Reorganization Plan No. 3 of 1978; and such other statutes, executive 
orders, and other directives as may pertain to emergency preparedness.
    (f) Working Capital Fund for Financing the Activities of the 
Transportation Systems Center. (1) Section 207 of Public Law 96-254 (49 
U.S.C. 1657(r)), authorizing the Secretary to establish a working 
capital fund for financing the activities of the Transportation Systems 
Center.
    (2) [Reserved]
    (g) [Reserved]
    (h) Science and technology. (1) With respect to scientific and 
technological matters, serve as principal advisor to the Secretary and 
representative of the Department to the academic community, the private 
sector, professional organizations, and other Government agencies.
    (2) Serve as principal liaison official for the Department of 
Transportation with the Office of Science and Technology Policy in the 
Executive Office of the President.
    (3) Serve as Chairperson of the Department of Transportation's 
Research and Development Coordinating Council.
    (4) Serve as Chairperson of the Department of Transportation 
Navigation Council.
    (5) Serve as primary official responsible for coordination and 
oversight of the Department's implementation of section 2 of the Federal 
Technology Transfer Act of 1986 (Pub. L. No. 99-502; 15 U.S.C. 3710a), 
relating to the transfer of Federal technology to the marketplace.
    (i) Carry out the functions vested in the Secretary by sections 4, 
5, 6, 7, and 8 of the Sanitary Food Transportation Act of 1990 (Pub. L. 
101-500; 104 Stat. 1213).
    (j) Section 8 of the Independent Safety Board Act Amendments of 1990 
(Pub. L. 101-641; 104 Stat. 4654 (49 app. U.S.C. 1804 note)).
    (k)(1) Carry out the functions and exercise the authority delegated 
to the Secretary in Executive Order 12777 (3 CFR, 1991 Comp.; 56 FR 
54757) in section 2(b)(2) relating to the establishment of procedures, 
methods, and equipment and other requirements for equipment to prevent 
discharges from, and to contain oil and hazardous substances in, 
pipelines, motor carriers, and railroads. (See 49 CFR 1.46 and 1.66.)
    (2) Carry out the functions and exercise the authority delegated to 
the Secretary in section 2(d)(2) of Executive Order 12777 (3 CFR, 1991 
Comp.; 56 FR 54757) relating to the issuance of regulations requiring 
the owners or operators of pipelines, motor carriers, and railroads, 
subject to the Federal Water Pollution Control Act (33 U.S.C. 1321), to 
prepare and submit response plans, except as delegated in section 
1.46(m). For pipelines subject to the Federal Water Pollution Control 
Act (33 U.S.C. 1321), this authority includes the approval of means to 
ensure the availability of private personnel and equipment to remove, to 
the maximum extent practicable, a worst case discharge, the review and 
approval of response plans, and the authorization of pipelines to 
operate without approved response plans.
    (l) University Grants Program. Sections 11(b) and 11(c) of the 
Federal Transit Act, as amended, 49 U.S.C. App. 1607c(b) and 1607c(c), 
except for the provisions in sections 11(b)(8)(b) and 11(b)(10).

[Amdt. 1-130, 43 FR 5516, Feb. 9, 1978]

    Editorial Note: For Federal Register citations affecting Sec. 1.53, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 1.54  Delegations to all Secretarial Officers.

    (a) This section sets forth general delegations to the Deputy 
Secretary, the Deputy Under Secretary, the General Counsel, the 
Inspector General and the Assistant Secretaries.
    (b) Each officer named in paragraph (a) of this section is delegated 
authority to:
    (1) Redelegate and authorize successive redelegations of authority 
granted

[[Page 37]]

by the Secretary within their respective organizations, except as 
limited by law or specific administrative reservation, including 
authority to publish those redelegations in appendix A of this part.
    (2) Authorize and approve official travel (except foreign travel) 
and transportation for themselves, their subordinates, and others 
performing services for, or in cooperation with, the Office of the 
Secretary. This authority may be redelegated in accordance with 
regulations issued by the Assistant Secretary for Administration.
    (3) Communicate directly with chairmen of Field Coordination Groups 
provided such communications are largely informational in character and 
do not conflict with program responsibilities of the operating 
administrations.
    (4) Establish ad hoc committees for specific tasks within their 
assigned staff area.
    (5) Establish, modify, extend, or terminate standing committees 
within their specific areas of responsibility when directed or 
authorized to do so by the Secretary.
    (6) Designate members of interagency committees when such committees 
are specifically concerned with responsibilities of direct interest to 
their office.
    (7) Exercise the following authorities with respect to executive 
level positions (GS-16, 17, or 18 or equivalent) within their respective 
areas of responsibility:
    (i) Determine how executive level positions will be filled; i.e., by 
reassignment, promotion, appointment.
    (ii) Establish selection criteria to be used in identifying eligible 
candidates.
    (iii) Confer with the Administrators on selection criteria and 
candidates for an executive level position that is a counterpart of an 
activity or position in the Office of the Secretary.
    (iv) Recommend final selection for executive level positions, 
subject to review by the Executive Committee of the Departmental 
Executive Personnel Board and approval by the Secretary and the Civil 
Service Commission.
    (v) Serve as ad hoc member of the Departmental Executive Personnel 
Board at the call of the Chairman and serve on the Board's Executive 
Committee whenever matters involving their respective offices or a 
functional counterpart thereof in an operating administration are 
presented to the Executive Committee for its consideration.
    (8) Enter into inter- and intra-departmental reimbursable agreements 
other than with the head of another department or agency (31 U.S.C. 
686). This authority may be redelegated only to office directors or 
other comparable levels and to contracting officers.
    (9) Administer and perform the functions described in their 
respective functional statements.
    (10) Exercise the authority of the Secretary to make certifications, 
findings and determinations under the Regulatory Flexibility Act (Pub. 
L. 96-354) with regard to any rulemaking document for which issuance 
authority is delegated by other sections in this part. This authority 
may be redelegated to those officials to whom document issuance 
authority has been delegated.
    (11) Exercise the authority of the Secretary to resolve informal 
allegations of discrimination arising in or relating to their respective 
organizations through Equal Employment Opportunity counseling or the 
Alternative Dispute Resolution process and to develop and implement 
affirmative action and diversity plans within their respective 
organizations.


(49 U.S.C. 1657(e)(1))


[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-114, 41 
FR 1288, Jan. 7, 1976; Amdt. 1-157, 45 FR 83408, Dec. 18, 1980; Amdt. 1-
159, 46 FR 22593, Apr. 20, 1981; Amdt. 265, 60 FR 2891, Jan. 12, 1995]



Sec. 1.55  Delegations to Deputy Secretary.

    The Deputy Secretary may exercise the authority of the Secretary 
except where specifically limited by law, order, regulations, or 
instructions of the Secretary. In addition, the Deputy Secretary is 
delegated authority to:
    (a) Exercise executive control over the Departmental Planning-
Programming-Budgeting System.
    (b) Serve as Chairman of the Departmental Executive Personnel Board 
and its Executive Committee.
    (c) Originate direct correspondence to chairmen of Field 
Coordination

[[Page 38]]

Groups on overall Departmental matters.
    (d) Approve the establishment, modification, extension, or 
termination of:
    (1) Department-wide (intra-department) committees affecting more 
than one program.
    (2) OST-sponsored interagency committees.
    (3) All advisory committees (including industry advisory committees) 
except those sponsored by field activities of the operating 
administrations.
    (e) Approve the designation of:
    (1) Departmental representatives and the chairman for interagency 
committees sponsored by the Office of the Secretary.
    (2) Departmental representatives on all advisory committees except 
those sponsored by a field component of one of the operating 
administrations or the Materials Transportation Bureau.
    (3) Departmental members for international committees.
    (f) Authorize and approve official travel and transportation for 
self, subordinates, and others performing services for or in cooperation 
with the Office of the Secretary; and authorize and approve official 
foreign travel of all Departmental personnel and others performing 
travel for the Department.
    (g) Serve as the representative of the Secretary on the board of 
directors of the National Railroad Passenger Corporation and carry out 
the functions vested in the Secretary as a member of the board by 
section 303 of the Rail Passenger Service Act of 1970 (84 Stat. 1330).
    (h) Serve as the representative of the Secretary as incorporator, 
member of the acting board of directors, member of the board of 
directors, and member of the executive committee of the board of 
directors, of the United States Railway Association and when so serving 
carry out the functions vested in the Secretary in each capacity by 
title II of the Regional Rail Reorganization Act of 1973 (Pub. L. 93-
236), as amended.
    (i) Serve as the representative of the Secretary as incorporator, 
member of the interim board of directors established by section 301(c) 
of the Regional Rail Reorganization Act of 1973 (Pub. L. 93-236), and 
member of the board of directors, of the Consolidated Rail Corporation 
and when so serving carry out the functions vested in the Secretary in 
each capacity by title III of the Regional Rail Reorganization Act of 
1973 (Pub. L. 93-236).

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-114, 41 
FR 1288, Jan. 7, 1976; Amdt. 1-116, 41 FR 20680, May 20, 1976; Amdt. 1-
126, 41 FR 56327, Dec. 28, 1976; Amdt. 1-157, 45 FR 83408, Dec. 18, 
1980; Amdt. 1-165, 46 FR 55266, Nov. 9, 1981]



Sec. 1.56  Delegations to the Assistant Secretary for Transportation Policy.

    The Assistant Secretary for Transportation Policy is delegated 
authority to:
    (a) Establish policy and maintain oversight of implementation of the 
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-
4347) within the Department of Transportation.
    (b) Oversee the implementation of section 4(f) of the Department of 
Transportation Act of 1969 (49 U.S.C. 303).
    (c) Represent the Secretary of Transportation on various interagency 
boards, committees, and commissions to include the Architectural and 
Transportation Barriers Compliance Board and the Advisory Council on 
Historic Preservation.
    (d) Except with respect to proceedings under section 4(e) of the 
Department of Transportation Act (49 U.S.C. 307) relating to safety 
fitness of an applicant, decide on requests to intervene or appear 
before administrative agencies to present the views of the Department 
subject to concurrence by the General Counsel.
    (e) Carry out the functions vested in the Secretary by section 656 
of the Department of Energy Organization Act (42 U.S.C. 7266) which 
pertains to planning and implementing energy conservation matters with 
the Department of Energy. Serves as the Department's principal 
conservation officer.

[Amdt. 1-261, 59 FR 10063, Mar. 3, 1994]



Sec. 1.56a  Delegations to the Assistant Secretary for Aviation and International Affairs.

    The Assistant Secretary for Aviation and International Affairs is 
delegated authority to:

[[Page 39]]

    (a) Represent the Secretary of Transportation on various interagency 
boards, committees, and commissions to include the Trade Policy Review 
Group and the Trade Policy Staff Committee.
    (b) Except with respect to proceedings under section 4(e) of the 
Department of Transportation Act (49 U.S.C. 307) relating to safety 
fitness of an applicant, decide on requests to intervene or appear 
before administrative agencies to present the views of the Department 
subject to concurrence by the General Counsel.
    (c) Carry out the functions of the Secretary pertaining to aircraft 
with respect to Transportation Orders T-1 and T-2 (44 CFR chapter IV) 
under the Act of September 8, 1950, as amended (50 U.S.C. app. 2061 et 
seq.) and Executive Order No. 10480 (3 CFR, 1949-1953 comp., p. 962), as 
amended.
    (d) Serve as Department of Transportation member of the Interagency 
Group on International Aviation, and pursuant to Executive Order No. 
11382 (3 CFR, 1966-1970 comp., p. 691), as amended, serve as Chair of 
the Group.
    (e) Serve as second alternate representing the Secretary of 
Transportation to the Trade Policy Committee as mandated by 
Reorganization Plan No. 3 of 1979 (5 U.S.C. app. at 1381 (1988)) and 
Executive Order No. 12188 (3 CFR, 1980 comp., p. 131), as amended.
    (f)(1) As supplemented by 14 CFR part 385, as limited by paragraph 
(f)(2) of this section, and except as provided in Secs. 1.53(g), 
1.57(a), and 1.57(s) of this title, carry out the functions transferred 
to the Department from the Civil Aeronautics Board under the following 
statutes:
    (i) 49 U.S.C. app. 1551(b); and
    (ii) Section 4(a)(1) through (4), (6), and (8) through (10) of the 
Civil Aeronautics Board Sunset Act of 1984 (49 U.S.C. app. 1553(a)(1) 
through (4), (6), and (8) through (10)).
    (2) Insofar as the delegation in this paragraph (f) authorizes 
review of decisions of the Designated Senior Career Official in the 
Office of the Assistant Secretary for Aviation and International Affairs 
under Sec. 1.56b of this title, the authority is limited to approving 
any such decision or remanding it for reconsideration by the Designated 
Senior Career Official, with a full written explanation of the basis for 
the remand.
    (g) Carry out the functions vested in the Secretary by the following 
subsections of section 1115 of the Federal Aviation Act of 1958, as 
amended, which relates to the security of foreign airports:
    (1) Subsection 1115(e)(1), in coordination with the General Counsel, 
and the Federal Aviation Administrator; and
    (2) Subsection 1115(e)(3), in coordination with the General Counsel, 
the Federal Aviation Administrator, the Assistant Secretary for 
Governmental Affairs, and the Assistant Secretary for Administration.
    (h) Carry out the following statutory provisions relating to 
consumer protection:
    (1) Section 4(a)(5) of the Civil Aeronautics Board Sunset Act of 
1984 (49 U.S.C. app. 1553(a)(5)) relating to enforcement of the Consumer 
Credit Protection Act;
    (2) Sections 101(3) (relating to relieving certain carriers from 
provisions of the Federal Aviation Act), 204 (relating to taking such 
actions and issuing such regulations as may be necessary to carry out 
responsibilities under the Act), 404 (relating to enforcing the duty of 
carriers to provide safe and adequate service), 407(a) (relating to 
requiring the production of information), 407(e) (relating to entering 
carrier property, and inspecting records), 411 (relating to determining 
whether any carrier or ticket agent is engaged in unfair or deceptive 
practices or unfair methods of competition), and 416 (relating to 
establishing just and reasonable classifications of carriers and rules 
to be followed by each) of the Federal Aviation Act of 1958, as amended, 
(49 U.S.C. 1301(3), 1324, 1374, 1377 (a) and (e), 1381, and 1386) as 
appropriate to the consumer protection functions in this paragraph.
    (i) Carry out the functions of the Secretary pertaining to a 
determination of whether a fee imposed upon one or more air carriers by 
the owner or operator of an airport is reasonable under section 113 of 
the Federal Aviation Administration Authorization Act of 1994

[[Page 40]]

(August 23, 1994; Pub. L. 103-305; 108 Stat. 1577-1579).

[Amdt. 1-261, 59 FR 10063, Mar. 3, 1994, as amended by Amdt. 1-266, 60 
FR 11046, Mar. 1, 1995; Amdt. 1-269, 60 FR 15877, Mar. 28, 1995]



Sec. 1.56b  Delegations to the Designated Senior Career Official, Office of the Assistant Secretary for Aviation and International Affairs.

    The Designated Senior Career Official in the Office of the Assistant 
Secretary for Aviation and International Affairs is delegated exclusive 
authority to make decisions in all hearing cases to select a carrier for 
limited-designation international route authority, and in any other case 
that the Secretary designates, under the authority transferred to the 
Department from the Civil Aeronautics Board described in Secs. 1.56a(f) 
and 1.57(s) of this title; this includes the authority to adopt, reject 
or modify recommended decisions of administrative law judges.

[Amdt. 1-261, 59 FR 10064, Mar. 3, 1994, as amended by Amdt. 1-269, 60 
FR 15877, Mar. 28, 1995]



Sec. 1.57  Delegations to General Counsel.

    The General Counsel is delegated authority to:
    (a) Conduct all rule-making proceedings, except the issuance of 
final rules, under specific laws relating generally to standard time 
zones and daylight saving (advanced standard) time.
    (b) Determine the practicability of applying the standard time of 
any standard time zone to the movements of any common carrier engaged in 
interstate or foreign commerce and issue operating exceptions in any 
case in which the General Counsel determines that it is impractical to 
apply the standard time.
    (c) Provide and coordinate the Department's counseling service to 
employees on questions of conflict of interest and other matters of 
legal import covered by Departmental regulations on employee 
responsibility and conduct. Assure that counseling and interpretations 
on these matters are available to designated Deputy Counselors of the 
Department. Serve as the Department's designee to the Civil Service 
Commission on these matters.
    (d) Serve as the alternate representative of the Secretary on the 
Board of Directors of the National Railroad Passenger Corporation when 
so designated by the Secretary or Deputy Secretary and carry out the 
functions vested in the Secretary as a member of the board by section 
303 of the Rail Passenger Service Act of 1970 (84 Stat. 1330).
    (e) Review and take final action on referrals of the findings of the 
Board for Correction of Military Records of the Coast Guard (except with 
respect to those matters on which the Secretary's authority to take 
final action is exercised by the Board pursuant to 33 CFR 52.35-15) and 
the Coast Guard Discharge Review Board.
    (f) Approve vacation of suspension of dismissal of military 
personnel (10 U.S.C. 872(b)).
    (g) Grant permission, under specific circumstances, to deviate from 
a policy or procedure prescribed by part 9 of the regulations of the 
Office of the Secretary (part 9 of this subtitle) with respect to 
testimony of OST employees as witnesses in legal proceedings, the 
serving of legal process and pleadings in legal proceedings involving 
the Secretary or his Office, and the production of records of that 
Office pursuant to subpoena.
    (h) Prepare proposed Executive orders and proclamations (including 
transmittal documents), effect appropriate Departmental coordination, 
and determine whether the transmittal to the Office of Management and 
Budget should be submitted over the Secretary's signature or the General 
Counsel's.
    (i) Emboss and affix the official Departmental seal to appropriate 
documents and other materials, for all purposes for which authentication 
by seal is required.
    (j) Except with respect to proceedings under section 4(e) of the 
Department of Transportation Act (80 Stat. 934) relating to safety 
fitness of an applicant, decide on requests to intervene or appear 
before courts or agencies to present the views of the Department, 
subject to the concurrence of other interested staff elements in the 
Office of the Secretary.

[[Page 41]]

    (k) Exercise the authority delegated to the Department by the 
Assistant Attorney General, Land and Natural Resources Division, in his 
order of October 2, 1970, to approve the sufficiency of the title to 
land being acquired by purchase or condemnation by the United States for 
the use of the Department. Redelegation and successive redelegations of 
this authority may only be made to attorneys within the Department.
    (l) Issue regulations making editorial changes or corrections in the 
Regulations of the Office of the Secretary.
    (m) Review and take final action on applications for reconsideration 
of initial decisions not to disclose unclassified records of the Office 
of the Secretary requested under 5 U.S.C. 552(a)(3).
    (n) Consider, ascertain, adjust, determine, compromise, and settle 
for an amount not exceeding $25,000, any tort claim arising from the 
activities of any employee of the Office of the Secretary. Request the 
approval of the Attorney General for any such award, compromise, or 
settlement in excess of $25,000 (28 U.S.C. 2672).
    (o) Conduct coordination with foreign governments under section 118 
of the Deep Seabed Hard Mineral Resources Act (June 21, 1980).
    (p) Grant or deny petitions for extension of time to file a document 
under part 202 of title 46.
    (q) Deny petitions for rulemaking or petitions for exemptions in 
accordance with Sec. 5.13(c) of this title, and notify petitioners of 
denials in accordance with Sec. 5.13(d) of this title.
    (r) Exercise the review authority delegated to the Secretary by the 
President in Executive Order 12597 of May 13, 1987.
    (s) Assist and protect consumers in their dealings with the air 
transportation industry and assist state and local organizations in 
handling airline consumer complaints. Carry out 49 U.S.C. 40113 and 
41771 as appropriate to those functions.


(10 U.S.C. 1552; 49 U.S.C. 1655(b); 49 U.S.C. 322; 49 CFR 1.57(l))

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]

    Editorial Note: For Federal Register citations affecting Sec. 1.57, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 1.57a  Delegations to Deputy General Counsel.

    The Deputy General Counsel is delegated authority to:
    (a) Appear on behalf of the Department on the record in hearing 
cases, and to initiate and carry out enforcement actions on behalf of 
the Department, under the authority transferred to the Department from 
the Civil Aeronautics Board as described in Secs. 1.56a(f) and 1.57(s). 
This includes the authority to compromise penalties under 49 U.S.C. 
46301; to issue appropriate orders, including cease and desist orders, 
under 49 U.S.C. 46101; and to require the production of information, 
enter carrier property and inspect records and inquire into the 
management of the business of a carrier under 49 U.S.C. 41711, as 
appropriate to the enforcement responsibilities. In carrying out these 
functions, the Deputy General Counsel is not subject to the supervision 
of the General Counsel.
    (b) Initiate and carry out enforcement actions relating to:
    (1) Foreign airport security on behalf of the Department under 49 
U.S.C. 44907; and
    (2) The Consumer Credit Protection Act under section 4(a)(5) of the 
Civil Aeronautics Board Sunset Act of 1984 (October 4, 1984; Pub. L. 98-
443). In carrying out these functions, the Deputy General Counsel is not 
subject to the supervision of the General Counsel.

[Amdt. 1-269, 60 FR 15877, Mar. 28, 1995]



Sec. 1.57b  Delegations to the Assistant General Counsel for Environmental, Civil Rights, and General Law.

    Administer 5 U.S.C. 552 and 49 CFR part 7 in connection with the 
records of the Office of the Secretary (including the Office of the 
Inspector General) and issue procedures to ensure uniform Departmental 
implementation of statutes and regulations regarding public access to 
records.

[Amdt. 1-228, 54 FR 10010, Mar. 9, 1989, as amended by Amdt. 1-261, 59 
FR 10064, Mar. 3, 1994]

[[Page 42]]



Sec. 1.58  Delegations to Assistant Secretary for Budget and Programs.

    The Assistant Secretary for Budget and Programs is delegated 
authority to:
    (a) Exercise day-to-day operating management responsibility over the 
Office of Programs and Evaluation and the Office of Budget.
    (b) Direct and manage the Departmental planning, evaluation, and 
budget activities.
    (c) Request apportionment or reapportionment of funds by the Office 
of Management and Budget, provided that no request for apportionment or 
reapportionment which anticipates the need for a supplemental 
appropriation shall be submitted to the Office of Management and Budget 
without appropriate certification by the Secretary.
    (d) Issue allotments or allocations of funds to components of the 
Department.
    (e) Authorize and approve official travel and transportation for 
staff members of the Immediate Office of the Secretary including 
authority to sign and approve related travel orders and travel vouchers, 
but not including requests for overseas travel.
    (f) Issue monetary authorizations for use of reception and 
representation funds.
    (g) Act for the Secretary and Deputy Secretary with respect to 
certain budgetary and administrative matters relating to the Immediate 
Office of the Secretary.
    (h) Provide Congressional Notification for Energy Savings 
Performance Contracts (ESPCs) with cancellation ceilings in excess of 
$750,000, pursuant to the National Energy Conservation Policy Act, as 
amended, 42 U.S.C. 8287 et seq.

[Amdt. 1-130, 42 FR 58754, Nov. 11, 1977. Redesignated by Amdt. 1-157, 
45 FR 83409, Dec. 18, 1980, as amended by Amdt. 1-293, 63 FR 33589, June 
19, 1998]



Sec. 1.59  Delegations to the Assistant Secretary for Administration.

    The Assistant Secretary for Administration is delegated authority 
for the following:
    (a) Acquisition. (1) Exercise procurement authority with respect to 
requirements of the Office of the Secretary.
    (2) Make the required determinations with respect to mistakes in 
bids relative to sales of personal property conducted by the Office of 
the Secretary without power of redelegation.
    (3) Carry out the functions vested in the Secretary by sections 3 
and 4(b) (as appropriate) of Executive Order 11912.
    (4) Carry out the functions delegated to the Secretary from time to 
time by the Administrator of General Services to lease real property for 
Department use.
    (b) Personnel. (1) Conduct a personnel management program for the 
Office of the Secretary with authority to take, direct others to take, 
recommend or approve any personnel action with respect to such 
authority.
    (2) Serve as Vice Chairman of the Departmental Executive Resources 
Board and its Executive Resources Review Committee.
    (3) Exercise emergency authority to hire without the prior approval 
of the Deputy Secretary normally required by Departmental procedures 
implementing general employment limitations when in the judgment of the 
Assistant Secretary immediate action is necessary to effect the hire and 
avoid the loss of a well-qualified job applicant, and for similar 
reasons.
    (4) Review proposals of the Office of the Secretary for each new 
appointment or transfer to:
    (i) Verify the essentiality of the position, and
    (ii) [Reserved]
    (5) Approve employment of experts and consultants in accordance with 
5 U.S.C. 3109.
    (6) Serve as Vice Chairman of the Departmental Executive Personnel 
Board and its Executive Committee.
    (7) Issue final interpretations for the Department and its 
administrations on matters arising under section 7117 of title VII of 
the Civil Service Reform Act of 1978.
    (8) Develop, coordinate, and issue wage schedules for Department 
employees under the Federal Wage System, except as delegated to the 
Commandant of the Coast Guard at Sec. 1.46.
    (c) Finance. (1) Administer the financial and fiscal affairs of the 
Office of

[[Page 43]]

the Secretary (other than those for which the Assistant Secretary for 
Budget and Programs is responsible), in accordance with 31 U.S.C. 3512.
    (2) Designate to the Treasury Department certifying officers and 
designated agents for the Office of the Secretary and imprest fund 
cashiers for the Departmental headquarters. (Redelegation to the 
Director of Financial Management is contained in subpart C, Sec. 1.59a.)
    (3) In accordance with 31 U.S.C. 3527, grant or recommend relief 
from accountability for losses or deficiencies of disbursing officers, 
cashiers, or other accountable officers as follows:
    (i) Grant relief for losses or deficiencies of less than $500 for 
which charges or exceptions have not been raised by the General 
Accounting Office.
    (ii) Recommend relief by the Comptroller General for all other 
losses or deficiencies.
    (4) Settle and pay claims by employees of the Office of the 
Secretary, except at the Transportation System Center, for personal 
property losses, as provided by 31 U.S.C. 241(b).
    (5) Waive claims and make refunds in connection with claims of the 
United States for erroneous payment of pay and allowances or of travel, 
transportation, and relocation expenses and allowances to an employee of 
the Office of the Secretary in amounts aggregating not more than $1,500 
without regard to any repayments, and deny requests for waiver of such 
claims regardless of the aggregate amount of the claim, as provided by 4 
CFR parts 91, 92, and 93. This authority may be redelgated only to the 
Director of Financial Management.
    (6) Compromise, suspend collection action on, or terminate claims of 
the United States not exceeding $100,000 (excluding interest) which are 
referred to, or arise out of the activities of, the Office of the 
Secretary.
    (7) Determine the existence and amount of indebtedness and the 
method of collecting repayments from employees of the Office of the 
Secretary and collect repayments accordingly, as provided by 5 U.S.C. 
5514. This authority may be redelegated only to the Director of 
Financial Management.
    (8) Sign Budget Execution reports required by OMB Circular A-34, for 
the Office of the Secretary. (Redelegation to the Director of Financial 
Management is contained in subpart C, Sec. 1.59a.)
    (9) Review and approve for payment any voucher for $25 or less the 
authority for payment of which is questioned by a certifying or 
disbursing officer. (Redelegation to the Director of Financial 
Management is contained in subpart C, Sec. 1.59a.)
    (10) Approve cash purchases of emergency passenger transportation 
services costing over $100 under FPMR G-72, as amended.
    (11) Perform accounting and related functions in support of the 
essential air service program.
    (12) Carry out the functions and obligations assigned to the 
Secretary with respect to the Prompt Payment Act, Public Law 97-177.
    (13) Carry out the functions and duties assigned to the Secretary 
with respect to the Debt Collection Act of 1982, Public Law 97-365.
    (d) Special funds. Except as otherwise delegated, establish or 
operate, or both, such special funds as may be required by statute or by 
administrative determination. This excludes the Working Capital Fund (49 
U.S.C. 327).
    (e) Security. (1) Represent the Secretary on the National 
Communications Security Committee and Interdepartmental Committee on 
Internal Security.
    (2) Issue identification media ``by direction of the Secretary''.
    (3) Classify information in the interests of national defense.
    (4) Take certain classified actions on behalf of the Department in 
connection with counter-audio programs.
    (5) Authorize exceptions to investigative standards for National 
Defense Executive Reservists.
    (6) Determine when emergencies, other than attack on the United 
States, justify activation of Personnel Security Regulations issued by 
the Secretary.
    (7) Approve exceptions to the Personnel Security regulations issued 
by the Secretary.
    (8) Request the Office of Personnel Management to modify 
investigative requirements in other areas.

[[Page 44]]

    (9) Ensure Department-wide compliance with Executive Orders 10450, 
12829, 12958, 12968, and related regulations and issuances.
    (f) Printing. (1) Request approval of the Joint Committee on 
Printing, Congress of the United States, for any procurement or other 
action requiring Committee approval.
    (2) Certify the necessity for Departmental periodicals and request 
approval of the Director of the Office of Management and Budget (OMB 
Circular No. A-3 Revised as of Sept. 8, 1960).
    (g) Document authentication. Emboss and affix the official 
Departmental seal to appropriate documents and other materials, for all 
purposes for which authentication by seal is required.
    (h) Foreign travel. Review written requests for modification to the 
Department's foreign travel plan approved by the Office of Management 
and Budget.
    (i) Gifts and bequests. Carry out the functions vested in the 
Secretary by section 9(m) of the Department of Transportation Act (Pub. 
L. 89-670).
    (j) Building management. Carry out the functions vested in the 
Secretary by sections 1(b) and 4(b) (as appropriate) of Executive Order 
11912.
    (k) Privacy. Issue notices of Department of Transportation systems 
of records as required by the Privacy Act of 1974 (5 U.S.C. 552a(e)(4), 
(11)).
    (l) Hearings. Provide logistical and administrative support to the 
Department's Office of Hearings.
    (m) Paperwork reduction. Carry out the functions and 
responsibilities assigned to the Secretary with respect to the Paperwork 
Reduction Act of 1980, Public Law 96-511.
    (n) Federal real property management. Carry out the functions 
assigned to the Secretary with respect to Executive Order 12512 of April 
28, 1985.
    (o) The Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970, Public Law 91-646, 84 Stat. 1894. Except as 
provided in Secs. 1.45, 1.48 and 49 CFR 25.302, the functions, powers, 
and duties of the Secretary of Transportation, with respect to the 
Uniform Relocation Assistance and Real Property Acquisition Policies Act 
of 1970, are delegated to the Assistant Secretary for Administration 
with respect to programs administered by the Office of the Secretary. 
This authority is subject to the requirements listed in Sec. 1.45 that 
govern all Operating Administrations' authority with respect to the 
Uniform Relocation Assistance and Real Property Acquisition Policies Act 
of 1970.
    (p) Regulations. Issue Department of Transportation procurement 
regulations, subject to the following limitation:
    (1) Coordination. The views of the General Counsel, the interested 
administrations and other offices will be solicited in the development 
of the procurement regulations. In commenting upon proposed provisions 
for the procurement regulations, the administrations will indicate the 
nature and purpose of any additional implementing or supplementing 
policy guidances which they propose to issue at the administration 
level.
    (2) [Reserved]

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]

    Editorial Note: For Federal Register citations affecting Sec. 1.59, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 1.59a  Redelegations by the Assistant Secretary for Administration.

    (a) The Assistant Secretary for Administration has redelegated to 
the Director of Acquisition and Grant Management authority to procure 
and authorize payment for property and services for the Office of the 
Secretary, with power to redelegate and authorize successive 
redelegations.
    (b) The Assistant Secretary for Administration has redelegated to 
the Director of Personnel authority to:
    (1) Conduct a personnel management program for the Office of the 
Secretary with authority to take, direct others to take, recommend or 
approve any personnel action with respect to such authority.
    (2) Develop, coordinate, and issue wage schedules for Department 
employees under the Federal Wage System, except as delegated to the 
Commandant of the Coast Guard at Sec. 1.46 of this part.

[[Page 45]]

    (c) The Assistant Secretary for Administration has redelegated to 
the Director of Financial Management authority to:
    (1) Designate to the Treasury Department certifying officers and 
designated agents for the Office of the Secretary and imprest fund 
cashiers for the Departmental Headquarters.
    (2) Certify to the validity of obligations as required by 31 U.S.C. 
200 and to the adequacy of bond coverage for the designations under 
section 160(c)(2).
    (3) Sign reports on Budget Execution as required by OMB Circular A-
34 (Revised).
    (4) Review and approve for payment any voucher for $25 or less the 
authority for payment of which is questioned by a certifying or 
disbursing officer.
    (5) Process essential air service payments.
    (6) Approve claims of OST employees allowable under 31 U.S.C. 3721 
for amounts of $500 or less.

[Amdt. 1-209, 51 FR 29233, Aug. 15, 1986, as amended by Amdt. 1-232, 54 
FR 46616, Nov. 6, 1989]



Sec. 1.60  Delegations to the Inspector General.

    The Inspector General is delegated, and has agreed to carry out, the 
following:
    (a) Aviation economics. The conduct of audits under 49 U.S.C. 1389; 
and 49 U.S.C. 1377(e).
    (b) [Reserved]

[Amdt. 1-199, 49 FR 50997, Dec. 31, 1984]



Sec. 1.61  Delegations to Assistant Secretary for Governmental Affairs.

    The Assistant Secretary for Governmental Affairs is delegated 
authority to:
    (a) Establish procedures for responding to Congressional 
correspondence.
    (b) Serve as the Department's point of contact in relationships with 
public and private organizations and groups devoted to consumer and 
community services or affairs.
    (c) Serve as coordinator for intra-Departmental consumer affairs 
programs.

[Amdt. 1-157, 45 FR 83409, Dec. 18, 1980, as amended by Amdt. 1-199, 49 
FR 50997, Dec. 31, 1984; Amdt. 1-205, 50 FR 52468, Dec. 24, 1985; Amdt. 
1-269, 60 FR 15877, Mar. 28, 1995]



Sec. 1.62  Delegations to the Director of Small and Disadvantaged Business Utilization.

    The Director of Small and Disadvantaged Business Utilization is 
delegated authority to:
    (a) Exercise Departmental responsibility for the implementation and 
execution of functions and duties under sections 8 and 15 of the Small 
Business Investment Act, as amended (15 U.S.C. 637 and 644).
    (b) Carry out the functions vested in the Secretary by section 906 
of the Railroad Revitalization and Regulatory Reform Act of 1976 (Pub. 
L. 94-210), as amended.

[Amdt. 1-157, 45 FR 83409, Dec. 18, 1980]



Sec. 1.63  Delegations to Assistant to the Secretary and Director of Public Affairs.

    The Assistant to the Secretary and Director of Public Affairs is 
delegated authority to:
    (a) [Reserved]
    (b) Monitor the overall public information program and review and 
approve Departmental informational materials having policy-making 
ramifications before they are printed and disseminated.
    (c) Carry out the functions vested in the Secretary by section 4(b) 
(as appropriate) of Executive Order 11912.
    (d) Carry out the functions to promote carpooling and vanpooling 
which were vested in the Federal Energy Administration by section 
381(b)(1)(B) of the Energy Policy and Conservation Act and transferred 
to the Department of Transportation by section 310 of the Department of 
Energy Organization Act of 1977.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-118, 41 
FR 35849, Aug. 25, 1976; Amdt. 1-157, 45 FR 83409, Dec. 18, 1980; Amdt. 
1-184, 48 FR 44079, Sept. 27, 1983; Amdt. 1-228, 54 FR 10010, Mar. 9, 
1989; Amdt. 1-261, 59 FR 10064, Mar. 3, 1994]



Sec. 1.64  Delegations to the Director, Transportation Administrative Service Center.

    The Director, Transportation Administrative Service Center (TASC), 
is delegated authority to operate the Working Capital Fund (49 U.S.C. 
327).

[Amdt. 1-285, 62 FR 16499, Apr. 7, 1997]

[[Page 46]]



Sec. 1.65  Authority to classify information.

    (a) E.O. 12356 confers upon the Secretary of Transportation 
authority to originally classify information as Secret and Confidential 
with further authorization to delegate this authority. (No official of 
the Department of Transportation has authority to originally classify 
information as Top Secret.)
    (b) The following delegations of this authority, which may not be 
redelegated, are hereby made:
    (1) Office of the Secretary (OST). Chief, Security Staff.
    (2) U.S. Coast Guard (USCG). The Commandant; Chief, Office of 
Operations.
    (3) Federal Aviation Administration (FAA). The Administrator; 
Director of Civil Aviation Security.
    (4) Maritime Administration (MARAD). The Administrator; Associate 
Administrator for Policy and Administration (Confidential only); 
Director, Office of International Activities (Confidential only); Chief, 
Division of National Security Plans (Confidential only).
    (c) Authority to originally classify information as Secret or 
Confidential is delegated to the following officials to become effective 
automatically upon declaration of civil readiness level Initial Alert or 
the comparable military readiness level. If invoked, this authority is 
automatically terminated when both civil and military levels return to 
the level of Communications Watch or comparable readiness state.
    (1) OST. Deputy Secretary; Assistant Secretary for Transportation 
Policy; Assistant Secretary for Aviation and International Affairs; 
Assistant Secretary for Administration.
    (2) USCG. Vice Commandant; Chief of Staff; Commander, Atlantic Area; 
Commander, Pacific Area; Commanders, Coast Guard Districts; Commander, 
Coast Guard Activities, Europe; Chief, Intelligence and Security 
Division.
    (3) FAA. Deputy Administrator; Directors, FAA Regions and Centers.
    (4) MARAD. Deputy Administrator; Region Directors; Heads of ALFA, 
BRAVO, and CHARLIE Emergency Teams when activated.
    (d) Although the delegations of authority are expressed above in 
terms of positions, the authority is personal and is vested only in the 
individual occupying the position. The authority may not be exercised 
``by direction of'' a designated official. The formal appointment or 
assignment of an individual to one of the identified positions, a 
designation in writing of an individual to act in the absence of one of 
these officials, or the exercise by an individual of the powers of one 
of these officials by operation of law, however, conveys the authority 
to originally classify information.
    (e) Previous delegations of authority to Department of 
Transportation officials to originally classify information as Secret 
and Confidential are hereby rescinded.

[Amdt. 1-195, 49 FR 26594, June 28, 1984, as amended by Amdt. 1-261, 59 
FR 10061, 10064, Mar. 3, 1994]



Sec. 1.66  Delegations to Maritime Administrator.

    With the exception of those authorities delegated to the Maritime 
Subsidy Board in Sec. 1.67 of this title, the Maritime Administrator is 
delegated authority to:
    (a) Carry out sections 9, 12, 14a, 21a, 37, 38, 40, 41, and 42 of 
the Shipping Act, 1916, as amended (46 App. U.S.C. 801 et seq.);
    (b) Carry out the Merchant Marine Act, 1920, as amended (46 App. 
U.S.C. 861 et seq.), including the Ship Mortgage Act, 1920, as amended 
(46 App. U.S.C. 921 et seq.);
    (c) Carry out the Merchant Marine Act, 1928, as amended (46 App. 
U.S.C. 891 et seq.);
    (d) Carry out section 7 of the Intercoastal Shipping Act, 1933, as 
amended (46 App. U.S.C. 843 et seq.);
    (e) Carry out the Merchant Marine Act, 1936, as amended (46 App. 
U.S.C. 1101 et seq.); except the authority delegated to the 
Administrator of the National Oceanic and Atmospheric Administration 
relating to the establishment of capital construction fund agreements 
under section 607 thereof and the granting of financing guarantees under 
title XI thereof, with respect to vessels in the fishing trade or 
industry;

[[Page 47]]

    (f) Carry out the Merchant Ship Sales Act of 1946, as amended (50 
U.S.C. App. 1735 et seq.);
    (g) Carry out the Suits in Admiralty Act (1920), as amended (46 App. 
U.S.C. 741 et seq.);
    (h) Carry out the Civilian Nautical School Act, 1940 (46 App. U.S.C. 
1331 et seq.);
    (i) Carry out the Act of June 2, 1951 (46 App. U.S.C. 1241a) 
regarding the ``Vessel Operations Revolving Fund'';
    (j) Carry out the Act of August 9, 1954 (50 U.S.C. 196 et seq.) 
commonly called the Emergency Foreign Vessels Acquisition Act;
    (k) Carry out the Merchant Marine Decorations and Medals Act of 1988 
(46 App. U.S.C. 2001 et seq.);
    (l) Carry out the Maritime Academy Act of 1958, as amended (46 App. 
U.S.C. 1381 et seq.);
    (m) Carry out the Act of May 16, 1972, as amended (86 Stat. 140) 
authorizing sale or purchase of certain passenger vessels;
    (n) Carry out the Act of August 22, 1972 (86 Stat. 618) authorizing 
sale of Liberty ships for use as artificial reefs;
    (o) Carry out section 717 of the Act of October 26, 1972 (86 Stat. 
1184) commonly known as the Department of Defense Appropriations Act, 
1973, and similar subsequent enactments, with respect to transferring or 
otherwise making available vessels under the jurisdiction of the 
Maritime Administration to another Federal agency or, similarly, 
accepting vessels from another Federal agency;
    (p) Carry out the provisions of sections 10 through 13 of Public Law 
103-451, the National Maritime Heritage Act of 1994, 108 Stat. 4769, 
4778-4782;
    (q) Exercise the authority vested in the Administrator of General 
Services by the Act of June 1, 1948, Pub. L. 80-566, 62 Stat. 281, 40 
U.S.C. 318-318c and the Federal Property and Administrative Services Act 
of 1949, as amended, 63 Stat. 377, and delegated by the Administrator of 
General Services on May 8, 1995, relating to the enforcement of laws for 
the protection of property and persons at the United States Merchant 
Marine Academy, located in Kings Point, New York. This may be 
accomplished through appointment of uniformed personnel as special 
police, establishment of rules and regulations governing conduct on the 
affected property, and execution of agreements with other Federal, 
State, or local authorities. This delegation shall remain in effect 
through May 1, 2000;
    (r) Carry out the responsibilities of the National Shipping 
Authority (initially established by the Secretary of Commerce effective 
March 13, 1951) in the capacity of Director, National Shipping 
Authority;
    (s) Carry out the Maritime Education and Training Act of 1980 (46 
App. U.S.C. 1295), as amended;
    (t) Carry out all other activities previously vested in the 
Secretary of Commerce and transferred pursuant to Public Law 97-31;
    (u) Carry out the functions vested in the Secretary by section 3(d) 
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it 
relates to ships owned or operated by the Maritime Administration when 
engaged in noncommercial service;
    (v) Carry out the responsibilities and exercise the authorities of 
the Secretary of Transportation under the Maritime Security Act of 1996, 
Public Law 104-239;
    (w) Carry out the provisions of subtitle B of Public Law 101-624;
    (x) Carry out the responsibilities and exercise the authorities of 
the Secretary of Transportation under sections 1008, 1009, and 1013 of 
Public Law 104-324;
    (y) Carry out the functions vested in the Secretary by the Oil 
Pollution Act of 1990 (August 18, 1990; Pub. L. 101-380; 104 Stat. 484) 
in sections 4115(f) relating to vessel financing and 4117 relating to a 
feasibility study of an oil pollution prevention program. (See 49 CFR 
1.46 and 1.53).
    (z) Carry out the functions vested in the Secretary by Section 2927, 
Title XXIX of the National Defense Authorization Act of 1994 (Public Law 
103-160; November 30, 1993) relating to authority to convey surplus real 
property to public entities for use in the development or operation of 
port facilities.
    (aa) Carry out the following powers and duties vested in the 
Secretary by the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-
1524):

[[Page 48]]

    (1) The authority to process applications for the issuance, 
transfer, or amendment of a license for the construction and operation 
of a deepwater port (33 U.S.C. 1503(bb)) in coordination with the 
Commandant of the Coast Guard.
    (2) Approval of fees charged by adjacent coastal States for use of a 
deepwater port and directly related land-based facilities (33 U.S.C. 
1504(h)(2)).
    (3) In collaboration with the Assistant Secretary for Aviation and 
International Affairs and the Assistant Secretary for Transportation 
Policy, consultation with the Secretary of State relating to 
international actions and cooperation in the economic, trade and general 
transportation policy aspects of the ownership and operation of 
deepwater ports (33 U.S.C. 1510).
    (4) Submission of notice of the commencement of a civil suit (33 
U.S.C. 1515(b)(2)).
    (5) Intervention in any civil action to which the Secretary is not a 
party (33 U.S.C. 15150).
    (6) Authority to request the Attorney General to seek the suspension 
or termination of a deepwater port license and to initiate a proceeding 
before the Surface Transportation Board (33 U.S.C. 1507, 1511(a)).

[Amdt. 1-164, 46 FR 47459, Sept. 28, 1981]

    Editorial Note: For Federal Register citations affecting Sec. 1.66, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 1.67  Delegations to Maritime Subsidy Board.

    (a) The Maritime Subsidy Board is delegated authority to:
    (1) Carry out all functions previously vested in the Secretary of 
Commerce pursuant to section 105(1) (except the last proviso thereto and 
readjustments in determinations of operating cost differentials not 
requiring a hearing and contractual changes reducing or realigning 
service requirements not involving additional subsidy or requiring a 
section 605(c) hearing under the Act (46 App. U.S.C. 1175(c)), section 
105(2), and, insofar as applicable to these functions, section 105(3) of 
Reorganization Plan No. 21 of 1950, and section 202(b)(1) of 
Reorganization Plan No. 7 of 1961, except investigations, hearings and 
determinations, including changes in determinations, with respect to 
minimum manning scales, minimum wage scales, and minimum working 
conditions referred to in section 301(a) of the Merchant Marine Act, 
1936, as amended (46 App. U.S.C. 1101 et seq.).
    (2) Carry out all functions previously vested in the Secretary of 
Commerce pursuant to section 103(e) of Reorganization Plan No. 7 of 1961 
and section 202(b)(2) (except requiring the filing of reports, accounts, 
records, rates, charges, and memoranda under section 21 of the Shipping 
Act, 1916, as amended, and making reports and recommendations to 
Congress) and section 202(b)(3) of Reorganization Plan No. 7 of 1961, 
insofar as said functions relate to the functions described in paragraph 
(a)(1) of this section.
    (3) Execute and sign, by and through any member of the Board or the 
Secretary or an Assistant Secretary of the Board, contracts and other 
documents authorized or approved by the Board pursuant to paragraphs 
(a)(1) and (a)(2) of this section. The execution of such contracts or 
documents may be attested, under the seal of the Department of 
Transportation, by the Secretary or an Assistant Secretary of the 
Maritime Subsidy Board.
    (b) The Maritime Subsidy Board may exercise other authorities of the 
Secretary of Transportation as applicable to performing the functions 
assigned to the Board in this part.
    (c) The Board is composed of the Maritime Administrator, the Deputy 
Maritime Administrator, and the Chief Counsel of the Administration, and 
during a vacancy in any one of those offices, the person acting in such 
capacity shall be a member of the Board, unless the Secretary of 
Transportation designates another person. In case there still is a 
vacancy in the Board or in the absence or disability of one of its 
members, the Secretary of the Maritime Administration and Maritime 
Subsidy Board, or any other persons designated by the Secretary of 
Transportation, shall act as a member or members of the Board. Each 
member of

[[Page 49]]

the Board, while serving in that capacity, shall act pursuant to direct 
authority from the Secretary of Transportation and exercise judgment 
independent of authority otherwise delegated to the Maritime 
Administrator. The Maritime Administrator or the Acting Maritime 
Administrator serves as Chairperson of the Board. The concurring votes 
of two members shall be sufficient for the disposition of any matter 
which may come before the Board.
    (d) The Chairperson of the Maritime Subsidy Board may make use of 
officers and employees of the Maritime Administration to perform 
activities for the Board. Employees of the Maritime Administration may 
be designated as the Secretary or Assistant Secretaries of the Board.

[Amdt. 1-164, 46 FR 47460, Sept. 28, 1981, as amended by Amdt. 1-211, 51 
FR 29471, Aug. 18, 1986; Amdt. 1-247, 56 FR 59893, Nov. 26, 1991]



Sec. 1.68  [Reserved]



Sec. 1.69  Delegations to the Director of Intelligence and Security.

    The Director of Intelligence and Security is delegated authority to:
    (a) Carry out the functions assigned to the Secretary by the 
Aviation Security Improvement Act of 1990, section 101 (Pub. L. 101-508; 
November 16, 1990) relating to intelligence and security matters for all 
modes of transportation.
    (b) [Reserved]

[Amdt. 1-237, 56 FR 5958, Feb 14, 1991]



Sec. 1.70  Delegations to the Director of the Departmental Office of Civil Rights.

    The Director of the Departmental Office of Civil Rights is delegated 
authority to conduct all stages of the formal internal discrimination 
complaint process (including the acceptance or rejection of complaints); 
to provide policy guidance to the operating administrations and 
Secretarial officers concerning the implementation and enforcement of 
all civil rights laws, regulations and executive orders for which the 
Department is responsible; to otherwise perform activities to ensure 
compliance with external civil rights programs; and to review and 
evaluate the operating administrations' enforcement of these 
authorities.
    These authorities include:
    (a) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 
2000e et seq.
    (b) Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 
2000d et seq.
    (c) Section 504 of the Rehabilitation Act of 1973, as amended, 29 
U.S.C. 794 and 794a.
    (d) Section 501 of the Rehabilitation Act of 1973, as amended, 29 
U.S.C. 791.
    (e) Age Discrimination in Employment Act of 1967, as amended, 29 
U.S.C. 621 et seq.
    (f) Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101.
    (g) Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 
104 Stat. 327 (1990) (codified at 42 U.S.C. 12101-121213).
    (h) Equal Pay Act of 1963 (enacted as section 6(d) of the Fair Labor 
Standards Act of 1938, 29 U.S.C. 206(d)).
    (i) Alcohol, Drug Abuse, and Mental Health Administration 
Reorganization Act, 42 U.S.C. 290dd(b).
    (j) 29 CFR Parts 1600 through 1691 (Equal Employment Opportunity 
Commission Regulations).
    (k) Department of Transportation Coast Guard Military Justice 
Manual, CG-488, Part 700-9 (Civil Rights Complaints).
    (l) Title VIII of the Civil Rights Act of 1968, as amended, 42 
U.S.C. 3601 et seq. (fair housing provisions).
    (m) The Federal Property and Administrative Services Act of 1949, 40 
U.S.C. 476.
    (n) Title IX of the Education Amendments Act of 1972, 20 U.S.C. 
1681.
    (o) Executive Order No. 12898, Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations. (In coordination with the Assistant Secretary for 
Transportation Policy.)
    (p) 49 U.S.C. 47113, 47107, and 47123 (formerly sections 505(f), 
511(a)(17), and 520 of the Airport and Airway Improvement Act of 1982, 
as amended).
    (q) 49 U.S.C. 41705 (formerly the Air Carrier Access Act of 1986, as 
amended).
    (r) The Federal-Aid Highway Act, as amended, 23 U.S.C. 140 and 324.
    (s) 49 U.S.C. 306.

[[Page 50]]

    (t) 49 U.S.C. 5310, 5332 (formerly sections 16 and 19 of the Federal 
Transit Act, as amended).
    (u) The Intermodal Surface Transportation Efficiency Act of 1991, 
Pub. L. 102-240, 105 Stat. 1919, section 1003.
    (v) The Highway Safety Act of 1966, as amended, 23 U.S.C. 
402(b)(1)(D).

[Amdt. 265, 60 FR 2891, Jan. 12, 1995]



Sec. 1.71  Delegations to the Director of the Bureau of Transportation Statistics.

    The Director of the Bureau of Transportation Statistics is delegated 
authority to exercise powers and perform duties under the following 
statutes:
    (a) Aviation information. (1) 49 U.S.C. 329(b)(1), relating to 
collection and dissemination of information on civil aeronautics;
    (2) Section 4(a)(7) of the Civil Aeronautics Board Sunset Act of 
1984 (October 4, 1984; Pub. L. 98-443), relating to the reporting of the 
extension of unsecured credit to political candidates (section 401, 
Federal Election Campaign Act of 1971; 2 U.S.C. 451), in conjunction 
with the General Counsel and the Assistant Secretary for Aviation and 
International Affairs; and
    (3) 49 U.S.C. 40113 (relating to taking such actions and issuing 
such regulations as may be necessary to carry out responsibilities under 
the Act), 49 U.S.C. 41702 (relating to the duty of carriers to provide 
safe and adequate service), 49 U.S.C. 41708 and 41709 (relating to the 
requirement to keep information and the forms in which it is to be 
kept), and 49 U.S.C. 41701 (relating to establishing just and reasonable 
classifications of carriers and rules to be followed by each) as 
appropriate to carry out the responsibilities under this paragraph in 
conjunction with the General Counsel and the Assistant Secretary for 
Aviation and International Affairs.
    (b) Motor carrier information. 49 U.S.C. 14123, relating to the 
collection and dissemination of information on motor carriers.

[Amdt. 1-270, 60 FR 30196, June 8, 1995, as amended by Amdt. 282, 61 FR 
68163, Dec. 27, 1996]



Sec. 1.72  Delegations to the Office of the Chief Information Officer.

    (a) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3506);
    (b) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the Clinger-Cohen Act of 1996 (40 U.S.C. 1422 
to 1424, 1427);
    (c) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the Computer Security Act of 1987 (40 U.S.C. 
759, 759 notes);
    (d) Approve waivers to Federal Information Processing Standards 
(FIPS) under Section 5131 of the Clinger-Cohen Act of 1996 (40 U.S.C. 
1441); and
    (e) Carry out all the functions and responsibilities assigned to the 
Secretary with respect to Executive Order 13011, Federal Information 
Technology, Section 2, paragraphs (a), (b), (d), (e), and (f).

[Amdt. 1-290, 62 FR 51804, Oct. 3, 1997]

   Appendix A to Part 1--Delegations and Redelegations by Secretarial 
                                Officers

    1. Director of Budget. The Assistant Secretary for Budget and 
Programs has redelegated to the Director of Budget authority to:
    (a) Request apportionment and reapportionment of funds by the Office 
of Management and Budget, provided that no request for apportionment or 
reapportionment which anticipates the need for a supplemental 
appropriation shall be submitted to the Office of Management and Budget 
without appropriate certification by the Secretary.
    (b) Issue allotments or allocations of funds to components of the 
Department.
    2. Chief Counsel, U.S. Coast Guard. (a) The General Counsel, as 
Judge Advocate General for the U.S. Coast Guard, has delegated to the 
Chief Counsel, U.S. Coast Guard, pursuant to the Uniform Code of 
Military Justice, chapter 47 of title 10, United States Code, authority 
to exercise the following powers and duties:
    (1) The authority to recommend assignment for duty of judge 
advocates under Article 6(a), section 806(a) of title 10, United States 
Code.
    (2) The authority to make field inspections in connection with the 
administration of military justice under Article 6(a) section 806(a) of 
Title 10, United States Code.
    (3) The authority to designate military judges; to make assignments 
of, and exercise direct responsibility for, military judges; and to 
assign, or approve the performance of,

[[Page 51]]

other duties of a judicial or nonjudicial nature by military judges 
under Article 26(c), section 826(c) of title 10, United States Code.
    (4) The authority to forward to a Court of Military Review records 
that must be referred to a Court of Military Review under Article 66(b), 
section 866(b) of title 10, United States Code.
    (5) The authority to instruct the convening authority to take action 
in accordance with the decision of the Court of Military Review or 
dismiss the charges under Article 66(e), section 866(e) of title 10, 
United States Code.
    (6) The authority to modify or vacate findings and sentences in 
cases not reviewed by a Court of Military Review under Article 69, 
section 869 of title 10, United States Code.
    (7) The authority to certify counsel as competent to perform the 
duties of trial counsel and defense counsel of a general court-martial 
under 10 U.S.C. 827(b), Art. 27(b) UCMJ.
    (8) The authority to detail appellate Government counsel and 
appellate defense counsel to perform duties in connection with the 
review of court-martial cases by the Court of Military Review, the Court 
of Military Appeals and the Supreme Court.
    (9) The authority to perform any other duty and exercise any other 
power which the General Counsel is authorized or required to perform 
under the Uniform Code of Military Justice or the Manual for Courts-
Martial, with the exception of the following which are reserved to the 
General Counsel or his or her delegatee within the Office of the General 
Counsel:
    (i) Authority to certify commissioned officers as qualified for duty 
as military judges under Article 26(b), section 826(b) of title 10, 
United States Code.
    (ii) Authority to establish a Court of Military Review and designate 
a chief judge of the court under Article 66(a), section 866(a) of title 
10, United States Code.
    (iii) Authority to order cases sent to the Court of Military Appeals 
under Article 67(b)(2), section 867(b)(2) of title 10, United States 
Code.
    (iv) Authority to examine records of general courts-martial not 
reviewed under Article 66, section 866 of title 10, United States Code, 
and modify or set aside the findings or the sentence, or refer the 
record to the Court of Military Review under Article 69(a), section 
869(a) of title 10, United States Code.
    (v) Authority to prescribe rules not inconsistent with the Manual 
for Courts-Martial to govern the professional supervision and discipline 
of military trial and appellate judges, judge advocates, and other 
lawyers who practice in proceedings governed by the UCMJ and Manual for 
Courts-Martial.
    (vi) Authority to make the recommendation of the Judge Advocate 
General in a court-martial case requiring approval by the Secretary or 
the President.
    (vii) Authority to approve a vacation of supension of dismissal of 
military personnel.
    (b) The authority delegated by paragraph (a)(3) of this section may 
be redelegated only to the Deputy Chief Counsel.
    (c) The Chief Counsel shall make an annual summary report of his 
actions taken under paragraph (a)(6) of this section of this delegation 
to the General Counsel of the Department of Transportation (including 
the number of cases subject to that authority, the number of 
applications for review filed, and the disposition thereof) for 
inclusion, as appropriate, in the Judge Advocates General and Court of 
Military Appeals report to Congress required by Article 67(g), section 
867(g) of title 10, United States Code.
    3. Chief Counsels. The General Counsel has delegated to the Chief 
Counsels the authority delegated to the General Counsel by Amendment 1-
41 to part 1 of title 49, Code of Federal Regulations, 35 FR 17653, 
November 17, 1970, as follows:
    Section 855 of the Revised Statutes, as amended by Public Law 91-
393, 84 Stat. 835 (40 U.S.C. 255) authorizes the Attorney General to 
delegate to other departments and agencies his authority to give written 
approval of the sufficiency to the title to land being acquired by the 
United States. The Attorney General has delegated to the Assistant 
Attorney General in charge of the Land and Natural Resources Division 
the authority to make delegations under that law to other Federal 
departments and agencies (35 FR 16084; 28 CFR 0.66). The Assistant 
Attorney General, Land and Natural Resources Division, has further 
delegated certain responsibilities in connection with the approval of 
the sufficiency of the title to land to the Department of Transportation 
as follows:

 delegation to the department of transportation for the approval of the 
        title to lands being acquired for federal public purposes

    Pursuant to the provision of Public Law 91-393, approved September 
1, 1970, 84 Stat. 835, amending R.S. 355 (40 U.S.C. 255), and acting 
under the provisions of Order No. 440-70 of the Attorney General, dated 
October 2, 1970, the responsibility for the approval of the sufficiency 
of the title to land for the purpose for which the property is being 
acquired by purchase or condemnation by the United States for the use of 
your Department is, subject to the general supervision of the Attorney 
General and to the following conditions, hereby delegated to your 
Department.
    This delegation of authority is further subject to:
    1. Compliance with the regulations issued by the Assistant Attorney 
General on October 2, 1970, a copy of which is enclosed.
    2. This delegation is limited to:

[[Page 52]]

    (a) The acquisition of land for which the title evidence, prepared 
in compliance with these regulations, consists of a certificate of 
title, title insurance policy, or an owner's duplicate Torrens 
certificate of title.
    (b) The acquisition of lands valued at $100,000 or less, for which 
the title evidence consists of abstracts of title or other types of 
title evidence prepared in compliance with said regulations.
    As stated in the above-mentioned Act, any Federal department or 
agency which has been delegated the responsibility to approve land 
titles under the Act may request the Attorney General to render his 
opinion as to the validity of the title to any real property or interest 
therein, or may request the advice or assistance of the Attorney General 
in connection with determinations as to the sufficiency of titles.
    The Chief Counsels of the United States Coast Guard, Federal 
Aviation Administration, Federal Highway Administration, Federal 
Railroad Administration, National Highway Traffic Safety Administration, 
Urban Mass Transportation Administration, the St. Lawrence Seaway 
Development Corporation, Maritime Administration, and Research and 
Special Programs Administration are hereby authorized to approve the 
sufficiency of the title to land being acquired by purchase or 
condemnation by the United States for the use of their respective 
organizations. This delegation is subject to the limitations imposed by 
the Assistant Attorney General, Land and Natural Resources Division, in 
his delegation to the Department of Transportation. Redelegation of this 
authority may only be made by the Chief Counsels to attorneys within 
their respective organizations.
    If his organization does not have an attorney experienced and 
capable in the examination of title evidence, a Chief Counsel may, with 
the concurrence of the General Counsel, request the Attorney General to 
(1) furnish an opinion as to the validity of a title to real property or 
interest therein, or (2) provide advice or assistance in connection with 
determining the sufficiency of the title.

(49 CFR 1.45(a) and 1.53(a); 49 U.S.C. 322)


[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]

    Editorial Note: For Federal Register citations affecting appendix A 
to part 1, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



PART 3--OFFICIAL SEAL--Table of Contents




    Authority: 49 U.S.C. 102(e).

    Source: Amdt. 3-3, 45 FR 75666, Nov. 17, 1980, unless otherwise 
noted.



Sec. 3.1  Description.

    The official seal of the Department of Transportation is described 
as follows: A white abstract triskelion figure signifying motion appears 
within a circular blue field. The figure is symmetrical. The three 
branches of the figure curve outward in a counter-clockwise direction, 
each tapering almost to a point at the edge of the field. Surrounding 
the blue circle is a circular ring of letters. The upper half of the 
ring shows the words ``Department of Transportation''. The lower half of 
the ring shows the words ``United States of America''. The letters may 
be shown in either black or medium gray. The official seal of the 
Department is modified when embossed. It appears below in black and 
white.
[GRAPHIC] [TIFF OMITTED] TC02FE91.096



PART 5--RULEMAKING PROCEDURES--Table of Contents




                           Subpart A--General

Sec.
5.1  Applicability.
5.3  Initiation of rulemaking.
5.5  Participation by interested persons.
5.7  Regulatory docket.

            Subpart B--Petitions for Rulemaking or Exemptions

5.11  Filing of petitions.
5.13  Processing of petitions.

                          Subpart C--Procedures

5.21  General.
5.23  Contents of notices.

[[Page 53]]

5.25  Petitions for extension of time to comment.
5.27  Consideration of comments received.
5.29  Additional rulemaking proceedings.
5.31  Hearings.
5.33  Adoption of final rules.

Appendix A to Part 5

    Authority: Sec. 9, 80 Stat. 944 (49 U.S.C. 1657).

    Source: 32 FR 10363, July 14, 1967, unless otherwise noted.



                           Subpart A--General



Sec. 5.1  Applicability.

    (a) This part prescribes general rulemaking procedures that apply to 
the issue, amendment, and repeal of rules of the Secretary of 
Transportation. It does not apply to rules issued by the National 
Transportation Safety Board, U.S. Coast Guard, Federal Aviation 
Administration, Federal Highway Administration, Federal Railroad 
Administration, Urban Mass Transportation Administration, National 
Highway Traffic Safety Administration, or St. Lawrence Seaway 
Development Corporation.
    (b) For the purposes of this part, Secretary means the Secretary of 
Transportation or the Under Secretary of Transportation, or any of the 
following to whom the Secretary has delegated authority to conduct 
rulemaking proceedings:
    (1) Any Assistant Secretary.
    (2) The General Counsel.

Any of these officers may redelegate that authority to the head of any 
office who reports to him.
    (c) Records relating to rulemaking proceedings are available for 
inspection as provided in part 7 of this subtitle.

[32 FR 10363, July 14, 1967, as amended by Amdt. 5-2, 35 FR 5331, Mar. 
31, 1970; Amdt. 5-3, 36 FR 430, Jan. 13, 1971]



Sec. 5.3  Initiation of rulemaking.

    The Secretary initiates rulemaking on his own motion. However, in 
doing so, he may, in his discretion, consider the recommendations of 
other agencies of the United States and of other interested persons.



Sec. 5.5  Participation by interested persons.

    Any person may participate in rulemaking proceedings by submitting 
written information or views. The Secretary may also allow any person to 
participate in additional rulemaking proceedings, such as informal 
appearances or hearings, held with respect to any rule.



Sec. 5.7  Regulatory docket.

    (a) Records of the Office of the Secretary of Transportation 
concerning rulemaking actions, including notices of proposed rule 
making, comments received in response to those notices, petitions for 
rulemaking or exemption, petitions for rehearing or reconsideration, 
grants and denials of exemptions, denials of petitions for rule making, 
and final rules are maintained in current docket form in the Office of 
the General Counsel.
    (b) Any person may examine any docketed material at that office and 
may obtain a copy of any docketed material upon payment of the 
prescribed fee.



            Subpart B--Petitions for Rulemaking or Exemptions



Sec. 5.11  Filing of petitions.

    (a) Any person may petition the Secretary to issue, amend, or repeal 
a rule, or for a permanent or temporary exemption from any rule.
    (b) Each petition filed under this section must:
    (1) Be submitted in duplicate to the Docket Clerk, Office of the 
General Counsel, Department of Transportation, Washington, DC 20590;
    (2) Set forth the text or substance of the rule or amendment 
proposed, or of the rule from which the exemption is sought, or specify 
the rule that the petitioner seeks to have repealed, as the case may be;
    (3) Explain the interest of the petitioner in the action requested 
including, in the case of a petition for an exemption, the nature and 
extent of the relief sought and a description of the persons to be 
covered by the exemption;

[[Page 54]]

    (4) Contain any information and arguments available to the 
petitioner to support the action sought; and
    (5) In the case of a petition for exemption, unless good cause is 
shown in that petition, be submitted at least 60 days before the 
proposed effective date of the exemption.



Sec. 5.13  Processing of petitions.

    (a) General. Each petition received under Sec. 5.11 of this part is 
referred to the head of the office responsible for the subject matter of 
that petition. No public hearing, argument, or other proceeding is held 
directly on a petition before its disposition under this section.
    (b) Grants. If the Secretary determines that the petition contains 
adequate justification, he initiates rulemaking action under subpart C 
of this part or grants the exemption, as the case may be.
    (c) Denials. If the Secretary determines that the petition does not 
justify initiating rule-making action or granting the exemption, he 
denies the petition.
    (d) Notification. Whenever the Secretary determines that a petition 
should be granted or denied, the office concerned and the Office of the 
General Counsel prepare a notice of that grant or denial for issuance to 
the petitioner, and the Secretary issues it to the petitioner.



                          Subpart C--Procedures



Sec. 5.21  General.

    (a) Unless the Secretary finds, for good cause, that notice is 
impractical, unnecessary, or contrary to the public interest, a notice 
of proposed rule making is issued and interested persons are invited to 
participate in the rulemaking proceedings with respect to each 
substantive rule.
    (b) Unless the Secretary determines that notice and public 
rulemaking proceedings are necessary or desirable, interpretive rules, 
general statements of policy, and rules relating to organization, 
procedure, or practice are prescribed as final without notice or other 
public rulemaking proceedings.
    (c) In his discretion, the Secretary may invite interested persons 
to participate in the rulemaking proceedings described in Sec. 5.29 of 
this subpart.



Sec. 5.23  Contents of notices.

    (a) Each notice of proposed rulemaking is published in the Federal 
Register, unless all persons subject to it are named and are personally 
served with a copy of it.
    (b) Each notice, whether published in the Federal Register or 
personally served, includes:
    (1) A statement of the time, place, and nature of the proposed rule-
making proceeding;
    (2) A reference to the authority under which it is issued;
    (3) A description of the subjects or issues involved or the 
substance or terms of the proposed rule;
    (4) A statement of the time within which written comments must be 
submitted and the required number of copies; and
    (5) A statement of how and to what extent interested persons may 
participate in the proceeding.



Sec. 5.25  Petitions for extension of time to comment.

    (a) Any person may petition the Secretary for an extension of time 
to submit comments in response to a notice of proposed rulemaking. The 
petition must be submitted in duplicate not later than 3 days before 
expiration of the time stated in the notice. The filing of the petition 
does not automatically extend the time for petitioner's comments.
    (b) The Secretary grants the petition only if the petitioner shows a 
substantive interest in the proposed rule and good cause for the 
extension, and if the extension is in the public interest. If an 
extension is granted, it is granted as to all persons and is published 
in the Federal Register.



Sec. 5.27  Consideration of comments received.

    All timely comments are considered before final action is taken on a 
rule-making proposal. Late filed comments may be considered so far as 
possible without incurring additional expense or delay.

[[Page 55]]



Sec. 5.29  Additional rulemaking proceedings.

    The Secretary may initiate any further rulemaking proceedings that 
he finds necessary or desirable. For example, he may invite interested 
persons to present oral arguments, participate in conferences, appear at 
informal hearings, or participate in any other proceeding.



Sec. 5.31  Hearings.

    (a) Sections 556 and 557 of title 5, United States Code, do not 
apply to hearings held under this part. As a fact-finding proceeding, 
each hearing is nonadversary and there are no formal pleadings or 
adverse parties. Any rule issued in a case in which a hearing is held is 
not necessarily based exclusively on the record of the hearing.
    (b) The Secretary designates a representative to conduct any hearing 
held under this part. The General Counsel designates a member of his 
staff to serve as legal officer at the hearing.



Sec. 5.33  Adoption of final rules.

    Final rules are prepared by representatives of the office concerned 
and the Office of the General Counsel. The rule is then submitted to the 
Secretary for his consideration. If the Secretary adopts the rule, it is 
published in the Federal Register, unless all persons subject to it are 
named and are personally served with a copy of it.

                          Appendix A to Part 5

    Pursuant to Sec. 5.1(b), the following officials of the Office of 
the Secretary of Transportation are authorized to conduct rulemaking 
proceedings under this part, as specified in this appendix:
    (1) The General Counsel is authorized to conduct all rule-making 
proceedings, except the issuance of final rules, under the Act of March 
19, 1918, ch. 24, as amended (15 U.S.C. 261-264); the Uniform Time Act 
of 1966 (80 Stat. 107, 15 U.S.C. 260-267); and section 6(e)(5) of the 
Department of Transportation Act (80 Stat. 939, 49 U.S.C. 1655 (e)(5)).
    (2) The General Counsel is authorized to determine the 
practicability of applying the standard time of any standard time zone 
to the movements of any common carrier engaged in interstate or foreign 
commerce, and, under section 2 of the Act of March 19, 1918, ch. 24, as 
amended (15 U.S.C. 262), to issue operating exceptions in any case in 
which he determines that it is impractical to apply the standard time.

[Amdt. 5-1, 32 FR 11473, Aug. 9, 1967]



PART 6--IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS--Table of Contents




                      Subpart A--General Provisions

Sec.
6.1  Purpose of these rules.
6.3  Applicability.
6.5  Proceedings covered.
6.7  Eligibility of applications.
6.9  Standards for awards.
6.11  Allowable fees and expenses.
6.13  Delegations of authority.

             Subpart B--Information Required from Applicants

6.17  Contents of application.
6.19  Net worth exhibit.
6.21  Documentation of fees and expenses.

           Subpart C--Procedures for Considering Applications

6.23  Filing and service of documents.
6.25  Answer to application.
6.27  Comments by other parties.
6.29  Settlement.
6.31  Further proceedings.
6.33  Decision.
6.35  Agency review.
6.37  Judicial review.
6.39  Payment of award.

    Authority: 5 U.S.C. 504; 28 U.S.C. 2412.

    Source: 48 FR 1070, Jan. 10, 1983, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 6.1  Purpose of these rules.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the Act'' in 
this part), provides for the award of attorney fees and other expenses 
to eligible individuals and entities who are parties to certain 
administrative proceedings (called ``adversary adjudications'') before 
government agencies, such as the Department of Transportation or any of 
its operating administrations. The rules in this part describe the 
parties eligible for awards and the proceedings that are covered. They 
also explain how to apply for awards, and the procedures and standards 
that this agency will use to make them. The use of the term 
``Department'', in this rule, will

[[Page 56]]

be understood to mean the Department of Transportation or any of its 
operating administrations, unless otherwise specified. The term ``agency 
counsel'' will be understood to mean counsel for the Department of 
Transportation or any of its operating administrations.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997]



Sec. 6.3  Applicability.

    Section 6.9(a) applies to any adversary adjudication pending before 
the Department on or after October 1, 1981. In addition, applicants for 
awards must also meet the standards of Sec. 6.9(b) for any adversary 
adjudication commenced on or after March 29, 1996.

[62 FR 19233, Apr. 21, 1997]



Sec. 6.5  Proceedings covered.

    (a) The Act applies to adversary adjudications conducted by the 
Department of Transportation. These are adjudications under 5 U.S.C. 554 
in which the position of the Department is represented by an attorney or 
other representative who enters an appearance and participates in the 
proceeding. Coverage of the Act begins at designation of a proceeding or 
issuance of a charge sheet. Any proceeding in which the Department may 
prescribe or establish a lawful present or future rate is not covered by 
the Act. Proceedings to grant or renew licenses are also excluded, but 
proceedings to modify, suspend, or revoke licenses are covered if they 
are otherwise ``adversary adjudications.'' For the Department of 
Transportation, the types of proceedings covered include, but may not be 
limited to: Coast Guard suspension or revocation of licenses, 
certificates or documents under 46 U.S.C. 7701 et seq.; Coast Guard 
class II civil penalty proceedings under the Clean Water Act, 33 U.S.C. 
1321(b)(6)(B)(ii); Coast Guard class II penalty proceedings under the 
Comprehensive Environmental Response, Compensation and Liability Act, 42 
U.S.C. 9609(b); suspension and revocation of Certificates of Registry 
proceedings for Great Lakes Pilots pursuant to 46 CFR Part 401; National 
Highway Traffic Safety Administration (NHTSA) automotive fuel economy 
enforcement under 49 U.S.C. Chapter 329 (49 CFR Part 511); Federal 
Highway Administration (FHWA) enforcement of motor carrier safety 
regulations under 49 U.S.C. 521 and 5123 (49 CFR 386); the Department's 
aviation economic enforcement proceedings conducted by its Office of 
Aviation Enforcement and Proceedings pursuant to 49 U.S.C. Subtitle VII, 
14 CFR Chapter II. Also covered are any appeal of a decision made 
pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 
605) before an agency board of contract appeals as provided in section 8 
of that Act (41 U.S.C. 607), any hearing conducted under Chapter 38 of 
title 31, and the Religious Freedom Restoration Act of 1993, 42 U.S.C. 
2000bb et seq.
    (b) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997]



Sec. 6.7  Eligibility of applications.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party to an adversary 
adjudication for which it seeks an award. The term ``party'' is defined 
in 5 U.S.C. 504(b)(1)(B). The applicant must show that it meets all 
conditions of eligibility set out in this subpart and in paragraph (b) 
of this section.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $2 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $7 million, including both personal and business 
interests, and not more than 500 employees.
    (3) A charitable or other tax-exempt organization as described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with a net worth of not 
more than $5 million and not more than 500 employees.
    (5) Any other partnership, corporation, association, or public or 
private

[[Page 57]]

organization with a net worth of not more than $7 million and not more 
than 500 employees.
    (6) For the purposes of Sec. 6.9(b), eligible applicants include 
small entities as defined in 5 U.S.C. 601.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
proceeding was designated.
    (d) An applicant who owns an unincorporated business will be 
considered an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The number of employees of an applicant includes all persons who 
regularly perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
part, unless the administrative law judge determines that such treatment 
would be unjust and contrary to the purposes of the Act in light of the 
actual relationship between the affiliated entities. In addition, the 
administrative law judge may determine that financial relationships of 
the applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.
    (g) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.
    (h) An applicant who appears pro se in a proceeding is ineligible 
for award of attorney fees. However, eligibility for other expenses is 
not affected by pro se representation.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]



Sec. 6.9  Standards for awards.

    (a) An eligible applicant may receive an award for fees and expenses 
incurred by that party in connection with a decision in favor of the 
applicant in a proceeding covered by this Part, unless the position of 
the Department over which the applicant has prevailed was substantially 
justified or special circumstances make the award sought unjust. The 
burden of proof that an award should not be made to an eligible 
applicant is on the Department where it has initiated the proceeding. No 
presumption arises that the Department's position was not substantially 
justified simply because the Department did not prevail. Whether or not 
the position of the Department was substantially justified shall be 
determined on the basis of the administrative record, as a whole, in the 
adversary adjudication for which fees and other expenses are sought. The 
``position of the Department'' means, in addition to the position taken 
by the agency in the adversary adjudication, the action or failure to 
act by the Department upon which the adversary adjudication may be 
based.
    (b) In the context of a Departmental proceeding to enforce a party's 
compliance with a statutory or regulatory requirement, if the demand by 
the Department is substantially in excess of the amount awarded to the 
government pursuant to the decision of the adjudicative officer and is 
unreasonable when compared with such decision, under the facts and 
circumstances of the case, the adjudicative officer shall award to an 
eligible applicant party the fees and expenses related to defending 
against the excessive demand, unless the applicant party has committed a 
willful violation of law or otherwise acted in bad faith, or special 
circumstances make an award unjust. Fees and expenses awarded under this 
paragraph shall be paid only as a consequence of appropriations provided 
in advance. As used in this section, ``demand'' means the express demand 
of

[[Page 58]]

the Department which led to the adversary adjudication, but does not 
include a recitation by the Department of the maximum statutory penalty
    (i) In the administrative complaint, or
    (ii) Elsewhere when accompanied by an express demand for a lesser 
amount.
    (c) The decision of the Department on the application for fees and 
other expenses shall be the final administrative decision under this 
section.
    (d) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding.

[62 FR 19234, Apr. 21, 1997]



Sec. 6.11  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents or expert 
witnesses.
    (b) No award for the fee of an attorney or agent under these rules 
may exceed $125.00 per hour. This amount shall include all other 
expenses incurred by the attorney or agent in connection with the case. 
No award to compensate an expert witness may exceed the highest market 
rate at which the Department pays expert witnesses, or $24.09 per hour, 
whichever is less.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the administrative law judge shall 
consider the following:
    (1) If the attorney, agent or witness is in private practice, his or 
her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent or witness ordinarily performs services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the service does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of the applicant's case.
    (e) Fees may be awarded only for work performed after designation of 
a proceeding.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]



Sec. 6.13  Delegations of authority.

    The Secretary of Transportation delegates to the head of each 
operating administration of this Department the authority to take final 
action, other than rulemaking, on matters pertaining to the Act in 
actions that require section 554 proceedings. The head of each operating 
administration may redelegate this authority.



             Subpart B--Information Required from Applicants



Sec. 6.17  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of an agency or agencies in the proceeding that 
the applicant alleges was not substantially justified. Unless the 
applicant is an individual, the application shall also state that it did 
not have more than 500 employees at the time the proceeding was 
initiated, giving the number of employees of the applicant and 
describing briefly the type and purpose of its organization or business.
    (b) The application shall also include a statement that the 
applicant's net worth does not exceed $1 million (if an individual) or 
$5 million (for all other applicants, including their affiliates). 
However, an applicant may omit this statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or

[[Page 59]]

    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114j(a)).
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application may also include any other matters that the 
applicant wishes this agency to consider in determining whether and in 
what amount an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or under penalty 
of perjury that the information provided in the application is true and 
correct.
    (f) If the applicant is a partnership, corporation, association, or 
organization, or a sole owner of an unincorporated business, the 
application shall state that it did not have more than 500 employees at 
the time the proceeding was initiated, giving the number of its 
employees and describing briefly the type and purpose of its 
organization or business.



Sec. 6.19  Net worth exhibit.

    (a) Each applicant except a qualified tax-exempt organization or 
cooperative association must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in this part) when the proceeding was designated. If any 
individual, corporation, or other entity directly or indirectly controls 
or owns a majority of the voting shares or other interest of the 
applicant, or if the applicant directly or indirectly owns or controls a 
majority of the voting shares or other interest of any corporation or 
other entity, the exhibit must include a showing of the net worth of all 
such affiliates or of the applicant including the affiliates. The 
exhibit may be in any form convenient to the applicant that provides 
full disclosure of the applicant's and its affiliates' assets and 
liabilities and is sufficient to determine whether the applicant 
qualifies under the standards in this subpart. The administrative law 
judge may require an applicant to file additional information to 
determine its eligibility for an award.
    (b) The net worth exhibit shall describe any transfers of assets 
from, or obligations incurred by, the applicant or any affiliate, 
occurring in the one-year period prior to the date on which the 
proceeding was initiated, that reduced the net worth of the applicant 
and its affiliates below the applicable net worth ceiling. If there were 
no such transactions, the applicant shall so state.
    (c) The net worth exhibit shall be included in the public record of 
the proceeding.



Sec. 6.21  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
the fees and expenses, including the cost of any study, analysis, 
engineering report, test, project or similar matter, for which an award 
is sought.
    (b) The documentation shall include an affidavit from any attorney, 
agent, or expert witness representing or appearing in behalf of the 
party, stating the actual time expended and the rate at which fees and 
other expenses were computed and describing the specific services 
performed.
    (1) The affidavit shall state the services performed. In order to 
establish the hourly rate, the affidavit shall state the hourly rate 
which is billed and paid by the majority of clients during the relevant 
time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide information about 
two attorneys or agents with similar experience, who perform similar 
work, stating their hourly rate.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The administrative law judge may require the applicant to 
provide vouchers, receipts, or other substantiation for any expenses 
claimed.

[[Page 60]]

    (e) The administrative law judge may, within his or her discretion, 
make a determination as to whether a study, conducted by the applicant, 
was necessary to the preparation of the applicant's case.



           Subpart C--Procedures for Considering Applications



Sec. 6.23  Filing and service of documents.

    Any application for an award or other pleading or document related 
to an application shall be filed and served on all parties to the 
proceeding in the same manner as other pleadings in the proceeding.



Sec. 6.25  Answer to application.

    (a) Within 30 calendar days after service of an application, the 
agency counsel may file an answer to the application. Unless the agency 
counsel requests an extension of time for filing or files a statement of 
intent to negotiate under paragraph (b) of this section, failure to file 
an answer within the 30-day period may be treated as a consent to the 
award request.
    (b) If agency counsel and applicant believe that they can reach a 
settlement concerning the award, the agency counsel may file a statement 
of intent to negotiate. The filing of such a statement shall extend the 
time for filing an answer an additional 30 days.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the 
Department's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, the Department shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec. 6.3.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]



Sec. 6.27  Comments by other parties.

    Any party to a proceeding, other than the applicant and the 
Department may file comments on an application within 30 days after it 
is served or on an answer within 15 days after it is served. A 
commenting party may not participate further in proceedings on the 
application.



Sec. 6.29  Settlement.

    The applicant and agency counsel may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying proceeding, or after the 
underlying proceeding has been concluded, in accordance with the 
agency's standard settlement procedure. If a prevailing party and the 
agency counsel agree on a proposed settlement of an award before an 
application has been filed the application shall be filed with the 
proposed settlement.



Sec. 6.31  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the applicant 
or agency counsel, or on his or her own initiative, the administrative 
law judge may order further proceedings, such as an informal conference, 
oral argument, additional written submissions or an evidentiary hearing.

Such further proceedings shall be held only when necessary for full and 
fair resolution of the issues arising from the application, and shall be 
conducted as promptly as possible.
    (b) A request that the administrative law judge order further 
proceedings under this section shall specifically identify the 
information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.



Sec. 6.33  Decision.

    The administrative law judge shall issue an initial decision on the 
application as soon as possible after completion of proceedings on the 
application. The decision shall also include, if at issue, findings on 
whether the Department's position was substantially justified, whether 
the applicant unduly protracted the proceedings, or whether special 
circumstances make an award unjust. If the applicant has sought an award 
against more than one agency, the decision shall allocate responsibility 
for payment or any award made among the agencies, and shall explain the 
reasons for the allocation made.

[[Page 61]]



Sec. 6.35  Agency review.

    Where Department review of the underlying decision is permitted, 
either the applicant or agency counsel, may seek review of the initial 
decision on the fee application, or the Department may decide to review 
the decision on its own initiative. If neither the applicant nor the 
agency counsel seeks review within 30 days after the decision is issued, 
it shall become final.



Sec. 6.37  Judicial review.

    Judicial review of final agency decisions on awards may be sought as 
provided in 5 U.S.C. 504(c)(2).



Sec. 6.39  Payment of award.

    An applicant seeking payment of an award from the Department of 
Transportation or any of its operating administrations under this part 
shall submit a copy of the Department of Transportation's or any of its 
operating administration's final decisions granting the award, 
accompanied by a statement that the applicant will not seek review of 
the decision in the United States courts. The copy of the decision and 
the statement should be submitted to the head of the affected operating 
administration or the Secretary of Transportation, where the Department 
of Transportation, Office of the Secretary, has initiated the 
proceedings.



PART 7--PUBLIC AVAILABILITY OF INFORMATION--Table of Contents




                      Subpart A--General Provisions

Sec.
7.1  General.
7.2  Definitions.

        Subpart B--Information Required to be Made Public by DOT

7.3  Publication in the Federal Register.
7.4  Publication required.
7.5  Availability of opinions, orders, staff manuals, statements of 
          policy, and interpretations and indices.
7.6  Deletion of identifying detail.
7.7  Access to materials and indices.
7.8  Copies.
7.9  Protection of records.
7.10  Public records.

   Subpart C--Availability of Reasonably Described Records Under the 
                       Freedom of Information Act

7.11  Applicability.
7.12  Administration of subpart.
7.13  Records available.
7.14  Requests for records.
7.15  Contacts for records requested under the FOIA.
7.16  Requests for records of concern to more than one government 
          organization.
7.17  Consultation with submitters of commercial and financial 
          information.

 Subpart D--Procedures for Appealing Decisions Not to Disclose Records 
                            and/or Waive Fees

7.21  General.

                         Subpart E--Time Limits

7.31  Initial determinations.
7.32  Final determinations.
7.33  Extension.

                             Subpart F--Fees

7.41  General.
7.42  Payment of fees.
7.43  Fee schedule.
7.44  Services performed without charge or at a reduced charge.
7.45  Transcripts.
7.46  Alternative sources of information.


    Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 12600, 
3 CFR, 1987 Comp., p. 235.

    Source: Amdt. 1, 63 FR 38331, July 16, 1998, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 7.1  General.

    (a) This part implements 5 U.S.C. 552, and prescribes rules 
governing the availability to the public of DOT records. Many documents 
are made available to the public for inspection and copying through 
DOT's Primary Electronic Access Facility and public record unit 
locations that are discussed in subpart B of this part, which contains 
the DOT regulations concerning the availability to the public of 
opinions issued in the adjudication of cases, policy issuances, 
administrative manuals, and other information made available to the 
public, without need for a specific request.
    (b) Subpart C of this part describes the records that are not 
required to be

[[Page 62]]

disclosed on DOT's own action under this part, but that may be available 
upon request under FOIA.
    (c) Indices are maintained to reflect all records subject to subpart 
B of this part, and are available for public inspection and copying as 
provided in subpart B.



Sec. 7.2  Definitions.

    As used in this part--
    Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as 
amended.
    Administrator means the head of each DOT component of DOT and 
includes the Commandant of the Coast Guard, the Inspector General, and 
the Director of the Bureau of Transportation Statistics.
    Concurrence means that the approval of the person being consulted is 
required in order for the subject action to be taken.
    Consultation means that the approval of the person being consulted 
is not required in order for the subject action to be taken.
    Department or DOT means the Department of Transportation, including 
the Office of the Secretary of Transportation, the Office of the 
Inspector General, and the following DOT components, all of which may be 
referred to as DOT components. Means of contacting each of these DOT 
components appear in Sec. 7.15. This definition specially excludes the 
Surface Transportation Board, which has its own FOIA regulations (49 CFR 
Part 1001):
    (1) United States Coast Guard,
    (2) Federal Aviation Administration,
    (3) Federal Highway Administration,
    (4) Federal Railroad Administration,
    (5) National Highway Traffic Safety Administration,
    (6) Federal Transit Administration,
    (7) Saint Lawrence Seaway Development Corporation,
    (8) Maritime Administration,
    (9) Research and Special Programs Administration, and
    (10) Bureau of Transportation Statistics.
    Primary Electronic Access Facility means the electronic docket 
facility in the DOT Headquarters Building, 400 7th Street, S.W., 
Washington, D.C. 20590.
    Reading room records are those records required to be made available 
to the public under 5 U.S.C. 552(a)(2) as described in Sec. 7.5 of 
Subpart B of this part. These records are made available through DOT's 
Primary Electronic Access Facility. Other records may also be made 
available at DOT's discretion at DOT inspection facilities, including 
DOT's Primary Electronic Access Facility.
    Record includes any writing, drawing, map, recording, tape, film, 
photograph, or other documentary material by which information is 
preserved. The term also includes any such documentary material stored 
by computer.
    Responsible DOT official means the head of the DOT component 
concerned, or the General Counsel or the Inspector General, as the case 
may be, or the designee of any of them, authorized to take an action 
under this part.
    Secretary means the Secretary of Transportation or any person to 
whom the Secretary has delegated authority in the matter concerned.



        Subpart B--Information Required To Be Made Public by DOT



Sec. 7.3  Publication in the Federal Register.

    This section implements 5 U.S.C. 552(a)(1), and prescribes rules 
governing publication in the Federal Register of the following:
    (a) Descriptions of DOT's organization, including its DOT components 
and the established places at which, the officers from whom, and the 
methods by which, the public may secure information and make submittals 
or obtain decisions;
    (b) Statements of the general course and methods by which DOT's 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available;
    (c) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations;
    (d) Substantive rules of general applicability adopted as authorized 
by law and statements of general policy or

[[Page 63]]

interpretations of general applicability formulated and adopted by DOT; 
and
    (e) Each amendment, revision, or repeal of any material listed in 
paragraphs (a) through (d) of this section.



Sec. 7.4  Publication required.

    (a) General. The material described in Sec. 7.3 will be published in 
the Federal Register. For the purposes of this paragraph, material that 
will reasonably be available to the class of persons affected by it will 
be considered to be published in the Federal Register if it has been 
incorporated by reference with the approval of the Director of the 
Federal Register.
    (b) Effect of nonpublication. Except to the extent that he/she has 
actual and timely notice of the terms thereof, a person may not in any 
manner be required to resort to, or be adversely affected by, any 
procedure or matter required to be published in the Federal Register, 
but not so published.



Sec. 7.5  Availability of opinions, orders, staff manuals, statements of policy, and interpretations and indices.

    (a) This section implements 5 U.S.C. 552(a)(2). It prescribes the 
rules governing the availability for public inspection and copying of 
the following reading room materials:
    (1) Any final opinion (including a concurring or dissenting opinion) 
or order made in the adjudication of a case.
    (2) Any policy or interpretation that has been adopted under DOT 
authority, including any policy or interpretation concerning a 
particular factual situation, if that policy or interpretation can 
reasonably be expected to have precedential value in any case involving 
a member of the public in a similar situation.
    (3) Any administrative staff manual or instruction to staff that 
affects any member of the public, including the prescribing of any 
standard, procedure, or policy that, when implemented, requires or 
limits any action of any member of the public or prescribes the manner 
of performance of any activity by any member of the public. However, 
this does not include staff manuals or instructions to staff concerning 
internal operating rules, practices, guidelines, and procedures for DOT 
inspectors, investigators, law enforcement officers, examiners, 
auditors, and negotiators and other information developed predominantly 
for internal use, the release of which could significantly risk 
circumvention of agency regulations or statutes.
    (4) Copies of all records, regardless of form or format, that have 
been released to any person under subpart C of this part and which, 
because of the nature of their subject matter, a DOT component 
determines have become or are likely to become the subject of subsequent 
requests for substantially the same records.
    (5) A general index of the records listed in this paragraph.
    (b) Any material listed in paragraph (a) of this section that is not 
made available for public inspection and copying, or that is not indexed 
as required by Sec. 7.7, may not be cited, relied on, or used as 
precedent by DOT to affect any member of the public adversely unless the 
person to whose detriment it is relied on, used, or cited has had actual 
timely notice of the material.
    (c) This section does not apply to material that is published in the 
Federal Register or covered by subpart C of this part.



Sec. 7.6  Deletion of identifying detail.

    Whenever it is determined to be necessary to prevent a clearly 
unwarranted invasion of personal privacy, identifying details will be 
deleted from any record covered by this subpart that is published or 
made available for inspection. Whenever it is determined to be necessary 
to prevent the disclosure of information required or authorized to be 
withheld by another Federal statute, such information shall be deleted 
from any record covered by this subpart that is published or made 
available for inspection. A full explanation of the justification for 
the deletion will accompany the record published or made available for 
inspection.



Sec. 7.7  Access to materials and indices.

    (a) Except as provided in paragraph (b) of this section, material 
listed in Sec. 7.5 will be made available for inspection and copying to 
any member of the

[[Page 64]]

public at DOT document inspection facilities. It has been determined 
that it is unnecessary and impracticable to publish the index of 
materials in the Federal Register. Information as to the kinds of 
materials available at each facility may be obtained from the facility 
or the headquarters of the DOT component of which it is a part.
    (b) The material listed in Sec. 7.5 that is published and offered 
for sale will be indexed, but is not required to be kept available for 
public inspection. Whenever practicable, however, it will be made 
available for public inspection at the appropriate DOT reading room.
    (c) Each DOT component will also make the reading room records 
identified in section 7.5(a) that are created by DOT on or after 
November 1, 1996, available electronically. This includes indices of its 
reading room records as required by law after December 1, 1999.



Sec. 7.8  Copies

    Copies of any material covered by this subpart that is not published 
and offered for sale may be ordered, upon payment of the appropriate 
fee, from the Docket Offices listed in Sec. 7.10. Copies will be 
certified upon request and payment of the fee prescribed in 
Sec. 7.43(f).



Sec. 7.9  Protection of records.

    (a) Records made available for inspection and copying may not be 
removed, altered, destroyed, or mutilated.
    (b) 18 U.S.C. 641 provides for criminal penalties for embezzlement 
or theft of government records.
    (c) 18 U.S.C. 2071 provides for criminal penalties for the willful 
and unlawful concealment, mutilation or destruction of, or the attempt 
to conceal, mutilate, or destroy, government records.



Sec. 7.10  Public Records.

    Publicly available records are located in DOT's Primary Electronic 
Access Facility at 400 7th Street, S.W., Washington, D.C. 20590.
    (a) The Primary Electronic Access Facility maintains materials for 
the Office of the Secretary, including former Civil Aeronautics Board 
material, and materials for the DOT components. This facility is located 
at Plaza Level 401, and the hours of operation are 10:00-17:00.
    (b) Certain DOT components also maintain public record units at 
regional offices and at the offices of the Commandant and District 
Commanders of the United States Coast Guard. These facilities are open 
to the public Monday through Friday except Federal holidays, during 
regular working hours. The Saint Lawrence Seaway Development Corporation 
has facilities at 180 Andrews Street, Massena, New York 13662-0520.
    (c) Operating Administrations may have separate facilities for 
manual records. Additional information on the location and hours of 
operations for Docket Offices and inspection facilities can be obtained 
through DOT's Primary Electronic Access Facility, at (202) 366-9322.



   Subpart C--Availability of Reasonably Described Records Under the 
                       Freedom of Information Act



Sec. 7.11  Applicability.

    (a) This subpart implements 5 U.S.C 552(a)(3), and prescribes the 
regulations governing public inspection and copying of reasonably 
described records under FOIA.
    (b) This subpart does not apply to:
    (1) Records published in the Federal Register, opinions in the 
adjudication of cases, statements of policy and interpretations, and 
administrative staff manuals that have been published or made available 
under subpart B of this part.
    (2) Records or information compiled for law enforcement purposes and 
covered by the disclosure exemption described in Sec. 7.13(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.

[[Page 65]]

    (3) Informant records maintained by a criminal law enforcement 
component of DOT 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. 7.12  Administration of subpart.

    Authority to administer this subpart and to issue determinations 
with respect to initial requests is delegated as follows:
    (a) To the General Counsel for the records of the Office of the 
Secretary other than the Office of Inspector General.
    (b) To the Inspector General for records of the Office of Inspector 
General.
    (c) To the Administrator of each DOT component, who may redelegate 
to officers of that administration the authority to administer this part 
in connection with defined groups of records. However, each 
Administrator may redelegate the duties under subpart D of this part to 
consider appeals of initial denials of requests for records only to his 
or her deputy or to not more than one other officer who reports directly 
to the Administrator and who is located at the headquarters of that DOT 
component.



Sec. 7.13  Records available.

    (a) Policy. It is DOT policy to make its records available to the 
public to the greatest extent possible, in keeping with the spirit of 
FOIA. This includes providing reasonably segregable information from 
documents that contain information that may be withheld.
    (b) Statutory disclosure requirement. FOIA requires that DOT, on a 
request from a member of the public submitted in accordance with this 
subpart, 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 
Executive Order to be kept secret in the interest of national defense or 
foreign policy, and
    (ii) 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 mandatory disclosure by statute 
(other than the Privacy Act or the Government in the Sunshine Act), 
provided that such statute--
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave not any discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
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 that 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, Tribal, or foreign agency 
or authority or any private institution that 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

[[Page 66]]

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) Deleted information. The amount of information deleted from 
frequently-requested electronic records that are available in a public 
reading room will be indicated on the released portion of the record, 
unless doing so would harm an interest protected by the exemption 
concerned. If technically feasible, the amount of information deleted 
will be indicated at the place in the record where the deletion is made.



Sec. 7.14  Requests for records.

    (a) Each person desiring access to or a copy of a record covered by 
this subpart shall comply with the following provisions:
    (1) A written request must be made for the record.
    (2) Such request should indicate that it is being made under FOIA.
    (3) The envelope in which a mailed request is sent should be 
prominently marked: ``FOIA.''
    (4) The request should be addressed to the appropriate office as set 
forth in Sec. 7.15.
    (5) The request should state the format (e.g., paper, microfiche, 
computer diskette, etc.) in which the information is sought, if the 
requestor has a preference.
    (b) If the requirements of paragraph (a) of this section are not 
met, treatment of the request will be at the discretion of the agency. 
The twenty-day limit for responding to requests, described in Sec. 7.31, 
will not start to run until the request has been identified, or would 
have been identified with the exercise of due diligence, by an employee 
of DOT as a request pursuant to FOIA and has been received by the office 
to which it should have been originally sent.
    (c) Form of requests. (1) Each request should describe the 
particular record to the fullest extent possible. The request should 
describe the subject matter of the record, and, if known, indicate the 
date when it was made, the place where it was made, and the person or 
office that made it. If the description does not enable the office 
handling the request to identify or locate the record sought, that 
office will notify the requestor and, to the extent possible, indicate 
the additional data required.
    (2) Each request shall--
    (i) Specify the fee category (commercial use, news media, 
educational institution, noncommercial scientific institution, or other) 
in which the requestor claims the request to fall and the basis of this 
claim (see subpart F of this part for fees and fee waiver requirements),
    (ii) State the maximum amount of fees that the requestor is willing 
to pay or include a request for a fee waiver, and
    (iii) A request seeking a fee waiver shall, to the extent possible, 
address why the requestor believes that the criteria for fee waivers set 
out in Sec. 7.44(f) are met.
    (3) Requesters are advised that the time for responding to requests 
set forth in subpart E will not begin to run--
    (i) If a requestor has not sufficiently identified the fee category 
applicable to the request,
    (ii) If a requestor has not stated a willingness to pay fees as high 
as anticipated by DOT,
    (iii) If a fee waiver request is denied and the requestor has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by DOT, or
    (iv) If a fee waiver request does not address fee waiver criteria.
    (d) 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 
manual files, preparing a new

[[Page 67]]

computer program, or calculating proportions, percentages, frequency 
distributions, trends, or comparisons. In those instances where DOT 
determines that creating a new record will be less burdensome than 
disclosing large volumes of unassembled material, DOT may, in its 
discretion, agree to creation of a new record as an alternative to 
disclosing existing records. Records will be provided in the form or 
format sought by the requestor if the record is readily reproducible in 
the requested format.
    (e) Search for records. (1) Each record made available under this 
subpart will be made available for inspection and copying during regular 
business hours at the place where it is located, or photocopying may be 
arranged with the copied materials being mailed to the requestor upon 
payment of the appropriate fee. Original records ordinarily will be 
copied except in this instance where, in DOT's judgment, copying would 
endanger the quality of the original or raise the reasonable possibility 
of irreparable harm to the record. In these instances, copying of the 
original would not be in the public interest. In any event, original 
records will not be released from DOT custody. Original records, 
regardless of format, may be returned to agency service upon provision 
of a copy of the record to the requestor, or, in the case of a denial, 
upon creation and retention of a copy of the original for purposes of 
FOIA processing.
    (2) DOT will make a reasonable effort to search for requested 
records in electronic form or format, unless doing so would 
significantly interfere with operation of the affected automated 
information system.
    (f) If a requested record is known not to exist in the files of the 
agency, or to have been destroyed or otherwise disposed of, the 
requestor will be so notified.
    (g) Fees will be determined in accordance with subpart F of this 
part.
    (h) Notwithstanding paragraphs (a) through (g) of this section, 
informational material, such as news releases, pamphlets, and other 
materials of that nature that are ordinarily made available to the 
public as a part of any information program of the Government will be 
available upon oral or written request. A fee will be not be charged for 
individual copies of that material so long as the material is in supply. 
In addition DOT will continue to respond, without charge, to routine 
oral or written inquiries that do not involve the furnishing of records.



Sec. 7.15  Contacts for records requested under the FOIA.

    Each person desiring a record under this subpart should submit a 
request in writing (via paper, facsimile, or electronic mail) to the DOT 
component where the records are located:
    (a) FOIA Offices at 400 7th Street, S.W., Washington, DC 20590:
    (1) Office of the Secretary of Transportation, Room 5432.
    (2) Federal Highway Administration, Room 4428.
    (3) National Highway Traffic Safety Administration, Room 5221.
    (4) Federal Transit Administration, Room 9400.
    (5) Maritime Administration, Room 7221.
    (6) Research and Special Programs Administration, Room 8419.
    (7) Bureau of Transportation Statistics, Room 3430.
    (8) Office of Inspector General, Room 9210.
    (b) Federal Aviation Administration, 800 Independence Avenue, S.W., 
Room 906A, Washington, DC 20591.
    (c) United States Coast Guard, 2100 2nd Street, S.W., Room 6106, 
Washington, DC 20593-0001.
    (d) Director, Office of Finance, Saint Lawrence Seaway Development 
Corporation, 180 Andrews Street, P.O. Box 520, Massena, New York 13662-
0520.
    (e) Federal Railroad Administration, 1120 Vermont Avenue NW, 7th 
Floor, Washington, DC. (Mailing address: 400 Seventh St., SW, 
Washington, DC 20590.)
    (f) Certain DOT components also maintain FOIA contacts at regional 
offices and at the offices of the Commandant and District Commanders of 
the United States Coast Guard. Additional information on the location of 
these offices can be obtained through the FOIA contact offices listed in 
this section.

[[Page 68]]

    (g) If the person making the request does not know where in DOT the 
record is located, he or she may make an inquiry to the Chief, FOIA 
Division, Office of the General Counsel (voice: 202.366.4542; facsimile: 
202.366.8536).
    (h) Requests for records under this part, and Freedom of Information 
Act inquiries generally, may be made by accessing the DOT Home Page on 
the Internet (www.dot.gov) and clicking on the Freedom of Information 
Act link (www.dot.gov/foia).



Sec. 7.16  Requests for records of concern to more than one government organization.

    (a) If the release of a record covered by this subpart would be of 
concern to both DOT and another Federal agency, the determination as to 
release will be made by DOT only after consultation with the other 
interested agency.
    (b) If the release of the record covered by this subpart would be of 
concern to both DOT and a State, local, or Tribal government, a 
territory or possession of the United States, or a foreign government, 
the determination as to release will be made by DOT only after 
consultation with the interested government.
    (c) Alternatively, DOT may refer the request (or relevant portion 
thereof) for decision by a Federal agency that originated or is 
substantially concerned with the records, but only if that agency is 
subject to FOIA. Such referrals will be made expeditiously and the 
requestor notified in writing that a referral has been made.



Sec. 7.17  Consultation with submitters of commercial and financial information.

    (a) If a request is received for information that has been 
designated by the submitter as confidential commercial information, or 
which DOT has some other reason to believe may contain information of 
the type described in Sec. 7.13(c)(4), the submitter of such information 
will, except as is provided in paragraphs (c) and (d) of this section, 
be notified expeditiously and asked to submit any written objections to 
release. At the same time, the requestor will be notified that notice 
and an opportunity to comment are being provided to the submitter. The 
submitter will, to the extent permitted by law, be afforded a reasonable 
period of time within which to provide a detailed statement of any such 
objections. The submitter's statement shall specify all grounds for 
withholding any of the information. The burden shall be on the submitter 
to identify all information for which exempt treatment is sought and to 
persuade the agency that the information should not be disclosed.
    (b) The responsible DOT component will, to the extent permitted by 
law, consider carefully a submitter's objections and specific grounds 
for nondisclosure prior to determining whether to disclose business 
information. Whenever a decision is made to disclose such information 
over the objection of a submitter, the office responsible for the 
decision will forward to the submitter a written notice of intent to 
disclose that will, to the extent permitted by law, be forwarded to the 
submitter a reasonable number of days prior to the specified date upon 
which disclosure is intended. At the same time the submitter is 
notified, the requestor will be notified of the decision to disclose 
information. The written notice will include:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not accepted;
    (2) A description of the business information to be disclosed; and
    (3) A specific disclosure date.
    (c) The notice requirements of this section will not apply if:
    (1) The office responsible for the decision determines that the 
information should not be disclosed;
    (2) The information lawfully has been published or otherwise made 
available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).
    (d) The procedures established in this section will not apply in the 
case of:
    (1) Business information submitted to the National Highway Traffic 
Safety Administration and addressed in 49 CFR Part 512.
    (2) Information contained in a document to be filed or in oral 
testimony that is sought to be withheld pursuant to Rule 39 of the Rules 
of Practice in

[[Page 69]]

Aviation Economic Proceedings (14 CFR 302.39).
    (e) Whenever a requestor brings suit seeking to compel disclosure of 
confidential commercial information, the responsible DOT component will 
promptly notify the submitter.



 Subpart D--Procedures for Appealing Decisions Not to Disclose Records 
                            and/or Waive Fees



Sec. 7.21  General.

    (a) Each officer or employee of DOT who, upon a request by a member 
of the public for a record under this part, makes a determination that 
the record is not to be disclosed, either because it is subject to an 
exemption or not in DOT's custody and control, will give a written 
statement of the reasons for that determination to the person making the 
request; and indicate the names and titles or positions of each person 
responsible for the initial determination not to comply with such 
request, and the availability of an appeal within DOT. The denial letter 
will include 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. Records disclosed in part will be marked or 
annotated to show both the amount and the location of the information 
deleted whenever practicable.
    (b) When a request for a waiver of fees pursuant to Sec. 7.44 has 
been denied in whole or in part, the requestor may appeal the denial.
    (c) Any person to whom a record has not been made available within 
the time limits established by Sec. 7.31 and any person who has been 
given a determination pursuant to paragraph (a) of this section that a 
record will not be disclosed may appeal to the responsible DOT official. 
Any person who has not received an initial determination on his or her 
request within the time limits established by Sec. 7.31 can seek 
immediate judicial review, which may be sought without the need first to 
submit an administrative appeal. Judicial review may be sought in the 
United States District Court for the judicial district in which the 
requestor resides or has his or her principal place of business, the 
judicial district in which the records are located, or in the District 
of Columbia. A determination that a record will not be disclosed and/or 
that a request for a fee waiver or reduction will not be granted does 
not constitute final agency action for the purposes of judicial review 
unless:
    (1) It was made by the responsible DOT official; or
    (2) The applicable time limit has passed without a determination on 
the initial request or the appeal, as the case may be, having been made.
    (d) Each appeal must be made in writing within thirty days from the 
date of receipt of the original denial and should include the DOT file 
or reference number assigned to the request and all information and 
arguments relied upon by the person making the request. (Appeals may be 
submitted via facsimile and conventional mail, but not via electronic 
mail.) Such letter should indicate that it is an appeal from a denial of 
a request made under FOIA. The envelope in which a mailed appeal is sent 
should be prominently marked: ``FOIA Appeal.'' If these requirements are 
not met, the twenty-day limit described in Sec. 7.32 will not begin to 
run until the appeal has been identified, or would have been identified 
with the exercise of due diligence, by a DOT employee as an appeal under 
FOIA, and has been received by the appropriate office.
    (e) Whenever the responsible DOT official determines it necessary, 
he/she may require the requestor to furnish additional information, or 
proof of factual allegations, and may order other proceedings 
appropriate in the circumstances; in any case in which a request or 
order is made, DOT's time for responding ceases to count while the 
requestor responds to the request or order. The decision of the 
responsible DOT official as to the availability of the record or the 
appropriateness of a fee waiver or reduction constitutes final agency 
action for the purpose of judicial review.

[[Page 70]]

    (f) The decision of the responsible DOT official not to disclose a 
record under this part or not to grant a request for a fee waiver or 
reduction is considered to be a denial by the Secretary for the purpose 
of 5 U.S.C. 552(a)(4)(B).
    (g) Any final determination by the head of an DOT component not to 
disclose a record under this part, or not to grant a request for a fee 
waiver or reduction, is subject to concurrence by a representative of 
the General Counsel.
    (h) Upon a determination that an appeal will be denied, the 
requestor will be informed in writing of the reasons for the denial of 
the request and the names and titles or positions of each person 
responsible for the determination, and that judicial review of the 
determination is available in the United States District Court for the 
judicial district in which the requestor resides or has his or her 
principal place of business, the judicial district in which the 
requested records are located, or the District of Columbia.



                         Subpart E--Time Limits



Sec. 7.31  Initial determinations.

    An initial determination whether to release a record requested 
pursuant to subpart C of this part will be made within twenty Federal 
working days after the request is received by the appropriate office in 
accordance with Sec. 7.14, except that this time limit may be extended 
by up to ten Federal working days in accordance with Sec. 7.33. The 
person making the request will be notified immediately of such 
determination. If the determination is to grant the request, the desired 
record will be made available as promptly as possible. If the 
determination is to deny the request, the person making the request will 
be notified in writing, at the same time he or she is notified of such 
determination, of the reason for the determination, the right of such 
person to appeal the determination, and the name and title of each 
person responsible for the initial determination to deny the request.
    (a) In general. Components ordinarily will respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) A component may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request, or on the number of pages involved.
    (2) A component using multitrack processing may provide requesters 
in its slower track(s) with an opportunity to limit the scope of their 
requests in order to qualify for faster processing within the specified 
limits of the component's faster track(s). A component doing so will 
contact the requestor either by telephone, letter, facsimile, or 
electronic mail, whichever is most efficient in each case.
    (c) Expedited processing. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever a compelling need is 
demonstrated and it is determined that the compelling need involves:
    (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;
    (ii) Requests made by a person primarily engaged in disseminating 
information, with an urgency to inform the public of actual or alleged 
Federal Government activity.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing must be received by 
the proper component. Requests must be submitted to the component that 
maintains the records requested.
    (3) A requestor 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. For example, a requestor within the category in 
paragraph (c)(1)(ii) of this section, if not a full-time member of the 
news media, must establish that he or she is a person whose main 
professional activity or occupation is information dissemination, though 
it need not be his or her sole occupation. A requestor within the 
category in paragraph

[[Page 71]]

(c)(1)(ii) of this section also must establish a particular urgency to 
inform the public about the government activity involved in the request, 
beyond the public's right to know about government activity generally. 
The formality of certification may be waived as a matter of discretion.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the proper component will decide whether to grant it and 
will notify the requestor of the decision. If a request for expedited 
treatment is granted, the request will be given priority and will be 
processed as soon as practicable. If a request for expedited processing 
is denied, any appeal of that decision will be acted on expeditiously.



Sec. 7.32  Final determinations.

    (a) A determination with respect to any appeal made pursuant to 
Sec. 7.21 will be made within twenty Federal working days after receipt 
of such appeal except that this time limit may be extended by up to ten 
Federal working days in accordance with Sec. 7.33. The person making the 
request will be notified immediately of such determination pursuant to 
Sec. 7.21.
    (b) In general. Components ordinarily will respond to appeals 
according to their order of receipt.
    (c) Multitrack processing. (1) A component may use two or more 
processing tracks by distinguishing between simple and more complex 
appeals based on the amount of work and/or time needed to process the 
appeal, or on the number of pages involved.
    (2) A component using multitrack processing may provide persons 
making appeals in its slower track(s) with an opportunity to limit the 
scope of their appeals in order to qualify for faster processing within 
the specified limits of the component's faster track(s). A component 
doing so will contact the person making the appeal either by telephone, 
letter, facsimile, or electronic mail, whichever is most efficient in 
each case.
    (d) Expedited processing. (1) An appeal will be taken out of order 
and given expedited treatment whenever a compelling need is demonstrated 
and it is determined that the compelling need involves:
    (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;
    (ii) A request made by a person primarily engaged in disseminating 
information, with an urgency to inform the public of actual or alleged 
Federal Government activity.
    (2) A request for expedited processing may be made at the time of 
the appeal or at any later time. For a prompt determination, a request 
for expedited processing must be received by the proper component, which 
is the component that is processing the appeal for the records 
requested.
    (3) A requestor 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. For example, a requestor within the category in 
Sec. 7.31(c)(1)(ii), if not a full-time member of the news media, must 
establish that he or she is a person whose main professional activity or 
occupation is information dissemination, though it need not be his or 
her sole occupation. A requestor within the category in 
Sec. 7.31(c)(1)(ii) also must establish a particular urgency to inform 
the public about the government activity involved in the request, beyond 
the public's right to know about government activity generally. The 
formality of certification may be waived as a matter of discretion. A 
person who was granted expedited processing under Sec. 7.31 need merely 
certify that the same circumstances apply.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the proper component will decide whether to grant it and 
will notify the requestor of the decision. If a request for expedited 
treatment is granted, the appeal will be given priority and will be 
processed as soon as practicable. If a request for expedited processing 
of an appeal is denied, no further administrative recourse is available.



Sec. 7.33  Extension.

    (a) In unusual circumstances as specified in this section, the time 
limits

[[Page 72]]

prescribed in Sec. 7.31 and Sec. 7.32 may be extended by written notice 
to the person making the request setting forth the reasons for such 
extension and the date on which a determination is expected to be 
dispatched. Such notice may not specify a date that would result in a 
cumulative extension of more than 10 Federal working days without 
providing the requestor an opportunity to modify the request as noted in 
this section. As used in this paragraph, ``unusual circumstances'' 
means, but only to the extent reasonably necessary to the proper 
processing of the particular request:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request.
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are demanded in 
a single request; or
    (3) The need for consultation, which will be conducted with all 
practicable speed, with any other agency or DOT component having a 
substantial interest in the determination of the request or among two or 
more components of the agency having substantial subject-matter interest 
therein.
    (b) Where the extension is for more than 10 working days, the DOT 
component will provide the requestor with an opportunity either to 
modify the request so that it may be processed within the time limits or 
to arrange an alternative time period with the component for processing 
the request or a modified request.
    (c) Where a component reasonably believes that multiple requests 
submitted by a requestor, or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances, and the requests involve clearly related matters, they 
may be aggregated for the purposes of fees and processing activities. 
Multiple requests involving unrelated matters will not be aggregated.



                             Subpart F--Fees



Sec. 7.41  General.

    (a) This subpart prescribes fees for services performed for the 
public under subparts B and C of this part by DOT.
    (b) All terms defined by FOIA apply to this subpart, and the term 
``hourly rate'' means the actual hourly base pay for a civilian employee 
or, for members of the Coast Guard, the equivalent hourly pay rate 
computed using a 40-hour week and the member's normal basic pay and 
allowances.
    (c) This subpart applies to all employees of DOT, including those of 
non-appropriated fund activities of the Coast Guard and the Maritime 
Administration.
    (d) This subpart does not apply to any special study, special 
statistical compilation, table, or other record requested under 49 
U.S.C. 329(c). The fee for the performance of such a service is the 
actual cost of the work involved in compiling the record. All such fees 
received by DOT in payment of the cost of such work are deposited in a 
separate account administered under the direction of the Secretary, and 
may be used for the ordinary expenses incidental to providing the 
information.
    (e) This subpart does not apply to requests from record subjects for 
records about themselves in DOT systems of records, which are determined 
in accordance with the Privacy Act, as implemented by DOT regulations 
(49 CFR part 10).



Sec. 7.42  Payment of fees.

    (a) The fees prescribed in this subpart may be paid by check, draft, 
or money order, payable to the DOT component where fees were incurred, 
for deposit in the General Fund of the Treasury of the United States, 
e.g. DOT/FAA.
    (b) Charges may be assessed by DOT for time spent searching for 
requested records even if the search fails to locate records or the 
records located are determined to be exempt from disclosure. In 
addition, if records are requested for commercial use, DOT may assess a 
fee for time spent reviewing

[[Page 73]]

any responsive records located to determine whether they are exempt from 
disclosure.
    (c) When it is estimated that the search charges, review charges, 
duplication fees, or any combination of fees that could be charged to 
the requestor will likely exceed US $25, the requestor will be notified 
of the estimated amount of the fees, unless the requestor has indicated 
in advance his or her willingness to pay fees as high as those 
anticipated. In cases where a requestor has been notified that actual or 
estimated fees may amount to more than US $25, the request will be 
deemed not to have been received until the requestor has agreed to pay 
the anticipated total fee. The notice will also inform the requestor how 
to consult with the appropriate DOT officials with the object of 
reformulating the request to meet his or her needs at a lower cost.
    (d) Payment of fees may be required prior to actual duplication or 
delivery of any releasable records to a requestor. However, advance 
payment, i.e., before work is commenced or continued on a request, may 
not be required unless:
    (1) Allowable charges that a requestor may be required to pay are 
likely to exceed US $250; or
    (2) The requestor has failed to pay within 30 days of the billing 
date fees charged for a previous request to any part of DOT.
    (e) When paragraph (d)(1) of this section applies, the requestor 
will be notified of the likely cost and, where he/she has a history of 
prompt payment of FOIA fees, requested to furnish satisfactory assurance 
of full payment of FOIA fees. Where the requestor does not have any 
history of payment, he or she may be required to make advance payment of 
any amount up to the full estimated charges.
    (f) When paragraph (d)(2) of this section applies, the requestor 
will be required to demonstrate that the fee has, in fact, been paid or 
to pay the full amount owed, including any applicable interest, late 
handling charges, and penalty charges as discussed in paragraphs (g) and 
(h) of this section. The requestor will also be required to make an 
advance payment of the full amount of the estimated fee before 
processing of a new request or continuation of a pending request is 
begun.
    (g) DOT will assess interest on an unpaid bill starting on the 31st 
day following the day on which the notice of the amount due is first 
mailed to the requestor. Interest will accrue from the date of the 
notice of amount due and will be at the rate prescribed in 31 U.S.C. 
3717. Receipt by DOT of a payment for the full amount of the fees owed 
within 30 calendar days after the date of the initial billing will stay 
the accrual of interest, even if the payment has not been processed.
    (h) If payment of fees charged is not received within 30 calendar 
days after the date the initial notice of the amount due is first mailed 
to the requestor, an administrative charge will be assessed by DOT to 
cover the cost of processing and handling the delinquent claim. In 
addition, a penalty charge will be applied with respect to any principal 
amount of a debt that is more than 90 days past due. Where appropriate, 
other steps permitted by Federal debt collection statutes, including 
disclosure to consumer reporting agencies and use of collection 
agencies, will be used by DOT to encourage payment of amounts overdue.
    (i) Notwithstanding any other provision of this subpart, when the 
total amount of fees that could be charged for a particular request (or 
aggregation of requests) under subpart C of this part, after taking into 
account all services that must be provided free of, or at a reduced, 
charge, is less than US $10.00 DOT will not make any charge for fees.



Sec. 7.43  Fee schedule.

    The rates for manual searching, computer operator/programmer time 
and time spent reviewing records will be calculated based on the grades 
and rates established by the Washington-Baltimore Federal White-Collar 
Pay Schedule or equivalent grades, as follows:
    When performed by employees:

GS-1 through GS-8--Hourly rate of GS-5 step 7 plus 16%
GS-9 through GS-14--Hourly rate of GS-12 step 7 plus 16%
GS-15 and above--Hourly rate of GS-15 step 7 plus 16%


[[Page 74]]


    (a) The standard fee for a manual search to locate a record 
requested under subpart C of this part, including making it available 
for inspection, will be determined by multiplying the searcher's rate as 
calculated from the chart in this section and the time spent conducting 
the search.
    (b) The standard fee for a computer search for a record requested 
under subpart C of this part is the actual cost. This includes the cost 
of operating the central processing unit for the time directly 
attributable to searching for records responsive to a FOIA request and 
the operator/programmer's rate as calculated from the chart for costs 
apportionable to the search.
    (c) The standard fee for review of records requested under subpart C 
of this part is the reviewer's rate as calculated from the chart 
multiplied by the time he/she spent determining whether the requested 
records are exempt from mandatory disclosure.
    (d) The standard fee for duplication of a record requested under 
subpart C of this part is determined as follows:
    (1) Per copy of each page (not larger than 8.5 x 14 inches) 
reproduced by photocopy or similar means (includes costs of personnel 
and equipment)--US $0.10.
    (2) Per copy prepared by computer such as tapes or printout--actual 
costs, including operator time.
    (3) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (e) Depending upon the category of requestor, and the use for which 
the records are requested, in some cases the fees computed in accordance 
with the standard fee schedule in paragraph (d) of this section will 
either be reduced or not charged, as prescribed by other provisions of 
this subpart.
    (f) The following special services not required by FOIA may be made 
available upon request, at the stated fees: Certified copies of 
documents, with DOT or DOT component seal (where authorized)--US $4.00; 
or true copy, without seal--US $2.00.



Sec. 7.44  Services performed without charge or at a reduced charge.

    (a) A fee is not to be charged to any requestor making a request 
under subpart C of this part for the first two hours of search time 
unless the records are requested for commercial use. For purposes of 
this subpart, when a computer search is required two hours of search 
time will be considered spent when the hourly costs of operating the 
central processing unit used to perform the search added to the computer 
operator's salary cost (hourly rate plus 16 percent) equals two hours of 
the computer operator's salary costs (hourly rate plus 16 percent).
    (b) A fee is not to be charged for any time spent searching for a 
record requested under subpart C if the records are not for commercial 
use and the requestor is a representative of the news media, an 
educational institution whose purpose is scholarly research, or a non-
commercial scientific institution whose purpose is scientific research.
    (c) A fee is not to be charged for duplication of the first 100 
pages (standard paper, not larger than 8.5 x 14 inches) of records 
provided to any requestor in response to a request under Subpart C 
unless the records are requested for commercial use.
    (d) A fee is not to be charged to any requestor under subpart C to 
determine whether a record is exempt from mandatory disclosure unless 
the record is requested for commercial use. A review charge may not be 
charged except with respect to an initial review to determine the 
applicability of a particular exemption to a particular record or 
portion of a record. A review charge may not be assessed for review at 
the administrative appeal level. When records or portions of records 
withheld in full under an exemption that is subsequently determined not 
to apply are reviewed again to determine the applicability of other 
exemptions not previously considered, this is considered an initial 
review for purposes of assessing a review charge.
    (e) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
disclosure of the information is in the public interest because it is 
likely to contribute significantly to public understanding of the 
operations or activities of the government and is not primarily in the 
commercial interest of the requestor.

[[Page 75]]

    (f) Factors to be considered by DOT officials authorized to 
determine whether a waiver or reduction of fees will be granted include:
    (1) Whether the subject matter of the requested records concerns the 
operations or activities of the Federal government;
    (2) Whether the disclosure is likely to contribute to an 
understanding of Federal government operations or activities;
    (3) Whether disclosure of the requested information will contribute 
to the understanding of the public at large, as opposed to the 
individual understanding of the requestor or a narrow segment of 
interested persons;
    (4) Whether the contribution to public understanding of Federal 
government operations or activities will be significant;
    (5) Whether the requestor has a commercial interest that would be 
furthered by the requested disclosure; and
    (6) Whether the magnitude of any identified commercial interest to 
the requestor is sufficiently large in comparison with the public 
interest in disclosure that disclosure is primarily in the commercial 
interest of the requestor.
    (g) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
the request concerns records related to the death of an immediate family 
member who was, at the time of death, a DOT employee or a member of the 
Coast Guard.
    (h) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
the request is by the victim of a crime who seeks the record of the 
trial or court-martial at which the requestor testified.



Sec. 7.45  Transcripts.

    Transcripts of hearings or oral arguments are available for 
inspection. Where transcripts are prepared by a nongovernmental 
contractor, and the contract permits DOT to handle the reproduction of 
further copies, Sec. 7.43 applies. Where the contract for transcription 
services reserves the sales privilege to the reporting service, any 
duplicate copies must be purchased directly from the reporting service.



Sec. 7.46  Alternative sources of information.

    In the interest of making documents of general interest publicly 
available at as low a cost as possible, alternative sources will be 
arranged whenever possible. In appropriate instances, material that is 
published and offered for sale may be obtained from the Superintendent 
of Documents, U.S. Government Printing Office, Washington, DC 20402; 
U.S. Department of Commerce's National Technical Information Service 
(NTIS), Springfield, Virginia 22151; or National Audio-Visual Center, 
National Archives and Records Administration, Capital Heights, MD 20743-
3701.



PART 8--CLASSIFIED INFORMATION: CLASSIFICATION/DECLASSIFICATION/ACCESS--Table of Contents


                           Subpart A--General

Sec.
8.1  Scope.
8.3  Applicability.
8.5  Definitions.
8.7  Spheres of responsibility.

        Subpart B--Classification/Declassification of Information

8.9  Information Security Review Committee.
8.11  Authority to classify information.
8.13  Authority to downgrade or declassify.
8.15  Mandatory review for classification.
8.17  Classification challenges.
8.19  Procedures for submitting and processing requests for 
          classification reviews.
8.21  Burden of proof.
8.23  Classified information transferred to the Department of 
          Transportation.

                    Subpart C--Access to Information

8.25  Personnel Security Review Board.
8.27  Public availability of declassified information.
8.29  Access by historical researchers and former Presidential 
          appointees.
8.31  Industrial security.

    Authority: E. O. 10450, 3 CFR, 1949-1953 Comp., p. 936; E. O. 12829, 
3 CFR, 1993 Comp., p. 570; E. O. 12958, 3 CFR, 1995 Comp., p. 333; E. O. 
12968, 3 CFR, 1995 Comp., p. 391.

    Source: 62 FR 23661, May 1, 1997, unless otherwise noted.

[[Page 76]]



                           Subpart A--General



Sec. 8.1  Scope.

    This part sets forth procedures for the classification, 
declassification, and availability of information that must be protected 
in the interest of national security, in implementation of Executive 
Order 12958 of April 17, 1995, ``Classified National Security 
Information;'' and for the review of decisions to revoke, or not to 
issue, national security information clearances, or to deny access to 
classified information, under Executive Order 12968 of August 2, 1995, 
``Access to National Security Information''.



Sec. 8.3  Applicability.

    This part applies to all elements of the Department of 
Transportation.



Sec. 8.5  Definitions.

    As used in this part:
    Classification means the act or process by which information is 
determined to be classified information.
    Classification levels means the following three levels at which 
information may be classified:
    (a) Top secret. Information that requires the highest degree of 
protection, and the unauthorized disclosure of which could reasonably be 
expected to cause exceptionally grave damage to the national security 
that the original classification authority is able to identify or 
describe.
    (b) Secret. Information that requires a substantial degree of 
protection, and the unauthorized disclosure of which could reasonably be 
expected to cause serious damage to the national security that the 
original classification authority is able to identify or describe.
    (c) Confidential. Information that requires protection and the 
unauthorized disclosure of which could reasonably be expected to cause 
damage to the national security that the original classification 
authority is able to identify or describe.
    Classified information or ``classified national security 
information'' means information that has been determined under Executive 
Order 12958, or any predecessor or successor order, to require 
protection against unauthorized disclosure, and is marked to indicate 
its classified status when in documentary form.
    Clearance means that an individual is eligible, under the standards 
of Executive Orders 10450 and 12968 and appropriate DOT regulations, for 
access to classified information.
    Damage to the national security means harm to the national defense 
or foreign relations of the United States from the unauthorized 
disclosure of information, to include the sensitivity, value, and 
utility of that information.
    Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    Downgrading means a determination by a declassification authority 
that information classified and safeguarded at a specific level shall be 
classified and safeguarded at a lower level.
    Information means any knowledge that can be communicated, or 
documentary material, regardless of its physical form or 
characteristics, that is owned by, produced by or for, or is under the 
control of the United States Government. ``Control'' means the authority 
of the agency that originates information, or its successor in function, 
to regulate access to the information.
    Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that qualifies under Section 3.6 of Executive Order 
12958.
    Original classification means an initial determination that 
information requires, in the interest of national security, protection 
against unauthorized disclosure.
    Original classification authority means an individual authorized in 
writing, either by the President or by agency heads or other officials 
designated by the President, to classify information in the first 
instance.



Sec. 8.7  Spheres of responsibility.

    (a) Pursuant to Section 5.6(c) of Executive Order 12958, and to 
section 6.1 of Executive Order 12968, the Assistant Secretary for 
Administration is hereby designated as the senior agency official of the 
Department of Transportation with assigned responsibilities to assure

[[Page 77]]

effective compliance with and implementation of Executive Order 12958, 
Executive Order 12968, Office of Management and Budget Directives, the 
regulations in this part, and related issuances.
    (b) In the discharge of these responsibilities, the Assistant 
Secretary for Administration will be assisted by the Director of 
Security and Administrative Management, who, in addition to other 
actions directed by this part, will evaluate the overall application of 
and adherence to the security policies and requirements prescribed in 
this part and who will report his/her findings and recommendations to 
the Assistant Secretary for Administration, heads of Departmental 
elements, and, as appropriate, to the Secretary.
    (c) Secretarial Officers and heads of Departmental elements will 
assure that the provisions in this part are effectively administered, 
that adequate personnel and funding are provided for this purpose, and 
that corrective actions that may be warranted are taken promptly.



        Subpart B--Classification/Declassification of Information



Sec. 8.9  Information Security Review Committee.

    (a) There is hereby established a Department of Transportation 
Information Security Review Committee, which will have authority to:
    (1) Act on all suggestions and complaints not otherwise resolved 
with respect to the Department's administration of Executive Order 12958 
and implementing directives, including those regarding 
overclassification, failure to declassify, or delay in declassifying;
    (2) Act on appeals of requests for classification reviews, and 
appeals of requests for records under 5 U.S.C. 552 (Freedom of 
Information Act) when the initial, and proposed final, denials are based 
on continued classification of the record; and
    (3) Recommend to the Secretary, when necessary, appropriate 
administrative action to correct abuse or violation of any provision of 
Executive Order 12598 and implementing directives.
    (b) The Information Security Review Committee will be composed of 
the Assistant Secretary for Administration, who will serve as Chair; the 
General Counsel; and the Director of Security and Administrative 
Management. When matters affecting a particular Departmental agency are 
at issue, the Associate Administrator for Administration for that 
agency, or the Chief of Staff for the U.S. Coast Guard, as the case may 
be, will participate as an ad hoc member, together with the Chief 
Counsel of that agency. Any regular member may designate a 
representative with full power to serve in his/her place.
    (c) In carrying out its responsibilities to review decisions to 
revoke or not to issue clearances, or to deny access to classified 
information, the Committee will establish whatever procedures it deems 
fit.



Sec. 8.11  Authority to classify information.

    (a) Executive Order 12958 confers upon the Secretary of 
Transportation the authority to originally classify information as 
SECRET or CONFIDENTIAL with further authorization to delegate this 
authority.
    (b) The following delegations of authority originally to classify 
information as ``Secret'' or ``Confidential'', which may not be 
redelegated, are hereby made:
    (1) Office of the Secretary of Transportation. The Deputy Secretary; 
Assistant Secretary for Administration; Director of Intelligence and 
Security; Director of Security and Administrative Management.
    (2) United States Coast Guard. Commandant; Chief, Office of Law 
Enforcement and Defense Operations.
    (3) Federal Aviation Administration. Administrator; Assistant 
Administrator for Civil Aviation Security.
    (4) Maritime Administration. Administrator.
    (c) Although the delegations of authority set out in paragraph (b) 
of this section are expressed in terms of positions, the authority is 
personal and is invested only in the individual occupying the position. 
The authority may not be exercised ``by direction of'' a

[[Page 78]]

designated official. The formal appointment or assignment of an 
individual to one of the identified positions or a designation in 
writing to act in the absence of one of these officials, however, 
conveys the authority originally to classify information as ``SECRET''.
    (d) Previous delegations and redelegations of authority within the 
Department of Transportation originally to classify information are 
hereby rescinded.



Sec. 8.13  Authority to downgrade or declassify.

    Information originally classified by the Department may be 
specifically downgraded or declassified by either the official 
authorizing the original classification, if that official is still 
serving in the same position, the originator's current successor in 
function, a supervisory official of either, officials delegated 
declassification authority in writing by the Secretary, or by the 
Departmental Information Security Review Committee.



Sec. 8.15  Mandatory review for classification.

    (a) All information classified by the Department of Transportation 
under Executive Order 12958 or predecessor orders shall be subject to a 
review for declassification if:
    (1) The request for review describes the information with sufficient 
specificity to enable its location with a reasonable amount of effort; 
and
    (2) The information has not been reviewed for declassification 
within the prior two years. If the information has been reviewed within 
the prior two years, or the information is the subject of pending 
litigation, the requestor will be informed of this fact, and of the 
Department's decision not to declassify the information and of his/her 
right to appeal the Department's decision not to declassify the 
information to the Interagency Security Classification Appeals Panel.
    (b) All information reviewed for declassification because of a 
mandatory review will be declassified if it does not meet the standards 
for classification in Executive Order 12958. The information will then 
be released unless withholding is otherwise authorized and warranted 
under applicable law.



Sec. 8.17  Classification challenges.

    (a) Authorized holders of information classified by the Department 
of Transportation who, in good faith, believe that its classification 
status is improper are encouraged and expected to challenge the 
classification status of the information before the Departmental 
Information Security Review Committee.
    (1) No individual will be subject to retribution for bringing such a 
challenge; and
    (2) Each individual whose challenge is denied will be advised that 
he/she may appeal to the Interagency Security Classification Appeals 
Panel established by section 5.4 of Executive Order 12958.
    (b) This classification challenge provision is not intended to 
prevent an authorized holder of information classified by the Department 
of Transportation from informally questioning the classification status 
of particular information. Such information inquiries should be 
encouraged as means to resolve classification concerns and reduce the 
administrative burden of formal challenges.



Sec. 8.19  Procedures for submitting and processing requests for classification reviews.

    (a) The Director of Security and Administrative Management is hereby 
designated as the official to whom a member of the public or another 
department or agency should submit a request for a classification review 
of classified information produced by or under the primary cognizance of 
the Department. Elements of the Department that receive a request 
directly will immediately notify the Director.
    (b) If the request for classification review involves material 
produced by or under the cognizance of the U.S. Coast Guard or the 
Federal Aviation Administration, the Director will forward the request 
to the headquarters security staff of the element concerned for action. 
If the request involves material produced by other Departmental 
elements, the Director will serve as the office acting on the request.

[[Page 79]]

    (c) The office acting on the request will:
    (1) Immediately acknowledge receipt of the request and provide a 
copy of the correspondence to the Director. If a fee for search of 
records is involved pursuant to 49 CFR Part 7, the requester will be so 
notified;
    (2) Conduct a security review, which will include consultation with 
the office that produced the material and with source authorities when 
the classification, or exemption of material from automatic 
declassification, was based upon determinations by an original 
classifying authority; and
    (3) Assure that the requester is notified of the determination 
within 30 calendar days or given an explanation as to why further time 
is necessary, and provide a copy of the notification to the Director.
    (d) If the determination reached is that continued classification is 
required, the notification to the requester will include, whenever 
possible, a brief statement as to why the requested material cannot be 
declassified. The notification will also advise the requester of the 
right to appeal the determination to the Departmental Information 
Security Review Committee. A requester who wishes to appeal a 
classification review decision, or who has not been notified of a 
decision after 60 calendar days, may submit an appeal to the 
Departmental Information Security Review Committee.
    (e) If the determination reached is that continued classification is 
not required, the information will be declassified and the material 
remarked accordingly. The office acting on the request will then refer 
the request to the office originating the material or higher authority 
to determine if it is otherwise withholdable from public release under 
the Freedom of Information Act (5 U.S.C. 552) and the Department's 
implementing regulations (49 CFR Part 7).
    (1) If the material is available under the Freedom of Information 
Act, the requester will be advised that the material has been 
declassified and is available. If the request involves the furnishing of 
copies and a fee is to be collected, the requester will be so advised 
pursuant to 49 CFR Part 7, Departmental regulations implementing the 
Freedom of Information Act.
    (2) If the material is not available under the Freedom of 
Information Act, the requester will be advised that the material has 
been declassified but that the record is unavailable pursuant to the 
Freedom of Information Act, and that the provisions concerning 
procedures for reconsidering decisions not to disclose records, 
contained in 49 CFR Part 7, apply.
    (f) Upon receipt of an appeal from a classification review 
determination based upon continued classification, the Departmental 
Information Security Review Committee will acknowledge receipt 
immediately and act on the matter within 30 calendar days. With respect 
to information originally classified by or under the primary cognizance 
of the Department, the Committee, acting for the Secretary, has 
authority to overrule previous determinations in whole or in part when, 
in its judgment, continued protection in the interest of national 
security is no longer required. When the classification of the material 
produced in the Department is based upon a classification determination 
made by another department or agency, the Committee will immediately 
consult with its counterpart committee for that department or agency.
    (1) If it is determined that the material produced in the Department 
requires continued classification, the requester will be so notified and 
advised of the right to appeal the decision to the Interagency 
Classification Review Committee.
    (2) If it is determined that the material no longer requires 
classification, it will be declassified and remarked. The Committee will 
refer the request to the General Counsel, or to the head of the 
Departmental agency concerned, as the case may be, to determine if the 
material is otherwise withholdable from the public under the Freedom of 
Information Act (5 U.S.C. 552) and Departmental regulations, (49 CFR 
Part 7), and paragraphs (f)(1) and (2) of this section will be followed. 
A copy of the response to the requester will be provided to the 
Committee.
    (g) Requests for a classification review of material more than 25 
years old

[[Page 80]]

will be referred directly to the Archivist of the United States and the 
requester will be notified of the referral. In this event, the 
provisions of this section apply.
    (h) Whenever a request is insufficient in the description of the 
record sought, the requester will be asked to limit his request to 
records that are reasonably obtainable. If, in spite of these steps, the 
requester does not describe the records with sufficient particularity, 
or the record requested cannot be obtained with a reasonable amount of 
effort, the requester will be notified of the reasons why the request is 
denied and of his/her right to appeal the determination to the 
Departmental Information Security Review Committee.



Sec. 8.21  Burden of proof.

    For the purpose of determinations to be made under Secs. 8.13, 8.15, 
and 8.17, the burden of proof is on the originating Departmental agency 
to show that continued classification is warranted.



Sec. 8.23  Classified information transferred to the Department of Transportation.

    (a) Classified information officially transferred to the Department 
in conjunction with a transfer of function, and not merely for storage 
purposes, will be considered to have been originated by the Department.
    (b) Classified information in the custody of the Department 
originated by a department or agency that has ceased to exist and for 
whom there is no successor agency will be deemed to have been originated 
by the Department. This information may be declassified or downgraded by 
the Department after consultation with any other agency that has an 
interest in the subject matter of the information. Such agency will be 
allowed 30 calendar days in which to express an objection, if it so 
desires, before action is taken. A difference of opinion that cannot be 
resolved will be referred to the Departmental Information Security 
Review Committee, which will consult with its counterpart committee for 
the other agency.
    (c) Classified information transferred to the National Archives and 
Records Administration (NARA) will be declassified or downgraded by the 
Archivist of the United States in accordance with Executive Order 12958, 
Departmental classification guides, and any existing procedural 
agreement between NARA and the Department. The Department will take all 
reasonable steps to declassify information contained in records 
determined to have permanent historical value before they are 
accessioned in NARA.
    (d) To the extent practicable, the Department will adopt a system of 
records management that will facilitate the public release of documents 
at the time such documents are declassified under the provisions of this 
part for automatic declassification. To the maximum extent possible 
without destroying the integrity of the Department's files, all such 
material will be segregated or set aside for public release upon 
request. The Department will cooperate with the Archivist in efforts to 
establish a Government-wide database of information that has been 
declassified.



                    Subpart C--Access to Information



Sec. 8.25  Personnel Security Review Board.

    (a) There is hereby established a Department of Transportation 
Personnel Security Review Board, which will, on behalf of the Secretary 
of Transportation (except in any case in which the Secretary personally 
makes the decision), make the administratively final decision on an 
appeal arising in any part of the Department from:
    (1) A decision not to grant access to classified information;
    (2) A decision to revoke access to classified information; or
    (3) A decision under Sec. 8.29 to deny access to classified 
information.
    (b) The Personnel Security Review Board will be composed of:
    (1) Two persons appointed by the Assistant Secretary for 
Administration: one from the Office of Personnel and Training, and one, 
familiar with personnel security adjudication, from the Office of 
Security and Administrative Management, who will serve as Chair;

[[Page 81]]

    (2) One person appointed by the General Counsel, who, in addition to 
serving as a member of the Board, will provide to the Board whatever 
legal services it may require; and
    (3) One person appointed by each of the Commandant of the Coast 
Guard and the Federal Aviation Administrator.
    (4) Any member may designate a representative, meeting the same 
criteria as the member, with full power to serve in his/her place.
    (c) In carrying out its responsibilities to review final decisions 
to revoke or deny access to classified information, the Board will 
establish whatever procedures it deems fit.



Sec. 8.27  Public availability of declassified information.

    (a) It is a fundamental policy of the Department to make information 
available to the public to the maximum extent permitted by law. 
Information that is declassified for any reason loses its status as 
material protected in the interest of national security. Accordingly, 
declassified information will be handled in every respect on the same 
basis as all other unclassified information. Declassified information is 
subject to the Departmental public information policies and procedures, 
with particular reference to the Freedom of Information Act (5 U.S.C. 
552) and implementing Departmental regulations (49 CFR Part 7).
    (b) In furtherance of this policy, all classified material produced 
after June 1, 1972 that is of sufficient historical or other value to 
warrant preservation as permanent records in accordance with appropriate 
records administrative standards, and that becomes declassified, will be 
systematically reviewed prior to the end of each calendar year for the 
purpose of making the material publicly available. To the maximum extent 
possible without destroying the integrity of the Department's files, all 
such material will be segregated or set aside for public release upon 
request.



Sec. 8.29  Access by historical researchers and former Presidential appointees.

    (a) Historical researchers. (1) Persons outside the executive branch 
who are engaged in historical research projects may have access to 
classified information provided that:
    (i) Access to the information is clearly consistent with the 
interests of national security; and
    (ii) The person to be granted access is trustworthy.
    (2) The provisions of this paragraph apply only to persons who are 
conducting historical research as private individuals or under private 
sponsorship and do not apply to research conducted under Government 
contract or sponsorship. The provisions are applicable only to 
situations where the classified information concerned, or any part of 
it, was originated by the Department or its contractors, or where the 
information, if originated elsewhere, is in the sole custody of the 
Department. Any person requesting access to material originated in 
another agency or to information under the exclusive jurisdiction of the 
National Archives and Records Administration (NARA) will be referred to 
the other agency or to NARA, as appropriate.
    (3) When a request for access to classified information for 
historical research is received, it will be referred to the appropriate 
local security office. That office will obtain from the applicant 
completed Standard Form 86, Questionnaire for National Security 
Positions, in triplicate, and Standard Form 87, Fingerprint Chart; a 
statement in detail to justify access, including identification of the 
kind of information desired and the organization or organizations, if 
any, sponsoring the research; and a written statement (signed, dated, 
and witnessed) with respect to the following:
    (i) That the applicant will abide by regulations of the Department:
    (A) To safeguard classified information; and
    (B) To protect information that has been determined to be 
proprietary or privileged and is therefore not eligible for public 
dissemination.
    (ii) That the applicant understands that any classified information 
that the applicant receives affects the security of the United States.
    (iii) That the applicant acknowledges an obligation to safeguard 
classified information or privileged information of which the applicant 
gains possession or

[[Page 82]]

knowledge as a result of the applicant's access to files of the 
Department.
    (iv) That the applicant agrees not to reveal to any person or agency 
any classified information or privileged information obtained as a 
result of the applicant's access except as specifically authorized in 
writing by the Department, and further agrees that the applicant shall 
not use the information for purposes other than those set forth in the 
applicant's application.
    (v) That the applicant agrees to authorize a review of the 
applicant's notes and manuscript for the sole purpose of determining 
that no classified information or material is contained therein.
    (vi) That the applicant understands that failure to abide by 
conditions of this statement will constitute sufficient cause for 
canceling the applicant's access to classified information and for 
denying the applicant any future access, and may subject the applicant 
to criminal provisions of Federal law as referred to in this statement.
    (vii) That the applicant is aware and fully understands that title 
18, United States Code, Crimes and Criminal Procedures, and the Internal 
Security Act of 1950, as amended, title 50, United States Code, 
prescribe, under certain circumstances, criminal penalties for the 
unauthorized disclosure of information respecting the national security, 
and for loss, destruction, or compromise of such information.
    (viii) That this statement is made to the U.S. Government to enable 
it to exercise its responsibilities for the protection of information 
affecting the national security.
    (ix) That the applicant understands that any material false 
statement that the applicant makes knowingly and willfully will subject 
the applicant to the penalties of 18 U.S.C. 1001.
    (4) The security office will process the forms in the same manner as 
specified for a preappointment national agency check for a critical-
sensitive position. Upon receipt of the completed national agency check, 
the security office, if warranted, may determine that access by the 
applicant to the information will be clearly consistent with the 
interests of national security and the person to be granted access is 
trustworthy. If deemed necessary, before making its determination, the 
office may conduct or request further investigation. Before access is 
denied in any case, the matter will be referred through channels to the 
Director of Security and Administrative Management for review and 
submission to the Personnel Security Review Board for final review.
    (5) If access to TOP SECRET or intelligence or communications 
security information is involved a special background investigation is 
required. However, this investigation will not be requested until the 
matter has been referred through channels to the Director of Security 
and Administrative Management for determination as to adequacy of the 
justification and the consent of other agencies as required.
    (6) When it is indicated that an applicant's research may extend to 
material originating in the records of another agency, approval must be 
obtained from the other agency prior to the grant of access.
    (7) Approvals for access will be valid for the duration of the 
current research project but no longer than 2 years from the date of 
issuance, unless renewed. If a subsequent request for similar access is 
made by the individual within one year from the date of completion of 
the current project, access may again be granted without obtaining a new 
National Agency Check. If more than one year has elapsed, a new National 
Agency Check must be obtained. The local security office will promptly 
advise its headquarters security staff of all approvals of access 
granted under the provisions of this section.
    (8) An applicant may be given access only to that classified 
information that is directly pertinent to the applicant's approved 
project. The applicant may review files or records containing classified 
information only in offices under the control of the Department. 
Procedures must be established to identify classified material to which 
the applicant is given access. The applicant must be briefed on local 
procedures established to prevent unauthorized access to the classified 
material while in the applicant's custody, for the return of the 
material for secure storage at the end of the daily working period,

[[Page 83]]

and for the control of the applicant's notes until they have been 
reviewed. In addition to the security review of the applicant's 
manuscript, the manuscript must be reviewed by appropriate offices to 
assure that it is technically accurate insofar as material obtained from 
the Department is concerned, and is consistent with the Department's 
public release policies.
    (b) Former Presidential appointees. Persons who previously occupied 
policymaking positions to which they were appointed by the President may 
be granted access to classified information or material that they 
originated, reviewed, signed, or received, while in public office, 
provided that:
    (1) It is determined that such access is clearly consistent with the 
interests of national security; and
    (2) The person agrees to safeguard the information, to authorize a 
review of the person's notes to assure that classified information is 
not contained therein, and that the classified information will not be 
further disseminated or published.



Sec. 8.31  Industrial security.

    (a) Background. The National Industrial Security Program was 
established by Executive Order 12829 of January 6, 1993 for the 
protection of information classified pursuant to Executive Order 12356 
of April 2, 1982, National Security Information, or its predecessor or 
successor orders, and the Atomic Energy Act of 1954, as amended. The 
Secretary of Defense serves as the Executive Agent for inspecting and 
monitoring contractors, licensees, grantees, and certificate holders 
that require or will require access to, or that store or will store, 
classified information, and for determining the eligibility for access 
to classified information of contractors, licensees, certificate 
holders, and grantees, and their respective employees.
    (b) Implementing regulations. The Secretary of Transportation has 
entered into agreement for the Secretary of Defense to render industrial 
security services for the Department of Transportation. Regulations 
prescribed by the Secretary of Defense to fulfill the provisions of 
Executive Order 12829 have been extended to protect release of 
classified information for which the Secretary of Transportation is 
responsible. Specifically, this regulation is DOD 5220.22-M, National 
Industrial Security Program Operating Manual. This regulation is 
effective within the Department of Transportation, which functions as a 
User Agency as prescribed in the regulation. Appropriate security 
staffs, project personnel, and contracting officers assure that actions 
required by the regulation are taken.



PART 9--TESTIMONY OF EMPLOYEES OF THE DEPARTMENT AND PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS--Table of Contents




Sec.
9.1  Purpose.
9.2  Applicability.
9.3  Definitions.
9.5  General prohibition of production or disclosure in legal 
          proceedings.
9.7  Testimony by employees before the Department or in other legal 
          proceedings in which the United States is a party.
9.9  Legal proceedings between private litigants: General rules.
9.11  Legal proceedings between private litigants: Demands.
9.13  Legal proceedings between private litigants: Procedures to request 
          records.
9.15  Legal proceedings between private litigants: Procedures to request 
          testimony.
9.17  Legal proceedings between private litigants: Procedures for taking 
          testimony.
9.19  Acceptance of service on behalf of Secretary.

    Authority: 5 U.S.C. 301; 45 U.S.C. 41-42; 49 U.S.C. 322; 49 U.S.C. 
504(f); 23 U.S.C. 409.

    Source: 58 FR 6724, Feb. 2, 1993, unless otherwise noted.



Sec. 9.1  Purpose.

    (a) This part sets forth procedures governing the testimony of an 
employee in legal proceedings in which the United States is a party. It 
also sets forth procedures to be followed when an employee is issued a 
subpoena, order or other demand (collectively referred to in this part 
as a ``demand'') by a court or other competent authority, or is 
requested by a private litigant, to provide testimony or produce records 
concerning information acquired in the course of performing official 
duties or because of the employee's official status. It also prescribes 
the

[[Page 84]]

policies and procedures of the Department with respect to the acceptance 
of service of legal process and pleadings in legal proceedings involving 
the Department.
    (b) The purposes of this part are to:
    (1) Conserve the time of employees for conducting official business;
    (2) Minimize the possibility of involving the Department in 
controversial issues not related to its mission;
    (3) Maintain the impartiality of the Department among private 
litigants;
    (4) Avoid spending the time and money of the United States for 
private purposes; and
    (5) To protect confidential, sensitive information and the 
deliberative processes of the Department.
    (c) Agency counsel, in his or her discretion, may permit an 
exception from any requirement in this part. The exception may be 
granted only when the deviation will not interfere with matters of 
operational or military necessity, and when agency counsel determines 
that:
    (1) It is necessary to prevent a miscarriage of justice;
    (2) The Department has an interest in the decision that may be 
rendered in the legal proceeding; or
    (3) The exception is in the best interest of the Department or the 
United States.

For Office of Inspector General employees and documents, the Inspector 
General, in conjunction with the General Counsel of the Department, may 
permit an exception from any requirement of this part if the Inspector 
General determines, based on the Inspector General Act of 1978, as 
amended, that application of the requirement would be inappropriate.



Sec. 9.2  Applicability.

    This part applies to the testimony of an employee in legal 
proceedings in which the United States is a party. It also applies in 
legal proceedings between private litigants to requests or demands for 
testimony or records concerning information acquired in the course of an 
employee performing official duties or because of the employee's 
official status. This part does not apply to any legal proceeding in 
which an employee is to testify as to facts or events that are in no way 
related to the employee's official duties or the functions of the 
Department. Nor does it apply to Congressional demands for testimony or 
documents.



Sec. 9.3  Definitions.

    For purposes of this part:
    Department means the Department of Transportation (DOT), including 
the Office of the Secretary (which encompasses the Office of the 
Inspector General) and the following operating administrations while 
they are part of DOT:
    (a) The U.S. Coast Guard.
    (b) The Federal Aviation Administration.
    (c) The Federal Highway Administration.
    (d) The Federal Railroad Administration.
    (e) The Federal Transit Administration.
    (f) The St. Lawrence Seaway Development Corporation.
    (g) The National Highway Traffic Safety Administration.
    (h) The Maritime Administration.
    (i) The Research and Special Programs Administration.
    (j) Any DOT operating administration established after the effective 
date of this part.
    Legal proceeding means any case or controversy pending before any 
federal, state, or local court (including grand jury proceedings), any 
administrative proceeding pending before any federal, state, or local 
agency, or any legislative proceeding pending before any state or local 
agency.
    Legal proceeding between private litigants means any legal 
proceeding in which neither the Department of Transportation nor the 
United States (including any federal agency or officer of the United 
States in his or her official capacity) is a party.
    Employee of the Department or Employee means any current or former 
officer or employee of the Department; any active duty, retired, or 
former officer or enlisted member of the Coast Guard; or any current or 
former contractor (including any corporation or other entity and any 
employee or subcontractor).

[[Page 85]]

    Agency counsel means the General Counsel of the Department or the 
Chief Counsel of any operating administration of the Department 
concerned, any person to whom the General Counsel or Chief Counsel has 
delegated authority, or any person who is authorized to represent the 
Department in a specific legal proceeding.
    Testimony means any written or oral statement by a witness, 
including depositions, answers to interrogatories, affidavits, 
declarations, and statements at a hearing or trial.



Sec. 9.5  General prohibition of production or disclosure in legal proceedings.

    No employee of the Department may provide testimony or produce any 
material contained in the files of the Department, or disclose any 
information relating to, or based upon, material contained in the files 
of the Department, or disclose any information or produce any material 
acquired as part of the performance of that employee's official duties 
or because of that employee's official status unless authorized in 
accordance with this part, or by other applicable law.



Sec. 9.7  Testimony by employees before the Department or in other legal proceedings in which the United States is a party.

    In any legal proceeding before the Department or in which the United 
States (including any federal agency or officer of the United States) is 
a party:
    (a) Agency counsel shall arrange for an employee to testify as a 
witness for the United States whenever the attorney representing the 
United States requests it.
    (b) An employee may testify for the United States both as to facts 
within the employee's personal knowledge and as an expert or opinion 
witness. Except as provided in paragraph (c) of this section, an 
employee may not testify as an expert or opinion witness, with regard to 
any matter arising out of the employee's official duties or the 
functions of the Department, for any party other than the United States 
in any legal proceeding in which the United States is a party. An 
employee who receives a demand to testify on behalf of a party other 
than the United States may testify as to facts within the employee's 
personal knowledge, provided that the testimony be subject to the prior 
approval of agency counsel and to the Federal Rules of Civil Procedure 
and any applicable claims of privilege.
    (c) An employee may testify as an expert or opinion witness on 
behalf of an officer or enlisted member of the Coast Guard in any legal 
proceeding conducted by the Coast Guard.



Sec. 9.9  Legal proceedings between private litigants: General rules.

    In legal proceedings between private litigants:
    (a) The proper method for obtaining testimony or records from an 
employee is to submit a request to agency counsel as provided in 
Secs. 9.13 and 9.15 of this part, not to serve a demand on the employee. 
Whenever, in a legal proceeding between private litigants, an employee 
is served with a demand, or receives a request, to testify in that 
employee's official capacity or produce records, the employee shall 
immediately notify agency counsel.
    (b) If authorized to testify pursuant to these rules, an employee 
may testify only as to facts within that employee's personal knowledge 
with regard to matters arising out of his or her official duties.
    (1) When the proceeding arises from an accident, an employee may 
testify only as to personally known facts, not reasonably available from 
other sources, observed by the employee or uncovered during the 
employee's investigation of the accident or observed by the employee 
even if he or she did not investigate the accident. The employee shall 
decline to testify regarding facts beyond the scope of his or her 
official duties.
    (2) The employee shall not testify to facts that are contained in a 
report, or any part of a report, unless the employee has obtained 
permission from agency counsel to disclose the information.
    (3) The employee shall not disclose confidential or privileged 
information unless the employee has obtained permission from agency 
counsel to disclose the information.

[[Page 86]]

    (4) The employee shall not testify as to facts when agency counsel 
determines that the testimony would not be in the best interest of the 
Department or the United States if disclosed.
    (c) An employee shall not testify as an expert or opinion witness 
with regard to any matter arising out of the employee's official duties 
or the functions of the Department. An employee who is asked questions 
that call for expert or opinion testimony shall decline to answer on the 
grounds that it is forbidden by this part. Agency counsel shall advise 
the employee on how to proceed if the presiding officer directs the 
employee to provide expert or opinion testimony.
    (d) An employee shall not provide testimony at a trial or hearing. 
An employee's testimony shall be limited to a single deposition, 
affidavit, or set of interrogatories, concerning the circumstances (e.g. 
an accident) from which the proceeding arose. Where multiple legal 
proceedings concerning those circumstances are pending, or can occur, it 
shall be the duty of the private litigant seeking the testimony to 
ascertain, to the extent feasible, the identities of all parties, or 
potential parties, to those proceedings and notify them that a 
deposition has been granted and that they have the opportunity to 
participate. The private litigant shall submit an affidavit or 
certification describing the extent of the search for parties and 
potential parties and listing the names of the parties and potential 
parties notified.
    (e) Where an employee has already provided testimony, any party 
wishing to obtain further testimony from that employee concerning the 
same matter or occurrence, whether in the same or a different private 
legal proceeding, may submit a request to agency counsel to waive the 
restrictions of paragraph (d) of this section. The request shall, in 
addition to meeting the requirements of Sec. 9.15 of this part, state 
why the requester should be permitted to gather additional information 
despite not having previously requested the information when it had an 
opportunity to do so, and why the additional testimony is now required 
and the prior testimony or previously supplied documents are 
insufficient.



Sec. 9.11  Legal proceedings between private litigants: Demands.

    (a) If an employee receives a demand that has not been validly 
issued or served, agency counsel may instruct the employee not to comply 
with the demand.
    (b) If an employee receives a demand (validly issued and served) to 
testify or produce records, agency counsel, in his or her discretion, 
may grant the employee permission to testify or produce records only if 
the purposes of this part are met or agency counsel determines that an 
exception is appropriate.
    (c) If a demand is issued to an employee, agency counsel shall 
contact the requester of the demand, inform that person of the 
requirements of this part, and may, in agency counsel's discretion, ask 
that the demand be withdrawn.
    (d) If the requester of the demand refuses to have it withdrawn or 
fails to comply with this part, the Department may seek to quash the 
demand.
    (e) If the court or other competent authority declines to grant the 
Department's motion to quash, agency counsel shall instruct the employee 
whether to testify or produce documents pursuant to the demand. Agency 
counsel may permit the testimony under Sec. 9.1(c) of this part. If 
response to a demand is required before the court or other competent 
authority rules on the motion to quash and the court fails to stay the 
demand, the employee must appear at the stated time and place, produce a 
copy of this part, and respectfully refuse to provide any testimony or 
produce any documents. Agency counsel shall take steps to arrange for 
legal representation for the employee. Agency counsel shall advise the 
employee how to respond, including not to testify, if the court or other 
competent authority rules that the demand must be complied with 
irrespective of these regulations.



Sec. 9.13  Legal proceedings between private litigants: Procedures to request records.

    (a) In a legal proceeding between private litigants, a party who 
wishes to obtain records from the Department shall submit to agency 
counsel a request for the records. The request will

[[Page 87]]

ordinarily be handled in accordance with the Department's procedures 
concerning requests for records found at 49 CFR part 7. If the party 
does not follow the procedures specified in that part, the request must 
be accompanied by a statement setting forth the relevance of the records 
to the proceeding. The request should be resolved before any request for 
testimony under Sec. 9.15 is submitted. Where a request for testimony 
includes a request for additional records, it shall indicate precisely 
how this new request differs in scope from any previous request in order 
to avoid agency duplication of effort. Agency counsel shall notify the 
requester of the approval or denial of the request.
    (b) [Reserved]



Sec. 9.15  Legal proceedings between private litigants: Procedures to request testimony.

    (a) Any party seeking the testimony of an employee in a legal 
proceeding between private litigants, concerning facts within the 
employee's personal knowledge with regard to matters arising out of the 
employee's official duties, shall, rather than serving a demand for the 
testimony, request the testimony at least 30 days before it is intended 
to be taken or received. The request must be submitted to agency counsel 
and must include:
    (1) The title of the case, docket number, and the court, or 
otherwise clearly identify the legal proceeding involved;
    (2) A statement setting forth the basic facts in the proceeding, 
such as the type, date, and location of an accident;
    (3) A summary of the unresolved issues applicable to the testimony 
sought;
    (4) A summary of the testimony sought and its relevant to the 
proceeding;
    (5) A certification with support, that the information desired is 
not reasonably available from other sources, including Departmental 
documents;
    (6) Pursuant to Sec. 9.9(d) of this part, an affidavit or 
certification describing the extent of a search of parties and potential 
parties and listing the names of the parties and potential parties 
notified; and
    (7) A declaration that the party will not seek expert or opinion 
testimony from the witness or seek the testimony of the witness at a 
hearing or trial in the proceeding.

The request shall specify which form of testimony (deposition, 
affidavit, declaration, or answers to interrogatories) is desired and 
the date by which it is desired; however, only one form, the one least 
burdensome to the Department that will provide the needed information, 
will be permitted for each witness.
    (b) The party seeking the testimony shall include with its request 
for testimony a copy of any prior request(s) made by the same requester 
to the Department or other agency of the United States for records 
pertaining to the matter being litigated and of the response (not 
including the records themselves) to the request(s). The party seeking 
the testimony shall also comply with any agency counsel request that 
copies of the records previously disclosed by the Department, or a list 
of those records, be furnished.
    (c) In accordance with the requirement of this section and the 
general provisions of this part, agency counsel shall notify the 
requester of the approval or denial of the request. Agency counsel may 
attach special conditions to its approval.



Sec. 9.17  Legal proceedings between private litigants: Procedures for taking testimony.

    (a) Testimony of an employee of the Department may be taken only at 
the office to which the employee is assigned, or any other place 
designated by agency counsel. Additional conditions may be specified 
under Sec. 9.15(c) of this part. The time shall be reasonably fixed to 
avoid substantial interference with the performance of the employee's or 
agency counsel's official duties.
    (b) Upon completion of the testimony of an employee of the 
Department, a copy of the transcript of the testimony shall be 
furnished, at the expense of the party requesting the testimony, to 
agency counsel for the Department's files.

[[Page 88]]



Sec. 9.19  Acceptance of service on behalf of Secretary.

    In any legal proceeding, at the option of the server, process or 
pleadings may be served on agency counsel, with the same effect as if 
served upon the Secretary or the head of the operating administration 
concerned, as the case may be. The official accepting service under this 
section shall acknowledge the service and take appropriate action. This 
section does not in any way abrogate or modify the requirements of Rule 
4(d)(4) and 4(d)(5) of the Federal Rules of Civil Procedure regarding 
service of summons and complaint.



PART 10--MAINTENANCE OF AND ACCESS TO RECORDS PERTAINING TO INDIVIDUALS--Table of Contents




                   Subpart A--Applicability and Policy

Sec.
10.1  Applicability.
10.3  Policy.
10.5  Definitions.

                           Subpart B--General

10.11  Administration of part.
10.13  Privacy Act Officer.
10.15  Protection of records.

                    Subpart C--Maintenance of Records

10.21  General.
10.23  Accounting of disclosures.
10.25  Mailing lists.
10.27  Government contractors.
10.29  Social Security numbers.

                   Subpart D--Availability of Records

10.31  Requests for records.
10.33  Acknowledgment and access.
10.35  Conditions of disclosure.
10.37  Identification of individual making request.
10.39  Location of records.

                    Subpart E--Correction of Records

10.41  Requests for correction of records.
10.43  Time limits.
10.45  Statement of disagreement.

Subpart F--Procedures for Reconsidering Decisions not to Grant Access to 
                            or Amend Records

10.51  General.

                          Subpart G--Exemptions

10.61  General exemptions.
10.63  Specific exemptions.

                             Subpart H--Fees

10.71  General.
10.73  Payment of fees.
10.75  Fee schedule.
10.77  Services performed without charge.

                      Subpart I--Criminal Penalties

10.81  Improper disclosure.
10.83  Improper maintenance of records.
10.85  Wrongfully obtaining records.

Appendix to Part 10--Exemptions

    Authority: 5 U.S.C. 552a; 49 U.S.C. 322.

    Source: 45 FR 8993, Feb. 11, 1980, unless otherwise noted.



                   Subpart A--Applicability and Policy



Sec. 10.1  Applicability.

    This part implements section 552a of title 5, United States Code, as 
well as other provisions of the Privacy Act of 1974, and prescribes 
rules governing the availability of those records of the Department of 
Transportation which relate to citizens of the United States and aliens 
lawfully admitted for permanent residence.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23666, May 1, 1997]



Sec. 10.3  Policy.

    It is the policy of the Department of Transportation to comply with 
the letter and the spirit of the Privacy Act (the Act). Therefore, 
personal data contained in each system of records is afforded adequate 
protection against unauthorized access, is as accurate as is feasible, 
and is limited to that necessary to accomplish the stated use or uses of 
the system. Further, no system of records is exempted from the 
requirements of the Act unless it is determined that to do so is in the 
best interest of the government with due concern for individual rights.



Sec. 10.5  Definitions.

    Unless the context requires otherwise, the following definitions 
apply in this part:

[[Page 89]]

    Administrator means the head of an operating administration and 
includes the Commandant of the Coast Guard.
    Department means the Department of Transportation, including the 
Office of the Secretary, the Office of Inspector General, and the 
following operating administrations: This definition specifically 
excludes the Surface Transportation Board, which has its own Privacy Act 
regulations (49 CFR Part 1007), except to the extent that any system of 
records notice provides otherwise.
    (a) The United States Coast Guard.
    (b) The Federal Aviation Administration.
    (c) The Federal Highway Administration.
    (d) The Federal Railroad Administration.
    (e) The National Highway Traffic Safety Administration.
    (f) Federal Transit Administration.
    (g) The St. Lawrence Seaway Development Corporation.
    (h) The Research and Special Programs Administration.
    (i) Bureau of Transportation Statistics.
    General Counsel means the General Counsel of the Department.
    Includes means ``includes but is not limited to;''
    Individual means a citizen of the United States or an alien lawfully 
admitted;
    Maintain includes maintain, collect, use, or disseminate;
    May is used in a permissive sense to state authority or permission 
to do the act prescribed;
    Record means any item, collection, or grouping of information about 
an individual that is maintained by the Department including, but not 
limited to, education, financial transactions, medical history, and 
criminal or employment history and that contains the name of, or an 
identifying number, symbol, or other identifying particular assigned to, 
the individual, such as a finger or voice print or a photograph;
    Secretary means the Secretary of Transportation or any person to 
whom has been delegated authority in the matter concerned;
    System of records means a group of any records under the control of 
the Department 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;
    Statistical record means a record in a system of records maintained 
for statistical research or reporting purposes only and not in whole or 
in part in making any determination about an identifiable individual, 
except as provided by section 8 of title 13, United States Code; and
    Routine use means, with respect to the disclosure of a record, the 
use of such record for a purpose which is compatible with the purpose 
for which it was collected.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



                           Subpart B--General



Sec. 10.11  Administration of part.

    Authority to administer this part in connection with the records of 
the Office of the Secretary is delegated to the Assistant Secretary for 
Administration. Authority to administer this part in connection with 
records in each operating administration is delegated to the 
Administrator concerned. An Administrator may redelegate to officers of 
that administration the authority to administer this part in connection 
with defined systems of records. An Administrator, however, may 
redelegate his or her duties under subparts F and G of this part only to 
his or her deputy and to not more than one other officer who reports 
directly to the Administrator and who is located at the headquarters of 
that administration or at the same location as the majority of that 
administration's systems of records.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec. 10.13  Privacy Act Officer.

    (a) To assist with implementation, evaluation, and administration 
issues, the Chief Information Officer appoints a principal coordinating 
official with the title Privacy Act Officer, and one Privacy Act 
Coordinator from his/her staff.
    (b) Inquiries concerning Privacy Act matters, or requests for 
assistance,

[[Page 90]]

may be addressed to the Privacy Act Officer (S-80), Department of 
Transportation, 400 Seventh Street, S.W., Washington, DC 20590.
    (c) Administrators may designate Privacy Act Officers or 
Coordinators to act as central coordinators within their administrations 
to assist them in administering the Act.

[45 FR 8993, Feb. 11, 1980, as amended by Amdt. 1-290, 62 FR 51804, Oct. 
3, 1997]



Sec. 10.15  Protection of records.

    (a) No person may, without permission, remove any record made 
available for inspection or copying under this part from the place where 
it is made available. In addition, no person may steal, alter, mutilate, 
obliterate, or destroy, in whole or in part, such a record.
    (b) Section 641 of title 18 of the United States Code provides, in 
pertinent part, as follows:

    Whoever * * * steals, purloins, or knowingly converts to his use or 
the use of another, or without authority, sells, conveys or disposes of 
any record * * * or thing of value of the United States or of any 
department or agency thereof * * * shall be fined not more than $10,000 
or imprisoned not more than 10 years or both; but if the value of such 
property does not exceed the sum of $100, he shall be fined not more 
than $1,000 or imprisoned not more than one year or both * * *.

    (c) Section 2071 of title 18 of the United States Code provides, in 
pertinent part, as follows:

    Whoever willfully and unlawfully conceals, removes, mutilates, 
obliterates, or destroys, or attempts to do so, or with intent to do so 
takes and carries away any record, proceeding, map, book, paper, 
document, or other thing, filed or deposited * * * in any public office, 
or with any * * * public officer of the United States, shall be fined 
not more than $2,000 or imprisoned not more than 3 years, or both.



                    Subpart C--Maintenance of Records



Sec. 10.21  General.

    Except to the extent that a system of records is exempt in 
accordance with subpart G of this part, the Department, with respect to 
each system of records:
    (a) Maintains in its records only such information about an 
individual as is relevant and necessary to accomplish a purpose of the 
Department required to be accomplished by statute or by executive order 
of the President;
    (b) Collects information to the greatest extent practicable directly 
from the subject individual when the information may result in adverse 
determinations about an individual's rights, benefits, or privileges 
under Federal programs;
    (c) Informs each individual whom it asks to supply information, on 
the form which it uses to collect the information or on a separate form 
that can be retained by the individual of:
    (1) The authority (whether granted by statute, or by executive order 
of the President) which authorizes the solicitation of the information 
and whether disclosure of such information is mandatory or voluntary;
    (2) The principal purpose or purposes for which the information is 
intended to be used;
    (3) The routine uses, as published pursuant to paragraph (d)(4) of 
this section, which may be made of the information; and
    (4) The effects, if any, on the individual of not providing all or 
any part of the requested information;
    (d) Publishes in the Federal Register at least annually a notice of 
the existence and character of the system of records, including:
    (1) The name and location of the system;
    (2) The categories of individuals on whom records are maintained in 
the system;
    (3) The categories of records maintained in the system;
    (4) Each routine use of the records contained in the system, 
including the categories of users and the purpose of such use;
    (5) The policies and practices regarding storage, retrievability, 
access controls, retention, and disposal of the records;
    (6) The title and business address of the official responsible for 
the system of records;
    (7) The procedures whereby an individual can be notified upon 
request if the system of records contains a record pertaining to that 
individual;

[[Page 91]]

    (8) The procedures whereby an individual can be notified upon 
request how to gain access to any record pertaining to that individual 
contained in the system of records, and how to contest its content; and
    (9) The categories of sources of records in the system;
    (e) Maintains all records which are used in making any determination 
about any individual with such accuracy, relevancy, timeliness, and 
completeness as is reasonably necessary to assure fairness to the 
individual in the determination;
    (f) Prior to disseminating any record about an individual to any 
person other than an agency, unless the dissemination is made pursuant 
to Sec. 10.35(a)(2), makes reasonable efforts to assure that such 
records are accurate, complete, timely, and relevant for the 
Department's purposes;
    (g) Maintains no record describing how any individual exercises 
rights guaranteed by the First Amendment unless:
    (1) Expressly authorized by the General Counsel; and
    (2) Expressly authorized by statute or by the individual about whom 
the record is maintained or unless pertinent to and within the scope of 
an authorized law enforcement activity;
    (h) Makes reasonable efforts to serve notice on an individual when 
any record on such individual is made available to any person under 
compulsory legal process when such process becomes a matter of public 
record.



Sec. 10.23  Accounting of disclosures.

    Each operating administration, the Office of Inspector General, and 
the Office of the Secretary, with respect to each system of records 
under its control:
    (a) Except for disclosures made under Sec. 10.35(a) (1) or (2) of 
this part, keep an accurate accounting of:
    (1) The date, nature, and purpose of each disclosure of a record to 
any person or to another agency made under Sec. 10.33; and
    (2) The name and address of the person or agency to whom the 
disclosure is made;
    (b) Retains the accounting made under paragraph (a) of this section 
for at least five years or the life of the record, whichever is longer, 
after the disclosure for which the accounting is made;
    (c) Except for disclosures made under Sec. 10.33(a)(7) of this part, 
makes the accounting made under paragraph (a)(1) of this section 
available to the individual named in the record at his request; and
    (d) Informs any person or other agency about any correction or 
notation of dispute made by the agency in accordance with Sec. 10.45 of 
any record that has been disclosed to the person or agency if an 
accounting of the disclosure was made.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec. 10.25  Mailing lists.

    An individual's name and address is not sold or rented unless such 
action is specifically authorized by law. This provision shall not be 
construed to require the withholding of names and addresses otherwise 
permitted to be made public.



Sec. 10.27  Government contractors.

    When the Department provides by a contract for the operation by or 
on behalf of the Department of a system of records to accomplish a 
function of the Department, the requirements of this part are applied to 
such system. For purposes of subpart I, Criminal Penalties, any such 
contractor and any employee of the contractor are considered, in 
accordance with section 3(m) of the Privacy Act, to be employees of the 
Department.



Sec. 10.29  Social Security numbers.

    (a) No individual is denied any right, benefit, or privilege 
provided by law because of such individual's refusal to disclose his 
Social Security account number.
    (b) The provisions of paragraph (a) of this section do not apply to:
    (1) Any disclosure which is required by Federal statute; or
    (2) The disclosure of a Social Security number when such disclosure 
was required under statute or regulation adopted prior to January 1, 
1975, to verify the identity of an individual.

[[Page 92]]

    (c) When an individual is requested to disclose his or her Social 
Security account number, that individual is informed whether that 
disclosure is mandatory or voluntary, by what statutory or other 
authority such number is solicited, what uses are made of it, and what 
detriments, including delay in the location of records, are incurred if 
the number is not provided.



                   Subpart D--Availability of Records



Sec. 10.31  Requests for records.

    (a) Ordinarily, each person desiring to determine whether a record 
pertaining to him/her is contained in a system of records covered by 
this part or desiring access to a record covered by this part, or to 
obtain a copy of such a record, shall make a request in writing 
addressed to the system manager. The ``Privacy Act Issuances'' published 
by the Office of the Federal Register, National Archives and Records 
Administration, describes the systems of records maintained by all 
Federal agencies, including the Department and its components. In 
exceptional cases oral requests are accepted. A description of DOT 
Privacy Act systems notices is available through the Internet free of 
charge at http://www.access.gpo.gov/su--docs/aces/PrivacyAct. 
shtml?desc015.html. See Sec. 10.13(b) regarding inquiries concerning 
Privacy Act matters or requests for assistance.
    (b) Each request shall specify the name of the requesting individual 
and the system of records in which the subject record is located or 
thought to be located. If assistance is required to determine the system 
of records identification number assigned in the systems notices, such 
assistance may be obtained from the appropriate Privacy Act officer or 
his assistant. Refer to Sec. 10.13 for procedures for requesting 
assistance.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec. 10.33  Acknowledgment and access.

    (a) Requests by an individual to determine whether he or she is the 
subject of a record in a system of records, or requesting access to a 
record in a system of records, should be acknowledged within 10 working 
days, where the request is by mail. For requests in person, an immediate 
response is given, either granting access or informing such individual 
when notification or access may be expected.
    (b) If the response granting access or copies of the record is made 
within 10 working days, separate acknowledgment is not required.
    (c) Although requests for access to a record are normally in 
writing, e.g., by filing a written form or letter, it is the option of 
the individual to mail or present the request form in person.



Sec. 10.35  Conditions of disclosure.

    (a) No record that is contained within a system of records of the 
Department is 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, 
unless disclosure of the record would be:
    (1) To those officers and employees of the Department who have a 
need for the record in the performance of their duties;
    (2) Required under part 7 of this title which implements the Freedom 
of Information Act;
    (3) For a routine use as defined in Sec. 10.5 and described pursuant 
to Sec. 10.21(d)(4);
    (4) 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, United States Code;
    (5) To a recipient who has provided the Department 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;
    (6) To the National Archives of the United States 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 
Administrator of General Services or his designee to determine whether 
the record has such value;

[[Page 93]]

    (7) 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 agency which maintains the record specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought;
    (8) 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;
    (9) To either House of the Congress, or to the extent of matters 
within its jurisdiction, any committee or subcommittee thereof, any 
joint committee of the Congress or subcommittee of any such joint 
committee;
    (10) To the Comptroller General, or any authorized representatives, 
in the course of the performance of the duties of the General Accounting 
Office; or
    (11) Pursuant to the order of a court of competent jurisdiction.
    (12) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(f).
    (b) Any individual requesting access to his or her record or to any 
information pertaining to that individual which is contained within a 
system of records within the Department has access to that record or 
information unless the system of records within which the record or 
information is contained is exempted from disclosure in accordance with 
subpart G, provided, however, that nothing in this part is deemed to 
require that an individual be given access to any information compiled 
in reasonable anticipation of a civil action or proceeding. No exemption 
contained in subpart G of part 7 of the regulations of the Office of the 
Secretary is relied upon to withhold from an individual any record which 
is otherwise accessible to such individual under the provisions of this 
part. Any individual who is given access to a record or information 
pertaining to him is permitted to have a person of his or her own 
choosing accompany him and to have a copy made of all or any portion of 
the record or information in a form comprehensible to the individual. 
When deemed appropriate, the individual may be required to furnish a 
written statement authorizing discussion of his record in the 
accompanying person's presence.
    (c) Medical records. Where requests are for access to medical 
records, including psychological records, the decision to release 
directly to the individual, or to withhold direct release, shall be made 
by a medical practitioner. Where the medical practitioner has ruled that 
direct release will do harm to the individual who is requesting access, 
normal release through the individual's chosen medical practitioner will 
be recommended. Final review and decision on appeals of disapprovals of 
direct release will rest with the General Counsel.
    (d) Any person requesting access to records or to any information 
pertaining to other individuals is not granted such access unless that 
person can show that he or she has obtained permission for such access 
from the individual to whom the record pertains, unless the request 
comes within one of the exceptions of paragraph (a) of this section.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec. 10.37  Identification of individual making request.

    No record or information contained in a system of records is 
disclosed to an individual nor is any correction of a record in 
accordance with subpart E made at the request of an individual unless 
that individual demonstrates that he or she is who he or she claims to 
be. Normally, identity can be proven for individuals who appear in 
person by the presentation of an identifying document issued by a 
recognized organization (e.g., a driver's license or a credit card) and 
which contains a means of verification such as a photograph or a 
signature. For requests by mail, the unique identifier used in the 
system should be included if known. Responses to mail requests are 
normally sent only to the name and address listed in the system of 
records. In the case of particularly sensitive records, additional 
identification requirements may

[[Page 94]]

be imposed. In such cases, these additional requirements are listed in 
the public notice for the system.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec. 10.39  Location of records.

    Each record made available under this subpart is available for 
inspection and copying during regular working hours at the place where 
it is located, or, upon reasonable notice, at the document inspection 
facilities of the Office of the Secretary or each administration. 
Original records may be copied but may not be released from custody. 
Upon payment of the appropriate fee, copies are mailed to the requester.

[62 FR 23667, May 1, 1997]



                    Subpart E--Correction of Records



Sec. 10.41  Requests for correction of records.

    Any person who desires to have a record pertaining to that person 
corrected shall submit a written request detailing the correction and 
the reasons the record should be so corrected. Requests for correction 
of records shall be submitted to the System Manager.

[62 FR 23667, May 1, 1997]



Sec. 10.43  Time limits.

    Within ten days (excluding Saturday, Sunday, and legal holidays) of 
the receipt in accordance with Sec. 10.41 of a request by an individual 
to amend a record pertaining to him, the receipt of the request is 
acknowledged in writing. If a determination is made to correct the 
record as requested, the correction is promptly made. If a determination 
is made not to correct a record the individual is informed promptly of 
the right to appeal in accordance with subpart F. If an appeal of a 
refusal to correct a record is in accordance with subpart F, a 
determination whether to correct the record is made within thirty days 
(excluding Saturday, Sunday, and legal holidays) of the receipt of the 
appeal unless, for good cause shown the Administrator concerned, or in 
the case of the Office of the Secretary, the General Counsel, extends 
such period. Where an extension is taken, the party taking the appeal is 
promptly notified of such fact.



Sec. 10.45  Statement of disagreement.

    If a determination is made not to amend a record, the requester is 
informed of the right to file a concise statement setting forth the 
reasons for disagreement with the refusal to amend. In any disclosure 
containing information about which an individual has filed such a 
statement of disagreement, the portions of the record which are disputed 
are noted clearly and copies of the statement of disagreement provided. 
If the Administrator concerned or his or her delegee, or in the case of 
the Office of the Secretary, the General Counsel or his or her delegee, 
deems it appropriate, copies of a concise statement of the reasons for 
not making the amendments requested may be provided along with the 
statement of disagreement.



Subpart F--Procedures for Reconsidering Decisions not to Grant Access to 
                            or Amend Records



Sec. 10.51  General.

    (a) Each officer or employee of the Department who, upon a request 
by a member of the public for a record under this part, makes a 
determination that access is not to be granted or who determines not to 
amend a record in a requested manner, gives a written statement of the 
reasons for that determination to the person making the request and 
indicates the name and title or position of each person responsible for 
the denial of such request and the procedure for appeal within the 
Department.
    (b) Any person:
    (1) Who has been given a determination pursuant to paragraph (a) of 
this section, that access will not be granted; or
    (2) Who has been informed that an amendment to a requested record 
will not be made; may apply to the Administrator concerned, or in the 
case of the Office of the Secretary, to the General Counsel for review 
of that decision. A determination that access will not be

[[Page 95]]

granted or a record amended is not administratively final for the 
purposes of judicial review unless it was made by the Administrator 
concerned or his or her delegee, or the General Counsel or his or her 
delegee, as the case may be. Upon a determination that an appeal will be 
denied, the requester is informed in writing of the reasons for the 
determination, and the names and titles or positions of each person 
responsible for the determination, and that the determination may be 
appealed to the District Court of the United States in the district in 
which the complainant resides, or has his or her principal place of 
business, or in which the records are located, or in the District of 
Columbia.
    (c) Each application for review must be made in writing and must 
include all information and arguments relied upon by the person making 
the request, and be submitted within 30 days of the date of the initial 
denial; exceptions to this time period are permitted for good reason.
    (d) Upon a determination that a request for the correction of a 
record will be denied, the requester is informed that he may file a 
concise statement in accordance with Sec. 10.45.
    (e) Each application for review must indicate that it is an appeal 
from a denial of a request made under the Privacy Act. The envelope in 
which the application is sent should be marked prominently with the 
words ``Privacy Act.'' If these requirements are not met, the time 
limits described in Sec. 10.43 do not begin to run until the application 
has been identified by an employee of the Department as an application 
under the Privacy Act and has been received by the appropriate office.
    (f) The Administrator concerned, or the General Counsel, as the case 
may be, may require the person making the request to furnish additional 
information, or proof of factual allegations, and may order other 
proceedings appropriate in the circumstances. The decision of the 
Administrator concerned, or the General Counsel, as the case may be, as 
to the availability of the record or whether to amend the record is 
administratively final.
    (g) The decision by the Administrator concerned, or the General 
Counsel, as the case may be, not to disclose a record under this part is 
considered a determination for the purposes of section 552a(g) of title 
5, United States Code, ``Civil Remedies.''
    (h) Any final decision by an Administrator or his/her delegate not 
to grant access to or amend a record under this part is subject to 
concurrence by the General Counsel or his or her delegate.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



                          Subpart G--Exemptions



Sec. 10.61  General exemptions.

    (a) The Assistant Secretary for Administration, with regard to the 
Investigations Divisions; the Federal Aviation Administrator, with 
regard to the FAA's Investigative Record System (DOT/FAA 815) and also 
with regard to the police functions of the National Capital Airport 
Police; and the Commandant of U.S. Coast Guard, with regard to the 
Intelligence and Security Division, may exempt from any part of the Act 
and this part except subsections (b), (c)(1) and (2), (e)(4)(A) through 
(F), (e)(6), (7), (9), (10), and (11), and (i) of the Act, and 
implementing Secs. 10.35, 10.23(a) and (b), 10.21(d)(1) through (6), 
10.81, 10.83, and 10.85, any systems of records, or portions thereof, 
which they maintain which consist wholly of;
    (1) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status;
    (2) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (3) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision.
    (b) The requirements (including general notice) of sections 
553(b)(1), (2) and (3), and (c) and (e) of title 5, United States Code, 
will be met by publication

[[Page 96]]

in appendix A to this part, which must, at a minimum, specify:
    (1) The name of the system; and
    (2) The specific provisions of the Act from which the system is to 
be exempted and the reasons therefor.
    (c) Any decision to exempt a system of records under this section is 
subject to concurrence by the General Counsel.
    (d) Any person may petition the Secretary in accordance with the 
provisions of part 5 of this title, to institute a rulemaking proceeding 
for the amendment or repeal of any exemptions established under this 
section.

[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993]



Sec. 10.63  Specific exemptions.

    The Secretary or his or her delegee, in the case of the Office of 
the Secretary; or the Administrator or his or deluge, in the case of an 
operating administration; or the Inspector General or his or her deluge, 
in the case of the Office of Inspector General, may exempt any system of 
records that is maintained by the Office of the Secretary, an operating 
administration, or the Office of Inspector General, as the case may be, 
from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) 
of the Act and implementing Secs. 10.23(c); 10.35(b); 10.41; 10.43; 
10.45; 10.21(a) and 10.21(d)(6), (7), and (8), under the following 
conditions:
    (a) The system of records must consist of:
    (1) Records subject to the provisions of section 552(b)(1) of title 
5, United States Code;
    (2) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of Sec. 10.61(a)(2): Provided, 
however, That if any individual is denied any right, privilege, or 
benefit to which that individual would otherwise be entitled by Federal 
law, or for which that individual would otherwise be eligible, as a 
result of the maintenance of such material, such material is provided to 
such individual, except to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or, prior to September 27, 1975, the 
effective date of the Privacy Act of 1974, under an implied promise that 
the identity of the source would be held in confidence;
    (3) Records maintained in connection with providing protective 
services to the President of the United States or other individuals 
pursuant to section 3056 of title 18, United States Code;
    (4) Records required by statute to be maintained and used solely as 
statistical records;
    (5) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence, or, prior to September 27, 
1975, the effective date of the Privacy Act of 1974, under an implied 
promise that the identity of the source would be held in confidence;
    (6) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process; or
    (7) Evaluation material used to determine potential for promotion in 
the armed services, but only to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or, prior to the effective date of 
this section, under an implied promise that the identity of the source 
would be held in confidence.
    (b) The requirements (including general notice) of sections 553 (b) 
(1), (2) and (3), and (c) and (e) of title 5, United States Code, will 
be met by publication in appendix A to this part, which must, at a 
minimum, specify:
    (1) The name of the systems; and
    (2) The specific provisions of the Act from which the system is to 
be exempted and the reasons therefor.

[[Page 97]]

    (c) Any decision to exempt a system of records under this section is 
subject to the concurrence of the General Counsel.
    (d) Any person may petition the Secretary in accordance with the 
provisions of 49 CFR part 5, to institute a rulemaking for the amendment 
or repeal of any exemptions established under this section.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



                             Subpart H--Fees



Sec. 10.71  General.

    This subpart prescribes fees for services performed for the public 
under this part by the Department.



Sec. 10.73  Payment of fees.

    The fees prescribed in this subpart may be paid by check, draft, or 
postal money order payable to the Treasury of the United States.



Sec. 10.75  Fee schedule.

(a) Copies of documents by photocopy or similar method:
  Each page not larger than 11 x 17 inches:
    First page.................................................     $.25
    Each page..................................................      .05
(b) Copies of documents by typewriter: Each page...............     2.00
(c) Certified copies of documents:
  (1) With Department of Transportation seal...................     3.00
  (2) True copy, without seal..................................     1.00
(d) Photographs:
  (1) Black and white print (from negative)....................     1.25
  (2) Black and white print (from print).......................     3.15
  (3) Color print (from negative)..............................     3.50
  (4) Color print (from print).................................     6.25
(e) Duplicate data tapes--each reel of tape or fraction thereof    36.00
 



The applicant must furnish the necessary number of blank magnetic tapes. 
The tapes must be compatible for use in the supplier's computer system, 
\1/2\ inch wide and 2,400 feet long, and must be capable of recording 
data at a density of 556 or 800 characters per inch. Unless otherwise 
designated, the tapes will be recorded at 556 CPI density. The 
Department of Transportation is not responsible for damaged tape. 
However, if the applicant furnishes a replacement for a damaged tape, 
the duplication process is completed at no additional charge.

(f) Microreproduction fees are as follows:
  (1) Microfilm copies, each 100 foot roll or less.............    $3.75
  (2) Microfiche copies, each standard size sheet (4" x 6"           .15
   containing up to 65 frames).................................
  (3) Apertune card to hard copy, each copy....................      .50
  (4) 16mm microfilm to hard copy:
    First......................................................      .25
    Additional.................................................      .07
(g) Computerline printer output, each 1,000 lines or fraction       1.00
 thereof.......................................................
 



Sec. 10.77  Services performed without charge.

    (a) No fee is charged for time spent in searching for records or 
reviewing or preparing correspondence related to records subject to this 
part.
    (b) No fee is charged for documents furnished in response to:
    (1) A request from an employee or former employee of the Department 
for copies of personnel records of the employee;
    (2) A request from a Member of Congress for official use;
    (3) A request from a State, territory, U.S. possession, county or 
municipal government, or an agency thereof;
    (4) A request from a court that will serve as a substitute for the 
personal court appearance of an officer or employee of the Department;
    (5) A request from a foreign government or an agency thereof, or an 
international organization.
    (c) Documents are furnished without charge or at a reduced charge, 
if the Assistant Secretary of Administration or the Administrator 
concerned, as the case may be, determines that waiver or reduction of 
the fee is in the public interest, because furnishing the information 
can be considered as primarily benefiting the general public.
    (d) When records are maintained in computer-readable form rather 
than human-readable form, one printed copy is made available which has 
been translated to human-readable form without a charge for translation 
but in accordance with Sec. 10.75(g), regarding computer line-printed 
charges.



                      Subpart I--Criminal Penalties



Sec. 10.81  Improper disclosure.

    Any officer or employee of the Department who by virtue of his or 
her employment or official position, has possession of, or access to, 
agency records which contain individually identifiable information the 
disclosure of which is prohibited by this part and

[[Page 98]]

who knowing that disclosure of the specific material is so prohibited, 
willfully discloses the material in any manner to any person or agency 
not entitled to receive it, is guilty of a misdemeanor and fined not 
more than $5,000 in accordance with 5 U.S.C. 552a(i)(1).



Sec. 10.83  Improper maintenance of records.

    Any officer or employee of the Department who willfully maintains a 
system of records without meeting the notice requirements of 
Sec. 10.21(d) of this part is guilty of a misdemeanor and fined not more 
than $5,000 in accordance with 5 U.S.C. 552a(i)(2).



Sec. 10.85  Wrongfully obtaining records.

    Any person who knowingly and willfully requests or obtains any 
record concerning an individual from the Department under false 
pretenses is guilty of a misdemeanor and fined not more than $5,000 in 
accordance with 5 U.S.C. 552a(i)(3).

                     Appendix to Part 10--Exemptions

                       Part I. General Exemptions

    Those portions of the following systems of records that consist of 
(a) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status; (b) information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or (c) reports identifiable 
to an individual compiled at any stage of the process of enforcement of 
the criminal laws from arrest or indictment through release from 
supervision, are exempt from all parts of 5 U.S.C. 552a except 
subsections (b) (Conditions of disclosure); (c) (1) and (2) (Accounting 
of certain disclosures); (e)(4) (A) through (F) (Publication of 
existence and character of system); (e)(6) (Ensure records are accurate, 
relevant, timely, and complete before disclosure to person other than an 
agency and other than pursuant to a Freedom of Information Act request), 
(7) (Restrict recordkeeping on First Amendment rights), (9) (Rules of 
conduct), (10) (Safeguards), and (11) (Routine use publication); and (i) 
(Criminal penalties):
    A. The Investigative Records System maintained by the Assistant 
Inspector General for Investigations, Office of the Inspector General, 
Office of the Secretary (DOT/OST 100).
    B. Police Warrant Files and Central Files maintained by the Federal 
Aviation Administration (DOT/FAA 807).
    C. Law Enforcement Information System, maintained by the Office of 
Law Enforcement and Defense Operations, U.S. Coast Guard (DOT/CG 613).
    D. Investigations and Security Investigative Case Systems, 
maintained by the Investigations and Security Division, U.S. Coast Guard 
(DOT/CG 611).
    E. The Investigative Records System maintained by the Federal 
Aviation Administration regarding criminal investigations conducted by 
offices of Investigations and Security at headquarters and FAA Regional 
and Center Security Divisions (DOT/FAA 815).
    F. Joint Maritime Intelligence Element (JMIE) Support System, 
maintained by the Operations Systems, Center, US Coast Guard (DOT/CG 
642).
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to avoid 
the thrust of the investigation, etc.
    2. From subsections (d), (e)(4) (G) and (H), (f), and (g), because 
granting an individual access to investigative records, and granting 
him/her rights to amend/contest that information, interfere with the 
overall law enforcement process by revealing a pending sensitive 
investigation, possibly identify a confidential source, disclose 
information that would constitute an unwarranted invasion of another 
individual's personal privacy, reveal a sensitive investigative 
technique, or constitute a potential danger to the health or safety of 
law enforcement personnel.
    3. From subsection (e)(1), because it is often impossible to 
determine relevancy or necessity of information in the early stages of 
an investigation. The value of such information is a question of 
judgement and timing: what appears relevant and necessary when collected 
may ultimately be evaluated and viewed as irrelevant and unnecessary to 
an investigation. In addition, DOT may obtain information concerning the 
violation of laws other than those within the scope of its jurisdiction. 
In the interest of effective law enforcement, DOT should retain this 
information because it may aid in establishing patterns of unlawful 
activity and provide leads for other law enforcement agencies. Further, 
in obtaining evidence during an investigation, information may be 
provided to

[[Page 99]]

DOT that relates to matters incidental to the main purpose of the 
investigation but that may be pertinent to the investigative 
jurisdiction of another agency. Such information cannot readily be 
identified.
    4. From subsection (e)(2), because in a law enforcement 
investigation it is usually counterproductive to collect information to 
the greatest extent practicable directly from the subject of the 
information. It is not always feasible to rely upon the subject of an 
investigation as a source for information that may implicate him/her in 
illegal activities. In addition, collecting information directly from 
the subject could seriously compromise an investigation by prematurely 
revealing its nature and scope, or could provide the subject with an 
opportunity to conceal criminal activities, or intimidate potential 
sources, in order to avoid apprehension.
    5. From subsection (e)(3), because providing such notice to the 
subject of an investigation, or to other individual sources, could 
seriously compromise the investigation by prematurely revealing its 
nature and scope, or could inhibit cooperation, permit the subject to 
evade apprehension, or cause interference with undercover activities.

                      Part II. Specific Exemptions

    A. The following systems of records are exempt from subsection 
(c)(3) (Accounting of Certain Disclosures), (d) (Access to Records), 
(e)(4)(G), (H), and (I) (Agency Requirements), and (f) (Agency Rules) of 
5 USC 552a, to the extent that they contain investigatory material 
compiled for law enforcement purposes in accordance with 5 USC 
552a(k)(2):
    1. Investigative Record System (DOT/FAA 815) maintained by the 
Federal Aviation Administration at the Office of Civil Aviation Security 
in Washington, DC; the FAA regional Civil Aviation Security Divisions; 
the Civil Aviation Security Division at the Mike Monroney Aeronautical 
Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff 
at the FAA Technical Center in Atlantic City, New Jersey; and the 
various Federal Records Centers located throughout the country.
    2. FHWA Investigations Case File System, maintained by the Office of 
Program Review and Investigations, Federal Highway Administration (DOT/
FHWA 214).
    3. FHWA Motor Carrier Safety Proposed Civil and Criminal Enforcement 
Cases, maintained by the Bureau of Motor Carrier Safety, Federal Highway 
Administration (DOT/FHWA 204).
    4. Recreational Boating and Law Enforcement Cases (DOT/CG 505), 
maintained by the Office of Boating Safety, U.S. Coast Guard.
    5. Port Safety Reporting System--Individual Violation Histories 
(DOT/CG 561), maintained by the Office of Marine Environment and 
Systems, U.S. Coast Guard.
    6. Merchant Vessel Casualty Reporting System (DOT/CG 590), 
maintained by the Office of Merchant Marine Safety, U.S. Coast Guard.
    7. U.S. Merchant Seaman's Records (DOT/CG 589), maintained by the 
Office of Merchant Marine Safety, U.S. Coast Guard.
    8. Intelligence and Security Investigative Case Systems (DOT/CG 
611), maintained by the Office of Operations, U.S. Coast Guard.
    9. Port Security Case System (DOT/CG 612), maintained by the Office 
of Operations, U.S. Coast Guard.
    10. DOT/NHTSA Investigations of Alleged Misconduct or Conflict of 
Interest, maintained by the Associate Administrator for Administration, 
National Highway Traffic Safety Administration (DOT/NHTSA 458).
    11. Investigations of Violations of Marine Safety Laws (DOT/CG 587), 
maintained by the Office of Merchant Marine Safety, U.S. Coast Guard.
    12. Civil Aviation Security System (DOT/FAA 813), maintained by the 
Office of Civil Aviation Security Policy and Planning, Federal Aviation 
Administration.
    13. Law Enforcement Information System, maintained by the Office of 
Law Enforcement and Defense Operations, U.S. Coast Guard (DOT/CG 613).
    14. Joint Maritime Intelligence Element (JMIE) Support System, 
maintained by the Operations Systems, Center, US Coast Guard (DOT/CG 
642).
    15. Vessel Identification System, maintained by the Operations 
Systems Center, U.S. Coast Guard (DOT/CG 590). The purpose of this 
exemption is to prevent persons who are the subjects of criminal 
investigations from learning too early in the investigative process that 
they are subjects, what information there is in Coast Guard files that 
indicates that they may have committed unlawful conduct, and who 
provided such information.
    16. Marine Safety Information System, maintained by the Operations 
Systems Center, U.S. Coast Guard (DOT/CG 588). The purpose of this 
exemption is to prevent persons who are the subjects of criminal 
investigations from learning too early in the investigative process that 
they are subjects, what information there is in Coast Guard files that 
indicates that they may have committed unlawful conduct, and who 
provided such information.
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the

[[Page 100]]

area to avoid the thrust of the investigation, etc.
    2. From subsections (d), (e)(4) (G) and (H), (f), and (g), because 
granting an individual access to investigative records, and granting 
him/her rights to amend/disagree with that information, interfere with 
the overall law enforcement process by revealing a pending sensitive 
investigation, possibly identify a confidential source, disclose 
information that would constitute an unwarranted invasion of another 
individual's personal privacy, reveal a sensitive investigative 
technique, or constitute a potential danger to the health or safety of 
law enforcement personnel.
    B. The following systems of records are exempt from subsections 
(c)(3) (Accounting of Certain Disclosures) and (d) (Access to Records) 
of 5 U.S.C. 552a, in accordance with 5 U.S.C. 552a(k)(2):
    1. General Air Transportation Records on Individuals, maintained by 
various offices in the Federal Aviation Administration (DOT/FAA 847).
    2. Investigative Records System, maintained by the Assistant 
Inspector General for Investigations in the Office of the Inspector 
General (DOT/OST 100).
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to avoid 
the thrust of the investigation, etc.
    2. From subsection (d), because granting an individual access to 
investigative records could interfere with the overall law enforcement 
process by revealing a pending sensitive investigation, possibly 
identify a confidential source, disclose information that would 
constitute an unwarranted invasion of another individual's personal 
privacy, reveal a sensitive investigative technique, or constitute a 
potential danger to the health or safety of law enforcement personnel.
    C. The system of records known as the Alaska Railroad Examination of 
Operating Personnel, maintained by the Alaska Railroad, Federal Railroad 
Administration (DOT/FRA 100), is exempt from the provisions of 
subsection (d) of 5 U.S.C. 552a. The release of these records would 
compromise their value as impartial measurement standards for 
appointment and promotion within the Federal Service.
    D. Those portions of the following systems of records consisting of 
investigatory material compiled for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, military service, or access to classified information or 
used to determine potential for promotion in the armed services, are 
exempt from sections (c)(3) (Accounting of Certain Disclosures), (d) 
(Access to Records), (e)(4) (G), (H), and (I) (Agency Requirements), and 
(f) (Agency Rules) of 5 U.S.C. 552a to the extent that disclosure of 
such material would reveal the identity of a source who provided 
information to the Government under an express or, prior to September 
27, 1975, an implied promise of confidentiality (5 U.S.C. 552a(k) (5) 
and (7)):
    1. Investigative Records System, maintained by the Assistant 
Inspector General for Investigations in the Office of the Inspector 
General (DOT/OST 100).
    2. Intelligence and Security Investigative Case System (DOT/CG 611), 
maintained by the Office of Operations, U.S. Coast Guard.
    3. Officer Selection and Appointment System (DOT/CG 625), maintained 
by the Office of Personnel, U.S. Coast Guard.
    4. Official Officer Service Records (DOT/CG 626), maintained by the 
Office of Personnel, U.S. Coast Guard.
    5. Enlisted Recruiting Selection Record System maintained by the 
Office of Personnel, U.S. Coast Guard.
    6. Officer, Enlisted, and Recruiting Selection Test Files (DOT/CG 
628), maintained by the Office of Personnel, U.S. Coast Guard.
    7. Enlisted Personnel Record System, (DOT/CG 629), maintained by the 
Office of Personnel, U.S. Coast Guard.
    8. Coast Guard Personnel Security Program (DOT/CG 633), maintained 
by the Office of Personnel, U.S. Coast Guard.
    9. Official Coast Guard Reserve Service Record System (DOT/CG 676), 
maintained by the Office of Reserve, U.S. Coast Guard.
    10. Investigative Record System, maintained by the Federal Aviation 
Administration at FAA Regional and Center Air Transportation Security 
Divisions; the Investigations and Security Division, Aeronautical 
Center; and Office of Investigations and Security, Headquarters, 
Washington, D.C. (DOT/FAA 815).
    11. Military Training and Education Records (DOT/CG 622), maintained 
by the Office of Personnel, U.S. Coast Guard.
    12. Files pursuant to suitability for employment with National 
Highway Traffic Safety Administration (DOT/NHTSA-457) containing 
confidential investigatory reports.
    The purpose of these exemptions is to prevent disclosure of the 
identities of sources who provide information to the government 
concerning the suitability, eligibility, or qualifications of 
individuals for Federal civilian employment, contracts, access to 
classified information, or appointment or promotion in the armed 
services, and who are

[[Page 101]]

expressly or, prior to September 27, 1975, implied promised 
confidentiality (5 U.S.C. 552a(k) (5) and (7)).
    E. Those portions of the following systems of records consisting of 
testing or examination material used solely to determine individual 
qualifications for appointment or promotion in the Federal Service are 
exempt from subsections (c)(3) (Accounting of Certain Disclosures), (d) 
(Access to Records), (e)(4) (G), (H) and (I) (Agency Requirements), and 
(f) (Agency Rules) of 5 U.S.C. 552a:
    1. Officer, Enlisted and Recruiting Selection Test Files (DOT/CG 
628), maintained by the Office of Personnel, U.S. Coast Guard.
    2. Official Coast Guard Reserve Service Record System (DOT/CG 676), 
maintained by the Office of Reserve, U.S. Coast Guard.
    3. Military Training and Education Records (DOT/CG 622), maintained 
by the Office of Personnel, U.S. Coast Guard.
    4. Reference Files (DOT/NHTSA 457), maintained by the National 
Highway Traffic Safety Administration personnel offices to determine 
fitness for employment prior to hiring.
    The purpose of these exemptions is to preserve the value of these 
records as impartial measurement standards for appointment and promotion 
within the Federal service.
    F. Those portions of the following systems of records which consist 
of information properly classified in the interest of national defense 
or foreign policy in accordance with 5 U.S.C. 552(b)(1) are exempt from 
sections (c)(3) (Accounting of Certain Disclosures), (d) (Access to 
Records), (e)(4) (G), (H) and (I) (Agency Requirements), and (f) (Agency 
Rules) of 5 U.S.C. 552a:
    1. Investigative Record System maintained by the Assistant Inspector 
General for Investigations in the Office of the Inspector General (DOT/
OST 100).
    2. Personnel Security Records System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 016).
    3. Civil Aviation Security System (DOT/FAA 813), maintained by the 
Office of Civil Aviation Security, Federal Aviation Administration.
    4. Joint Maritime Intelligence Element (JMIE) Support System, 
maintained by the Operations Systems Center, US Coast Guard (DOT/CG 
642).
    The purpose of these exemptions is to prevent the disclosure of 
material authorized to be kept secret in the interest of national 
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 
552a(k)(1).
    G. Those portions of the following systems of records which consist 
of information properly classified in the interest of national defense 
or foreign policy in accordance with 5 U.S.C. 552a(b)(1) are exempt from 
subsections (c)(3) (Accounting of Certain Disclosures) and (d) (Access 
to Records) of 5 U.S.C. 552a:
    1. Investigative Record System (DOT/FAA 815) maintained by the 
Federal Aviation Administration at the Office of Civil Aviation Security 
in Washington, DC; the FAA regional Civil Aviation Security Divisions; 
the Civil Aviation Security Division at the Mike Monroney Aeronautical 
Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff 
at the FAA Technical Center in Atlantic City, New Jersey; and the 
various Federal Records Centers located throughout the country.
    The purpose of these exemptions is to prevent the disclosure of 
material authorized to be kept secret in the interest of national 
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 
552a(k)(1).

[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993; 59 
FR 13662, Mar. 23, 1994; 60 FR 43983, Aug. 24, 1995. Redesignated at 62 
FR 23667, May 1, 1997, as amended at 63 FR 2172, Jan. 14, 1998; 63 FR 
4197, Jan. 28, 1998]



PART 11--PROTECTION OF HUMAN SUBJECTS--Table of Contents




Sec.
11.101  To what does this policy apply?
11.102  Definitions.
11.103  Assuring compliance with this policy--research conducted or 
          supported by any Federal Department or Agency.
11.104--11.106  [Reserved]
11.107  IRB Membership.
11.108  IRB functions and operations.
11.109  IRB review of research.
11.110  Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
11.111  Criteria for IRB approval of research.
11.112  Review by institution.
11.113  Suspension or termination of IRB approval of research.
11.114  Cooperative research.
11.115  IRB records.
11.116  General requirements for informed consent.
11.117  Documentation of informed consent.
11.118  Applications and proposals lacking definite plans for 
          involvement of human subjects.
11.119  Research undertaken without the intention of involving human 
          subjects.
11.120  Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal Department 
          or Agency.
11.121  [Reserved]
11.122  Use of Federal funds.
11.123  Early termination of research support: Evaluation of 
          applications and proposals.
11.124  Conditions.


[[Page 102]]


    Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).

    Source: 56 FR 28012, 28023, June 18, 1991, unless otherwise noted.



Sec. 11.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a federal department 
or agency, whether or not it is regulated as defined in Sec. 11.102(e), 
must comply with all sections of this policy.
    (2) Research that is neither conducted nor supported by a federal 
department or agency but is subject to regulation as defined in 
Sec. 11.102(e) must be reviewed and approved, in compliance with 
Sec. 11.101, Sec. 11.102, and Sec. 11.107 through Sec. 11.117 of this 
policy, by an institutional review board (IRB) that operates in 
accordance with the pertinent requirements of this policy.
    (b) Unless otherwise required by department or agency heads, 
research activities in which the only involvement of human subjects will 
be in one or more of the following categories are exempt from this 
policy:
    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational practices, such as 
(i) research on regular and special education instructional strategies, 
or (ii) research on the effectiveness of or the comparison among 
instructional techniques, curricula, or classroom management methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and
    (ii) Any disclosure of the human subjects' responses outside the 
research could reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates for public office; or (ii) federal statute(s) require(s) 
without exception that the confidentiality of the personally 
identifiable information will be maintained throughout the research and 
thereafter.
    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.
    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs; (ii) procedures for 
obtaining benefits or services under those programs; (iii) possible 
changes in or alternatives to those programs or procedures; or (iv) 
possible changes in methods or levels of payment for benefits or 
services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies, (i) if wholesome foods without additives are consumed or (ii) 
if a food is consumed that contains a food ingredient at or below the 
level and for a use found to be safe, or agricultural chemical or 
environmental contaminant at or below the level found to be safe, by the 
Food and Drug Administration or approved by the Environmental Protection

[[Page 103]]

Agency or the Food Safety and Inspection Service of the U.S. Department 
of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
[An example is a foreign institution which complies with guidelines 
consistent with the World Medical Assembly Declaration (Declaration of 
Helsinki amended 1989) issued either by sovereign states or by an 
organization whose function for the protection of human research 
subjects is internationally recognized.] In these circumstances, if a 
department or agency head determines that the procedures prescribed by 
the institution afford protections that are at least equivalent to those 
provided in this policy, the department or agency head may approve the 
substitution of the foreign procedures in lieu of the procedural 
requirements provided in this policy. Except when otherwise required by 
statute, Executive Order, or the department or agency head, notices of 
these actions as they occur will be published in the Federal Register or 
will be otherwise published as provided in department or agency 
procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy. Except when otherwise required by 
statute or Executive Order, the department or agency head shall forward 
advance notices of these actions to the Office for Protection from 
Research Risks, Department of Health and Human Services (HHS), and shall 
also publish them in the Federal Register or in such other manner as 
provided in department or agency procedures.\1\
---------------------------------------------------------------------------

    \1\ Institutions with HHS-approved assurances on file will abide by 
provisions of title 45 CFR part 46 subparts A-D. Some of the other 
Departments and Agencies have incorporated all provisions of title 45 
CFR part 46 into their policies and procedures as well. However, the 
exemptions at 45 CFR 46.101(b) do not apply to research involving 
prisoners, fetuses, pregnant women, or human in vitro fertilization, 
subparts B and C. The exemption at 45 CFR 46.101(b)(2), for research 
involving survey or interview procedures or observation of public 
behavior, does not apply to research with children, subpart D, except 
for research involving observations of public behavior when the 
investigator(s) do not participate in the activities being observed.

[56 FR 28012, 28023, June 18, 1991; 56 FR 29756, June 28, 1991]



Sec. 11.102  Definitions.

    (a) Department or agency head means the head of any federal 
department or agency and any other officer or employee of any department 
or agency to whom authority has been delegated.
    (b) Institution means any public or private entity or agency 
(including federal, state, and other agencies).
    (c) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research.
    (d) Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which

[[Page 104]]

meet this definition constitute research for purposes of this policy, 
whether or not they are conducted or supported under a program which is 
considered research for other purposes. For example, some demonstration 
and service programs may include research activities.
    (e) Research subject to regulation, and similar terms are intended 
to encompass those research activities for which a federal department or 
agency has specific responsibility for regulating as a research 
activity, (for example, Investigational New Drug requirements 
administered by the Food and Drug Administration). It does not include 
research activities which are incidentally regulated by a federal 
department or agency solely as part of the department's or agency's 
broader responsibility to regulate certain types of activities whether 
research or non-research in nature (for example, Wage and Hour 
requirements administered by the Department of Labor).
    (f) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.

Intervention includes both physical procedures by which data are 
gathered (for example, venipuncture) and manipulations of the subject or 
the subject's environment that are performed for research purposes. 
Interaction includes communication or interpersonal contact between 
investigator and subject. ``Private information'' includes information 
about behavior that occurs in a context in which an individual can 
reasonably expect that no observation or recording is taking place, and 
information which has been provided for specific purposes by an 
individual and which the individual can reasonably expect will not be 
made public (for example, a medical record). Private information must be 
individually identifiable (i.e., the identity of the subject is or may 
readily be ascertained by the investigator or associated with the 
information) in order for obtaining the information to constitute 
research involving human subjects.
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (j) Certification means the official notification by the institution 
to the supporting department or agency, in accordance with the 
requirements of this policy, that a research project or activity 
involving human subjects has been reviewed and approved by an IRB in 
accordance with an approved assurance.



Sec. 11.103  Assuring compliance with this policy--research conducted or supported by any Federal Department or Agency.

    (a) Each institution engaged in research which is covered by this 
policy and which is conducted or supported by a federal department or 
agency shall provide written assurance satisfactory to the department or 
agency head that it will comply with the requirements set forth in this 
policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Protection from Research Risks, HHS, and approved for 
federalwide use by that office. When the existence of an HHS-approved 
assurance is accepted in lieu of requiring submission of an assurance, 
reports (except certification) required by this policy to be made to 
department and agency heads shall also be made to the Office for 
Protection from Research Risks, HHS.
    (b) Departments and agencies will conduct or support research 
covered by this policy only if the institution has an assurance approved 
as provided in

[[Page 105]]

this section, and only if the institution has certified to the 
department or agency head that the research has been reviewed and 
approved by an IRB provided for in the assurance, and will be subject to 
continuing review by the IRB. Assurances applicable to federally 
supported or conducted research shall at a minimum include:
    (1) A statement of principles governing the institution in the 
discharge of its responsibilities for protecting the rights and welfare 
of human subjects of research conducted at or sponsored by the 
institution, regardless of whether the research is subject to federal 
regulation. This may include an appropriate existing code, declaration, 
or statement of ethical principles, or a statement formulated by the 
institution itself. This requirement does not preempt provisions of this 
policy applicable to department- or agency-supported or regulated 
research and need not be applicable to any research exempted or waived 
under Sec. 11.101 (b) or (i).
    (2) Designation of one or more IRBs established in accordance with 
the requirements of this policy, and for which provisions are made for 
meeting space and sufficient staff to support the IRB's review and 
recordkeeping duties.
    (3) A list of IRB members identified by name; earned degrees; 
representative capacity; indications of experience such as board 
certifications, licenses, etc., sufficient to describe each member's 
chief anticipated contributions to IRB deliberations; and any employment 
or other relationship between each member and the institution; for 
example: full-time employee, part-time employee, member of governing 
panel or board, stockholder, paid or unpaid consultant. Changes in IRB 
membership shall be reported to the department or agency head, unless in 
accord with Sec. 11.103(a) of this policy, the existence of an HHS-
approved assurance is accepted. In this case, change in IRB membership 
shall be reported to the Office for Protection from Research Risks, HHS.
    (4) Written procedures which the IRB will follow (i) for conducting 
its initial and continuing review of research and for reporting its 
findings and actions to the investigator and the institution; (ii) for 
determining which projects require review more often than annually and 
which projects need verification from sources other than the 
investigators that no material changes have occurred since previous IRB 
review; and (iii) for ensuring prompt reporting to the IRB of proposed 
changes in a research activity, and for ensuring that such changes in 
approved research, during the period for which IRB approval has already 
been given, may not be initiated without IRB review and approval except 
when necessary to eliminate apparent immediate hazards to the subject.
    (5) Written procedures for ensuring prompt reporting to the IRB, 
appropriate institutional officials, and the department or agency head 
of (i) any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB and (ii) any suspension or 
termination of IRB approval.
    (c) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (d) The department or agency head will evaluate all assurances 
submitted in accordance with this policy through such officers and 
employees of the department or agency and such experts or consultants 
engaged for this purpose as the department or agency head determines to 
be appropriate. The department or agency head's evaluation will take 
into consideration the adequacy of the proposed IRB in light of the 
anticipated scope of the institution's research activities and the types 
of subject populations likely to be involved, the appropriateness of the 
proposed initial and continuing review procedures in light of the 
probable risks, and the size and complexity of the institution.
    (e) On the basis of this evaluation, the department or agency head 
may approve or disapprove the assurance, or enter into negotiations to 
develop an approvable one. The department or

[[Page 106]]

agency head may limit the period during which any particular approved 
assurance or class of approved assurances shall remain effective or 
otherwise condition or restrict approval.
    (f) Certification is required when the research is supported by a 
federal department or agency and not otherwise exempted or waived under 
Sec. 11.101 (b) or (i). An institution with an approved assurance shall 
certify that each application or proposal for research covered by the 
assurance and by Sec. 11.103 of this Policy has been reviewed and 
approved by the IRB. Such certification must be submitted with the 
application or proposal or by such later date as may be prescribed by 
the department or agency to which the application or proposal is 
submitted. Under no condition shall research covered by Sec. 11.103 of 
the Policy be supported prior to receipt of the certification that the 
research has been reviewed and approved by the IRB. Institutions without 
an approved assurance covering the research shall certify within 30 days 
after receipt of a request for such a certification from the department 
or agency, that the application or proposal has been approved by the 
IRB. If the certification is not submitted within these time limits, the 
application or proposal may be returned to the institution.

(Approved by the Office of Management and Budget under control number 
9999-0020)

[56 FR 28012, 28023, June 18, 1991; 56 FR 29756, June 28, 1991]



Secs. 11.104--11.106  [Reserved]



Sec.  11.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members, and the diversity of the members, including consideration of 
race, gender, and cultural backgrounds and sensitivity to such issues as 
community attitudes, to promote respect for its advice and counsel in 
safeguarding the rights and welfare of human subjects. In addition to 
possessing the professional competence necessary to review specific 
research activities, the IRB shall be able to ascertain the 
acceptability of proposed research in terms of institutional commitments 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
vulnerable category of subjects, such as children, prisoners, pregnant 
women, or handicapped or mentally disabled persons, consideration shall 
be given to the inclusion of one or more individuals who are 
knowledgeable about and experienced in working with these subjects.
    (b) Every nondiscriminatory effort will be made to ensure that no 
IRB consists entirely of men or entirely of women, including the 
institution's consideration of qualified persons of both sexes, so long 
as no selection is made to the IRB on the basis of gender. No IRB may 
consist entirely of members of one profession.
    (c) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (d) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (e) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (f) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues which 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec. 11.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:
    (a) Follow written procedures in the same detail as described in 
Sec. 11.103(b)(4) and, to the extent required by, Sec. 11.103(b)(5).

[[Page 107]]

    (b) Except when an expedited review procedure is used (see 
Sec. 11.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 11.109  IRB Review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy.
    (b) An IRB shall require that information given to subjects as part 
of informed consent is in accordance with Sec. 11.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 11.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 11.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research covered by 
this policy at intervals appropriate to the degree of risk, but not less 
than once per year, and shall have authority to observe or have a third 
party observe the consent process and the research.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 11.110  Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.

    (a) The Secretary, HHS, has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The list will 
be amended, as appropriate after consultation with other departments and 
agencies, through periodic republication by the Secretary, HHS, in the 
Federal Register. A copy of the list is available from the Office for 
Protection from Research Risks, National Institutes of Health, HHS, 
Bethesda, Maryland 20892.
    (b) An IRB may use the expedited review procedure to review either 
or both of the following:
    (1) Some or all of the research appearing on the list and found by 
the reviewer(s) to involve no more than minimal risk,
    (2) Minor changes in previously approved research during the period 
(of one year or less) for which approval is authorized.


Under an expedited review procedure, the review may be carried out by 
the IRB chairperson or by one or more experienced reviewers designated 
by the chairperson from among members of the IRB. In reviewing the 
research, the reviewers may exercise all of the authorities of the IRB 
except that the reviewers may not disapprove the research. A research 
activity may be disapproved only after review in accordance with the 
non-expedited procedure set forth in Sec. 11.108(b).
    (c) Each IRB which uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals which have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.

[[Page 108]]



Sec. 11.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized: (i) By using procedures which 
are consistent with sound research design and which do not unnecessarily 
expose subjects to risk, and (ii) whenever appropriate, by using 
procedures already being performed on the subjects for diagnostic or 
treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of the special problems of research involving 
vulnerable populations, such as children, prisoners, pregnant women, 
mentally disabled persons, or economically or educationally 
disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by Sec. 11.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 11.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, pregnant 
women, mentally disabled persons, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 11.112  Review by institution.

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials of the institution. However, those officials may not approve 
the research if it has not been approved by an IRB.



Sec. 11.113  Suspension or termination of IRB approval of research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator, appropriate institutional officials, and 
the department or agency head.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 11.114  Cooperative research.

    Cooperative research projects are those projects covered by this 
policy which involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy. With the approval of the department or agency head, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely upon the review of another qualified IRB, 
or make similar arrangements for avoiding duplication of effort.

[[Page 109]]



Sec. 11.115  IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent documents, progress reports submitted by investigators, and 
reports of injuries to subjects.
    (2) Minutes of IRB meetings which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities.
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described is 
Sec. 11.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. 11.103(b)(4) and Sec. 11.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 11.116(b)(5).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research which is conducted shall 
be retained for at least 3 years after completion of the research. All 
records shall be accessible for inspection and copying by authorized 
representatives of the department or agency at reasonable times and in a 
reasonable manner.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 11.116  General requirements for informed consent.

    Except as provided elsewhere in this policy, no investigator may 
involve a human being as a subject in research covered by this policy 
unless the investigator has obtained the legally effective informed 
consent of the subject or the subject's legally authorized 
representative. An investigator shall seek such consent only under 
circumstances that provide the prospective subject or the representative 
sufficient opportunity to consider whether or not to participate and 
that minimize the possibility of coercion or undue influence. The 
information that is given to the subject or the representative shall be 
in language understandable to the subject or the representative. No 
informed consent, whether oral or written, may include any exculpatory 
language through which the subject or the representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution or 
its agents from liability for negligence.
    (a) Basic elements of informed consent. Except as provided in 
paragraph (c) or (d) of this section, in seeking informed consent the 
following information shall be provided to each subject:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures which are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others which 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject; and

[[Page 110]]

    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled.
    (b) Additional elements of informed consent. When appropriate, one 
or more of the following elements of information shall also be provided 
to each subject:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) which are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research which may relate to the subject's willingness to 
continue participation will be provided to the subject; and
    (6) The approximate number of subjects involved in the study.
    (c) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth above, or waive the requirement to obtain informed consent 
provided the IRB finds and documents that:
    (1) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine: (i) public benefit of 
service programs; (ii) procedures for obtaining benefits or services 
under those programs; (iii) possible changes in or alternatives to those 
programs or procedures; or (iv) possible changes in methods or levels of 
payment for benefits or services under those programs; and
    (2) The research could not practicably be carried out without the 
waiver or alteration.
    (d) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth in this section, or waive the requirements to obtain informed 
consent provided the IRB finds and documents that:
    (1) The research involves no more than minimal risk to the subjects;
    (2) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects;
    (3) The research could not practicably be carried out without the 
waiver or alteration; and
    (4) Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation.
    (e) The informed consent requirements in this policy are not 
intended to preempt any applicable Federal, state, or local laws which 
require additional information to be disclosed in order for informed 
consent to be legally effective.
    (f) Nothing in this policy is intended to limit the authority of a 
physician to provide emergency medical care, to the extent the physician 
is permitted to do so under applicable Federal, state, or local law.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 11.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written consent form 
approved by the IRB and signed by the subject or the subject's legally 
authorized representative. A copy shall be given to the person signing 
the form.
    (b) Except as provided in paragraph (c) of this section, the consent 
form may be either of the following:
    (1) A written consent document that embodies the elements of 
informed consent required by Sec. 11.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator

[[Page 111]]

shall give either the subject or the representative adequate opportunity 
to read it before it is signed; or
    (2) A short form written consent document stating that the elements 
of informed consent required by Sec. 11.116 have been presented orally 
to the subject or the subject's legally authorized representative. When 
this method is used, there shall be a witness to the oral presentation. 
Also, the IRB shall approve a written summary of what is to be said to 
the subject or the representative. Only the short form itself is to be 
signed by the subject or the representative. However, the witness shall 
sign both the short form and a copy of the summary, and the person 
actually obtaining consent shall sign a copy of the summary. A copy of 
the summary shall be given to the subject or the representative, in 
addition to a copy of the short form.
    (c) An IRB may waive the requirement for the investigator to obtain 
a signed consent form for some or all subjects if it finds either:
    (1) That the only record linking the subject and the research would 
be the consent document and the principal risk would be potential harm 
resulting from a breach of confidentiality. Each subject will be asked 
whether the subject wants documentation linking the subject with the 
research, and the subject's wishes will govern; or
    (2) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context.
    In cases in which the documentation requirement is waived, the IRB 
may require the investigator to provide subjects with a written 
statement regarding the research.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 11.118  Applications and proposals lacking definite plans for involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to departments or agencies with the knowledge 
that subjects may be involved within the period of support, but definite 
plans would not normally be set forth in the application or proposal. 
These include activities such as institutional type grants when 
selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. These applications need not be reviewed by an 
IRB before an award may be made. However, except for research exempted 
or waived under Sec. 11.101 (b) or (i), no human subjects may be 
involved in any project supported by these awards until the project has 
been reviewed and approved by the IRB, as provided in this policy, and 
certification submitted, by the institution, to the department or 
agency.



Sec. 11.119  Research undertaken without the intention of involving human subjects.

    In the event research is undertaken without the intention of 
involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted, by the institution, to the department or agency, and final 
approval given to the proposed change by the department or agency.



Sec. 11.120  Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal Department or Agency.

    The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the department or agency 
through such officers and employees of the department or agency and such 
experts and consultants as the department or agency head determines to 
be appropriate. This evaluation will take into consideration the risks 
to the subjects, the adequacy of protection against these risks, the 
potential benefits of the research to the subjects and others, and the 
importance of the knowledge gained or to be gained.
    (b) On the basis of this evaluation, the department or agency head 
may

[[Page 112]]

approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.

    Editorial Note: At 56 FR 28012, June 18, 1991, Sec. 11.120 was added 
without a paragraph (a) designation.



Sec. 11.121  [Reserved]



Sec. 11.122  Use of Federal funds.

    Federal funds administered by a department or agency may not be 
expended for research involving human subjects unless the requirements 
of this policy have been satisfied.



Sec. 11.123  Early termination of research support: Evaluation of applications and proposals.

    (a) The department or agency head may require that department or 
agency support for any project be terminated or suspended in the manner 
prescribed in applicable program requirements, when the department or 
agency head finds an institution has materially failed to comply with 
the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragarph (a) of this section and 
whether the applicant or the person or persons who would direct or has/
have directed the scientific and technical aspects of an activity has/
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
Federal regulation).



Sec. 11.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head may impose additional conditions 
prior to or at the time of approval when in the judgment of the 
department or agency head additional conditions are necessary for the 
protection of human subjects.



PART 17--INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF TRANSPORTATION PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
17.1  What is the purpose of these regulations?
17.2  What definitions apply to these regulations?
17.3  What programs and activities of the Department are subject to 
          these regulations?
17.4  [Reserved]
17.5  What is the Secretary's obligation with respect to Federal 
          interagency coordination?
17.6  What procedures apply to the selection of programs and activities 
          under these regulations?
17.7  How does the Secretary communicate with state and local officials 
          concerning the Department's programs and activities?
17.8  How does the secretary provide states an opportunity to comment on 
          proposed Federal financial assistance and direct Federal 
          development?
17.9  How does the Secretary receive and respond to comments?
17.10  How does the Secretary make efforts to accommodate 
          intergovernmental concerns?
17.11  What are the Secretary's obligations in interstate situations?
17.12  How may a state simplify, consolidate, or substitute federally 
          required state plans?
17.13  May the Secretary waive any provision of these regulations?

    Authority: Executive Order 12372, July 14, 1982 (47 FR 30959), as 
amended April 8, 1983 (48 FR 15887): sec. 401 of the Intergovernmental 
Cooperation Act of 1968, as amended (31 U.S.C. 6506); sec. 204 of the 
Demonstration Cities and Metropolitan Development Act of 1966, as 
amended (42 U.S.C. 3334).

    Source: 48 FR 29272, June 24, 1983, unless otherwise noted



Sec. 17.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982, 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968 and section 204 of the Demonstration Cities and 
Metropolitan Development Act of 1966.

[[Page 113]]

    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed Federal financial assistance and direct Federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec. 17.2  What definitions apply to these regulations?

    Department means the U.S. Department of Transportation.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983, and titled ``Intergovernmental Review of Federal 
Programs.''
    Secretary means the Secretary of the U.S. Department of 
Transportation or an official or employee of the Department acting for 
the Secretary under a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 17.3  What programs and activities of the Department are subject to these regulations?

    The Secretary publishes in the Federal Register a list of the 
Department's programs and activities that are subject to these 
regulations and identifies which of these are subject to the 
requirements of section 204 of the Demonstration Cities and Metropolitan 
Development Act.



Sec. 17.4  [Reserved]



Sec. 17.5  What is the Secretary's obligation with respect to Federal interagency coordination?

    The Secretary, to the extent practicable, consults with and seeks 
advice from all other substantially affected Federal departments and 
agencies in an effort to assure full coordination between such agencies 
and the Department regarding programs and activities covered under these 
regulations.



Sec. 17.6  What procedures apply to the selection of programs and activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 17.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Secretary of 
the Department's programs and activities selected for that process.
    (c) A state may notify the Secretary of changes in its selections at 
any time. For each change, the state shall submit to the Secretary an 
assurance that the state has consulted with elected local elected 
officials regarding the change. The Department may establish deadlines 
by which states are required to inform the Secretary of changes in their 
program selections.
    (d) The Secretary uses a state's process as soon as feasible, 
depending on individual programs, and activities, after the Secretary is 
notified of its selections.



Sec. 17.7  How does the Secretary communicate with state and local officials concerning the Department's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 17.6, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine views of state and local 
elected officials; and,
    (2) Communicates with state and local elected officials, through the 
state process, as early in a program planning cycle as is reasonably 
feasible to explain specific plans and actions.
    (b) The Secretary provides notice to directly affected state, 
areawide, regional, and local entities in a state of proposed Federal 
financial assistance or direct Federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process.


[[Page 114]]



This notice may be made by publication in the Federal Register or other 
appropriate means, which the Department in its discretion deems 
appropriate.



Sec. 17.8  How does the Secretary provide states an opportunity to comment on proposed Federal financial assistance and direct Federal development?

    (a) Except in unusual circumstances, the Secretary gives state 
processes or state, areawide, regional and local officials and entities 
at least:
    (1) [Reserved]
    (2) 60 days from the date established by the Secretary to comment on 
proposed direct Federal development or Federal financial assistance.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.
    (c) Applicants for programs and activities subject to section 204 of 
the Demonstration Cities and Metropolitan Act shall allow areawide 
agencies a 60-day opportunity for review and comment.



Sec. 17.9  How does the Secretary receive and respond to comments?

    (a) The Secretary follows the procedures in Sec. 17.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 17.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional and local 
officials and entities may submit comments either to the applicant or to 
the Department.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional and local officials and entities may submit 
comments either to the applicant or to the Department. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Department by the single point of contact, the 
Secretary follows the procedures of Sec. 17.10 of this part.
    (e) The Secretary considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Secretary is not required to apply the procedures of Sec. 17.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Department by a commenting party.



Sec. 17.10  How does the Secretary make efforts to accommodate intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Secretary 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with a written explanation 
of the decision, in such form as the Secretary in his or her discretion 
deems appropriate. The Secretary may also supplement the written 
explanation by providing the explanation to the single point of contact 
by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Secretary informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Secretary has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1)

[[Page 115]]

of this section, a single point of contact is presumed to have received 
written notification 5 days after the date of mailing of such 
notification.



Sec. 17.11  What are the Secretary's obligations in interstate situations?

    (a) The Secretary is responsible for:
    (1) Identifying proposed federal financial assistance and direct 
federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Department's program or 
activity.
    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Department's program or activity;
    (4) Responding pursuant to Sec. 17.10 of this part if the Secretary 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with the Department have been delegated.
    (b) The Secretary uses the procedures in Sec. 17.10 if a state 
process provides a state process recommendation to the Department 
through a single point of contact.



Sec. 17.12  How may a state simplify, consolidate, or substitute federally required state plans?

    (a) As used in this section:
    (1) Simplify means that a state may develop its own format, choose 
its own submission date, and select the planning period for a state 
plan.
    (2) Consolidate means that a state may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the state can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a state may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.
    (b) If not inconsistent with law, a state may decide to try to 
simplify, consolidate, or substitute federally required state plans 
without prior approval by the Secretary.
    (c) The Secretary reviews each state plan that a state has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet federal requirements.



Sec. 17.13  May the Secretary waive any provision of these regulations?

    In an emergency, the Secretary may waive any provision of these 
regulations.



PART 18--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents


                           Subpart A--General

Sec.
18.1  Purpose and scope of this part.
18.2  Scope of subpart.
18.3  Definitions.
18.4  Applicability.
18.5  Effect on other issuances.
18.6  Additions and exceptions.

                    Subpart B--Pre-Award Requirements

18.10  Forms for applying for grants.
18.11  State plans.
18.12  Special grant or subgrant conditions for ``high risk'' grantees.

                   Subpart C--Post-Award Requirements

                        Financial Administration

18.20  Standards for financial management systems.
18.21  Payment.
18.22  Allowable costs.
18.23  Period of availability of funds.
18.24  Matching or cost sharing.
18.25  Program income.
18.26  Non-Federal audits.

                    Changes, Property, and Subawards

18.30  Changes.
18.31  Real property.
18.32  Equipment.
18.33  Supplies.
18.34  Copyrights.
18.35  Subawards to debarred and suspended parties.
18.36  Procurement.
18.37  Subgrants.

[[Page 116]]

              Reports, Records, Retention, and Enforcement

18.40  Monitoring and reporting program performance.
18.41  Financial reporting.
18.42  Retention and access requirements for records.
18.43  Enforcememt.
18.44  Termination for convenience.

                 Subpart D--After-the-Grant Requirements

18.50  Closeout.
18.51  Later disallowances and adjustments.
18.52  Collection of amounts due.

                   Subpart E--Entitlements [Reserved]

    Authority: 49 U.S.C. 322(a).

    Source: 53 FR 8086 and 8087, Mar. 11, 1988, unless otherwise noted.

    Editorial Note: For additional information, see related documents 
published at 49 FR 24958, June 18, 1984, 52 FR 20198, May 29, 1987, and 
53 FR 8028, March 11, 1988.



                      Subpart A--General



Sec. 18.1  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec. 18.2  Scope of subpart.

    This subpart contains general rules pertaining to this part and 
procedures for control of exceptions from this part.



Sec. 18.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from ``programmatic'' 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for ``grant'' and 
``subgrant'' in this section and except where qualified by ``Federal'') 
a procurement contract under a grant or subgrant, and means a 
procurement subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs of a federally assisted 
project or program not borne by the Federal Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on

[[Page 117]]

the basis of the costs it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 
688) certified by the Secretary of the Interior as eligible for the 
special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the United States Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's

[[Page 118]]

portion of the acquiring party's total costs under the grant to which 
the acquisition costs under the grant to which the acquisition cost of 
the property was charged. Only costs are to be counted--not the value of 
third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial assistance when 
provided by contractual legal agreement, but does not include 
procurement purchases, nor does it include any form of assistance which 
is excluded from the definition of ``grant'' in this part.
    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than 
``equipment'' as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. ``Termination'' does not include: (1) 
Withdrawal of funds awarded on the basis of the grantee's underestimate 
of the unobligated balance in a prior period; (2) Withdrawal of the 
unobligated balance as of the expiration of a grant; (3) Refusal to 
extend a grant or award additional funds, to make a competing or 
noncompeting continuation, renewal, extension, or supplemental award; or 
(4) voiding of a grant upon determination that the award was obtained 
fraudulently, or was otherwise illegal or invalid from inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec. 18.4  Applicability.

    (a) General. Subparts A through D of this part apply to all grants 
and subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec. 18.6, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income

[[Page 119]]

Home Energy Assistance; States' Program of Community Development Block 
Grants for Small Cities; and Elementary and Secondary Education other 
than programs administered by the Secretary of Education under title V, 
subtitle D, chapter 2, Section 583--the Secretary's discretionary grant 
program) and titles I-III of the Job Training Partnership Act of 1982 
and under the Public Health Services Act (Section 1921), Alcohol and 
Drug Abuse Treatment and Rehabilitation Block Grant and part C of title 
V, Mental Health Service for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 18.4(a) (3) through (8) are subject to subpart E.



Sec. 18.5  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec. 18.6.



Sec. 18.6  Additions and exceptions.

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.
    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (1) All Departmental requests for exceptions shall be processed 
through the Assistant Secretary of Administration.
    (2) [Reserved]
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.

[[Page 120]]

    (1) All case-by-case exceptions may be authorized by the affected 
operating administrations or departmental offices, with the concurrence 
of the Assistant Secretary for Administration.
    (2) [Reserved]

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 60 FR 19646, Apr. 19, 
1995]



                    Subpart B--Pre-Award Requirements



Sec. 18.10  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.
    (3) Forms and procedures for Federal Highway Administration (FHWA) 
projects are contained in 23 CFR part 630, subpart B, 23 CFR part 420, 
subpart A, and 49 CFR part 450.
    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those prescribed by the granting agency 
with the approval of OMB under the Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 
1988]



Sec. 18.11  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive order.
    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.

[[Page 121]]



Sec. 18.12  Special grant or subgrant conditions for ``high-risk'' grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or
    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grante or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions; and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.



                   Subpart C--Post-Award Requirements

                        Financial Administration



Sec. 18.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information

[[Page 122]]

must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.
    (d) Certain Urban Mass Transportation Administration (UMTA) grantees 
shall comply with the requirements of section 15 of the Urban Mass 
Transportation (UMT) Act of 1964, as amended, as implemented by 49 CFR 
part 630, regarding a uniform system of accounts and records and a 
uniform reporting system for certain grantees.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 
1988]



Sec. 18.21  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for

[[Page 123]]

its actual cash disbursements. The working capital advance method of 
payment shall not be used by grantees or subgrantees if the reason for 
using such method is the unwillingness or inability of the grantee to 
provide timely advances to the subgrantee to meet the subgrantee's 
actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions or
    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec. 18.43(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.
    (j) 23 U.S.C. 121 limits payments to States for highway construction 
projects to the Federal share of the costs of construction incurred to 
date, plus the Federal share of the value of stockpiled materials.
    (k) Section 404 of the Surface Transportation Assistance Act of 1982 
directs the Secretary to reimburse States for the Federal share of costs 
incurred.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 
1988]



Sec. 18.22  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
    (2) Reasonable fees or profit to cost-type contractors but not any 
fee or profit (or other increment above allowable costs) to the grantee 
or subgrantee.
    (b) Applicable cost principles. For each kind of organization, there 
is a set of Federal principles for determining allowable costs. 
Allowable costs will be determined in accordance with the cost 
principles applicable to the organization incurring the costs. The 
following chart lists the kinds of organizations and the applicable cost 
principles.

------------------------------------------------------------------------
           For the costs of a--                Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.

[[Page 124]]

 
Private nonprofit organization other than   OMB Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21.
For-profit organization other than a        48 CFR part 31. Contract
 hospital and an organization named in OBM   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.
------------------------------------------------------------------------

    (c) The overhead cost principles of OMB Circular A-87 shall not 
apply to State highway agencies for FHWA funded grants.
    (d) Sections 3(1) and 9(p) of the UMT Act of 1964, as amended, 
authorize the Secretary to include in the net project cost eligible for 
Federal assistance, the amount of interest earned and payable on bonds 
issued by the State or local public body to the extent that the proceeds 
of such bonds have actually been expended in carrying out such project 
or portion thereof. Limitations are established in sections 3 and 9 of 
the UMT Act of 1964, as amended.
    (e) Section 9 of the UMT Act of 1964, as amended, authorizes grants 
to finance the leasing of facilities and equipment for use in mass 
transportation services provided leasing is more cost effective than 
acquisition or construction.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 
1988]



Sec. 18.23  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover of unobligated balances is permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.
    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.



Sec. 18.24  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 18.25, shall not count towards satisfying a 
cost sharing or matching requirement unless they are expressly permitted 
in the terms of the assistance agreement. (This use of general program 
income is described in Sec. 18.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors

[[Page 125]]

under a grant may earn income from the activities carried out under the 
contract in addition to the amounts earned from the party awarding the 
contract. No costs of services or property supported by this income may 
count toward satisfying a cost sharing or matching requirement unless 
other provisions of the grant agreement expressly permit this kind of 
income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (8) 23 U.S.C. 121(a) permits reimbursement for actual construction 
cost incurred by States for highway construction projects. Except for 
private donations of right-of-way, contributions and donations shall not 
be considered State costs, and shall not be allowable for matching 
purposes for highway construction contracts. 23 U.S.C. 323 permits 
private donations of right-of-way to be used for a State's matching 
share, and establishes procedures for determining the fair market value 
of such donated right-of-way.
    (9) Section 4(a) of the UMT Act of 1964, as amended, provides that 
the Federal grant for any project to be assisted under section 3 of the 
UMT Act of 1964, as amended, shall be in an amount equal to 75 percent 
of the net project costs. Net project cost is defined as that portion of 
the cost of the project which cannot be reasonably financed from 
revenues.
    (10) Section 18(e) of the UMT Act of 1964, as amended, limits the 
Federal share to 80 percent of the net cost of construction, as 
determined by the Secretary of Transportation. The Federal share for the 
payment of subsidies for operating expenses, as defined by the 
Secretary, shall not exceed 50 percent of the net cost of such operating 
expense projects.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal

[[Page 126]]

line of work, the services will be valued at the employee's regular rate 
of pay exclusive of the employee's fringe benefits and overhead costs. 
If the services are in a different line of work, paragraph (c)(1) of 
this section applies.
    (3) Section 5(g) of the Department of Transportation Act (49 U.S.C. 
1654(g)) limits in-kind service contributions under the local Rail 
Service Assistance Program to ``the cash equivalent of State salaries 
for State public employees working in the State rail assistance program, 
but not including overhead and general administrative costs.''
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec. 18.22, in the same way as depreciation or 
use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 
1988]



Sec. 18.25  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds,

[[Page 127]]

from the sale of commodities or items fabricated under a grant 
agreement, and from payments of principal and interest on loans made 
with grant funds. Except as otherwise provided in regulations of the 
Federal agency, program income does not include interest on grant funds, 
rebates, credits, discounts, refunds, etc. and interest earned on any of 
them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. ``During the grant period'' is the time between 
the effective date of the award and the ending date of the award 
reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 18.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Secs. 18.31 and 
18.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (4) Section 3(a)(1)(D) of the UMT Act of 1964, as amended, provides 
that the Secretary shall establish requirements for the use of income 
derived from appreciated land values for certain UMTA grants. Specific 
requirements shall be contained in grant agreements.
    (5) UMTA grantees may retain program income for allowable capital or 
operating expenses.
    (6) For grants awarded under section 9 of the UMT Act of 1964, as 
amended, any revenues received from the sale of advertising and 
concessions in excess of fiscal year 1985 levels shall be excluded from 
program income.
    (7) 23 U.S.C. 156 requires that States shall charge fair market 
value for the sale, lease, or use of right-of-way airspace for non-
transportation purposes and that such income shall be used for projects 
eligible under 23 U.S.C.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a)

[[Page 128]]

of this section), unless the terms of the agreement or the Federal 
agency regulations provide otherwise.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 
1988]



Sec. 18.26  Non-Federal audits.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing goods and services to State and local 
governments are not required to have a single audit performed. State and 
local governments should use their own procedures to ensure that the 
contractor has complied with laws and regulations affecting the 
expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 18.36 
shall be followed.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 61 FR 21387, May 10, 
1996; 62 FR 45939, 45947, Aug. 29, 1997]

                    Changes, Property, and Subawards



Sec. 18.30  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 18.22) contain requirements for prior approval of certain types of 
costs. Except where waived, those requirements apply to all grants and 
subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct

[[Page 129]]

payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec. 18.36 but does not apply to the procurement of equipment, supplies, 
and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 18.22) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec. 18.31  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency.

[[Page 130]]

The amount due to the awarding agency will be calculated by applying the 
awarding agency's percentage of participation in the cost of the 
original purchase to the proceeds of the sale after deduction of any 
actual and reasonable selling and fixing-up expenses. If the grant is 
still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.
    (d) If the conditions in 23 U.S.C. 103(e) (5), (6), or (7), as 
appropriate, are met and approval is given by the Secretary, States 
shall not be required to repay the Highway Trust Fund for the cost of 
right-of-way and other items when certain segments of the Interstate 
System are withdrawn.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 
1988]



Sec. 18.32  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 18.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.

[[Page 131]]

    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third part 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow Sec. 18.32(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec. 18.33  Supplies.

    (a) Title. Title to supplies acquired under a grant or subgrant will 
vest, upon acquisition, in the grantee or subgrantee respectively.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are not needed for any 
other federally sponsored programs or projects, the grantee or 
subgrantee shall compensate the awarding agency for its share.



Sec. 18.34  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.



Sec. 18.35  Subawards to debarred and suspended parties.

    Grantees and subgrantees must not make any award or permit any award 
(subgrant or contract) at any tier to any party which is debarred or 
suspended or is otherwise excluded from or ineligible for participation 
in Federal assistance programs under Executive Order 12549, ``Debarment 
and Suspension.''

[[Page 132]]



Sec. 18.36  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will follow paragraphs (b) 
through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable Federal law and the standards identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms, conditions, and specifications of their contracts or purchase 
orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or
    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of

[[Page 133]]

procurement, selection of contract type, contractor selection or 
rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec. 18.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name

[[Page 134]]

or equal'' description may be used as a means to define the performance 
or other salient requirements of a procurement. The specific features of 
the named brand which must be met by offerors shall be clearly stated; 
and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures are those relatively 
simple and informal procurement methods for securing services, supplies, 
or other property that do not cost more than the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If 
small purchase procedures are used, price or rate quotations shall be 
obtained from an adequate number of qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in Sec. 18.36(d)(2)(i) apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of

[[Page 135]]

architectural/engineering (A/E) professional services whereby 
competitors' qualifications are evaluated and the most qualified 
competitor is selected, subject to negotiation of fair and reasonable 
compensation. The method, where price is not used as a selection factor, 
can only be used in procurement of A/E professional services. It cannot 
be used to purchase other types of services though A/E firms are a 
potential source to perform the proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids or competitive proposals and one of the following 
circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed.

[[Page 136]]

To establish a fair and reasonable profit, consideration will be given 
to the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec. 18.22). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond,

[[Page 137]]

certified check, or other negotiable instrument accompanying a bid as 
assurance that the bidder will, upon acceptance of his bid, execute such 
contractual documents as may be required within the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the

[[Page 138]]

Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871).
    (j) 23 U.S.C. 112(a) directs the Secretary to require recipients of 
highway construction grants to use bidding methods that are ``effective 
in securing competition.'' Detailed construction contracting procedures 
are contained in 23 CFR part 635, subpart A.
    (k) Section 3(a)(2)(C) of the UMT Act of 1964, as amended, prohibits 
the use of grant or loan funds to support procurements utilizing 
exclusionary or discriminatory specifications.
    (l) 46 U.S.C. 1241(b)(1) and 46 CFR part 381 impose cargo preference 
requirements on the shipment of foreign made goods.
    (m) Section 165 of the Surface Transportation Assistance Act of 
1982, 49 U.S.C. 1601, section 337 of the Surface Transportation and 
Uniform Relocation Assistance Act of 1987, and 49 CFR parts 660 and 661 
impose Buy America provisions on the procurement of foreign products and 
materials.
    (n) Section 105(f) of the Surface Transportation Assistance Act of 
1982, section 106(c) of the Surface Transportation and Uniform 
Relocation Assistance Act of 1987, and 49 CFR part 23 impose 
requirements for the participation of disadvantaged business 
enterprises.
    (o) Section 308 of the Surface Transportation Assistance Act of 
1982, 49 U.S.C. 1068(b)(2), authorizes the use of competitive 
negotiation for the purchase of rolling stock as appropriate.
    (p) 23 U.S.C. 112(b) provides for an exemption to competitive 
bidding requirements for highway construction contracts in emergency 
situations.
    (q) 23 U.S.C. 112 requires concurrence by the Secretary before 
highway construction contracts can be awarded, except for projects 
authorized under the provisions of 23 U.S.C. 17l.
    (r) 23 U.S.C. 112(e) requires standardized contract clauses 
concerning site conditions, suspension or work, and material changes in 
the scope of the work for highway construction contracts.
    (s) 23 U.S.C. 140(b) authorizes the preferential employment of 
Indians on Indian Reservation road projects and contracts.
    (t) FHWA, UMTA, and Federal Aviation Administration (FAA) grantees 
and subgrantees shall extend the use of qualifications-based (e.g., 
architectural and engineering services) contract selection procedures to 
certain other related areas and shall award such contracts in the same 
manner as Federal contracts for architectural and engineering services 
are negotiated under Title IX of the Federal Property and Administrative 
Services Act of 1949, or equivalent State (or airport sponsor for FAA) 
qualifications-based requirements. For FHWA and UMTA programs, this 
provision applies except to the extent that a State adopts or has 
adopted by statute a formal procedure for the procurement of such 
services.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 
1988; 60 FR 19639, 19647, Apr. 19, 1995]



Sec. 18.37  Subgrants.

    (a) States. States shall follow state law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec. 18.42 is placed 
in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal

[[Page 139]]

statute and executive orders and their implementing regulations; and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 18.10;
    (2) Section 18.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 18.21; and
    (4) Section 18.50.

              Reports, Records, Retention, and Enforcement



Sec. 18.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.
    (1) Section 12(h) of the UMT Act of 1964, as amended, requires pre-
award testing of new buses models.
    (2) [Reserved]
    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.

[[Page 140]]

    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 
1988]



Sec. 18.41  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extent required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec. 18.41(e)(2)(iii).
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms

[[Page 141]]

of the award exempt the grantee from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 18.41(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs. (1) Grants that support construction activities paid by 
reimbursement method. (i) Requests for reimbursement under construction 
grants will be submitted on Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. Federal agencies may, 
however, prescribe the Request for Advance or Reimbursement form, 
specified in Sec. 18.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 18.41(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance. (i) When a 
construction grant is paid by letter of credit, electronic funds 
transfer or Treasury check advances, the grantee will report its outlays 
to the Federal agency using Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. The Federal agency will 
provide any necessary special instruction. However, frequency and due 
date shall be governed by Sec. 18.41(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in Sec. 18.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 18.41(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 18.41(b)(2).
    (f) Notwithstanding the provisions of paragraphs (a)(1) of this 
section, recipients of FHWA and National Highway Traffic Safety 
Administration (NHTSA) grants shall use FHWA, NHTSA or State financial 
reports.

[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 
1988]



Sec. 18.42  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic

[[Page 142]]

records, supporting documents, statistical records, and other records of 
grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec. 18.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from theend of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of

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grantees and subgrantees which are pertinent to the grant, in order to 
make audits, examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The right of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records unless required 
by Federal, State, or local law, grantees and subgrantees are not 
required to permit public access to their records.



Sec. 18.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 18.35).



Sec. 18.44  Termination for convenience.

    Except as provided in Sec. 18.43 awards may be terminated in whole 
or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the case of 
partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of the award will 
not accomplish the purposes for which the award was made, the awarding 
agency may terminate the award in its entirety under either Sec. 18.43 
or paragraph (a) of this section.



                 Subpart D--After-The-Grant Requirements



Sec. 18.50  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines

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that all applicable administrative actions and all required work of the 
grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:
    (1) Final performance or progress report.
    (2) Financial Status Report (SF 269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable).
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report:

In accordance with Sec. 18.32(f), a grantee must submit an inventory of 
all federally owned property (as distinct from property acquired with 
grant funds) for which it is accountable and request disposition 
instructions from the Federal agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.



Sec. 18.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 18.42;
    (d) Property management requirements in Secs. 18.31 and 18.32; and
    (e) Audit requirements in Sec. 18.26.



Sec. 18.52  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled under the terms of the 
award constitute a debt to the Federal Government. If not paid within a 
reasonable period after demand, the Federal agency may reduce the debt 
by:
    (1) Making an adminstrative offset against other requests for 
reimbursements,
    (2) Withholding advance payments otherwise due to the grantee, or
    (3) Other action permitted by law.
    (b) Except where otherwise provided by statutes or regulations, the 
Federal agency will charge interest on an overdue debt in accordance 
with the Federal Claims Collection Standards (4 CFR Ch. II). The date 
from which interest is computed is not extended by litigation or the 
filing of any form of appeal.



                   Subpart E--Entitlements [Reserved]



PART 19--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT ORGANIZATIONS--Table of Contents


                           Subpart A--General

Sec.
19.1  Purpose.
19.2  Definitions.
19.3  Effect on other issuances.
19.4  Deviations.
19.5  Subawards.
19.6  Availability of material referenced in this part.

                    Subpart B--Pre-Award Requirements

19.10  Purpose.
19.11  Pre-award policies.
19.12  Forms for applying for Federal assistance.
19.13  Debarment and suspension.
19.14  Special award conditions.
19.15  Metric system of measurement.
19.16  Resource Conservation and Recovery Act.
19.17  Certifications and representations.

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                   Subpart C--Post-Award Requirements

                    Financial and Program Management

19.20  Purpose of financial and program management.
19.21  Standards for financial management systems.
19.22  Payment.
19.23  Cost sharing or matching.
19.24  Program income.
19.25  Revision of budget and program plans.
19.26  Non-Federal audits.
19.27  Allowable costs.
19.28  Period of availability of funds.

                           Property Standards

19.30  Purpose of property standards.
19.31  Insurance coverage.
19.32  Real property.
19.33  Federally-owned and exempt property.
19.34  Equipment.
19.35  Supplies and other expendable property.
19.36  Intangible property.
19.37  Property trust relationship.

                          Procurement Standards

19.40  Purpose of procurement standards.
19.41  Recipient responsibilities.
19.42  Codes of conduct.
19.43  Competition.
19.44  Procurement procedures.
19.45  Cost and price analysis.
19.46  Procurement records.
19.47  Contract administration.
19.48  Contract provisions.

                           Reports and Records

19.50  Purpose of reports and records.
19.51  Monitoring and reporting program performance.
19.52  Financial reporting.
19.53  Retention and access requirements for records.

                       Termination and Enforcement

19.60  Purpose of termination and enforcement.
19.61  Termination.
19.62  Enforcement.

                 Subpart D--After-the-Award Requirements

19.70  Purpose.
19.71  Closeout procedures.
19.72  Subsequent adjustments and continuing responsibilities.
19.73  Collection of amounts due.

Appendix A to Part 19--Contract Provisions

    Authority: 49 U.S.C. 322(a).

    Source: 59 FR 15639, Apr. 4, 1994, unless otherwise noted.



                           Subpart A--General



Sec. 19.1  Purpose.

    This part establishes uniform administrative requirements for 
Federal grants and agreements awarded to institutions of higher 
education, hospitals, and other non-profit organizations. Federal 
awarding agencies shall not impose additional or inconsistent 
requirements, except as provided in Secs. 19.4 and 19.14 or unless 
specifically required by Federal statute or executive order. Non-profit 
organizations that implement Federal programs for the States are also 
subject to State requirements.



Sec. 19.2  Definitions.

    (a) Accrued expenditures means the charges incurred by the recipient 
during a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subrecipients, and 
other payees; and,
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.
    (b) Accrued income means the sum of: (1) Earnings during a given 
period from:
    (i) Services performed by the recipient, and
    (ii) Goods and other tangible property delivered to purchasers; and
    (2) Amounts becoming owed to the recipient for which no current 
services or performance is required by the recipient.
    (c) Acquisition cost of equipment means the net invoice price of the 
equipment, including the cost of modifications, attachments, 
accessories, or auxiliary apparatus necessary to make the property 
usable for the purpose for which it was acquired. Other charges, such as 
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit 
acquisition cost in accordance with the recipient's regular accounting 
practices.
    (d) Advance means a payment made by Treasury check or other 
appropriate payment mechanism to a recipient upon its request either 
before outlays

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are made by the recipient or through the use of predetermined payment 
schedules.
    (e) Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
the Federal Government to an eligible recipient. The term does not 
include: Technical assistance, which provides services instead of money; 
other assistance in the form of loans, loan guarantees, interest 
subsidies, or insurance; direct payments of any kind to individuals; 
and, contracts which are required to be entered into and administered 
under procurement laws and regulations.
    (f) Cash contributions means the recipient's cash outlay, including 
the outlay of money contributed to the recipient by third parties.
    (g) Closeout means the process by which a Federal awarding agency 
determines that all applicable administrative actions and all required 
work of the award have been completed by the recipient and Federal 
awarding agency.
    (h) Contract means a procurement contract under an award or 
subaward, and a procurement subcontract under a recipient's or 
subrecipient's contract.
    (i) Cost sharing or matching means that portion of project or 
program costs not borne by the Federal Government.
    (j) Date of completion means the date on which all work under an 
award is completed or the date on the award document, or any supplement 
or amendment thereto, on which Federal sponsorship ends.
    (k) Disallowed costs means those charges to an award that the 
Federal awarding agency determines to be unallowable, in accordance with 
the applicable Federal cost principles or other terms and conditions 
contained in the award.
    (l) Equipment means tangible nonexpendable personal property 
including exempt property charged directly to the award having a useful 
life of more than one year and an acquisition cost of $5,000 or more per 
unit. However, consistent with recipient policy, lower limits may be 
established.
    (m) Excess property means property under the control of any Federal 
awarding agency that, as determined by the head thereof, is no longer 
required for its needs or the discharge of its responsibilities.
    (n) Exempt property means tangible personal property acquired in 
whole or in part with Federal funds, where the Federal awarding agency 
has statutory authority to vest title in the recipient without further 
obligation to the Federal Government. An example of exempt property 
authority is contained in the Federal Grant and Cooperative Agreement 
Act (31 U.S.C. 6306), for property acquired under an award to conduct 
basic or applied research by a non-profit institution of higher 
education or non-profit organization whose principal purpose is 
conducting scientific research.
    (o) Federal awarding agency means the Federal agency that provides 
an award to the recipient. Except for the specific review requirements 
for deviations in Sec. 19.4, for Department of Transportation (DOT) 
awards, it means the DOT operating administration or departmental office 
that made the award.
    (p) Federal funds authorized means the total amount of Federal funds 
obligated by the Federal Government for use by the recipient. This 
amount may include any authorized carryover of unobligated funds from 
prior funding periods when permitted by agency regulations or agency 
implementing instructions.
    (q) Federal share of real property, equipment, or supplies means 
that percentage of the property's acquisition costs and any improvement 
expenditures paid with Federal funds.
    (r) Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    (s) Intangible property and debt instruments means, but is not 
limited to, trademarks, copyrights, patents and patent applications and 
such property as loans, notes and other debt instruments, lease 
agreements, stock and other instruments of property ownership, whether 
considered tangible or intangible.
    (t) Obligations means the amounts of orders placed, contracts and 
grants

[[Page 147]]

awarded, services received and similar transactions during a given 
period that require payment by the recipient during the same or a future 
period.
    (u) Outlays or expenditures means charges made to the project or 
program. They may be reported on a cash or accrual basis. For reports 
prepared on a cash basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
charged, the value of third party in-kind contributions applied and the 
amount of cash advances and payments made to subrecipients. For reports 
prepared on an accrual basis, outlays are the sum of cash disbursements 
for direct charges for goods and services, the amount of indirect 
expense incurred, the value of in-kind contributions applied, and the 
net increase (or decrease) in the amounts owed by the recipient for 
goods and other property received, for services performed by employees, 
contractors, subrecipients and other payees and other amounts becoming 
owed under programs for which no current services or performance are 
required.
    (v) Personal property means property of any kind except real 
property. It may be tangible, having physical existence, or intangible, 
having no physical existence, such as copyrights, patents, or 
securities.
    (w) Prior approval means written approval by an authorized official 
evidencing prior consent.
    (x) Program income means gross income earned by the recipient that 
is directly generated by a supported activity or earned as a result of 
the award (see exclusions in Secs. 19.24 (e) and (h)). Program income 
includes, but is not limited to, income from fees for services 
performed, the use or rental of real or personal property acquired under 
federally-funded projects, the sale of commodities or items fabricated 
under an award, license fees and royalties on patents and copyrights, 
and interest on loans made with award funds. Interest earned on advances 
of Federal funds is not program income. Except as otherwise provided in 
Federal awarding agency regulations or the terms and conditions of the 
award, program income does not include the receipt of principal on 
loans, rebates, credits, discounts, etc., or interest earned on any of 
them.
    (y) Project costs means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred by a recipient and the 
value of the contributions made by third parties in accomplishing the 
objectives of the award during the project period.
    (z) Project period means the period established in the award 
document during which Federal sponsorship begins and ends.
    (aa) Property means, unless otherwise stated, real property, 
equipment, intangible property and debt instruments.
    (bb) Real property means land, including land improvements, 
structures and appurtenances thereto, but excludes movable machinery and 
equipment.
    (cc) Recipient means an organization receiving financial assistance 
directly from Federal awarding agencies to carry out a project or 
program. The term includes public and private institutions of higher 
education, public and private hospitals, and other quasi-public and 
private non-profit organizations such as, but not limited to, community 
action agencies, research institutes, educational associations, and 
health centers. The term may include commercial organizations, foreign 
or international organizations (such as agencies of the United Nations) 
which are recipients, subrecipients, or contractors or subcontractors of 
recipients or subrecipients at the discretion of the Federal awarding 
agency. The term does not include government-owned contractor-operated 
facilities or research centers providing continued support for mission-
oriented, large-scale programs that are government-owned or controlled, 
or are designated as federally-funded research and development centers.
    (dd) Research and development means all research activities, both 
basic and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions. ``Research'' 
is defined as a systematic study directed toward fuller scientific 
knowledge or understanding of the subject studied. ``Development'' is 
the systematic use of knowledge and

[[Page 148]]

understanding gained from research directed toward the production of 
useful materials, devices, systems, or methods, including design and 
development of prototypes and processes. The term research also includes 
activities involving the training of individuals in research techniques 
where such activities utilize the same facilities as other research and 
development activities and where such activities are not included in the 
instruction function.
    (ee) Small awards means a grant or cooperative agreement not 
exceeding the small purchase threshold fixed at 41 U.S.C. 403(11) 
(currently $25,000).
    (ff) Subaward means an award of financial assistance in the form of 
money, or property in lieu of money, made under an award by a recipient 
to an eligible subrecipient or by a subrecipient to a lower tier 
subrecipient. The term includes financial assistance when provided by 
any legal agreement, even if the agreement is called a contract, but 
does not include procurement of goods and services nor does it include 
any form of assistance which is excluded from the definition of 
``award'' in paragraph (e) of this section.
    (gg) Subrecipient means the legal entity to which a subaward is made 
and which is accountable to the recipient for the use of the funds 
provided. The term may include foreign or international organizations 
(such as agencies of the United Nations) at the discretion of the 
Federal awarding agency.
    (hh) Supplies means all personal property excluding equipment, 
intangible property, and debt instruments as defined in this section, 
and inventions of a contractor conceived or first actually reduced to 
practice in the performance of work under a funding agreement (``subject 
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts, and Cooperative Agreements.''
    (ii) Suspension means an action by a Federal awarding agency that 
temporarily withdraws Federal sponsorship under an award, pending 
corrective action by the recipient or pending a decision to terminate 
the award by the Federal awarding agency. Suspension of an award is a 
separate action from suspension under Federal agency regulations 
implementing E.O.s 12549 and 12689, ``Debarment and Suspension.''
    (jj) Termination means the cancellation of Federal sponsorship, in 
whole or in part, under an agreement at any time prior to the date of 
completion.
    (kk) Third party in-kind contributions means the value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting and specifically identifiable to the project or 
program.
    (ll) Unliquidated obligations, for financial reports prepared on a 
cash basis, means the amount of obligations incurred by the recipient 
that have not been paid. For reports prepared on an accrued expenditure 
basis, they represent the amount of obligations incurred by the 
recipient for which an outlay has not been recorded.
    (mm) Unobligated balance means the portion of the funds authorized 
by the Federal awarding agency that has not been obligated by the 
recipient and is determined by deducting the cumulative obligations from 
the cumulative funds authorized.
    (nn) Unrecovered indirect cost means the difference between the 
amount awarded and the amount which could have been awarded under the 
recipient's approved negotiated indirect cost rate.
    (oo) Working capital advance means a procedure whereby funds are 
advanced to the recipient to cover its estimated disbursement needs for 
a given initial period.



Sec. 19.3  Effect on other issuances.

    For awards subject to this part, all administrative requirements of 
codified program regulations, program manuals, handbooks and other non-
regulatory materials which are inconsistent with the requirements of 
this part are superseded, except to the extent they are required by 
statute, or authorized in accordance with the deviations provision in 
Sec. 19.4.

[[Page 149]]



Sec. 19.4  Deviations.

    The Office of Management and Budget (OMB) may grant exceptions for 
classes of grants or recipients subject to the requirements of this part 
when exceptions are not prohibited by statute. However, in the interest 
of maximum uniformity, exceptions from the requirements of this part 
shall be permitted only in unusual circumstances. Federal awarding 
agencies may apply more restrictive requirements to a class of 
recipients when approved by OMB. All requests for class deviations shall 
be processed through the Assistant Secretary for Administration. Federal 
awarding agencies may apply less restrictive requirements when awarding 
small awards, except for those requirements which are statutory, subject 
to the concurrence of the Assistant Secretary for Administration. 
Exceptions on a case-by-case basis may also be made by Federal awarding 
agencies, with the concurrence of the Assistant Secretary for 
Administration to ensure conformance with Department of Transportation 
grant administration policies.



Sec. 19.5  Subawards.

    Unless sections of this part specifically exclude subrecipients from 
coverage, the provisions of this part shall be applied to subrecipients 
performing work under awards if such subrecipients are institutions of 
higher education, hospitals or other non-profit organizations. State and 
local government subrecipients are subject to the provisions of 49 CFR 
part 18, ``Uniform Administrative Requirements for Grants and 
Cooperative Agreements to State and Local Governments.''



Sec. 19.6  Availability of material referenced in this part.

    (a) Copies of Federal Transit Administration (FTA) documents 
identified in this part may be obtained by calling the FTA 
Administrative Services Division at (202) 366-4865.
    (b) Copies of Federal Aviation Administration (FAA) documents 
identified in this part may be obtained by calling the FAA Program 
Guidance Branch at (202) 267-3831.



                    Subpart B--Pre-Award Requirements



Sec. 19.10  Purpose.

    Sections 19.11 through 19.17 prescribes forms and instructions and 
other pre-award matters to be used in applying for Federal awards.



Sec. 19.11  Pre-award policies.

    (a) Use of grants and cooperative agreements, and contracts. In each 
instance, the Federal awarding agency shall decide on the appropriate 
award instrument (i.e., grant, cooperative agreement, or contract). The 
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301-08) governs 
the use of grants, cooperative agreements and contracts. A grant or 
cooperative agreement shall be used only when the principal purpose of a 
transaction is to accomplish a public purpose of support or stimulation 
authorized by Federal statute. The statutory criterion for choosing 
between grants and cooperative agreements is that for the latter, 
``substantial involvement is expected between the executive agency and 
the State, local government, or other recipient when carrying out the 
activity contemplated in the agreement.'' Contracts shall be used when 
the principal purpose is acquisition of property or services for the 
direct benefit or use of the Federal Government.
    (b) Public notice and priority setting. Federal awarding agencies 
shall notify the public of its intended funding priorities for 
discretionary grant programs, unless funding priorities are established 
by Federal statute.



Sec. 19.12  Forms for applying for Federal assistance.

    (a) Federal awarding agencies shall comply with the applicable 
report clearance requirements of 5 CFR part 1320, ``Controlling 
Paperwork Burdens on the Public,'' with regard to all forms used by the 
Federal awarding agency in place of or as a supplement to the Standard 
Form 424 (SF-424) series.
    (b) Applicants shall use the SF-424 series or those forms and 
instructions prescribed by the Federal awarding agency.

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    (c) For Federal programs covered by E.O. 12372, ``Intergovernmental 
Review of Federal Programs,'' as implemented at 49 CFR part 17, 
Intergovernmental review of Department of Transportation programs and 
activities, the applicant shall complete the appropriate sections of the 
SF-424 (Application for Federal Assistance) indicating whether the 
application was subject to review by the State Single Point of Contact 
(SPOC). The name and address of the SPOC for a particular State can be 
obtained from the Federal awarding agency or the Catalog of Federal 
Domestic Assistance. The SPOC shall advise the applicant whether the 
program for which application is made has been selected by that State 
for review.
    (d) Federal awarding agencies that do not use the SF-424 form should 
indicate whether the application is subject to review by the State under 
E.O. 12372.



Sec. 19.13  Debarment and suspension.

    Federal awarding agencies and recipients shall comply with the 
nonprocurement debarment and suspension rule, 49 CFR part 29, 
``Governmentwide Debarment and Suspension (Nonprocurement) and 
Governmentwide Requirements for Drug-Free Workplace (Grants),'' 
implementing E.O.s 12549 and 12689, ``Debarment and Suspension.'' This 
rule restricts subawards and contracts with certain parties that are 
debarred, suspended or otherwise excluded from or ineligible for 
participation in Federal assistance programs or activities.



Sec. 19.14  Special award conditions.

    (a) Federal awarding agencies may impose additional requirements as 
needed, if an applicant or recipient:
    (1) Has a history of poor performance,
    (2) Is not financially stable,
    (3) Has a management system that does not meet the standards 
prescribed in this part,
    (4) Has not conformed to the terms and conditions of a previous 
award, or
    (5) Is not otherwise responsible.
    (b) Additional requirements may only be imposed provided that such 
applicant or recipient is notified in writing as to:
    (1) The nature of the additional requirements,
    (2) The reason why the additional requirements are being imposed,
    (3) The nature of the corrective action needed,
    (4) The time allowed for completing the corrective actions, and
    (5) The method for requesting reconsideration of the additional 
requirements imposed.
    (c) A copy of such notices shall be sent to the Assistant Secretary 
for Administration. Any special conditions shall be promptly removed 
once the conditions that prompted them have been corrected.



Sec. 19.15  Metric system of measurement.

    The Metric Conversion Act, as amended by the Omnibus Trade and 
Competitiveness Act (15 U.S.C. 205), declares that the metric system is 
the preferred measurement system for U.S. trade and commerce. The Act 
requires each Federal agency to establish a date or dates in 
consultation with the Secretary of Commerce, when the metric system of 
measurement will be used in the agency's procurements, grants, and other 
business-related activities. Metric implementation may take longer where 
the use of the system is initially impractical or likely to cause 
significant inefficiencies in the accomplishment of federally-funded 
activities. Federal awarding agencies shall follow the provisions of 
E.O. 12770, ``Metric Usage in Federal Government Programs.''



Sec. 19.16  Resource Conservation and Recovery Act.

    Under the Act, any State agency or agency of a political subdivision 
of a State which is using appropriated Federal funds must comply with 
section 6002. Section 6002 requires that preference be given in 
procurement programs to the purchase of specific products containing 
recycled materials identified in guidelines developed by the 
Environmental Protection Agency (EPA) (40 CFR parts 247-254). 
Accordingly, State and local institutions of higher education, 
hospitals, and non-profit organizations that receive direct Federal 
awards or other Federal funds shall give preference in their procurement 
programs funded with Federal

[[Page 151]]

funds to the purchase of recycled products pursuant to the EPA 
guidelines.



Sec. 19.17  Certifications and representations.

    Unless prohibited by statute or codified regulation, each Federal 
awarding agency is authorized and encouraged to allow recipients to 
submit certifications and representations required by statute, executive 
order, or regulation on an annual basis, if the recipients have ongoing 
and continuing relationships with the agency. Annual certifications and 
representations shall be signed by responsible officials with the 
authority to ensure recipients' compliance with the pertinent 
requirements.



                   Subpart C--Post-Award Requirements

                    Financial and Program Management



Sec. 19.20  Purpose of financial and program management.

    Sections 19.21 through 19.28 prescribe standards for financial 
management systems, methods for making payments and rules for: 
satisfying cost sharing and matching requirements, accounting for 
program income, budget revision approvals, making audits, determining 
allowability of cost, and establishing fund availability.



Sec. 19.21  Standards for financial management systems.

    (a) Federal awarding agencies shall require recipients to relate 
financial data to performance data and develop unit cost information 
whenever practical.
    (b) Recipients' financial management systems shall provide for the 
following.
    (1) Accurate, current and complete disclosure of the financial 
results of each federally-sponsored project or program in accordance 
with the reporting requirements set forth in Sec. 19.52. If a Federal 
awarding agency requires reporting on an accrual basis from a recipient 
that maintains its records on other than an accrual basis, the recipient 
shall not be required to establish an accrual accounting system. These 
recipients may develop such accrual data for its reports on the basis of 
an analysis of the documentation on hand.
    (2) Records that identify adequately the source and application of 
funds for federally-sponsored activities. These records shall contain 
information pertaining to Federal awards, authorizations, obligations, 
unobligated balances, assets, outlays, income and interest.
    (3) Effective control over and accountability for all funds, 
property and other assets. Recipients shall adequately safeguard all 
such assets and assure they are used solely for authorized purposes.
    (4) Comparison of outlays with budget amounts for each award. 
Whenever appropriate, financial information should be related to 
performance and unit cost data.
    (5) Written procedures to minimize the time elapsing between the 
transfer of funds to the recipient from the U.S. Treasury and the 
issuance or redemption of checks, warrants or payments by other means 
for program purposes by the recipient. To the extent that the provisions 
of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, 
payment methods of State agencies, instrumentalities, and fiscal agents 
shall be consistent with CMIA Treasury-State Agreements or the CMIA 
default procedures codified at 31 CFR part 205, ``Withdrawal of Cash 
from the Treasury for Advances under Federal Grant and Other Programs.''
    (6) Written procedures for determining the reasonableness, 
allocability and allowability of costs in accordance with the provisions 
of the applicable Federal cost principles and the terms and conditions 
of the award.
    (7) Accounting records including cost accounting records that are 
supported by source documentation.
    (c) Where the Federal Government guarantees or insures the repayment 
of money borrowed by the recipient, the Federal awarding agency, at its 
discretion, may require adequate bonding and insurance if the bonding 
and insurance requirements of the recipient are not deemed adequate to 
protect the interest of the Federal Government.
    (d) The Federal awarding agency may require adequate fidelity bond 
coverage where the recipient lacks sufficient coverage to protect the 
Federal Government's interest.

[[Page 152]]

    (e) Where bonds are required in the situations described above, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties, as prescribed in 31 CFR part 223, ``Surety 
Companies Doing Business with the United States.''



Sec. 19.22  Payment.

    (a) Payment methods shall minimize the time elapsing between the 
transfer of funds from the United States Treasury and the issuance or 
redemption of checks, warrants, or payment by other means by the 
recipients. Payment methods of State agencies or instrumentalities shall 
be consistent with Treasury-State CMIA agreements or default procedures 
codified at 31 CFR part 205.
    (b)(1) Recipients are to be paid in advance, provided they maintain 
or demonstrate the willingness to maintain:
    (i) Written procedures that minimize the time elapsing between the 
transfer of funds and disbursement by the recipient, and
    (ii) Financial management systems that meet the standards for fund 
control and accountability as established in section Sec. 19.21.
    (2) Cash advances to a recipient organization shall be limited to 
the minimum amounts needed and be timed to be in accordance with the 
actual, immediate cash requirements of the recipient organization in 
carrying out the purpose of the approved program or project. The timing 
and amount of cash advances shall be as close as is administratively 
feasible to the actual disbursements by the recipient organization for 
direct program or project costs and the proportionate share of any 
allowable indirect costs.
    (c) Whenever possible, advances shall be consolidated to cover 
anticipated cash needs for all awards made by the Federal awarding 
agency to the recipient.
    (1) Advance payment mechanisms include, but are not limited to, 
Treasury check and electronic funds transfer.
    (2) Advance payment mechanisms are subject to 31 CFR part 205.
    (3) Recipients shall be authorized to submit requests for advances 
and reimbursements at least monthly when electronic fund transfers are 
not used.
    (d) Requests for Treasury check advance payment shall be submitted 
on SF-270, ``Request for Advance or Reimbursement,'' or other forms as 
may be authorized by OMB. This form is not to be used when Treasury 
check advance payments are made to the recipient automatically through 
the use of a predetermined payment schedule or if precluded by special 
Federal awarding agency instructions for electronic funds transfer.
    (e) Reimbursement is the preferred method when the requirements in 
paragraph (b) cannot be met. Federal awarding agencies may also use this 
method on any construction agreement, or if the major portion of the 
construction project is accomplished through private market financing or 
Federal loans, and the Federal assistance constitutes a minor portion of 
the project.
    (1) When the reimbursement method is used, the Federal awarding 
agency shall make payment within 30 days after receipt of the billing, 
unless the billing is improper.
    (2) Recipients shall be authorized to submit request for 
reimbursement at least monthly when electronic funds transfers are not 
used.
    (f) If a recipient cannot meet the criteria for advance payments and 
the Federal awarding agency has determined that reimbursement is not 
feasible because the recipient lacks sufficient working capital, the 
Federal awarding agency may provide cash on a working capital advance 
basis. Under this procedure, the Federal awarding agency shall advance 
cash to the recipient to cover its estimated disbursement needs for an 
initial period generally geared to the awardee's disbursing cycle. 
Thereafter, the Federal awarding agency shall reimburse the recipient 
for its actual cash disbursements. The working capital advance method of 
payment shall not be used for recipients unwilling or unable to provide 
timely advances to their subrecipient to meet the subrecipient's actual 
cash disbursements.
    (g) To the extent available, recipients shall disburse funds 
available from repayments to and interest earned on a revolving fund, 
program income, rebates, refunds, contract settlements,

[[Page 153]]

audit recoveries and interest earned on such funds before requesting 
additional cash payments.
    (h) Unless otherwise required by statute, Federal awarding agencies 
shall not withhold payments for proper charges made by recipients at any 
time during the project period unless the conditions in paragraphs 
(h)(1) or (2) of this section apply.
    (1) A recipient has failed to comply with the project objectives, 
the terms and conditions of the award, or Federal reporting 
requirements.
    (2) The recipient or subrecipient is delinquent in a debt to the 
United States as defined in OMB Circular A-129, ``Managing Federal 
Credit Programs.'' Under such conditions, the Federal awarding agency 
may, upon reasonable notice, inform the recipient that payments shall 
not be made for obligations incurred after a specified date until the 
conditions are corrected or the indebtedness to the Federal Government 
is liquidated.
    (i) Standards governing the use of banks and other institutions as 
depositories of funds advanced under awards are as follows.
    (1) Except for situations described in paragraph (i)(2) of this 
section, Federal awarding agencies shall not require separate depository 
accounts for funds provided to a recipient or establish any eligibility 
requirements for depositories for funds provided to a recipient. 
However, recipients must be able to account for the receipt, obligation 
and expenditure of funds.
    (2) Advances of Federal funds shall be deposited and maintained in 
insured accounts whenever possible.
    (j) Consistent with the national goal of expanding the opportunities 
for women-owned and minority-owned business enterprises, recipients 
shall be encouraged to use women-owned and minority-owned banks (a bank 
which is owned at least 50 percent by women or minority group members).
    (k) Recipients shall maintain advances of Federal funds in interest 
bearing accounts, unless the conditions in paragraphs (k)(1), (2) or (3) 
of this section apply.
    (1) The recipient receives less than $120,000 in Federal awards per 
year.
    (2) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
    (l) For those entities where CMIA and its implementing regulations 
do not apply, interest earned on Federal advances deposited in interest 
bearing accounts shall be remitted annually to Department of Health and 
Human Services, Payment Management System, P.O. Box 6021, Rockville, MD 
20852. Interest amounts up to $250 per year may be retained by the 
recipient for administrative expense. In keeping with Electric Funds 
Transfer rules, (31 CFR part 206), interest should be remitted to the 
HHS Payment Management System through an electric medium such as the 
FEDWIRE Deposit system. Recipients which do not have this capability 
should use a check. State universities and hospitals shall comply with 
CMIA, as it pertains to interest. If an entity subject to CMIA uses its 
own funds to pay pre-award costs for discretionary awards without prior 
written approval from the Federal awarding agency, it waives its right 
to recover the interest under CMIA.
    (m) Except as noted elsewhere in this part, only the following forms 
shall be authorized for the recipients in requesting advances and 
reimbursements. Federal agencies shall not require more than an original 
and two copies of these forms.
    (1) SF-270, Request for Advance or Reimbursement. Each Federal 
awarding agency shall adopt the SF-270 as a standard form for all 
nonconstruction programs when electronic funds transfer or predetermined 
advance methods are not used. Federal awarding agencies, however, have 
the option of using this form for construction programs in lieu of the 
SF-271, ``Outlay Report and Request for Reimbursement for Construction 
Programs.''
    (2) SF-271, Outlay Report and Request for Reimbursement for 
Construction Programs. Each Federal awarding agency shall adopt the SF-
271 as the standard form to be used for requesting

[[Page 154]]

reimbursement for construction programs. However, a Federal awarding 
agency may substitute the SF-270 when the Federal awarding agency 
determines that it provides adequate information to meet Federal needs.



Sec. 19.23  Cost sharing or matching.

    (a) All contributions, including cash and third party in-kind, shall 
be accepted as part of the recipient's cost sharing or matching when 
such contributions meet all of the following criteria.
    (1) Are verifiable from the recipient's records.
    (2) Are not included as contributions for any other federally-
assisted project or program.
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) Are allowable under the applicable cost principles.
    (5) Are not paid by the Federal Government under another award, 
except where authorized by Federal statute to be used for cost sharing 
or matching.
    (6) Are provided for in the approved budget when required by the 
Federal awarding agency.
    (7) Conform to other provisions of this part, as applicable.
    (b) Unrecovered indirect costs may be included as part of cost 
sharing or matching only with the prior approval of the Federal awarding 
agency.
    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If a Federal awarding agency authorizes recipients to donate buildings 
or land for construction/facilities acquisition projects or long-term 
use, the value of the donated property for cost sharing or matching 
shall be the lesser of (1) or (2).
    (1) The certified value of the remaining life of the property 
recorded in the recipient's accounting records at the time of donation.
    (2) The current fair market value. However, when there is sufficient 
justification, the Federal awarding agency may approve the use of the 
current fair market value of the donated property, even if it exceeds 
the certified value at the time of donation to the project.
    (d) Volunteer services furnished by professional and technical 
personnel, consultants, and other skilled and unskilled labor may be 
counted as cost sharing or matching if the service is an integral and 
necessary part of an approved project or program. Rates for volunteer 
services shall be consistent with those paid for similar work in the 
recipient's organization. In those instances in which the required 
skills are not found in the recipient organization, rates shall be 
consistent with those paid for similar work in the labor market in which 
the recipient competes for the kind of services involved. In either 
case, paid fringe benefits that are reasonable, allowable, and allocable 
may be included in the valuation.
    (e) When an employer other than the recipient furnishes the services 
of an employee, these services shall be valued at the employee's regular 
rate of pay (plus an amount of fringe benefits that are reasonable, 
allowable, and allocable, but exclusive of overhead costs), provided 
these services are in the same skill for which the employee is normally 
paid.
    (f) Donated supplies may include such items as expendable equipment, 
office supplies, laboratory supplies or workshop and classroom supplies. 
Value assessed to donated supplies included in the cost sharing or 
matching share shall be reasonable and shall not exceed the fair market 
value of the property at the time of the donation.
    (g) The method used for determining cost sharing or matching for 
donated equipment, buildings and land for which title passes to the 
recipient may differ according to the purpose of the award, if the 
conditions in paragraph (g)(1) or (2) of this section apply.
    (1) If the purpose of the award is to assist the recipient in the 
acquisition of equipment, buildings or land, the total value of the 
donated property may be claimed as cost sharing or matching.
    (2) If the purpose of the award is to support activities that 
require the use of equipment, buildings or land, normally only 
depreciation or use charges for equipment and buildings may be made. 
However, the full value of equipment or other capital assets and fair 
rental charges for land may be allowed,

[[Page 155]]

provided that the Federal awarding agency has approved the charges.
    (h) The value of donated property shall be determined in accordance 
with the usual accounting policies of the recipient, with the following 
qualifications.
    (1) The value of donated land and buildings shall not exceed its 
fair market value at the time of donation to the recipient as 
established by an independent appraiser (e.g., certified real property 
appraiser or General Services Administration representative) and 
certified by a responsible official of the recipient.
    (2) The value of donated equipment shall not exceed the fair market 
value of equipment of the same age and condition at the time of 
donation.
    (3) The value of donated space shall not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (4) The value of loaned equipment shall not exceed its fair rental 
value.
    (5) The following requirements pertain to the recipient's supporting 
records for in-kind contributions from third parties.
    (i) Volunteer services shall be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (ii) The basis for determining the valuation for personal service, 
material, equipment, buildings and land shall be documented.
    (iii) Section 18(e) of the Federal Transit Act, as amended, (49 
U.S.C. app. 1614(e)) provides that the Federal share for operating 
assistance shall not exceed 50 percent of the net cost. At least 50 
percent of the remainder (the local share) must be derived from sources 
other than Federal funds or revenues of the system; and up to half of 
the local share may be derived from other Federal funds. For purposes of 
determining local share for section 18 operating assistance, the term 
``Federal funds or revenues'' does not include funds received pursuant 
to a service agreement with a State or local service agency or a private 
social service organization. Nonregulatory guidance is contained in FTA 
Circular 9040.1B, section 18 Program Guidance and Grant Application 
Instructions, Chapter III, section 7.



Sec. 19.24  Program income.

    (a) Federal awarding agencies shall apply the standards set forth in 
this section in requiring recipient organizations to account for program 
income related to projects financed in whole or in part with Federal 
funds.
    (b) Except as provided in paragraph (h) of this section, program 
income earned during the project period shall be retained by the 
recipient and, in accordance with Federal awarding agency regulations or 
the terms and conditions of the award, shall be used in one or more of 
the ways listed in the following.
    (1) Added to funds committed to the project by the Federal awarding 
agency and recipient and used to further eligible project or program 
objectives.
    (2) Used to finance the non-Federal share of the project or program.
    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs on which the Federal share of costs 
is based.
    (c) When an agency authorizes the disposition of program income as 
described in paragraph (b)(1) or (b)(2) of this section, program income 
in excess of any limits stipulated shall be used in accordance with 
paragraph (b)(3) of this section.
    (d) In the event that the Federal awarding agency does not specify 
in its regulations or the terms and conditions of the award how program 
income is to be used, paragraph (b)(3) of this section shall apply 
automatically to all projects or programs except research. For awards 
that support research, paragraph (b)(1) of this section shall apply 
automatically unless the awarding agency indicates in the terms and 
conditions another alternative on the award or the recipient is subject 
to special award conditions, as indicated in Sec. 19.14.
    (e) Unless Federal awarding agency regulations or the terms and 
conditions of the award provide otherwise, recipients shall have no 
obligation to the Federal Government regarding program income earned 
after the end of the project period.

[[Page 156]]

    (f) If authorized by Federal awarding agency regulations or the 
terms and conditions of the award, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income, provided these costs have not been charged to the award.
    (g) Proceeds from the sale of property shall be handled in 
accordance with the requirements of the Property Standards (See 
Secs. 19.30 through 19.37).
    (h) Unless Federal awarding agency regulations or the terms and 
condition of the award provide otherwise, recipients shall have no 
obligation to the Federal Government with respect to program income 
earned from license fees and royalties for copyrighted material, 
patents, patent applications, trademarks, and inventions produced under 
an award. However, Patent and Trademark Amendments (35 U.S.C. 18) apply 
to inventions made under an experimental, developmental, or research 
award.
    (i) Section 4(a) of the Federal Transit Act, as amended, (49 U.S.C. 
app. 1603(a)) allows FTA recipients to retain program income for 
allowable capital or operating expenses, but program income may not be 
used to refund or reduce the local share of a grant. The section 16 and 
18 programs, however, operate differently. Under the special authority 
to set appropriate terms and conditions for the section 16(b)(2) 
program, program income in the form of contract service revenue may be 
used as local share without a proportionate reduction in the Federal 
share. Similarly, section 18 allows the use of program income in the 
form of contract service revenue as local share without requiring a 
proportionate reduction in the Federal share. Grantees must account for 
program income in their accounting systems, which are subject to audit. 
The accounting system must be capable of identifying program income and 
the purpose for which it was used. Nonregulatory guidance is contained 
in FTA notice N 5.5005.1, Guidance on Program Income and Sales Proceeds.



Sec. 19.25  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. It may include either the 
Federal and non-Federal share, or only the Federal share, depending upon 
Federal awarding agency requirements. It shall be related to performance 
for program evaluation purposes whenever appropriate.
    (b) Recipients are required to report deviations from budget and 
program plans, and request prior approvals for budget and program plan 
revisions, in accordance with this section.
    (c) For nonconstruction awards, recipients shall request prior 
approvals from Federal awarding agencies for one or more of the 
following program or budget related reasons.
    (1) Change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (2) Change in a key person specified in the application or award 
document.
    (3) The absence for more than three months, or a 25 percent 
reduction in time devoted to the project, by the approved project 
director or principal investigator.
    (4) The need for additional Federal funding.
    (5) The transfer of amounts budgeted for indirect costs to absorb 
increases in direct costs, or vice versa, if approval is required by the 
Federal awarding agency.
    (6) The inclusion, unless waived by the Federal awarding agency, of 
costs that require prior approval in accordance with OMB Circular A-21, 
``Cost Principles for Institutions of Higher Education,'' OMB Circular 
A-122, ``Cost Principles for Non-Profit Organizations,'' or 45 CFR part 
74 Appendix E, ``Principles for Determining Costs Applicable to Research 
and Development under Grants and Contracts with Hospitals,'' or 48 CFR 
part 31, ``Contract Cost Principles and Procedures,'' as applicable.
    (7) The transfer of funds allotted for training allowances (direct 
payment to trainees) to other categories of expense.
    (8) Unless described in the application and funded in the approved 
awards, the subaward, transfer or contracting out of any work under an 
award. This provision does not apply to

[[Page 157]]

the purchase of supplies, material, equipment or general support 
services.
    (d) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (e) Except for requirements listed in paragraphs (c)(1) and (c)(4) 
of this section, Federal awarding agencies are authorized, at their 
option, to waive cost-related and administrative prior written approvals 
required by this part and OMB Circulars A-21 and A-122. Such waivers may 
include authorizing recipients to do any one or more of the following:
    (1) Incur pre-award costs 90 calendar days prior to award or more 
than 90 calendar days with the prior approval of the Federal awarding 
agency. All pre-award costs are incurred at the recipient's risk (i.e., 
the Federal awarding agency is under no obligation to reimburse such 
costs if for any reason the recipient does not receive an award or if 
the award is less than anticipated and inadequate to cover such costs).
    (2) Initiate a one-time extension of the expiration date of the 
award of up to 12 months unless one or more of the following conditions 
apply. For one-time extensions, the recipient must notify the Federal 
awarding agency in writing with the supporting reasons and revised 
expiration date at least 10 days before the expiration date specified in 
the award. This one-time extension may not be exercised merely for the 
purpose of using unobligated balances.
    (i) The terms and conditions of award prohibit the extension.
    (ii) The extension requires additional Federal funds.
    (iii) The extension involves any change in the approved objectives 
or scope of the project.
    (3) Carry forward unobligated balances to subsequent funding 
periods.
    (4) For awards that support research, unless the Federal awarding 
agency provides otherwise in the award or in the agency's regulations, 
the prior approval requirements described in paragraph (e) of this 
section are automatically waived (i.e., recipients need not obtain such 
prior approvals) unless one of the conditions included in paragraph 
(e)(2) of this section applies.
    (f) The Federal awarding agency may, at its option, restrict the 
transfer of funds among direct cost categories or programs, functions 
and activities for awards in which the Federal share of the project 
exceeds $100,000 and the cumulative amount of such transfers exceeds or 
is expected to exceed 10 percent of the total budget as last approved by 
the Federal awarding agency. No Federal awarding agency shall permit a 
transfer that would cause any Federal appropriation or part thereof to 
be used for purposes other than those consistent with the original 
intent of the appropriation.
    (g) All other changes to nonconstruction budgets, except for the 
changes described in paragraph (j) of this section, do not require prior 
approval.
    (h) For construction awards, recipients shall request prior written 
approval promptly from Federal awarding agencies for budget revisions 
whenever the conditions in paragraphs (h) (1), (2) or (3) of this 
section apply.
    (1) The revision results from changes in the scope or the objective 
of the project or program.
    (2) The need arises for additional Federal funds to complete the 
project.
    (3) A revision is desired which involves specific costs for which 
prior written approval requirements may be imposed consistent with 
applicable OMB cost principles listed in Sec. 19.27.
    (i) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (j) When a Federal awarding agency makes an award that provides 
support for both construction and nonconstruction work, the Federal 
awarding agency may require the recipient to request prior approval from 
the Federal awarding agency before making any fund or budget transfers 
between the two types of work supported.
    (k) For both construction and nonconstruction awards, Federal 
awarding agencies shall require recipients to notify the Federal 
awarding agency in writing promptly whenever the amount of Federal 
authorized funds is expected to exceed the needs of the recipient for 
the project period by more than $5,000 or five percent of the Federal 
award, whichever is greater. This notification

[[Page 158]]

shall not be required if an application for additional funding is 
submitted for a continuation award.
    (l) When requesting approval for budget revisions, recipients shall 
use the budget forms that were used in the application unless the 
Federal awarding agency indicates a letter of request suffices.
    (m) Within 30 calendar days from the date of receipt of the request 
for budget revisions, Federal awarding agencies shall review the request 
and notify the recipient whether the budget revisions have been 
approved. If the revision is still under consideration at the end of 30 
calendar days, the Federal awarding agency shall inform the recipient in 
writing of the date when the recipient may expect the decision.



Sec. 19.26  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher 
education or other non-profit organizations (including hospitals) shall 
be subject to the audit requirements contained in the Single Audit Act 
Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act Amendments of 1996 (31 
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States, 
Local Governments, and Non-Profit Organizations.''
    (c) For-profit hospitals not covered by the audit provisions of 
revised OMB Circular A-133 shall be subject to the audit requirements of 
the Federal awarding agencies.
    (d) Commercial organizations shall be subject to the audit 
requirements of the Federal awarding agency or the prime recipient as 
incorporated into the award document.

[59 FR 15639, Apr. 4, 1994, as amended at 62 FR 45939, 45947, Aug. 29, 
1997]



Sec. 19.27  Allowable costs.

    For each kind of recipient, there is a set of Federal principles for 
determining allowable costs. Allowability of costs shall be determined 
in accordance with the cost principles applicable to the entity 
incurring the costs. Thus, allowability of costs incurred by State, 
local or federally-recognized Indian tribal governments is determined in 
accordance with the provisions of OMB Circular A-87, ``Cost Principles 
for State and Local Governments.'' The allowability of costs incurred by 
non-profit organizations is determined in accordance with the provisions 
of OMB Circular A-122, ``Cost Principles for Non-Profit Organizations.'' 
The allowability of costs incurred by institutions of higher education 
is determined in accordance with the provisions of OMB Circular A-21, 
``Cost Principles for Educational Institutions.'' The allowability of 
costs incurred by hospitals is determined in accordance with the 
provisions of Appendix E of 45 CFR part 74, ``Principles for Determining 
Costs Applicable to Research and Development Under Grants and Contracts 
with Hospitals.'' The allowability of costs incurred by commercial 
organizations and those non-profit organizations listed in Attachment C 
to Circular A-122 is determined in accordance with the provisions of the 
Federal Acquisition Regulation (FAR) at 48 CFR part 31.



Sec. 19.28  Period of availability of funds.

    Where a funding period is specified, a recipient may charge to the 
grant only allowable costs resulting from obligations incurred during 
the funding period and any pre-award costs authorized by the Federal 
awarding agency.

                           Property Standards



Sec. 19.30  Purpose of property standards.

    (a) Sections 19.31 through 19.37 set forth uniform standards 
governing management and disposition of property furnished by the 
Federal Government whose cost was charged to a project supported by a 
Federal award. Federal awarding agencies shall require recipients to 
observe these standards under awards and shall not impose additional 
requirements, unless specifically required by Federal statute. The 
recipient may use its own property management standards and procedures 
provided it observes the provisions of Secs. 19.31 through 19.37.
    (b) Transfer of capital assets. Section 12(k) of the Federal Transit 
Act, as amended, (49 U.S.C. app. 1608(k)) allows

[[Page 159]]

the transfer without compensation of real property (including land) and 
equipment acquired under the Act for another public purpose under 
certain conditions. Procedures to allow these transfers have not been 
issued.



Sec. 19.31  Insurance coverage.

    Recipients shall, at a minimum, provide the equivalent insurance 
coverage for real property and equipment acquired with Federal funds as 
provided to property owned by the recipient. Federally-owned property 
need not be insured unless required by the terms and conditions of the 
award.



Sec. 19.32  Real property.

    Each Federal awarding agency shall prescribe requirements for 
recipients concerning the use and disposition of real property acquired 
in whole or in part under awards. Unless otherwise provided by statute, 
such requirements, at a minimum, shall contain the following.
    (a) Title to real property shall vest in the recipient subject to 
the condition that the recipient shall use the real property for the 
authorized purpose of the project as long as it is needed and shall not 
encumber the property without approval of the Federal awarding agency.
    (b) The recipient shall obtain written approval by the Federal 
awarding agency for the use of real property in other federally-
sponsored projects when the recipient determines that the property is no 
longer needed for the purpose of the original project. Use in other 
projects shall be limited to those under federally-sponsored projects 
(i.e., awards) or programs that have purposes consistent with those 
authorized for support by the Department of Transportation.
    (c) When the real property is no longer needed as provided in 
paragraphs (a) and (b) of this section, the recipient shall request 
disposition instructions from the Federal awarding agency or its 
successor Federal awarding agency. The Federal awarding agency shall 
observe one or more of the following disposition instructions.
    (1) The recipient may be permitted to retain title without further 
obligation to the Federal Government after it compensates the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project.
    (2) The recipient may be directed to sell the property under 
guidelines provided by the Federal awarding agency and pay the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project (after 
deducting actual and reasonable selling and fix-up expenses, if any, 
from the sales proceeds). When the recipient is authorized or required 
to sell the property, proper sales procedures shall be established that 
provide for competition to the extent practicable and result in the 
highest possible return.
    (3) The recipient may be directed to transfer title to the property 
to the Federal Government or to an eligible third party provided that, 
in such cases, the recipient shall be entitled to compensation for its 
attributable percentage of the current fair market value of the 
property.



Sec. 19.33  Federally-owned and exempt property.

    (a) Federally-owned property. (1) Title to federally-owned property 
remains vested in the Federal Government. Recipients shall submit 
annually an inventory listing of federally-owned property in their 
custody to the Federal awarding agency. Upon completion of the award or 
when the property is no longer needed, the recipient shall report the 
property to the Federal awarding agency for further Federal agency 
utilization.
    (2) If the Federal awarding agency has no further need for the 
property, it shall be declared excess and reported to the General 
Services Administration, unless the Federal awarding agency has 
statutory authority to dispose of the property by alternative methods 
(e.g., the authority provided by the Federal Technology Transfer Act (15 
U.S.C. 3710(I)) to donate research equipment to educational and non-
profit organizations in accordance with E.O. 12821, ``Improving 
Mathematics and Science Education in Support of the

[[Page 160]]

National Education Goals.'') Appropriate instructions shall be issued to 
the recipient by the Federal awarding agency.
    (b) Exempt property. When statutory authority exists, the Federal 
awarding agency has the option to vest title to property acquired with 
Federal funds in the recipient without further obligation to the Federal 
Government and under conditions the Federal awarding agency considers 
appropriate. Such property is ``exempt property.'' Should a Federal 
awarding agency not establish conditions, title to exempt property upon 
acquisition shall vest in the recipient without further obligation to 
the Federal Government.



Sec. 19.34  Equipment.

    (a) Title to equipment acquired by a recipient with Federal funds 
shall vest in the recipient, subject to conditions of this section.
    (b) The recipient shall not use equipment acquired with Federal 
funds to provide services to non-Federal outside organizations for a fee 
that is less than private companies charge for equivalent services, 
unless specifically authorized by Federal statute, for as long as the 
Federal Government retains an interest in the equipment.
    (c) The recipient shall use the equipment in the project or program 
for which it was acquired as long as needed, whether or not the project 
or program continues to be supported by Federal funds and shall not 
encumber the property without approval of the Federal awarding agency. 
When no longer needed for the original project or program, the recipient 
shall use the equipment in connection with its other federally-sponsored 
activities, in the following order of priority:
    (1) Activities sponsored by the Federal awarding agency which funded 
the original project, then
    (2) Activities sponsored by other Federal awarding agencies.
    (d) During the time that equipment is used on the project or program 
for which it was acquired, the recipient shall make it available for use 
on other projects or programs if such other use will not interfere with 
the work on the project or program for which the equipment was 
originally acquired. First preference for such other use shall be given 
to other projects or programs sponsored by the Federal awarding agency 
that financed the equipment; second preference shall be given to 
projects or programs sponsored by other Federal awarding agencies. If 
the equipment is owned by the Federal Government, use on other 
activities not sponsored by the Federal Government shall be permissible 
if authorized by the Federal awarding agency. User charges shall be 
treated as program income.
    (e) When acquiring replacement equipment, the recipient may use the 
equipment to be replaced as trade-in or sell the equipment and use the 
proceeds to offset the costs of the replacement equipment subject to the 
approval of the Federal awarding agency.
    (f) The recipient's property management standards for equipment 
acquired with Federal funds and federally-owned equipment shall include 
all of the following.
    (1) Equipment records shall be maintained accurately and shall 
include the following information.
    (i) A description of the equipment.
    (ii) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or other identification number.
    (iii) Source of the equipment, including the award number.
    (iv) Whether title vests in the recipient or the Federal Government.
    (v) Acquisition date (or date received, if the equipment was 
furnished by the Federal Government) and cost.
    (vi) Information from which one can calculate the percentage of 
Federal participation in the cost of the equipment (not applicable to 
equipment furnished by the Federal Government).
    (vii) Location and condition of the equipment and the date the 
information was reported.
    (viii) Unit acquisition cost.
    (ix) Ultimate disposition data, including date of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates the Federal awarding agency for its share.
    (2) Equipment owned by the Federal Government shall be identified to 
indicate Federal ownership.

[[Page 161]]

    (3) A physical inventory of equipment shall be taken and the results 
reconciled with the equipment records at least once every two years. Any 
differences between quantities determined by the physical inspection and 
those shown in the accounting records shall be investigated to determine 
the causes of the difference. The recipient shall, in connection with 
the inventory, verify the existence, current utilization, and continued 
need for the equipment.
    (4) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft of the equipment. Any loss, 
damage, or theft of equipment shall be investigated and fully 
documented; if the equipment was owned by the Federal Government, the 
recipient shall promptly notify the Federal awarding agency.
    (5) Adequate maintenance procedures shall be implemented to keep the 
equipment in good condition.
    (6) Where the recipient is authorized or required to sell the 
equipment, proper sales procedures shall be established which provide 
for competition to the extent practicable and result in the highest 
possible return.
    (g) When the recipient no longer needs the equipment, the equipment 
may be used for other activities in accordance with the following 
standards. For equipment with a current per unit fair market value of 
$5,000 or more, the recipient may retain the equipment for other uses 
provided that compensation is made to the original Federal awarding 
agency or its successor. The amount of compensation shall be computed by 
applying the percentage of Federal participation in the cost of the 
original project or program to the current fair market value of the 
equipment. If the recipient has no need for the equipment, the recipient 
shall request disposition instructions from the Federal awarding agency. 
The Federal awarding agency shall determine whether the equipment can be 
used to meet the agency's requirements. If no requirement exists within 
that agency, the availability of the equipment shall be reported to the 
General Services Administration by the Federal awarding agency to 
determine whether a requirement for the equipment exists in other 
Federal agencies. The Federal awarding agency shall issue instructions 
to the recipient no later than 120 calendar days after the recipient's 
request and the following procedures shall govern.
    (1) If so instructed or if disposition instructions are not issued 
within 120 calendar days after the recipient's request, the recipient 
shall sell the equipment and reimburse the Federal awarding agency an 
amount computed by applying to the sales proceeds the percentage of 
Federal participation in the cost of the original project or program. 
However, the recipient shall be permitted to deduct and retain from the 
Federal share $500 or ten percent of the proceeds, whichever is less, 
for the recipient's selling and handling expenses.
    (2) If the recipient is instructed to ship the equipment elsewhere, 
the recipient shall be reimbursed by the Federal Government by an amount 
which is computed by applying the percentage of the recipient's 
participation in the cost of the original project or program to the 
current fair market value of the equipment, plus any reasonable shipping 
or interim storage costs incurred.
    (3) If the recipient is instructed to otherwise dispose of the 
equipment, the recipient shall be reimbursed by the Federal awarding 
agency for such costs incurred in its disposition.
    (4) The Federal awarding agency may reserve the right to transfer 
the title to the Federal Government or to a third party named by the 
Federal Government when such third party is otherwise eligible under 
existing statutes. Such transfer shall be subject to the following 
standards.
    (i) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (ii) The Federal awarding agency shall issue disposition 
instructions within 120 calendar days after receipt of a final 
inventory. The final inventory shall list all equipment acquired with 
grant funds and federally-owned equipment. If the Federal awarding 
agency fails to issue disposition instructions within the 120 calendar 
day period, the recipient shall apply the

[[Page 162]]

standards of this section, as appropriate.
    (iii) When the Federal awarding agency exercises its right to take 
title, the equipment shall be subject to the provisions for federally-
owned equipment.



Sec. 19.35  Supplies and other expendable property.

    (a) Title to supplies and other expendable property shall vest in 
the recipient upon acquisition. If there is a residual inventory of 
unused supplies exceeding $5000 in total aggregate value upon 
termination or completion of the project or program and the supplies are 
not needed for any other federally-sponsored project or program, the 
recipient shall retain the supplies for use on non-Federal sponsored 
activities or sell them, but shall, in either case, compensate the 
Federal Government for its share. The amount of compensation shall be 
computed in the same manner as for equipment.
    (b) The recipient shall not use supplies acquired with Federal funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute as long as the Federal 
Government retains an interest in the supplies.



Sec. 19.36  Intangible property.

    (a) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, under 
an award. The Federal awarding agency(ies) reserve a royalty-free, 
nonexclusive and irrevocable right to reproduce, publish, or otherwise 
use the work for Federal purposes, and to authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including government-wide regulations issued by 
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) Unless waived by the Federal awarding agency, the Federal 
Government has the right to the following:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award.
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d) Title to intangible property and debt instruments acquired under 
an award or subaward vests upon acquisition in the recipient. The 
recipient shall use that property for the originally-authorized purpose, 
and the recipient shall not encumber the property without approval of 
the Federal awarding agency. When no longer needed for the originally 
authorized purpose, disposition of the intangible property shall occur 
in accordance with the provisions of paragraph Sec. 19.34(g).



Sec. 19.37  Property trust relationship.

    Real property, equipment, intangible property and debt instruments 
that are acquired or improved with Federal funds shall be held in trust 
by the recipient as trustee for the beneficiaries of the project or 
program under which the property was acquired or improved. Agencies may 
require recipients to record liens or other appropriate notices of 
record to indicate that personal or real property has been acquired or 
improved with Federal funds and that use and disposition conditions 
apply to the property.

                          Procurement Standards



Sec. 19.40  Purpose of procurement standards.

    Sections 19.41 through 19.48 set forth standards for use by 
recipients in establishing procedures for the procurement of supplies 
and other expendable property, equipment, real property and other 
services with Federal funds. These standards are furnished to ensure 
that such materials and services are obtained in an effective manner and 
in compliance with the provisions of applicable Federal statutes and 
executive orders. No additional procurement standards or requirements 
shall be imposed by the Federal awarding agencies upon recipients, 
unless specifically required by Federal statute or executive order or 
approved by OMB.

[[Page 163]]



Sec. 19.41  Recipient responsibilities.

    The standards contained in this section do not relieve the recipient 
of the contractual responsibilities arising under its contract(s). The 
recipient is the responsible authority, without recourse to the Federal 
awarding agency, regarding the settlement and satisfaction of all 
contractual and administrative issues arising out of procurements 
entered into in support of an award or other agreement. This includes 
disputes, claims, protests of award, source evaluation or other matters 
of a contractual nature. Matters concerning violation of statute are to 
be referred to such Federal, State or local authority as may have proper 
jurisdiction.



Sec. 19.42  Codes of conduct.

    The recipient shall maintain written standards of conduct governing 
the performance of its employees engaged in the award and administration 
of contracts. No employee, officer, or agent shall participate in the 
selection, award, or administration of a contract supported by Federal 
funds if a real or apparent conflict of interest would be involved. Such 
a conflict would arise when the employee, officer, or agent, any member 
of his or her immediate family, his or her partner, or an organization 
which employs or is about to employ any of the parties indicated herein, 
has a financial or other interest in the firm selected for an award. The 
officers, employees, and agents of the recipient shall neither solicit 
nor accept gratuities, favors, or anything of monetary value from 
contractors, or parties to subagreements. However, recipients may set 
standards for situations in which the financial interest is not 
substantial or the gift is an unsolicited item of nominal value. The 
standards of conduct shall provide for disciplinary actions to be 
applied for violations of such standards by officers, employees, or 
agents of the recipient.



Sec. 19.43  Competition.

    All procurement transactions shall be conducted in a manner to 
provide, to the maximum extent practical, open and free competition. The 
recipient shall be alert to organizational conflicts of interest as well 
as noncompetitive practices among contractors that may restrict or 
eliminate competition or otherwise restrain trade. In order to ensure 
objective contractor performance and eliminate unfair competitive 
advantage, contractors that develop or draft specifications, 
requirements, statements of work, invitations for bids and/or requests 
for proposals shall be excluded from competing for such procurements. 
Awards shall be made to the bidder or offeror whose bid or offer is 
responsive to the solicitation and is most advantageous to the 
recipient, price, quality and other factors considered. Solicitations 
shall clearly set forth all requirements that the bidder or offeror 
shall fulfill in order for the bid or offer to be evaluated by the 
recipient. Any and all bids or offers may be rejected when it is in the 
recipient's interest to do so.



Sec. 19.44  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide for, at a minimum, that the conditions in 
paragraphs (a)(1), (2) and (3) of this section apply.
    (1) Recipients avoid purchasing unnecessary items.
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be the most economical and 
practical procurement for the Federal Government.
    (3) Solicitations for goods and services provide for all of the 
following:
    (i) A clear and accurate description of the technical requirements 
for the material, product or service to be procured. In competitive 
procurements, such a description shall not contain features which unduly 
restrict competition.
    (ii) Requirements which the bidder/offeror must fulfill and all 
other factors to be used in evaluating bids or proposals.
    (iii) A description, whenever practicable, of technical requirements 
in terms of functions to be performed or performance required, including 
the range of acceptable characteristics or minimum acceptable standards.

[[Page 164]]

    (iv) The specific features of ``brand name or equal'' descriptions 
that bidders are required to meet when such items are included in the 
solicitation.
    (v) The acceptance, to the extent practicable and economically 
feasible, of products and services dimensioned in the metric system of 
measurement.
    (vi) Preference, to the extent practicable and economically 
feasible, for products and services that conserve natural resources and 
protect the environment and are energy efficient.
    (b) Positive efforts shall be made by recipients to utilize small 
businesses, minority-owned firms, and women's business enterprises, 
whenever possible. Recipients of Federal awards shall take all of the 
following steps to further this goal.
    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange timeframes for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.
    (3) Consider in the contract process whether firms competing for 
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority-owned firms and women's business enterprises when a contract is 
too large for one of these firms to handle individually.
    (5) Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration and the Department of 
Commerce's Minority Business Development Agency in the solicitation and 
utilization of small businesses, minority-owned firms, and women's 
business enterprises.
    (c) The type of procuring instruments used (e.g., fixed price 
contracts, cost reimbursable contracts, purchase orders, and incentive 
contracts) shall be determined by the recipient but shall be appropriate 
for the particular procurement and for promoting the best interest of 
the program or project involved. The ``cost-plus-a-percentage-of-cost'' 
or ``percentage of construction cost'' methods of contracting shall not 
be used.
    (d) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration shall be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources or accessibility to other necessary 
resources. In certain circumstances, contracts with certain parties are 
restricted by 49 CFR part 29, the implementation of E.O.'s 12549 and 
12689, ``Debarment and Suspension.''
    (e) Recipients shall, on request, make available for the Federal 
awarding agency, pre-award review and procurement documents, such as 
request for proposals or invitations for bids, independent cost 
estimates, etc., when any of the following conditions apply.
    (1) A recipient's procurement procedures or operation fails to 
comply with the procurement standards in this part.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403 (11) (currently $25,000) and is to be 
awarded without competition or only one bid or offer is received in 
response to a solicitation.
    (3) The procurement, which is expected to exceed the small purchase 
threshold, specifies a ``brand name'' product.
    (4) The proposed award over the small purchase threshold is to be 
awarded to other than the apparent low bidder under a sealed bid 
procurement.
    (5) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the amount of the small 
purchase threshold.
    (f) Additional procurement procedures.
    (1) Section 165 of the STAA of 1982, as amended; section 337 of the 
Surface Transportation and Uniform Relocation Assistance Act (STURAA) of 
1987, 49 U.S.C. 1601, section 1048 of the Intermodal Surface 
Transportation Efficiency Act of 1991, and section 9129 of

[[Page 165]]

the Aviation Safety and Capacity Expansion Act of 1990, 49 U.S.C. app. 
2226, impose Buy America requirements on the procurement of foreign 
products and materials by all recipients of FHWA, FTA, and Federal 
Aviation Administration (FAA) funds. Procedures are contained in 49 CFR 
part 660, Buy America Requirements and part 661, Buy America 
Requirements--STAA of 1982. In addition, for FTA recipients, 
nonregulatory guidance is contained in FTA Circular 4220.1B, Third Party 
Contracting Guidelines, Chapter I, section 11. Non-regulatory guidance 
for FAA programs is contained in FAA Order 5100.38A and special 
conditions in grant awards.
    (2) Section 511(a)(16) of the Airport and Airway Improvement Act of 
1982, 49 U.S.C. app. 2210, requires FAA recipients and subrecipients to 
extend the use of qualifications-based (e.g., architectural and 
engineering services) contract selection procedures to certain other 
related areas and to award such contracts in the same manner as Federal 
contracts for architectural and engineering services are negotiated 
under Title IX of the 1949 Federal Property and Administrative Services 
Act, or equivalent airport sponsor qualifications based requirements. 
Non-regulatory guidance for FAA programs is contained in FAA Order 
5100.38A and special conditions in grant awards.
    (3) Section 3(a)(2)(C) of the Federal Transit Act, as amended, (49 
U.S.C. app. 1602(a)(2)(C)) prohibits the use of grant or loan funds to 
support procurements utilizing exclusionary or discriminatory 
specifications. Nonregulatory guidance is contained in FTA Circular 
4220.1B, Third Party Contracting Guidelines, Chapter I, section 15 and 
Attachment A.
    (4) Section 1241(b)(1) of 46 U.S.C. and 46 CFR part 381, Cargo 
Preference--U.S. Flag Vessels impose cargo preference requirements on 
the shipment of foreign made goods for FTA recipients. Nonregulatory 
guidance is contained in FTA Circular 4220.1B, Third Party Contracting 
Guidelines, Chapter I, section 10.



Sec. 19.45  Cost and price analysis.

    Some form of cost or price analysis shall be made and documented in 
the procurement files in connection with every procurement action. Price 
analysis may be accomplished in various ways, including the comparison 
of price quotations submitted, market prices and similar indicia, 
together with discounts. Cost analysis is the review and evaluation of 
each element of cost to determine reasonableness, allocability and 
allowability.



Sec. 19.46  Procurement records.

    Procurement records and files for purchases in excess of the small 
purchase threshold shall include the following at a minimum:
    (a) Basis for contractor selection,
    (b) Justification for lack of competition when competitive bids or 
offers are not obtained, and
    (c) Basis for award cost or price.



Sec. 19.47  Contract administration.

    A system for contract administration shall be maintained to ensure 
contractor conformance with the terms, conditions and specifications of 
the contract and to ensure adequate and timely follow up of all 
purchases. Recipients shall evaluate contractor performance and 
document, as appropriate, whether contractors have met the terms, 
conditions, and specifications of the contract.



Sec. 19.48  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and complete agreement, the following provisions in all contracts. 
The following provisions shall also be applied to subcontracts.
    (a) Contracts in excess of the small purchase threshold shall 
contain contractual provisions or conditions that allow for 
administrative, contractual, or legal remedies in instances in which a 
contractor violates or breaches the contract terms, and provide for such 
remedial actions as may be appropriate.
    (b) All contracts in excess of the small purchase threshold shall 
contain suitable provisions for termination by the recipient, including 
the manner by which termination shall be effected and the basis for 
settlement. In addition, such contracts shall describe conditions under 
which the contract may

[[Page 166]]

be terminated for default as well as conditions where the contract may 
be terminated because of circumstances beyond the control of the 
contractor.
    (c) Except as otherwise required by statute, an award that requires 
the contracting (or subcontracting) for construction or facility 
improvements shall provide for the recipient to follow its own 
requirements relating to bid guarantees, performance bonds, and payment 
bonds unless the construction contract or subcontract exceeds $100,000. 
For those contracts or subcontracts exceeding $100,000, the Federal 
awarding agency may accept the bonding policy and requirements of the 
recipient, provided the Federal awarding agency has made a determination 
that the Federal Government's interest is adequately protected. If such 
a determination has not been made, the minimum requirements shall be as 
follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder shall, upon acceptance 
of his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by statute of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (4) Where bonds are required in the situations described herein, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties pursuant to 31 CFR part 223, ``Surety Companies 
Doing Business with the United States.''
    (d) All negotiated contracts (except those for less than the small 
purchase threshold) awarded by recipients shall include a provision to 
the effect that the recipient, the Federal awarding agency, the 
Comptroller General of the United States, or any of their duly 
authorized representatives, shall have access to any books, documents, 
papers and records of the contractor which are directly pertinent to a 
specific program for the purpose of making audits, examinations, 
excerpts and transcriptions.
    (e) All contracts, including small purchases, awarded by recipients 
and their contractors shall contain the procurement provisions of 
appendix A to this part, as applicable.

                           Reports and Records



Sec. 19.50  Purpose of reports and records.

    Sections 19.51 through 19.53 set forth the procedures for monitoring 
and reporting on the recipient's financial and program performance and 
the necessary standard reporting forms. They also set forth record 
retention requirements.



Sec. 19.51  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients shall monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 19.26.
    (b) The Federal awarding agency shall prescribe the frequency with 
which the performance reports shall be submitted. Except as provided in 
Sec. 19.51(f), performance reports shall not be required more frequently 
than quarterly or, less frequently than annually. Annual reports shall 
be due 90 calendar days after the grant year; quarterly or semi-annual 
reports shall be due 30 days after the reporting period. The Federal 
awarding agency may require annual reports before the anniversary dates 
of multiple year awards in lieu of these requirements. The final 
performance reports are due 90 calendar days after the expiration or 
termination of the award.
    (c) If inappropriate, a final technical or performance report shall 
not be required after completion of the project.

[[Page 167]]

    (d) When required, performance reports shall generally contain, for 
each award, brief information on each of the following:
    (1) A comparison of actual accomplishments with the goals and 
objectives established for the period, the findings of the investigator, 
or both. Whenever appropriate and the output of programs or projects can 
be readily quantified, such quantitative data should be related to cost 
data for computation of unit costs.
    (2) Reasons why established goals were not met, if appropriate.
    (3) Other pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (e) Recipients shall not be required to submit more than the 
original and two copies of performance reports.
    (f) Recipients shall immediately notify the Federal awarding agency 
of developments that have a significant impact on the award-supported 
activities. Also, notification shall be given in the case of problems, 
delays, or adverse conditions which materially impair the ability to 
meet the objectives of the award. This notification shall include a 
statement of the action taken or contemplated, and any assistance needed 
to resolve the situation.
    (g) Federal awarding agencies may make site visits, as needed.
    (h) Federal awarding agencies shall comply with clearance 
requirements of 5 CFR part 1320 when requesting performance data from 
recipients.



Sec. 19.52  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report.
    (i) Each Federal awarding agency shall require recipients to use the 
SF-269 or SF-269A to report the status of funds for all nonconstruction 
projects or programs. A Federal awarding agency may, however, have the 
option of not requiring the SF-269 or SF-269A when the SF-270, Request 
for Advance or Reimbursement, or SF-272, Report of Federal Cash 
Transactions, is determined to provide adequate information to meet its 
needs, except that a final SF-269 or SF-269A shall be required at the 
completion of the project when the SF-270 is used only for advances.
    (ii) The Federal awarding agency shall prescribe whether the report 
shall be on a cash or accrual basis. If the Federal awarding agency 
requires accrual information and the recipient's accounting records are 
not normally kept on the accrual basis, the recipient shall not be 
required to convert its accounting system, but shall develop such 
accrual information through best estimates based on an analysis of the 
documentation on hand.
    (iii) The Federal awarding agency shall determine the frequency of 
the Financial Status Report for each project or program, considering the 
size and complexity of the particular project or program. However, the 
report shall not be required more frequently than quarterly or less 
frequently than annually. A final report shall be required at the 
completion of the agreement.
    (iv) The Federal awarding agency shall require recipients to submit 
the SF-269 or SF-269A (an original and no more than two copies) no later 
than 30 days after the end of each specified reporting period for 
quarterly and semi-annual reports, and 90 calendar days for annual and 
final reports. Extensions of reporting due dates may be approved by the 
Federal awarding agency upon request of the recipient.
    (2) SF-272, Report of Federal Cash Transactions.
    (i) When funds are advanced to recipients the Federal awarding 
agency shall require each recipient to submit the SF-272 and, when 
necessary, its continuation sheet, SF-272a. The Federal awarding agency 
shall use this report to monitor cash advanced to recipients and to 
obtain disbursement information for each agreement with the recipients.
    (ii) Federal awarding agencies may require forecasts of Federal cash 
requirements in the ``Remarks'' section of the report.
    (iii) When practical and deemed necessary, Federal awarding agencies 
may require recipients to report in the ``Remarks'' section the amount 
of cash advances received in excess of three days.

[[Page 168]]

Recipients shall provide short narrative explanations of actions taken 
to reduce the excess balances.
    (iv) Recipients shall be required to submit not more than the 
original and two copies of the SF-272 15 calendar days following the end 
of each quarter. The Federal awarding agencies may require a monthly 
report from those recipients receiving advances totaling $1 million or 
more per year.
    (v) Federal awarding agencies may waive the requirement for 
submission of the SF-272 for any one of the following reasons:
    (A) When monthly advances do not exceed $25,000 per recipient, 
provided that such advances are monitored through other forms contained 
in this section;
    (B) If, in the Federal awarding agency's opinion, the recipient's 
accounting controls are adequate to minimize excessive Federal advances; 
or,
    (C) When the electronic payment mechanisms provide adequate data.
    (b) When the Federal awarding agency needs additional information or 
more frequent reports, the following shall be observed.
    (1) When additional information is needed to comply with legislative 
requirements, Federal awarding agencies shall issue instructions to 
require recipients to submit such information under the ``Remarks'' 
section of the reports.
    (2) When a Federal awarding agency determines that a recipient's 
accounting system does not meet the standards in Sec. 19.21, additional 
pertinent information to further monitor awards may be obtained upon 
written notice to the recipient until such time as the system is brought 
up to standard. The Federal awarding agency, in obtaining this 
information, shall comply with report clearance requirements of 5 CFR 
part 1320.
    (3) Federal awarding agencies are encouraged to shade out any line 
item on any report if not necessary.
    (4) Federal awarding agencies may accept the identical information 
from the recipients in machine readable format or computer printouts or 
electronic outputs in lieu of prescribed formats.
    (5) Federal awarding agencies may provide computer or electronic 
outputs to recipients when such expedites or contributes to the accuracy 
of reporting.



Sec. 19.53  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. Federal awarding agencies 
shall not impose any other record retention or access requirements upon 
recipients.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award shall be retained for a 
period of three years from the date of submission of the final 
expenditure report or, for awards that are renewed quarterly or 
annually, from the date of the submission of the quarterly or annual 
financial report, as authorized by the Federal awarding agency. The only 
exceptions are the following.
    (1) If any litigation, claim, or audit is started before the 
expiration of the 3-year period, the records shall be retained until all 
litigation, claims or audit findings involving the records have been 
resolved and final action taken.
    (2) Records for real property and equipment acquired with Federal 
funds shall be retained for 3 years after final disposition.
    (3) When records are transferred to or maintained by the Federal 
awarding agency, the 3-year retention requirement is not applicable to 
the recipient.
    (4) Indirect cost rate proposals, cost allocations plans, etc. as 
specified in paragraph Sec. 19.53(g).
    (c) Copies of original records may be substituted for the original 
records if authorized by the Federal awarding agency.
    (d) The Federal awarding agency shall request transfer of certain 
records to its custody from recipients when it determines that the 
records possess long term retention value. However, in order to avoid 
duplicate recordkeeping, a Federal awarding agency may make arrangements 
for recipients to retain any records that are continuously needed for 
joint use.

[[Page 169]]

    (e) The Federal awarding agency, the Inspector General, Comptroller 
General of the United States, or any of their duly authorized 
representatives, have the right of timely and unrestricted access to any 
books, documents, papers, or other records of recipients that are 
pertinent to the awards, in order to make audits, examinations, 
excerpts, transcripts and copies of such documents. This right also 
includes timely and reasonable access to a recipient's personnel for the 
purpose of interview and discussion related to such documents. The 
rights of access in this paragraph are not limited to the required 
retention period, but shall last as long as records are retained.
    (f) Unless required by statute, no Federal awarding agency shall 
place restrictions on recipients that limit public access to the records 
of recipients that are pertinent to an award, except when the Federal 
awarding agency can demonstrate that such records shall be kept 
confidential and would have been exempted from disclosure pursuant to 
the Freedom of Information Act (5 U.S.C. 552) if the records had 
belonged to the Federal awarding agency.
    (g) Indirect cost rate proposals, cost allocations plans, etc. 
Paragraphs (g)(1) and (g)(2) of this section apply to the following 
types of documents, and their supporting records: Indirect cost rate 
computations or proposals, cost allocation plans, and any similar 
accounting computations of the rate at which a particular group of costs 
is chargeable (such as computer usage chargeback rates or composite 
fringe benefit rates).
    (1) If submitted for negotiation. If the recipient submits to the 
Federal awarding agency or the subrecipient submits to the recipient the 
proposal, plan, or other computation to form the basis for negotiation 
of the rate, then the 3-year retention period for its supporting records 
starts on the date of such submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to the Federal awarding agency or the subrecipient is 
not required to submit to the recipient the proposal, plan, or other 
computation for negotiation purposes, then the 3-year retention period 
for the proposal, plan, or other computation and its supporting records 
starts at the end of the fiscal year (or other accounting period) 
covered by the proposal, plan, or other computation.

                       Termination and Enforcement



Sec. 19.60  Purpose of termination and enforcement.

    Sections 19.61 and 19.62 set forth uniform suspension, termination 
and enforcement procedures.



Sec. 19.61  Termination.

    (a) Awards may be terminated in whole or in part only if the 
conditions in paragraph (a) (1), (2) or (3) of this section apply.
    (1) By the Federal awarding agency, if a recipient materially fails 
to comply with the terms and conditions of an award.
    (2) By the Federal awarding agency with the consent of the 
recipient, in which case the two parties shall agree upon the 
termination conditions, including the effective date and, in the case of 
partial termination, the portion to be terminated.
    (3) By the recipient upon sending to the Federal awarding agency 
written notification setting forth the reasons for such termination, the 
effective date, and, in the case of partial termination, the portion to 
be terminated. However, if the Federal awarding agency determines in the 
case of partial termination that the reduced or modified portion of the 
grant will not accomplish the purposes for which the grant was made, it 
may terminate the grant in its entirety under either paragraph (a) (1) 
or (2) of this section.
    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec. 19.71(a), including those for property 
management as applicable, shall be considered in the termination of the 
award, and provision shall be made for continuing responsibilities of 
the recipient after termination, as appropriate.



Sec. 19.62  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply

[[Page 170]]

with the terms and conditions of an award, whether stated in a Federal 
statute, regulation, assurance, application, or notice of award, the 
Federal awarding agency may, in addition to imposing any of the special 
conditions outlined in Sec. 19.14, take one or more of the following 
actions, as appropriate in the circumstances.
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by the 
Federal awarding agency.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching credit for) all or part of the cost of the activity or action 
not in compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Withhold further awards for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, the 
awarding agency shall provide the recipient an opportunity for hearing, 
appeal, or other administrative proceeding to which the recipient is 
entitled under any statute or regulation applicable to the action 
involved.
    (c) Effects of suspension and termination. Costs of a recipient 
resulting from obligations incurred by the recipient during a suspension 
or after termination of an award are not allowable unless the awarding 
agency expressly authorizes them in the notice of suspension or 
termination or subsequently. Other recipient costs during suspension or 
after termination which are necessary and not reasonably avoidable are 
allowable if the conditions in paragraph (c) (1) or (2) of this section 
apply.
    (1) The costs result from obligations which were properly incurred 
by the recipient before the effective date of suspension or termination, 
are not in anticipation of it, and in the case of a termination, are 
noncancellable.
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to debarment 
and suspension under E.O.s 12549 and 12689 and 49 CFR part 29 (see 
Sec. 19.13).



                 Subpart D--After-the-Award Requirements



Sec. 19.70  Purpose.

    Sections 19.71 through 19.73 contain closeout procedures and other 
procedures for subsequent disallowances and adjustments.



Sec. 19.71  Closeout procedures.

    (a) Recipients shall submit, within 90 calendar days after the date 
of completion of the award, all financial, performance, and other 
reports as required by the terms and conditions of the award. The 
Federal awarding agency may approve extensions when requested by the 
recipient.
    (b) Unless the Federal awarding agency authorizes an extension, a 
recipient shall liquidate all obligations incurred under the award not 
later than 90 calendar days after the funding period or the date of 
completion as specified in the terms and conditions of the award or in 
agency implementing instructions.
    (c) The Federal awarding agency shall make prompt payments to a 
recipient for allowable reimbursable costs under the award being closed 
out.
    (d) The recipient shall promptly refund any balances of unobligated 
cash that the Federal awarding agency has advanced or paid and that is 
not authorized to be retained by the recipient for use in other 
projects. OMB Circular A-129 governs unreturned amounts that become 
delinquent debts.
    (e) When authorized by the terms and conditions of the award, the 
Federal awarding agency shall make a settlement for any upward or 
downward adjustments to the Federal share of costs after closeout 
reports are received.
    (f) The recipient shall account for any real and personal property 
acquired with Federal funds or received from the Federal Government in 
accordance with Secs. 19.31 through 19.37.
    (g) In the event a final audit has not been performed prior to the 
closeout of

[[Page 171]]

an award, the Federal awarding agency shall retain the right to recover 
an appropriate amount after fully considering the recommendations on 
disallowed costs resulting from the final audit.



Sec. 19.72  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following.
    (1) The right of the Federal awarding agency to disallow costs and 
recover funds on the basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 19.26.
    (4) Property management requirements in Secs. 19.31 through 19.37.
    (5) Records retention as required in Sec. 19.53.
    (b) After closeout of an award, a relationship created under an 
award may be modified or ended in whole or in part with the consent of 
the Federal awarding agency and the recipient, provided the 
responsibilities of the recipient referred to in Sec. 19.73(a), 
including those for property management as applicable, are considered 
and provisions made for continuing responsibilities of the recipient, as 
appropriate.



Sec. 19.73  Collection of amounts due.

    (a) Any funds paid to a recipient in excess of the amount to which 
the recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. If 
not paid within a reasonable period after the demand for payment, the 
Federal awarding agency may reduce the debt by the provisions of 
paragraph (a) (1), (2) or (3) of this section.
    (1) Making an administrative offset against other requests for 
reimbursements.
    (2) Withholding advance payments otherwise due to the recipient.
    (3) Taking other action permitted by statute.
    (b) Except as otherwise provided by law, the Federal awarding agency 
shall charge interest on an overdue debt in accordance with 4 CFR 
chapter II, ``Federal Claims Collection Standards.''

               Appendix A to Part 19--Contract Provisions

    All contracts, awarded by a recipient including small purchases, 
shall contain the following provisions as applicable:
    1. Equal Employment Opportunity--All contracts shall contain a 
provision requiring compliance with E.O. 11246, ``Equal Employment 
Opportunity,'' as amended by E.O. 11375, ``Amending Executive Order 
11246 Relating to Equal Employment Opportunity,'' and as supplemented by 
regulations at 41 CFR part 60, ``Office of Federal Contract Compliance 
Programs, Equal Employment Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
276c)--All contracts and subgrants in excess of $2,000 for construction 
or repair awarded by recipients and subrecipients shall include a 
provision for compliance with the Copeland ``Anti-Kickback'' Act (18 
U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR 
part 3, ``Contractors and Subcontractors on Public Building or Public 
Work Financed in Whole or in part by Loans or Grants from the United 
States''). The Act provides that each contractor or subrecipient shall 
be prohibited from inducing, by any means, any person employed in the 
construction, completion, or repair of public work, to give up any part 
of the compensation to which he is otherwise entitled. The recipient 
shall report all suspected or reported violations to the Federal 
awarding agency.
    3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When 
required by Federal program legislation, all construction contracts 
awarded by the recipients and subrecipients of more than $2000 shall 
include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 
276a to a(7) and as supplemented by Department of Labor regulations (29 
CFR part 5, ``Labor Standards Provisions Applicable to Contracts 
Governing Federally Financed and Assisted Construction''). Under this 
Act, contractors shall be required to pay wages to laborers and 
mechanics at a rate not less than the minimum wages specified in a wage 
determination made by the Secretary of Labor. In addition, contractors 
shall be required to pay wages not less than once a week. The recipient 
shall place a copy of the current prevailing wage determination issued 
by the Department of Labor in each solicitation and the award of a 
contract shall be conditioned upon the acceptance of the wage 
determination. The recipient shall report all suspected or reported 
violations to the Federal awarding agency.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in excess of

[[Page 172]]

$2,000 for construction contracts and in excess of $2,500 for other 
contracts that involve the employment of mechanics or laborers shall 
include a provision for compliance with sections 102 and 107 of the 
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as 
supplemented by Department of Labor regulations (29 CFR part 5). Under 
section 102 of the Act, each contractor shall be required to compute the 
wages of every mechanic and laborer on the basis of a standard work week 
of 40 hours. Work in excess of the standard work week is permissible 
provided that the worker is compensated at a rate of not less than 1\1/
2\ times the basic rate of pay for all hours worked in excess of 40 
hours in the work week. Section 107 of the Act is applicable to 
construction work and provides that no laborer or mechanic shall be 
required to work in surroundings or under working conditions which are 
unsanitary, hazardous or dangerous. These requirements do not apply to 
the purchases of supplies or materials or articles ordinarily available 
on the open market, or contracts for transportation or transmission of 
intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental, 
developmental, or research work shall provide for the rights of the 
Federal Government and the recipient in any resulting invention in 
accordance with 37 CFR part 401, ``Rights to Inventions Made by 
Nonprofit Organizations and Small Business Firms Under Government 
Grants, Contracts and Cooperative Agreements,'' and any implementing 
regulations issued by the awarding agency.
    6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subgrants of amounts in excess of $100,000 shall contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as 
amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the 
Federal awarding agency and the Regional Office of the Environmental 
Protection Agency (EPA).
    7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who 
apply or bid for an award of $100,000 or more shall file the 
certification required by 49 CFR part 20, ``New Restrictions on 
Lobbying.'' Each tier certifies to the tier above that it will not and 
has not used Federal appropriated funds to pay any person or 
organization for influencing or attempting to influence an officer or 
employee of any agency, a member of Congress, officer or employee of 
Congress, or an employee of a member of Congress in connection with 
obtaining any Federal contract, grant or any other award covered by 31 
U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal 
funds that takes place in connection with obtaining any Federal award. 
Such disclosures are forwarded from tier to tier up to the recipient.
    8. Debarment and Suspension (E.O.s 12549 and 12689)--No contract 
shall be made to parties listed on the General Services Administration's 
List of Parties Excluded from Federal Procurement or Nonprocurement 
Programs in accordance with E.O.s 12549 and 12689, ``Debarment and 
Suspension'' and 49 CFR part 29. This list contains the names of parties 
debarred, suspended, or otherwise excluded by agencies, and contractors 
declared ineligible under statutory or regulatory authority other than 
E.O. 12549. Contractors with awards that exceed the small purchase 
threshold shall provide the required certification regarding its 
exclusion status and that of its principal employees.



PART 20--NEW RESTRICTIONS ON LOBBYING--Table of Contents




                           Subpart A--General

Sec.
20.100  Conditions on use of funds.
20.105  Definitions.
20.110  Certification and disclosure.

                  Subpart B-Activities by Own Employees

20.200  Agency and legislative liaison.
20.205  Professional and technical services.
20.210  Reporting.

            Subpart C--Activities by Other than Own Employees

20.300  Professional and technical services.

                  Subpart D--Penalties and Enforcement

20.400  Penalties.
20.405  Penalty procedures.
20.410  Enforcement.

                          Subpart E--Exemptions

20.500  Secretary of Defense.

                        Subpart F--Agency Reports

20.600  Semi-annual compilation.
20.605  Inspector General report.

Appendix A to Part 20--Certification Regarding Lobbying
Appendix B to Part 20--Disclosure Form to Report Lobbying

    Authority: Sec. 319, Public Law 101-121 (31 U.S.C. 1352); 49 U.S.C. 
322(a).

    Source: 55 FR 6737 and 6756, Feb. 26, 1990, unless otherwise noted.

[[Page 173]]


    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.



                           Subpart A--General



Sec. 20.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 20.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct

[[Page 174]]

appropriation made by law to any person. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, loan 
insurance, interest subsidies, insurance, or direct United States cash 
assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as

[[Page 175]]

soon as he or she is employed by such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 20.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

Unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

Shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.

[[Page 176]]

    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                 Subpart B--Activities by Own Employees



Sec. 20.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 20.100 
(a), does not apply in the case of a payment of reasonable compensation 
made to an officer or employee of a person requesting or receiving a 
Federal contract, grant, loan, or cooperative agreement if the payment 
is for agency and legislative liaison activities not directly related to 
a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 20.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 20.100 
(a), does not apply in the case of a payment of reasonable compensation 
made to an officer or employee of a person requesting or receiving a 
Federal contract, grant, loan, or cooperative agreement or an extension, 
continuation, renewal, amendment, or modification of a Federal contract, 
grant, loan, or cooperative agreement if payment is for professional or 
technical services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of

[[Page 177]]

his or her client's proposal, but generally advocate one proposal over 
another are not allowable under this section because the lawyer is not 
providing professional legal services. Similarly, communications with 
the intent to influence made by an engineer providing an engineering 
analysis prior to the preparation or submission of a bid or proposal are 
not allowable under this section since the engineer is providing 
technical services but not directly in the preparation, submission or 
negotiation of a covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 20.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C--Activities by Other Than Own Employees



Sec. 20.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 20.100 
(a), does not apply in the case of any reasonable payment to a person, 
other than an officer or employee of a person requesting or receiving a 
covered Federal action, if the payment is for professional or technical 
services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 20.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.

[[Page 178]]

    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                  Subpart D--Penalties and Enforcement



Sec. 20.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 20.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.



Sec. 20.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E--Exemptions



Sec. 20.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F--Agency Reports



Sec. 20.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.

[[Page 179]]

    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 20.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.

         Appendix A to Part 20--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete

[[Page 180]]

and submit Standard Form-LLL, ``Disclosure Form to Report Lobbying,'' in 
accordance with its instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 181]]

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[GRAPHIC] [TIFF OMITTED] TC02FE91.098


[[Page 183]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.099


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PART 21--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF TRANSPORTATION--EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents




Sec.
21.1  Purpose.
21.3  Application of this part.
21.5  Discrimination prohibited.
21.7  Assurances required.
21.9  Compliance information.
21.11  Conduct of investigations.
21.13  Procedure for effecting compliance.
21.15  Hearings.
21.17  Decisions and notices.
21.19  Judicial review.
21.21  Effect on other regulations, forms, and instructions.
21.23  Definitions.

Appendix A to Part 21--Activities to Which This Part Applies
Appendix B to Part 21--Activities to Which This Part Applies When a 
          Primary Objective of the Federal Financial Assistance is to 
          Provide Employment
Appendix C to Part 21--Application of Part 21 to Certain Federal 
          Financial Assistance of the Department of Transportation

    Authority: Sec. 602, 42 U.S.C. 2000d-1.

    Source: 35 FR 10080, June 18, 1970, unless otherwise noted.



Sec. 21.1  Purpose.

    The purpose of this part is to effectuate the provisions of title VI 
of the Civil Rights Act of 1964 (hereafter referred to as the Act) to 
the end that no person in the United States shall, on the grounds of 
race, color, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program or activity receiving Federal financial assistance 
from the Department of Transportation.



Sec. 21.3  Application of this part.

    (a) This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the Department, 
including the federally assisted programs and activities listed in 
appendix A to this part. It also applies to money paid, property 
transferred, or other Federal financial assistance extended under any 
such program after the effective date of this part pursuant to an 
application approved before that effective date. This part does not 
apply to:
    (1) Any Federal financial assistance by way of insurance or guaranty 
contracts;
    (2) Money paid, property transferred, or other assistance extended 
under any such program before the effective date of this part, except 
where such assistance was subject to the title VI regulations of any 
agency whose responsibilities are now exercised by this Department;
    (3) Any assistance to any individual who is the ultimate beneficiary 
under any such program; or
    (4) Any employment practice, under any such program, of any 
employer, employment agency, or labor organization, except to the extent 
described in Sec. 21.5(c).

The fact that a program or activity is not listed in appendix A to this 
part shall not mean, if title VI of the Act is otherwise applicable, 
that such program is not covered. Other programs under statutes now in 
force or hereinafter enacted may be added to appendix A to this part.
    (b) In any program receiving Federal financial assistance in the 
form, or for the acquisition, of real property or an interest in real 
property, to the extent that rights to space on, over, or under any such 
property are included as part of the program receiving that assistance, 
the nondiscrimination requirement of this part shall extend to any 
facility located wholly or in part in that space.



Sec. 21.5  Discrimination prohibited.

    (a) General. No person in the United States shall, on the grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under, any program to which this part applies.
    (b) Specific discriminatory actions prohibited:
    (1) A recipient under any program to which this part applies may 
not, directly or through contractual or other arrangements, on the 
grounds of race, color, or national origin.

[[Page 185]]

    (i) Deny a person any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to a 
person which is different, or is provided in a different manner, from 
that provided to others under the program;
    (iii) Subject a person to segregation or separate treatment in any 
matter related to his receipt of any service, financial aid, or other 
benefit under the program;
    (iv) Restrict a person in any way in the enjoyment of any advantage 
or privilege enjoyed by others receiving any service, financial aid, or 
other benefit under the program;
    (v) Treat a person differently from others in determining whether he 
satisfies any admission, enrollment, quota, eligibility, membership, or 
other requirement or condition which persons must meet in order to be 
provided any service, financial aid, or other benefit provided under the 
program;
    (vi) Deny a person an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program; or
    (vii) Deny a person the opportunity to participate as a member of a 
planning, advisory, or similar body which is an integral part of the 
program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of person to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of persons to be 
afforded an opportunity to participate in any such program; may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting persons 
to discrimination because of their race, color, or national origin, or 
have the effect of defeating or substantially impairing accomplishment 
of the objectives of the program with respect to individuals of a 
particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding persons from, denying them the benefits of, or subjecting them 
to discrimination under any program to which this regulation applies, on 
the grounds of race, color, or national origin; or with the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of the Act or this part.
    (4) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
include any service, financial aid, or other benefit provided in or 
through a facility provided with the aid of Federal financial 
assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (6) Examples demonstrating the application of the provisions of this 
section to certain programs of the Department of Transportation are 
contained in appendix C of this part.
    (7) This part does not prohibit the consideration of race, color, or 
national origin if the purpose and effect are to remove or overcome the 
consequences of practices or impediments which have restricted the 
availability of, or participation in, the program or activity receiving 
Federal financial assistance, on the grounds of race, color, or national 
origin. Where prior discriminatory practice or usage tends, on the 
grounds of race, color, or national origin to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program or activity to which this part applies, 
the applicant or recipient must take affirmative action to remove or 
overcome the effects of the prior discriminatory practice or usage. Even 
in the absence of prior discriminatory practice or usage, a recipient in 
administering a program or activity to which this part applies, is 
expected to take affirmative action to assure that no person is excluded 
from participation in or denied the benefits of the program or activity 
on the grounds of race, color, or national origin.

[[Page 186]]

    (c) Employment practices:
    (1) Where a primary objective of a program of Federal financial 
assistance to which this part applies is to provide employment, a 
recipient or other party subject to this part shall not, directly or 
through contractual or other arrangements, subject a person to 
discrimination on the ground of race, color, or national origin in its 
employment practices under such program (including recruitment or 
recruitment advertising, hiring, firing, upgrading, promotion, demotion, 
transfer, layoff, termination, rates of pay or other forms of 
compensation or benefits, selection for training or apprenticeship, use 
of facilities, and treatment of employees). Such recipient shall take 
affirmative action to insure that applicants are employed, and employees 
are treated during employment, without regard to their race, color, or 
national origin. The requirements applicable to construction employment 
under any such program shall be those specified in or pursuant to Part 
III of Executive Order 11246 or any Executive order which supersedes it.
    (2) Federal financial assistance to programs under laws funded or 
administered by the Department which have as a primary objective the 
providing of employment include those set forth in appendix B to this 
part.
    (3) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the grounds of 
race, color, or national origin, to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program to which this regulation applies, the 
provisions of paragraph (c)(1) of this section shall apply to the 
employment practices of the recipient or other persons subject to the 
regulation, to the extent necessary to assure equality of opportunity 
to, and nondiscriminatory treatment of, beneficiaries.
    (d) A recipient may not make a selection of a site or location of a 
facility if the purpose of that selection, or its effect when made, is 
to exclude individuals from participation in, to deny them the benefits 
of, or to subject them to discrimination under any program or activity 
to which this rule applies, on the grounds of race, color, or national 
origin; or if the purpose is to, or its effect when made will, 
substantially impair the accomplishment of the objectives of this part.

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973]



Sec. 21.7  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to carry out a program to which this part applies, except a program to 
which paragraph (b) of this section applies, and every application for 
Federal financial assistance to provide a facility shall, as a condition 
to its approval and the extension of any Federal financial assistance 
pursuant to the application, contain or be accompanied by, an assurance 
that the program will be conducted or the facility operated in 
compliance with all requirements imposed by or pursuant to this part. 
Every program of Federal financial assistance shall require the 
submission of such an assurance. In the case where the Federal financial 
assistance is to provide or is in the form of personal property, or real 
property or interest therein or structures thereon, the assurance shall 
obligate the recipient, or, in the case of a subsequent transfer, the 
transferee, for the period during which the property is used for a 
purpose for which the Federal financial assistance is extended or for 
another purpose involving the provision of similar services or benefits, 
or for as long as the recipient retains ownership or possession of the 
property, whichever is longer. In all other cases the assurance shall 
obligate the recipient for the period during which Federal financial 
assistance is extended to the program. In the case where the assistance 
is sought for the construction of a facility or part of a facility, the 
assurance shall in any event extend to the entire facility and to 
facilities operated in connection therewith. The Secretary shall specify 
the form of the foregoing assurances for each program, and the extent to 
which like assurances will be required

[[Page 187]]

of subgrantees, contractors and subcontractors, transferees, successors 
in interest, and other participants in the program. Any such assurance 
shall include provisions which give the United States a right to seek 
its judicial enforcement.
    (2) In the case where Federal financial assistance is provided in 
the form of a transfer of real property, structures, or improvements 
thereon, or interest therein, from the Federal Government, the 
instrument effecting or recording the transfer shall contain a covenant 
running with the land assuring nondiscrimination for the period during 
which the real property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits. Where no transfer of property 
or interest therein from the Federal Government is involved, but 
property is acquired or improved under a program of Federal financial 
assistance, the recipient shall agree to include such covenant in any 
subsequent transfer of such property. When the property is obtained from 
the Federal Government, such covenant may also include a condition 
coupled with a right to be reserved by the Department to revert title to 
the property in the event of a breach of the covenant where, in the 
discretion of the Secretary, such a condition and right of reverter is 
appropriate to the program under which the real property is obtained and 
to the nature of the grant and the grantee. In such event if a 
transferee of real property proposes to mortgage or otherwise encumber 
the real property as security for financing construction of new, or 
improvement of existing, facilities on such property for the purposes 
for which the property was transferred, the Secretary may agree, upon 
request of the transferee and if necessary to accomplish such financing, 
and upon such conditions as he deems appropriate, to subordinate such 
right of reversion to the lien of such mortgage or other encumbrance.
    (b) Continuing State programs. Every application by a State or a 
State agency to carry out a program involving continuing Federal 
financial assistance to which this part applies (including the programs 
listed in appendix A to this part) shall as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application: (1) Contain or be accompanied by a statement that the 
program is (or, in the case of a new program, will be) conducted in 
compliance with all requirements imposed by or pursuant to this part, 
and (2) provide or be accompanied by provision for such methods of 
administration for the program as are found by the Secretary to give 
reasonable guarantee that the applicant and all recipients of Federal 
financial assistance under such program will comply with all 
requirements imposed by or pursuant to this part.



Sec. 21.9  Compliance information.

    (a) Cooperation and assistance. The Secretary shall to the fullest 
extent practicable seek the cooperation of recipients in obtaining 
compliance with this part and shall provide assistance and guidance to 
recipients to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the Secretary timely, complete, and accurate compliance 
reports at such times, and in such form and containing such information, 
as the Secretary may determine to be necessary to enable him to 
ascertain whether the recipient has complied or is complying with this 
part. In the case of any program under which a primary recipient extends 
Federal financial assistance to any other recipient, such other 
recipient shall also submit such compliance reports to the primary 
recipient as may be necessary to enable the primary recipient to carry 
out its obligations under this part. In general recipients should have 
available for the Secretary racial and ethnic data showing the extent to 
which members of minority groups are beneficiaries of programs receiving 
Federal financial assistance.
    (c) Access to sources of information. Each recipient shall permit 
access by the Secretary during normal business

[[Page 188]]

hours to such of its books, records, accounts, and other sources of 
information, and its facilities as may be pertinent to ascertain 
compliance with this part. Where any information required of a recipient 
is in the exclusive possession of any other agency, institution, or 
person and this agency, institution, or person fails or refuses to 
furnish this information, the recipient shall so certify in its report 
and shall set forth what efforts it has made to obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program under which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the Secretary finds necessary to 
apprise such persons of the protections against discrimination assured 
them by the Act and this part.

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973]



Sec. 21.11  Conduct of investigations.

    (a) Periodic compliance reviews. The Secretary shall from time to 
time review the practices of recipients to determine whether they are 
complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of persons to be subjected to discrimination prohibited by this 
part may by himself or by a representative file with the Secretary a 
written complaint. A complaint must be filed not later than 180 days 
after the date of the alleged discrimination, unless the time for filing 
is extended by the Secretary.
    (c) Investigations. The Secretary will make a prompt investigation 
whenever a compliance review, report, complaint, or any other 
information indicates a possible failure to comply with this part. The 
investigation will include, where appropriate, a review of the pertinent 
practices and policies of the recipient, the circumstances under which 
the possible noncompliance with this part occurred, and other factors 
relevant to a determination as to whether the recipient has failed to 
comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the Secretary will so inform the recipient and the matter will be 
resolved by informal means whenever possible. If it has been determined 
that the matter cannot be resolved by informal means, action will be 
taken as provided for in Sec. 21.13.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the Secretary will so inform the 
recipient and the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973]



Sec. 21.13  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to: (1) A reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking,

[[Page 189]]

and (2) any applicable proceeding under State or local law.
    (b) Noncompliance with Sec. 21.7. If an applicant fails or refuses 
to furnish an assurance required under Sec. 21.7 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section, Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The Department shall 
not be required to provide assistance in such a case during the pendency 
of the administrative proceedings under such paragraph. However, subject 
to Sec. 21.21, the Department shall continue assistance during the 
pendency of such proceedings where such assistance is due and payable 
pursuant to an application approved prior to the effective date of this 
part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until:
    (1) The Secretary has advised the applicant or recipient of his 
failure to comply and has determined that compliance cannot be secured 
by voluntary means;
    (2) There has been an express finding on the record, after 
opportunity for hearing, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part;
    (3) The action has been approved by the Secretary pursuant to 
Sec. 21.17(e); and
    (4) The expiration of 30 days after the Secretary has filed with the 
committee of the House and the committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action.

Any action to suspend or terminate or to refuse to grant or to continue 
Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance 
with title VI of the Act by any other means authorized by law shall be 
taken by this Department until:
    (1) The Secretary has determined that compliance cannot be secured 
by voluntary means;
    (2) The recipient or other person has been notified of its failure 
to comply and of the action to be taken to effect compliance; and
    (3) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person. During this period of at least 
10 days, additional efforts shall be made to persuade the recipient or 
other person to comply with the regulation and to take such corrective 
action as may be appropriate.



Sec. 21.15  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 21.13(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and 
either: (1) Fix a date not less than 20 days after the date of such 
notice within which the applicant or recipient may request of the 
Secretary that the matter be scheduled for hearing or (2) advise the 
applicant or recipient that the matter in question has been set down for 
hearing at a stated place and time. The time and place so fixed shall be 
reasonable and shall be subject to change for cause. The complainant, if 
any, shall be advised of the time and place of the hearing. An applicant 
or recipient may waive a hearing and submit written information and 
argument for the record. The failure of an applicant or recipient to 
request a hearing under this paragraph or to appear at a hearing for 
which a date has been set shall be deemed to be a waiver of the right to 
a hearing under section 602 of the Act and Sec. 21.13(c) and consent to 
the making of a decision on the basis of such information as is 
available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department in Washington, D.C., at a

[[Page 190]]

time fixed by the Secretary unless he determines that the convenience of 
the applicant or recipient or of the Department requires that another 
place be selected. Hearings shall be held before the Secretary, or at 
his discretion, before a hearing examiner appointed in accordance with 
section 3105 of title 5, United States Code, or detailed under section 
3344 of title 5, United States Code.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
sections 554 through 557 of title 5, United States Code, and in 
accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both the Department 
and the applicant or recipient shall be entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting the hearing at the outset of or 
during the hearing.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more programs to which this part applies, or 
noncompliance with this part and the regulations of one or more other 
Federal departments or agencies issued under title VI of the Act, the 
Secretary may, by agreement with such other departments or agencies, 
where applicable, provide for the conduct of consolidated or joint 
hearings, and for the application to such hearings of rules or 
procedures not inconsistent with this part. Final decisions in such 
cases, insofar as this regulation is concerned, shall be made in 
accordance with Sec. 21.17.



Sec. 21.17  Decisions and notices.

    (a) Procedure on decisions by hearing examiner. If the hearing is 
held by a hearing examiner, the hearing examiner shall either make an 
initial decision, if so authorized, or certify the entire record 
including his recommended findings and proposed decision to the 
Secretary for a final decision, and a copy of such initial decision or 
certification shall be mailed to the applicant or recipient. Where the 
initial decision is made by the hearing examiner the applicant or 
recipient may, within 30 days after the mailing of such notice of 
initial decision, file with the Secretary his exceptions to the initial 
decision, with his reasons therefor. In the absence of exceptions, the 
Secretary may, on his own motion, within 45 days after the initial 
decision, serve on the applicant or recipient a notice that he will 
review the decision. Upon the filing of such exceptions or of notice of 
review, the Secretary shall review the initial decision and issue his 
own decision thereon including the reasons therefor. In the absence of 
either exceptions or a notice of review the initial decision shall, 
subject to paragraph (e) of this section, constitute the final decision 
of the Secretary.
    (b) Decisions on record or review by the Secretary. Whenever a 
record is certified to the Secretary for decision or he reviews the 
decision of a hearing examiner pursuant to paragraph (a) of this 
section, or whenever the Secretary conducts the hearing, the applicant 
or

[[Page 191]]

recipient shall be given reasonable opportunity to file with him briefs 
or other written statements of its contentions, and a written copy of 
the final decision of the Secretary shall be sent to the applicant or 
recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 21.15, a decision shall be made by 
the Secretary on the record and a written copy of such decision shall be 
sent to the applicant or recipient, and to the complainant, if any.
    (d) Rulings required. Each decision of a hearing examiner or the 
Secretary shall set forth his ruling on each finding, conclusion, or 
exception presented, and shall identify the requirement or requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Approval by Secretary. Any final decision by an official of the 
Department, other than the Secretary personally, which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this part or the Act, shall promptly be transmitted to 
the Secretary personally, who may approve such decision, may vacate it, 
or remit or mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, under the program involved, and may 
contain such terms, conditions, and other provisions as are consistent 
with and will effectuate the purposes of the Act and this part, 
including provisions designed to assure that no Federal financial 
assistance will thereafter be extended under such programs to the 
applicant or recipient determined by such decision to be in default in 
its performance of an assurance given by it pursuant to this part, or to 
have otherwise failed to comply with this part, unless and until it 
corrects its noncompliance and satisfies the Secretary that it will 
fully comply with this part.
    (g) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this part and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the Secretary to restore fully its eligibility to receive 
Federal financial assistance. Any such request shall be supported by 
information showing that the applicant or recipient has met the 
requirements of paragraph (g)(1) of this section. If the Secretary 
determines that those requirements have been satisfied, he shall restore 
such eligibility.
    (3) If the Secretary denies any such request, the applicant or 
recipient may submit a request for a hearing in writing, specifying who 
it believes such official to have been in error. It shall thereupon be 
given an expeditious hearing, with a decision on the record in 
accordance with rules or procedures issued by the Secretary. The 
applicant or recipient will be restored to such eligibility if it proves 
at such a hearing that it satisfied the requirements of paragraph (g)(1) 
of this section.

While proceedings under this paragraph are pending, the sanctions 
imposed by the order issued under paragraph (f) of this section shall 
remain in effect.



Sec. 21.19  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.



Sec. 21.21  Effect on other regulations, forms, and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions issued before the effective date of this part by any officer 
of the Department which impose requirements designed to prohibit any 
discrimination against individuals on the grounds of race, color, or 
national origin under any program to which this part applies, and which 
authorize the suspension or termination of or refusal to grant or to 
continue Federal financial assistance to

[[Page 192]]

any applicant for a recipient of such assistance under such program for 
failure to comply with such requirements, are hereby superseded to the 
extent that such discrimination is prohibited by this part, except that 
nothing in this part may be considered to relieve any person of any 
obligation assumed or imposed under any such superseded regulation, 
order, instruction, or like direction before the effective date of this 
part. Nothing in this part, however, supersedes any of the following 
(including future amendments thereof): (1) Executive Order 11246 (3 CFR, 
1965 Supp., p. 167) and regulations issued thereunder or (2) any other 
orders, regulations, or instructions, insofar as such orders, 
regulations, or instructions prohibit discrimination on the ground of 
race, color, or national origin in any program or situation to which 
this part is inapplicable, or prohibit discrimination on any other 
ground.
    (b) Forms and instructions. The Secretary shall issue and promptly 
make available to all interested persons forms and detailed instructions 
and procedures for effectuating this part as applied to programs to 
which this part applies and for which he is responsible.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to officials of the Department, or to officials of other 
departments or agencies of the Government with the consent of such 
departments or agencies, responsibilities in connection with the 
effectuation of the purposes of title VI of the Act and this part (other 
than responsibility for final decision as provided in Sec. 21.17), 
including the achievement of effective coordination and maximum 
uniformity within the Department and within the Executive Branch of the 
Government in the application of title VI and this part to similar 
programs and in similar situations. Any action taken, determination made 
or requirement imposed by an official of another department or agency 
acting pursuant to an assignment of responsibility under this paragraph 
shall have the same effect as though such action had been taken by the 
Secretary of this Department.



Sec. 21.23  Definitions.

    Unless the context requires otherwise, as used in this part:
    (a) Applicant means a person who submits an application, request, or 
plan required to be approved by the Secretary, or by a primary 
recipient, as a condition to eligibility for Federal financial 
assistance, and ``application'' means such an application, request, or 
plan.
    (b) Facility includes all or any part of structures, equipment, or 
other real or personal property or interests therein, and the provision 
of facilities includes the construction, expansion, renovation, 
remodeling, alteration or acquisition of facilities.
    (c) Federal financial assistance includes:
    (1) Grants and loans of Federal funds;
    (2) The grant or donation of Federal property and interests in 
property;
    (3) The detail of Federal personnel;
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient; and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (d) Primary recipient means any recipient that is authorized or 
required to extend Federal financial assistance to another recipient for 
the purpose of carrying out a program.
    (e) Program includes any program, project, or activity for the 
provision of services, financial aid, or other benefits to individuals 
(including education or training, health, welfare, rehabilitation, 
housing, or other services, whether provided through employees of the 
recipient of Federal financial assistance or provided by others through 
contracts or other arrangements with the recipient, and including work 
opportunities), or for the provision of facilities for furnishing 
services, financial aid or other benefits to individuals. The services, 
financial aid, or

[[Page 193]]

other benefits provided under a program receiving Federal financial 
assistance shall be deemed to include any services, financial aid, or 
other benefits provided with the aid of Federal financial assistance or 
with the aid of any non-Federal funds, property, or other resources 
required to be expended or made available for the program to meet 
matching requirements or other conditions which must be met in order to 
receive the Federal financial assistance, and to include any services, 
financial aid or other benefits provided in or through a facility 
provided with the aid of Federal financial assistance or such non-
Federal resources.
    (f) Recipient may mean any State, territory, possession, the 
District of Columbia, or Puerto Rico, or any political subdivision 
thereof, or instrumentality thereof, any public or private agency, 
institution, or organization, or other entity, or any individual, in any 
State, territory, possession, the District of Columbia, or Puerto Rico, 
to whom Federal financial assistance is extended, directly or through 
another recipient, for any program, including any successor, assignee, 
or transferee thereof, but such term does not include any ultimate 
beneficiary under any such program.
    (g) Secretary means the Secretary of Transportation or, except in 
Sec. 21.17 (e), any person to whom he has delegated his authority in the 
matter concerned.

      Appendix A to Part 21--Activities to which This Part Applies

    1. Use of grants made in connection with Federal-aid highway systems 
(23 U.S.C. 101 et seq.).
    2. Use of grants made in connection with the Highway Safety Act of 
1966 (23 U.S.C. 401 et seq.).
    3. Use of grants in connection with the National Traffic and Motor 
Vehicle Safety Act of 1966 (15 U.S.C. 1391-1409, 1421-1425).
    4. Lease of real property and the grant of permits, licenses, 
easements and rights-of-way covering real property under control of the 
Coast Guard (14 U.S.C. 93 (n) and (o)).
    5. Utilization of Coast Guard personnel and facilities by any State, 
territory, possession, or political subdivision thereof (14 U.S.C. 
141(a)).
    6. Use of Coast Guard personnel for duty in connection with maritime 
instruction and training by the States, territories, and Puerto Rico (14 
U.S.C. 148).
    7. Use of obsolete and other Coast Guard material by sea scout 
service of Boy Scouts of America, any incorporated unit of the Coast 
Guard auxiliary, and public body or private organization not organized 
for profit (14 U.S.C. 641(a)).
    8. U.S. Coast Guard Auxiliary Program (14 U.S.C. 821-832).
    9. Use of grants for the support of basic scientific research by 
nonprofit institutions of higher education and nonprofit organizations 
whose primary purpose is conduct of scientific research (42 U.S.C. 
1891).
    10. Use of grants made in connection with the Federal-aid Airport 
Program (secs. 1-15 and 17-20 of the Federal Airport Act, 49 U.S.C. 
1101-1114, 1116-1120).
    11. Use of U.S. land acquired for public airports under:
    a. Section 16 of the Federal Airport Act, 49 U.S.C. 1115; and
    b. Surplus Property Act (sec. 13(g) of the Surplus Property Act of 
1944, 50 U.S.C. App. 1622(g), and sec. 3 of the Act of Oct. 1, 1949, 50 
U.S.C. App. 1622b).
    12. Activities carried out in connection with the Aviation Education 
Program of the Federal Aviation Administration under sections 305, 311, 
and 313(a) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 
1346, 1352, and 1354(a)).
    13. Use of grants and loans made in connection with Urban Mass 
Transportation Capital Facilities Grant and Loan Program--Urban Mass 
Transportation Act of 1964, as amended (49 U.S.C. 1602).
    14. Use of grants made in connection with Urban Mass Transportation 
Research and Demonstration Grant Program--Urban Mass Transportation Act 
of 1964, as amended (49 U.S.C. 1605).
    15. Use of grants made in connection with Urban Mass Transportation 
Technical Studies Grant Program--Urban Mass Transportation Act of 1964, 
as amended (49 U.S.C. 1607a).
    16. Use of grants made in connection with Urban Mass Transportation 
Managerial Training Grant Program--Urban Mass Transportation Act of 
1964, as amended (49 U.S.C. 1607b).
    17. Use of grants made in connection with Urban Mass Transportation 
Grants for Research and Training Programs in Institutions of Higher 
Learning--Urban Mass Transportation Act of 1964, as amended (49 U.S.C. 
1607c).
    18. Use of grants made in connection with the High Speed Ground 
Transportation Act, as amended (49 U.S.C. 631-642).

[[Page 194]]

  Appendix B to Part 21--Activities to Which This Part Applies When a 
  Primary Objective of the Federal Financial Assistance is to Provide 
                               Employment

    1. Appalachia Regional Development Act of 1965 (40 U.S.C. App. 1 et 
seq.).

    Appendix C to Part 21--Application of Part 21 to Certain Federal 
        Financial Assistance of the Department of Transportation

            Nondiscrimination on Federally Assisted Projects

    (a) Examples. The following examples, without being exhaustive, 
illustrate the application of the nondiscrimination provisions of this 
part on projects receiving Federal financial assistance under the 
programs of certain Department of Transportation operating 
administrations:
    (1) Federal Aviation Administration. (i) The airport sponsor or any 
of his lessees, concessionaires, or contractors may not differentiate 
between members of the public because of race, color, or national origin 
in furnishing, or admitting to, waiting rooms, passenger holding areas, 
aircraft tiedown areas, restaurant facilities, restrooms, or facilities 
operated under the compatible land use concept.
    (ii) The airport sponsor and any of his lessees, concessionaires, or 
contractors must offer to all members of the public the same degree and 
type of service without regard to race, color, or national origin. This 
rule applies to fixed base operators, restaurants, snack bars, gift 
shops, ticket counters, baggage handlers, car rental agencies, 
limousines and taxis franchised by the airport sponsor, insurance 
underwriters, and other businesses catering to the public at the 
airport.
    (iii) An aircraft operator may not be required to park his aircraft 
at a location that is less protected, or less accessible from the 
terminal facilities, than locations offered to others, because of his 
race, color, or national origin.
    (iv) The pilot of an aircraft may not be required to help more 
extensively in fueling operations, and may not be offered less 
incidental service (such as windshield wiping), than other pilots, 
because of his race, color, or national origin.
    (v) No pilot or crewmember eligible for access to a pilot's lounge 
or to unofficial communication facilities such as a UNICOM frequency may 
be restricted in that access because of his race, color, or national 
origin.
    (vi) Access to facilities maintained at the airport by air carriers 
or commercial operators for holders of first-class transportation 
tickets or frequent users of the carrier's or operator's services may 
not be restricted on the basis of race, color, or national origin.
    (vii) Passengers and crewmembers seeking ground transportation from 
the airport may not be assigned to different vehicles, or delayed or 
embarrassed in assignment to vehicles, by the airport sponsor or his 
lessees, concessionaires, or contractors, because of race, color, or 
national origin.
    (viii) Where there are two or more sites having equal potential to 
serve the aeronautical needs of the area, the airport sponsor shall 
select the site least likely to adversely affect existing communities. 
Such site selection shall not be made on the basis of race, color, or 
national origin.
    (ix) Employment at obligated airports, including employment by 
tenants and concessionaires shall be available to all regardless of 
race, creed, color, sex, or national origin. The sponsor shall 
coordinate his airport plan with his local transit authority and the 
Urban Mass Transportation Administration to assure public 
transportation, convenient to the disadvantaged areas of nearby 
communities to enhance employment opportunities for the disadvantaged 
and minority population.
    (x) The sponsor shall assure that the minority business community in 
his area is advised of the opportunities offered by airport concessions, 
and that bids are solicited from such qualified minority firms, and 
awards made without regard to race, color, or national origin.
    (2) Federal Highway Administration. (i) The State, acting through 
its highway department, may not discriminate in its selection and 
retention of contractors, including without limitation, those whose 
services are retained for, or incidental to, construction, planning, 
research, highway safety, engineering, property management, and fee 
contracts and other commitments with person for services and expenses 
incidental to the acquisition of right-of-way.
    (ii) The State may not discriminate against eligible persons in 
making relocation payments and in providing relocation advisory 
assistance where relocation is necessitated by highway right-of-way 
acquisitions.
    (iii) Federal-aid contractors may not discriminate in their 
selection and retention of first-tier subcontractors, and first-tier 
subcontractors may not discriminate in their selection and retention of 
second-tier subcontractors, who participate in Federal-aid highway 
construction, acquisition of right-of-way and related projects, 
including those who supply materials and lease equipment.
    (iv) The State may not discriminate against the traveling public and 
business users of the federally assisted highway in their access to and 
use of the facilities and services provided for public accommodations 
(such as eating, sleeping, rest, recreation,

[[Page 195]]

and vehicle servicing) constructed on, over or under the right-of-way of 
such highways.
    (v) Neither the State, any other persons subject to this part, nor 
its contractors and subcontractors may discriminate in their employment 
practices in connection with highway construction projects or other 
projects assisted by the Federal Highway Administration.
    (vi) The State shall not locate or design a highway in such a manner 
as to require, on the basis of race, color, or national origin, the 
relocation of any persons.
    (vii) The State shall not locate, design, or construct a highway in 
such a manner as to deny reasonable access to, and use thereof, to any 
persons on the basis of race, color, or national origin.
    (3) Urban Mass Transportation Administration. (i) Any person who is, 
or seeks to be, a patron of any public vehicle which is operated as a 
part of, or in conjunction with, a project shall be given the same 
access, seating, and other treatment with regard to the use of such 
vehicle as other persons without regard to their race, color, or 
national origin.
    (ii) No person who is, or seeks to be, an employee of the project 
sponsor or lessees, concessionaires, contractors, licensees, or any 
organization furnishing public transportation service as a part of, or 
in conjunction with, the project shall be treated less favorably than 
any other employee or applicant with regard to hiring, dismissal, 
advancement, wages, or any other conditions and benefits of employment, 
on the basis of race, color, or national origin.
    (iii) No person or group of persons shall be discriminated against 
with regard to the routing, scheduling, or quality of service of 
transportation service furnished as a part of the project on the basis 
of race, color, or national origin. Frequency of service, age and 
quality of vehicles assigned to routes, quality of stations serving 
different routes, and location of routes may not be determined on the 
basis of race, color, or national origin.
    (iv) The location of projects requiring land acquisition and the 
displacement of persons from their residences and businesses may not be 
determined on the basis of race, color, or national origin.
    (b) Obligations of the airport operator-- (1) Tenants, contractors, 
and concessionaires. Each airport operator shall require each tenant, 
contractor, and concessionaire who provides any activity, service, or 
facility at the airport under lease, contract with, or franchise from 
the airport, to covenant in a form specified by the Administrator, 
Federal Aviation Administration, that he will comply with the 
nondiscrimination requirements of this part.
    (2) Notification of beneficiaries. The airport operator shall: (i) 
Make a copy of this part available at his office for inspection during 
normal working hours by any person asking for it, and (ii) conspicuously 
display a sign, or signs, furnished by the FAA, in the main public area 
or areas of the airport, stating that discrimination based on race, 
color, or national origin is prohibited on the airport.
    (3) Reports. Each airport owner subject to this part shall, within 
15 days after he receives it, forward to the Area Manager of the FAA 
Area in which the airport is located a copy of each written complaint 
charging discrimination because of race, color, or national origin by 
any person subject to this part, together with a statement describing 
all actions taken to resolve the matter, and the results thereof. Each 
airport operator shall submit to the area manager of the FAA area in 
which the airport is located a report for the preceding year on the date 
and in a form prescribed by the Federal Aviation Administrator.

[35 FR 10080, June 18, 1970, as amended by Amdt. 21-1, 38 FR 5875, Mar. 
5, 1973; Amdt. 21-3, 40 FR 14318, Mar. 31, 1975]



PART 23--PARTICIPATION BY MINORITY BUSINESS ENTERPRISE IN DEPARTMENT OF TRANSPORTATION PROGRAMS--Table of Contents




                           Subpart A--General

Sec.
23.1  Purpose.
23.2  Applicability.
23.5  Definitions.
23.7  Discrimination prohibited.

Subpart B  [Reserved]

  Subpart C--Department of Transportation Financial Assistance Programs

23.41  General.
23.43  General requirements for recipients.
23.45  Required MBE program components.
23.47  Counting MBE participation toward meeting MBE goals.
23.49  Maintenance of records and reports.
23.51  Certification of the eligibility of minority business 
          enterprises.
23.53  Eligibility standards.
23.55  Appeals of denials of certification as an MBE.

       Subpart D--Implementation of Section 105(f) of the Surface 
                  Transportation Assistance Act of 1982

23.61  Purpose.
23.62  Definitions.
23.63  Applicability.
23.64  Submission of overall goals.
23.65  Content of justification.

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23.66  Approval and disapproval of overall goals.
23.67  Special provision for transit vehicle manufacturers.
23.68  Compliance.
23.69  Challenge procedure.

Appendix A to Subpart D--Section-by-Section Analysis
Appendix B to Subpart D--Determinations of Business Size
Appendix C to Subpart D--Guidance for Making Determinations of Social 
          and Economic Disadvantage
Appendix D to Subpart D--Justification for Requests for Approval of 
          Overall Goals of Less than Ten Percent

                  Subpart E--Compliance and Enforcement

23.73  Complaints.
23.75  Compliance reviews of recipients.
23.81  Conciliation procedures for financial assistance programs.
23.83  Enforcement proceedings for financial assistance programs.
23.85  Emergency enforcement procedure.
23.87  Suspension and debarment; referral to the Department of Justice.

   Subpart F--Implementation of Section 511(a)(17) of the Airport and 
               Airway Improvement Act of 1982, as Amended

Sec.
23.89  Definitions.
23.91  Applicability.
23.93  Requirements for airport sponsors.
23.95  Elements of Disadvantaged Business Enterprise (DBE) concession 
          plan.
23.97  Appeals of certification denials.
23.99  Rationale for basing overall goals on the number of concession 
          agreements.
23.101  Information required when none of the overall annual goals is 10 
          percent or more.
23.103  Obligations of concessionaires and competitors.
23.105  Privately-owned terminal buildings.
23.107  Prohibition on long-term, exclusive concession agreements.
23.109  Compliance procedures.
23.111  Effect on Sec. 23.43(d).

Appendix A to Subpart F--Size Standards for Airport Concessionaires
Schedule A--Information for Determining Minority Business Enterprise 
          Eligibility
Schedule B--Information for Determining Joint Venture Eligibility

    Authority: Sec. 905 of the Regulatory Revitalization and Regulatory 
Reform Act of 1978 (45 U.S.C. 803); sec. 520 of the Airport and Airway 
Improvement Act of 1982, as amended (49 U.S.C. APP. 2219); sec. 19 of 
the Urban Mass Transportation Act of 1964, as amended (49 U.S.C. 1615); 
sec. 106(c) of the Surface Transportation and Uniform Relocation 
Assistance Act of 1987 (49 U.S.C. App. 1601 note); sec. 505(d) and sec. 
511(a)(17) of the Airport and Airway Improvement Act, as amended by the 
Airport and Airway Safety and Capacity Expansion Act of 1987 (Pub. L. 
100-223); Title 23 of the U.S. Code (relating to highways and traffic 
safety, particularly sec. 324 thereof); Title VI of the Civil Rights Act 
(42 U.S.C. 2000d et seq.); Executive Order 12265; Executive Order 12138.

    Source: 45 FR 21184, Mar. 31, 1980, unless otherwise noted.



                           Subpart A--General



Sec. 23.1  Purpose.

    (a) The purpose of this part is to carry out the Department of 
Transportation's policy of supporting the fullest possible participation 
of firms owned and controlled by minorities and women, (MBEs) in 
Department of Transportation programs. This includes assisting MBEs 
throughout the life of contracts in which they participate.
    (b) This part implements in part section 905 of the Railroad 
Revitalization and Regulatory Reform Act of 1978 (45 U.S.C. 803); 
section 30 of the Airport and Airway Development Act of 1970, as amended 
(49 U.S.C. 1730); section 19 of the Urban Mass Transportation Act of 
1964, as amended (Pub. L. 95-599); title VI of the Civil Rights Act of 
1964 (42 U.S.C. 2000d et seq.); the Federal Property and Administrative 
Services Act of 1949 (40 U.S.C. 471 et seq.); and title 23 of the U.S. 
Code (relating to highways and highway safety). This regulation 
supersedes all DOT regulations issued previously under these 
authorities, insofar as such regulations affect minority business 
enterprise matters in DOT financial assistance programs.



Sec. 23.2  Applicability.

    This part applies to any DOT program through which funds are made 
available to members of the public for accomplishing DOT's purposes. 
Contracts and subcontracts which are to be performed entirely outside 
the United States, its possessions, Puerto Rico, and the North Mariana 
Islands, are exempted from this part.

[[Page 197]]



Sec. 23.5  Definitions.

    Affirmative action means taking specific steps to eliminate 
discrimination and its effects, to ensure nondiscriminatory results and 
practices in the future, and to involve minority business enterprises 
fully in contracts and programs funded by the Department.
    Applicant means one who submits an application, request, or plan to 
be approved by a Departmental official or by a primary recipient as a 
condition to eligibility for DOT financial assistance; and application 
means such an application, request, or plan.
    Compliance means the condition existing when a recipient or 
contractor has met and implemented the requirements of this part.
    Contract means a mutually binding legal relationship or any 
modification thereof obligating the seller to furnish supplies or 
services, including construction, and the buyer to pay for them. For 
purposes of this part, a lease is a contract.
    Contractor means one who participates, through a contract or 
subcontract, in any program covered by this part, and includes lessees.
    Department or DOT means the Department of Transportation, including 
its operating elements.
    DOT-assisted contract means any contract or modification of a 
contract between a recipient and a contractor which is paid for in whole 
or in part with DOT financial assistance or any contract or modification 
of a contract between a recipient and a lessee.
    DOT financial assistance means financial aid provided by the 
Department or the United States Railroad Association to a recipient, but 
does not include a direct contract. The financial aid may be provided 
directly in the form of actual money, or indirectly in the form of 
guarantees authorized by statute as financial assistance services of 
Federal personnel, title or other interest in real or personal property 
transferred for less than fair market value, or any other arrangement 
through which the recipient benefits financially, including licenses for 
the construction or operation of a Deep Water Port.
    Departmental element means the following parts of DOT:
    (a) The Office of the Secretary (OST);
    (b) The Federal Aviation Administration (FAA);
    (c) The United States Coast Guard (USCG);
    (d) The Federal Highway Administration (FHWA);
    (e) The Federal Railroad Administration (FRA);
    (f) The National Highway Traffic Safety Administration (NHTSA);
    (g) The Urban Mass Transportation Administration (UMTA);
    (h) The St. Lawrence Seaway Development Corporation (SLSDC); and
    (i) The Research and Special Programs Administration (RSPA).
    Joint venture means an association of two or more businesses to 
carry out a single business enterprise for profit for which purpose they 
combine their property, capital, efforts, skills, and knowledge.
    Lessee means a business or person that leases, or is negotiating to 
lease, property from a recipient or the Department on the recipient's or 
Department's facility for the purpose of operating a transportation-
related activity or for the provision of goods or services to the 
facility or to the public on the facility.
    Minority means a person who is a citizen or lawful permanent 
resident of the United States and who is:
    (a) Black (a person having origins in any of the black racial groups 
of Africa);
    (b) Hispanic (a person of Mexican, Puerto Rican, Cuban, Central or 
South American, or other Spanish culture or origin, regardless of race);
    (c) Portuguese (a person of Portuguese, Brazilian, or other 
Portuguese culture or origin, regardless of race);
    (d) Asian American (a person having origins in any of the original 
peoples of the Far East. Southeast Asia, the Indian subcontinent, or the 
Pacific Islands); or
    (e) American Indian and Alaskan Native (a person having origins in 
any of the original peoples of North America.)
    (f) Members of other groups, or other individuals, found to be 
economically and socially disadvantaged by the Small Business 
Administration under section 8(a) of the Small Business Act, as amended 
(15 U.S.C. 637(a)).

[[Page 198]]

    Minority business enterprise or MBE means a small business concern, 
as defined pursuant to section 3 of the Small Business Act and 
implementing regulations, which is owned and controlled by one or more 
minorities or women. This definition applies only to financial 
assistance programs. For the purposes of this part, owned and controlled 
means a business:
    (a) Which is at least 51 per centum owned by one or more minorities 
or women or, in the case of a publicly owned business, at least 51 per 
centum of the stock of which is owned by one or more minorities or 
women; and
    (b) Whose management and daily business operations are controlled by 
one or more such individuals.
    MBE coordinator means the official designated by the head of the 
Department element to have overall responsibility for promotion of 
minority business enterprise in his/her Departmental element.
    Noncompliance means the condition existing when a recipient or 
contractor has failed to implement the requirements of this part.
    Primary recipient is a recipient who receives DOT financial 
assistance and passes some or all of this assistance on to another 
recipient.
    Program means any undertaking by a recipient to use DOT financial 
assistance, and includes the entire activity any part of which receives 
DOT financial assistance.
    Recipient means any entity, public or private, to whom DOT financial 
assistance is extended, directly or through another recipient for any 
program.
    Secretary means the Secretary of transportation or any person whom 
he/she has designated to act for him/her.
    Set-aside means a technique which limits consideration of bids or 
proposals to those submitted by MBEs.

[45 FR 21184, Mar. 31, 1980, as amended at 46 FR 60459, Dec. 10, 1981]



Sec. 23.7  Discrimination prohibited.

    No person shall be excluded from participation in, denied the 
benefits of, or otherwise discriminated against in connection with the 
award and performance of any contract covered by this part, on the 
grounds of race, color, national origin, or sex.



                          Subpart B  [Reserved]



  Subpart C--Department of Transportation Financial Assistance Programs



Sec. 23.41  General.

    (a) Responsibilities of applicants and recipients. (1) All 
applicants and recipients shall follow the requirements of Sec. 23.43.
    (2) Applicants and recipients in the following categories who will 
let DOT-assisted contracts shall implement an MBE program containing the 
elements set forth in Sec. 23.45 (e) through (i). This program shall be 
submitted for approval to the DOT element concerned with the application 
for financial assistance or project approval.
    (i) Applicants for funds in excess of $250,000, exclusive of transit 
vehicle purchases, under sections, 3, 5, 9, 9A, 17 and 18 of the Urban 
Mass Transportation Act of 1964, as amended, and Federal-aid urban 
systems.
    (ii) Applicants for planning funds in excess of $100,000 under 
section 6, 8, 9 or 9A of the Urban Mass Transportation Act of 1964, as 
amended.
    (iii) Applicants for Section 402 program funds of the National 
Highway Traffic Safety Administration;
    (iv) Applicants for funds in excess of $250,000 awarded by the 
Federal Aviation Administration to general aviation airports;
    (v) Applicants for funds in excess of $400,000 awarded by the 
Federal Aviation Administration to non-hub airports; and
    (vi) Applicants for planning funds in excess of $75,000 awarded by 
the Federal Aviation Administration.
    (vii) Licensees or applicants for a license under the Deepwater Port 
Act of 1974 (33 U.S.C. 1501 et seq.).
    (3) All applicants and recipients in the following categories who 
will let DOT-assisted contracts shall implement an MBE program 
containing all the elements set forth in Sec. 23.45. The program shall 
be submitted for approval to the DOT element concerned with the 
application for assistance or project approval.
    (i) Applicants for Federal-aid highway program funds;

[[Page 199]]

    (ii) Applicants for funds in excess of $500,000, exclusive of 
transit vehicle purchases, under sections 3, 5, 9, 9A, 17 and 18 of the 
Urban Mass Transportation Act of 1964, as amended, and Federal-aid urban 
systems;
    (iii) Applicants for planning funds in excess of $200,000 under 
section 6, 8, 9 and 9A of the Urban Mass Transportation Act of 1964, as 
amended.
    (iv) Applicants for funds in excess of $500,000 awarded by the 
Federal Aviation Administration to large, medium and small hub airports; 
and
    (v) Applicants for financial assistance programs, including loan 
guarantees, by the Federal Railroad Administration and the U.S. Railway 
Association.
    (b) Approval requirement. Applications and funding agreements are 
signed and authorizations to proceed are approved only after the 
applicant's MBE program has been approved by the Departmental element. 
This requirement applies to applications, authorizations to proceed 
requested by Federal-aid highway program recipients, and requests for 
draw downs from the U.S. Railway Association submitted 90 days or more 
following the effective date of this part.
    (c) Effect of agreement. The MBE program prepared by the applicant 
and the commitment made by the applicant to carry out the MBE program is 
incorporated into and becomes part of this agreement and subsequent 
financial assistance agreements. The agreement between the Department 
and the recipient shall contractually bind the recipient to the 
commitments made in the MBE program, as approved by the Department. 
Failure to keep these commitments shall be deemed noncompliance with 
this part. Once submitted and approved, an MBE program is applicable to 
all DOT-assisted contracts solicited and let by the applicant after the 
approval date of the MBE program regardless of the approval date of the 
grant or project under which the contracts are let.
    (d) Other MBE programs. (1) Applicants meeting the criteria set 
forth in paragraphs (a)(2) and (3) of this section who have formulated 
MBE programs under previous requirements of DOT or other agencies shall 
revise these programs to conform to the requirements of this part prior 
to the approval of their next application.
    (2) An MBE program approved by one Departmental element is 
acceptable to all Departmental elements. Applicants having an approved 
MBE program are not required to resubmit the program or to produce a new 
program for future applications, as long as all requirements for 
approval continue to be met and implementation of the program is 
achieving compliance. The Departmental element reassesses its approval 
of the MBE program of continuing recipients at least annually.
    (e) Transit vehicle manufacturers. Transit vehicle manufacturers who 
wish to bid on UMTA-assisted transit vehicle procurement contracts shall 
have a UMTA-approved MBE program. Each UMTA recipient shall require 
these manufacturers to certify that they have such a program as a 
condition for bidding on UMTA-assisted contracts.
    (f) Exemptions. The head of the Departmental element may, under 
appropriate circumstances, and with the concurrence of the Secretary, 
grant deviations or exemptions from this subpart. A request for 
deviation or exemption from this subpart shall be in writing and shall 
include a showing as to how the particular situation is exceptional and 
how the modified program complies substantially with this part. If the 
applicant asserts that State or local law prohibits it from including a 
particular provision in its program, the applicant shall provide copies 
of all legal citations supporting the claim.

[45 FR 21184, Mar. 31, 1980, as amended at 48 FR 33444, July 21, 1983]



Sec. 23.43  General requirements for recipients.

    (a) Each recipient shall agree to abide by the statements in 
paragraphs (a) (1) and (2) of this section. These statements shall be 
included in the recipient's DOT financial assistance agreement and in 
all subsequent agreements between the recipient and any subrecipient and 
in all subsequent DOT-assisted contracts between recipients or 
subrecipients and any contractor.

[[Page 200]]

    (1) ``Policy. It is the policy of the Department of Transportation 
that minority business enterprises as defined in 49 CFR part 23 shall 
have the maximum opportunity to participate in the performance of 
contracts financed in whole or in part with Federal funds under this 
agreement. Consequently the MBE requirements of 49 CFR part 23 apply to 
this agreement.''
    (2) ``MBE Obligation. (i) The recipient or its contractor agrees to 
ensure that minority business enterprises as defined in 49 CFR part 23 
have the maximum opportunity to participate in the performance of 
contracts and subcontracts financed in whole or in part with Federal 
funds provided under this agreement. In this regard all recipients or 
contractors shall take all necessary and reasonable steps in accordance 
with 49 CFR part 23 to ensure that minority business enterprises have 
the maximum opportunity to compete for and perform contracts. Recipients 
and their contractors shall not discriminate on the basis of race, 
color, national origin, or sex in the award and performance of DOT-
assisted contracts.''
    (b) Each DOT financial assistance agreement shall include the 
following: ``If as a condition of assistance the recipient has submitted 
and the Department has approved a minority business enterprise 
affirmative action program which the recipient agrees to carry out, this 
program is incorporated into this financial assistance agreement by 
reference. This program shall be treated as a legal obligation and 
failure to carry out its terms shall be treated as a violation of this 
financial assistance agreement. Upon notification to the recipient of 
its failure to carry out the approved program the Department shall 
impose such sanctions as noted in 49 CFR part 23, subpart E, which 
sanctions may include termination of the agreement or other measures 
that may affect the ability of the recipient to obtain future DOT 
financial assistance.''
    (c) The recipient shall advise each subrecipient, contractor, or 
subcontractor that failure to carry out the requirements set forth in 
paragraph (a) of this section shall constitute a breach of contract and, 
after the notification of the Department, may result in termination of 
the agreement or contract by the recipient or such remedy as the 
recipient deems appropriate.
    (d) Recipients shall take action concerning lessees as follows:
    (1) Recipients shall not exclude MBEs from participation in business 
opportunities by entering into long-term, exclusive agreements with non-
MBEs for the operation of major transportation-related activities or 
major activities for the provision of goods and services to the facility 
or to the public on the facility.
    (2) Recipients required to submit affirmative action programs under 
Sec. 23.41 (a)(2) or (a)(3) that have business opportunities for lessees 
shall submit to the Department for approval with their programs overall 
goals for the participation as lessees of firms owned and controlled by 
minorities and firms owned and controlled by women. These goals shall be 
for a specified period of time and shall be based on the factors listed 
in Sec. 23.45(g)(5). Recipients shall review these goals at least 
annually, and whenever the goals expire. The review shall analyze 
projected versus actual MBE participation during the period covered by 
the review and any changes in factual circumstances affecting the 
selection of goals. Following each review, the recipient shall submit 
new overall goals to the Department for approval. Recipients that fail 
to meet their goals for MBE lessees shall demonstrate to the Department 
in writing that they made reasonable efforts to meet the goals.
    (3) Except as provided in this section, recipients are not required 
to include lessees in their affirmative action programs. Lessees 
themselves are not subject to the requirements of this part, except for 
the obligation of Sec. 23.7 to avoid discrimination against MBEs.



Sec. 23.45  Required MBE program components.

    (a) A policy statement, expressing a commitment to use MBEs in all 
aspects of contracting to the maximum extent feasible. (1) The 
applicant's policymaking body (Board, Council, etc.) shall issue a 
policy statement, signed by the chairperson, which expresses its 
commitment to the program, outlines the various levels of responsibility 
and states

[[Page 201]]

the objectives of the program. The policy statement shall be circulated 
throughout the applicant's organization and to minority, female, and 
nonminority community and business organizations.
    (b) The designation of liaison officer, as well as such support 
staff as may be necessary and proper to administer the program, and a 
description of the authority, responsibility, and duties of the liaison 
officer and support staff. (1) The Chief Executive Officer of the 
recipient shall designate an MBE liaison officer and adequate staff to 
administer the MBE program. The MBE liaison officer shall report 
directly to the Chief Executive Officer.
    (2) The MBE liaison officer shall be responsible for developing, 
managing, and implementing the MBE program on a day-to-day basis; for 
carrying out technical assistance activities for MBEs; and for 
disseminating information on available business opportunities so that 
MBEs are provided an equitable opportunity to bid on the applicant's 
contracts.
    (c) Procedures to ensure that MBEs have an equitable opportunity to 
compete for contracts and subcontracts. The recipient shall develop and 
use affirmative action techniques to facilitate MBE participation in 
contracting activities. These techniques include:
    (1) Arranging solicitations, time for the presentation of bids, 
quantities, specifications, and delivery schedules so as to facilitate 
the participation MBEs.
    (2) Providing assistance to MBEs in overcoming barriers such as the 
inability to obtain bonding, financing, or technical assistance.
    (3) Carrying out information and communications programs on 
contracting procedures and specific contracting opportunities in a 
timely manner, with such programs being bilingual where appropriate.
    (d) Opportunities for the use of banks owned and controlled by 
minorities or women. (1) The recipient shall thoroughly investigate the 
full extent of services offered by banks owned and controlled by 
minorities or women in its community and make the greatest feasible use 
of these banks.
    (2) Recipients shall also encourage prime contractors to use the 
services of banks owned and controlled by minorities or women.
    (e) MBE directory. (1) The recipient shall have available a 
directory or source list to facilitate identifying MBEs with 
capabilities relevant to general contracting requirements and to 
particular solicitations. The recipient shall make the directory 
available to bidders and proposers in their efforts to meet the MBE 
requirements. It shall specify which firms the Department, recipient, or 
the Small Business Administration has determined to be eligible MBEs in 
accordance with procedures set forth in this subpart. Recipients subject 
to the disadvantaged business enterprise program requirements of subpart 
D of this part shall compile and update their directories annually. The 
directories shall include the addresses of listed firms.
    (2) [Reserved]
    (f) Procedures to ascertain the eligibility of MBEs and joint 
ventures involving MBEs. (1) To ensure that its MBE program benefits 
only firms owned and controlled by minorities or women, the recipient 
shall certify the eligibility of MBEs and joint ventures involving MBEs 
that are named by the competitors in accordance with this subpart. 
Recipients may, at their own discretion, accept certifications made by 
other DOT recipients.
    (2) Recipients shall require their prime contractors to make good 
faith efforts to replace an MBE subcontractor that is unable to perform 
successfully with another MBE. The recipient shall approve all 
substitutions of subcontractors before bid opening and during contract 
performance, in order to ensure that the substitute firms are eligible 
MBEs.
    (3) Recipients covered by the disadvantaged business program 
requirements of subpart D of this part shall, in determining whether a 
firm is an eligible disadvantaged business enterprise, take at least the 
following steps:
    (i) Perform an on-site visit to the offices of the firm and to any 
job sites on which the firm is working at the time of the eligibility 
investigation;
    (ii) Obtain the resumes or work histories of the principal owners of 
the

[[Page 202]]

firm and personally interview these individuals;
    (iii) Analyze the ownership of stock in the firm, if it is a 
corporation;
    (iv) Analyze the bonding and financial capacity of the firm;
    (v) Determine the work history of the firm, including contracts it 
has received and work it has completed;
    (vi) Obtain or compile a list of equipment owned or available to the 
firm and the licenses of the firm and its key personnel to perform the 
work it seeks to do as part of the DBE program; and
    (vii) Obtain a statement from the firm of the type of work it 
prefers to perform as part of the DBE program.
    (g) Percentage goals for the dollar value of work to be awarded to 
MBEs. (1) Once the recipient has reviewed proposed contracting to 
identify those contracting activities which have the greatest potential 
for MBE participation, the recipient shall set goals that are practical 
and related to the potential availability of MBEs in desired areas of 
expertise.
    (2) The applicant/recipient shall establish two types of MBE goals:
    (i) Overall goals for its entire MBE program, for a specified period 
of time (e.g. one year), or for a specific project, (e.g. the 
construction of a facility); and
    (ii) Contract goals on each specific prime contract with 
subcontracting possibilities, which the bidder or proposer must meet or 
exceed or demonstrate that it could not meet despite its best efforts.
    (3)(i) Recipients shall submit their overall goals and a description 
of the methodology used in establishing them with their MBE program. 
When the overall goals expire, new overall goals shall be set and 
submitted to the Department for approval. Contract goals need not be 
submitted in the applicant's MBE program, but the program shall contain 
a description of the methodology to be used in establishing them. 
Contract goals may require approval by the Department prior to contract 
solicitation.
    (ii) At the time the recipient submits its overall goals to the 
Department for approval, the recipient shall publish a notice announcing 
these goals, informing the public that the goals and a description of 
how they were selected are available for inspection during normal 
business hours at the principal office of the recipient for 30 days 
following the date of the notice, and informing the public that the 
Department and the recipient will accept comments on the goals for 45 
days from the date of the notice. The notice shall include addresses to 
which comments may be sent, and shall be published in general 
circulation media and available minority-focus media and trade 
association publications, and shall state that the comments are for 
informational purposes only.
    (4) Recipients covered by the disadvantaged business enterprise 
program requirements of subpart D of this part shall establish an 
overall goal and contract goal for firms owned and controlled by 
socially and economically disadvantaged individuals. Other recipients 
shall establish separate overall and contract goals for firms owned and 
controlled by minorities and firms owned and controlled by women, 
respectively.
    (5) The applicant shall consider the following factors in setting 
overall goals:
    (i) Overall goals shall be based on projection of the number and 
types of contracts to be awarded by the applicant and a projection of 
the number and types of MBEs likely to be available to compete for 
contracts from the recipient over the period during which the goals will 
be in effect.
    (ii) Overall goals shall also be based on past results of the 
applicant's/recipient's efforts to contract with MBEs and the reasons 
for the high or low level of those results.
    (6) The applicant/recipient shall review the overall goals at least 
annually. The review process shall analyze projected versus actual MBE 
participation during the previous year. The necessary revisions shall be 
made based on the analysis and submitted to the Department for approval.
    (7) Goals shall be set for specific contracts based on the known 
availability of qualified MBEs.
    (8) Recipients and contractors shall, at a minimum, seek MBEs in the 
same geographic area in which they seek

[[Page 203]]

contractors or subcontractors generally for a given solicitation. If the 
recipient or contractor cannot meet the goals using MBEs from this 
geographic area, the recipient or contractor, as part of its efforts to 
meet the goal, shall expand its search to a reasonable wider geographic 
area.
    (h) A means to ensure that competitors make good faith efforts to 
meet MBE contract goals. (1) For all contracts for which contract goals 
have been established, the recipient shall, in the solicitation, inform 
competitors that the apparent successful competitor will be required to 
submit MBE participation information to the recipient and that the award 
of the contract will be conditioned upon satisfaction of the 
requirements established by the recipient pursuant to this subsection.
    (i) The apparent successful competitor's submission shall include 
the following information:
    (A) The names and addresses of MBE firms that will participate in 
the contract;
    (B) A description of the work each named MBE firm will perform;
    (C) The dollar amount of participation by each named MBE firm.
    (ii) The recipient may select the time at which it requires MBE 
information to be submitted. Provided, that the time of submission shall 
be before the recipient commits itself to the performance of the 
contract by the apparent successful competitor.
    (2) If the MBE participation submitted in response to paragraph 
(h)(1) of this section does not meet the MBE contract goals, the 
apparent successful competitor shall satisfy the recipient that the 
competitor has made good faith efforts to meet the goals.
    (i) The recipient may prescribe other requirements of equal or 
greater effectiveness in lieu of good faith efforts. Any recipient 
choosing alternative requirements shall inform the DOT office concerned 
by letter of the content of the requirements it has prescribed within 30 
days of the effective date of this subsection. The recipient may put 
these alternative requirements into effect immediately and prior DOT 
approval of alternative requirements is not necessary.
    (ii) If the Department determines that the alternative requirements 
are not as or more effective than the good faith efforts provisions of 
this subsection, the Department may require the recipient to use the 
good faith efforts requirements of this subsection instead of the 
requirements it has prescribed.
    (3) Meeting MBE contract goals, making good faith efforts as 
provided in paragraph (h)(2) of this section, or meeting requirements 
established by recipients in lieu of good faith efforts, is a condition 
of receiving a DOT-assisted contract for which contract goals have been 
established.
    (i) [Reserved]
    (j) A description of the methods by which the recipient will require 
subrecipients, contractors, and subcontractors to comply with applicable 
MBE requirements. (1) The recipient shall include in its MBE program a 
description and the specific language of any preconditions to subgrants 
or contracts pertaining to the use of MBEs, including subcontracting 
programs, it awards with DOT funds in addition to those required by this 
section. It shall specify on what size and/or type of contracts and 
subgrants it includes such preconditions. The description shall contain 
a summary of the ways the recipient provides help to its subrecipients, 
contractors, and subcontractors in drafting and implementing their 
programs for using MBEs. The description shall also include the means by 
which the recipient enforces the requirements placed on subrecipients, 
contractors and subcontractors.
    (2) Any MBE subcontracting programs required by the recipient in 
addition to those required by this section shall be submitted to the 
recipient by the apparent successful bidder/proposer. The bidders/
proposers shall be advised in the solicitation that failure to submit 
the additional MBE subcontracting program shall make the bidder/proposer 
ineligible for award.
    (k) Procedures by which the applicant/recipient will implement MBE 
set-asides. Where not prohibited by state or local law and determined by 
the recipient to be necessary to meet MBE goals, procedures to implement 
MBE set-asides shall be established. MBE set-asides

[[Page 204]]

shall be used only in cases where at least three MBEs with capabilities 
consistent with contract requirements exist so as to permit competition.

    Appendix A to Sec. 23.45--Guidance Concerning Good Faith Efforts

    To determine whether a competitor that has failed to meet MBE 
contract goals may receive the contract, the recipient must decide 
whether the efforts the competitor made to obtain MBE participation were 
``good faith efforts'' to meet the goals. Efforts that are merely pro 
forma are not good faith efforts to meet the goals. Efforts to obtain 
MBE participation are not good faith efforts to meet the goals, even if 
they are sincerely motivated, if, given all relevant circumstances, they 
could not reasonably be expected to produce a level of MBE participation 
sufficient to meet the goals. In order to award a contract to a 
competitor that has failed to meet MBE contract goals, the recipient 
must determine that the competitor's efforts were those that, given all 
relevant circumstances, a competitor actively and aggressively seeking 
to meet the goals would make.
    To assist recipients in making the required judgment, the Department 
has prepared a list of the kinds of efforts that contractors may make in 
obtaining MBE participation. It is not intended to be a mandatory 
checklist; the Department does not require recipients to insist that a 
contractor do any one, or any particular combination, of the things on 
the list. Nor is the list intended to be exclusive or exhaustive. Other 
factors or types of efforts may be relevant in appropriate cases. In 
determining whether a contractor has made good faith efforts, it will 
usually be important for a recipient to look not only at the different 
kinds of efforts that the contractor has made, but also the quantity and 
intensity of these efforts.
    The Department offers the following list of kinds of efforts that 
recipients may consider:
    (1) Whether the contractor attended any pre-solicitation or pre-bid 
meetings that were scheduled by the recipient to inform MBEs of 
contracting and subcontracting opportunities;
    (2) Whether the contractor advertised in general circulation, trade 
association, and minority-focus media concerning the subcontracting 
opportunities;
    (3) Whether the contractor provided written notice to a reasonable 
number of specific MBEs that their interest in the contract was being 
solicited, in sufficient time to allow the MBEs to participate 
effectively;
    (4) Whether the contractor followed up initial solicitations of 
interest by contacting MBEs to determine with certainty whether the MBEs 
were interested;
    (5) Whether the contractor selected portions of the work to be 
performed by MBEs in order to increase the likelihood of meeting the MBE 
goals (including, where appropriate, breaking down contracts into 
economically feasible units to facilitate MBE participation);
    (6) Whether the contractor provided interested MBEs with adequate 
information about the plans, specifications and requirements of the 
contract;
    (7) Whether the contractor negotiated in good faith with interested 
MBEs, not rejecting MBEs as unqualified without sound reasons based on a 
thorough investigation of their capabilities;
    (8) Whether the contractor made efforts to assist interested MBEs in 
obtaining bonding, lines of credit, or insurance required by the 
recipient or contractor; and
    (9) Whether the contractor effectively used the services of 
available minority community organizations; minority contractors' 
groups; local, state and Federal minority business assistance offices; 
and other organizations that provide assistance in the recruitment and 
placement of MBEs.

(Title VI of the Civil Rights Act of 1964; sec. 30 of the Airport and 
Airway Development Act of 1970, as amended; sec. 905 of the Railroad 
Revitalization and Regulatory Reform Act of 1976; sec. 19 of the Urban 
Mass Transportation Act of 1964, as amended; 23 U.S.C. 324; E.O. 11625; 
E.O. 12138)

[45 FR 21184, Mar. 31, 1980, as amended at 46 FR 23461, Apr. 27, 1981; 
52 FR 39230, Oct. 21, 1987]



Sec. 23.47  Counting MBE participation toward meeting MBE goals.

    MBE participation shall be counted toward meeting MBE goals set in 
accordance with this subpart as follows:
    (a) Once a firm is determined to be an eligible MBE in accordance 
with this subpart, the total dollar value of the contract awarded to the 
MBE is counted toward the applicable MBE goals.
    (b) The total dollar value of a contract to an MBE owned and 
controlled by both minority males and non-minority females is counted 
toward the goals for minorities and women, respectively, in proportion 
to the percentage of ownership and control of each group in the 
business. The total dollar value of a contract with an MBE owned and 
controlled by minority women is counted toward either the minority goal 
or the goal for women, but not to both. The contractor or recipient 
employing the firm may choose the goal to which the contract value is 
applied.

[[Page 205]]

    (c) A recipient or contractor may count toward its MBE goals a 
portion of the total dollar value of a contract with a joint venture 
eligible under the standards of this subpart equal to the percentage of 
the ownership and controls of the MBE partner in the joint venture.
    (d)(1) A recipient or contractor may count toward its MBE goals only 
expenditures to MBEs that perform a commercially useful function in the 
work of a contract. An MBE is considered to perform a commercially 
useful function when it is responsible for execution of a distinct 
element of the work of a contract and carrying out its responsibilities 
by actually performing, managing, and supervising the work involved. To 
determine whether an MBE is performing a commercially useful function, 
the recipient or contractor shall evaluate the amount of work 
subcontracted, industry practices, and other relevant factors.
    (2) Consistent with normal industry practices, an MBE may enter into 
subcontracts. If an MBE contractor subcontracts a significantly greater 
portion of the work of the contract than would be expected on the basis 
of normal industry practices, the MBE shall be presumed not to be 
performing a commercially useful function. The MBE may present evidence 
to rebut this presumption to the recipient. The recipient's decision on 
the rebuttal of this presumption is subject to review by the Department.
    (e)(1) A recipient or contractor may count toward its MBE, DBE or 
WBE goals 60 percent of its expenditures for materials and supplies 
required under a contract and obtained from an MBE, DBE or WBE regular 
dealer, and 100 percent of such expenditures to an MBE, WBE, or DBE 
manufacturer.
    (2) For purposes of this section, a manufacturer is a firm that 
operates or maintains a factory or establishment that produces on the 
premises the materials or supplies obtained by the recipient or 
contractor.
    (3) For purposes of this section, a regular dealer is a firm that 
owns, operates, or maintains a store, warehouse, or other establishment 
in which the materials or supplies required for the performance of the 
contract are bought, kept in stock, and regularly sold to the public in 
the usual course of business. To be a regular dealer, the firm must 
engage in, as its principal business, and in its own name, the purchase 
and sale of the products in question. A regular dealer in such bulk 
items as steel, cement, gravel, stone, and petroleum products need not 
keep such products in stock, if it owns or operates distribution 
equipment. Brokers and packagers shall not be regarded as manufacturers 
or regular dealers within the meaning of this section.
    (f) A recipient or contractor may count toward its MBE, DBE, or WBE 
goals the following expenditures to MBE, DBE, or WBE firms that are not 
manufacturers or regular dealers:
    (1) The fees or commissions charged for providing a bona fide 
service, such as professional, technical, consultant or managerial 
services and assistance in the procurement of essential personnel, 
facilities, equipment, materials or supplies required for performance of 
the contract, provided that the fee or commission is determined by the 
recipient to be reasonable and not excessive as compared with fees 
customarily allowed for similar services.
    (2) The fees charged for delivery of materials and supplies required 
on a job site (but not the cost of the materials and supplies 
themselves) when the hauler, trucker, or delivery service is not also 
the manufacturer of or a regular dealer in the materials and supplies, 
provided that the fee is determined by the recipient to be reasonable 
and not excessive as compared with fees customarily allowed for similar 
services.
    (3) The fees or commissions charged for providing any bonds or 
insurance specifically required for the performance of the contract, 
provided that the fee or commission is determined by the recipient to be 
reasonable and not excessive as compared with fees customarily allowed 
for similar services.

[45 FR 21184, Mar. 31, 1980, as amended at 52 FR 39230, Oct. 21, 1987]



Sec. 23.49  Maintenance of records and reports.

    (a) In order to monitor the progress of its MBE program the 
applicant/recipient shall develop a recordkeeping

[[Page 206]]

system which will identify and assess MBE contract awards, prime 
contractors' progress in achieving MBE subcontract goals, and other MBE 
affirmative action efforts.
    (b) Specifically, the applicant/recipient shall maintain records 
showing:
    (1) Procedures which have been adopted to comply with the 
requirements of this part.
    (2) Awards to MBEs. These awards shall be measured against projected 
MBE awards and/or MBE goals. To assist in this effort, the applicant 
shall obtain regular reports from prime contractors on their progress in 
meeting contractual MBE obligations.
    (3) Specific efforts to identify and award contracts to MBEs.
    (c) Records shall be available upon the request of an authorized 
officer or employee of the government.
    (d)(1) The recipient shall submit reports conforming in frequency 
and format to existing contract reporting requirements of the applicable 
Departmental element. Where no such contract reporting requirements 
exist, MBE reports shall be submitted quarterly.
    (2) These reports shall include as a minimum:
    (i) The number of contracts awarded to MBEs;
    (ii) A description of the general categories of contracts awarded to 
MBEs;
    (iii) The dollar value of contracts awarded to MBEs;
    (iv) The percentage of the dollar value of all contracts awarded 
during this period which were awarded to MBEs; and
    (v) An indication of whether and the extent of which the percentage 
met or exceeded the goal specified in the application.
    (3) The records and reports required by this section shall provide 
information relating to firms owned and controlled by minorities 
separately from information relating to firms owned and controlled by 
women. If the records and reports include any section 8(a) contractors 
that are not minorities or women, information concerning these 
contractors shall also be recorded and reported separately.



Sec. 23.51  Certification of the eligibility of minority business enterprises.

    (a) To ensure that this part benefits only MBEs which are owned and 
controlled in both form and substance by one or more minorities or 
women, DOT recipients shall use Schedules A and B (reproduced at the end 
of this part) to certify firms who wish to participate as MBEs in DOT 
under this part.
    (b) Except as provided in paragraph (c) of this section, each 
business, including the MBE partner in a joint venture, wishing to 
participate as a MBE under this part in a DOT-assisted contract shall 
complete and submit Schedue A. Each entity wishing to participate as a 
joint venture MBE under this part in DOT-assisted contracts shall in 
addition complete and submit Schedule B. The schedule(s) shall be signed 
and notarized by the authorized representative of the business entity. A 
business seeking certification as an MBE shall submit the required 
schedules with its bid or proposal for transmission to the contracting 
agency involved.
    (c) Under the following circumstances, a business seeking to 
participate as an MBE under this subpart need not submit schedule A or 
B:
    (1) If a DOT recipient has established a different certification 
process that DOT has determined to be as or more effective than the 
process provided for by this section. Where such a process exists, 
potential MBE contractors shall submit the information required by the 
recipient's process.
    (2) If the potential MBE contractor states in writing that it has 
submitted the same information to or has been certified by the DOT 
recipient involved, any DOT element, or another Federal agency that uses 
essentially the same definition and ownership and control criteria as 
DOT. The potential MBE contractor shall obtain the information and 
certification (if any) from the other agency and submit it to the 
recipient or cause the other agency to submit it. The recipient may rely 
upon such a certification. Where another agency has collected 
information but not made a determination concerning eligibility, the DOT 
recipient shall make its own determination based on

[[Page 207]]

the information it has obtained from the other agency.
    (3) If the potential MBE contractor has been determined by the Small 
Business Administration to be owned and controlled by socially and 
economically disadvantaged individuals under section 8(a) of the Small 
Business Act, as amended.



Sec. 23.53  Eligibility standards.

    (a) The following standards shall be used by recipients in 
determining whether a firm is owned and controlled by one or more 
minorities or women is and shall therefore be eligible to be certified 
as an MBE. Businesses aggrieved by the determination may appeal in 
accordance with procedures set forth in Sec. 23.55.
    (1) Bona fide minority group membership shall be established on the 
basis of the individual's claim that he or she is a member of a minority 
group and is so regarded by that particular minority community. However, 
the recipient is not required to accept this claim if it determines the 
claim to be invalid.
    (2) An eligible minority business enterprise under this part shall 
be an independent business. The ownership and control by minorities or 
women shall be real, substantial, and continuing and shall go beyond the 
pro forma ownership of the firm as reflected in its ownership documents. 
The minority or women owners shall enjoy the customary incidents of 
ownership and shall share in the risks and profits commensurate with 
their ownership interests, as demonstrated by a examination of the 
substance rather than form of arrangements. Recognition of the business 
as a separate entity for tax or corporate purposes is not necessarily 
sufficient for recognition as an MBE. In determining whether a potential 
MBE is an independent business, DOT recipients shall consider all 
relevant factors, including the date the business was established, the 
adequacy of its resources for the work of the contract, and the degree 
to which financial, equipment leasing, and other relationships with 
nonminority firms vary from industry practice.
    (3) The minority or women owners shall also possess the power to 
direct or cause the direction of the management and policies of the firm 
and to make the day-to-day as well as major decisions on matters of 
management, policy, and operations. The firm shall not be subject to any 
formal or informal restrictions which limit the customary discretion of 
the minority or women owners. There shall be no restrictions through, 
for example, bylaw provisions, partnership agreements, or charter 
requirements for cumulative voting rights or otherwise that prevent the 
minority or women owners, without the cooperation or vote of any owner 
who is not a minority or woman, from making a business decision of the 
firm.
    (4) If the owners of the firm who are not minorities or women are 
disproportionately responsible for the operation of the firm, then the 
firm is not controlled by minorities or women and shall not be 
considered an MBE within the meaning of this part. Where the actual 
management of the firm is contracted out to individuals other than the 
owner, those persons who have the ultimate power to hire and fire the 
managers can, for the purposes of this part, be considered as 
controlling the business.
    (5) All securities which constitute ownership and/or control of a 
corporation for purposes of establishing it as an MBE under this part 
shall be held directly by minorities or women. No securities held in 
trust, or by any guardian for a minor, shall be considered as held by 
minority or women in determining the ownership or control of a 
corporation.
    (6) The contributions of capital or expertise by the minority or 
women owners to acquire their interests in the firm shall be real and 
substantial. Examples of insufficient contributions include a promise to 
contribute capital, a note payable to the firm or its owners who are not 
socially and economically disadvantaged, or the mere participation as an 
employee, rather than as a manager.
    (b) In addition to the above standards, DOT recipients shall give 
special consideration to the following circumstances in determining 
eligibility under this part.

[[Page 208]]

    (1) Newly formed firms and firms whose ownership and/or control has 
changed since the date of the advertisement of the contract are closely 
scrutinized to determine the reasons for the timing of the formation of 
or change in the firm.
    (2) A previous and/or continuing employer-employee relationship 
between or among present owners is carefully reviewed to ensure that the 
employee-owner has management responsibilities and capabilities 
discussed in this section.
    (3) Any relationship between an MBE and a business which is not an 
MBE which has an interest in the MBE is carefully reviewed to determine 
if the interest of the non-MBE conflicts with the ownership and control 
requirements of this section.
    (c) A joint venture is eligible under this part if the MBE partner 
of the joint venture meets the standards for an eligible MBE set forth 
above and the MBE partner is responsible for a clearly defined portion 
of the work to be performed and shares in the ownership, control, 
management responsibilities, risks, and profits of the joint venture.
    (d) A joint venture is eligible to compete in an MBE set-aside under 
this part if the MBE partner of the joint venture meets the standards of 
an eligible MBE set forth above, and the MBE partner's share in the 
ownership, control, and management responsibilities, risks, and profits 
of the joint venture is at least 51 percent and the MBE partner is 
responsible for a clearly defined portion of the work to be performed.
    (e) A business wishing to be certified as an MBE or joint venture 
MBE by a DOT recipient shall cooperate with the recipient in supplying 
additional information which may be requested in order to make a 
determination.
    (f) Once certified, an MBE shall update its submission annually by 
submitting a new Schedule A or certifying that the Schedule A on file is 
still accurate. At any time there is a change in ownership or control of 
the firm, the MBE shall submit a new schedule A.
    (g) Except as provided in Sec. 23.55, the denial of a certification 
by the Department or a recipient shall be final, for that contract and 
other contracts being let by the recipient at the time of the denial of 
certification. MBEs and joint ventures denied certification may correct 
deficiencies in their ownership and control and apply for certification 
only for future contracts.
    (h) Recipients shall safeguard from disclosure to unauthorized 
persons information that reasonably may be regarded as confidential 
business information, consistent with Federal, state and local law.



Sec. 23.55  Appeals of denials of certification as an MBE.

    (a) Filing. Any firm which believes that it has been wrongly denied 
certification as an MBE or joint venture under Secs. 23.51 and 23.53 by 
the Department or a recipient of DOT financial assistance may file an 
appeal in writing, signed and dated, with the Department. The appeal 
shall be filed no later than 180 days after the date of denial of 
certification. The Secretary may extend the time for filing or waive the 
time limit in the interest of justice, specifying in writing the reasons 
for so doing. Third parties who have reason to believe that another firm 
has been wrongly denied or granted certification as an MBE or joint 
venture may advise the Secretary. This information is not considered an 
appeal pursuant to this section.
    (b) Decision to investigate. The Secretary ensures that a prompt 
investigation is made pursuant to prescribed DOT title VI investigation 
procedures.
    (c) Status of certification during the investigation. The Secretary 
may at his/her discretion, deny the MBE or joint venture in question 
eligibility to participate as an MBE DOT-assisted contracts let during 
the pendancy of the investigation, after providing the MBE or joint 
venture in question an opportunity to show cause by written statement to 
the Secretary why this should not occur.
    (d) Cooperation in investigation. All parties shall cooperate fully 
with the investigation. Failure or refusal to furnish requested 
information or other failure to cooperate is a violation of this part.
    (e) Determinations. The Secretary makes one of the following 
determinations and informs the MBE or joint

[[Page 209]]

venture in writing of the reasons for the determination:
    (1) The MBE or joint venture is certified; or
    (2) The MBE or joint venture is not eligible to be certified and is 
denied eligibility to participate as an MBE in any direct or DOT-
assisted contract until a new application for certification is approved 
by the recipient.



       Subpart D--Implementation of Section 105(f) of the Surface 
                  Transportation Assistance Act of 1982

    Source: 48 FR 33442, July 21, 1983, unless otherwise noted.



Sec. 23.61  Purpose.

    (a) The purpose of this subpart is to implement section 106(c) of 
the Surface Transportation and Uniform Relocation Assistance Act of 1987 
(Pub. L. 100-17) and section 105(f) of the Airport and Airway Safety and 
Capacity Expansion Act of 1987 (Pub. L. 100-223) so that, except to the 
extent the Secretary determines otherwise, not less than ten percent of 
the funds authorized by the Act for the programs listed in Sec. 23.63 of 
this subpart is expended with small business concerns owned and 
controlled by socially and economically disadvantaged individuals.
    (b) The ten percent level of participation for disadvantaged 
businesses established by section 106(c) and section 105(f) will be 
achieved if recipients under the programs covered by this subpart set 
and meet overall disadvantaged business goals of at least ten percent.

[48 FR 33442, July 21, 1983, as amended at 52 FR 39230, Oct. 21, 1987; 
53 FR 18286, May 23, 1988]



Sec. 23.62  Definitions.

    The following definitions apply to this subpart. Where these 
definitions are inconsistent with the definitions of Sec. 23.5 of this 
part, these definitions control for all other purposes under this part.
    Act means the Surface Transportation and Uniform Relocation 
Assistance Act of 1987 (Pub. L. 100-17), with respect to financial 
assistance programs of the FHWA and UMTA, and the Airport and Airway 
Safety and Capacity Expansion Act of 1987 (Pub. L. 100-223), with 
respect to FAA programs.
    Disadvantaged business means a small business concern: (a) Which is 
at least 51 percent owned by one or more socially and economically 
disadvantaged individuals, or, in the case of any publicly owned 
business, at least 51 percent of the stock of which is owned by one or 
more socially and economically disadvantaged individuals; and (b) whose 
management and daily business operations are controlled by one or more 
of the socially and economically disadvantaged individuals who own it.
    Small business concern means a small business as defined pursuant to 
section 3 of the Small Business Act and relevant regulations promulgated 
pursuant thereto except that a small business concern shall not include 
any concern or group of concerns controlled by the same socially and 
economically disadvantaged individual or individuals which has annual 
average gross receipts in excess of $14 million over the previous three 
fiscal years. The Secretary shall adjust this figure from time to time 
for inflation.
    Socially and economically disadvantaged individuals means those 
individuals who are citizens of the United States (or lawfully admitted 
permanent residents) and who are women, Black Americans, Hispanic 
Americans, Native Americans, Asian-Pacific Americans, or Asian-Indian 
Americans and any other minorities or individuals found to be 
disadvantaged by the Small Business Administration pursuant to section 
8(a) of the Small Business Act. Recipients shall make a rebuttable 
presumption that individuals in the following groups are socially and 
economically disadvantaged. Recipients also may determine, on a case-by-
case basis, that individuals who are not a member of one of the 
following groups are socially and economically disadvantaged.
    (a) Black Americans which includes persons having origins in any of 
the Black racial groups of Africa;
    (b) Hispanic Americans which includes persons of Mexican, Puerto 
Rican, Cuban, Central or South American, or

[[Page 210]]

other Spanish or Portuguese culture or origin, regardless of race;
    (c) Native Americans which includes persons who are American 
Indians, Eskimos, Aleuts, or Native Hawaiians;
    (d) Asian-Pacific Americans which includes persons whose origins are 
from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the 
Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific, and 
the Northern Marianas; and
    (e) Asian-Indian Americans which includes persons whose origins are 
from India, Pakistan, and Bangladesh.

[48 FR 33442, July 21, 1983, as amended at 52 FR 39230, Oct. 21, 1987; 
53 FR 18286, May 23, 1988]



Sec. 23.63  Applicability.

    This subpart applies to all DOT financial assistance in the 
following categories that recipients expend in DOT-assisted contracts:
    (a) Federal-aid highway funds authorized by title I of the Act;
    (b) Urban mass transportation funds authorized by title I or III of 
the Act or the Urban Mass Transportation Act of 1964, as amended; and
    (c) Funds authorized by title I, II (except section 203) or III of 
the Surface Transportation Assistance Act of 1982 (Pub. L. 97-424) and 
obligated on or after April 2, 1987.
    (d) Funds authorized under section title I of the Airport and Airway 
Safety and Capacity Expansion Act of 1987 (Pub. L. 100-223).

[52 FR 39231, Oct. 21, 1987, as amended at 53 FR 18286, May 23, 1988]



Sec. 23.64  Submission of overall goals.

    (a) Each recipient of funds to which this subpart applies that is 
required to have an MBE program under Sec. 23.41 of this part shall 
establish an overall goal for the use of disadvantaged businesses.
    (b) Each recipient required to establish an overall goal shall 
calculate it in terms of a percentage of one of the following bases, as 
applicable:
    (1) For recipients of Federal-aid highway funds, all such funds that 
the recipient will expend in DOT-assisted contracts in the forthcoming 
fiscal year; or
    (2) For recipients of urban mass transportation or airport funds, 
all such funds (exclusive of funds to be expended for purchases of 
transit vehicles) that the recipient will expend in DOT-assisted 
contracts in the forthcoming fiscal year. In appropriate cases, the UMTA 
or FAA Administrator may permit recipients to express overall goals as a 
percentage of funds for a particular grant, project, or group of grants 
and/or projects.
    (c) Each recipient of Federal-aid highway funds, urban mass 
transportation funds, or airport funds shall submit its overall goal to 
FHWA or UMTA or FAA, as appropriate, for approval 60 days before the 
beginning of the Federal fiscal year to which the goal applies. An UMTA 
or FAA recipient calculating its overall goal as a percentage of funds 
for a particular grant, project, or group of grants or projects shall 
submit its overall goal to UMTA or FAA at a time determined by the UMTA 
or FAA Administrator.
    (d) Recipients submitting a goal of ten percent or more shall submit 
the goal under the procedures set forth in Sec. 23.45(g) of this part.
    (e) If an FHWA or UMTA or FAA recipient requests approval of an 
overall goal of less than ten percent, the recipient shall take the 
following steps in addition to those set forth in Sec. 23.45(g) of this 
part:
    (1) Submit with its request a justification including the elements 
set forth in Sec. 23.65;
    (2) Ensure that the request is signed, or concurred in, by the 
Governor of the state (in the case of a state transportation agency), 
the Mayor or other elected official(s) responsible for the operation of 
a mass transit agency; or, with respect to an airport sponsor, the 
elected official, head of the board, or other official responsible for 
the operation of the sponsor, and
    (3) Consult with minority and general contractors' associations, 
community organizations, and other officials or organizations which 
could be expected to have information concerning the availability of 
disadvantaged businesses and the adequacy of the recipient's efforts to 
increase the participation of such businesses. If it appears to the 
Administrator that the recipient has failed to consult with a relevant 
person or organization, the Administrator may direct

[[Page 211]]

the recipient to consult with that person or organization.

[48 FR 33442, July 21, 1983, as amended at 53 FR 18286, May 23, 1988]



Sec. 23.65  Content of justification.

    An FHWA or UMTA or FAA recipient requesting approval of an overall 
goal of less than ten percent shall include information on the following 
points in its justification. Guidance concerning this information is 
found in appendix D.
    (a) The recipient's efforts to locate disadvantaged businesses;
    (b) The recipient's efforts to make disadvantaged businesses aware 
of contracting opportunities;
    (c) The recipient's initiatives to encourage and develop 
disadvantaged businesses;
    (d) Legal or other barriers impeding the participation of 
disadvantaged businesses at at least a ten percent level in the 
recipient's DOT-assisted contracts, and the recipient's efforts to 
overcome or mitigate the effects of these barriers;
    (e) The availability of disadvantaged businesses to work on the 
recipient's DOT-assisted contracts;
    (f) The size and other characteristics of the minority population of 
the recipient's jurisdiction, and the relevance of these factors to the 
availability or potential availability of disadvantaged businesses to 
work on the recipient's DOT-assisted contracts; and
    (g) A summary of the views and information concerning the 
availability of disadvantaged businesses and the adequacy of the 
recipient's efforts to increase the participation of such businesses 
provided by the persons and organizations consulted by the recipient 
under Sec. 23.64(f)(3).

[48 FR 33442, July 21, 1983, as amended at 53 FR 18286, May 23, 1988]



Sec. 23.66  Approval and disapproval of overall goals.

    (a) The Administrator reviews and approves any overall goal of ten 
percent or more submitted by a recipient as provided in Sec. 23.45(g) of 
this part.
    (b) The Administrator of the concerned Departmental element approves 
a requested goal of less than ten percent if he or she determines, on 
the basis of the recipient's justification and any other information 
available to the Administrator, that
    (1) The recipient is making all appropriate efforts to increase 
disadvantaged business participation in its DOT-assisted contracts to a 
ten percent level; and
    (2) Despite the recipient's efforts, the recipient's requested goal 
represents a reasonable expectation for the participation of 
disadvantaged businesses in its DOT-assisted contracts, given the 
availability of disadvantaged businesses to work on these contracts.
    (c) Before approving or disapproving a requested goal of less than 
ten percent, the Administrator provides the Director of the DOT Office 
of Small and Disadvantaged Business Utilization with an opportunity to 
review and comment on the request.
    (d) If the Administrator does not approve the goal the recipient has 
requested, the Administrator, after consulting with the recipient, 
establishes an adjusted overall goal. The adjusted overall goal 
represents the Administrator's determination of a reasonable expectation 
for the participation of disadvantaged businesses in the recipients DOT-
assisted contracts, and is based on the information provided by the 
recipient and/or other information available to the Administrator.
    (e) The Administrator may condition the approval or establishment of 
any overall goal on any reasonable future action by the recipient.



Sec. 23.67  Special provision for transit vehicle manufacturers.

    (a) Each UMTA recipient shall require that each transit vehicle 
manufacturer, as a condition of being authorized to bid on transit 
vehicle procurements in which UMTA funds participate, certify that it 
has complied with the requirements of this section. This requirement 
shall go into effect on October 1, 1983.
    (b) Each manufacturer shall establish and submit for the UMTA 
Administrator's approval an annual percentage overall goal. The base 
from which the goal is calculated shall be the amount of UMTA financial 
assistance participating in transit vehicle contracts to

[[Page 212]]

be performed by the manufacturer during the fiscal year in question. 
Funds attributable to work performed outside the United States and its 
territories, possessions, and commonwealths shall be excluded from this 
base. The requirements and procedures of Sec. 23.64 (d) and (e)(1) and 
Secs. 23.65--23.66 of this subpart shall apply to transit vehicle 
manufacturers as they apply to recipients.
    (c) The manufacturer may make the certification called for in 
paragraph (a) if it has submitted the goal required by paragraph (b) and 
the UMTA Administrator has either approved it or not disapproved it.



Sec. 23.68  Compliance.

    (a) Compliance with the requirements of this subpart is enforced 
through the provisions of this section, not through the provisions of 
subpart E of this part.
    (b) Failure of a recipient to have an approved MBE program, 
including an approved overall goal, as required by Sec. 23.64 of this 
subpart, is noncompliance with this subpart.
    (c) If a recipient fails to meet an approved overall goal, it shall 
have the opportunity to explain to the Administrator of the concerned 
Department element why the goal could not be achieved and why meeting 
the goal was beyond the recipient's control.
    (d)(1) If the recipient does not make such an explanation, or if the 
Administrator determines that the recipient's explanation does not 
justify the failure to meet the approved overall goal, the Administrator 
may direct the recipient to take appropriate remedial action. Failure to 
take remedial action directed by the Administrator is noncompliance with 
this subpart.
    (2) Before the Administrator determines whether a recipient's 
explanation justifies its failure to meet the approved overall goal, the 
Administrator gives the Director, Office of Small and Disadvantaged 
Business Utilization, an opportunity to review and comment on the 
recipient's explanation.
    (e)(1) In the event of noncompliance with this subpart by a 
recipient of Federal-aid highway funds, the FHWA Administrator may take 
any action provided for in 23 CFR 1.36.
    (2) In the event of noncompliance with this subpart by a recipient 
of funds administered by UMTA or FAA, the UMTA or FAA Administrator may 
take appropriate enforcement action. Such action may include the 
suspension or termination of Federal funds or the refusal to approve 
projects, grants, or contracts until deficiencies are remedied.

[48 FR 33442, July 21, 1983; 48 FR 41163, Sept. 14, 1983, as amended at 
53 FR 18286, May 23, 1988]



Sec. 23.69  Challenge procedure.

    (a) Each recipient required to establish an overall goal under 
Sec. 23.64 shall establish a challenge procedure consistent with this 
section to determine whether an individual presumed to be socially and 
economically disadvantaged as provided in Sec. 23.62 is in fact socially 
and economically disadvantaged.
    (b) The recipient's challenge procedure shall provide as follows:
    (1) Any third party may challenge the socially and economically 
disadvantaged status of any individual (except an individual who has a 
current 8(a) certification from the Small Business Administration) 
presumed to be socially and economically disadvantaged if that 
individual is an owner of a firm certified by or seeking certification 
from the recipient as a disadvantaged business. The challenge shall be 
made in writing to the recipient.
    (2) With its letter, the challenging party shall include all 
information available to it relevant to a determination of whether the 
challenged party is in fact socially and economically disadvantaged.
    (3) The recipient shall determine, on the basis of the information 
provided by the challenging party, whether there is reason to believe 
that the challenged party is in fact not socially and disadvantaged.
    (i) If the recipient determines that there is not reason to believe 
that the challenged party is not socially and economically 
disadvantaged, the recipient shall so inform the challenging party in 
writing. This terminates the proceeding.

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    (ii) If the recipient determines that there is reason to believe 
that the challenged party is not socially and economically 
disadvantaged, the recipient shall begin a proceeding as provided in 
paragraphs (b) (4), (5), and (6) of this section.
    (4) The recipient shall notify the challenged party in writing that 
his or her status as a socially and economically disadvantaged 
individual has been challenged. The notice shall identify the 
challenging party and summarize the grounds for the challenge. The 
notice shall also require the challenged party to provide to the 
recipient, within a reasonable time, information sufficient to permit 
the recipient to evaluate his or her status as a socially and 
economically disadvantaged individual.
    (5) The recipient shall evaluate the information available to it and 
make a proposed determination of the social and economic disadvantage of 
the challenged party. The recipient shall notify both parties of this 
proposed determination in writing, setting forth the reasons for its 
proposal. The recipient shall provide an opportunity to the parties for 
an informal hearing, at which they can respond to this proposed 
determination in writing and in person.
    (6) Following the informal hearing, the recipient shall make a final 
determination. The recipient shall inform the parties in writing of the 
final determination, setting forth the reasons for its decision.
    (7) In making the determinations called for in paragraphs (b) (3), 
(5), and (6) of this section, the recipient shall use the standards set 
forth in appendix C to this subpart.
    (8) During the pendancy of a challenge under this section, the 
presumption that the challenged party is a socially and economically 
disadvantaged individual shall remain in effect.
    (c) The final determination of the recipient under paragraphs 
(b)(3)(i) and (b)(6) may be appealed to the Department by the adversely 
affected party to the proceeding under the procedures of Sec. 23.55 of 
this part.

          Appendix A to Subpart D--Section-by-Section Analysis

    This section-by-section analysis describes the provisions of the 
final rule. This material is normally published in the preamble to the 
final rule. However, the Department believes that it may be useful to 
recipients, contractors, and the public to publish this information in 
an appendix to the final regulation. As a result, this information will 
be available to users of the Code of Federal Regulations as well as to 
persons who have access to the Federal Register print of the regulation.

                         Section 23.61  Purpose.

    This section states that the purpose of subpart D is to implement 
section 106(c) of the Surface Transportation and Uniform Relocation 
Assistance Act of 1987 and section 105(f) of the Airport and Airway 
Safety and Capacity Expansion Act of 1987. The rest of the section 
restates the text of the statute and states that the ten percent level 
of disadvantaged business participation established by the statute will 
be achieved if recipients set and meet goals of at least ten percent. 
The Department of Transportation is committed to carrying out section 
106(c) and section 105(f) and achieving its objectives, and intends to 
enforce the obligations of the recipients and contractors under section 
106(c) and section 105(f) and 49 CFR part 23.

                       Section 23.62  Definitions.

    As used in subpart D, the word Act means the Surface Transportation 
and Uniform Relocation Assistance Act of 1987 Airport and Airway Safety 
and Capacity Expansion Act of 1987. The definition of the term 
disadvantaged business in subpart D is very similar to the definition of 
the term minority business enterprise used for other purposes in 49 CFR 
part 23. A different term is employed in recognition of the fact that a 
slightly different set of individuals is eligible to own and control a 
disadvantaged business than is eligible to own and control a minority 
business enterprise. In either case, at least 51 percent of the business 
must be owned by one or more of the eligible individuals, and the firm's 
management and daily business operations must be controlled by one or 
more of the eligible individuals who own it. It is important to note 
that the business owners themselves must control the operations of the 
business. Absentee ownership, or titular ownership by an individual who 
does not take an active role in controlling the business, is not 
consistent with eligibility as a disadvantaged business under this 
regulation. In order to be an eligible disadvantaged business, a firm

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must meet the criteria of Sec. 23.53 of this regulation and must be 
certified as 49 CFR part 23 provides.
    Small business concern is defined as a small business meeting the 
standards of section 3 of the Small Business Act and relevant 
regulations that implement it. These regulations are summarized in 
appendix B to the subpart. It should be emphasized that any business 
which fails to qualify under the standards as a small concern, including 
a firm certified by SBA under the 8(a) program, cannot be certified as a 
disadvantaged business, even though it is owned and controlled by 
socially and economically disadvantaged individuals. Since the small 
business status of a firm can change over the years, we recommend that 
recipients make a point of reviewing periodically the small business 
status of firms with existing certifications periodically to make sure 
that they still qualify.
    Congress determined, in order to ensure that the DBE program meets 
its objective of helping small minority businesses become self-
sufficient and able to compete in the market with non-disadvantaged 
firms, that DBE firms should ``graduate'' from the program once their 
average annual receipts reached $14 million.
    In implementing this provision, recipients should note that a firm 
is not ``graduated'' from the program, and hence no longer an eligible 
DBE, until its average annual gross receipts over the previous three-
year period exceed $14 million. The fact that a firm exceeds $14 million 
in gross receipts in a single year does not necessarily result in 
``graduation.'' For example, suppose a firm has the following history:

1985--$11 million
1986--$13 million
1987--$14 million
1988--$14 million
1989--$15 million

The firm makes $14 million in 1987. However, the firm's average annual 
gross receipts for 1985-87 are $12.67 million, so the firm remains 
eligible in 1988. This hypothetical firm would remain eligible in 1989 
as well, since its average annual gross receipts for 1986-88 would be 
$13.67 million. However, the firm's average annual gross receipts for 
1987-89 would be $14.3 million. As a result, the firm would not be an 
eligible DBE in 1990.
    It should also be pointed out the $14 million ceiling, like small 
business size limits under section 3 of the Small Business Act, includes 
revenues of ``affiliates'' of the firm as well as the firm itself. This 
is the import of the ``any concern or group of concerns'' language. In 
addition, firms still are subject to applicable lower limits on business 
size established by the Small Business Administration in 13 CFR part 
121. For example, if SBA regulations say that $7.5 million average gross 
annual revenues is the size limit for a certain type of business, that 
size limit, rather than the overall $14 million ceiling, determines 
whether the firm qualifies in terms of its size to be a DBE.
    Socially and economically disadvantaged individuals is the term that 
defines the persons eligible to own and control a disadvantaged 
business. The term includes the following people: First, anyone found to 
be socially and economically disadvantaged by SBA under the 8(a) program 
is regarded as socially and economically disadvantaged for the purpose 
of DOT-assisted programs. Second, any individual who is a member of one 
of the designated groups (Black Americans, Hispanic Americans, Native 
Americans, Asian-Pacific Americans, and Asian Indian-Americans or women) 
is rebuttably presumed to be socially and economically disadvantaged. By 
rebuttably presumed, we mean that the socially and economically 
disadvantaged status of any individual who is a member of one of the 
groups is normally assumed by the recipient. With the exception of 
persons whose origins are from Burma and Thailand the members of these 
presumed groups are exactly the same persons who are considered to be 
minorities for purposes of the Sec. 23.5 definition of ``minority.''
    Individuals whose origins are from Burma and Thailand are not 
presumed to be socially and economically disadvantaged individuals for 
purposes of subpart D. This means that firms owned and controlled by 
such individuals are eligible to be considered as MBEs for purposes of 
FRA, NHTSA and other DOT financial assistance programs but not as 
disadvantaged businesses for purposes of FHWA, UMTA and FAA programs 
(unless their owners are determined to be socially and economically 
disadvantaged on an individual basis). If SBA determines any additional 
groups to be presumptively socially and economically disadvantaged, 
these groups will become eligible for consideration as owners of 
disadvantaged businesses on the same basis as Black Americans, Hispanic 
Americans, and members of the other presumptive groups.
    A recipient may, through its certification program, determine that 
individuals who are not members of any of the presumptive groups are 
socially and economically disadvantaged. On this basis, for example, 
disabled Vietnam veterans, Appalachian white males, Hasidic Jews, or any 
other individuals who are able to demonstrate to the recipient that they 
are socially and economically disadvantaged may be treated as eligible 
to own and control a disadvantaged business, on the same basis as a 
member of one of the presumptive groups. It must be emphasized that 
these individuals are not determined to be socially and economically 
disadvantaged on the basis of their group membership. Rather, the social 
and economic disadvantage of each must be determined on an individual,

[[Page 215]]

case-by-case basis. Guidance for making these determinations is found in 
appendix C.

                      Section 23.63  Applicability.

    This section provides that subpart D applies to all DOT financial 
assistance in a number of categories that recipients expend ``in DOT-
assisted contracts.'' This last phrase is very important. The base from 
which goals are calculated is not the total amount of money which each 
recipient receives from FHWA or FAA or UMTA. It is the amount of money 
that the recipient expends in DOT-assisted contracts. Funds that the 
recipient does not expend in contracts (i.e., funds spent by an FHWA or 
FAA recipient to acquire right-of-way or otherwise acquire land or pay 
its own employees to supervise construction; funds used by an UMTA 
recipient to pay salaries of bus drivers) not part of the base from 
which the overall goal is calculated. Only those funds to be expended by 
the recipient in contracts are available to create contracting 
opportunities for disadvantaged businesses, so only these funds comprise 
the base from which goals for the use of disadvantaged businesses are 
calculated.
    The first category of program funds to which subpart D applies is 
Federal-aid highway funds authorized by title I of the Act. The second 
category is urban mass transportation funds authorized by title I (i.e., 
interstate transfer and substitution funds) or title III of the Act. The 
third category is funds authorized by title I, title II (except section 
203), or title III of the Surface Transportation Assistance Act of 1982 
which were obligated on or after April 2, 1987 (the enactment date of 
the STURAA). The provisions of subpart D also apply to the FAA-
administered airport funds authorized by the Airport and Airway Safety 
and Capacity Expansion Act of 1987.

               Section 23.64  Submission of Overall Goals.

    This section concerns the procedures for submission of overall goals 
to be used by recipients of funds covered by this subpart. Paragraph (a) 
is intended to avoid the imposition of new administrative burdens on 
recipients of relatively low amounts of DOT financial assistance. This 
paragraph provides that only those recipients who are required to have 
MBE programs under 49 CFR part 23 must comply with the goal setting 
requirements of subpart D. This includes all state transportation 
agencies who receive FHWA funds and UMTA recipients who receive at least 
$250,000 in UMTA capital and operating funds, exclusive of funds for 
transit vehicle purchases, or $100,000 in UMTA planning funds. 
Recipients of FAA airport program funds who receive planning funds in 
excess of $75,000 or more than $250,000 (general aviation airports), 
$400,000 (non-hub airports), or $500,000 (hub airports) in FAA 
assistance also must submit overall goals. UMTA or FAA recipients who 
are not required to have an MBE program by Sec. 23.41 need not comply 
with the goal setting provisions of subpart D.
    Paragraph (b) describes how recipients calculate their overall 
goals. Recipients of FHWA funds use as the base for calculating their 
percentage goal all Federal-aid funds that the recipient will expend in 
DOT-assisted contracts in the forthcoming fiscal year. Funds authorized 
by section 202 of the STAA are considered to be Federal-aid highway 
funds for this purpose. For UMTA or FAA funds, the base is all Federal 
funds (exclusive of funds to be expended for transit vehicle purchases) 
that the recipient will expend in DOT-assisted contracts in the 
forthcoming fiscal year. The UMTA or FAA Administrator may, however, 
allow recipients to base their goals on Federal funds received for a 
particular grant, project, or group of grants or projects.
    The Department is aware that recipients may not be aware of the 
exact amount of Federal funds to be received or to be used in Federally-
assisted contracts in the forthcoming fiscal year. However, it is 
reasonable to expect that recipients will have a close enough projection 
so that they can determine a reasonable expectation for disadvantaged 
business participation expressed in percentage terms.
    Paragraph (c) provides that, with the exception of UMTA or FAA 
recipients calculating their goals on a grant or project basis, each 
UMTA, FHWA, or FAA recipient which must submit an overall goal is 
required to do so by the August 1 preceding the beginning of the fiscal 
year to which the goals apply. For example, goal submissions pertaining 
to fiscal year 1985 are due August 1, 1984. In the case of Fiscal Year 
1984, DOT expects recipients to submit their overall goals for approval 
as close to August 1 as possible.
    Paragraph (d) provides that, if the recipient is submitting a goal 
of ten percent or more, the recipient simply submits the goal under the 
procedures of Sec. 23.45(g) of this part, exactly in the manner that 
goals have been required to be submitted under the existing regulation.
    Paragraph (e) concerns the situation in which a recipient is 
requesting approval of an overall goal of less than ten percent. Such a 
recipient is required to comply with the steps set forth in 
Sec. 23.45(g). However, it is required to take three additional steps. 
First, it must submit a justification for its request containing the 
information listed in Sec. 23.65.
    Second, it must ensure that the request is signed or concurred in by 
the Governor of the state (in the case of a state transportation agency) 
or the Mayor or other elected official responsible for the operation of 
a

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mass transit agency. If the official responsible for the operation of a 
mass transit agency or airport sponsor is not a Mayor, another 
appropriate elected official or officials should provide the signature 
or concurrence (e.g., a County Executive, the Chairman of a Board of 
Directors for a transit authority consisting of elected officials, 
etc.). The reason for this requirement is to ensure that a request for a 
goal of less than ten percent has the backing of the responsible elected 
official. This should help to prevent frivolous requests or requests 
based solely on the views of the non-elected staff of a state or local 
agency. It is also intended to protect the Department from becoming 
involved in a disagreement between, for example, a state transportation 
agency and a governor over disadvantaged business policy. It will also 
signal to the Department that a request for a lower goal has the backing 
of the highest responsible elected official involved with the 
jurisdiction.
    The third requirement is that, before making a request for a goal of 
less than ten percent, the recipient must consult with minority and 
general contracting associations, community organizations (particularly 
minority community organizations) and other officials or organizations 
which can be expected to have information concerning the availability of 
disadvantaged businesses and the adequacy of recipients' efforts to 
increase the participation of such businesses. This consultation need 
not involve a formal public comment period. However, it should involve 
contact between responsible official(s) of the recipient and 
representatives of the organizations consulted, which should also have 
the opportunity to provide written information.
    The provision is based on the belief that the organizations 
consulted are likely to be in a position to give the recipient useful 
information concerning the availability of disadvantaged businesses and 
the effectiveness of and problems with the recipient's efforts to 
increase disadvantaged business participation. The information sought in 
the consultation is intended to include the views of the consulted 
parties on the points listed in paragraph (a)--(f) of Sec. 23.65. Such 
information is important to the recipient in formulating a request for a 
goal of less than ten percent, the Department in evaluating such a 
request, and to both the recipient and the Department in attempting to 
determine what additional steps would be appropriate to increase 
disadvantaged business participation in the future.
    There may be some circumstances in which a recipient will have 
failed to consult with a party whose information could be very useful to 
the formulation and evaluation of a request for a goal less than ten 
percent. If the Administrator becomes aware of such a case, the 
Administrator has the discretion to tell the recipient to go back and 
consult with that party. Pending this further consultation, the 
Administrator would not approve the request for a goal of less than ten 
percent.

                Section 23.65  Content of Justification.

    Section 23.65 lists the types of information that a recipient 
seeking a goal of less than ten percent must provide to the 
Administrator. The purpose of this information is to enable the 
Department to make an informed determination of what the reasonable 
expection for the recipient's disadvantaged business participation level 
is for the forthcoming fiscal year. These items of information are 
discussed in greater detail in appendix D. In the absence of a 
justification, the FHWA, UMTA, or FAA Administrators will not be able to 
consider a request for a goal of less than ten percent.

        Section 23.66  Approval and Disapproval of Overall Goals.

    Paragraph (a) of this section concerns the situation in which a 
recipient submits for approval an overall goal of ten percent or more. 
In response to such a request, the Administrator follows the review and 
approval procedure provided in Sec. 23.45(g) of the existing rule. The 
FHWA, UMTA, or FAA Administrators will review and approve goals 
submitted under this paragraph in the same manner and in accordance with 
the same policies as they have reviewed and approved overall goals under 
the existing 49 CFR part 23.
    Paragraph (b) concerns a situation in which a recipient has 
requested approval of a goal of less than ten percent. In order to 
approve the goal the recipient has requested, the Administrator must 
make two determinations. First, the Administrator must determine that 
the recipient is making all appropriate efforts to increase 
disadvantaged participation on its DOT-assisted contracts to at least a 
ten percent level. Second, the Administrator must determine that, 
despite the recipient's efforts, the goal requested by the recipient is 
the reasonable expectation, short of ten percent, for the participation 
of disadvantaged businesses in its DOT-assisted contracts, given the 
availability of disadvantaged businesses to work on these contracts.
    Both of these determinations are very important. The concept of a 
goal as the reasonable expectation for the recipient's performance 
recognizes the possibility that there may be limits, related to the 
availability of disadvantaged businesses, that prevent the attainment of 
a ten percent goal. Before granting a request for a goal below ten 
percent, the Administrator must determine that such a limit does in fact 
exist. However, the idea of a reasonable expectation also assumes that 
the recipient is doing everything

[[Page 217]]

it can to increase disadvantaged business participation, both by seeking 
to increase the availability of disadvantaged businesses and seeking to 
increase the ability of available disadvantages businesses to work on 
its contracts. If the recipient is not taking all appropriate steps to 
increase disadvantaged business participation, then the goal it has 
requested is not its reasonable expectation for disadvantaged business 
participation.
    If the Administrator does not approve the goal the recipient has 
requested, the Administrator, after consulting with the recipient, 
establishes an adjusted overall goal, which represents his or her 
determination of the reasonable expectation for recipient's 
disadvantaged business participation. This adjusted overall goal is on 
information provided by the recipient or any other information available 
to the Administrator from other sources, including input from interested 
groups and the past performance of the recipient or other recipients 
whose situation is analogous to that of the recipient in question. In 
approving either the goal requested by the recipient or in establishing 
an adjusted overall goal, the Administrator may always condition the 
approval or establishment of an overall goal on any reasonable future 
action by the recipient.

   Section 23.67  Special Provision for Transit Vehicle Manufacturers.

    This section addresses the special situation of the purchase of 
transit vehicles by UMTA recipients. The intent of this section is to 
provide a simplified method by which transit vehicle manufacturers and 
UMTA recipients can meet disadvantaged business obligations. The 
Department does not directly regulate transit vehicle manufacturers, 
since they are not the recipients of Federal financial assistance from 
UMTA. Rather, they are contractors to UMTA recipients. Consequently, 
paragraph (a) imposes the basic obligation of this section on UMTA 
recipients themselves.
    Paragraph (a) is a requirement that UMTA recipients condition the 
authority of manufacturers to bid on UMTA-assisted transit vehicle 
procurements on a certification by the manufacturer that it has complied 
with the other provisions of this section. In order to permit 
manufacturers reasonable start-up time, and to avoid disruption of the 
whole procurement process, this requirement does not go into effect 
until October 1, 1983.
    Paragraph (b) requires that, in order to make this certification, 
manufacturers have UMTA-approved overall goal. The base for calculating 
these goals is the amount of UMTA financial assistance participating in 
transit vehicle contracts to be performed by the manufacturer during the 
fiscal year in question. The Department is aware that UMTA recipients 
order some vehicles from foreign manufacturers and that the vehicles 
produced by domestic manufacturers use foreign components in some cases. 
The Department's regulation does not, of course, have extraterritorial 
application. Consequently, the manufacturer may exclude from the base 
from which the goal is calculated the value of the work performed 
abroad. For example, suppose an UMTA recipient buys a bus from a 
Canadian manufacturer for $100,000. Fifty percent of the work on the bus 
is performed in Canada. In this case, the amount of funds contributing 
toward the base from which the manufacturer's goal is calculated is 
$40,000 (i.e., eighty percent of the $50,000 of the value of the bus 
attributable to work performed in the United States).
    In submitting an overall goal for the UMTA Administrator's approval, 
the manufacturer is required to follow the same procedures as recipients 
with respect to timing, justification of goals, etc. The Administrator 
follows the same criteria and has the same authority with respect to 
approval and conditioning of recipient's overall goals as he or she does 
with respect to recipient's goals. The UMTA Administrator may issue 
additional guidance with respect to procedures for the submission of 
overall goals and the content or justification of overall goals that 
take into account special circumstances of transit vehicle 
manufacturers, if this appears appropriate.
    Paragraph (c) provides that the manufacturer may make the 
certification to recipients required by paragraph (a) if it has 
submitted the goals provided for by this section and the UMTA 
Administrator has either approved them or not disapproved them. This 
provision is intended to prevent delays in transit vehicle procurements.

                       Section 23.68  Compliance.

    Paragraph (a) points out that compliance with subpart D, as 
distinguished from compliance with other portions of the regulation, is 
enforced through Sec. 23.68 rather than through subpart E of the 
regulation. For example, a recipient's failure to have an approved 
overall goal as required by subpart D would be treated under Sec. 23.68. 
A complaint of discrimination against a recipient by a particular 
disadvantaged business would be handled under the procedures of subpart 
E. Paragraphs (b) and (d)(1) list the three circumstances in which a 
recipient may find itself in noncompliance with subpart D. These are the 
only three circumstances in which a recipient may be found in 
noncompliance with subpart D. While a recipient may be in noncompliance 
with 49 CFR part 23 for other reasons, these other types of 
noncompliance are handled through the procedures of subpart E.
    Paragraph (b) names the first two situations in which a recipient 
may be found in noncompliance with subpart D. First, the recipient can 
be in noncompliance by failing to

[[Page 218]]

have an approved overall goal as required by Sec. 23.64. This includes 
not only the situation in which the recipient does not submit a goal to 
the Department for approval, but also situations in which a recipient 
does not accept an adjusted overall goal established by the 
Administrator or fails or refuses to carry out conditions established by 
the Administrator under Sec. 23.66(e).
    Second, a recipient may be in noncompliance if it does not have an 
approved disadvantaged business program. Subpart D does not, in itself, 
require the creation of such a program. However, such a program, as 
prescribed by other provisions of 49 CFR part 23, is essential if a 
recipient is to comply with the disadvantaged business participation 
requirements of subpart D. Consequently, the failure to have a program, 
or failure to have a program which fully meets the requirements of 49 
CFR part 23, is noncompliance with subpart D.
    For example, 49 CFR part 23 requires that, before a recipient awards 
a contract, it ensure that the apparent successful bidder has met the 
contract goal or has demonstrated good faith efforts to do so. If a 
recipient's program does not provide for making this determination 
before the award of contract, but instead provides for checking the 
disadvantaged business participation efforts of the contractor only 
after the award of the contract, the recipient has a program that does 
not conform to 49 CFR part 23. The recipient may therefore be found in 
noncompliance with subpart D.
    Paragraphs (c) and (d)(1) concern the procedure that recipients and 
the Department must follow when a recipient is falling or has fallen 
short of its approved overall goal. The goal-setting process is intended 
to determine, in advance, the reasonable expectation for the recipient's 
disadvantaged business participation. These paragraphs are intended to 
provide for the situation in which the recipient's performance does not 
meet this expectation. At any time the Administrator requests it, or at 
the recipient's own initiative, the recipient would make an explanation 
to the Administrator concerning why the goal could not be achieved. This 
explanation, if it is to be satisfactory to the Administrator, must 
demonstrate that recipient's failure to meet the goal is for reasons 
beyond the recipient's control.
    For example, if the recipient expected substantial disadvantaged 
business participation in a major project, and the project was postponed 
by litigation or a natural disaster, the recipient could make a case 
that its failure to meet the goal was attributable to factors beyond its 
control. A situation that might arise more frequently concerns the 
failure of contractors to meet contract goals. Under the Department's 
regulation, recipients may award contracts to contractors who do not 
meet contract goals if these contractors demonstrate to the recipient 
that they have made good faith efforts to do so. It is conceivable that 
a recipient would have set contract goals commensurate with its overall 
goal, would have given appropriate scrutiny to the claims of contractors 
that they made unsuccessful but good faith efforts to meet these 
contract goals, and awarded contracts to contractors who did not meet 
contract goals in a number of instances. Collectively, these contract 
awards would cause the recipient to fall below its overall goal.
    The Administrator may take circumstances of this kind into account 
in determining whether a recipient's failure to meet its overall goal 
was because of factors beyond the recipient's control. In doing so, 
however, the Administrator also would consider the degree of scrutiny by 
the recipients of contractors' claims of unsuccessful good faith efforts 
and the efforts the recipient made in order to make up for shortfalls in 
particular contracts and prevent such shortfalls in other contracts.
    If the recipient's explanation that factors beyond its control 
prevented achievement of the overall goal is determined by the 
Administrator to justify the failure to reach the goal, the matter is 
closed. If the recipient does not provide an explanation or if the 
Administrator determines that the recipient's explanation is not 
adequate, the Administrator may take the additional step of directing 
the recipient to take appropriate remedial action. Remedial action 
includes prospective steps to improve disadvantaged business 
participation, such as additional outreach, assistance to disadvantaged 
businesses or, where not inconsistent with state or local law, the use 
of set-asides. In order to take the remedial steps which the 
Administrator prescribes, the recipient may have to devote additional 
resources to the task.
    Failure or refusal by the recipient to take these remedial steps is 
the third form of noncompliance with subpart D. The Department wants to 
make it very clear that failure to meet an overall goal, as such, does 
not constitute noncompliance with subpart D. However, if the recipient 
fails to meet the goal, does not satisfactorily explain its failure to 
meet the goal as being beyond its control, and then fails or refuses to 
take remedial steps prescribed by the Administrator, it would be in 
noncompliance.
    Paragraph (e) sets forth the sources of sanctions for recipient 
noncompliance under subpart D. These sanctions are the same measures 
that are available to the FHWA, UMTA or FAA Administrator with respect 
to the failure of a recipient to carry out any condition of receiving 
Federal financial assistance.

[[Page 219]]

                   Section 23.69  Challenge Procedure.

    The proposal in the NPRM to make the presumption of social and 
economic disadvantage rebuttable caused some confusion among recipients 
who commented. They asked whether this meant that they had to 
investigate the social and economic status of each business owner that 
sought certification for programs covered by subpart D. They also asked 
by what criteria, and through what procedure, the rebuttable presumption 
would be applied.
    This section is intended to answer these questions. First, the basic 
meaning of a presumption of social and economic disadvantage is that the 
recipient assumes that a member of the designated groups is socially and 
economically disadvantaged. In making certification decisions, the 
recipient relies on this presumption, and does not investigate the 
social and economic status of individuals who fall into one of the 
presumptive groups.
    However, saying that the presumption is rebuttable means that a 
third party may challenge the actual social and/or economic disadvantage 
of a business owner who has received or is seeking certification for his 
firm from the recipient. The procedures for making such a challenge are 
spelled out in this section. They are set forth in detail in Sec. 23.69 
and are basically self-explanatory. Two points deserve emphasis. First, 
the procedures are intended to be informal. Recipients are not required 
to establish elaborate court-like tribunals, use strict rules of 
evidence, etc. Second, while a challenge is in progress, the presumption 
of social and economic disadvantage remains in effect. Therefore, if a 
firm has been certified, and the social and economic disadvantage of its 
owner is under challenge, the firm continues to be certified and 
eligible to be considered a disadvantaged business for purposes of the 
recipient's DOT-assisted contracting activities.

                       Amendments to Sec. 23.41(a)

    The NPRM proposed to make technical amendments to 
Sec. 23.41(a)(2)(i) and Sec. 23.41(a)(3)(ii). These amendments added 
additional UMTA funding sources (e.g. Section 9A) to the list of sources 
from which funds would contribute toward the threshold amounts for 
determining whether UMTA recipients had to have MBE programs. There were 
no comments on these proposed changes. These amendments are adopted 
unchanged from the NPRM. The final rule makes similar amendments to 
Sec. 23.41 (a)(2)(ii) and (a)(3)(iii).

   Relationship Between Subpart D and the Remainder of 49 CFR Part 23

    In order to prevent uncertainty, the Department wishes to restate 
the relationship between subpart D and the remainder of 49 CFR part 23. 
Under 49 CFR part 23, certain recipients are required to have MBE 
programs. It is only these recipients who are required to follow the 
provisions of subpart D. Recipients who must implement subpart D do so 
only with respect to their FHWA and UMTA programs cited in subpart D. 
For example, a state department of transportation receiving funds from 
FHWA, UMTA, NHTSA, FRA, and FAA would be required to follow the subpart 
D goal procedures with respect only to its FHWA and UMTA funds. It would 
not be required to do so for its FAA, NHTSA, and FRA funds. The 
recipient would continue to follow all applicable procedures of 49 CFR 
part 23 with respect to the FAA, FRA, and the NHTSA funds.
    With respect to FHWA and UMTA-assisted programs, recipients will now 
set only one DBE goal, at both the overall and contract goal level. 
There are no longer separate DBE and WBE goals. Rather, the single DBE 
goal applies to all DBEs, whether they are owned and controlled by 
minorities or by women.
    The contract award procedures of 49 CFR part 23 apply to contracts 
under subpart D just as they do to contracts under other provisions of 
49 CFR part 23. Recipients may award contracts to those successful 
bidders who meet contract goals or demonstrate that they made good faith 
efforts to do so.
    Recipients must certify the eligibility of firms to participate 
under subpart D programs just as they do with respect to programs 
covered by other provisions of 49 CFR part 23. For businesses owned and 
controlled by members of the presumptive groups listed in the definition 
of socially and economically disadvantaged individuals in subpart D, the 
certification process is, with one exception, exactly the same as the 
certification process that has existed all along under 49 CFR part 23. 
The exception is that individuals with origins in Burma, Thailand, and 
Portugal are presumed to be socially and economically disadvantaged. 
They can be eligible under subpart D only if they successfully 
demonstrate to the recipient that they are socially and economically 
disadvantaged as individuals.
    However, businesses owned and controlled by individuals with origins 
in these countries continue to be eligible minority businesses under 
other provisions of 49 CFR part 23. The result is that these firms may 
be certified for participation in FAA, FRA, NHTSA, or other DOT-assisted 
programs as before, but must make an individual showing of social and 
economic disadvantage in order to be regarded as eligible to participate 
in FHWA and UMTA programs as disadvantaged businesses. The same 
requirement for an individual determination of social and economic 
disadvantage applies to any individual who is not a member of one of the 
presumptive groups, such as a nonminority woman, a handicapped person, 
etc.

[[Page 220]]

                       Decertification Procedures

    Substantial concern has been expressed about the infiltration of 
DOT-assisted programs by ``fronts''--businesses that claim to be owned 
and controlled by minorities, women, or other disadvantaged individuals, 
but which, in fact are ineligible for participation is DOT-assisted 
programs as MBEs, WBEs or disadvantaged businesses.
    The Department wants to take this opportunity to reemphasize the 
importance of scrutiny of all firms seeking to participate in DOT-
assisted programs. We believe strongly that recipients should take 
prompt action to ensure that only firms meeting the eligibility criteria 
of 49 CFR part 23 participate as MBEs, WBEs, or disadvantaged businesses 
in DOT-assisted programs. This means not only that recipients should 
carefully check the eligibility of firms applying for certification for 
the first time, but also that they should review the eligibility of 
firms with existing certifications in order to ensure that they are 
still eligible. A firm's circumstances, organization, ownership or 
control can change over time, resulting in a once-eligible firm becoming 
ineligible. A second look at a firm previously found to be eligible may 
reveal factors leading, on renewed consideration, to a determination 
that it is ineligible.
    49 CFR part 23 does not, as presently drafted, prescribe any 
particular procedures for actions by recipients to remove the eligiblity 
of firms that they have previously treated as eligible. When a recipient 
comes to believe that a firm with a current certification is not 
eligible, the Department recommends that the recipients take certain 
steps before removing the firm's eligibility. The recipient should 
inform the firm in writing of its concerns about the firm's eligibility, 
give the firm an opportunity to respond to these concerns in person and 
in writing, and provide the firm a written explanation of the reasons 
for the recipient's final decision. This process may be brief and 
informal. For example, the firm's opportunity to respond to the 
recipient's concerns need not involve a formal court-type hearing. 
However, in the interest of ensuring that eligibility removal decisions 
are made fairly, these steps should take place before a firm's 
eligibility is removed. The Department believes that such a procedure in 
so-called ``decertification'' cases will make the procedure fairer and 
better administratively, as well as help prevent unnecessary procedural 
litigation. Procedures of this kind are not a regulatory requirement, 
but the Department believes that, as a matter of policy, that they are 
advisable for recipients to use.
    Once a recipient has made a final decision on certification, that 
determination goes into effect immediately with respect to the 
recipient's DOT-assisted contracts (see Sec. 23.53(g)). If a firm that 
has been denied certification or has been decertified appeals the 
recipient's action to the Department under Sec. 23.55, or if a third 
party challenges the recipient's decision to certify the firm under 
Sec. 23.55, the recipient's action remains in effect until and unless 
the Department makes a determination under Sec. 23.55 reversing the 
recipient's action. The recipient's action is not stayed during the 
pendancy of a Sec. 23.55 appeal.
    For example, if a recipient has decertified a firm and the firm 
appeals the decertification to DOT, the firm remains ineligible for 
consideration as a disadvantaged business with respect to the 
recipient's DOT-assisted programs until and unless the Department finds 
that the firm is eligible. Likewise, if the recipient has certified the 
firm as eligible, the firm remains eligible while the Department's 
consideration of a third party's challenge to its eligiblity is pending. 
The Department has followed this policy and interpretation of its 
regulations consistently under the existing rule, and we will continue 
to do so with respect to subpart D.
    There is only one exception to this rule. Section 23.55(c) provides 
that, in appropriate cases, the Secretary may deny the firm in question 
eligiblity to participate as an MBE (or disadvantaged business) on DOT-
assisted contracts let during the pendacy of the investigation, after 
providing the firm an opportunity to show cause by written statement to 
the Secretary why this should not occur. This paragraph is intended, and 
has been consistently interpreted and applied by the Department, to 
cover only a situation in which the recipient has decided that a firm is 
eligible and a third party has challenged the correctness of the 
recipient's determination. As a matter of policy, the Department 
believes that the award of contracts to ineligible firms is a very 
serious blow to the integrity of the Department's program. Consequently, 
if it appears to the Department that a challenged firm's eligibility is 
in serious doubt, the Department, under Sec. 23.55(c), can 
administratively ``enjoin'' the firm's participation pending a final 
determination on the merits of the challenge to its certification. This 
provision does not, however, authorize the Department to maintain a 
firm's certification in effect pending the outcome of the Sec. 23.55 
Appeal, when the recipient has refused to certify or has decertified the 
firm.


[48 FR 33442, July 21, 1983, as amended at 52 FR 39231, Oct. 21, 1987; 
53 FR 18287, May 23, 1988]

        Appendix B to Subpart D--Determinations of Business Size

    In determining the eligibility of businesses for purposes of 49 CFR 
part 23, recipients

[[Page 221]]

must determine whether or not a business is a small business concern as 
defined by section 3 of the Small Business Act. If a business is not a 
small business concern according to these standards, then it is not 
eligible to participate as an MBE, WBE, or disadvantaged business under 
49 CFR part 23. This is true even though the business may be owned and 
controlled by minorities, women, or socially and economically 
disadvantaged individuals and is eligible in all other respects. Even a 
firm certified by the SBA under the 8(a) program is not eligible under 
this regulation if it is not a small business.
    In determining whether a business is a small business concern, 
recipients should apply the standards established by the Small Business 
Administration in 13 CFR part 121. In particular, recipients should 
refer to Sec. 121.3-8 (Definition of Small Business for Government 
Procurement) and Sec. 121.3-12 (Definition of Small Business for 
Government Subcontractors). This appendix lists the most frequent 
applications of these sections to the kinds of contracting done by FHWA 
and UMTA recipients. For information on types of businesses not listed 
in this appendix (e.g., manufacturers), recipients should consult 
Sec. 121.3-8 and the appendices to 13 CFR part 121.
    Recipients should apply the following size standards:
    1. Subcontracts of $10,000 or less: A business is small if, 
including its affiliates, it does not have more than 500 employees.
    2. Subcontracts over $10,000 and prime contracts:
    A business is regarded as small if it meets the following criteria:
    (a) Construction.
    (1) General Construction (in which less than 75 percent of the work 
falls into one of the categories in paragraph (2)): The firm's average 
annual receipts for the three preceding fiscal years do not exceed $12 
million.

    (2) Special trade contractors:

------------------------------------------------------------------------
                                               Maximum average annual
               Type of firm                    receipts in preceding 3
                                                    fiscal years
------------------------------------------------------------------------
Plumbing, heating (except electric) and     $5 million for all types of
 air-conditioning.                           contractors on this list.
Painting, paperhanging, and decorating....
Masonry, stone setting, and other
 stonework.
Plastering, drywall, acoustical and
 insulating work.
Terazzo, tile, marble, and mosaic work....
Carpentering and flooring.................
Floor laying and other floorwork..........
Roofing and sheet metal work..............
Concrete work.............................
Water well drilling.......................
Structural steel erection.................
Glass and glazing work....................
Excavating and foundation work............
Wrecking and demolition work..............
Installation or erection of buildings
 equipment.
Special trade contractors, not elsewhere
 classified.
------------------------------------------------------------------------

    (b) Suppliers of manufactured goods: The firm, including its 
affiliates, must not have more than 500 employees.

    (c) Service contractors:

------------------------------------------------------------------------
                                                        Maximum average
                                                        annual receipts
                                                         in preceding 3
                     Type of firm                       fiscal years (in
                                                          millions of
                                                            dollars)
------------------------------------------------------------------------
Engineering..........................................         $7.5
Janitorial and custodial.............................          4.5
Computer programming or data processing..............          4
Computer Maintenance.................................          7
Protective Services..................................          4.5
Others not mentioned in 13 CFR 121.3-8(e)............          2
------------------------------------------------------------------------

 Appendix C to Subpart D--Guidance for Making Determinations of Social 
                        and Economic Disadvantage

    Before making any determination of social and economic disadvantage, 
the recipient should always determine whether a firm is a small business 
concern. If it is not, then the firm is not eligible to be considered a 
disadvantaged business, and no further determinations need be made.
    Under the definition of ``socially and economically disadvantaged 
individual'' used in subpart D of this part, members of the named groups 
(Black Americans, Hispanic Americans, Native Americans, Asian Pacific 
Americans, and Asian-Indian Americans) and persons certified as socially 
and economically disadvantaged by the Small Business Administration 
(SBA) under the SBA's section 8(a) program are presumed to be both 
socially and economically disadvantaged. This presumption is rebuttable. 
This means that, as part of a challenge to the eligibility of a firm a 
recipient has certified under Sec. 23.69 of this regulation, a third 
party may present evidence that the firm's owners are not truly socially 
and/or ecomonically disadvantaged, even though they are members of one 
of the presumptive groups. Recipients must follow the challenge 
procedure in Sec. 23.69 when a challenge is made, using this appendix 
for guidance in making determinations under that procedure.
    Under the regulation, anyone who has been certified by SBA under its 
8(a) program as socially and economically disadvantaged is automatically 
considered to be a socially and economically disadvantaged individual

[[Page 222]]

for purposes of this regulation. However, the absence of an 8(a) 
certification does not mean that an individual or firm is ineligible 
under this regulation.
    Recipients should continue the existing practice of making their own 
judgments about whether an individual is in fact a member of one of the 
presumptive groups. If an individual has not maintained identification 
with the group to the extent that he or she is commonly recognized as a 
group member, it is unlikely that he or she will in fact have suffered 
the social disadvantage which members of the group are presumed to have 
experiences. If an individual has not held himself or herself out to be 
a member of one of the groups, has not acted as a member of a community 
of disadvantaged persons, and would not be identified by persons in the 
population at large as belonging to the disadvantaged group, the 
individual should be required to demonstrate social disadvantage on an 
individual basis.
    For example, an individual could demonstrate that he had a Chinese 
ancestor. However, this hypothetical person has never lived in a 
Chinese-American community, has held himself out to be white for 
driver's license or other official records purposes, has not previously 
claimed to be a Chinese-American, and would not be perceived by others 
in either the Chinese-American community or non-minority community to be 
a Chinese-American (or any other sort of Asian-Pacific American) by 
virtue of his appearance, culture, language or associations. The 
recipient should not regard this individual as an Asian-Pacific 
American.
    Individuals who are not presumed to be socially and economically 
disadvantaged by virtue of membership in one of these groups may, 
nevertheless, be found to be socially and economically disadvantaged on 
a case-by-case basis. If an individual requests that his or her business 
be certified as an eligible disadvantaged business under subpart D, the 
recipient, as part of its certification process, is responsible for 
making a determination of social and economic disadvantage.
    In making determinations of social and economic disadvantage, 
recipients should be guided by the following standards, which have been 
adopted from materials prepared by the SBA.

                         A. Social Disadvantage

    (1) Elements of Social Disadvantage. In order to determine that an 
individual is socially disadvantaged, the recipient must conclude that 
the individual meets the following standards:
    (i) The individual's social disadvantage must stem from his or her 
color; national origin; gender; physical handicap; long-term residence 
in an environment isolated from the mainstream of American society; or 
other similar cause beyond the individual's control. The individual 
cannot establish social disadvantage on the basis of factors which are 
common to small business persons who are not socially disadvantaged. For 
example, because of their marginal financial status, many small 
businesses have difficulty obtaining credit through normal banking 
channels. An individual predicating a social disadvantage claim on 
denial of bank credit to his or her firm would have to establish that 
the denial was based on one or more of the listed causes, or similar 
causes--not simply on the individual's or the firm's marginal financial 
status.
    (ii) The individual must demonstrate that he or she has personally 
suffered social disadvantage, not merely claim membership in a non-
designated group which could be considered socially disadvantaged. This 
can be achieved, for example, by describing specific instances of 
discrimination which the individual has experienced, or by recounting in 
some detail how his or her development in the business world has been 
thwarted by one or more of the listed causes or similar causes. As a 
general rule, the more specific an explanation of how one has personally 
suffered social disadvantage, the more persuasive it will be. In 
assessing such facts, the recipient should place substantial weight on 
prior administrative or judicial findings of discrimination experienced 
by the individual. Such findings, however, are not necessarily 
conclusive evidence of an individual's social disadvantage; nor are they 
a prerequisite for establishing social disadvantage.
    (iii) The individual's social disadvantage must be rooted in 
treatment which he or she has experienced in American society, not in 
other countries.
    (iv) The individual's social disadvantage must be chronic, 
longstanding, and substantial, not fleeting or insignificant. Typically, 
a number of incidents illustrating a person's social disadvantage, 
occurring over a substantial period of time, would be necessary to make 
a successful claim. Usually, only by demonstrating a series of obstacles 
which have impeded one's progress in the business world can an 
individual demonstrate chronic, longstanding, and substantial social 
disadvantage.
    (v) The individual's social disadvantage must have negatively 
affected his or her entry into, and/or advancement in, the business 
world.
    The closer the individual can link social disadvantage to impairment 
of business opportunities, the stronger the case. For example, the 
recipient should place little weight on annoying incidents experienced 
by an individual which have had little or no impact on the person's 
career or business development. On the other hand, the recipient

[[Page 223]]

should place greater weight on concrete occurrences which have tangibly 
disadvantaged an individual in the business world.
    (2) Evidence of Social Disadvantage. The recipient should entertain 
any relevant evidence in support of an individual's claim of social 
disadvantage. In addition to a personal statement from the individual 
claiming to be socially disadvantaged, such evidence may include, but is 
not limited to: third party statements; copies of administrative or 
judicial findings of discrimination; and other documentation in support 
of matters discussed in the personal statement. The recipient should 
particularly consider and place emphasis on the following experiences of 
the individual, where relevant: education, employment, and business 
history. However, the individual may present evidence relating to other 
matters as well. Moreover, the attainment of a quality education or job 
should not absolutely disqualify the individual from being found 
socially disadvantaged if sufficient other evidence of social 
disadvantage is presented the recipient.
    (i) Education. The recipient should consider, as evidence of an 
individual's social disadvantage, denial of equal access to business or 
professional schools; denial of equal access to curricula; exclusion 
from social and professional association with students and teachers; 
denial of educational honors; social patterns or pressures which have 
discouraged the individual from pursuing a professional or business 
education; and other similar factors.
    (ii) Employment. The recipient should consider, as evidence of an 
individual's social disadvantage: discrimination in hiring; 
discrimination in promotions and other aspects of professional 
advancement; discrimination in pay and fringe benefits; discrimination 
in other terms and conditions of employment; retaliatory behavior by an 
employer; social patterns or pressures which have channelled the 
individual into non-professional or non-business fields; and other 
similar factors.
    (iii) Business History. The recipient should consider, as evidence 
of an individual's social disadvantage, unequal access to credit or 
capital; acquisition of credit under unfavorable circumstances; 
discrimination in receipt (award and/or bid) of government contracts; 
discrimination by potential clients; exclusion from business or 
professional organizations; and other similar factors which have 
retarded the individual's business development.

                        B. Economic Disadvantage

    Recipients should always make a determination of social disadvantage 
before proceeding to make a determination of economic disadvantage. If 
the recipient determines that the individual is not socially 
disadvantaged, it is not necessary to make the economic disadvantage 
determination.
    As a general rule, economically disadvantaged individuals are 
socially disadvantaged individuals whose ability to compete in the free 
enterprise system has been impaired due to diminished capital and credit 
opportunities, as compared to others in the same or similar line of 
business and competitive market area who are not socially disadvantaged. 
In determining the degree of diminished credit and capital opportunites 
of a socially disadvantaged individual, consideration will be given to 
both the disadvantaged individual and the applicant concern with which 
he or she is affiliated.
    In considering the economic disadvantage of firms and owners, it is 
important for recipients to understand that they are making a 
comparative judgment about relative disadvantage. Obviously, someone who 
is destitute is not likely to be in any position to own a business. The 
test is not absolute deprivation, but rather disadvantage compared to 
business owners who are not socially disadvantaged individuals and firms 
owned by such individuals.
    It is the responsibility of applicant firms and their owners to 
provide information to the recipient about their economic situation when 
they seek eligibility as disadvantaged businesses. Recipients are 
encouraged to become as knowledgeable as they can about the types of 
businesses with which they deal, so that they can make a reasonably 
informed comparison between an applicant firm and other firms in the 
same line of business. Recipients are not required to make a detailed, 
point-by-point, accountant-like comparison of the businesses involved. 
Recipients are expected to make a basic judgment about whether the 
applicant firm and its socially disadvantaged owner(s) are in a more 
difficult economic situation than most firms (including established 
firms) and owners who are not socially disadvantaged.

                    Other Eligibility Considerations

    It is very important for recipients to realize that making a 
determination of social and economic disadvantage, standing alone, does 
not mean that a firm is eligible. The recipient must also determine that 
the firm is 51 percent owned by socially and economically disadvantaged 
individuals and that these individuals control the firm. In making these 
latter determinations, recipients should continue to follow 
&&
 23.51-23.53 of subpart C of 49 CFR part 23.
    If a firm or other party believes that any recipient's social and 
economic disadvantage determination is in error, the firm or party may 
make an administrative certification appeal to the Department as 
provided in 49 CFR 23.55

[[Page 224]]

  Appendix D to Subpart D--Justification for Requests for Approval of 
                 Overall Goals of Less Than Ten Percent

    The purpose of a justification for a request for approval of an 
overall goal of less than ten percent is to explain why the goal 
requested by the recipient is the reasonable expectation for the 
participation of disadvantaged businesses in the recipient's DOT-
assisted contracts. The justification has two basic elements. First, the 
recipient should show that it is doing as much as it can to increase 
disadvantaged business participation to at least a ten percent level. 
Second, the recipient should show that, given the availability of 
disadvantaged businesses, the requested goal is the reasonable 
expectation for the level of disadvantaged business participation that 
these efforts are likely to obtain.
    With respect to the specific elements of the justification listed in 
& 23.65, the Department 
offers the following guidance, usually in the form of questions the 
answers to which will help the Department make an informed decision. It 
should be emphasized that this material is guidance, and is not intended 
to create a regulatory requirement or a mandatory list of the contents 
for recipient's submissions. However, it will help the Department to 
make expeditious and well-informed decisions if recipients provide 
reasonably complete and detailed information. Doing so will also 
facilitate suggestions by the Department on additional ways recipients 
can increase disadvantaged business participation.
    (a) Efforts to locate disadvantaged businesses. What contacts has 
the recipient made with sources of information about disadvantaged 
businesses (such as minority contractors, associations, the Commerce 
Department's Minority Business Development Administration, DOT Office of 
Small and Disadvantaged Utilization (and its Program Management 
Centers), and other recipients' directories of disadvantaged 
businesses)? In what geographic areas has it sought to locate additional 
disadvantaged businesses? Have these or other information sources 
produced additional names of disadvantaged businesses potentially 
available to work on the recipient's DOT-assisted contract? What follow-
up was done with respect to these firms?
    (b) Efforts to make disadvantaged businesses aware of contracting 
opportunities. What steps does the recipient take through publications, 
advertising, pre-bid conferences, direct contact, putting disadvantaged 
businesses in touch with firms that may bid on prime contracts, and 
other means to let disadvantaged businesses know about specific 
contracting and subcontracting opportunities as they arise? (Activity of 
this kind by the recipient is important because, in many cases, 
disadvantaged businesses may not be in a position to learn of 
contracting opportunities through informal communications networks 
available to non-disadvantaged firms.)
    (c) Initiatives to encourage and develop disadvantaged businesses. 
What is the recipient doing to assist the formation and growth of 
disadvantaged firms, by means such as training, technical assistance, 
financial assistance and involvement of other sources of support (such 
as the FHWA Supportive Services Program and other Federal, state, or 
local agencies and associations)? What has the recipient done to 
facilitate the ability of disadvantaged businesses to perform contracts 
(e.g., splitting a large contract or project into smaller segments that 
disadvantaged businesses can more readily perform)?
    (d) Legal or other barriers to disadvantaged business participation. 
What specific barriers to disadvantaged business participation has the 
recipient identified? (Common barriers include bonding, prequalification 
and licensing requirements; difficulty in obtaining financing; any state 
or local residency requirement or preference, or any other formal or 
informal limitations on the area from which disadvantaged businesses are 
sought; and the reluctance of some members of the non-disadvantaged 
contracting community to use firms owned and controlled by socially and 
economically disadvantaged persons.) What is the recipient doing about 
the barriers it has identified? (Examples of efforts to overcome or 
mitigate the effect of these barriers include changes to or exceptions 
from state or local requirements as they affect disadvantaged 
businesses, technical or financial assistance to disadvantaged 
businesses to help them meet existing requirements, or cooperative 
efforts with financial institutions and non-minority contractors' 
associations.)
    (e) The availability of disadvantaged businesses. How many 
disadvantaged businesses are available to perform work for the recipient 
on DOT-assisted contracts? The starting point for the recipient's 
information should be its directory or list of certified disadvantaged 
businesses. The number of firms in this directory may not give a 
complete picture, however. Disadvantaged firms in other jurisdictions, 
not currently certified by the recipient, may be willing and able to 
work on the recipient's contracts. On the other hand, firms in the 
directory may have limited availability (e.g., lack of interest in the 
recipient's work, other commitments, limitations of the amount of work 
they can handle). In some cases (e.g., where a state spends a large 
portion of its funds on a single large project requiring very 
specialized contractors), the availability of work that disadvantaged 
firms can perform could be a limitation. The recipient, as appropriate, 
should

[[Page 225]]

discuss these factors as they affect a determination of the reasonable 
expectation for disadvantaged business participation in its DOT-assisted 
contracts.
    The recipient should not only advise the Department how many 
disadvantaged firms exist, but also analyze the dollar volume of the 
recipient's work the available firms are likely to be able to perform in 
the fiscal year (or other period) in question.
    (f) Size and other characteristics of the recipient's jurisdiction's 
minority population. What is the size of the minority population of the 
recipient's jurisdiction? (In some cases, not only the size but also the 
composition or residence pattern of the minority population may be 
relevant). Where relevant, what is the size of the minority population 
of nearby jurisdictions?
    Minority population is usually not an exact index of the 
availability of disadvantaged businesses. In some cases, disadvantaged 
business participation levels for various recipients have ranged well 
above or below the minority population of the jurisdictions involved. In 
any event, recipients should tie any assertions they make on the basis 
of minority population to the effect they believe it has on 
disadvantaged business availability.
    (g) Views and information from the consultation process. With whom 
has the recipient consulted and what did the consulted parties say with 
respect to anything in paragraph (a)-(f)? In particular, what were the 
views of and information provided by the disadvantaged business 
community concerning the availability of such firms, barriers to their 
participation and what is needed to overcome them, the efficacy of the 
recipient's efforts to increase disadvantaged business participation and 
what could be done to improve these efforts?



                  Subpart E--Compliance and Enforcement



Sec. 23.73  Complaints.

    (a) Filing. Any person who believes himself or herself, another 
person, or any specific class of individuals to be subjected to a 
violation of this part may file a complaint in writing, signed and 
dated, with the Department. The complaint shall be filed no later than 
180 days after the date of an alleged violation or the dates on which a 
continuing course of conduct in violation of this part was disclosed. 
The Secretary may extend the time for filing or waive the time limit in 
the interest of justice, specifying in writing the reason for so doing.
    (b) Investigations. The Secretary ensures that a prompt 
investigation is made pursuant to prescribed DOT Title VI investigation 
procedures.
    (c) Cooperation in investigation. The respondent to the complaint 
shall cooperate fully with the investigation. Failure or refusal by the 
respondent to furnish requested information or other failure to 
cooperate is a violation of this part.
    (d) Determinations. Upon completion of the investigation, the 
Secretary informs the recipient or contractor and complainant of the 
results of the investigation in writing. If the investigation indicates 
a failure to comply with this part, the conciliation procedures of 
Sec. 23.81 and, if necessary, the enforcement procedures of Sec. 23.83 
are followed.
    (e) Intimidation or retaliation acts prohibited. No recipient, 
contractor, or other person shall intimidate, threaten, coerce, or 
discriminate against any individual for the purpose of interfering with 
any right or privilege secured by this part, or because he or she made a 
complaint, testified, assisted, or participated in any manner in an 
investigation, proceeding, or hearing under this part. The identity of 
complainants shall be kept confidential at their election during the 
conduct of any investigation, proceeding, or hearing under this part. 
But when such confidentiality is likely to hinder the investigation the 
complainant shall be advised for the purpose of waiving the privilege.



Sec. 23.75  Compliance reviews of recipients.

    (a) Desk audit. All compliance reviews conducted after financial 
assistance has been approved or contracts have been awarded begin with a 
desk audit. The desk audit is a review of all material and information 
concerning the recipient's MBE performance.
    (b) On-site review. An on-site review includes interviews, visits to 
project or facility sites receiving DOT funds, and inspection of any 
statistical or documentary materials relevant to the recipient's 
performance which were not available for review during the desk audit.
    (c) Cooperation. The recipient shall cooperate fully with these 
reviews. Failure or refusal to furnish requested

[[Page 226]]

information or failure to cooperate is a violation of this part.
    (d) Determination. As a result of its review of the recipient, the 
Departmental element civil rights staff makes one of the following 
determinations:
    (1) The recipient is in compliance with its MBE obligations; or
    (2) There is reasonable cause to believe that the recipient is not 
in compliance with its MBE obligations in certain specified respects. 
Proceedings shall be begun in accordance with Sec. 23.81 and, if 
necessary, Sec. 23.83.



Sec. 23.81  Conciliation procedures for financial assistance programs.

    (a) Reasonable cause notice. Whenever the responsible office of 
civil rights makes a determination of reasonable cause to believe that a 
recipient is in noncompliance, a notice is sent promptly and in writing 
by registered mail, return receipt requested, describing the areas of 
noncompliance requiring the applicant or recipient to show cause within 
30 days why enforcement proceedings or other appropriate action to 
ensure compliance should not be instituted and offering the recipient an 
opportunity to conciliate. The responsible office of civil rights shall 
pursue conciliation efforts for at least 30 days from the date of the 
reasonable cause notice.
    (1) Successful conciliation. If a conciliation agreement is signed 
by the Departmental element's office of civil rights and recipient, it 
is approved or disapproved by the head of the Departmental element 
within 20 days of receiving it. If the head of the Departmental element 
disapproves the agreement, the reasons therefor are stated in writing. 
The head of the Departmental element may propose amendments to the 
agreement which are forwarded to the recipient, requesting the 
recipient's acceptance or rejection of the amended agreement within 20 
days of receipt.
    (2) Unsuccessful conciliation. If no agreement is signed within 120 
days of the notice of reasonable cause enforcement proceedings set forth 
in Sec. 23.83 begin. The head of the responsible office of civil rights, 
upon a written determination that an additional 30 days are needed to 
complete conciliation, may extend the conciliation period for 30 days. 
Subsequent extensions may be made upon such written determinations. The 
determinations shall include reasons for the extension and shall be 
provided to the complainant and respondent.
    (b) Effect of conciliation agreement. If a conciliation agreement is 
approved, the existence of the determination of noncompliance does not 
act as a bar to the provision of financial assistance as long as the 
terms of the agreement are fulfilled. A compliance review is conducted 
by the Department element within nine months of the approval of an 
agreement.



Sec. 23.83  Enforcement proceedings for financial assistance programs.

    (a) Whenever conciliation efforts pursuant to Sec. 23.81 are 
unsuccessful, enforcement proceedings begin. These proceedings are 
conducted in accordance with the Department's procedures for enforcing 
title VI (49 CFR part 21).
    (b) A finding of noncompliance and the imposition of any sanction 
pursuant to these proceedings is binding on all other Departmental 
elements. Sanctions are limited to the recipient with respect to whom 
the noncompliance finding has been made and to the particular program or 
activity, or part thereof, in which noncompliance has been found.



Sec. 23.85  Emergency enforcement procedure.

    (a) General. Whenever the Secretary determines that the conciliation 
and enforcement proceedings set forth in Secs. 23.81 and 23.83 will not 
result in the timely and adequate enforcement of the provisions of this 
part, he/she initiates special enforcement procedures to obtain 
compliance.
    (b) Emergency reasonable cause notice. A notice is sent, registered 
mail, return receipt requested, describing the areas of alleged 
noncompliance, setting forth the reasons why the normal course of 
conciliation and enforcement pursuant to Secs. 23.81 and 23.83 will not 
result in timely and adequate enforcement, and requiring the recipient 
to show cause, within a specified period of time, generally not to 
exceed 15 days,

[[Page 227]]

why appropriate action, described in the notice, to ensure compliance 
should not be taken. The notice states that the recipient must respond 
in writing or orally on the record before an official appointed by the 
Secretary or the proposed action will be taken.
    (c) Decision. If the Secretary, after reviewing the recipient's oral 
or written response, determines that such action is necessary, he/she 
orders that all or any part of the contracting activities of the 
recipient affected by the recipient's alleged noncompliance be halted 
until the matter is resolved under Sec. 23.81 or Sec. 23.83. The 
Secretary's action under this paragraph may not affect any contract 
already awarded. When the Secretary makes an order under this paragraph, 
resolution of the matter shall proceed on an expedited basis.



Sec. 23.87  Suspension and debarment; referral to the Department of Justice.

    (a) If, at any time, any person has reason to believe that any 
person or firm has willfully and knowingly provided incorrect 
information or made false statements, or otherwise acted in a manner 
subjecting that person or firm to suspension or debarment action under 
49 CFR part 29, he or she may contact the appropriate DOT element 
concerning the existence of a cause for suspension or debarment, as 
provided in 49 CFR 29.17.
    (b) Upon the receipt of information indicating a violation of 18 
U.S.C. 1001, or any other Federal criminal statute, the Department may 
refer the matter to the Department of Justice for appropriate legal 
action.

[50 FR 18494, May 1, 1985]



   Subpart F--Implementation of Section 511(a)(17) of the Airport and 
               Airway Improvement Act of 1982, as Amended

    Source: Amdt. 1, 57 FR 18410, Apr. 30, 1992, unless otherwise noted.



Sec. 23.89  Definitions.

    Affiliation has the same meaning the term has in regulations of the 
Small Business Administration, 13 CFR part 121. Except as otherwise 
provided in 13 CFR part 121, concerns are affiliates of each other when, 
either directly or indirectly
    (a) One concern controls or has the power to control the other, or
    (b) A third party or parties controls or has the power to control 
both, or
    (c) An ``identity of interest'' between or among parties exists such 
that affiliation may be found.
    In determining whether affiliation exists, consideration shall be 
given to all appropriate factors, including common ownership, common 
management, and contractual relationships.
    Concession means a for-profit business enterprise, located on an 
airport subject to this subpart, that is engaged in the sale of consumer 
goods or services to the public under an agreement with the sponsor, 
another concessionaire, or the owner of a terminal, if other than the 
sponsor. Businesses which conduct an aeronautical activity are not 
considered concessionaires for purposes of this subpart. Aeronautical 
activities include scheduled and nonscheduled air carriers, air taxis, 
air charters, and air couriers, in their normal passenger or 
freightcarrying capacities; fixed base operators, flight schools; and 
sky-diving, parachute-jumping, flying guide services, and helicopter or 
other air tours.
    (a) Appendix A to this subpart contains a listing of the types of 
businesses that are frequently operated as concessions.
    (b) Examples of entities that do not meet the definition of a 
concession include suppliers, flight kitchens and in-flight caterers 
servicing air carriers, government agencies, industrial plants, farm 
leases, individuals leasing hangar space, custodial and security 
contracts, individual taxis with permits, telephone and electric 
utilities, skycap services under contract with an air carrier, and 
management contracts.
    (c) Concessions may be operated under the following types of 
agreements:
    (1) Leases.
    (2) Subleases.
    (3) Permits.
    (4) Contracts.
    (5) Other instruments or arrangements.
    Concessionaire means one who operates a concession.

[[Page 228]]

    Disadvantaged business shall have the same meaning as set forth in 
Sec. 23.61 of subpart D of this part, except it shall be a small 
business concern, as defined in this subpart, not as defined in 
Sec. 23.61.
    Material amendment means a substantial change to the basic rights or 
obligations of the parties to a concession agreement. Examples of 
material amendments include an extension to the term not provided for in 
the original agreement or a substantial increase in the scope, of the 
concession privilege. Examples of nonmaterial amendments include a 
change in the name of the concessionaire or a change to the payment due 
dates.
    Primary airport means a commercial service airport which is 
determined by the Secretary to have more than 10,000 passengers enplaned 
annually.
    Small business concern means a firm, including all its domestic and 
foreign affiliates, that qualifies under the applicable size standard 
set forth in appendix A to this subpart. In making a size determination, 
all affiliates, regardless of whether organized for profit, must be 
included. A firm qualifying under this definition that exceeds the size 
standard after entering a concession agreement, but that otherwise 
remains eligible, may continue to be counted as DBE participation until 
the current agreement, including the exercise of options, expires.
    (a) The Secretary may periodically adjust the size standards in 
appendix A to this subpart for inflation.
    (b) A firm that was certified as a minority/woman/or disadvantaged 
business enterprise (MBE/WBE/DBE) prior to the effective date of this 
subpart, pursuant to a requirement in Sec. 23.43(d) or FAA guidance 
implementing section 511(a)(17) of the Airport and Airway Improvement 
Act of 1982, as amended, that has exceeded the size standard, may be 
counted as DBE participation until the current agreement, including the 
exercise of options, expires, provided that the firm remains otherwise 
eligible.
    Socially and economically disadvantaged individuals shall have the 
same meaning as set forth in Sec. 23.61 of subpart D of this part.
    Sponsor means the recipient of an FAA grant.



Sec. 23.91  Applicability.

    This subpart applies to any sponsor that has received a grant for 
airport development authorized by the Airport and Airway Improvement Act 
of 1982, as amended by the Airport and Airway Safety and Capacity 
Expansion Act of 1987.



Sec. 23.93  Requirements for airport sponsors.

    (a) General requirements. (1) Each sponsor shall abide by the 
nondiscrimination requirements of Sec. 23.7 with respect to the award 
and performance of any concession agreement covered by this subpart.
    (2) Each sponsor shall take all necessary and reasonable steps to 
foster participation by DBE's in its airport concession activities.
    (3) The following statements shall be included in all concession 
agreements executed between the sponsor and any firm after the effective 
date of this subpart.
    (i) ``This agreement is subject to the requirements of the U.S. 
Department of Transportation's regulations, 49 CFR part 23, subpart F. 
The concessionaire agrees that it will not discriminate against any 
business owner because of the owner's race, color, national origin, or 
sex in connection with the award or performance of any concession 
agreement covered by 49 CFR part 23, subpart F.
    (ii) ``The concessionaire agrees to include the above statements in 
any subsequent concession agreements that it enters and cause those 
businesses to similarly include the statements in further agreements.''
    (b) Additional requirements for primary airports (1) Sponsors of 
primary airports shall implement a disadvantaged business enterprise 
(DBE) concession plan containing the elements listed in Sec. 23.95. 
Sponsors of more than one primary airport shall implement a separate 
plan for each location that has received assistance for airport 
development. The plan shall be submitted to the appropriate FAA Regional 
Office for approval.
    (2) The sponsor shall review and update the plan at least annually. 
The updated plan shall include any information required under Sec. 23.95 
that was

[[Page 229]]

not available to the sponsor when the previous submission was made. 
Updated plans shall be submitted to the appropriate FAA Regional Office 
for approval.
    (c) Additional requirements for nonprimary airports. Sponsors of 
commercial service airports (except primary), general aviation and 
reliever airports are not required to implement a DBE concession plan 
but shall take appropriate outreach steps to encourage available DBE's 
to participate as concessionaires whenever there is a concession 
opportunity.



Sec. 23.95  Elements of Disadvantaged Business Enterprise (DBE) concession plan.

    (a) Overall annual DBE goals. (1) The sponsor shall establish an 
overall goal for the participation of DBE's in concessions for each 12-
month period covered by the plan. The goals shall be based on the 
factors listed in Sec. 23.45(g)(5).
    (2) Sponsors shall calculate the overall DBE goal as a percentage of 
one of the following bases:
    (i) The estimated gross receipts that will be earned by all 
concessions operating at the airport during the goal period. (Where the 
terms of a concession agreement do not provide for the sponsor to know 
the gross receipts, the sponsor shall use the net payment to the airport 
for such agreements and combine these figures with the estimated gross 
receipts from other agreements, for purposes of making this calculation. 
The plan shall indicate which concession agreements do not provide for 
the sponsor to know the gross receipts.)
    (ii) The total number of concession agreements operating at the 
airport during the goal period.
    (3) The plan shall state which base the sponsor proposes to use for 
calculating the overall goals. Sponsors proposing to use the base 
described in paragraph (a)(2)(ii) of this section shall submit a 
rationale as required by Sec. 23.99.
    (4) Sponsors who will employ the procedures of paragraph (a)(2)(i) 
of this section shall exclude from the overall goal any portion of a 
firm's estimated gross receipts that will not be generated from a 
concession activity.

    Example. A firm operates a restaurant in the airport terminal which 
services the travelling public and under the same lease agreement, 
provides in-flight catering service to the air carriers. The projected 
gross receipts from the restaurant are included in the overall goal 
calculation, while the gross receipts to be earned by the in-flight 
catering service are excluded.

    (5) Sponsors who will employ the procedures of paragraph (a)(2)(i) 
of this section shall use the net payment to the airport for banks and 
banking services, including automated teller machines (ATM) and foreign 
currency exchanges.
    (6) To the extent practicable, sponsors shall seek to obtain DBE 
participation in all types of concession activities and not concentrate 
participation in one category or a few categories to the exclusion of 
others.
    (7) Airport sponsors may establish an overall annual goal exceeding 
10 percent.
    (b) Goal methodology. (1) The plan shall contain a description of 
the methodology used in establishing each of the overall DBE goals. The 
methodology shall include information on the concessions that will 
operate at the airport during the period covered by the plan and the 
potential for DBE participation. For each concession agreement, the 
sponsor shall provide the following information, together with an 
additional information requested by the Regional Civil Rights Officer:
    (i) Name of firm.
    (ii) Type of business (e.g. bookstore, car rental, baggage carts).
    (iii) Beginning and expiration dates of agreement, including options 
to renew.
    (iv) For new agreements, method of solicitation proposed by sponsor 
(e.g. request for proposals, invitation for bids).
    (v) Dates that material amendments will be made to the agreement (if 
known).
    (vi) Estimated gross receipts for each goal period established in 
the plan.
    (vii) Identification of those concessionaires that have been 
certified under this subpart as DBE's.

[[Page 230]]

    (viii) An indication of those concessions having potential for 
participation by DBE's.
    (2) The plan shall include a narrative description of the types of 
efforts the sponsor intends to make, in accordance with paragraph (h) of 
this session, to achieve the overall annual goals.
    (3) Sponsors who will include a DBE contract goal or other 
requirements in solicitations for concession agreements shall state 
those requirements in the plan.
    (4) If none of the overall goals set under paragraph (a)(2)(i) or 
(a)(2)(ii) of this section is 10 percent or more, the sponsor shall 
submit the information and follow the procedures outlined in 
Sec. 23.101.
    (c) DBE set-asides. (1) Where not prohibited by state or local law 
and determined by the sponsor to be necessary to meet DBE goals, 
procedures to implement DBE set-asides shall be established. The DBE 
plan shall specify the concessions to be set-aside.
    (2) If a state or local law prohibits the use of set-asides in the 
award of concessions, a citation of the appropriate authority shall be 
included in the plan.
    (d) Accomplishments in achieving DBE goals. The plan shall contain 
an analysis of the accomplishments made by the sponsor toward achieving 
the previous year's goal. The plan shall show the effect of those 
results on the overall level of DBE participation in the airport's 
concessions.
    (e) Explanation for not achieving a goal. (1) If the analysis 
required under paragraph (d) of this section indicates that the sponsor 
failed to meet the previous year's overall goal, the plan shall include 
a statement of the reasons demonstrating why failure to meet the goal 
was beyond the sponsor's control.
    (2) If the FAA determines that the reasons given by the sponsor are 
not sufficient justification, or if the sponsor fails to state any 
reasons, the FAA may require the sponsor to implement appropriate 
remedial measures. Such measures may include an adjustment to the 
overall goals of the concession plan.
    (f) Certification procedures. (1) The certification procedures set 
forth in Sec. 23.51 are applicable to this subpart. Sponsors may count 
toward their overall goals only those firms that have been certified in 
accordance with the procedures of that section.
    (2) Except as provided in Sec. 23.51(c), each business, including 
the DBE partner in a joint venture, wishing to participate as a DBE 
under this subpart in a concession shall complete and submit Schedule A. 
Each entity wishing to participate as a joint venture DBE under this 
subpart shall in addition complete and submit Schedule B. (Schedules A 
and B are reproduced at the end of this part.)
    (3) Sponsors shall take at least the following steps in determining 
whether a firm is an eligible DBE:
    (i) Obtain the resumes or work histories of the principal owners of 
the firm and personally interview these individuals;
    (ii) Analyze the ownership of stock in the firm, if it is a 
corporation;
    (iii) Analyze the bonding and financial capacity of the firm;
    (iv) Determine the work history of the firm, including any 
concession contracts it may have received;
    (v) Obtain or compile a list of the licenses of the firm and its key 
personnel to perform the concession contracts it wishes to receive; and
    (vi) Obtain a statement from the firm of the type of concession it 
prefers to operate.
    (4) Prior to making a certification determination, the sponsor shall 
perform an on-site visit to the offices of the firm and to any of its 
facilities that may be necessary to validate the certification 
information obtained from the firm.
    (5) The challenge procedure set forth in Sec. 23.69 are applicable 
to this subpart.
    (g) Certification standards. (1) Sponsors shall use the same 
standards for ownership and control as contained in Sec. 23.53 in 
determining whether a firm may be certified as a DBE.
    (2) Businesses operating under the following structures may be 
eligible for certification as DBE's under this subpart:
    (i) Sole proprietorships.
    (ii) Corporations.
    (iii) Partnerships.
    (iv) Other structures that provide for ownership and control by the 
socially

[[Page 231]]

and economically disadvantaged owners.
    (3) A business operating under a franchise (or license) agreement 
may be certified if it meets the standards in this section and the 
franchisor is not affiliated with the franchisee.

In determining whether affiliation, as defined in Sec. 23.89, exists, 
the restraints relating to standardized quality, advertising, accounting 
format, and other provisions imposed on a franchisee by its franchise 
agreement generally shall not be considered, provided that the 
franchisee has the right to profit from its efforts and bears the risk 
of loss commensurate with ownership. Alternatively, even though a 
franchisee may not be controlled by the franchisor by virtue of such 
provisions in the franchise agreement, control, and, thus, affiliation 
could arise through other means, such as common management or excessive 
restrictions upon the sale of the franchise interest.
    (4) Joint ventures described in Sec. 23.53(d) are eligible for 
certification as DBE's under this subpart.
    (h) Businesses operating under the following arrangements are not 
eligible for certification as DBE's under this subpart:
    (1) Limited partnerships, in which a non-DBE is the general partner.
    (2) Other arrangements that do not provide for ownership and control 
by the socially and economically disadvantaged owners.
    (i) Good faith efforts. The sponsor shall make good faith efforts to 
achieve the overall goals of the approved plan. The efforts shall 
include:
    (1) Locating and identifying DBE's who may be interested in 
participating as concessionaires;
    (2) Notifying DBE's and other organizations of concession 
opportunities and encouraging them to compete, when appropriate;
    (3) Informing competitors for concession opportunities of any DBE 
requirements during pre-solicitation meetings;
    (4) Providing information concerning the availability of DBE firms 
to competitors to assist them in meeting DBE requirements; and
    (5) When practical, structuring contracting activities so as to 
encourage and facilitate the participation of DBE's.



Sec. 23.97  Appeals of certification denials.

    The procedures concerning the appeal of a denial of certification 
set forth in Sec. 23.55 are applicable to this subpart.



Sec. 23.99  Rationale for basing overall goals on the number of concession agreements.

    (a) A sponsor who proposes to calculate the overall DBE goals as a 
percentage of the number of concession agreements shall submit 
information with the DBE plan to demonstrate that one of the following 
applies to the airport:
    (1) In order to attain an overall DBE goal of 10 percent on the 
basis of gross receipts, the airport would need to award a 
disproportionate percentage of the opportunities to DBE's. This 
rationale may address a time period that extends beyond that covered by 
the current plan; or
    (2) Other circumstances at the airport exist that do not make it 
feasible to use gross receipts as the basis for calculating the goals.
    (b) If the FAA approves of the request, the sponsor shall not be 
required to provide further justification during subsequent years of the 
plan, unless requested by the FAA to do so.
    (c) If the FAA determines that the information submitted by the 
sponsor fails to justify the requested goal-setting procedure, the 
sponsor shall resubmit the plan. The goals in the revised plan shall be 
calculated as a percentage of gross receipts, as outlined in paragraph 
(a)(2)(i) of Sec. 23.95.



Sec. 23.101  Information required when none of the overall annual goals is 10 percent or more.

    (a) A sponsor requesting approval for a concession plan in which 
none of the overall annual DBE goals is 10 percent or more shall provide 
information on the following points:
    (1) The sponsor's efforts to locate DBE's in the relevant geographic 
area that are capable of operating the concessions that will become 
available;
    (2) The sponsor's efforts to notify DBE's of concession 
opportunities and to encourage them to compete;

[[Page 232]]

    (3) Any consideration given by the sponsor, when practical, to 
structuring contracting procedures so as to encourage and facilitate DBE 
participation. For example, a sponsor may consider using competitive 
means to award a concession that would otherwise be renegotiated without 
competition.
    (4) If appropriate, an explanation why the nature of a particular 
concession makes DBE participation through a sublease, joint venture, 
partnership, or other arrangement not economically feasible.
    (b) The FAA regional civil rights officer approves a plan which does 
not contain any overall goals of at least 10 percent if he or she 
determines that based on the information submitted by the sponsor under 
paragraph (a) of this section and any other available information;
    (1) The sponsor is making all appropriate efforts to increase DBE 
participation in its concessions to a level of 10 percent; and
    (2) Despite the sponsor's efforts, the goals submitted by the 
sponsor represent the reasonable expectation for DBE participation, 
given the availability of DBE's.



Sec. 23.103  Obligations of concessionaires and competitors.

    (a) Sponsors may impose requirements on competitors for concession 
agreements as a means of achieving the DBE goals or a portion of the 
goals established under paragraph (a) of Sec. 23.91 of this subpart, 
provided that the DBE participation specified in the solicitation or 
other request is an eligible arrangement, as defined in this subpart.
    (b) Nothing in this subpart shall require any sponsor to modify or 
abrogate an existing concession agreement (one executed prior to the 
date the sponsor became subject to this subpart) during its term. When 
options to renew such agreements are exercised or when a material 
amendment is made to the agreement, the sponsor shall assess the 
potential for DBE participation and include any opportunities in the 
goals established under paragraph (a) of Sec. 23.95.



Sec. 23.105  Privately-owned terminal buildings.

    (a) Awards of concession agreements that are made by private owners 
of terminal buildings are covered by this subpart. Airport sponsors 
subject to this subpart shall levy the applicable requirements on the 
terminal owner through the agreement with the owner or by other means, 
except that certification shall, in the case of primary airports, be 
performed by the airport sponsor. The sponsor shall ensure that the 
terminal owner complies with these requirements.
    (b) If the terminal building is at a primary airport, the sponsor 
shall obtain from the terminal owner the overall goals and other 
elements of the DBE concession plan required under Sec. 23.95. This 
information shall be incorporated into the concession plan and goals 
established by the sponsor and submitted to the FAA in accordance with 
this subpart.
    (c) If the terminal building is at a commercial service airport 
(except primary), general aviation, or reliever airport, the sponsor 
shall ensure that the owner complies with the requirements in paragraph 
(c) of Sec. 23.93.



Sec. 23.107  Prohibition on long-term, exclusive concession agreements.

    (a) Except as provided in paragraph (b) of this section, sponsors 
shall not enter into long-term, exclusive agreements for the operation 
of concessions. For purposes of this section, a long-term agreement is 
one having a term in excess of five years. Guidelines for determining 
whether an agreement is exclusive, as used in this section, have been 
included in the FAA's ``DBE Program Development Kit for Airport Grant-
in-Aid Recipients.'' This publication can be obtained from any FAA 
Regional Civil Rights Officer or from the FAA Office of Civil Rights, 
800 Independence Avenue, SW., Washington, DC 20591, Attention, ACR-4.
    (b) A long-term, exclusive agreement is permitted under this 
subpart, provided that;
    (1) Special local circumstances exist that make it important to 
enter such agreement, and

[[Page 233]]

    (2) The responsible FAA regional civil rights officer approves of a 
plan for ensuring adequate DBE participation throughout the term of the 
agreement.
    (c) Approval of the plan referenced in paragraph (b)(2) of this 
section relieves the sponsor of the need to obtain an exemption under 
the procedures of Sec. 23.41(f) and the Notice of Policy (45 FR 45281, 
July 3, 1980). The Notice of Policy can be obtained from the FAA Office 
of Civil Rights at the address given in paragraph (a) of this section.
    (d) Sponsors shall submit the following information with the plan 
referenced in paragraph (b)(2) of this section:
    (1) A description of the special local circumstances that warrant a 
long-term, exclusive agreement, e.g., a requirement to make certain 
capital improvements to a leasehold facility.
    (2) A copy of the draft and final leasing and subleasing or other 
agreements. The long-term, exclusive agreement shall provide that:
    (i) One or more DBE's will participate throughout the term of the 
agreement and account for at least 10 percent of the annual estimated 
gross receipts.
    (ii) The extent of DBE participation will be reviewed prior to the 
exercise of each renewal option to consider whether an increase is 
warranted. (In some instances, a decrease may be warranted.)
    (iii) A DBE that is unable to perform successfully will be replaced 
by another DBE, if the remaining term of the agreement makes this 
feasible.
    (3) Assurances that the DBE participation will be in an acceptable 
form, such as a sublease, joint venture, or partnership.
    (4) Documents used by the sponsor in certifying the DBE's.
    (5) A description of the type of business or businesses to be 
operated, location, storage and delivery space, ``back-of-the-house 
facilities'' such as kitchens, window display space, advertising space, 
and other amenities that will increase the DBE's chance to succeed.
    (6) Information on the investment required on the part of the DBE 
and any unusual management or financial arrangements between the prime 
concessionaire and DBE.
    (7) Information on the estimated gross receipts and net profit to be 
earned by the DBE.



Sec. 23.109  Compliance procedures.

    In the event of noncompliance with this subpart by a sponsor, the 
FAA Administrator may take any action provided for in section 519 of the 
Airport and Airway Improvement Act of 1982, as amended.



Sec. 23.111  Effect on Sec. 23.43(d).

    Except for commitments made prior to issuance of this subpart as a 
condition of receiving an exemption from Sec. 23.43(d)(1), which 
prohibits certain long-term, exclusive agreements, the provisions of 
Sec. 23.43(d) shall not apply to any airport, its lessees, 
concessionaires, or other organizations, if the airport sponsor is 
covered by the requirements in this subpart. Leasing goals established 
in accordance with Sec. 23.43(d)(2) and approved by the FAA prior to the 
effective date of this subpart shall terminate as set forth below;
    (a) For primary airports, upon FAA approval of a DBE concession plan 
required under Sec. 23.93(b).
    (b) For nonprimary airports, at the conclusion of the period to 
which the leasing goal applies.

   Appendix A to Subpart F--Size Standards for Airport Concessionaires

       Maximum Average Annual Gross Receipts in Preceding 3 Years
                        [In millions of dollars]
------------------------------------------------------------------------
                         Concession                             Amount
------------------------------------------------------------------------
Food and beverage..........................................        30.00
Book stores................................................        30.00
Auto rental................................................        40.00
Banks......................................................   \1\ 100.00
Hotels and motels..........................................        30.00
Insurance machines and counters............................        30.00
Gift, novelty, and souvenir shop...........................        30.00
Newstands..................................................        30.00
Shoe shine stands..........................................        30.00
Barber shops...............................................        30.00
Automobile parking.........................................        30.00
Jewelry stores.............................................        30.00
Liquor stores..............................................        30.00
Travel agencies............................................        30.00
Drug stores................................................        30.00
Pastries and baked goods...................................        30.00
Luggage cart rental........................................        30.00
Coin-operated T.V.'s.......................................        30.00

[[Page 234]]

 
Game rooms.................................................        30.00
Luggage and leather goods stores...........................        30.00
Candy, nut, and confectionery stores.......................        30.00
Toy stores.................................................        30.00
Beauty shops...............................................        30.00
Vending machines...........................................        30.00
Coin-operated lockers......................................        30.00
Florists...................................................        30.00
Advertising................................................        30.00
Taxicab....................................................        30.00
Limousines.................................................        30.00
Duty free shops............................................        30.00
Pay telephones.............................................     \2\1,500
Gambling machines..........................................        30.00
Other concessions not shown above..........................        30.00
------------------------------------------------------------------------
\1\ As measured by total assets
\2\ As measured by number of employees.

  Schedule A--Information for Determining Minority Business Enterprise 
                               Eligibility

  1. Name of firm_______________________________________________________
  2. Address of firm____________________________________________________
  3. Phone Number of firm_______________________________________________
  4. Indicate whether firm is sole proprietorship, partnership, joint 
venture, corporation or other business entity (please specify)__________
--______________________________________________________________________
  5. Nature of firm's business__________________________________________
  6. Years firm has been in business____________________________________
    7. Ownership of firm: Identify those who own 5 percent or more of 
the firm's ownership. Columns e and f need be filled out only if the 
firm is less than 100 percent minority owned.

----------------------------------------------------------------------------------------------------------------
                                                          d--Years of        e--Ownership          f--Voting
  a--Name          b--Race              c--Sex             ownership          percentage          percentage
----------------------------------------------------------------------------------------------------------------
 
 
----------------------------------------------------------------------------------------------------------------

With firms less than 100 percent minority owned, list the contributions 
of money, equipment, real estate, or expertise of each of the owners.
    8. Control of firm: (a) Identify by name, race, sex, and title in 
the firm those individuals (including owners and non-owners) who are 
responsible for day-to-day management and policy decisionmaking, 
including, but not limited to, those with prime responsibility for:
  (1) Financial decisions_______________________________________________
    (2) Management decisions, such as--
  a. Estimating_________________________________________________________
  b. Marketing and sales________________________________________________
  c. Hiring and firing of management personnel__________________________
  d. Purchases of major items or supplies_______________________________
  (3) Supervision of field operations___________________________________
    9. For each of those listed in question 8, provide a brief summary 
of the person's experience and number of years with the firm, indicating 
the person's qualifications for the responsibilities given him or her.
    10. Describe or attach a copy of any stock options or other 
ownership options that are outstanding, and any agreements between 
owners or between owners and third parties which restrict ownership or 
control of minority owners.
    11. Identify any owner (see item 7) or management official (see item 
8) of the named firm who is or has been an employee of another firm that 
has an ownership interest in or a present business relationship with the 
named firm. Present business relationships include shared space, 
equipment, financing, or employees as well as both firms having some of 
the same owners.
    12. What are the gross receipts of the firm for each of the last two 
years?

Year ending_____________________________________________________________
$_______________________________________________________________________

Year ending_____________________________________________________________
$_______________________________________________________________________

  13. Name of bonding company, if any:__________________________________
--______________________________________________________________________
Bonding limit___________________________________________________________
Source of letters of credit, if any_____________________________________
    14. Are you authorized to do business in the state as well as 
locally, including all necessary business licenses?
    15. Indicate if this firm or other firms with any of the same 
officers have previously received or been denied certification or 
participation as an MBE and describe the circumstances. Indicate the 
name of the certifying authority and the date of such certification or 
denial.

                                Affidavit

    ``The undersigned swears that the foregoing statements are true and 
correct and include all material information necessary to identify and 
explain the operations of -------- (name of firm) as well as the 
ownership thereof. Further, the undersigned agrees to provide through 
the prime contractor or, if no prime, directly to the grantee current, 
complete and accurate information regarding actual work performed on the 
project, the payment therefor and any proposed changes, if any, of the 
foregoing arrangements and to permit the audit and examination of books, 
records and files of the named firm. Any material misrepresentation will 
be grounds for terminating any contract which may be awarded and for 
initiating action under Federal or State laws concerning false 
statements.''

    Note: If, after filing this Schedule A and before the work of this 
firm is completed on the contract covered by this regulation,

[[Page 235]]

there is any significant change in the information submitted, you must 
inform the grantee of the change through the prime contractor or, if no 
prime contractor, inform the grantee directly.

  Signature_____________________________________________________________
  Name__________________________________________________________________
  Title_________________________________________________________________
  Date__________________________________________________________________
    Corporate Seal (where appropriate).
  Date__________________________________________________________________
  State of______________________________________________________________
  County of_____________________________________________________________
    On this -- day of ----, 19--, before me appeared (Name) --------, to 
me personally known, who, being duly sworn, did execute the foregoing 
affidavit, and did state that he or she was properly authorized by (Name 
of firm) -------- to execute the affidavit and did so as his or her free 
act and deed.
[Seal]
Notary Public___________________________________________________________
Commission expires______________________________________________________

    Schedule B--Information for Determining Joint Venture Eligibility

    (This form need not be filled in if all joint venture firms are 
minority owned.)
  1. Name of joint venture______________________________________________
  2. Address of joint venture___________________________________________
  3. Phone number of joint venture______________________________________
  4. Identify the firms which comprise the joint venture. (The MBE 
partner must complete Schedule A.)______________________________________
  (a) Describe the role of the MBE firm in the joint venture.___________
_______________________________________________________________________
  (b) Describe very briefly the experience and business qualifications 
of each non-MBE joint venturer:_________________________________________
_______________________________________________________________________
  5. Nature of the joint venture's business_____________________________
_______________________________________________________________________
    6. Provide a copy of the joint venture agreement.
  7. What is the claimed percentage of MBE ownership?___________________
    8. Ownership of joint venture: (This need not be filled in if 
described in the joint venture agreement, provided by question 6.)
    (a) Profit and loss sharing.
    (b) Capital contributions, including equipment.
    (c) Other applicable ownership interests.
    9. Control of and participation in this contract. Identify by name, 
race, sex, and ``firm'' those individuals (and their titles) who are 
responsible for day-to-day management and policy decisionmaking, 
including, but not limited to, those with prime responsibility for:
  (a) Financial decisions_______________________________________________
    (b) Management decisions, such as:
  (1) Estimating________________________________________________________
  (2) Marketing and sales_______________________________________________
  (3) Hiring and firing of management personnel_________________________
  (4) Purchasing of major items or supplies_____________________________
_______________________________________________________________________
    (c) Supervision of field operations

    Note: If, after filing this Schedule B and before the completion of 
the joint venture's work on the contract covered by this regulation, 
there is any significant change in the information submitted, the joint 
venture must inform the grantee, either directly or through the prime 
contractor if the joint venture is a subcontractor.

                                Affidavit

    ``The undersigned swear that the foregoing statements are correct 
and include all material information necessary to identify and explain 
the terms and operation of our joint venture and the intended 
participation by each joint venturer in the undertaking. Further, the 
undersigned covenant and agree to provide to the grantee current, 
complete and accurate information regarding actual joint venture work 
and the payment therefor and any proposed changes in any of the joint 
venture arrangements and to permit the audit and examination of the 
books, records and files of the joint venture, or those of each joint 
venturer relevant to the joint venture, by authorized representatives of 
the grantee or the Federal funding agency. Any material 
misrepresentation will be grounds for terminating any contract which may 
be awarded and for initiating action under Federal or State laws 
concerning false statements.''

            ------------------                   ------------------
               Name of Firm                         Name of Firm
 
            ------------------                   ------------------
                 Signature                            Signature
 
            ------------------                   ------------------
                   Name                                 Name
 
            ------------------                   ------------------
                   Title                                Title
 
            ------------------                   ------------------
                   Date                                 Date
 

Date____________________________________________________________________
State of________________________________________________________________
County of_______________________________________________________________
    On this -- day of ----, 19--, before me appeared (Name) --------, to 
me personally known, who, being duly sworn, did execute the foregoing 
affidavit, and did state that he or she was properly authorized by (Name 
of firm) -------- to execute the affidavit and did so as his or her free 
act and deed.
Notary Public___________________________________________________________
Commission expires______________________________________________________
[Seal]
Date____________________________________________________________________
State of________________________________________________________________
County of_______________________________________________________________

[[Page 236]]

    On this -- day of ----, 19--, before me appeared (Name) --------, to 
me personally known, who, being duly sworn, did execute the foregoing 
affidavit, and did state that he or she was properly authorized by (Name 
of firm) -------- to execute the affidavit and did so as his or her free 
act and deed.
Notary Public___________________________________________________________
Commission expires______________________________________________________
[Seal]



PART 24--UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents




                           Subpart A--General

Sec.
24.1  Purpose.
24.2  Definitions.
24.3  No duplication of payments.
24.4  Assurances, monitoring and corrective action.
24.5  Manner of notices.
24.6  Administration of jointly-funded projects.
24.7  Federal agency waiver of regulations.
24.8  Compliance with other laws and regulations.
24.9  Recordkeeping and reports.
24.10  Appeals.

                  Subpart B--Real Property Acquisition

24.101  Applicability of acquisition requirements.
24.102  Basic acquisition policies.
24.103  Criteria for appraisals.
24.104  Review of appraisals.
24.105  Acquisition of tenant-owned improvements.
24.106  Expenses incidental to transfer of title to the Agency.
24.107  Certain litigation expenses.
24.108  Donations.

               Subpart C--General Relocation Requirements

24.201  Purpose.
24.202  Applicability.
24.203  Relocation notices.
24.204  Availability of comparable replacement dwelling before 
          displacement.
24.205  Relocation planning, advisory services, and coordination.
24.206  Eviction for cause.
24.207  General requirements--claims for relocation payments.
24.208  Relocation payments not considered as income.

           Subpart D--Payments for Moving and Related Expenses

24.301  Payment for actual reasonable moving and related expenses--
          residential moves.
24.302  Fixed payment for moving expenses--residential moves.
24.303  Payment for actual reasonable moving and related expenses--
          nonresidential moves.
24.304  Reestablishment expenses--nonresidential moves.
24.305  Ineligible moving and related expenses.
24.306  Fixed payment for moving expenses--nonresidentia1 moves.
24.307  Discretionary utility relocation payments.

                 Subpart E--Replacement Housing Payments

24.401  Replacement housing payment for 180-day homeowner-occupants.
24.402  Replacement housing payment for 90-day occupants.
24.403  Additional rules governing replacement housing payments.
24.404  Replacement housing of last resort.

                         Subpart F--Mobile Homes

24.501  Applicability.
24.502  Moving and related expenses--mobile homes.
24.503  Replacement housing payment for 180-day mobile homeowner-
          occupants.
24.504  Replacement housing payment for 90-day mobile home occupants.
24.505  Additional rules governing relocation payments to mobile home 
          occupants.

                        Subpart G--Certification

24.601  Purpose.
24.602  Certification application.
24.603  Monitoring and corrective action.

Appendix A to Part 24--Additional Information
Appendix B to Part 24--Statistical Report Form

    Authority: 42 U.S.C. 4601 et seq.; 49 CFR 1.48(cc).

    Source: 54 FR 8928, Mar. 2, 1989, unless otherwise noted.



                           Subpart A--General



Sec. 24.1  Purpose.

    The purpose of this part is to promulgate rules to implement the 
Uniform Relocation Assistance and Real Property Acquisition Policies Act 
of 1970, as

[[Page 237]]

amended (42 U.S.C. 4601 et seq.), in accordance with the following 
objectives:
    (a) To ensure that owners of real property to be acquired for 
Federal and federally-assisted projects are treated fairly and 
consistently, to encourage and expedite acquisition by agreements with 
such owners, to minimize litigation and relieve congestion in the 
courts, and to promote public confidence in Federal and federally-
assisted land acquisition programs;
    (b) To ensure that persons displaced as a direct result of Federal 
or federally-assisted projects are treated fairly, consistently, and 
equitably so that such persons will not suffer disproportionate injuries 
as a result of projects designed for the benefit of the public as a 
whole; and
    (c) To ensure that Agencies implement these regulations in a manner 
that is efficient and cost effective.

[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989]



Sec. 24.2  Definitions.

    (a) Agency. The term Agency means the Federal agency, State, State 
agency, or person that acquires real property or displaces a person.
    (1) Acquiring agency. The term acquiring agency means a State 
agency, as defined in paragraph (a)(4) of this section, which has the 
authority to acquire property by eminent domain under State law, and a 
State agency or person which does not have such authority. Any Agency or 
person solely acquiring property pursuant to the provisions of 
Sec. 24.101(a) (1), (2), (3), or (4) need not provide the assurances 
required by Sec. 24.4(a)(1) or (2).
    (2) Displacing agency. The term displacing agency means any Federal 
agency carrying out a program or project, and any State, State agency, 
or person carrying out a program or project with Federal financial 
assistance, which causes a person to be a displaced person.
    (3) Federal agency. The term Federal agency means any department, 
Agency, or instrumentality in the executive branch of the Government, 
any wholly owned Government corporation, the Architect of the Capitol, 
the Federal Reserve Banks and branches thereof, and any person who has 
the authority to acquire property by eminent domain under Federal law.
    (4) State agency. The term State agency means any department, Agency 
or instrumentality of a State or of a political subdivision of a State, 
any department, Agency, or instrumentality of two or more States or of 
two or more political subdivisions of a State or States, and any person 
who has the authority to acquire property by eminent domain under State 
law.
    (b) Appraisal. The term appraisal means a written statement 
independently and impartially prepared by a qualified appraiser setting 
forth an opinion of defined value of an adequately described property as 
of a specific date, supported by the presentation and analysis of 
relevant market information.
    (c) Business. The term business means any lawful activity, except a 
farm operation, that is conducted:
    (1) Primarily for the purchase, sale, lease and/or rental of 
personal and/or real property, and/or for the manufacture, processing, 
and/or marketing of products, commodities, and/or any other personal 
property; or
    (2) Primarily for the sale of services to the public; or
    (3) Primarily for outdoor advertising display purposes, when the 
display must be moved as a result of the project; or
    (4) By a nonprofit organization that has established its nonprofit 
status under applicable Federal or State law.
    (d) Comparable replacement dwelling. The term comparable replacement 
dwelling means a dwelling which is:
    (1) Decent, safe and sanitary as described in paragraph (f) of this 
section;
    (2) Functionally equivalent to the displacement dwelling. The term 
functionally equivalent means that it performs the same function, 
provides the same utility, and is capable of contributing to a 
comparable style of living. While a comparable replacement dwelling need 
not possess every feature of the displacement dwelling, the principal 
features must be present. Generally, functional equivalency is an 
objective standard, reflecting the range of purposes for which the 
various physical features of a dwelling may be used.

[[Page 238]]

However, in determining whether a replacement dwelling is functionally 
equivalent to the displacement dwelling, the Agency may consider 
reasonable trade-offs for specific features when the replacement unit is 
equal to or better than the displacement dwelling. (See appendix A of 
this part);
    (3) Adequate in size to accommodate the occupants;
    (4) In an area not subject to unreasonable adverse environmental 
conditions;
    (5) In a location generally not less desirable than the location of 
the displaced person's dwelling with respect to public utilities and 
commercial and public facilities, and reasonably accessible to the 
person's place of employment;
    (6) On a site that is typical in size for residential development 
with normal site improvements, including customary landscaping. The site 
need not include special improvements such as outbuildings, swimming 
pools, or greenhouses. (See also Sec. 24.403(a)(2).);
    (7) Currently available to the displaced person on the private 
market. However, a comparable replacement dwelling for a person 
receiving government housing assistance before displacement may reflect 
similar government housing assistance. (See appendix A of this part.); 
and
    (8) Within the financial means of the displaced person.
    (i) A replacement dwelling purchased by a homeowner in occupancy at 
the displacement dwelling for at least 180 days prior to initiation of 
negotiations (180-day homeowner) is considered to be within the 
homeowner's financial means if the homeowner will receive the full price 
differential as described in Sec. 24.401(c), all increased mortgage 
interest costs as described at Sec. 24.401(d) and all incidental 
expenses as described at Sec. 24.401(e), plus any additional amount 
required to be paid under Sec. 24.404, Replacement housing of last 
resort.
    (ii) A replacement dwelling rented by an eligible displaced person 
is considered to be within his or her financial means if, after 
receiving rental assistance under this part, the person's monthly rent 
and estimated average monthly utility costs for the replacement dwelling 
do not exceed the person's base monthly rental for the displacement 
dwelling as described at Sec. 24.402(b)(2).
    (iii) For a displaced person who is not eligible to receive a 
replacement housing payment because of the person's failure to meet 
length-of-occupancy requirements, comparable replacement rental housing 
is considered to be within the person's financial means if an Agency 
pays that portion of the monthly housing costs of a replacement dwelling 
which exceeds 30 percent of such person's gross monthly household income 
or, if receiving a welfare assistance payment from a program that 
designates amounts for shelter and utilities, the total of the amounts 
designated for shelter and utilities. Such rental assistance must be 
paid under Sec. 24.404, Replacement housing of last resort.
    (e) Contribute materially. The term contribute materially means that 
during the 2 taxable years prior to the taxable year in which 
displacement occurs, or during such other period as the Agency 
determines to be more equitable, a business or farm operation:
    (1) Had average annual gross receipts of at least $5000; or
    (2) Had average annual net earnings of at least $1000; or
    (3) Contributed at least 33\1/3\ percent of the owner's or 
operator's average annual gross income from all sources.
    (4) If the application of the above criteria creates an inequity or 
hardship in any given case, the Agency may approve the use of other 
criteria as determined appropriate.
    (f) Decent, safe, and sanitary dwelling. The term decent, safe, and 
sanitary dwelling means a dwelling which meets applicable housing and 
occupancy codes. However, any of the following standards which are not 
met by an applicable code shall apply unless waived for good cause by 
the Federal agency funding the project. The dwelling shall:
    (1) Be structurally sound, weathertight, and in good repair.
    (2) Contain a safe electrical wiring system adequate for lighting 
and other devices.
    (3) Contain a heating system capable of sustaining a healthful 
temperature

[[Page 239]]

(of approximately 70 degrees) for a displaced person, except in those 
areas where local climatic conditions do not require such a system.
    (4) Be adequate in size with respect to the number of rooms and area 
of living space needed to accommodate the displaced person. There shall 
be a separate, well lighted and ventilated bathroom that provides 
privacy to the user and contains a sink, bathtub or shower stall, and a 
toilet, all in good working order and properly connected to appropriate 
sources of water and to a sewage drainage system. In the case of a 
housekeeping dwelling, there shall be a kitchen area that contains a 
fully usable sink, properly connected to potable hot and cold water and 
to a sewage drainage system, and adequate space and utility service 
connections for a stove and refrigerator.
    (5) Contains unobstructed egress to safe, open space at ground 
level. If the replacement dwelling unit is on the second story or above, 
with access directly from or through a common corridor, the common 
corridor must have at least two means of egress.
    (6) For a displaced person who is handicapped, be free of any 
barriers which would preclude reasonable ingress, egress, or use of the 
dwelling by such displaced person.
    (g) Displaced person-- (1) General. The term displaced person means 
any person who moves from the real property or moves his or her personal 
property from the real property: (This includes a person who occupies 
the real property prior to its acquisition, but who does not meet the 
length of occupancy requirements of the Uniform Act as described at 
Sec. 24.401(a) and 24.402(a)):
    (i) As a direct result of a written notice of intent to acquire, the 
initiation of negotiations for, or the acquisition of, such real 
property in whole or in part for a project.
    (ii) As a direct result of rehabilitation or demolition for a 
project; or
    (iii) As a direct result of a written notice of intent to acquire, 
or the acquisition, rehabilitation or demolition of, in whole or in 
part, other real property on which the person conducts a business or 
farm operation, for a project. However, eligibility for such person 
under this paragraph applies only for purposes of obtaining relocation 
assistance advisory services under Sec. 24.205(c), and moving expenses 
under Sec. 24.301, Sec. 24.302 or Sec. 24.303.
    (2) Persons not displaced. The following is a nonexclusive listing 
of persons who do not qualify as displaced persons under this part:
    (i) A person who moves before the initiation of negotiations (see 
also Sec. 24.403(d)), unless the Agency determines that the person was 
displaced as a direct result of the program or project; or
    (ii) A person who initially enters into occupancy of the property 
after the date of its acquisition for the project; or
    (iii) A person who has occupied the property for the purpose of 
obtaining assistance under the Uniform Act;
    (iv) A person who is not required to relocate permanently as a 
direct result of a project. Such determination shall be made by the 
Agency in accordance with any guidelines established by the Federal 
agency funding the project (see also appendix A of this part); or
    (v) An owner-occupant who moves as a result of an acquisition as 
described at Secs. 24.101(a) (1) and (2) , or as a result of the 
rehabilitation or demolition of the real property. (However, the 
displacement of a tenant as a direct result of any acquisition, 
rehabilitation or demolition for a Federal or federally-assisted project 
is subject to this part.); or
    (vi) A person whom the Agency determines is not displaced as a 
direct result of a partial acquisition; or
    (vii) A person who, after receiving a notice of relocation 
eligibility (described at Sec. 24.203(b)), is notified in writing that 
he or she will not be displaced for a project. Such notice shall not be 
issued unless the person has not moved and the Agency agrees to 
reimburse the person for any expenses incurred to satisfy any binding 
contractual relocation obligations entered into after the effective date 
of the notice of relocation eligibility; or
    (viii) An owner-occupant who voluntarily conveys his or her 
property, as described at Sec. 24.101(a) (1) and (2), after being 
informed in writing that if a mutually satisfactory agreement on terms 
of the conveyance cannot be reached,

[[Page 240]]

the Agency will not acquire the property. In such cases, however, any 
resulting displacement of a tenant is subject to the regulations in this 
part; or
    (ix) A person who retains the right of use and occupancy of the real 
property for life following its acquisition by the Agency; or
    (x) An owner who retains the right of use and occupancy of the real 
property for a fixed term after its acquisition by the Department of the 
Interior under Public Law 93-477 or Public Law 93-303, except that such 
owner remains a displaced person for purposes of subpart D of this part; 
or
    (xi) A person who is determined to be in unlawful occupancy prior to 
the initiation of negotiations (see paragraph (y) of this section), or a 
person who has been evicted for cause, under applicable law, as provided 
for in Sec. 24.206.
    (h) Dwelling. The term dwelling means the place of permanent or 
customary and usual residence of a person, according to local custom or 
law, including a single family house; a single family unit in a two-
family, multi-family, or multi-purpose property; a unit of a condominium 
or cooperative housing project; a non-housekeeping unit; a mobile home; 
or any other residential unit.
    (i) Farm operation. The term farm operation means any activity 
conducted solely or primarily for the production of one or more 
agricultural products or commodities, including timber, for sale or home 
use, and customarily producing such products or commodities in 
sufficient quantity to be capable of contributing materially to the 
operator's support.
    (j) Federal financial assistance. The term Federal financial 
assistance means a grant, loan, or contribution provided by the United 
States, except any Federal guarantee or insurance and any interest 
reduction payment to an individual in connection with the purchase and 
occupancy of a residence by that individual.
    (k) Initiation of negotiations. Unless a different action is 
specified in applicable Federal program regulations, the term initiation 
of negotiations means the following:
    (1) Whenever the displacement results from the acquisition of the 
real property by a Federal agency or State agency, the initiation of 
negotiations means the delivery of the initial written offer of just 
compensation by the Agency to the owner or the owner's representative to 
purchase the real property for the project. However, if the Federal 
agency or State agency issues a notice of its intent to acquire the real 
property, and a person moves after that notice, but before de1ivery to 
the initial written purchase offer, the initiation of negotiations means 
the actual move of the person from the property.
    (2) Whenever the displacement is caused by rehabilitation, 
demolition or privately undertaken acquisition of the real property (and 
there is no related acquisition by a Federal agency or a State agency), 
the initiation of negotiations means the notice to the person that he or 
she will be displaced by the project or, if there is no notice, the 
actual move of the person from the property.
    (3) In the case of a permanent relocation to protect the public 
health and welfare, under the Comprehensive Environmental Response 
Compensation and Liability Act of 1980 (Pub. L. 96-510, or Superfund) 
the initiation of negotiations means the formal announcement of such 
relocation or the Federal or federally-coordinated health advisory where 
the Federal Government later decides to conduct a permanent relocation.
    (l) Lead agency. The term lead agency means the Department of 
Transportation acting through the Federal Highway Administration.
    (m) Mortgage. The term mortgage means such classes of liens as are 
commonly given to secure advances on, or the unpaid purchase price of, 
real property, under the laws of the State in which the real property is 
located, together with the credit instruments, if any, secured thereby.
    (n) Nonprofit organization. The term nonprofit organization means an 
organization that is incorporated under the applicable laws of a State 
as a non-profit organization, and exempt from paying Federal income 
taxes under section 501 of the Internal Revenue Code (26 U.S.C. 501).

[[Page 241]]

    (o) Notice of intent to acquire or notice of eligibility for 
relocation assistance. Written notice furnished to a person to be 
displaced, including those to be displaced by rehabilitation or 
demolition activities from property acquired prior to the commitment of 
Federal financial assistance to the activity, that establishes 
eligibility for relocation benefits prior to the initiation of 
negotiation and/or prior to the commitment of Federal financial 
assistance.
    (p) Owner of a dwelling. A person is considered to have met the 
requirement to own a dwelling if the person purchases or holds any of 
the following interests in real property;
    (1) Fee title, a life estate, a land contract, a 99-year lease, or a 
lease including any options for extension with at least 50 years to run 
from the date of acquisition; or
    (2) An interest in a cooperative housing project which includes the 
right to occupy a dwelling; or
    (3) A contract to purchase any of the interests or estates described 
in paragraphs (p) (1) or (2) of this section, or
    (4) Any other interest, including a partial interest, which in the 
judgment of the Agency warrants consideration as ownership.
    (q) Person. The term person means any individual, family, 
partnership, corporation, or association.
    (r) Program or project. The phrase program or project means any 
activity or series of activities undertaken by a Federal agency or with 
Federal financial assistance received or anticipated in any phase of an 
undertaking in accordance with the Federal funding agency guidelines.
    (s) Salvage value. The term salvage value means the probable sale 
price of an item, if offered for sale on the condition that it will be 
removed from the property at the buyer's expense, allowing a reasonable 
period of time to find a person buying with knowledge of the uses and 
purposes for which it is adaptable and capable of being used, including 
separate use of serviceable components and scrap when there is no 
reasonable prospect of sale except on that basis.
    (t) Small business. A business having not more than 500 employees 
working at the site being acquired or displaced by a program or project, 
which site is the location of economic activity. Sites occupied solely 
by outdoor advertising signs, displays, or devices do not qualify as a 
business for purposes of Sec. 24.304.
    (u) State. Any of the several States of the United States or the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, the Trust Territories of the Pacific 
Islands or a political subdivision of any of these jurisdictions.
    (v) Tenant. The term tenant means a person who has the temporary use 
and occupancy of real property owned by another.
    (w) Uneconomic remnant. The term uneconomic remnant means a parcel 
of real property in which the owner is left with an interest after the 
partial acquisition of the owner's property, and which the acquiring 
agency has determined has little or no value or utility to the owner.
    (x) Uniform Act. The term Uniform Act means the Uniform Relocation 
Assistance and Real Property Acquisition Policy Act of 1970 (84 Stat. 
1894; 42 U.S.C. 4601 et seq.; Pub. L. 91-646), and amendments thereto.
    (y) Unlawful occupancy. A person is considered to be in unlawful 
occupancy if the person has been ordered to move by a court of competent 
jurisdiction prior to the initiation of negotiations or is determined by 
the Agency to be a squatter who is occupying the real property without 
the permission of the owner and otherwise has no legal right to occupy 
the property under State law. A displacing agency may, at its 
discretion, consider such a squatter to be in lawful occupancy.
    (z) Utility costs. The term utility costs means expenses for heat, 
lights, water and sewer.
    (aa) Utility facility. The term utility facility means any electric, 
gas, water, steampower, or materials transmission or distribution 
system; any transportation system; any communications system, including 
cable television; and any fixtures, equipment, or other property 
associated with the operation, maintenance, or repair of any such 
system. A utility facility may be publicly, privately, or cooperatively 
owned.

[[Page 242]]

    (bb) Utility relocation. The term utility relocation means the 
adjustment of a utility facility required by the program or project 
undertaken by the displacing agency. It includes removing and 
reinstalling the facility, including necessary temporary facilities; 
acquiring necessary right-of-way on new location; moving, rearranging or 
changing the type of existing facilities; and taking any necessary 
safety and protective measures. It shall also mean constructing a 
replacement facility that has the functional equivalency of the existing 
facility and is necessary for the continued operation of the utility 
service, the project economy, or sequence of project construction.

[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989; 58 FR 26072, Apr. 
30, 1993]



Sec. 24.3  No duplication of payments.

    No person shall receive any payment under this part if that person 
receives a payment under Federal, State, or local law which is 
determined by the Agency to have the same purpose and effect as such 
payment under this part. (See appendix A of this part, Sec. 24.3.)



Sec. 24.4  Assurances, monitoring and corrective action.

    (a) Assurances--(1) Before a Federal agency may approve any grant 
to, or contract, or agreement with, a State agency under which Federal 
financial assistance will be made available for a project which results 
in real property acquisition or displacement that is subject to the 
Uniform Act, the State agency must provide appropriate assurances that 
it will comply with the Uniform Act and this part. A displacing agency's 
assurances shall be in accordance with section 210 of the Uniform Act. 
An acquiring agency's assurances shall be in accordance with section 305 
of the Uniform Act and must contain specific reference to any State law 
which the Agency believes provides an exception to section 301 or 302 of 
the Uniform Act. If, in the judgment of the Federal agency, Uniform Act 
compliance will be served, a State agency may provide these assurances 
at one time to cover all subsequent federally-assisted programs or 
projects. An Agency which both acquires real property and displaces 
persons may combine its section 210 and section 305 assurances in one 
document.
    (2) If a Federal agency or State agency provides Federal financial 
assistance to a ``person'' causing displacement, such Federal or State 
agency is responsible for ensuring compliance with the requirements of 
this part, notwithstanding the person's contractual obligation to the 
grantee to comply.
    (3) As an alternative to the assurance requirement described in 
paragraph (a)(1) of this section, a Federal agency may provide Federal 
financial assistance to a State agency after it has accepted a 
certification by such State agency in accordance with the requirements 
in subpart G of this part.
    (b) Monitoring and corrective action. The Federal agency will 
monitor compliance with this part, and the State agency shall take 
whatever corrective action is necessary to comply with the Uniform Act 
and this part. The Federal agency may also apply sanctions in accordance 
with applicable program regulations. (Also see Sec. 24.603, subpart G.)
    (c) Prevention of fraud, waste, and mismanagement. The Agency shall 
take appropriate measures to carry out this part in a manner that 
minimizes fraud, waste, and mismanagement.



Sec. 24.5  Manner of notices.

    Each notice which the Agency is required to provide to a property 
owner or occupant under this part, except the notice described at 
Sec. 24.102(b), shall be personally served or sent by certified or 
registered first-class mail, return receipt requested, and documented in 
Agency files. Each notice shall be written in plain, understandable 
language. Persons who are unable to read and understand the notice must 
be provided with appropriate translation and counseling. Each notice 
shall indicate the name and telephone number of a person who may be 
contacted for answers to questions or other needed help.



Sec. 24.6  Administration of jointly-funded projects.

    Whenever two or more Federal agencies provide financial assistance 
to an Agency or Agencies, other than a Federal agency, to carry out 
functionally or geographically related activities which will result in 
the acquisition of

[[Page 243]]

property or the displacement of a person, the Federal agencies may by 
agreement designate one such agency as the cognizant Federal agency. In 
the unlikely event that agreement among the Agencies cannot be reached 
as to which agency shall be the cognizant Federal agency, then the lead 
agency shall designate one of such agencies to assume the cognizant 
role. At a minimum, the agreement shall set forth the federally assisted 
activities which are subject to its terms and cite any policies and 
procedures, in addition to this part, that are applicable to the 
activities under the agreement. Under the agreement, the cognizant 
Federal agency shall assure that the project is in compliance with the 
provisions of the Uniform Act and this part. All federally assisted 
activities under the agreement shall be deemed a project for the 
purposes of this part.



Sec. 24.7  Federal agency waiver of regulations.

    The Federal agency funding the project may waive any requirement in 
this part not required by law if it determines that the waiver does not 
reduce any assistance or protection provided to an owner or displaced 
person under this part. Any request for a waiver shall be justified on a 
case-by-case basis.



Sec. 24.8  Compliance with other laws and regulations.

    The implementation of this part must be in compliance with other 
applicable Federal laws and implementing regulations, including, but not 
limited to, the following:
    (a) Section I of the Civil Rights Act of 1866 (42 U.S.C. 1982 et 
seq.).
    (b) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.).
    (c) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et 
seq.), as amended.
    (d) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.).
    (e) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 790 et 
seq.).
    (f) The Flood Disaster Protection Act of 1973 (Pub. L. 93-234).
    (g) The Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.).
    (h) Executive Order 11063--Equal Opportunity and Housing, as amended 
by Executive Order l2259.
    (i) Executive Order 11246--Equal Employment Opportunity.
    (j) Executive Order 11625--Minority Business Enterprise.
    (k) Executive Orders 11988, Floodplain Management, and 11990, 
Protection of Wetlands.
    (l) Executive Order 12250--Leadership and Coordination of Non-
Discrimination Laws.
    (m) Executive Order 12259--Leadership and Coordination of Fair 
Housing in Federal Programs.
    (n) Executive Order 12630--Governmental Actions and Interference 
with Constitutionally Protected Property Rights.



Sec. 24.9  Recordkeeping and reports.

    (a) Records. The Agency shall maintain adequate records of its 
acquisition and displacement activities in sufficient detail to 
demonstrate compliance with this part. These records shall be retained 
for at least 3 years after each owner of a property and each person 
displaced from the property receives the final payment to which he or 
she is entitled under this part, or in accordance with the applicable 
regulations of the Federal funding agency, whichever is later.
    (b) Confidentiality of records. Records maintained by an Agency in 
accordance with this part are confidential regarding their use as public 
information, unless applicable law provides otherwise.
    (c) Reports. The Agency shall submit a report of its real property 
acquisition and displacement activities under this part if required by 
the Federal agency funding the project. A report will not be required 
more frequently than every 3 years, or as the Uniform Act provides, 
unless the Federal funding agency shows good cause. The report shall be 
prepared and submitted in the format contained in appendix B of this 
part.



Sec. 24.10  Appeals.

    (a) General. The Agency shall promptly review appeals in accordance 
with the requirements of applicable law and this part.

[[Page 244]]

    (b) Actions which may be appealed. Any aggrieved person may file a 
written appeal with the Agency in any case in which the person believes 
that the Agency has failed to properly consider the person's application 
for assistance under this part. Such assistance may include, but is not 
limited to, the person's eligibility for, or the amount of, a payment 
required under Sec. 24.106 or Sec. 24.107, or a relocation payment 
required under this part. The Agency shall consider a written appeal 
regardless of form.
    (c) Time limit for initiating appeal. The Agency may set a 
reasonable time limit for a person to file an appeal. The time limit 
shall not be less than 60 days after the person receives written 
notification of the Agency's determination on the person's claim.
    (d) Right to representation. A person has a right to be represented 
by legal counsel or other representative in connection with his or her 
appeal, but solely at the person's own expense.
    (e) Review of files by person making appeal. The Agency shall permit 
a person to inspect and copy all materials pertinent to his or her 
appeal, except materials which are classified as confidential by the 
Agency. The Agency may, however, impose reasonable conditions on the 
person's right to inspect, consistent with applicable laws.
    (f) Scope of review of appeal. In deciding an appeal, the Agency 
shall consider all pertinent justification and other material submitted 
by the person, and all other available information that is needed to 
ensure a fair and full review of the appeal.
    (g) Determination and notification after appeal. Promptly after 
receipt of all information submitted by a person in support of an 
appeal, the Agency shall make a written determination on the appeal, 
including an explanation of the basis on which the decision was made, 
and furnish the person a copy. If the full relief requested is not 
granted, the Agency shall advise the person of his or her right to seek 
judicial review.
    (h) Agency official to review appeal. The Agency official conducting 
the review of the appeal shall be either the head of the Agency or his 
or her authorized designee. However, the official shall not have been 
directly involved in the action appealed.



                  Subpart B--Real Property Acquisition



Sec. 24.101  Applicability of acquisition requirements.

    (a) General. The requirements of this subpart apply to any 
acquisition of real property for a Federal program or project, and to 
programs and projects where there is Federal financial assistance in any 
part of project costs except for:
    (1) Voluntary transactions that meet all of the following 
conditions:
    (i) No specific site or property needs to be acquired, although the 
Agency may limit its search for alternative sites to a general 
geographic area. Where an Agency wishes to purchase more than one site 
within a geographic area on this basis, all owners are to be treated 
similarly.
    (ii) The property to be acquired is not part of an intended, 
planned, or designated project area where all or substantially all of 
the property within the area is to be acquired within specific time 
limits.
    (iii) The Agency will not acquire the property in the event 
negotiations fail to result in an amicable agreement, and the owner is 
so informed in writing.
    (iv) The Agency will inform the owner of what it believes to be the 
fair market value of the property.
    (2) Acquisitions for programs or projects undertaken by an Agency or 
person that receives Federal financial assistance but does not have 
authority to acquire property by eminent domain, provided that such 
Agency or person shall:
    (i) Prior to making an offer for the property, clearly advise the 
owner that it is unable to acquire the property in the event 
negotiations fail to result in an amicable agreement; and
    (ii) Inform the owner of what it believes to be fair market value of 
the property.
    (3) The acquisition of real property from a Federal agency, State, 
or State agency, if the Agency desiring to make the purchase does not 
have authority

[[Page 245]]

to acquire the property through condemnation.
    (4) The acquisition of real property by a cooperative from a person 
who, as a condition of membership in the cooperative, has agreed to 
provide without charge any real property that is needed by the 
cooperative.
    (5) Acquisition for a program or project which is undertaken by, or 
receives Federal financial assistance from, the Tennessee Valley 
Authority or the Rural Electrification Administration.
    (b) Less-than-full-fee interest in real property. In addition to fee 
simple title, the provisions of this subpart apply when acquiring fee 
title subject to retention of a life estate or a life use; to 
acquisition by leasing where the lease term, including option(s) for 
extension, is 50 years or more; and to the acquisition of permanent 
easements. (See appendix A of this part, Sec. 24.101(b).)
    (c) Federally-assisted projects. For projects receiving Federal 
financial assistance, the provisions of Secs. 24.102, 24.103, 24.104, 
and 24.105 apply to the greatest extent practicable under State law. 
(See Sec. 24.4(a).)

[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989; 58 FR 26072, Apr. 
30, 1993]



Sec. 24.102  Basic acquisition policies.

    (a) Expeditious acquisition. The Agency shall make every reasonable 
effort to acquire the real property expeditiously by negotiation.
    (b) Notice to owner. As soon as feasible, the owner shall be 
notified of the Agency's interest in acquiring the real property and the 
basic protections, including the agency's obligation to secure an 
appraisal, provided to the owner by law and this part. (See also 
Sec. 24.203.)
    (c) Appraisal, waiver thereof, and invitation to owner. (1) Before 
the initiation of negotiations the real property to be acquired shall be 
appraised, except as provided in Sec. 24.102(c)(2), and the owner, or 
the owner's designated representative, shall be given an opportunity to 
accompany the appraiser during the appraiser's inspection of the 
property.
    (2) An appraisal is not required if the owner is donating the 
property and releases the Agency from this obligation, or the Agency 
determines that an appraisal is unnecessary because the valuation 
problem is uncomplicated and the fair market value is estimated at 
$2,500 or less, based on a review of available data.
    (d) Establishment and offer of just compensation. Before the 
initiation of negotiations, the Agency shall establish an amount which 
it believes is just compensation for the real property. The amount shall 
not be less than the approved appraisal of the fair market value of the 
property, taking into account the value of allowable damages or benefits 
to any remaining property. (See also Sec. 24.104.) Promptly thereafter, 
the Agency shall make a written offer to the owner to acquire the 
property for the full amount believed to be just compensation.
    (e) Summary statement. Along with the initial written purchase 
offer, the owner shall be given a written statement of the basis for the 
offer of just compensation, which shall include:
    (1) A statement of the amount offered as just compensation. In the 
case of a partial acquisition, the compensation for the real property to 
be acquired and the compensation for damages, if any, to the remaining 
real property shall be separately stated.
    (2) A description and location identification of the real property 
and the interest in the real property to be acquired.
    (3) An identification of the buildings, structures, and other 
improvements (including removable building equipment and trade fixtures) 
which are considered to be part of the real property for which the offer 
of just compensation is made. Where appropriate, the statement shall 
identify any separately held ownership interest in the property, e.g., a 
tenant-owned improvement, and indicate that such interest is not covered 
by the offer.
    (f) Basic negotiation procedures. The Agency shall make reasonable 
efforts to contact the owner or the owner's representative and discuss 
its offer to purchase the property, including the basis for the offer of 
just compensation; and, explain its acquisition policies and procedures, 
including its payment of incidental expenses in accordance with 
Sec. 24.106. The owner shall be

[[Page 246]]

given reasonable opportunity to consider the offer and present material 
which the owner believes is relevant to determining the value of the 
property and to suggest modification in the proposed terms and 
conditions of the purchase. The Agency shall consider the owner's 
presentation.
    (g) Updating offer of just compensation. If the information 
presented by the owner, or a material change in the character or 
condition of the property, indicates the need for new appraisal 
information, or if a significant delay has occurred since the time of 
the appraisal(s) of the property, the Agency shall have the appraisal(s) 
updated or obtain a new appraisal(s). If the latest appraisal 
information indicates that a change in the purchase offer is warranted, 
the Agency shall promptly reestablish just compensation and offer that 
amount to the owner in writing.
    (h) Coercive action. The Agency shall not advance the time of 
condemnation, or defer negotiations or condemnation or the deposit of 
funds with the court, or take any other coercive action in order to 
induce an agreement on the price to be paid for the property.
    (i) Administrative settlement. The purchase price for the property 
may exceed the amount offered as just compensation when reasonable 
efforts to negotiate an agreement at that amount have failed and an 
authorized Agency official approves such administrative settlement as 
being reasonable, prudent, and in the public interest. When Federal 
funds pay for or participate in acquisition costs, a written 
justification shall be prepared which indicates that available 
information (e.g., appraisals, recent court awards, estimated trial 
costs, or valuation problems) supports such a settlement.
    (j) Payment before taking possession. Before requiring the owner to 
surrender possession of the real property, the Agency shall pay the 
agreed purchase price to the owner, or in the case of a condemnation, 
deposit with the court, for the benefit of the owner, an amount not less 
than the Agency's approved appraisal of the fair market value of such 
property, or the court award of compensation in the condemnation 
proceeding for the property. In exceptional circumstances, with the 
prior approval of the owner, the Agency may obtain a right-of-entry for 
construction purposes before making payment available to an owner.
    (k) Uneconomic remnant. If the acquisition of only a portion of a 
property would leave the owner with an uneconomic remnant, the Agency 
shall offer to acquire the uneconomic remnant along with the portion of 
the property needed for the project. (See Sec. 24.2(w).)
    (l) Inverse condemnation. If the Agency intends to acquire any 
interest in real property by exercise of the power of eminent domain, it 
shall institute formal condemnation proceedings and not intentionally 
make it necessary for the owner to institute legal proceedings to prove 
the fact of the taking of the real property.
    (m) Fair rental. If the Agency permits a former owner or tenant to 
occupy the real property after acquisition for a short term or a period 
subject to termination by the Agency on short notice, the rent shall not 
exceed the fair market rent for such occupancy.



Sec. 24.103  Criteria for appraisals.

    (a) Standards of appraisal. The format and level of documentation 
for an appraisal depend on the complexity of the appraisal problem. The 
Agency shall develop minimum standards for appraisals consistent with 
established and commonly accepted appraisal practice for those 
acquisitions which, by virtue of their low value or simplicity, do not 
require the in-depth analysis and presentation necessary in a detailed 
appraisal. A detailed appraisal shall be prepared for all other 
acquisitions. A detailed appraisal shall reflect nationally recognized 
appraisal standards, including, to the extent appropriate, the Uniform 
Appraisal Standards for Federal Land Acquisition. An appraisal must 
contain sufficient documentation, including valuation data and the 
appraiser's analysis of that data, to support his or her opinion of 
value. At a minimum, a detailed appraisal shall contain the following 
items:
    (1) The purpose and/or the function of the appraisal, a definition 
of the estate being appraised, and a statement of the assumptions and 
limiting conditions affecting the appraisal.

[[Page 247]]

    (2) An adequate description of the physical characteristics of the 
property being appraised (and, in the case of a partial acquisition, an 
adequate description of the remaining property), a statement of the 
known and observed encumbrances, if any, title information, location, 
zoning, present use, an analysis of highest and best use, and at least a 
5-year sales history of the property.
    (3) All relevant and reliable approaches to value consistent with 
commonly accepted professional appraisal practices. When sufficient 
market sales data are available to reliably support the fair market 
value for the specific appraisal problem encountered, the Agency, at its 
discretion, may require only the market approach. If more than one 
approach is utilized, there shall be an analysis and reconciliation of 
approaches to value that are sufficient to support the appraiser's 
opinion of value.
    (4) A description of comparable sales, including a description of 
all relevant physical, legal, and economic factors such as parties to 
the transaction, source and method of financing, and verification by a 
party involved in the transaction.
    (5) A statement of the value of the real property to be acquired 
and, for a partial acquisition, a statement of the value of the damages 
and benefits, if any, to the remaining real property, where appropriate.
    (6) The effective date of valuation, date of appraisal, signature, 
and certification of the appraiser.
    (b) Influence of the project on just compensation. To the extent 
permitted by applicable law, the appraiser shall disregard any decrease 
or increase in the fair market value of the real property caused by the 
project for which the property is to be acquired, or by the likelihood 
that the property would be acquired for the project, other than that due 
to physical deterioration within the reasonable control of the owner.
    (c) Owner retention of improvements. If the owner of a real property 
improvement is permitted to retain it for removal from the project site, 
the amount to be offered for the interest in the real property to be 
acquired shall be not less than the difference between the amount 
determined to be just compensation for the owner's entire interest in 
the real property and the salvage value (defined at Sec. 24.2(s)) of the 
retained improvement.
    (d) Qualifications of appraisers. (1) The Agency shall establish 
criteria for determining the minimum qualifications of appraisers. 
Appraiser qualifications shall be consistent with the level of 
difficulty of the appraisal assignment. The Agency shall review the 
experience, education, training, and other qualifications of appraisers, 
including review appraisers, and utilize only those determined to be 
qualified.
    (2) If the appraisal assignment requires the preparation of a 
detailed appraisal pursuant to Sec. 24.103(a), and the Agency uses a 
contract (fee) appraiser to perform the appraisal, such appraiser shall 
be certified in accordance with title XI of the Financial Institutions 
Reform, Recovery, and Enforcement Act of 1989 (FIRREA) (12 U.S.C. 3331 
et seq).
    (e) Conflict of interest. No appraiser or review appraiser shall 
have any interest, direct or indirect, in the real property being 
appraised for the Agency that would in any way conflict with the 
preparation or review of the appraisal. Compensation for making an 
appraisal shall not be based on the amount of the valuation. No 
appraiser shall act as a negotiator for real property which that person 
has appraised, except that the Agency may permit the same person to both 
appraise and negotiate an acquisition where the value of the acquisition 
is $2,500, or less.

[54 FR 8928, Mar. 2, 1989, as amended at 57 FR 33266, July 27, 1992; 57 
FR 53295, Nov. 9, 1992]



Sec. 24.104  Review of appraisals.

    The Agency shall have an appraisal review process and, at a minimum:
    (a) A qualified reviewing appraiser shall examine all appraisals to 
assure that they meet applicable appraisal requirements and shall, prior 
to acceptance, seek necessary corrections or revisions.
    (b) If the reviewing appraiser is unable to approve or recommend 
approval of an appraisal as an adequate basis for the establishment of 
the offer of just compensation, and it is determined

[[Page 248]]

that it is not practical to obtain an additional appraisal, the 
reviewing appraiser may develop appraisal documentation in accordance 
with Sec. 24.103 to support an approved or recommended value.
    (c) The review appraiser's certification of the recommended or 
approved value of the property shall be set forth in a signed statement 
which identifies the appraisal reports reviewed and explains the basis 
for such recommendation or approval. Any damages or benefits to any 
remaining property shall also be identified in the statement.



Sec. 24.105  Acquisition of tenant-owned improvements.

    (a) Acquisition of improvements. When acquiring any interest in real 
property, the Agency shall offer to acquire at least an equal interest 
in all buildings, structures, or other improvements located upon the 
real property to be acquired, which it requires to be removed or which 
it determines will be adversely affected by the use to which such real 
property will be put. This shall include any improvement of a tenant-
owner who has the right or obligation to remove the improvement at the 
expiration of the lease term.
    (b) Improvements considered to be real property. Any building, 
structure, or other improvement, which would be considered to be real 
property if owned by the owner of the real property on which it is 
located, shall be considered to be real property for purposes of this 
subpart.
    (c) Appraisal and establishment of just compensation for tenant-
owned improvements. Just compensation for a tenant-owned improvement is 
the amount which the improvement contributes to the fair market value of 
the whole property or its salvage value, whichever is greater. (Salvage 
value is defined at Sec. 24.2(s).)
    (d) Special conditions. No payment shall be made to a tenant-owner 
for any real property improvement unless:
    (1) The tenant-owner, in consideration for the payment, assigns, 
transfers, and releases to the Agency all of the tenant-owner's right, 
title, and interest in the improvement; and
    (2) The owner of the real property on which the improvement is 
located disclaims all interest in the improvement; and
    (3) The payment does not result in the duplication of any 
compensation otherwise authorized by law.
    (e) Alternative compensation. Nothing in this subpart shall be 
construed to deprive the tenant-owner of any right to reject payment 
under this subpart and to obtain payment for such property interests in 
accordance with other applicable law.

[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989]



Sec. 24.106  Expenses incidental to transfer of title to the Agency.

    (a) The owner of the real property shall be reimbursed for all 
reasonable expenses the owner necessarily incurred for:
    (1) Recording fees, transfer taxes, documentary stamps, evidence of 
title, boundary surveys, legal descriptions of the real property, and 
similar expenses incidental to conveying the real property to the 
Agency. However, the Agency is not required to pay costs solely required 
to perfect the owner's title to the real property; and
    (2) Penalty costs and other charges for prepayment of any 
preexisting recorded mortgage entered into in good faith encumbering the 
real property; and
    (3) The pro rata portion of any prepaid real property taxes which 
are allocable to the period after the Agency obtains title to the 
property or effective possession of it, whichever is earlier.
    (b) Whenever feasible, the Agency shall pay these costs directly so 
that the owner will not have to pay such costs and then seek 
reimbursement from the Agency.



Sec. 24.107  Certain litigation expenses.

    The owner of the real property shall be reimbursed for any 
reasonable expenses, including reasonable attorney, appraisal, and 
engineering fees, which the owner actually incurred because of a 
condemnation proceeding, if:
    (a) The final judgment of the court is that the Agency cannot 
acquire the real property by condemnation; or

[[Page 249]]

    (b) The condemnation proceeding is abandoned by the Agency other 
than under an agreed-upon settlement; or
    (c) The court having jurisdiction renders a judgment in favor of the 
owner in an inverse condemnation proceeding or the Agency effects a 
settlement of such proceeding.



Sec. 24.108  Donations.

    An owner whose real property is being acquired may, after being 
fully informed by the Agency of the right to receive just compensation 
for such property, donate such property or any part thereof, any 
interest therein, or any compensation paid therefor, to the Agency as 
such owner shall determine. The Agency is responsible for assuring that 
an appraisal of the real property is obtained unless the owner releases 
the Agency from such obligation, except as provided in 
Sec. 24.102(c)(2).



               Subpart C--General Relocation Requirements



Sec. 24.201  Purpose.

    This subpart prescribes general requirements governing the provision 
of relocation payments and other relocation assistance in this part.



Sec. 24.202  Applicability.

    These requirements apply to the relocation of any displaced person 
as defined at Sec. 24.2(g).



Sec. 24.203  Relocation notices.

    (a) General information notice. As soon as feasible, a person 
scheduled to be displaced shall be furnished with a general written 
description of the displacing agency's relocation program which does at 
least the following:
    (1) Informs the person that he or she may be displaced for the 
project and generally describes the relocation payment(s) for which the 
person may be eligible, the basic conditions of eligibility, and the 
procedures for obtaining the payment(s).
    (2) Informs the person that he or she will be given reasonable 
relocation advisory services, including referrals to replacement 
properties, help in filing payment claims, and other necessary 
assistance to help the person successfully relocate.
    (3) Informs the person that he or she will not be required to move 
without at least 90 days' advance written notice (see paragraph (c) of 
this section), and informs any person to be displaced from a dwelling 
that he or she cannot be required to move permanently unless at least 
one comparable replacement dwelling has been made available.
    (4) Describes the person's right to appeal the Agency's 
determination as to a person's application for assistance for which a 
person may be eligible under this part.
    (b) Notice of relocation eligibility. Eligibility for relocation 
assistance shall begin on the date of initiation of negotiations 
(defined in Sec. 24.2(k)) for the occupied property. When this occurs, 
the Agency shall promptly notify all occupants in writing of their 
eligibility for applicable relocation assistance.
    (c) Ninety-day notice--(1) General. No lawful occupant shall be 
required to move unless he or she has received at least 90 days advance 
written notice of the earliest date by which he or she may be required 
to move.
    (2) Timing of notice. The displacing agency may issue the notice 90 
days before it expects the person to be displaced or earlier.
    (3) Content of notice. The 90-day notice shall either state a 
specific date as the earliest date by which the occupant may be required 
to move, or state that the occupant will receive a further notice 
indicating, at least 30 days in advance, the specific date by which he 
or she must move. If the 90-day notice is issued before a comparable 
replacement dwelling is made available, the notice must state clearly 
that the occupant will not have to move earlier than 90 days after such 
a dwelling is made available. (See Sec. 24.204(a).)
    (4) Urgent need. In unusual circumstances, an occupant may be 
required to vacate the property on less than 90 days advance written 
notice if the displacing agency determines that a 90-day notice is 
impracticable, such as when the person's continued occupancy of the 
property would constitute

[[Page 250]]

a substantial danger to health or safety. A copy of the Agency's 
determination shall be included in the applicable case file.



Sec. 24.204  Availability of comparable replacement dwelling before displacement.

    (a) General. No person to be displaced shall be required to move 
from his or her dwelling unless at least one comparable replacement 
dwelling (defined at Sec. 24.2(d)) has been made available to the 
person. Where possible, three or more comparable replacement dwellings 
shall be made available. A comparable replacement dwelling will be 
considered to have been made available to a person, if:
    (1) The person is informed of its location; and
    (2) The person has sufficient time to negotiate and enter into a 
purchase agreement or lease for the property; and
    (3) Subject to reasonable safeguards, the person is assured of 
receiving the relocation assistance and acquisition payment to which the 
person is entitled in sufficient time to complete the purchase or lease 
of the property.
    (b) Circumstances permitting waiver. The Federal agency funding the 
project may grant a waiver of the policy in paragraph (a) of this 
section in any case where it is demonstrated that a person must move 
because of:
    (1) A major disaster as defined in section 102(c) of the Disaster 
Relief Act of 1974 (42 U.S.C. 5121); or
    (2) A presidentially declared national emergency; or
    (3) Another emergency which requires immediate vacation of the real 
property, such as when continued occupancy of the displacement dwelling 
constitutes a substantial danger to the health or safety of the 
occupants or the public.
    (c) Basic conditions of emergency move. Whenever a person is 
required to relocate for a temporary period because of an emergency as 
described in paragraph (b) of this section, the Agency shall:
    (1) Take whatever steps are necessary to assure that the person is 
temporarily relocated to a decent, safe, and sanitary dwelling; and
    (2) Pay the actual reasonable out-of-pocket moving expenses and any 
reasonable increase in rent and utility costs incurred in connection 
with the temporary relocation; and
    (3) Make available to the displaced person as soon as feasible, at 
least one comparable replacement dwelling. (For purposes of filing a 
claim and meeting the eligibility requirements for a relocation payment, 
the date of displacement is the date the person moves from the 
temporarily-occupied dwelling.)



Sec. 24.205  Relocation planning, advisory services, and coordination.

    (a) Relocation planning. During the early stages of development, 
Federal and Federal-aid programs or projects shall be planned in such a 
manner that the problems associated with the displacement of 
individuals, families, businesses, farms, and nonprofit organizations 
are recognized and solutions are developed to minimize the adverse 
impacts of displacement. Such planning, where appropriate, shall precede 
any action by an Agency which will cause displacement, and should be 
scoped to the complexity and nature of the anticipated displacing 
activity including an evaluation of program resources available to carry 
out timely and orderly relocations. Planning may involve a relocation 
survey or study which may include the following:
    (1) An estimate of the number of households to be displaced 
including information such as owner/tenant status, estimated value and 
rental rates of properties to be acquired, family characteristics, and 
special consideration of the impacts on minorities, the elderly, large 
families, and the handicapped when applicable.
    (2) An estimate of the number of comparable replacement dwellings in 
the area (including price ranges and rental rates) that are expected to 
be available to fulfill the needs of those households displaced. When an 
adequate supply of comparable housing is not expected to be available, 
consideration of housing of last resort actions should be instituted.
    (3) An estimate of the number, type and size of the businesses, 
farms, and nonprofit organizations to be displaced

[[Page 251]]

and the approximate number of employees that may be affected.
    (4) Consideration of any special relocation advisory services that 
may be necessary from the displacing agency and other cooperating 
agencies.
    (b) Loans for planning and preliminary expenses. In the event that 
an Agency elects to consider using the duplicative provision in section 
215 of the Uniform Act which permits the use of project funds for loans 
to cover planning and other preliminary expenses for the development of 
additional housing, the lead agency will establish criteria and 
procedures for such use upon the request of the Federal agency funding 
the program or project.
    (c) Relocation assistance advisory services--(1) General. The Agency 
shall carry out a relocation assistance advisory program which satisfies 
the requirements of title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d et seq.), title VIII of the Civil Rights Act of 1968 (42 U.S.C. 
3601 et seq.), and Executive Order 11063 (27 FR 11527, November 24, 
1962), and offers the services described in paragraph (c)(2) of this 
section. If the Agency determines that a person occupying property 
adjacent to the real property acquired for the project is caused 
substantial economic injury because of such acquisition, it may offer 
advisory services to such person.
    (2) Services to be provided. The advisory program shall include such 
measures, facilities, and services as may be necessary or appropriate in 
order to:
    (i) Determine the relocation needs and preferences of each person to 
be displaced and explain the relocation payments and other assistance 
for which the person may be eligible, the related eligibility 
requirements, and the procedures for obtaining such assistance. This 
shall include a personal interview with each person.
    (ii) Provide current and continuing information on the availability, 
purchase prices, and rental costs of comparable replacement dwellings, 
and explain that the person cannot be required to move unless at least 
one comparable replacement dwelling is made available as set forth in 
Sec. 24.204(a).
    (A) As soon as feasible, the Agency shall inform the person in 
writing of the specific comparable replacement dwelling and the price or 
rent used for establishing the upper limit of the replacement housing 
payment (see Sec. 24.403 (a) and (b)) and the basis for the 
determination, so that the person is aware of the maximum replacement 
housing payment for which he or she may qualify.
    (B) Where feasible, housing shall be inspected prior to being made 
available to assure that it meets applicable standards. (See Sec. 24.2 
(d) and (f).) If such an inspection is not made, the person to be 
displaced shall be notified that a replacement housing payment may not 
be made unless the replacement dwelling is subsequently inspected and 
determined to be decent, safe, and sanitary.
    (C) Whenever possible, minority persons shall be given reasonable 
opportunities to relocate to decent, safe, and sanitary replacement 
dwellings, not located in an area of minority concentration, that are 
within their financial means. This policy, however, does not require an 
Agency to provide a person a larger payment than is necessary to enable 
a person to relocate to a comparable replacement dwelling.
    (D) All persons, especially the elderly and handicapped, shall be 
offered transportation to inspect housing to which they are referred.
    (iii) Provide current and continuing information on the 
availability, purchase prices, and rental costs of suitable commercial 
and farm properties and locations. Assist any person displaced from a 
business or farm operation to obtain and become established in a 
suitable replacement location.
    (iv) Minimize hardships to persons in adjusting to relocation by 
providing counseling, advice as to other sources of assistance that may 
be available, and such other help as may be appropriate.
    (v) Supply persons to be displaced with appropriate information 
concerning Federal and State housing programs, disaster loan and other 
programs administered by the Small Business Administration, and other 
Federal and State programs offering assistance to displaced persons, and 
technical help to persons applying for such assistance.

[[Page 252]]

    (vi) Any person who occupies property acquired by an Agency, when 
such occupancy began subsequent to the acquisition of the property, and 
the occupancy is permitted by a short term rental agreement or an 
agreement subject to termination when the property is needed for a 
program or project, shall be eligible for advisory services, as 
determined by the Agency.
    (d) Coordination of relocation activities. Relocation activities 
shall be coordinated with project work and other displacement-causing 
activities to ensure that, to the extent feasible, persons displaced 
receive consistent treatment and the duplication of functions is 
minimized. (Also see Sec. 24.6, subpart A.)



Sec. 24.206  Eviction for cause.

    Eviction for cause must conform to applicable state and local law. 
Any person who occupies the real property and is not in unlawful 
occupancy on the date of the initiation of negotiations, is presumed to 
be entitled to relocation payments and other assistance set forth in 
this part unless the Agency determines that:
    (a) The person received an eviction notice prior to the initiation 
of negotiations and, as a result of that notice is later evicted; or
    (b) The person is evicted after the initiation of negotiations for 
serious or repeated violation of material terms of the lease or 
occupancy agreement; and
    (c) In either case the eviction was not undertaken for the purpose 
of evading the obligation to make available the payments and other 
assistance set forth in this part.

For purposes of determining eligibility for relocation payments, the 
date of displacement is the date the person moves, or if later, the date 
a comparable replacement dwelling is made available. This section 
applies only to persons who would otherwise have been displaced by the 
project.



Sec. 24.207  General requirements--claims for relocation payments.

    (a) Documentation. Any claim for a relocation payment shall be 
supported by such documentation as may be reasonably required to support 
expenses incurred, such as bills, certified prices, appraisals, or other 
evidence of such expenses. A displaced person must be provided 
reasonable assistance necessary to complete and file any required claim 
for payment.
    (b) Expeditious payments. The Agency shall review claims in an 
expeditious manner. The claimant shall be promptly notified as to any 
additional documentation that is required to support the claim. Payment 
for a claim shall be made as soon as feasible following receipt of 
sufficient documentation to support the claim.
    (c) Advance payments. If a person demonstrates the need for an 
advance relocation payment in order to avoid or reduce a hardship, the 
Agency shall issue the payment, subject to such safeguards as are 
appropriate to ensure that the objective of the payment is accomplished.
    (d) Time for filing--(1) All claims for a relocation payment shall 
be filed with the Agency within 18 months after:
    (i) For tenants, the date of displacement;
    (ii) For owners, the date of displacement or the date of the final 
payment for the acquisition of the rea1 property, whichever is later.
    (2) This time period shall be waived by the Agency for good cause.
    (e) Multiple occupants of one displacement dwelling. If two or more 
occupants of the displacement dwelling move to separate replacement 
dwellings, each occupant is entitled to a reasonable prorated share, as 
determined by the Agency, of any relocation payments that would have 
been made if the occupants moved together to a comparable replacement 
dwelling. However, if the Agency determines that two or more occupants 
maintained separate households within the same dwelling, such occupants 
have separate entitlements to relocation payments.
    (f) Deductions from relocation payments. An Agency shall deduct the 
amount of any advance relocation payment from the relocation payment(s) 
to which a displaced person is otherwise entitled. Similarly, a Federal 
agency shall, and a State agency may, deduct from relocation payments 
any rent that the displaced person owes the Agency; provided that no 
deduction shall be made if it would prevent the

[[Page 253]]

displaced person from obtaining a comparable replacement dwelling as 
required by Sec. 24.204. The Agency shall not withhold any part of a 
relocation payment to a displaced person to satisfy an obligation to any 
other creditor.
    (g) Notice of denial of claim. If the Agency disapproves all or part 
of a payment claimed or refuses to consider the claim on its merits 
because of untimely filing or other grounds, it shall promptly notify 
the claimant in writing of its determination, the basis for its 
determination, and the procedures for appealing that determination.



Sec. 24.208  Relocation payments not considered as income.

    No relocation payment received by a displaced person under this part 
shall be considered as income for the purpose of the Internal Revenue 
Code of 1954, which has been redesignated as the Internal Revenue Code 
of 1986 or for the purpose of determining the eligibility or the extent 
of eligibility of any person for assistance under the Social Security 
Act or any other Federal law, except for any Federal law providing low-
income housing assistance.



           Subpart D--Payments for Moving and Related Expenses



Sec. 24.301  Payment for actual reasonable moving and related expenses--residential moves.

    Any displaced owner-occupant or tenant of a dwelling who qualifies 
as a displaced person (defined at Sec. 24.2(g)) is entitled to payment 
of his or her actual moving and related expenses, as the Agency 
determines to be reasonable and necessary, including expenses for:
    (a) Transportation of the displaced person and personal property. 
Transportation costs for a distance beyond 50 miles are not eligible, 
unless the Agency determines that relocation beyond 50 miles is 
justified.
    (b) Packing, crating, unpacking, and uncrating of the personal 
property.
    (c) Disconnecting, dismantling, removing, reassembling, and 
reinstalling relocated household appliances, and other personal 
property.
    (d) Storage of the personal property for a period not to exceed l2 
months, unless the Agency determines that a longer period is necessary.
    (e) Insurance for the replacement value of the property in 
connection with the move and necessary storage.
    (f) The replacement value of property lost, stolen, or damaged in 
the process of moving (not through the fault or negligence of the 
displaced person, his or her agent, or employee) where insurance 
covering such loss, theft, or damage is not reasonably available.
    (g) Other moving-related expenses that are not listed as ineligible 
under Sec. 24.305, as the Agency determines to be reasonable and 
necessary.



Sec. 24.302  Fixed payment for moving expenses--residential moves.

    Any person displaced from a dwelling or a seasonal residence is 
entitled to receive an expense and dislocation allowance as an 
alternative to a payment for actual moving and related expenses under 
Sec. 24.301. This allowance shall be determined according to the 
applicable schedule approved by the Federal Highway Administration. This 
includes a provision that the expense and dislocation allowance to a 
person with minimal personal possessions who is in occupancy of a 
dormitory style room shared by two or more other unrelated persons or a 
person whose residential move is performed by an agency at no cost to 
the person shall be limited to $50.



Sec. 24.303  Payment for actual reasonable moving and related expenses--nonresidential moves.

    (a) Eligible costs. Any business or farm operation which qualifies 
as a displaced person (defined at Sec. 24.2(g)) is entitled to payment 
for such actual moving and related expenses, as the Agency determines to 
be reasonable and necessary, including expenses for:
    (1) Transportation of personal property. Transportation costs for a 
distance beyond 50 miles are not eligible, unless the Agency determines 
that relocation beyond 50 miles is justified.
    (2) Packing, crating, unpacking, and uncrating of the personal 
property.
    (3) Disconnecting, dismantling, removing, reassembling, and 
reinstalling relocated machinery, equipment, and

[[Page 254]]

other personal property, including substitute personal property 
described at Sec. 24.303(a)(12). This includes connection to utilities 
available nearby. It also includes modifications to the personal 
property necessary to adapt it to the replacement structure, the 
replacement site, or the utilities at the replacement site, and 
modifications necessary to adapt the utilities at the replacement site 
to the personal property. (Expenses for providing utilities from the 
right-of-way to the building or improvement are excluded.)
    (4) Storage of the personal property for a period not to exceed 12 
months, unless the Agency determines that a longer period is necessary.
    (5) Insurance for the replacement value of the personal property in 
connection with the move and necessary storage.
    (6) Any license, permit, or certification required of the displaced 
person at the replacement location. However, the payment may be based on 
the remaining useful life of the existing license, permit, or 
certification.
    (7) The replacement value of property lost, stolen, or damaged in 
the process of moving (not through the fault or negligence of the 
displaced person, his or her agent, or employee) where insurance 
covering such loss, theft, or damage is not reasonably available.
    (8) Professional services necessary for:
    (i) Planning the move of the personal property,
    (ii) Moving the personal property, and
    (iii) Installing the relocated personal property at the replacement 
location.
    (9) Relettering signs and replacing stationery on hand at the time 
of displacement that are made obsolete as a result of the move.
    (10) Actual direct loss of tangible personal property incurred as a 
result of moving or discontinuing the business or farm operation. The 
payment shall consist of the lesser of:
    (i) The fair market value of the item for continued use at the 
displacement site, less the proceeds from its sale. (To be eligible for 
payment, the claimant must make a good faith effort to sell the personal 
property, unless the Agency determines that such effort is not 
necessary. When payment for property loss is claimed for goods held for 
sale, the fair market value shall be based on the cost of the goods to 
the business, not the potential selling price.); or
    (ii) The estimated cost of moving the item, but with no allowance 
for storage. (If the business or farm operation is discontinued, the 
estimated cost shall be based on a moving distance of 50 miles.)
    (11) The reasonable cost incurred in attempting to sell an item that 
is not to be relocated.
    (12) Purchase of substitute personal property. If an item of 
personal property which is used as part of a business or farm operation 
is not moved but is promptly replaced with a substitute item that 
performs a comparable function at the replacement site, the displaced 
person is entitled to payment of the lesser of:
    (i) The cost of the substitute item, including installation costs at 
the replacement site, minus any proceeds from the sale or trade-in of 
the replaced item; or
    (ii) The estimated cost of moving and reinstalling the replaced item 
but with no allowance for storage. At the Agency's discretion, the 
estimated cost for a low cost or uncomplicated move may be based on a 
single bid or estimate.
    (13) Searching for a replacement location. A displaced business or 
farm operation is entitled to reimbursement for actual expenses, not to 
exceed $1,000, as the Agency determines to be reasonable, which are 
incurred in searching for a replacement location, including:
    (i) Transportation.
    (ii) Meals and lodging away from home.
    (iii) Time spent searching, based on reasonable salary or earnings.
    (iv) Fees paid to a real estate agent or broker to locate a 
replacement site, exclusive of any fees or commissions related to the 
purchase of such site.
    (14) Other moving-related expenses that are not listed as ineligible 
under Sec. 24.305, as the Agency determines to be reasonable and 
necessary.
    (b) Notification and inspection. The following requirements apply to 
payments under this section:

[[Page 255]]

    (1) The Agency shall inform the displaced person, in writing, of the 
requirements of paragraphs (b) (2) and (3) of this section as soon as 
possible after the initiation of negotiations. This information may be 
included in the relocation information provided to the displaced person 
as set forth in Sec. 24.203.
    (2) The displaced person must provide the Agency reasonable advance 
written notice of the approximate date of the start of the move or 
disposition of the personal property and a list of the items to be 
moved. However, the Agency may waive this notice requirement after 
documenting its file accordingly.
    (3) The displaced person must permit the Agency to make reasonable 
and timely inspections of the personal property at both the displacement 
and replacement sites and to monitor the move.
    (c) Self moves. If the displaced person elects to take full 
responsibility for the move of the business or farm operation, the 
Agency may make a payment for the person's moving expenses in an amount 
not to exceed the lower of two acceptable bids or estimates obtained by 
the Agency or prepared by qualified staff. At the Agency's discretion, a 
payment for a low cost or uncomplicated move may be based on a single 
bid or estimate.
    (d) Transfer of ownership. Upon request and in accordance with 
applicable law, the claimant shall transfer to the Agency ownership of 
any personal property that has not been moved, sold, or traded in.
    (e) Advertising signs. The amount of a payment for direct loss of an 
advertising sign which is personal property shall be the lesser of:
    (1) The depreciated reproduction cost of the sign, as determined by 
the Agency, less the proceeds from its sale; or
    (2) The estimated cost of moving the sign, but with no allowance for 
storage.



Sec. 24.304  Reestablishment expenses--nonresidential moves.

    In addition to the payments available under Sec. 24.303 of this 
subpart, a small business, as defined in Sec. 24.2(t), farm or nonprofit 
organization is entitled to receive a payment, not to exceed $10,000, 
for expenses actually incurred in relocating and reestablishing such 
small business, farm or nonprofit organization at a replacement site.
    (a) Eligible expenses. Reestablishment expenses must be reasonable 
and necessary, as determined by the Agency. They include, but are not 
limited to, the following:
    (1) Repairs or improvements to the replacement real property as 
required by Federal, State or local law, code or ordinance.
    (2) Modifications to the replacement property to accommodate the 
business operation or make replacement structures suitable for 
conducting the business.
    (3) Construction and installation costs for exterior signing to 
advertise the business.
    (4) Provision of utilities from right-of-way to improvements on the 
replacement site.
    (5) Redecoration or replacement of soiled or worn surfaces at the 
replacement site, such as paint, panelling, or carpeting.
    (6) Licenses, fees and permits when not paid as part of moving 
expenses.
    (7) Feasibility surveys, soil testing and marketing studies.
    (8) Advertisement of replacement location.
    (9) Professional services in connection with the purchase or lease 
of a replacement site.
    (10) Estimated increased costs of operation during the first 2 years 
at the replacement site for such items as:
    (i) Lease or rental charges,
    (ii) Personal or real property taxes,
    (iii) Insurance premiums, and
    (iv) Utility charges, excluding impact fees.
    (11) Impact fees or one-time assessments for anticipated heavy 
utility usage.
    (12) Other items that the Agency considers essential to the 
reestablishment of the business.
    (b) Ineligible expenses. The following is a nonexclusive listing of 
reestablishment expenditures not considered to be reasonable, necessary, 
or otherwise eligible:
    (1) Purchase of capital assets, such as, office furniture, filing 
cabinets, machinery, or trade fixtures.

[[Page 256]]

    (2) Purchase of manufacturing materials, production supplies, 
product inventory, or other items used in the normal course of the 
business operation.
    (3) Interest on money borrowed to make the move or purchase the 
replacement property.
    (4) Payment to a part-time business in the home which does not 
contribute materially to the household income.

[54 FR 8928, Mar. 2, 1989, as amended at 58 FR 26072, Apr. 30, 1993]



Sec. 24.305  Ineligible moving and related expenses.

    A displaced person is not entitled to payment for:
    (a) The cost of moving any structure or other real property 
improvement in which the displaced person reserved ownership. However, 
this part does not preclude the computation under 
Sec. 24.401(c)(4)(iii); or
    (b) Interest on a loan to cover moving expenses; or
    (c) Loss of goodwill; or
    (d) Loss of profits; or
    (e) Loss of trained employees; or
    (f) Any additional operating expenses of a business or farm 
operation incurred because of operating in a new location except as 
provided in Sec. 24.304(a)(10); or
    (g) Personal injury; or
    (h) Any legal fee or other cost for preparing a claim for a 
relocation payment or for representing the claimant before the Agency; 
or
    (i) Expenses for searching for a replacement dwelling; or
    (j) Physical changes to the real property at the replacement 
location of a business or farm operation except as provided in 
Secs. 24.303(a)(3) and Sec. 24.304(a); or
    (k) Costs for storage of personal property on real property already 
owned or leased by the displaced person.



Sec. 24.306  Fixed payment for moving expenses--nonresidential moves.

    (a) Business. A displaced business may be eligible to choose a fixed 
payment in lieu of the payments for actual moving and related expenses, 
and actual reasonable reestablishment expenses provided by Secs. 24.303 
and 24.304. Such fixed payment, except for payment to a nonprofit 
organization, shall equal the average annual net earnings of the 
business, as computed in accordance with paragraph (e) of this section, 
but not less than $1,000 nor more than $20,000. The displaced business 
is eligible for the payment if the Agency determines that:
    (1) The business owns or rents personal property which must be moved 
in connection with such displacement and for which an expense would be 
incurred in such move; and, the business vacates or relocates from its 
displacement site.
    (2) The business cannot be relocated without a substantial loss of 
its existing patronage (clientele or net earnings). A business is 
assumed to meet this test unless the Agency determines that it will not 
suffer a substantial loss of its existing patronage; and
    (3) The business is not part of a commercial enterprise having more 
than three other entities which are not being acquired by the Agency, 
and which are under the same ownership and engaged in the same or 
similar business activities.
    (4) The business is not operated at a displacement dwelling solely 
for the purpose of renting such dwelling to others.
    (5) The business is not operated at the displacement site solely for 
the purpose of renting the site to others.
    (6) The business contributed materially to the income of the 
displaced person during the 2 taxable years prior to displacement (see 
Sec. 24.2(e)).
    (b) Determining the number of businesses. In determining whether two 
or more displaced legal entities constitute a single business which is 
entitled to only one fixed payment, all pertinent factors shall be 
considered, including the extent to which:
    (1) The same premises and equipment are shared;
    (2) Substantially identical or interrelated business functions are 
carried out and business and financial affairs are commingled;
    (3) The entities are held out to the public, and to those 
customarily dealing with them, as one business; and
    (4) The same person or closely related persons own, control, or 
manage the affairs of the entities.

[[Page 257]]

    (c) Farm operation. A displaced farm operation (defined at 
Sec. 24.2(i)) may choose a fixed payment, in lieu of the payments for 
actual moving and related expenses and actual reasonable reestablishment 
expenses, in an amount equal to its average annual net earnings as 
computed in accordance with paragraph (e) of this section, but not less 
than $1,000 nor more than $20,000. In the case of a partial acquisition 
of land which was a farm operation before the acquisition, the fixed 
payment shall be made only if the Agency determines that:
    (1) The acquisition of part of the land caused the operator to be 
displaced from the farm operation on the remaining land; or
    (2) The partial acquisition caused a substantial change in the 
nature of the farm operation.
    (d) Nonprofit organization. A displaced nonprofit organization may 
choose a fixed payment of $1,000 to $20,000, in lieu of the payments for 
actual moving and related expenses and actual reasonable reestablishment 
expenses, if the Agency determines that it cannot be relocated without a 
substantial loss of existing patronage (membership or clientele). A 
nonprofit organization is assumed to meet this test, unless the Agency 
demonstrates otherwise. Any payment in excess of $1,000 must be 
supported with financial statements for the two 12-month periods prior 
to the acquisition. The amount to be used for the payment is the average 
of 2 years annual gross revenues less administrative expenses. (See 
appendix A of this part).
    (e) Average annual net earnings of a business or farm operation. The 
average annual net earnings of a business or farm operation are one-half 
of its net earnings before Federal, State, and local income taxes during 
the 2 taxable years immediately prior to the taxable year in which it 
was displaced. If the business or farm was not in operation for the full 
2 taxable years prior to displacement, net earnings shall be based on 
the actual period of operation at the displacement site during the 2 
taxable years prior to displacement, projected to an annual rate. 
Average annual net earnings may be based upon a different period of time 
when the Agency determines it to be more equitable. Net earnings include 
any compensation obtained from the business or farm operation by its 
owner, the owner's spouse, and dependents. The displaced person shall 
furnish the Agency proof of net earnings through income tax returns, 
certified financial statements, or other reasonable evidence which the 
Agency determines is satisfactory.



Sec. 24.307  Discretionary utility relocation payments.

    (a) Whenever a program or project undertaken by a displacing agency 
causes the relocation of a utility facility (see Secs. 24.2 (aa) and 
(bb)) and the relocation of the facility creates extraordinary expenses 
for its owner, the displacing agency may, at its option, make a 
relocation payment to the owner for all or part of such expenses, if the 
following criteria are met:
    (1) The utility facility legally occupies State or local government 
property, or property over which the State or local government has an 
easement or right-of-way; and
    (2) The utility facility's right of occupancy thereon is pursuant to 
State law or local ordinance specifically authorizing such use, or where 
such use and occupancy has been granted through a franchise, use and 
occupancy permit, or other similar agreement; and
    (3) Relocation of the utility facility is required by and is 
incidental to the primary purpose of the project or program undertaken 
by the displacing agency; and
    (4) There is no Federal law, other than the Uniform Act, which 
clearly establishes a policy for the payment of utility moving costs 
that is applicable to the displacing agency's program or project; and
    (5) State or local government reimbursement for utility moving costs 
or payment of such costs by the displacing agency is in accordance with 
State law.
    (b) For the purposes of this section, the term extraordinary 
expenses means those expenses which, in the opinion of the displacing 
agency, are not routine or predictable expenses relating to the 
utility's occupancy of rights-of-way,

[[Page 258]]

and are not ordinarily budgeted as operating expenses, unless the owner 
of the utility facility has explicitly and knowingly agreed to bear such 
expenses as a condition for use of the property, or has voluntarily 
agreed to be responsible for such expenses.
    (c) A relocation payment to a utility facility owner for moving 
costs under this section may not exceed the cost to functionally restore 
the service disrupted by the federally assisted program or project, less 
any increase in value of the new facility and salvage value of the old 
facility. The displacing agency and the utility facility owner shall 
reach prior agreement on the nature of the utility relocation work to be 
accomplished, the eligibility of the work for reimbursement, the 
responsibilities for financing and accomplishing the work, and the 
method of accumulating costs and making payment. (See appendix A, of 
this part, Sec. 24.307.)



                 Subpart E--Replacement Housing Payments



Sec. 24.401  Replacement housing payment for 180-day homeowner-occupants.

    (a) Eligibility. A displaced person is eligible for the replacement 
housing payment for a 180-day homeowner-occupant if the person:
    (1) Has actually owned and occupied the displacement dwelling for 
not less than 180 days immediately prior to the initiation of 
negotiations; and
    (2) Purchases and occupies a decent, safe, and sanitary replacement 
dwelling within one year after the later of the following dates (except 
that the Agency may extend such one year period for good cause):
    (i) The date the person receives final payment for the displacement 
dwelling or, in the case of condemnation, the date the full amount of 
the estimate of just compensation is deposited in the court, or
    (ii) The date the displacing agency's obligation under Sec. 24.204 
is met.
    (b) Amount of payment. The replacement housing payment for an 
eligible 180-day homeowner-occupant may not exceed $22,500. (See also 
Sec. 24.404.) The payment under this subpart is limited to the amount 
necessary to relocate to a comparable replacement dwelling within one 
year from the date the displaced homeowner-occupant is paid for the 
displacement dwelling, or the date a comparable replacement dwelling is 
made available to such person, whichever is later. The payment shall be 
the sum of:
    (1) The amount by which the cost of a replacement dwelling exceeds 
the acquisition cost of the displacement dwelling, as determined in 
accordance with paragraph (c) of this section; and
    (2) The increased interest costs and other debt service costs which 
are incurred in connection with the mortgage(s) on the replacement 
dwelling, as determined in accordance with paragraph (d) of this 
section; and
    (3) The reasonable expenses incidental to the purchase of the 
replacement dwelling, as determined in accordance with paragraph (e) of 
this section.
    (c) Price differential--(1) Basic computation. The price 
differential to be paid under paragraph (b)(1) of this section is the 
amount which must be added to the acquisition cost of the displacement 
dwelling to provide a total amount equal to the lesser of:
    (i) The reasonable cost of a comparable replacement dwelling as 
determined in accordance with Sec. 24.403(a); or
    (ii) The purchase price of the decent, safe, and sanitary 
replacement dwelling actually purchased and occupied by the displaced 
person.
    (2) Mixed-use and multifamily properties. If the displacement 
dwelling was part of a property that contained another dwelling unit 
and/or space used for non-residential purposes, and/or is located on a 
lot larger than typical for residential purposes, only that portion of 
the acquisition payment which is actually attributable to the 
displacement dwelling shall be considered its acquisition cost when 
computing the price differential.
    (3) Insurance proceeds. To the extent necessary to avoid duplicate 
compensation, the amount of any insurance proceeds received by a person 
in connection with a loss to the displacement dwelling due to a 
catastrophic occurrence (fire, flood, etc.) shall be included in the 
acquisition cost of the displacement dwelling when computing the price 
differential. (Also see Sec. 24.3.)

[[Page 259]]

    (4) Owner retention of displacement dwelling. If the owner retains 
ownership of his or her dwelling, moves it from the displacement site, 
and reoccupies it on a replacement site, the purchase price of the 
replacement dwelling shall be the sum of:
    (i) The cost of moving and restoring the dwelling to a condition 
comparable to that prior to the move; and
    (ii) The cost of making the unit a decent, safe, and sanitary 
replacement dwelling (defined at Sec. 24.2(f)); and
    (iii) The current fair market value for residential use of the 
replacement site (see appendix A of this part, Sec. 24.401(c)(4)(iii)), 
unless the claimant rented the displacement site and there is a 
reasonable opportunity for the claimant to rent a suitable replacement 
site; and
    (iv) The retention value of the dwelling, if such retention value is 
reflected in the ``acquisition cost'' used when computing the 
replacement housing payment.
    (d) Increased mortgage interest costs. The displacing agency shall 
determine the factors to be used in computing the amount to be paid to a 
displaced person under paragraph (b)(2) of this section. The payment for 
increased mortgage interest cost shall be the amount which will reduce 
the mortgage balance on a new mortgage to an amount which could be 
amortized with the same monthly payment for principal and interest as 
that for the mortgage(s) on the displacement dwelling. In addition, 
payments shall include other debt service costs, if not paid as 
incidental costs, and shall be based only on bona fide mortgages that 
were valid liens on the displacement dwelling for at least 180 days 
prior to the initiation of negotiations. Paragraphs (d) (1) through (5) 
of this section shall apply to the computation of the increased mortgage 
interest costs payment, which payment shall be contingent upon a 
mortgage being placed on the replacement dwelling.
    (1) The payment shall be based on the unpaid mortgage balance(s) on 
the displacement dwelling; however, in the event the person obtains a 
smaller mortgage than the mortgage balance(s) computed in the buydown 
determination the payment will be prorated and reduced accordingly. (See 
appendix A of this part.) In the case of a home equity loan the unpaid 
balance shall be that balance which existed 180 days prior to the 
initiation of negotiations or the balance on the date of acquisition, 
whichever is less.
    (2) The payment shall be based on the remaining term of the 
mortgage(s) on the displacement dwelling or the term of the new 
mortgage, whichever is shorter.
    (3) The interest rate on the new mortgage used in determining the 
amount of the payment shall not exceed the prevailing fixed interest 
rate for conventional mortgages currently charged by mortgage lending 
institutions in the area in which the replacement dwelling is located.
    (4) Purchaser's points and loan origination or assumption fees, but 
not seller's points, shall be paid to the extent:
    (i) They are not paid as incidental expenses;
    (ii) They do not exceed rates normal to similar real estate 
transactions in the area;
    (iii) The Agency determines them to be necessary; and
    (iv) The computation of such points and fees shall be based on the 
unpaid mortgage balance on the displacement dwelling, less the amount 
determined for the reduction of such mortgage balance under this 
section.
    (5) The displaced person shall be advised of the approximate amount 
of this payment and the conditions that must be met to receive the 
payment as soon as the facts relative to the person's current 
mortgage(s) are known and the payment shall be made available at or near 
the time of closing on the replacement dwelling in order to reduce the 
new mortgage as intended.
    (e) Incidental expenses. The incidental expenses to be paid under 
paragraph (b)(3) of this section or Sec. 24.402(c)(1) are those 
necessary and reasonable costs actually incurred by the displaced person 
incident to the purchase of a replacement dwelling, and customarily paid 
by the buyer, including:
    (1) Legal, closing, and related costs, including those for title 
search, preparing conveyance instruments, notary fees, preparing surveys 
and plats, and recording fees.

[[Page 260]]

    (2) Lender, FHA, or VA application and appraisal fees.
    (3) Loan origination or assumption fees that do not represent 
prepaid interest.
    (4) Certification of structural soundness and termite inspection 
when required.
    (5) Credit report.
    (6) Owner's and mortgagee's evidence of title, e.g., title 
insurance, not to exceed the costs for a comparable replacement 
dwelling.
    (7) Escrow agent's fee.
    (8) State revenue or documentary stamps, sales or transfer taxes 
(not to exceed the costs for a comparable replacement dwelling).
    (9) Such other costs as the Agency determines to be incidental to 
the purchase.
    (f) Rental assistance payment for 180-day homeowner. A 180-day 
homeowner-occupant, who could be eligible for a replacement housing 
payment under paragraph (a) of this section but elects to rent a 
replacement dwelling, is eligible for a rental assistance payment not to 
exceed $5,250, computed and disbursed in accordance with Sec. 24.402(b).



Sec. 24.402  Replacement housing payment for 90-day occupants.

    (a) Eligibility. A tenant or owner-occupant displaced from a 
dwelling is entitled to a payment not to exceed $5,250 for rental 
assistance, as computed in accordance with paragraph (b) of this 
section, or downpayment assistance, as computed in accordance with 
paragraph (c) of this section, if such displaced person:
    (1) Has actually and lawfully occupied the displacement dwelling for 
at least 90 days immediately prior to the initiation of negotiations; 
and
    (2) Has rented, or purchased, and occupied a decent, safe, and 
sanitary replacement dwelling within 1 year (unless the Agency extends 
this period for good cause) after:
    (i) For a tenant, the date he or she moves from the displacement 
dwelling, or
    (ii) For an owner-occupant, the later of:
    (A) The date he or she receives final payment for the displacement 
dwelling, or in the case of condemnation, the date the full amount of 
the estimate of just compensation is deposited with the court; or
    (B) The date he or she moves from the displacement dwelling.
    (b) Rental assistance payment--(1) Amount of payment. An eligible 
displaced person who rents a replacement dwelling is entitled to a 
payment not to exceed $5,250 for rental assistance. (See also 
Sec. 24.404.) Such payment shall be 42 times the amount obtained by 
subtracting the base monthly rental for the displacement dwelling from 
the lesser of:
    (i) The monthly rent and estimated average monthly cost of utilities 
for a comparable replacement dwelling; or
    (ii) The monthly rent and estimated average monthly cost of 
utilities for the decent, safe, and sanitary replacement dwelling 
actually occupied by the displaced person.
    (2) Base monthly rental for displacement dwelling. The base monthly 
rental for the displacement dwelling is the lesser of:
    (i) The average monthly cost for rent and utilities at the 
displacement dwelling for a reasonable period prior to displacement, as 
determined by the Agency. (For an owner-occupant, use the fair market 
rent for the displacement dwelling. For a tenant who paid little or no 
rent for the displacement dwelling, use the fair market rent, unless its 
use would result in a hardship because of the person's income or other 
circumstances); or
    (ii) Thirty (30) percent of the person's average gross household 
income. (If the person refuses to provide appropriate evidence of income 
or is a dependent, the base monthly rental shall be established solely 
on the criteria in paragraph (b)(2)(i) of this section. A full time 
student or resident of an institution may be assumed to be a dependent, 
unless the person demonstrates otherwise.); or
    (iii) The total of the amounts designated for shelter and utilities 
if receiving a welfare assistance payment from a program that designates 
the amounts for shelter and utilities.
    (3) Manner of disbursement. A rental assistance payment may, at the 
Agency's discretion, be disbursed in either a lump sum or in 
installments. However,

[[Page 261]]

except as limited by Sec. 24.403(f), the full amount vests immediately, 
whether or not there is any later change in the person's income or rent, 
or in the condition or location of the person's housing.
    (c) Downpayment assistance payment--(1) Amount of payment. An 
eligible displaced person who purchases a replacement dwelling is 
entitled to a downpayment assistance payment in the amount the person 
would receive under paragraph (b) of this section if the person rented a 
comparable replacement dwelling. At the discretion of the Agency, a 
downpayment assistance payment may be increased to any amount not to 
exceed $5,250. However, the payment to a displaced homeowner shall not 
exceed the amount the owner would receive under Sec. 24.401(b) if he or 
she met the 180-day occupancy requirement. An Agency's discretion to 
provide the maximum payment shall be exercised in a uniform and 
consistent manner, so that eligible displaced persons in like 
circumstances are treated equally. A displaced person eligible to 
receive a payment as a 180-day owner-occupant under Sec. 24.401(a) is 
not eligible for this payment. (See also appendix A of this part, 
Sec. 24.402(c).)
    (2) Application of payment. The full amount of the replacement 
housing payment for downpayment assistance must be applied to the 
purchase price of the replacement dwelling and related incidental 
expenses.



Sec. 24.403  Additional rules governing replacement housing payments.

    (a) Determining cost of comparable replacement dwelling. The upper 
limit of a replacement housing payment shall be based on the cost of a 
comparable replacement dwelling (defined at Sec. 24.2(d)).
    (1) If available, at least three comparable replacement dwellings 
shall be examined and the payment computed on the basis of the dwelling 
most nearly representative of, and equal to, or better than, the 
displacement dwelling. An adjustment shall be made to the asking price 
of any dwelling, to the extent justified by local market data (see also 
Sec. 24.205(a)(2) and appendix A of this part). An obviously overpriced 
dwelling may be ignored.
    (2) If the site of the comparable replacement dwelling lacks a major 
exterior attribute of the displacement dwelling site, (e.g., the site is 
significantly smaller or does not contain a swimming pool), the value of 
such attribute shall be subtracted from the acquisition cost of the 
displacement dwelling for purposes of computing the payment.
    (3) If the acquisition of a portion of a typical residential 
property causes the displacement of the owner from the dwelling and the 
remainder is a buildable residential lot, the Agency may offer to 
purchase the entire property. If the owner refuses to sell the remainder 
to the Agency, the fair market value of the remainder may be added to 
the acquisition cost of the displacement dwelling for purposes of 
computing the replacement housing payment.
    (4) To the extent feasible, comparable replacement dwellings shall 
be selected from the neighborhood in which the displacement dwelling was 
located or, if that is not possible, in nearby or similar neighborhoods 
where housing costs are generally the same or higher.
    (b) Inspection of replacement dwelling. Before making a replacement 
housing payment or releasing a payment from escrow, the Agency or its 
designated representative shall inspect the replacement dwelling and 
determine whether it is a decent, safe, and sanitary dwelling as defined 
at Sec. 24.2(f).
    (c) Purchase of replacement dwelling. A displaced person is 
considered to have met the requirement to purchase a replacement 
dwelling, if the person:
    (1) Purchases a dwelling; or
    (2) Purchases and rehabilitates a substandard dwelling; or
    (3) Relocates a dwelling which he or she owns or purchases; or
    (4) Constructs a dwelling on a site he or she owns or purchases; or
    (5) Contracts for the purchase or construction of a dwelling on a 
site provided by a builder or on a site the person owns or purchases.
    (6) Currently owns a previously purchased dwelling and site, 
valuation of which shall be on the basis of current fair market value.
    (d) Occupancy requirements for displacement or replacement dwelling. 
No person shall be denied eligibility for a

[[Page 262]]

replacement housing payment solely because the person is unable to meet 
the occupancy requirements set forth in these regulations for a reason 
beyond his or her control, including:
    (1) A disaster, an emergency, or an imminent threat to the public 
health or welfare, as determined by the President, the Federal agency 
funding the project, or the displacing agency; or
    (2) Another reason, such as a delay in the construction of the 
replacement dwelling, military reserve duty, or hospital stay, as 
determined by the Agency.
    (e) Conversion of payment. A displaced person who initially rents a 
replacement dwelling and receives a rental assistance payment under 
Sec. 24.402(b) is eligible to receive a payment under Sec. 24.401 or 
Sec. 24.402(c) if he or she meets the eligibility criteria for such 
payments, including purchase and occupancy within the prescribed 1-year 
period. Any portion of the rental assistance payment that has been 
disbursed shall be deducted from the payment computed under Sec. 24.401 
or Sec. 24.402(c).
    (f) Payment after death. A replacement housing payment is personal 
to the displaced person and upon his or her death the undisbursed 
portion of any such payment shall not be paid to the heirs or assigns, 
except that:
    (1) The amount attributable to the displaced person's period of 
actual occupancy of the replacement housing shall be paid.
    (2) The full payment shall be disbursed in any case in which a 
member of a displaced family dies and the other family member(s) 
continue to occupy a decent, safe, and sanitary replacement dwelling.
    (3) Any portion of a replacement housing payment necessary to 
satisfy the legal obligation of an estate in connection with the 
selection of a replacement dwelling by or on behalf of a deceased person 
shall be disbursed to the estate.



Sec. 24.404  Replacement housing of last resort.

    (a) Determination to provide replacement housing of last resort. 
Whenever a program or project cannot proceed on a timely basis because 
comparable replacement dwellings are not available within the monetary 
limits for owners or tenants, as specified in Sec. 24.401 or 
Sec. 24.402, as appropriate, the Agency shall provide additional or 
alternative assistance under the provisions of this subpart. Any 
decision to provide last resort housing assistance must be adequately 
justified either:
    (1) On a case-by-case basis, for good cause, which means that 
appropriate consideration has been given to:
    (i) The availability of comparable replacement housing in the 
program or project area; and
    (ii) The resources available to provide comparable replacement 
housing; and
    (iii) The individual circumstances of the displaced person; or
    (2) By a determination that:
    (i) There is little, if any, comparable replacement housing 
available to displaced persons within an entire program or project area; 
and, therefore, last resort housing assistance is necessary for the area 
as a whole; and
    (ii) A program or project cannot be advanced to completion in a 
timely manner without last resort housing assistance; and
    (iii) The method selected for providing last resort housing 
assistance is cost effective, considering all elements which contribute 
to total program or project costs. (Will project delay justify waiting 
for less expensive comparable replacement housing to become available?)
    (b) Basic rights of persons to be displaced. Notwithstanding any 
provision of this subpart, no person shall be required to move from a 
displacement dwelling unless comparable replacement housing is available 
to such person. No person may be deprived of any rights the person may 
have under the Uniform Act or this part. The Agency shall not require 
any displaced person to accept a dwelling provided by the Agency under 
these procedures (unless the Agency and the displaced person have 
entered into a contract to do so) in lieu of any acquisition payment or 
any relocation payment for which the person may otherwise be eligible.
    (c) Methods of providing comparable replacement housing. Agencies 
shall have broad latitude in implementing this subpart, but 
implementation shall be

[[Page 263]]

for reasonable cost, on a case-by-case basis unless an exception to 
case-by-case analysis is justified for an entire project.
    (1) The methods of providing replacement housing of last resort 
include, but are not limited to:
    (i) A replacement housing payment in excess of the limits set forth 
in Sec. 24.401 or Sec. 24.402. A rental assistance subsidy under this 
section may be provided in installments or in a lump sum at the Agency's 
discretion.
    (ii) Rehabilitation of and/or additions to an existing replacement 
dwelling.
    (iii) The construction of a new replacement dwelling.
    (iv) The provision of a direct loan, which requires regular 
amortization or deferred repayment. The loan may be unsecured or secured 
by the real property. The loan may bear interest or be interest-free.
    (v) The relocation and, if necessary, rehabilitation of a dwelling.
    (vi) The purchase of land and/or a replacement dwelling by the 
displacing agency and subsequent sale or lease to, or exchange with a 
displaced person.
    (vii) The removal of barriers to the handicapped.
    (viii) The change in status of the displaced person with his or her 
concurrence from tenant to homeowner when it is more cost effective to 
do so, as in cases where a downpayment may be less expensive than a last 
resort rental assistance payment.
    (2) Under special circumstances, consistent with the definition of a 
comparable replacement dwelling, modified methods of providing 
replacement housing of last resort permit consideration of replacement 
housing based on space and physical characteristics different from those 
in the displacement dwelling (see appendix A, of this part, 
Sec. 24.404), including upgraded, but smaller replacement housing that 
is decent, safe, and sanitary and adequate to accommodate individuals or 
families displaced from marginal or substandard housing with probable 
functional obsolesence. In no event, however, shall a displaced person 
be required to move into a dwelling that is not functionally equivalent 
in accordance with Sec. 24.2(d)(2).
    (3) The agency shall provide assistance under this subpart to a 
displaced person who is not eligible to receive a replacement housing 
payment under Secs. 24.401 and 24.402 because of failure to meet the 
length of occupancy requirement when comparable replacement rental 
housing is not available at rental rates within the person's financial 
means, which is 30 percent of the person's gross monthly household 
income. Such assistance shall cover a period of 42 months.



                         Subpart F--Mobile Homes



Sec. 24.501  Applicability.

    This subpart describes the requirements governing the provision of 
relocation payments to a person displaced from a mobile home and/or 
mobile home site who meets the basic eligibility requirements of this 
part. Except as modified by this subpart, such a displaced person is 
entitled to a moving expense payment in accordance with subpart D and a 
replacement housing payment in accordance with subpart E to the same 
extent and subject to the same requirements as persons displaced from 
conventional dwellings.



Sec. 24.502  Moving and related expenses--mobile homes.

    (a) A homeowner-occupant displaced from a mobile home or mobile 
homesite is entitled to a payment for the cost of moving his or her 
mobile home on an actual cost basis in accordance with Sec. 24.301. A 
non-occupant owner of a rented mobile home is eligible for actual cost 
reimbursement under Sec. 24.303. However, if the mobile home is not 
acquired, but the homeowner-occupant obtains a replacement housing 
payment under one of the circumstances described at Sec. 24.503(a)(3), 
the owner is not eligible for payment for moving the mobile home, but 
may be eligible for a payment for moving personal property from the 
mobile home.
    (b) The following rules apply to payments for actual moving expenses 
under Sec. 24.301:
    (1) A displaced mobile homeowner, who moves the mobile home to a 
replacement site, is eligible for the reasonable cost of disassembling, 
moving,

[[Page 264]]

and reassembling any attached appurtenances, such as porches, decks, 
skirting, and awnings, which were not acquired, anchoring of the unit, 
and utility ``hook-up'' charges.
    (2) If a mobile home requires repairs and/or modifications so that 
it can be moved and/or made decent, safe, and sanitary, and the Agency 
determines that it would be economically feasible to incur the 
additional expense, the reasonable cost of such repairs and/or 
modifications is reimbursable.
    (3) A nonreturnable mobile home park entrance fee is reimbursable to 
the extent it does not exceed the fee at a comparable mobile home park, 
if the person is displaced from a mobile home park or the Agency 
determines that payment of the fee is necessary to effect relocation.



Sec. 24.503  Replacement housing payment for 180-day mobile homeowner-occupants.

    (a) A displaced owner-occupant of a mobile home is entitled to a 
replacement housing payment, not to exceed $22,500, under Sec. 24.401 
if:
    (1) The person both owned the displacement mobile home and occupied 
it on the displacement site for at least 180 days immediately prior to 
the initiation of negotiations;
    (2) The person meets the other basic eligibility requirements at 
Sec. 24.401(a); and
    (3) The Agency acquires the mobile home and/or mobile home site, or 
the mobile home is not acquired by the Agency but the owner is displaced 
from the mobile home because the Agency determines that the mobile home:
    (i) Is not and cannot economically be made decent, safe, and 
sanitary; or
    (ii) Cannot be relocated without substantial damage or unreasonable 
cost; or
    (iii) Cannot be relocated because there is no available comparable 
replacement site; or
    (iv) Cannot be relocated because it does not meet mobile home park 
entrance requirements.
    (b) If the mobile home is not acquired, and the Agency determines 
that it is not practical to relocate it, the acquisition cost of the 
displacement dwelling used when computing the price differential amount, 
described at Sec. 24.401(c), shall include the salvage value or trade-in 
value of the mobile home, whichever is higher.



Sec. 24.504  Replacement housing payment for 90-day mobile home occupants.

    A displaced tenant or owner-occupant of a mobile home is eligible 
for a replacement housing payment, not to exceed $5,250, under 
Sec. 24.402 if:
    (a) The person actually occupied the displacement mobile home on the 
displacement site for at least 90 days immediately prior to the 
initiation of negotiations;
    (b) The person meets the other basic eligibility requirements at 
Sec. 24.402(a); and
    (c) The Agency acquires the mobile home and/or mobile home site, or 
the mobile home is not acquired by the Agency but the owner or tenant is 
displaced from the mobile home because of one of the circumstances 
described at Sec. 24.503(a)(3).



Sec. 24.505  Additional rules governing relocation payments to mobile home occupants.

    (a) Replacement housing payment based on dwelling and site. Both the 
mobile home and mobile home site must be considered when computing a 
replacement housing payment. For example, a displaced mobile home 
occupant may have owned the displacement mobile home and rented the site 
or may have rented the displacement mobile home and owned the site. 
Also, a person may elect to purchase a replacement mobile home and rent 
a replacement site, or rent a replacement mobile home and purchase a 
replacement site. In such cases, the total replacement housing payment 
shall consist of a payment for a dwelling and a payment for a site, each 
computed under the applicable section in subpart E. However, the total 
replacement housing payment under subpart E shall not exceed the maximum 
payment (either $22,500 or $5,250) permitted under the section that 
governs the computation for the dwelling. (See also Sec. 24.403(b).)
    (b) Cost of comparable replacement dwelling--(1) If a comparable 
replacement mobile home is not available, the replacement housing 
payment shall be

[[Page 265]]

computed on the basis of the reasonable cost of a conventional 
comparable replacement dwelling.
    (2) If the Agency determines that it would be practical to relocate 
the mobile home, but the owner-occupant elects not to do so, the Agency 
may determine that, for purposes of computing the price differential 
under Sec. 24.401(c), the cost of a comparable replacement dwelling is 
the sum of:
    (i) The value of the mobile home,
    (ii) The cost of any necessary repairs or modifications, and
    (iii) The estimated cost of moving the mobile home to a replacement 
site.
    (c) Initiation of negotiations. If the mobile home is not actually 
acquired, but the occupant is considered displaced under this part, the 
``initiation of negotiations'' is the initiation of negotiations to 
acquire the land, or, if the land is not acquired, the written 
notification that he or she is a displaced person under this part.
    (d) Person moves mobile home. If the owner is reimbursed for the 
cost of moving the mobile home under this part, he or she is not 
eligible to receive a replacement housing payment to assist in 
purchasing or renting a replacement mobile home. The person may, 
however, be eligible for assistance in purchasing or renting a 
replacement site.
    (e) Partial acquisition of mobile home park. The acquisition of a 
portion of a mobile home park property may leave a remaining part of the 
property that is not adequate to continue the operation of the park. If 
the Agency determines that a mobile home located in the remaining part 
of the property must be moved as a direct result of the project, the 
owner and any tenant shall be considered a displaced person who is 
entitled to relocation payments and other assistance under this part.



                        Subpart G--Certification



Sec. 24.601  Purpose.

    This subpart permits a State agency to fulfill its responsibilities 
under the Uniform Act by certifying that it shall operate in accordance 
with State laws and regulations which shall accomplish the purpose and 
effect of the Uniform Act, in lieu of providing the assurances required 
by Sec. 24.4 of this part.

[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989]



Sec. 24.602  Certification application.

    An agency wishing to proceed on the basis of a certification may 
request an application for certification from the lead agency [Director, 
Office of Right-of-Way, HRW-1, Federal Highway Administration, 400 
Seventh St. SW., Washington, DC 20590]. The completed application for 
certification must be approved by the governor of the State, or the 
governor's designee, and must be coordinated with the Federal funding 
agency, in accordance with application procedures.

[58 FR 26072, April 30, 1993]



Sec. 24.603  Monitoring and corrective action.

    (a) The Federal lead agency shall, in coordination with other 
Federal agencies, monitor from time to time State agency implementation 
of programs or projects conducted under the certification process and 
the State agency shall make available any information required for this 
purpose.
    (b) A Federal agency that has accepted a State agency's 
certification pursuant to this subpart should withhold its approval of 
any of its Federal financial assistance to any project, program, or 
activity, in progress or to be undertaken by such State agency, if it is 
found by the Federal agency that the State agency has failed to comply 
with the applicable State law and regulations implementing those 
provisions of the Uniform Act for which the State agency would otherwise 
have provided the assurances required by sections 210 and 305 of the 
Uniform Act. The Federal agency may withhold Federal financial 
assistance if the certifying State agency fails to comply with the 
applicable State law and regulations implementing other provisions of 
the Uniform Act. The Federal agency shall notify the lead agency at 
least 15 days prior to any decision to withhold funds under this 
subpart. The lead agency may consult with the Federal agency upon 
receiving such notification. The

[[Page 266]]

lead agency will also inform other Federal agencies which have accepted 
certification under this subpart from the same State agency of the 
pending action.
    (c) A Federal agency may, after consultation with the lead agency, 
and notice to and consultation with the governor, or his or her 
designee, rescind any previous approval provided under this subpart if 
the certifying State agency fails to comply with its certification or 
with applicable State law and regulations. The Federal agency shall 
initiate consultation with the lead agency at least 30 days prior to any 
decision to rescind approval of a certification under this subpart. The 
lead agency will also inform other Federal agencies which have accepted 
a certification under this subpart from the same State agency, and will 
take whatever other action that may be appropriate.
    (d) The lead agency may require periodic information or data from 
affected Federal or State agencies.

[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989; 58 FR 26072, Apr. 
30, 1993]

              Appendix A to Part 24--Additional Information

    This appendix provides additional information to explain the intent 
of certain provisions of this part.

                           Subpart A--General

                        Section 24.2  Definitions

    Section 24.2(d)(2)   Definition of comparable replacement dwelling. 
The requirement in Sec. 24.2(d)(2) that a comparable replacement 
dwelling be ``functionally equivalent'' to the displacement dwelling 
means that it must perform the same function, provide the same utility, 
and be capable of contributing to a comparable style of living as the 
displacement dwelling. While it need not possess every feature of the 
displacement dwelling, the principal features must be present.
    For example, if the displacement dwelling contains a pantry and a 
similar dwelling is not available, a replacement dwelling with ample 
kitchen cupboards may be acceptable. Insulated and heated space in a 
garage might prove an adequate substitute for basement workshop space. A 
dining area may substitute for a separate dining room. Under some 
circumstances, attic space could substitute for basement space for 
storage purposes, and vice versa.
    Only in unusual circumstances may a comparable replacement dwelling 
contain fewer rooms or, consequentially, less living space than the 
displacement dwelling. Such may be the case when a decent, safe, and 
sanitary replacement dwelling (which by definition is ``adequate to 
accommodate'' the displaced person) may be found to be ``functionally 
equivalent'' to a larger but very run-down substandard displacement 
dwelling.
    Section 24.2(d)(7) requires that a comparable replacement dwelling 
for a person who is not receiving assistance under any government 
housing program before displacement must be currently available on the 
private market without any subsidy under a government housing program.
    A public housing unit may qualify as a comparable replacement 
dwelling only for a person displaced from a public housing unit; a 
privately-owned dwelling with a housing program subsidy tied to the unit 
may qualify as a comparable replacement dwelling only for a person 
displaced from a similarly subsidized unit or public housing; a housing 
program subsidy to a person (not tied to the building), such as a HUD 
Section 8 Existing Housing Program Certificate or a Housing Voucher, may 
be reflected in an offer of a comparable replacement dwelling to a 
person receiving a similar subsidy or occupying a privately-owned 
subsidized unit or public housing unit before displacement.
    However, nothing in this part prohibits an Agency from offering, or 
precludes a person from accepting, assistance under a government housing 
program, even if the person did not receive similar assistance before 
displacement. However, the Agency is obligated to inform the person of 
his or her options under this part. (If a person accepts assistance 
under a government housing program, the rental assistance payment under 
Sec. 24.402 would be computed on the basis of the person's actual out-
of-pocket cost for the replacement housing.)
    Section 24.2(g)(2)  Persons not displaced. Section 24.2(g)(2)(iv) 
recognizes that there are circumstances where the acquisition of real 
property takes place without the intent or necessity that an occupant of 
the property be permanently displaced. Because such occupants are not 
considered ``displaced persons'' under this part, great care must be 
exercised to ensure that they are treated fairly and equitably. For 
example, if the tenant-occupant of a dwelling will not be displaced, but 
is required to relocate temporarily in connection with the project, the 
temporarily-occupied housing must be decent, safe, and sanitary and the 
tenant must be reimbursed for all reasonable out-of-pocket expenses 
incurred in connection with the temporary relocation, including moving 
expenses and increased housing costs during the temporary relocation.

[[Page 267]]

    It is also noted that any person who disagrees with the Agency's 
determination that he or she is not a displaced person under this part 
may file an appeal in accordance with Sec. 24.10.
    Section 24.2(k)  Initiation of negotiations. This section of the 
part; provides a special definition for acquisitions and displacements 
under Public Law 96-510 or Superfund. These activities differ under 
Superfund in that relocation may precede acquisition, the reverse of the 
normal sequence. Superfund is a program designed to clean up hazardous 
waste sites. When such a site is discovered, it may be necessary, in 
certain limited circumstances, to alert the public to the danger and to 
the advisability of moving immediately. If a decision is made later to 
permanently relocate such persons, those who had moved earlier would no 
longer be on site when a formal, written offer to acquire the property 
was made and thus would lose their eligibility for a replacement housing 
payment. In order to prevent this unfair outcome, we have provided a 
definition which is based on the public health advisory or announcement 
of permanent relocation.

                Section 24.3  No Duplication of Payments

    This section prohibits an Agency from making a payment to a person 
under these regulations that would duplicate another payment the person 
receives under Federal, State, or local law. The Agency is not required 
to conduct an exhaustive search for such other payments; it is only 
required to avoid creating a duplication based on the Agency's knowledge 
at the time a payment under these regulations is computed.

                 Section 24.9  Recordkeeping and Reports

    Section 24.9(c)  Reports. This paragraph allows Federal agencies to 
require the submission of a report on activities under the Uniform Act 
no more frequently than once every three years. The report, if required, 
will cover activities during the Federal fiscal year immediately prior 
to the submission date. In order to minimize the administrative burden 
on Agencies implementing this part, a basic report form (see appendix B 
of this part) has been developed which, with only minor modifications, 
would be used in all Federal and federally-assisted programs or 
projects.

                  Subpart B--Real Property Acquisition

        Section 24.101  Applicability of Acquisition Requirements

    Section 24.101(b)  Less-than-full-fee interest in real property. 
This provision provides a benchmark beyond which the requirements of the 
subpart clearly apply to leases. However, the Agency may apply the 
regulations to any less-than-full-fee acquisition which is short of 50 
years but which in its judgment should be covered.

               Section 24.102  Basic Acquisition Policies

    Section 24.102(d)  Establishment of offer of just compensation. The 
initial offer to the property owner may not be less than the amount of 
the Agency's approved appraisal, but may exceed that amount if the 
Agency determines that a greater amount reflects just compensation for 
the property.
    Section 24.102(f)  Basic negotiation procedures. It is intended that 
an offer to an owner be adequately presented, and that the owner be 
properly informed. Personal, face-to-face contact should take place, if 
feasible, but this section is not intended to require such contact in 
all cases.
    Section 24.102(i)  Administrative settlement. This section provides 
guidance on administrative settlement as an alternative to judicial 
resolution of a difference of opinion on the value of a property, in 
order to avoid unnecessary litigation and congestion in the courts.
    All relevant facts and circumstances should be considered by an 
Agency official delegated this authority. Appraisers, including 
reviewing appraisers, must not be pressured to adjust their estimate of 
value for the purpose of justifying such settlements. Such action would 
invalidate the appraisal process.
    Section 24.102(j)  Payment before taking possession. It is intended 
that a right-of-entry for construction purposes be obtained only in the 
exceptional case, such as an emergency project, when there is no time to 
make an appraisal and purchase offer and the property owner is agreeable 
to the process.
    Section 24.102(m)  Fair rental. Section 301(6) of the Uniform Act 
limits what an Agency may charge when a former owner or previous 
occupant of a property is permitted to rent the property for a short 
term or when occupancy is subject to termination by the Agency on short 
notice. Such rent may not exceed ``the fair rental value * * * to a 
short-term occupier.'' Generally, the Agency's right to terminate 
occupancy on short notice (whether or not the renter also has that 
right) supports the establishment of a lesser rental than might be found 
in a longer, fixed-term situation.

                 Section 24.103  Criteria for Appraisals

    Section 24.103(a)  Standards of appraisal. In paragraph (a)(3) of 
this section, it is intended that all relevant and reliable approaches 
to value be utilized. However, where an Agency determines that the 
market approach will be adequate by itself because of the type of 
property being appraised and the availability of sales data, it may 
limit the appraisal assignment to the market approach.

[[Page 268]]

    Section 24.103(b)  Influence of the project on just compensation. As 
used in this section, the term ``project'' is intended to mean an 
undertaking which is planned, designed, and intended to operate as a 
unit.
    Because of the public knowledge of the proposed project, property 
values may be affected. A property owner should not be penalized because 
of a decrease in value caused by the proposed project nor reap a 
windfall at public expense because of increased value created by the 
proposed project.
    Section 24.103(e)  Conflict of interest. The overall objective is to 
minimize the risk of fraud and mismanagement and to promote public 
confidence in Federal and federally-assisted land acquisition practices. 
Recognizing that the costs may outweigh the benefits in some 
circumstances, Sec. 24.103(e) provides that the same person may both 
appraise and negotiate an acquisition, if the value is $2,500 or less. 
However, it should be noted that all appraisals must be reviewed in 
accordance with Sec. 24.104. This includes appraisals of real property 
valued at $2,500, or less.

                  Section 24.104  Review of appraisals

    This section recognizes that Agencies differ in the authority 
delegated to the review appraiser. In some cases the reviewer 
establishes the amount of the offer to the owner and in other cases the 
reviewer makes a recommendation which is acted on at a higher level. It 
is also within Agency discretion to decide whether a second review is 
needed if the first review appraiser establishes a value different from 
that in the appraisal report or reports on a property.
    Before acceptance of an appraisal, the review appraiser must 
determine that the appraiser's documentation, including valuation data 
and the analyses of that data, demonstrates the soundness of the 
appraiser's opinion of value. The qualifications of the review appraiser 
and the level of explanation of the basis for the reviewer's recommended 
or approved value depend on the complexity of the appraisal problem. For 
a low value property requiring an uncomplicated valuation process, the 
reviewer's approval, endorsing the appraiser's report, may satisfy the 
requirement for the reviewer's statement.

 Section 24.106  Expenses Incidental to Transfer of Title to the Agency

    Generally, the Agency is able to pay such incidental costs directly 
and, where feasible, is required to do so. In order to prevent the 
property owner from making unnecessary out-of-pocket expenditures and to 
avoid duplication of expenses, the property owner should be informed 
early in the acquisition process of the Agency's intent to make such 
arrangements. In addition, it is emphasized that such expenses must be 
reasonable and necessary.

               Subpart C--General Relocation Requirements

 Section 24.204  Availability of Comparable Replacement Dwelling Before 
                              Displacement

    Section 24.204 (a)  General. This provision requires that no one may 
be required to move from a dwelling without one comparable replacement 
dwelling having been made available. In addition, Sec. 24.204(a) 
requires that, ``Where possible, three or more comparable replacement 
dwellings shall be made available.'' Thus the basic standard for the 
number of referrals required under this section is three. Only in 
situations where three comparable replacement dwellings are not 
available (e.g., when the local housing market does not contain three 
comparable dwellings) may the Agency make fewer than three referrals.

         Section 24.205  Relocation Assistance Advisory Services

    Section 24.205(c)(2)(ii)(C) is intended to emphasize that if the 
comparable replacement dwellings are located in areas of minority 
concentration, minority persons should, if possible, also be given 
opportunities to relocate to replacement dwellings not located in such 
areas.

  Section 24.207  General Requirements--Claims for Relocation Payments

    Section 24.207(a) allows an Agency to make a payment for low cost or 
uncomplicated moves without additional documentation, as long as the 
payment is limited to the amount of the lowest acceptable bid or 
estimate, as provided for in Sec. 24.303(c).

           Subpart D--Payment for Moving and Related Expenses

 Section 24.306  Fixed Payment for Moving Expenses--Nonresidential Moves

    Section 24.306(d)  Nonprofit organizations. Gross revenues may 
include membership fees, class fees, cash donations, tithes, receipts 
from sales or other forms of fund collection that enables the non-profit 
organization to operate. Administrative expenses are those for 
administrative support such as rent, utilities, salaries, advertising 
and other like items as well as fundraising expenses. Operating expenses 
for carrying out the purposes of the non-profit organization are not 
included in administrative expenses. The monetary receipts and expense 
amounts may be verified with certified financial statements or financial 
documents required by public agencies.

[[Page 269]]

        Section 24.307  Discretionary Utility Relocation Payments

    Section 24.307(c) describes the issues which must be agreed to 
between the displacing agency and the utility facility owner in 
determining the amount of the relocation payment. To facilitate and aid 
in reaching such agreement, the practices in the Federal Highway 
Administration regulation, 23 CFR part 645, subpart A, Utility 
Relocations, Adjustments and Reimbursement, should be followed.

                 Subpart E--Replacement Housing Payments

   Section 24.401  Replacement Housing Payment for 180-Day Homeowner-
                                Occupants

    Section 24.401(a)(2). The provision for extending eligibility for a 
replacement housing payment beyond the one year period for good cause 
means that an extension may be granted if some event beyond the control 
of the displaced person such as acute or life threatening illness, bad 
weather preventing the completion of construction of a replacement 
dwelling or other like circumstances should cause delays in occupying a 
decent, safe, and sanitary replacement dwelling.
    Section 24.401(c)   Price differential. The provision in 
Sec. 24.401(c)(4)(iii) to use the current fair market value for 
residential use does not mean the Agency must have the property 
appraised. Any reasonable method for arriving at the fair market va1ue 
may be used.
    Section 24.401(d) Increased mortgage interest costs. The provision 
in Sec. 24.401(d) set forth the factors to be used in computing the 
payment that will be required to reduce a person's replacement mortgage 
(added to the downpayment) to an amount which can be amortized at the 
same monthly payment for principal and interest over the same period of 
time as the remaining term on the displacement mortgages. This payment 
is commonly known as the ``buydown.''
    The remaining principal balance, the interest rate, and monthly 
principal and interest payments for the old mortgage as well as the 
interest rate, points and term for the new mortgage must be known to 
compute the increased mortgage interest costs. If the combination of 
interest and points for the new mortgage exceeds the current prevailing 
fixed interest rate and points for conventional mortgages and there is 
no justification for the excessive rate, then the current prevailing 
fixed interest rate and points shall be used in the computations. 
Justification may be the unavailability of the current prevailing rate 
due to the amount of the new mortgage, credit difficulties, or other 
similar reasons.

                           Sample Computation
                        Old Mortgage:
    Remaining Principal Balance..............................    $50,000
    Monthly Payment (principal and interest).................     458.22
    Interest rate (percent)..................................          7
                        New Mortgage:
    Interest rate (percent)..................................         10
    Points...................................................          3
      Term (years)...........................................         15
 

    Remaining term of the old mortgage is determined to be 174 months. 
(Determining, or computing, the actual remaining term is more reliable 
than using the data supplied by the mortgagee). However, if it is 
shorter, use the term of the new mortgage and compute the needed monthly 
payment.
    Amount to be financed to maintain monthly payments of $458.22 at 
10%--$42,010.18

                                                              $50,000.00
                                                              -42,010.18
                                                         ---------------
Increased mortgage interest costs.......................        7,989.82
3 points on $42,010.18..................................        1,260.31
                                                         ---------------
      Total buydown necessary to maintain payments at           9,250.13
       $458.22/month....................................
 

    If the new mortgage actually obtained is less than the computed 
amount for a new mortgage ($42,010.18), the buydown shall be prorated 
accordingly. If the actual mortgage obtained in our example were 
$35,000, the buydown payment would be $7,706.57 ($35,000  by 
$42,010.18 = .8331; $9,250.13  x  .83 = $7,706.57).
    The Agency is obligated to inform the person of the approximate 
amount of this payment and that he or she must obtain a mortgage of at 
least the same amount as the old mortgage and for at least the same term 
in order to receive the full amount of this payment. The displacee is 
also to be advised of the interest rate and points used to calculate the 
payment.

    Section 24.402  Replacement Housing Payment for 90-Day Occupants

    The downpayment assistance provisions in Sec. 24.402(c) are intended 
to limit such assistance to the amount of the computed rental assistance 
payment for a tenant or an eligible homeowner. It does, however, provide 
the latitude for Agency discretion in offering downpayment assistance 
which exceeds the computed rental assistance payment, up to the $5,250 
statutory maximum. This does not mean, however, that such Agency 
discretion

[[Page 270]]

may be exercised in a selective or discriminatory fashion. The 
displacing agency should develop a policy which affords equal treatment 
for persons in like circumstances and this policy should be applied 
uniformly throughout the Agency's programs or projects. It is 
recommended that displacing agencies coordinate with each other to reach 
a consensus on a uniform procedure for the State and/or the local 
jurisdiction.
    For purposes of this section, the term downpayment means the 
downpayment ordinarily required to obtain conventional loan financing 
for the decent, safe, and sanitary dwelling actually purchased and 
occupied. However, if the downpayment actually required of a displaced 
person for the purchase of the replacement dwelling exceeds the amount 
ordinarily required, the amount of the downpayment may be the amount 
which the Agency determines is necessary.

 Section 24.403  Additional Rules Governing Replacement Housing Payments

    Section 24.403(a)(1). The procedure for adjusting the asking price 
of comparable replacement dwellings requires that the agency provide 
advisory assistance to the displaced person concerning negotiations so 
that he or she may enter the market as a knowledgeable buyer. If a 
displaced person elects to buy one of the selected comparables, but 
cannot acquire the property for the adjusted price, it is appropriate to 
increase the replacement housing payment to the actual purchase amount.

           Section 24.404  Replacement Housing of Last Resort

    Section 24.404(b) Basic rights of persons to be displaced. This 
paragraph affirms the right of a 180-day homeowner-occupant, who is 
eligible for a replacement housing payment under Sec. 24.401, to a 
reasonable opportunity to purchase a comparable replacement dwelling. 
However, it should be read in conjunction with the definition of ``owner 
of a dwelling'' at Sec. 24.2(p). The Agency is not required to provide 
persons owning only a fractional interest in the displacement dwelling a 
greater level of assistance to purchase a replacement dwelling than the 
Agency would be required to provide such persons if they owned fee 
simple title to the displacement dwelling. If such assistance is not 
sufficient to buy a replacement dwelling, the Agency may provide 
additional purchase assistance or rental assistance.
    Section 24.404(c)  Methods of providing comparable replacement 
housing. The use of cost effective means of providing comparable 
replacement housing is implied throughout the subpart. The term 
``reasonable cost'' is used here to underline the fact that while 
innovative means to provide housing are encouraged, they should be cost-
effective.
    Section 24.404(c)(2) permits the use of last resort housing, in 
special cases, which may involve variations from the usual methods of 
obtaining comparability. However, it should be specially noted that such 
variation should never result in a lowering of housing standards nor 
should it ever result in a lower quality of living style for the 
displaced person. The physical characteristics of the comparable 
replacement dwelling may be dissimilar to those of the displacement 
dwelling but they may never be inferior.
    One example might be the use of a new mobile home to replace a very 
substandard conventional dwelling in an area where comparable 
conventional dwellings are not available.
    Another example could be the use of a superior, but smaller decent, 
safe and sanitary dwelling to replace a large, old substandard dwelling, 
only a portion of which is being used as living quarters by the 
occupants and no other large comparable dwellings are available in the 
area.

                         Subpart F--Mobile Homes

     Section 24.503  Replacement Housing Payment for 180-Day Mobile 
                           Homeowner-Occupants

    A 180-day owner-occupant who is displaced from a mobile home on a 
rented site may be eligible for a replacement housing payment for a 
dwelling computed under Sec. 24.401 and a replacement housing payment 
for a site computed under Sec. 24.402. A 180-day owner-occupant of both 
the mobile home and the site, who relocates the mobile home, may be 
eligible for a replacement housing payment under Sec. 24.401 to assist 
in the purchase of a replacement site or, under Sec. 24.402, to assist 
in renting a replacement site.

[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989]

             Appendix B to Part 24--Statistical Report Form

    This appendix sets forth the statistical information collected from 
Agencies in accordance with Sec. 24.9(c).

                                 General

    1. Report coverage. This report covers all relocation and real 
property acquisition activities under a Federal or a federally assisted 
project or program subject to the provisions of the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970, as 
amended by Public Law 100-17, 101 Stat. 132.
    2. Report period. Activities shall be reported on a Federal fiscal 
year basis, i.e., October 1 through September 30.
    3. Where and when to submit report. Submit an original and two 
copies of this report to (Name and Address of Federal Agency) as soon

[[Page 271]]

as possible after September 30, but NOT LATER THAN NOVEMBER 15.
    4. How to report relocation payments. The full amount of a 
relocation payment shall be reported as if disbursed in the year during 
which the claim was approved, regardless of whether the payment is to be 
paid in installments.
    5. How to report dollar amounts. Round off all money entries in 
Parts B and C to the nearest dollar.
    6. Statutory references. The references in Part B indicate the 
section of the Uniform Act that authorizes the cost.

                       Part A.  Persons displaced

    Report in Part A the number of persons (``households,'' 
``businesses, including nonprofit organizations,'' and ``farms'') who 
were permanently displaced during the fiscal year by project or program 
activities and moved to their replacement dwelling or location. This 
includes businesses, nonprofit organizations and farms which, upon 
displacement, discontinued operations. The category ``households'' 
includes all families and individuals. A family shall be reported as 
``one'' household, not by the number of people in the family unit. 
Persons shall be reported according to their status as ``owners'' or 
``tenants'' of the property from which displaced.

                Part B.  Relocation payments and expenses

    Columns (A) and (B). Report in Column (A) the number of 
displacements during the report year. Report in Column (B) the total 
amount represented by the displacements reported in Column (A).
    Line 7A is a new line item for reporting the business 
reestablishment expense payment.
    Lines 7A and 9, Column (B). Report in Column (B) the amount of costs 
that were included in the total amount approved on Lines 6 and 8, Column 
(B).
    Lines 12 A and B. Report in Column (A) the number of households 
displaced by project or program activities which were provided 
assistance in accordance with section 206(a) of the Uniform Act. Report 
in Column (B) the total financial assistance under section 206(a) 
allocable to the households reported in Column (A). (If a household 
received financial assistance under section 203 or section 204 as well 
as under section 206(a) of the Uniform Act, report the household as a 
displacement in Column (A), but in Column (B) report only the amount of 
financial assistance allocable to section 206(a). For example, if a 
tenant-household receives a payment of $7,000 to rent a replacement 
dwelling, the sum of $5,250 shall be included on Line 10, Column (B), 
and $1,750 shall be included on Line 12B, Column (B).)
    Line 13. Report on Line 13 all administrative costs incurred during 
the report year in connection with providing relocation advisory 
assistance and services under section 205 of the Uniform Act.
    Line 15. Report on Line 15 the total number of relocation appeals 
filed during the fiscal year by aggrieved persons.

        Part C.  Real property acquisition subject to Uniform Act

    Line 16, Columns (A) and (B). Report in Column (A) all parcels 
acquired during the report year where title or possession was vested in 
the acquiring agency during the reporting period. (Include parcels 
acquired without Federal financial assistance, if there was or will be 
Federal financial assistance in other phases of the project or program.) 
Report in Column (B) the total of the amounts paid, deposited in court, 
or otherwise made available to a property owner pursuant to applicable 
law in order to vest title or possession in the acquiring agency.
    Line 17. Report on Line 17 the number of parcels reported on Line 16 
that were acquired by condemnation where price disagreement was 
involved.

[[Page 272]]

[GRAPHIC] [TIFF OMITTED] TC02FE91.100


[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989]

[[Page 273]]

                           PART 25  [RESERVED]



PART 27--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITTING FROM FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                           Subpart A--General

Sec.
27.1  Purpose.
27.3  Applicability.
27.5  Definitions.
27.7  Discrimination prohibited.
27.9  Assurance required.
27.11  Remedial action, voluntary action, and compliance planning.
27.13  Designation of responsible employee and adoption of grievance 
          procedures.
27.15  Notice.
27.17  Effect of State or local law.
27.19  Compliance with Americans with Disabilities Act requirements and 
          FTA policy.

  Subpart B--Program Accessibility Requirements in Specific Operating 
       Administration Programs: Airports, Railroads, and Highways

27.71  Airport facilities.
27.72  Boarding assistance for small aircraft.
27.75  Federal Highway Administration--highways.
27.77  Recipients of Essential Air Service subsidies.

                         Subpart C--Enforcement

27.121  Compliance information.
27.123  Conduct of investigations.
27.125  Compliance procedure.
27.127  Hearings.
27.129  Decisions and notices.

    Authority: Sec. 504 of the Rehabilitation Act of 1973, as amended 
(29 U.S.C. 794); sec. 16 (a) and (d) of the Federal Transit Act of 1964, 
as amended (49 U.S.C. 5310 (a) and (f); sec. 165(b) of the Federal-Aid 
Highway Act of 1973, as amended (23 U.S.C. 142 nt.).

    Source: 44 FR 3l468, May 31, l979, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 27 appear at 61 FR 
56424, Nov. 1, 1996.



                           Subpart A--General



Sec. 27.1  Purpose.

    The purpose of this part is to carry out the intent of section 504 
of the Rehabilitation Act of 1973 (29 U.S.C. 794) as amended, to the end 
that no otherwise qualified individual with a disability in the United 
States shall, solely by reason of his or her disability, be excluded 
from the participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal financial 
assistance.



Sec. 27.3  Applicability.

    (a) This part applies to each recipient of Federal financial 
assistance from the Department of Transportation and to each program or 
activity that receives or benefits from such assistance.
    (b) Design, construction, or alteration of buildings or other fixed 
facilities by public entities subject to part 37 of this title shall be 
in conformance with appendix A to part 37 of this title. All other 
entities subject to section 504 shall design, construct or alter a 
building, or other fixed facilities shall be in conformance with either 
appendix A to part 37 of this title or the Uniform Federal Accessibility 
Standards, 41 CFR part 101-19 subpart 101-19.6, appendix A.

[44 FR 31468, May 31, 1979, as amended at 56 FR 45621, Sept. 6, 1991]



Sec. 27.5  Definitions.

    As used in this part:
    Act means the Rehabilitation Act of 1973, Public Law 93-112, as 
amended.
    Applicant means one who submits an application, request, or plan to 
be approved by a Departmental official or by a primary recipient as a 
condition to eligibility for Federal financial assistance, and 
application means such an application, request, or plan.
    Commercial service airport means an airport that is defined as a 
commercial service airport for purposes of the Federal Aviation 
Administration's Airport Improvement Program and that enplanes annually 
2500 or more passengers and receives scheduled passenger service of 
aircraft.
    Department means the Department of Transportation.
    Discrimination means denying handicapped persons the opportunity to 
participate in or benefit from any program or activity receiving Federal 
financial assistance.

[[Page 274]]

    Facility means all or any portion of buildings, structures, 
vehicles, equipment, roads, walks, parking lots, or other real or 
personal property or interest in such property.
    Federal financial assistance means any grant, loan, contract (other 
than a procurement contract or a contract of insurance or guaranty), or 
any other arrangement by which the Department provides or otherwise 
makes available assistance in the form of:
    (a) Funds;
    (b) Services of Federal personnel; or
    (c) Real or personal property or any interest in, or use of such 
property, including:
    (1) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (2) Proceeds from a subsequent transfer or lease of such property if 
the Federal share of its fair market value is not returned to the 
Federal Government.
    Handicapped person means (1) any person who (a) has a physical or 
mental impairment that substantially limits one or more major life 
activities, (b) has a record of such an impairment, or (c) is regarded 
as having such an impairment. (2) As used in this definition, the 
phrase:
    (a) Physical or mental impairment means (i) any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: neurological; 
musculoskeletal; special sense organs; respiratory, including speech 
organs; cardiovascular, reproductive; digestive; genito-urinary; hemic 
and lymphatic; skin; and endocrine; or (ii) any mental or psychological 
disorder, such as mental retardation, organic brain syndrome, emotional 
or mental illness, and specific learning disabilities. The term physical 
or mental impairment includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments; 
cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; 
cancer; heart disease; mental retardation; emotional illness; drug 
addiction; and alcoholism.
    (b) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (c) Has a record of such an impairment means has a history of, or 
has been classified, or misclassified, as having a mental or physical 
impairment that substantially limits one or more major life activities.
    (d) Is regarded as having an impairment means:
    (1) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a recipient as 
constituting such a limitation;
    (2) Has a physical or mental impairment that substantially limits 
major life activity only as a result of the attitudes of others toward 
such an impairment; or
    (3) Has none of the impairments set forth in paragraph (1) of this 
definition, but is treated by a recipient as having such an impairment.
    Head of Operating Administration means the head of an operating 
administration within the Department (U.S. Coast Guard, Federal Highway 
Administration, Federal Aviation Administration, Federal Railroad 
Administration, National Highway Traffic Safety Administration, Federal 
Transit Administration, and Research and Special Programs 
Administration) providing Federal financial assistance to the recipient.
    Primary recipient means any recipient that is authorized or required 
to extend Federal financial assistance from the Department to another 
recipient for the purpose of carrying out a program.
    Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation and within normal safety requirements, can 
perform the essential functions of the job in question, but the term 
does not include any individual who is an alcoholic or drug abuser whose 
current use of alcohol or drugs prevents such person from performing the 
duties of the job in question or whose employment, by reason of such 
current alcohol or drug abuse, would constitute a direct threat to 
property or the safety of others; and

[[Page 275]]

    (2) With respect to other activities, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    Recipient means any State, territory, possession, the District of 
Columbia, or Puerto Rico, or any political subdivision thereof, or 
instrumentality thereof, any public or private agency, institution, 
organization, or other entity, or any individual in any State, 
territory, possession, the District of Columbia, or Puerto Rico, to whom 
Federal financial assistance from the Department is extended directly or 
through another recipient, for any Federal program, including any 
successor, assignee, or transferee thereof, but such term does not 
include any ultimate beneficiary under any such program.
    Secretary means the Secretary of Transportation.
    Section 504 means section 504 of the Act.
    Special service system means a transportation system specifically 
designed to serve the needs of persons who, by reason of disability, are 
physically unable to use bus systems designed for use by the general 
public. Special service is characterized by the use of vehicles smaller 
than a standard transit bus which are usable by handicapped persons, 
demand-responsive service, point of origin to point of destination 
service, and flexible routing and scheduling.

[44 FR 31468, May 31, 1979, as amended by Amdt. 1, 46 FR 37492, July 20, 
1981; Amdt. 27-3, 51 FR 19017, May 23, 1986; 56 FR 45621, Sept. 6, 1991; 
61 FR 32354, June 24, 1996; 61 FR 56424, Nov. 1, 1996]



Sec. 27.7  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, solely by reason 
of his disability, be excluded from participation in, be denied the 
benefits of, or otherwise be subjected to discrimination under any 
program or activity that receives or benefits from Federal financial 
assistance administered by the Department of Transportation.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
any aid, benefit, or service, may not, directly or through contractual, 
licensing, or other arrangements, on the basis of disability:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
substantially equal to that afforded persons who are not handicapped;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as persons who are not handicapped;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons unless such 
action is necessary to provide qualified handicapped persons with aid, 
benefits or services that are as effective as those provided to persons 
who are not handicapped;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing financial or other assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the 
recipient's program;
    (vi) Deny a qualified handicapped person the opportunity to 
participate in conferences, in planning or advising recipients, 
applicants or would-be applicants, or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit, or service.
    (2) For purposes of this part, aids, benefits, and services, to be 
equally effective, are not required to produce the identical result or 
level of achievement for handicapped and nonhandicapped persons, but 
must afford handicapped persons equal opportunity to obtain the same 
result, to gain the same benefit, or to reach the same level of 
achievement, in the most integrated setting that is reasonably 
achievable.
    (3) Even if separate or different programs or activities are 
available to handicapped persons, a recipient may not deny a qualified 
handicapped person the opportunity to participate in

[[Page 276]]

the programs or activities that are not separate or different.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified handicapped persons 
to discrimination on the basis of disability,
    (ii) That have the purpose or effect of defeating or substantially 
reducing the likelihood that handicapped persons can benefit by the 
objectives of the recipient's program, or
    (iii) That yield or perpetuate discrimination against another 
recipient if both recipients are subject to common administrative 
control or are agencies of the same State.
    (5) In determining the site or location of a facility, an applicant 
or a recipient may not make selections:
    (i) That have the effect of excluding handicapped persons from, 
denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives or benefits 
from Federal financial assistance, or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (6) As used in this section, the aid benefit, or service provided 
under a program or activity receiving or benefitting from Federal 
financial assistance includes any aid, benefit, or service provided in 
or through a facility that has been constructed, expanded, altered, 
leased or rented, or otherwise acquired, in whole or in part, with 
Federal financial assistance.
    (c) Communications. Recipients shall take appropriate steps to 
ensure that communications with their applicants, employees, and 
beneficiaries are available to persons with impaired vision and hearing.
    (d) Programs limited by Federal law. In programs authorized by 
Federal statute or executive order that are designed especially for the 
handicapped, or for a particular class of handicapped persons, the 
exclusion of nonhandicapped or other classes of handicapped persons is 
not prohibited by this part.



Sec. 27.9  Assurance required.

    (a) General. Each application for Federal financial assistance to 
carry out a program to which this part applies, and each application to 
provide a facility, shall, as a condition to approval or extension of 
any Federal financial assistance pursuant to the application, contain, 
or be accompanied by, written assurance that the program will be 
conducted or the facility operated in compliance with all the 
requirements imposed by or pursuant to this part. An applicant may 
incorporate these assurances by reference in subsequent applications to 
the Department.
    (b) Future effect of assurances. Recipients of Federal financial 
assistance, and transferees of property obtained by a recipient with the 
participation of Federal financial assistance, are bound by the 
recipient's assurance under the following circumstances:
    (1) When Federal financial assistance is provided in the form of a 
conveyance of real property or an interest in real property from the 
Department of Transportation to a recipient, the instrument of 
conveyance shall include a convenant running with the land binding the 
recipient and subsequent transferees to comply with the requirements of 
this part for so long as the property is used for the purpose for which 
the Federal financial assistance was provided or for a similar purpose.
    (2) When Federal financial assistance is used by a recipient to 
purchase or improve real property, the assurance provided by the 
recipient shall obligate the recipient to comply with the requirements 
of this part and require any subsequent transferee of the property, who 
is using the property for the purpose for which the Federal financial 
assistance was provided, to agree in writing to comply with the 
requirements of this part. The obligations of the recipient and 
transferees under this part shall continue in effect for as long as the 
property is used for the purpose for which Federal financial assistance 
was provided or for a similar purpose.
    (3) When Federal financial assistance is provided to the recipient 
in the form of, or is used by the recipient to obtain, personal 
property, the assurance provided by the recipient shall obligate

[[Page 277]]

the recipient to comply with the requirements of this part for the 
period it retains ownership or possession of the property or the 
property is used by a transferee for purposes directly related to the 
operations of the recipient.
    (4) When Federal financial assistance is used by a recipient for 
purposes other than to obtain property, the assurance provided shall 
obligate the recipient to comply with the requirements of this part for 
the period during which the Federal financial assistance is extended to 
the program.



Sec. 27.11  Remedial action, voluntary action and compliance planning.

    (a) Remedial action. (1) If the responsible Departmental official 
finds that a qualified handicapped person has been excluded from 
participation in, denied the benefits of, or otherwise subjected to 
discrimination under, any program or activity in violation of this part, 
the recipient shall take such remedial action as the responsible 
Departmental official deems necessary to overcome the effects of the 
violation.
    (2) Where a recipient is found to have violated this part, and where 
another recipient exercises control over the recipient that has violated 
this part, the responsible Departmental official, where appropriate, may 
require either or both recipients to take remedial action.
    (3) The responsible Departmental official may, where necessary to 
overcome the effects of a violation of this part, require a recipient to 
take remedial action:
    (i) With respect to handicapped persons who are no longer 
participants in the recipient's program but who were participants in the 
program when such discrimination occurred, and
    (ii) With respect to handicapped persons who would have been 
participants in the program had the discrimination not occurred.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to assure the full participation 
in the recipient's program or activity by qualified handicapped persons.
    (c) Compliance planning. (1) A recipient shall, within 90 days from 
the effective date of this part, designate and forward to the head of 
any operating administration providing financial assistance, with a copy 
to the responsible Departmental official the names, addresses, and 
telephone numbers of the persons responsible for evaluating the 
recipient's compliance with this part.
    (2) A recipient shall, within 180 days from the effective date of 
this part, after consultation at each step in paragraphs (c)(2) (i)-
(iii) of this section with interested persons, including handicapped 
persons and organizations representing the handicapped:
    (i) Evaluate its current policies and practices for implementing 
these regulations, and notify the head of the operating administration 
of the completion of this evaluation;
    (ii) Identify shortcomings in compliance and describe the methods 
used to remedy them;
    (iii) Begin to modify, with official approval of recipient's 
management, any policies or practices that do not meet the requirements 
of this part according to a schedule or sequence that includes 
milestones or measures of achievement. These modifications shall be 
completed within one year from the effective date of this part;
    (iv) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from previous policies and practices; and
    (v) Establish a system for periodically reviewing and updating the 
evaluation.
    (3) A recipient shall, for at least three years following completion 
of the evaluation required under paragraph (c)(2) of this section, 
maintain on file, make available for public inspection, and furnish upon 
request to the head of the operating administration:
    (i) A list of the interested persons consulted;
    (ii) A description of areas examined and any problems indentified; 
and
    (iii) A description of any modifications made and of any remedial 
steps taken.



Sec. 27.13  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. Each recipient that employs 
fifteen or more persons shall, within 90 days of

[[Page 278]]

the effective date of this regulation, forward to the head of the 
operating administration that provides financial assistance to the 
recipient, with a copy to the responsible Departmental official, the 
name, address, and telephone number of at least one person designated to 
coordinate its efforts to comply with this part. Each such recipient 
shall inform the head of the operating administration of any subsequent 
change.
    (b) Adoption of complaint procedures. A recipient that employs 
fifteen or more persons shall, within 180 days, adopt and file with the 
head of the operating administration procedures that incorporate 
appropriate due process standards and provide for the prompt and 
equitable resolution of complaints alleging any action prohibited by 
this part.



Sec. 27.15  Notice.

    (a) A recipient shall take appropriate initial and continuing steps 
to notify participants, beneficiaries, applicants, and employees, 
including those with impaired vision or hearing, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient, that it does not discriminate on the 
basis of disability. The notification shall state, where appropriate, 
that the recipient does not discriminate in admission or access to, or 
treatment or employment in, its programs or activities. The notification 
shall also include an identification of the responsible employee 
designated pursuant to Sec. 27.13(a). A recipient shall make the initial 
notification required by this section within 90 days of the effective 
date of this part. Methods of initial and continuing notification may 
include the posting of notices, publication in newspapers and magazines, 
placement of notices in recipients' publications and distribution of 
memoranda or other written communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications. In either case, the addition or revision must be 
specially noted.



Sec. 27.17  Effect of State or local law.

    The obligation to comply with this part is not obviated or affected 
by any State or local law.



Sec. 27.19  Compliance with Americans with Disabilities Act requirements and FTA policy.

    (a) Recipients subject to this part (whether public or private 
entities as defined in 49 CFR part 37) shall comply with all applicable 
requirements of the Americans with Disabilities Act (ADA) of 1990 (42 
U.S.C. 12101-12213) including the Department's ADA regulations (49 CFR 
parts 37 and 38), the regulations of the Department of Justice 
implementing titles II and III of the ADA (28 CFR parts 35 and 36), and 
the regulations of the Equal Employment Opportunity Commission (EEOC) 
implementing title I of the ADA (29 CFR part 1630). Compliance with the 
EEOC title I regulations is required as a condition of compliance with 
section 504 for DOT recipients even for organizations which, because 
they have fewer than 25 or 15 employees, would not be subject to the 
EEOC regulation in its own right. Compliance with all these regulations 
is a condition of receiving Federal financial assistance from the 
Department of Transportation. Any recipient not in compliance with this 
requirement shall be subject to enforcement action under subpart F of 
this part.
    (b) Consistent with FTA policy, any recipient of Federal financial 
assistance from the Federal Transit Administration whose solicitation 
was made before August 26, 1990, and is for one or more inaccessible 
vehicles, shall provide written notice to the Secretary (e.g., in the 
case of a solicitation made in the past under which the recipient can 
order additional new buses after the effective date of this section). 
The Secretary shall review each case individually, and determine whether 
the Department will continue to participate in the Federal grant, 
consistent

[[Page 279]]

with the provisions in the grant agreement between the Department and 
the recipient.

[55 FR 40763, Oct. 4, 1990, as amended at 56 FR 45621, Sept. 6, 1991; 61 
FR 32354, June 24, 1996]



  Subpart B--Program Accessibility Requirements in Specific Operating 
       Administration Programs: Airports, Railroads, and Highways



Sec. 27.71  Airport facilities.

    (a) This section applies to all terminal facilities and services 
owned, leased, or operated on any basis by a recipient of DOT financial 
assistance at a commercial service airport, including parking and ground 
transportation facilities.
    (b) Airport operators shall ensure that the terminal facilities and 
services subject to this section shall be readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs. Airport operators shall be deemed to comply with this 
section 504 obligation if they meet requirements applying to state and 
local government programs and facilities under Department of Justice 
(DOJ) regulations implementing Title II of the Americans with 
Disabilities Act (ADA).
    (c) The airport shall ensure that there is an accessible path 
between the gate and the area from which aircraft are boarded.
    (d) Systems of inter-terminal transportation, including, but not 
limited to, shuttle vehicles and people movers, shall comply with 
applicable requirements of the Department of Transportation's ADA rules.
    (e) The Americans with Disabilities Act Accessibility Guidelines 
(ADAAGs), including section 10.4 concerning airport facilities, shall be 
the standard for accessibility under this section.
    (f) Contracts or leases between carriers and airport operators 
concerning the use of airport facilities shall set forth the respective 
responsibilities of the parties for the provision of accessible 
facilities and services to individuals with disabilities as required by 
this part and applicable ADA rules of the Department of Transportation 
and Department of Justice for airport operators and applicable Air 
Carrier Access Act rules (49 CFR part 382) for carriers.
    (g) If an airport operator who receives Federal financial assistance 
for an existing airport facility has not already done so, the recipient 
shall submit a transition plan meeting the requirements of Sec. 27.65(d) 
of this part to the FAA no later than March 3, 1997.

[61 FR 56424, Nov. 1, 1996]



Sec. 27.72  Boarding assistance for small aircraft.

    (a) Paragraphs (b) and (c) of this section apply to airports with 
10,000 or more annual enplanements.
    (b) Airports shall, in cooperation with carriers serving the 
airports, provide boarding assistance to individuals with disabilities 
using mechanical lifts, ramps, or other devices that do not require 
employees to lift or carry passengers up stairs.
    (c)(1) Each airport operator shall negotiate in good faith with each 
carrier serving the airport concerning the acquisition and use of 
boarding assistance devices. The airport operator and the carrier(s) 
shall, by no later than September 2, 1997, sign a written agreement 
allocating responsibility for meeting the boarding assistance 
requirements of this section between or among the parties. The agreement 
shall be made available, on request, to representatives of the 
Department of Transportation.
    (2) The agreement shall provide that all actions necessary to ensure 
accessible boarding for passengers with disabilities are completed as 
soon as practicable, but no later than December 2, 1998 at large and 
medium commercial service hub airports (those with 1,200,000 or more 
annual enplanements); December 2, 1999 for small commercial service hub 
airports (those with between 250,000 and 1,199,999 annual enplanements); 
or December 4, 2000 for non-hub commercial service primary airports 
(those with between 10,000 and 249,999 annual enplanements). All air 
carriers and airport operators involved are jointly responsible for the 
timely and complete implementation of the agreement.

[[Page 280]]

    (3) Boarding assistance under the agreement is not required in the 
following situations:
    (i) Access to aircraft with a capacity of fewer than 19 or more than 
30 seats;
    (ii) Access to float planes;
    (iii) Access to the following 19-seat capacity aircraft models: the 
Fairchild Metro, the Jetstream 31, and the Beech 1900 (C and D models);
    (iv) Access to any other 19-seat aircraft model determined by the 
Department of Transportation to be unsuitable for boarding assistance by 
lift on the basis of a significant risk of serious damage to the 
aircraft or the presence of internal barriers that preclude passengers 
who use a boarding or aisle chair to reach a non-exit row seat.
    (4) When boarding assistance is not required to be provided under 
paragraph (c)(4) of this section, or cannot be provided as required by 
paragraphs (b) and (c) of this section for reasons beyond the control of 
the parties to the agreement (e.g., because of mechanical problems with 
a lift), boarding assistance shall be provided by any available means to 
which the passenger consents, except hand-carrying as defined in 
Sec. 382.39(a)(2) of this part.
    (5) The agreement shall ensure that all lifts and other 
accessibility equipment are maintained in proper working condition.
    (d) In the event that airport personnel are involved in providing 
boarding assistance, the airport shall ensure that they are trained to 
proficiency in the use of the boarding assistance equipment used at the 
airport and appropriate boarding assistance procedures that safeguard 
the safety and dignity of passengers.

[61 FR 56424, Nov. 1, 1996; 62 FR 17, Jan. 2, 1997]



Sec. 27.75  Federal Highway Administration--highways.

    (a) New facilities--(1) Highway rest area facilities. All such 
facilities that will be constructed with Federal financial assistance 
shall be designed and constructed in accordance with the accessibility 
standards referenced in Sec. 27.3(b) of this part.
    (2) Curb cuts. All pedestrian crosswalks constructed with Federal 
financial assistance shall have curb cuts or ramps to accommodate 
persons in wheelchairs, pursuant to section 228 of the Federal-Aid 
Highway Act of 1973 (23 U.S.C. 402(b)(1)(F)).
    (3) Pedestrian over-passes, under-passes and ramps. Pedestrian over-
passes, under-passes and ramps, constructed with Federal financial 
assistance, shall be accessible to handicapped persons, including having 
gradients no steeper than 10 percent, unless:
    (i) Alternate safe means are provided to enable mobility-limited 
persons to cross the roadway at that location; or
    (ii) It would be infeasible for mobility-limited persons to reach 
the over-passes, under-passes or ramps because of unusual topographical 
or architectural obstacles unrelated to the federally assisted facility.
    (b) Existing facilities--Rest area facilities. Rest area facilities 
on Interstate highways shall be made accessible to handicapped persons, 
including wheelchair users, within a three-year period after the 
effective date of this part. Other rest area facilities shall be made 
accessible when Federal financial assistance is used to improve the rest 
area, or when the roadway adjacent to or in the near vicinity of the 
rest area is constructed, reconstructed or otherwise altered with 
Federal financial assistance.

[44 FR 31468, May 31, 1979, as amended by Amdt. 27-3, 51 FR 19017, May 
23, 1986. Redesignated at 56 FR 45621, Sept. 6, 1991]



Sec. 27.77  Recipients of Essential Air Service subsidies.

    Any air carrier receiving Federal financial assistance from the 
Department of Transportation under the Essential Air Service program 
shall, as a condition of receiving such assistance, comply with 
applicable requirements of this part and applicable section 504 and ACAA 
rules of the Department of Transportation.

[61 FR 56425, Nov. 1, 1996]



                         Subpart C--Enforcement

    Source: 44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621, 
Sept. 6, 1991.

[[Page 281]]



Sec. 27.121  Compliance information.

    (a) Cooperation and assistance. The responsible Departmental 
official, to the fullest extent practicable, seeks the cooperation of 
recipients in securing compliance with this part and provides assistance 
and guidance to recipients to help them comply with this part.
    (b) Compliance reports. Each recipient shall keep on file for one 
year all complaints of noncompliance received. A record of all such 
complaints, which may be in summary form, shall be kept for five years. 
Each recipient shall keep such other records and submit to the 
responsible Departmental official or his/her designee timely, complete, 
and accurate compliance reports at such times, and in such form, and 
containing such information as the responsible Department official may 
prescribe. In the case of any program under which a primary recipient 
extends Federal financial assistance to any other recipient, the other 
recipient shall also submit compliance reports to the primary recipient 
so as to enable the primary recipient to prepare its report.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible Departmental official or his/her designee 
during normal business hours to books, records, accounts, and other 
sources of information, and to facilities that are pertinent to 
compliance with this part. Where required information is in the 
exclusive possession of another agency or person who fails or refuses to 
furnish the information, the recipient shall so certify in its report 
and describe the efforts made to obtain the information. Considerations 
of privacy or confidentiality do not bar the Department from evaluating 
or seeking to enforce compliance with this part. Information of a 
confidential nature obtained in connection with compliance evaluation or 
enforcement is not disclosed by the Department, except in formal 
enforcement proceedings, where necessary, or where otherwise required by 
law.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
regulation and its application to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the responsible Departmental 
official finds necessary to apprise them of the protections against 
discrimination provided by the Act and this part.



Sec. 27.123  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible Departmental 
official or his/her designee, from time to time, reviews the practices 
of recipients to determine whether they are complying with this part.
    (b) Complaints. Any person who believes himself/herself or any 
specific class of individuals to be harmed by failure to comply with 
this part may, personally or through a representative, file a written 
complaint with the responsible Departmental official. A Complaint must 
be filed not later than 180 days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible Departmental official or his/her designee.
    (c) Investigations. The responsible Departmental official or his/her 
designee makes a prompt investigation whenever a compliance review, 
report, complaint, or any other information indicates a possible failure 
to comply with this part. The investigation includes, where appropriate, 
a review of the pertinent practices and policies of the recipient, and 
the circumstances under which the possible noncompliance with this part 
occurred.
    (d) Resolution of matters. (1) If, after an investigation pursuant 
to paragraph (c) of this section, the responsible Departmental official 
finds reasonable cause to believe that there is a failure to comply with 
this part, the responsible Departmental official will inform the 
recipient. The matter is resolved by informal means whenever possible. 
If the responsible Departmental official determines that the matter 
cannot be resolved by informal means, action is taken as provided in 
Sec. 27.125.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section, the responsible Departmental official 
or his/her designee so informs the recipient and the complainant, if 
any, in writing.

[[Page 282]]

    (e) Intimidating and retaliatory acts prohibited. No employee or 
contractor of a recipient shall intimidate, threaten, coerce, or 
discriminate against any individual for the purpose of interfering with 
any right or privilege secured by section 504 of the Act or this part, 
or because the individual has made a complaint, testified, assisted, or 
participated in any manner in an investigation, hearing, or proceeding, 
under this part. The identity of complainants is kept confidential at 
their election during the conduct of any investigation, hearing or 
proceeding under this part. However, when such confidentiality is likely 
to hinder the investigation, the complainant will be advised for the 
purpose of waiving the privilege.



Sec. 27.125  Compliance procedure.

    (a) General. If there is reasonable cause for the responsible 
Departmental official to believe that there is a failure to comply with 
any provision of this part that cannot be corrected by informal means, 
the responsible Departmental official may recommend suspension or 
termination of, or refusal to grant or to continue Federal financial 
assistance, or take any other steps authorized by law. Such other steps 
may include, but are not limited to:
    (1) A referral to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States (including other titles 
of the Act), or any assurance or other contractural undertaking; and
    (2) Any applicable proceeding under State or local law.
    (b) Refusal of Federal financial assistance. (1) No order 
suspending, terminating, or refusing to grant or continue Federal 
financial assistance becomes effective until:
    (i) The responsible Departmental official has advised the applicant 
or recipient of its failure to comply and has determined that compliance 
cannot be secured by voluntary means; and
    (ii) There has been an express finding by the Secretary on the 
record, after opportunity for hearing, of a failure by the applicant or 
recipient to comply with a requirement imposed by or pursuant to this 
part.
    (2) Any action to suspend, terminate, or refuse to grant or to 
continue Federal financial assistance is limited to the particular 
recipient who has failed to comply, and is limited in its effect to the 
particular program, or part thereof, in which noncompliance has been 
found.
    (c) Other means authorized by law. No other action is taken until:
    (1) The responsible Departmental official has determined that 
compliance cannot be secured by voluntary means;
    (2) The recipient or other person has been notified by the 
responsible Departmental official of its failure to comply and of the 
proposed action;
    (3) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person. During this period, additional 
efforts are made to persuade the recipient or other person to comply 
with the regulations and to take such corrective action as may be 
appropriate.



Sec. 27.127  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 27.125(b), reasonable notice is given by the 
responsible Departmental official by registered or certified mail, 
return receipt requested, to the affected applicant or recipient. This 
notice advises the applicant or recipient of the action proposed to be 
taken, the specific provision under which the proposed action is to be 
taken, and the matters of fact or law asserted as the basis for this 
action, and either:
    (1) Fixes a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request a hearing; or
    (2) Advises the applicant or recipient that the matter in question 
has been set for hearing at a stated place and time.

The time and place shall be reasonable and subject to change for cause. 
The complainant, if any, also is advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to

[[Page 283]]

request a hearing constitutes a waiver of the right to a hearing under 
section 504 of the Act and Sec. 27.125(b), and consent to the making of 
a decision on the basis of such information as may be part of the 
record.
    (b) If the applicant or recipient waives its opportunity for a 
hearing, the responsible Departmental official shall notify the 
applicant or recipient that it has the opportunity to submit written 
information and argument for the record. The responsible Departmental 
official may also place written information and argument into the 
record.
    (c) Time and place of hearing. Hearings are held at the office of 
the Department in Washington, DC, at a time fixed by the responsible 
Departmental official unless he/she determines that the convenience of 
the applicant or recipient or of the Department requires that another 
place be selected. Hearings are held before an Administrative Law Judge 
designated in accordance with 5 U.S.C. 3105 and 3344 (section 11 of the 
Administrative Procedure Act).
    (d) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the responsible Departmental official have 
the right to be represented by counsel.
    (e) Procedures, evidence and record. (1) The hearing, decision, and 
any administrative review thereof are conducted in conformity with 
sections 554 through 557 of title 5 of the United States Code, and in 
accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving notice subsequent to those provided for in paragraph (a) of this 
section, taking testimony, exhibits, arguments and briefs, requests for 
findings, and other related matters. The responsible Departmental 
official and the applicant or recipient are entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting the hearing. Any person (other 
than a government employee considered to be on official business) who, 
having been invited or requested to appear and testify as a witness on 
the government's behalf, attends at a time and place scheduled for a 
hearing provided for by this part may be reimbursed for his/her travel 
and actual expenses in an amount not to exceed the amount payable under 
the standardized travel regulations applicable to a government employee 
traveling on official business.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to cross examination are applied where reasonably necessary by 
the Administrative Law Judge conducting the hearing. The Administrative 
Law Judge may exclude irrelevant, immaterial, or unduly repetitious 
evidence. All documents and other evidence offered or taken for the 
record are open to examination by the parties and opportunity is given 
to refute facts and arguments advanced by either side. A transcript is 
made of the oral evidence except to the extent the substance thereof is 
stipulated for the record. All decisions are based on the hearing record 
and written findings shall be made.
    (f) Consolidation or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this 
regulation with respect to two or more programs to which this part 
applies, or noncompliance with this part and the regulations of one or 
more other Federal departments or agencies issued under section 504 of 
the Act, the responsible Departmental official may, in agreement with 
such other departments or agencies, where applicable, provide for 
consolidated or joint hearings. Final decisions in such cases, insofar 
as this regulation is concerned, are made in accordance with 
Sec. 27.129.



Sec. 27.129  Decisions and notices.

    (a) Decisions by Administrative Law Judge. After the hearing, the 
Administrative Law Judge certifies the entire record including his 
recommended findings and proposed decision to the Secretary for a final 
decision. A copy of the certification is mailed to the applicant or 
recipient and to the complainant, if any. The responsible Departmental 
official and the applicant or recipient may submit written arguments

[[Page 284]]

to the Secretary concerning the Administrative Law Judge's recommended 
findings and proposed decision.
    (b) Final decision by the Secretary. When the record is certified to 
the Secretary by the Administrative Law Judge, the Secretary reviews the 
record and accepts, rejects, or modifies the Administrative Law Judge's 
recommended findings and proposed decision, stating the reasons 
therefor.
    (c) Decisions if hearing is waived. Whenever a hearing pursuant to 
Sec. 27.125(b) is waived, the Secretary makes his/her final decision on 
the record, stating the reasons therefor.
    (d) Rulings required. Each decision of the Administrative Law Judge 
or the Secretary contains a ruling on each finding or conclusion 
presented and specifies any failures to comply with this part.
    (e) Content of orders. The final decision may provide for suspension 
or termination, or refusal to grant or continue Federal financial 
assistance, in whole or in part, under the program involved. The 
decision may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance will thereafter be extended unless and until the recipient 
corrects its noncompliance and satisfies the Secretary that it will 
fully comply with this part.
    (f) Subsequent proceedings. (1) An applicant or recipient adversely 
affected by an order issued under paragraph (e) of this section is 
restored to full eligibility to receive Federal financial assistance if 
it satisfies the terms and conditions of that order or if it brings 
itself into compliance with this part and provides reasonable assurance 
that it will fully comply with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (e) of this section may, at any time, 
request the responsible Departmental official to restore its 
eligibility, to receive Federal financial assistance. Any request must 
be supported by information showing that the applicant or recipient has 
met the requirements of paragraph (f)(1) of this section. If the 
responsible Departmental official determines that those requirements 
have been satisfied, he/she may restore such eligibility, subject to the 
approval of the Secretary.
    (3) If the responsible Departmental official denies any such 
request, the applicant or recipient may submit a request, in writing, 
for a hearing specifying why it believes the responsible Departmental 
official should restore it to full eligibility. It is thereupon given a 
prompt hearing, with a decision on the record. The applicant or 
recipient is restored to eligibility if it demonstrates to the 
satisfaction of the Secretary at the hearing that it satisfied the 
requirements of paragraph (f)(1) of this section.
    (4) The hearing procedures of Sec. 27.127(b) through (c) and 
paragraphs (a) through (d) of this section apply to hearings held under 
paragraph (f)(3) of this section.
    (5) While proceedings under this paragraph are pending, the 
sanctions imposed by the order issued under paragraph (e) of this 
section shall remain in effect.



PART 28--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF TRANSPORTATION--Table of Contents




Sec.
28.101  Purpose.
28.102  Application.
28.103  Definitions.
28.104--28.109  [Reserved]
28.110  Self-evaluation.
28.111  Notice.
28.112--28.129  [Reserved]
28.130  General prohibition against discrimination.
28.131  Illegal use of drugs.
28.132--28.139  [Reserved]
28.140  Employment.
28.141--28.148  [Reserved]
28.149  Program accessibility: Discrimination prohibited.
28.150  Program accessibility: Existing facilities.
28.151  Program accessibility: New construction and alterations.
28.152--28.159  [Reserved]
28.160  Communications.
28.161--28.169  [Reserved]
28.170  Compliance procedures.

[[Page 285]]

28.171--28.999  [Reserved]

    Authority: 29 U.S.C. 794

    Source: 56 FR 37296, Aug. 6, 1991, unless otherwise noted.



Sec. 28.101  Purpose.

    The purpose of this part is to carry out section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies, including this 
Department, or the United States Postal Service. 49 CFR part 27 
implements section 504 in the Department's financial assistance 
programs.



Sec. 28.102  Application.

    This part applies to all programs or activities conducted by the 
Department except for programs and activities conducted outside the 
United States that do not involve individuals with handicaps in the 
United States.



Sec. 28.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Department. For example, auxiliary aids 
useful for persons with impaired vision include readers, Brailled 
materials, audio recordings, and other similar services and devices. 
Auxiliary aids useful for persons with impaired hearing include 
telephone handset amplifiers, telephones compatible with hearing aids, 
telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the Department's alleged 
discriminatory actions in sufficient detail to inform the Department of 
the nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Drug means a controlled substance, as defined in schedules I through 
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
    Department or DOT means the U.S. Department of Transportation, 
including the Office of the Secretary and all operating administrations.
    Departmental Element (or ``DOT element'') means any one of the 
following organizations within the Department:
    (a) Office of the Secretary (OST).
    (b) United States Coast Guard (USCG).
    (c) Federal Aviation Administration (FAA).
    (d) Federal Highway Administration (FHWA).
    (e) Federal Railroad Administration (FRA).
    (f) National Highway Traffic Safety Administration (NHTSA).
    (g) Federal Transit Administration (FTA).
    (h) Research and Special Programs Administration (RSPA).
    (i) Maritime Administration (MARAD).
    (j) St. Lawrence Seaway Development Corporation (SLSDC).
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812) The term ``illegal use of drugs'' does 
not include the use of a drug taken under supervision by a licensed 
health care professional, or other uses authorized by the Controlled

[[Page 286]]

Substances Act or other provisions of Federal law.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment--
    (i) Includes any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the following 
body systems: Neurological; muscular; skeletal; special sense organs; 
respiratory, including speech organs; cardiovascular; reproductive; 
digestive; genitourinary; hemic and lymphatic; skin; and endocrine;
    (ii) Includes any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities; and
    (iii) Includes, but is not limited to, such diseases or conditions 
as orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, drug addiction, and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Department as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the Department as having such an 
impairment.
    Qualified individual with handicaps means--
    (1) With respect to education services provided by the U.S. Merchant 
Marine Academy or the U.S. Coast Guard Academy, an individual with 
handicaps who meets the essential eligibility requirements for 
participation in and receipt of such services, including the physical 
standards applicable to the U.S. Naval Reserve or the U.S. Coast Guard.
    (2) With respect to any other Department program or activity under 
which a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
Department can demonstrate would result in a fundamental alteration in 
its nature. The essential eligibility requirements include the ability 
to participate without endangering the safety of the individual or 
others.
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity 
and
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this part by Sec. 28.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810); 
the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat. 
28), and Handicapped Program Technical Amendments Act of 1988 (Pub. L. 
100-630, 102 Stat. 3312). As used in this part, section 504 applies

[[Page 287]]

only to programs or activities conducted by Executive agencies and not 
to federally assisted programs.

[56 FR 37296, Aug. 6, 1991, as amended at 61 FR 32354, June 24, 1996]



Secs. 28.104--28.109  [Reserved]



Sec. 28.110  Self-evaluation.

    (a) The Department shall, by one year of the effective date of this 
part, evaluate its current policies and practices, and effects thereof, 
that do not or may not meet the requirements of this part, and, to the 
extent modification of any such policies and practices is required, the 
Department shall proceed to make the necessary modifications.
    (b) The Department shall provide an opportunity to interested 
persons, including individuals with handicaps, agency employees with 
handicaps, and organizations representing individuals with handicaps, to 
participate in the self-evaluation process by submitting comments (both 
oral and written).
    (c) The Department shall, until at least three years following 
completion of the evaluation required under paragraph (a) of this 
section, or until such time as all modifications identified by the self-
evaluation to be necessary to comply with section 504 have been 
completed, whichever occurs later, maintain on file and make available 
for public inspection--
    (1) A description of areas examined, regulations and nonregulatory 
criteria reviewed, and any problems identified; and
    (2) A description of any modifications made.



Sec. 28.111  Notice.

    The Department shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the Department, and make such 
information available to them in such manner as the Department finds 
necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Secs. 28.112--28.129  [Reserved]



Sec. 28.130  General prohibition against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the Department.
    (b)(1) The Department, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangement, on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Department may not deny a qualified individual with 
handicaps the opportunity to participate in programs or activities that 
are not separate or different, despite the existence of permissibly 
separate or different programs or activities.

[[Page 288]]

    (3) The Department may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The Department may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the Department; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The Department, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The Department may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the Department 
establish requirements for the programs or activities of licensees or 
certified entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the Department 
are not, themselves, covered by this part. The Department may limit the 
programs or activities of a licensee or certificate holder, who is a 
qualified individual with handicaps, to the extent necessary to ensure 
the safety of that person or the safety of others.
    (c) The exclusion of individuals without handicaps from the benefits 
of a program limited by Federal statute or Executive Order to 
individuals with handicaps or the exclusion of a specific class of 
individuals with handicaps from a program limited by Federal statute or 
Executive Order to a different class of individuals with handicaps is 
not prohibited by this part.
    (d) The Department shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with handicaps.



Sec. 28.131  Illegal use of drugs.

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) The agency shall not discriminate on the basis of illegal use of 
drugs against an individual who is not engaging in current illegal use 
of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Health and rehabilitation services. The agency shall not deny 
health services or services provided under titles I, II, and III of the 
Rehabilitation Act to an individual on the basis of that individual's 
current illegal use of drugs, if the individual is otherwise entitled to 
such services.
    (c) Drug testing. (1) This part does not prohibit the agency from 
adopting or administering reasonable policies or procedures, including 
but not limited to drug testing, designed to ensure that an individual 
who formerly engaged in the illegal use of drugs is not engaging in 
current illegal use of drugs.
    (2) Nothing in paragraph (c) of this section shall be construed to 
encourage, prohibit, restrict, or authorize the conduct of testing for 
the illegal use of drugs.



Secs. 28.132--28.139  [Reserved]



Sec. 28.140  Employment.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the Department.

[[Page 289]]

    (b) The definitions, requirements, and procedures of section 501 of 
the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the 
Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply 
to employment in federally conducted programs or activities. The 
provisions of this section do not apply to military personnel of the 
U.S. Coast Guard.



Secs. 28.141--28.148  [Reserved]



Sec. 28.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 28.150, no qualified individual 
with handicaps shall, because the Department's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the Department.



Sec. 28.150  Program accessibility: Existing facilities.

    (a) General. The Department shall operate each program or activity 
so that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the Department to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) [Reserved]
    (3) Require the Department to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
program or activity or in undue financial and administrative burdens. In 
those circumstances where personnel of a DOT element believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the DOT 
element has the burden of proving that compliance with Sec. 28.150(a) 
would result in such alteration or burdens. The decision that compliance 
would result in such alteration or burdens must be made by the Secretary 
or his or her designee, after considering all resources available for 
use in the funding and operation of the program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the Department shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that individuals with handicaps receive the benefits and services 
of the program or activity.
    (b) Methods. The Department may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with handicaps. The Department is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The Department, in 
making alterations to existing buildings, shall meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the Department shall give priority to 
those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (c) Time period for compliance. The Department shall comply with the 
obligations established under this section within sixty days of the 
effective date of this part except that where structural changes in 
facilities are undertaken, such changes shall be made within three years 
of the effective date of this part, but in any event as expeditiously as 
possible. Provided that, where major restructuring of fixed facilities 
to accommodate technological changes is planned to occur within five 
years from the effective date of this part, changes needed to comply 
with this section are not required to be made until the planned 
restructuring

[[Page 290]]

takes place. However, alternative means for participation by individuals 
with handicaps in DOT programs and activities in the most integrated 
setting possible during this interim waiting period shall be available.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Department shall develop, within six months of the effective date of 
this part, a transition plan setting forth the steps necessary to 
complete such changes. The agency shall provide an opportunity to 
interested persons, including individuals with handicaps, agency 
employees with handicaps, or organizations representing individuals with 
handicaps, to participate in the development of the transition plan by 
submitting comments (both oral and written). A copy of the transition 
plan shall be made available for public inspection. The plan shall, at a 
minimum--
    (1) Identify physical obstacles in the Department's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 28.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Department shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600-607, apply to buildings covered by this section, 
except for military facilities of the Coast Guard, which are covered by 
32 CFR part 56.



Sec. 28.152--28.159  [Reserved]



Sec. 28.160  Communications.

    (a) The Department shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Department shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the Department.
    (i) In determining what type of auxiliary aid is necessary, the 
Department shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The Department need not provide individually prescribed 
devices, readers for personal use or study, or other devices of a 
personal nature to applicants or participants in programs.
    (2) Where the Department communicates with applicants and 
beneficiaries by telephone, telecommunications devices for deaf persons 
(TDDs) or equally effective telecommunication systems, shall be used to 
communicate with persons with impaired hearing.
    (b) The Department shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Department shall provide signs at each primary entrance to 
each of its inaccessible facilities, directing users to a location at 
which they can obtain information as to the location of accessible 
facilities. The international symbol for accessibility shall be used at 
each primary entrance of an accessible facility.
    (d) This section does not require the Department to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where personnel of a DOT element believe 
that the proposed action would fundamentally alter the program or 
activity or would result in an undue financial and administrative 
burden, the DOT element has

[[Page 291]]

the burden of proving that compliance with Sec. 28.160 would result in 
such alteration or burden. The decision that compliance would result in 
such alteration or burden must be made by the Secretary or his or her 
designee, after considering all resources available for use in the 
funding and operation of the program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the Department shall take 
any other action that would not result in such an alteration or such a 
burden but would nevertheless ensure that, to the maximum extent 
possible, individuals with handicaps receive the benefits and services 
of the program or activity.



Secs. 28.161--28.169  [Reserved]



Sec. 28.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, paragraphs 
(c)-(k) of this section apply to all allegations of discrimination on 
the basis of handicap in programs of activities conducted by the 
Department;
    (b)(1) The Department shall process complaints alleging violations 
of section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (2) The Department shall process complaints alleging violations of 
section 504 with respect to requirements of any Department safety 
regulation, concerning an individual's qualifications to perform a 
function or to receive a certificate or license, according to the 
procedures for a petition for an individual waiver or request for review 
of a standard for possible amendment or recession. The Departmental 
element shall inform the complainant, in writing, or the decision on the 
request. The complainant may request reconsideration by the Departmental 
element of the decision. The decision on the petition or request shall 
constitute the Department's final action in the matter.
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Director, Departmental Office of Civil Rights.
    (d)(1) The Department shall accept and investigate all complete 
complaints for which it has jurisdiction. All complete complaints must 
be filed within 180 days of the alleged act of discrimination. The 
Department may extend this time period for good cause.
    (2) If the subject matter of a complete complaint concerns a 
decision by a Departmental element, under a safety regulation, 
concerning an individual's qualifications to perform a function or to 
receive a certificate or license, and the complainant has available 
within the Departmental element a formal review or appeal mechanism 
concerning that decision, the Department shall not take action on the 
complaint until the Departmental element's review or appeal process has 
been completed.
    (e) If the Department receives a complaint over which it does not 
have jurisdiction, it shall promptly notify the complainant and shall 
make reasonable efforts to refer the complaint to the appropriate 
Government entity.
    (f) The Department shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the Department shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the Department of the letter required by Sec. 28.170(g). The Department 
may extend this time for good cause.

[[Page 292]]

    (i) Timely appeals shall be accepted and processed by the Assistant 
Secretary for Transportation Policy. The appeal will not be heard by the 
same person who made the initial determination on the request. The 
decision on the appeal shall constitute the Department's final action in 
the matter.
    (j) The Department shall notify the complainant of the results of 
the appeal within 60 days of the receipt of the request. If the 
Department determines that it needs additional information from the 
complainant, it shall have 60 days from the date it receives the 
additional information to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The Department may delegate its authority for conducting 
complaint investigations to other Federal agencies, except that the 
authority for making the final determination may not be delegated to 
another agency.

[56 FR 37296, Aug. 6, 1991, as amended at 59 FR 10061, Mar. 3, 1994]



Secs. 28.171--28.999  [Reserved]



PART 29--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of Contents




                           Subpart A--General

Sec.
29.100  Purpose.
29.105  Definitions.
29.110  Coverage.
29.115  Policy.
29.120  Saving clause.

                       Subpart B--Effect of Action

29.200  Debarment or suspension.
29.205  Ineligible persons.
29.210  Voluntary exclusion.
29.215  Exception provision.
29.220  Continuation of covered transactions.
29.225  Failure to adhere to restrictions.

                          Subpart C--Debarment

29.300  General.
29.305  Causes for debarment.
29.310  Procedures.
29.311  Investigation and referral.
29.312  Notice of proposed debarment.
29.313  Opportunity to contest proposed debarment.
29.314  Debarring official's decision.
29.315  Settlement and voluntary exclusion.
29.320  Period of debarment.
29.325  Scope of debarment.

                          Subpart D--Suspension

29.400  General.
29.405  Causes for suspension.
29.410  Procedures.
29.411  Notice of suspension.
29.412  Opportunity to contest suspension.
29.413  Suspending official's decision.
29.415  Period of suspension.
29.420  Scope of suspension.

      Subpart E--Responsibilities of GSA, Agency, and Participants.

29.500  GSA responsibilities.
29.505  DOT responsibilities.
29.510  Participants' responsibilities.

          Subpart F--Drug-Free Workplace Requirements (Grants)

29.600  Purpose.
29.605  Definitions.
29.610  Coverage.
29.615  Grounds for suspension of payments, suspension or termination of 
          grants, or suspension or debarment.
29.620  Effect of violation.
29.625  Exception provision.
29.630  Certification requirements and procedures.
29.635  Reporting of and employee sanctions for convictions of criminal 
          drug offenses.

Appendix A to Part 29--Certification Regarding Debarment, Suspension, 
          and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 29--Certification Regarding Debarment, Suspension, 
          Ineligibility and Voluntary Exclusion--Lower Tier Covered 
          Transactions
Appendix C to Part 29--Certification Regarding Drug-Free Workplace 
          Requirements

    Authority: 41 U.S.C. 701 et seq.; 49 U.S.C. 322(a); E.O. 12549, 3 
CFR, 1986 Comp., p. 189.

    Source: Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, unless 
otherwise noted.

    Editorial Notes: 1: A nomenclature change affecting this part 
appears at 53 FR 19203, May 26, 1988.

    2: For additional information, see related documents published at 52 
FR 20360, May 29, 1987, 53 FR 19160, May 26, 1988, and 53 FR 34474, 
September 6, 1988.


[[Page 293]]



    Cross Reference: See also Office of Management and Budget notice 
published at 55 FR 21679, May 25, 1990, and 60 FR 33036, June 26, 1995.



                           Subpart A--General



Sec. 29.100  Purpose.

    (a) Executive Order (E.O.) 12549 provides that, to the extent 
permitted by law, Executive departments and agencies shall participate 
in a governmentwide system for nonprocurement debarment and suspension. 
A person who is debarred or suspended shall be excluded from Federal 
financial and nonfinancial assistance and benefits under Federal 
programs and activities. Debarment or suspension of a participant in a 
program by one agency shall have governmentwide effect.
    (b) These regulations implement section 3 of E.O. 12549 and the 
guidelines promulgated by the Office of Management and Budget under 
section 6 of the E.O. by:
    (1) Prescribing the programs and activities that are covered by the 
governmentwide system;
    (2) Prescribing the governmentwide criteria and governmentwide 
minimum due process procedures that each agency shall use;
    (3) Providing for the listing of debarred and suspended 
participants, participants declared ineligible (see definition of 
``ineligible'' in Sec. 29.105), and participants who have voluntarily 
excluded themselves from participation in covered transactions;
    (4) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion; and
    (5) Offering such other guidance as necessary for the effective 
implementation and administration of the governmentwide system.
    (c) These regulations also implement Executive Order 12689 (3 CFR, 
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 
2455, 108 Stat. 3327) by--
    (1) Providing for the inclusion in the List of Parties Excluded from 
Federal Procurement and Nonprocurement Programs all persons proposed for 
debarment, debarred or suspended under the Federal Acquisition 
Regulation, 48 CFR Part 9, subpart 9.4; persons against which 
governmentwide exclusions have been entered under this part; and persons 
determined to be ineligible; and
    (2) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion.
    (d) Although these regulations cover the listing of ineligible 
participants and the effect of such listing, they do not prescribe 
policies and procedures governing declarations of ineligibility.

[60 FR 33040, 33064, June 26, 1995]



Sec. 29.105  Definitions.

    The following definitions apply to this part:
    Adequate evidence. Information sufficient to support the reasonable 
belief that a particular act or omission has occurred.
    Affiliate. Persons are affiliates of each other if, directly or 
indirectly, either one controls or has the power to control the other, 
or, a third person controls or has the power to control both. Indicia of 
control include, but are not limited to: interlocking management or 
ownership, identity of interests among family members, shared facilities 
and equipment, common use of employees, or a business entity organized 
following the suspension or debarment of a person which has the same or 
similar management, ownership, or principal employees as the suspended, 
debarred, ineligible, or voluntarily excluded person.
    Agency. Any executive department, military department or defense 
agency or other agency of the executive branch, excluding the 
independent regulatory agencies.
    Civil judgment. The disposition of a civil action by any court of 
competent jurisdiction, whether entered by verdict, decision, 
settlement, stipulation, or otherwise creating a civil liability for the 
wrongful acts complained of; or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
    Conviction. A judgment or conviction of a criminal offense by any 
court of competent jurisdiction, whether entered upon a verdict or a 
plea, including a plea of nolo contendere.

[[Page 294]]

    Debarment. An action taken by a debarring official in accordance 
with these regulations to exclude a person from participating in covered 
transactions. A person so excluded is ``debarred.''
    Debarring official. An official authorized to impose debarment. The 
debarring official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    (3) Debarring Official. For DOT the designated official is the head 
of a Departmental operating administration, who may delegate any of his 
or her functions under this part and authorize successive delegations.
    DOT. Department of Transportation.
    Indictment. Indictment for a criminal offense. An information or 
other filing by competent authority charging a criminal offense shall be 
given the same effect as an indictment.
    Ineligible. Excluded from participation in Federal nonprocurement 
programs pursuant to a determination of ineligibility under statutory, 
executive order, or regulatory authority, other than Executive Order 
12549 and its agency implementing regulations; for example, excluded 
pursuant to the Davis-Bacon Act and its implementing regulations, the 
equal employment opportunity acts and executive orders, or the 
environmental protection acts and executive orders. A person is 
ineligible where the determination of ineligibility affects such 
person's eligibility to participate in more than one covered 
transaction.
    Legal proceedings. Any criminal proceeding or any civil judicial 
proceeding to which the Federal Government or a State or local 
government or quasi-governmental authority is a party. The term includes 
appeals from such proceedings.
    List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs. A list compiled, maintained and distributed by the General 
Services Administration (GSA) containing the names and other information 
about persons who have been debarred, suspended, or voluntarily excluded 
under Executive Orders 12549 and 12689 and these regulations or 48 CFR 
part 9, subpart 9.4, persons who have been proposed for debarment under 
48 CFR part 9, subpart 9.4, and those persons who have been determined 
to be ineligible.
    Notice. A written communication served in person or sent by 
certified mail, return receipt requested, or its equivalent, to the last 
known address of a party, its identified counsel, its agent for service 
of process, or any partner, officer, director, owner, or joint venturer 
of the party. Notice, if undeliverable, shall be considered to have been 
received by the addressee five days after being properly sent to the 
last address known by the agency.
    Operating administration includes the Office of the Secretary, the 
head of which, for the purposes of this rule, is the Assistant Secretary 
for Administration.
    Participant. Any person who submits a proposal for, enters into, or 
reasonably may be expected to enter into a covered transaction. This 
term also includes any person who acts on behalf of or is authorized to 
commit a participant in a covered transaction as an agent or 
representative of another participant.
    Person. Any individual, corporation, partnership, association, unit 
of government or legal entity, however organized, except: foreign 
governments or foreign governmental entities, public international 
organizations, foreign government owned (in whole or in part) or 
controlled entities, and entities consisting wholly or partially of 
foreign governments or foreign governmental entities.
    Preponderance of the evidence. Proof by information that, compared 
with that opposing it, leads to the conclusion that the fact at issue is 
more probably true than not.
    Principal. Officer, director, owner, partner, key employee, or other 
person within a participant with primary management or supervisory 
responsibilities; or a person who has a critical influence on or 
substantive control over a covered transaction, whether or not employed 
by the participant. Persons who have a critical influence on or 
substantive control over a covered transaction are:
    (1) Principal investigators.
    Proposal. A solicited or unsolicited bid, application, request, 
invitation to

[[Page 295]]

consider or similar communication by or on behalf of a person seeking to 
participate or to receive a benefit, directly or indirectly, in or under 
a covered transaction.
    Respondent. A person against whom a debarment or suspension action 
has been initiated.
    State. Any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, any territory or possession 
of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers that instrumentality to be an agency of the 
State government.
    Suspending official. An official authorized to impose suspension. 
The suspending official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    (3) Suspending Official. For DOT the designated official is the head 
of a Departmental operating administration, who may delegate any of his 
or her functions under this part and authorize successive delegations.
    Suspension. An action taken by a suspending official in accordance 
with these regulations that immediately excludes a person from 
participating in covered transactions for a temporary period, pending 
completion of an investigation and such legal, debarment, or Program 
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded 
is ``suspended.''
    Voluntary exclusion or voluntarily excluded. A status of 
nonparticipation or limited participation in covered transactions 
assumed by a person pursuant to the terms of a settlement.

[Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 53 FR 
19203, May 26, 1988; 60 FR 33040, 33064, June 26, 1995]



Sec. 29.110  Coverage.

    (a) These regulations apply to all persons who have participated, 
are currently participating or may reasonably be expected to participate 
in transactions under Federal nonprocurement programs. For purposes of 
these regulations such transactions will be referred to as ``covered 
transactions.''
    (1) Covered transaction. For purposes of these regulations, a 
covered transaction is a primary covered transaction or a lower tier 
covered transaction. Covered transactions at any tier need not involve 
the transfer of Federal funds.
    (i) Primary covered transaction. Except as noted in paragraph (a)(2) 
of this section, a primary covered transaction is any nonprocurement 
transaction between an agency and a person, regardless of type, 
including: grants, cooperative agreements, scholarships, fellowships, 
contracts of assistance, loans, loan guarantees, subsidies, insurance, 
payments for specified use, donation agreements and any other 
nonprocurement transactions between a Federal agency and a person. 
Primary covered transactions also include those transactions specially 
designated by the U.S. Department of Housing and Urban Development in 
such agency's regulations governing debarment and suspension.
    (ii) Lower tier covered transaction. A lower tier covered 
transaction is:
    (A) Any transaction between a participant and a person other than a 
procurement contract for goods or services, regardless of type, under a 
primary covered transaction.
    (B) Any procurement contract for goods or services between a 
participant and a person, regardless of type, expected to equal or 
exceed the Federal procurement small purchase threshold fixed at 10 
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary 
covered transaction.
    (C) Any procurement contract for goods or services between a 
participant and a person under a covered transaction, regardless of 
amount, under which that person will have a critical influence on or 
substantive control over that covered transaction. Such persons are:
    (1) Principal investigators.
    (2) Providers of federally-required audit services.
    (2) Exceptions. The following transactions are not covered:
    (i) Statutory entitlements or mandatory awards (but not subtier 
awards

[[Page 296]]

thereunder which are not themselves mandatory), including deposited 
funds insured by the Federal Government;
    (ii) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, entities 
consisting wholly or partially of foreign governments or foreign 
governmental entities;
    (iii) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (iv) Federal employment;
    (v) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (vi) Incidental benefits derived from ordinary governmental 
operations; and
    (vii) Other transactions where the application of these regulations 
would be prohibited by law.
    (b) Relationship to other sections. This section describes the types 
of transactions to which a debarment or suspension under the regulations 
will apply. Subpart B, ``Effect of Action,'' Sec. 29.200, ``Debarment or 
suspension,'' sets forth the consequences of a debarment or suspension. 
Those consequences would obtain only with respect to participants and 
principals in the covered transactions and activities described in 
Sec. 29.110(a). Sections 29.325, ``Scope of debarment,'' and 29.420, 
``Scope of suspension,'' govern the extent to which a specific 
participant or organizational elements of a participant would be 
automatically included within a debarment or suspension action, and the 
conditions under which affiliates or persons associated with a 
participant may also be brought within the scope of the action.
    (c) Relationship to Federal procurement activities. In accordance 
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment, 
suspension, proposed debarment or other governmentwide exclusion 
initiated under the Federal Acquisition Regulation (FAR) on or after 
August 25, 1995 shall be recognized by and effective for Executive 
Branch agencies and participants as an exclusion under this regulation. 
Similarly, any debarment, suspension or other governmentwide exclusion 
initiated under this regulation on or after August 25, 1995 shall be 
recognized by and effective for those agencies as a debarment or 
suspension under the FAR.

[Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 60 FR 
33041, 33064, June 26, 1995]



Sec. 29.115  Policy.

    (a) In order to protect the public interest, it is the policy of the 
Federal Government to conduct business only with responsible persons. 
Debarment and suspension are discretionary actions that, taken in 
accordance with Executive Order 12549 and these regulations, are 
appropriate means to implement this policy.
    (b) Debarment and suspension are serious actions which shall be used 
only in the public interest and for the Federal Government's protection 
and not for purposes of punishment. Agencies may impose debarment or 
suspension for the causes and in accordance with the procedures set 
forth in these regulations.
    (c) When more than one agency has an interest in the proposed 
debarment or suspension of a person, consideration shall be given to 
designating one agency as the lead agency for making the decision. 
Agencies are encouraged to establish methods and procedures for 
coordinating their debarment or suspension actions.



Sec. 29.120  Saving clause.

    Any debarment or suspension initiated before October 1, 1988, shall 
be governed by part 29 of the Department's regulations as part 29 
existed immediately before October 1, 1988, including Sec. 29.125 
thereof.

[Amdt. 29-1, 53 FR 19203, May 26, 1988]



                       Subpart B--Effect of Action



Sec. 29.200  Debarment or suspension.

    (a) Primary covered transactions. Except to the extent prohibited by 
law, persons who are debarred or suspended shall be excluded from 
primary covered transactions as either participants or principals 
throughout the Executive

[[Page 297]]

Branch of the Federal Government for the period of their debarment, 
suspension, or the period they are proposed for debarment under 48 CFR 
part 9, subpart 9.4. Accordingly, no agency shall enter into primary 
covered transactions with such excluded persons during such period, 
except as permitted pursuant to Sec. 29.215.
    (b) Lower tier covered transactions. Except to the extent prohibited 
by law, persons who have been proposed for debarment under 48 CFR part 
9, subpart 9.4, debarred or suspended shall be excluded from 
participating as either participants or principals in all lower tier 
covered transactions (see Sec. 29.110(a)(1)(ii)) for the period of their 
exclusion.
    (c) Exceptions. Debarment or suspension does not affect a person's 
eligibility for--
    (1) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (2) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, and 
entities consisting wholly or partially of foreign governments or 
foreign governmental entities;
    (3) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (4) Federal employment;
    (5) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (6) Incidental benefits derived from ordinary governmental 
operations; and
    (7) Other transactions where the application of these regulations 
would be prohibited by law.

[60 FR 33041, 33064, June 26, 1995]



Sec. 29.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec. 29.105(i), are 
excluded in accordance with the applicable statutory, executive order, 
or regulatory authority.



Sec. 29.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec. 29.315 are 
excluded in accordance with the terms of their settlements. DOT shall, 
and participants may, contact the original action agency to ascertain 
the extent of the exclusion.



Sec. 29.215  Exception provision.

    DOT may grant an exception permitting a debarred, suspended, or 
voluntarily excluded person, or a person proposed for debarment under 48 
CFR part 9, subpart 9.4, to participate in a particular covered 
transaction upon a written determination by the agency head or an 
authorized designee stating the reason(s) for deviating from the 
Presidential policy established by Executive Order 12549 and 
Sec. 29.200. However, in accordance with the President's stated 
intention in the Executive Order, exceptions shall be granted only 
infrequently. Exceptions shall be reported in accordance with 
Sec. 29.505(a).

[60 FR 33041, 33064, June 26, 1995]



Sec. 29.220  Continuation of covered transactions.

    (a) Notwithstanding the debarment, suspension, proposed debarment 
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or 
voluntary exclusion of any person by an agency, agencies and 
participants may continue covered transactions in existence at the time 
the person was debarred, suspended, proposed for debarment under 48 CFR 
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A 
decision as to the type of termination action, if any, to be taken 
should be made only after thorough review to ensure the propriety of the 
proposed action.
    (b) Agencies and participants shall not renew or extend covered 
transactions (other than no-cost time extensions) with any person who is 
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 
9.4, ineligible or voluntary excluded, except as provided in 
Sec. 29.215.

[60 FR 33041, 33064, June 26, 1995]

[[Page 298]]



Sec. 29.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec. 29.215 or Sec. 29.220, a 
participant shall not knowingly do business under a covered transaction 
with a person who is--
    (1) Debarred or suspended;
    (2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
    (3) Ineligible for or voluntarily excluded from the covered 
transaction.
    (b) Violation of the restriction under paragraph (a) of this section 
may result in disallowance of costs, annulment or termination of award, 
issuance of a stop work order, debarment or suspension, or other 
remedies as appropriate.
    (c) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, proposed for debarment under 48 
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the 
covered transaction (See appendix B of these regulations), unless it 
knows that the certification is erroneous. An agency has the burden of 
proof that a participant did knowingly do business with a person that 
filed an erroneous certification.

[60 FR 33041, 33064, June 26, 1995]



                          Subpart C--Debarment



Sec. 29.300  General.

    The debarring official may debar a person for any of the causes in 
Sec. 29.305, using procedures established in Secs. 29.310 through 
29.314. The existence of a cause for debarment, however, does not 
necessarily require that the person be debarred; the seriousness of the 
person's acts or omissions and any mitigating factors shall be 
considered in making any debarment decision.



Sec. 29.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of 
Secs. 29.300 through 29.314 for:
    (a) Conviction of or civil judgment for:
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, 
receiving stolen property, making false claims, or obstruction of 
justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects the 
present responsibility of a person.
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as:
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction.
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, the effective date of these regulations, or a 
procurement debarment by any Federal agency taken pursuant to 48 CFR 
subpart 9.4;
    (2) Knowingly doing business with a debarred, suspended, ineligible, 
or voluntarily excluded person, in connection with a covered 
transaction, except as permitted in Sec. 29.215 or Sec. 29.220;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed the Federal Government under the Internal Revenue 
Code) owed to any Federal agency or instrumentality, provided the debt 
is uncontested by the debtor or, if contested, provided that the 
debtor's legal and administrative remedies have been exhausted;

[[Page 299]]

    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. 29.315 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of any requirement of subpart F of this part, relating 
to providing a drug-free workplace, as set forth in Sec. 29.615 of this 
part.
    (d) Any other cause of so serious or compelling a nature that it 
affects the present responsibility of a person.

[Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 54 FR 4950, 
4963, Jan. 31, 1989]



Sec. 29.310  Procedures.

    DOT shall process debarment actions as informally as practicable, 
consistent with the principles of fundamental fairness, using the 
procedures in Secs. 29.311 through 29.314.



Sec. 29.311  Investigation and referral.

    Information concerning the existence of a cause for debarment from 
any source shall be promptly reported, investigated, and referred, when 
appropriate, to the debarring official for consideration. After 
consideration, the debarring official may issue a notice of proposed 
debarment.



Sec. 29.312  Notice of proposed debarment.

    A debarment proceeding shall be initiated by notice to the 
respondent advising:
    (a) That debarment is being considered;
    (b) Of the reasons for the proposed debarment in terms sufficient to 
put the respondent on notice of the conduct or transaction(s) upon which 
it is based;
    (c) Of the cause(s) relied upon under Sec. 29.305 for proposing 
debarment;
    (d) Of the provisions of Secs. 29.311 through 29.314, and any other 
DOT procedures, if applicable, governing debarment decisionmaking; and
    (e) Of the potential effect of a debarment.



Sec. 29.313  Opportunity to contest proposed debarment.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of proposed debarment, the respondent may submit, in person, in 
writing, or through a representative, information and argument in 
opposition to the proposed debarment.
    (b) Additional proceedings as to disputed material facts. (1) In 
actions not based upon a conviction or civil judgment, if the debarring 
official finds that the respondent's submission in opposition raises a 
genuine dispute over facts material to the proposed debarment, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents.
    (2) A transcribed record of any additional proceedings shall be made 
available at cost to the respondent, upon request, unless the respondent 
and the agency, by mutual agreement, waive the requirement for a 
transcript.



Sec. 29.314  Debarring official's decision.

    (a) No additional proceedings necessary. In actions based upon a 
conviction or civil judgment, or in which there is no genuine dispute 
over material facts, the debarring official shall make a decision on the 
basis of all the information in the administrative record, including any 
submission made by the respondent. The decision shall be made within 45 
days after receipt of any information and argument submitted by the 
respondent, unless the debarring official extends this period for good 
cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The debarring 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any such findings, in whole or in part, only after specifically 
determining them to be arbitrary and capricious or clearly erroneous.
    (3) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (c) (1) Standard of proof. In any debarment action, the cause for 
debarment

[[Page 300]]

must be established by a preponderance of the evidence. Where the 
proposed debarment is based upon a conviction or civil judgment, the 
standard shall be deemed to have been met.
    (2) Burden of proof. The burden of proof is on the agency proposing 
debarment.
    (d) Notice of debarring official's decision. (1) If the debarring 
official decides to impose debarment, the respondent shall be given 
prompt notice:
    (i) Referring to the notice of proposed debarment;
    (ii) Specifying the reasons for debarment;
    (iii) Stating the period of debarment, including effective dates; 
and
    (iv) Advising that the debarment is effective for covered 
transactions throughout the executive branch of the Federal Government 
unless an agency head or an authorized designee makes the determination 
referred to in Sec. 29.215.
    (2) If the debarring official decides not to impose debarment, the 
respondent shall be given prompt notice of that decision. A decision not 
to impose debarment shall be without prejudice to a subsequent 
imposition of debarment by any other agency.



Sec. 29.315  Settlement and voluntary exclusion.

    (a) When in the best interest of the Government, DOT may, at any 
time, settle a debarment or suspension action.
    (1) An operating administration may settle a debarment or suspension 
action under this section.
    (2) [Reserved]
    (b) If a participant and the agency agree to a voluntary exclusion 
of the participant, such voluntary exclusion shall be entered on the 
Nonprocurement List (see subpart E).

[Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 53 FR 
19204, May 26, 1988]



Sec. 29.320  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s). If a suspension precedes a debarment, the 
suspension period shall be considered in determining the debarment 
period.
    (1) Debarment for causes other than those related to a violation of 
the requirements of subpart F of this part generally should not exceed 
three years. Where circumstances warrant, a longer period of debarment 
may be imposed.
    (2) In the case of a debarment for a violation of the requirements 
of subpart F of this part (see 29.305(c)(5)), the period of debarment 
shall not exceed five years.
    (b) The debarring official may extend an existing debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest. However, a debarment may not 
be extended solely on the basis of the facts and circumstances upon 
which the initial debarment action was based. If debarment for an 
additional period is determined to be necessary, the procedures of 
Secs. 29.311 through 29.314 shall be followed to extend the debarment.
    (c) The respondent may request the debarring official to reverse the 
debarment decision or to reduce the period or scope of debarment. Such a 
request shall be in writing and supported by documentation. The 
debarring official may grant such a request for reasons including, but 
not limited to:
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or civil judgment upon which the 
debarment was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed; 
or
    (5) Other reasons the debarring official deems appropriate.

[Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 54 FR 4950, 
4963, Jan. 31, 1989]



Sec. 29.325  Scope of debarment.

    (a) Scope in general. (1) Debarment of a person under these 
regulations constitutes debarment of all its divisions and other 
organizational elements from all covered transactions, unless the 
debarment decision is limited by its terms to one or more specifically 
identified individuals, divisions or other organizational elements or to 
specific types of transactions.

[[Page 301]]

    (2) The debarment action may include any affiliate of the 
participant that is specifically named and given notice of the proposed 
debarment and an opportunity to respond (see Secs. 29.311 through 
29.314).
    (b) Imputing conduct. For purposes of determining the scope of 
debarment, conduct may be imputed as follows:
    (1) Conduct imputed to participant. The fraudulent, criminal or 
other seriously improper conduct of any officer, director, shareholder, 
partner, employee, or other individual associated with a participant may 
be imputed to the participant when the conduct occurred in connection 
with the individual's performance of duties for or on behalf of the 
participant, or with the participant's knowledge, approval, or 
acquiescence. The participant's acceptance of the benefits derived from 
the conduct shall be evidence of such knowledge, approval, or 
acquiescence.
    (2) Conduct imputed to individuals associated with participant. The 
fraudulent, criminal, or other seriously improper conduct of a 
participant may be imputed to any officer, director, shareholder, 
partner, employee, or other individual associated with the participant 
who participated in, knew of, or had reason to know of the participant's 
conduct.
    (3) Conduct of one participant imputed to other participants in a 
joint venture. The fraudulent, criminal, or other seriously improper 
conduct of one participant in a joint venture, grant pursuant to a joint 
application, or similar arrangement may be imputed to other participants 
if the conduct occurred for or on behalf of the joint venture, grant 
pursuant to a joint application, or similar arrangement may be imputed 
to other participants if the conduct occurred for or on behalf of the 
joint venture, grant pursuant to a joint application, or similar 
arrangement or with the knowledge, approval, or acquiescence of these 
participants. Acceptance of the benefits derived from the conduct shall 
be evidence of such knowledge, approval, or acquiescence.



                          Subpart D--Suspension



Sec. 29.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec. 29.405 using procedures established in Secs. 29.410 
through 29.413.
    (b) Suspension is a serious action to be imposed only when:
    (1) There exists adequate evidence of one or more of the causes set 
out in Sec. 29.405, and
    (2) Immediate action is necessary to protect the public interest.
    (c) In assessing the adequacy of the evidence, the agency should 
consider how much information is available, how credible it is given the 
circumstances, whether or not important allegations are corroborated, 
and what inferences can reasonably be drawn as a result. This assessment 
should include an examination of basic documents such as grants, 
cooperative agreements, loan authorizations, and contracts.



Sec. 29.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Secs. 29.400 through 29.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in 
Sec. 29.305(a); or
    (2) That a cause for debarment under Sec. 29.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.



Sec. 29.410  Procedures.

    (a) Investigation and referral. Information concerning the existence 
of a cause for suspension from any source shall be promptly reported, 
investigated, and referred, when appropriate, to the suspending official 
for consideration. After consideration, the suspending official may 
issue a notice of suspension.
    (b) Decisionmaking process. DOT shall process suspension actions as 
informally as practicable, consistent with principles of fundamental 
fairness, using the procedures in Secs. 29.411 through 29.413.

[[Page 302]]



Sec. 29.411  Notice of suspension.

    When a respondent is suspended, notice shall immediately be given:
    (a) That suspension has been imposed;
    (b) That the suspension is based on an indictment, conviction, or 
other adequate evidence that the respondent has committed irregularities 
seriously reflecting on the propriety of further Federal Government 
dealings with the respondent;
    (c) Describing any such irregularities in terms sufficient to put 
the respondent on notice without disclosing the Federal Government's 
evidence;
    (d) Of the cause(s) relied upon under Sec. 29.405 for imposing 
suspension;
    (e) That the suspension is for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings;
    (f) Of the provisions of Secs. 29.411 through 29.413 and any other 
DOT procedures, if applicable, governing suspension decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 29.412  Opportunity to contest suspension.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of suspension, the respondent may submit, in person, in writing, 
or through a representative, information and argument in opposition to 
the suspension.
    (b) Additional proceedings as to disputed material facts. (1) If the 
suspending official finds that the respondent's submission in opposition 
raises a genuine dispute over facts material to the suspension, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents, unless:
    (i) The action is based on an indictment, conviction or civil 
judgment, or
    (ii) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Federal Government in 
pending or contemplated legal proceedings based on the same facts as the 
suspension would be prejudiced.
    (2) A transcribed record of any additional proceedings shall be 
prepared and made available at cost to the respondent, upon request, 
unless the respondent and the agency, by mutual agreement, waive the 
requirement for a transcript.



Sec. 29.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec. 29.320(c) for reasons for reducing the period or scope 
of debarment) or may leave it in force. However, a decision to modify or 
terminate the suspension shall be without prejudice to the subsequent 
imposition of suspension by any other agency or debarment by any agency. 
The decision shall be rendered in accordance with the following 
provisions:
    (a) No additional proceedings necessary. In actions: based on an 
indictment, conviction, or civil judgment; in which there is no genuine 
dispute over material facts; or in which additional proceedings to 
determine disputed material facts have been denied on the basis of 
Department of Justice advice, the suspending official shall make a 
decision on the basis of all the information in the administrative 
record, including any submission made by the respondent. The decision 
shall be made within 45 days after receipt of any information and 
argument submitted by the respondent, unless the suspending official 
extends this period for good cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The suspending 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary or capricious or clearly 
erroneous.
    (c) Notice of suspending official's decision. Prompt written notice 
of the suspending official's decision shall be sent to the respondent.

[[Page 303]]



Sec. 29.415  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings, unless terminated sooner by the 
suspending official or as provided in paragraph (b) of this section.
    (b) If legal or administrative proceedings are not initiated within 
12 months after the date of the suspension notice, the suspension shall 
be terminated unless an Assistant Attorney General or United States 
Attorney requests its extension in writing, in which case it may be 
extended for an additional six months. In no event may a suspension 
extend beyond 18 months, unless such proceedings have been initiated 
within that period.
    (c) The suspending official shall notify the Department of Justice 
of an impending termination of a suspension, at least 30 days before the 
12-month period expires, to give that Department an opportunity to 
request an extension.



Sec. 29.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec. 29.325), except that the procedures of Secs. 29.410 through 
29.413 shall be used in imposing a suspension.



       Subpart E--Responsibilities of GSA, Agency and Participants



Sec. 29.500  GSA responsibilities.

    (a) In accordance with the OMB guidelines, GSA shall compile, 
maintain, and distribute a list of all persons who have been debarred, 
suspended, or voluntarily excluded by agencies under Executive Order 
12549 and these regulations, and those who have been determined to be 
ineligible.
    (b) At a minimum, this list shall indicate:
    (1) The names and addresses of all debarred, suspended, ineligible, 
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;
    (5) Any termination date for each listing; and
    (6) The agency and name and telephone number of the agency point of 
contact for the action.



Sec. 29.505  DOT responsibilities.

    (a) The agency shall provide GSA with current information concerning 
debarments, suspension, determinations of ineligibility, and voluntary 
exclusions it has taken. Until February 18, 1989, the agency shall also 
provide GSA and OMB with information concerning all transactions in 
which DOT has granted exceptions under Sec. 29.215 permitting 
participation by debarred, suspended, or voluntarily excluded persons.
    (b) Unless an alternative schedule is agreed to by GSA, the agency 
shall advise GSA of the information set forth in Sec. 29.500(b) and of 
the exceptions granted under Sec. 29.215 within five working days after 
taking such actions.
    (c) The agency shall direct inquiries concerning listed persons to 
the agency that took the action.
    (d) Agency officials shall check the Nonprocurement List before 
entering covered transactions to determine whether a participant in a 
primary transaction is debarred, suspended, ineligible, or voluntarily 
excluded (Tel. ).
    (e) Agency officials shall check the Nonprocurement List before 
approving principals or lower tier participants where agency approval of 
the principal or lower tier participant is required under the terms of 
the transaction, to determine whether such principals or participants 
are debarred, suspended, ineligible, or voluntarily excluded.



Sec. 29.510  Participants' responsibilities.

    (a) Certification by participants in primary covered transactions. 
Each participant shall submit the certification in appendix A to this 
part for it and its principals at the time the participant submits its 
proposal in connection with a primary covered transaction, except that 
States need only complete such certification as to their principals. 
Participants may decide the method and frequency by which they determine 
the eligibility of their principals. In

[[Page 304]]

addition, each participant may, but is not required to, check the 
Nonprocurement List for its principals (Tel. ). Adverse information on 
the certification will not necessarily result in denial of 
participation. However, the certification, and any additional 
information pertaining to the certification submitted by the 
participant, shall be considered in the administration of covered 
transactions.
    (b) Certification by participants in lower tier covered 
transactions. (1) Each participant shall require participants in lower 
tier covered transactions to include the certification in appendix B to 
this part for it and its principals in any proposal submitted in 
connection with such lower tier covered transactions.
    (i) However, an operating administration may require that a person 
who enters into a primary covered transaction require the next lower 
tier participant to include, with conforming modifications, the 
certification in appendix A.
    (ii) [Reserved]
    (2) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, ineligible, or voluntarily 
excluded from the covered transaction by any Federal agency, unless it 
knows that the certification is erroneous. Participants may decide the 
method and frequency by which they determine the eligiblity of their 
principals. In addition, a participant may, but is not required to, 
check the Nonprocurement List for its principals and for participants 
(Tel. ).
    (c) Changed circumstances regarding certification. A participant 
shall provide immediate written notice to DOT if at any time the 
participant learns that its certification was erroneous when submitted 
or has become erroneous by reason of changed circumstances. Participants 
in lower tier covered transactions shall provide the same updated notice 
to the participant to which it submitted its proposals.

[Amdt. 29-1, 53 FR 19203, 19204, May 26, 1988, as amended at 53 FR 
19204, May 26, 1988]



          Subpart F--Drug-Free Workplace Requirements (Grants)

    Source: 55 FR 21688, 21705, May 25, 1990, unless otherwise noted.



Sec. 29.600  Purpose.

    (a) The purpose of this subpart is to carry out the Drug-Free 
Workplace Act of 1988 by requiring that--
    (1) A grantee, other than an individual, shall certify to the agency 
that it will provide a drug-free workplace;
    (2) A grantee who is an individual shall certify to the agency that, 
as a condition of the grant, he or she will not engage in the unlawful 
manufacture, distribution, dispensing, possession or use of a controlled 
substance in conducting any activity with the grant.
    (b) Requirements implementing the Drug-Free Workplace Act of 1988 
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, 
and 52.2.



Sec. 29.605  Definitions.

    (a) Except as amended in this section, the definitions of 
Sec. 29.105 apply to this subpart.
    (b) For purposes of this subpart--
    (1) Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15;
    (2) Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    (3) Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    (4) Drug-free workplace means a site for the performance of work 
done in connection with a specific grant at which employees of the 
grantee are prohibited from engaging in the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance;

[[Page 305]]

    (5) Employee means the employee of a grantee directly engaged in the 
performance of work under the grant, including:
    (i) All direct charge employees;
    (ii) All indirect charge employees, unless their impact or 
involvement is insignificant to the performance of the grant; and,
    (iii) Temporary personnel and consultants who are directly engaged 
in the performance of work under the grant and who are on the grantee's 
payroll.

This definition does not include workers not on the payroll of the 
grantee (e.g., volunteers, even if used to meet a matching requirement; 
consultants or independent contractors not on the payroll; or employees 
of subrecipients or subcontractors in covered workplaces);
    (6) Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency;
    (7) Grant means an award of financial assistance, including a 
cooperative agreement, in the form of money, or property in lieu of 
money, by a Federal agency directly to a grantee. The term grant 
includes block grant and entitlement grant programs, whether or not 
exempted from coverage under the grants management government-wide 
common rule on uniform administrative requirements for grants and 
cooperative agreements. The term does not include technical assistance 
that provides services instead of money, or other assistance in the form 
of loans, loan guarantees, interest subsidies, insurance, or direct 
appropriations; or any veterans' benefits to individuals, i.e., any 
benefit to veterans, their families, or survivors by virtue of the 
service of a veteran in the Armed Forces of the United States;
    (8) Grantee means a person who applies for or receives a grant 
directly from a Federal agency (except another Federal agency);
    (9) Individual means a natural person;
    (10) State means any of the States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers the instrumentality to be an agency of the 
State government.



Sec. 29.610  Coverage.

    (a) This subpart applies to any grantee of the agency.
    (b) This subpart applies to any grant, except where application of 
this subpart would be inconsistent with the international obligations of 
the United States or the laws or regulations of a foreign government. A 
determination of such inconsistency may be made only by the agency head 
or his/her designee.
    (c) The provisions of subparts A, B, C, D and E of this part apply 
to matters covered by this subpart, except where specifically modified 
by this subpart. In the event of any conflict between provisions of this 
subpart and other provisions of this part, the provisions of this 
subpart are deemed to control with respect to the implementation of 
drug-free workplace requirements concerning grants.



Sec. 29.615  Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.

    A grantee shall be deemed in violation of the requirements of this 
subpart if the agency head or his or her official designee determines, 
in writing, that--
    (a) The grantee has made a false certification under Sec. 29.630;
    (b) With respect to a grantee other than an individual--
    (1) The grantee has violated the certification by failing to carry 
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the 
certification (Alternate I to appendix C) or

[[Page 306]]

    (2) Such a number of employees of the grantee have been convicted of 
violations of criminal drug statutes for violations occurring in the 
workplace as to indicate that the grantee has failed to make a good 
faith effort to provide a drug-free workplace.
    (c) With respect to a grantee who is an individual--
    (1) The grantee has violated the certification by failing to carry 
out its requirements (Alternate II to appendix C); or
    (2) The grantee is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any grant activity.



Sec. 29.620  Effect of violation.

    (a) In the event of a violation of this subpart as provided in 
Sec. 29.615, and in accordance with applicable law, the grantee shall be 
subject to one or more of the following actions:
    (1) Suspension of payments under the grant;
    (2) Suspension or termination of the grant; and
    (3) Suspension or debarment of the grantee under the provisions of 
this part.
    (b) Upon issuance of any final decision under this part requiring 
debarment of a grantee, the debarred grantee shall be ineligible for 
award of any grant from any Federal agency for a period specified in the 
decision, not to exceed five years (see Sec. 29.320(a)(2) of this part).



Sec. 29.625  Exception provision.

    The agency head may waive with respect to a particular grant, in 
writing, a suspension of payments under a grant, suspension or 
termination of a grant, or suspension or debarment of a grantee if the 
agency head determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



Sec. 29.630  Certification requirements and procedures.

    (a)(1) As a prior condition of being awarded a grant, each grantee 
shall make the appropriate certification to the Federal agency providing 
the grant, as provided in appendix C to this part.
    (2) Grantees are not required to make a certification in order to 
continue receiving funds under a grant awarded before March 18, 1989, or 
under a no-cost time extension of such a grant. However, the grantee 
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
    (b) Except as provided in this section, all grantees shall make the 
required certification for each grant. For mandatory formula grants and 
entitlements that have no application process, grantees shall submit a 
one-time certification in order to continue receiving awards.
    (c) A grantee that is a State may elect to make one certification in 
each Federal fiscal year. States that previously submitted an annual 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. Except as provided in paragraph (d) of this 
section, this certification shall cover all grants to all State agencies 
from any Federal agency. The State shall retain the original of this 
statewide certification in its Governor's office and, prior to grant 
award, shall ensure that a copy is submitted individually with respect 
to each grant, unless the Federal agency has designated a central 
location for submission.
    (d)(1) The Governor of a State may exclude certain State agencies 
from the statewide certification and authorize these agencies to submit 
their own certifications to Federal agencies. The statewide 
certification shall name any State agencies so excluded.
    (2) A State agency to which the statewide certification does not 
apply, or a State agency in a State that does not have a statewide 
certification, may elect to make one certification in each Federal 
fiscal year. State agencies that previously submitted a State agency 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. The State agency shall retain the original of 
this State agency-wide certification in its central office and, prior to 
grant award, shall

[[Page 307]]

ensure that a copy is submitted individually with respect to each grant, 
unless the Federal agency designates a central location for submission.
    (3) When the work of a grant is done by more than one State agency, 
the certification of the State agency directly receiving the grant shall 
be deemed to certify compliance for all workplaces, including those 
located in other State agencies.
    (e)(1) For a grant of less than 30 days performance duration, 
grantees shall have this policy statement and program in place as soon 
as possible, but in any case by a date prior to the date on which 
performance is expected to be completed.
    (2) For a grant of 30 days or more performance duration, grantees 
shall have this policy statement and program in place within 30 days 
after award.
    (3) Where extraordinary circumstances warrant for a specific grant, 
the grant officer may determine a different date on which the policy 
statement and program shall be in place.



Sec. 29.635  Reporting of and employee sanctions for convictions of criminal drug offenses.

    (a) When a grantee other than an individual is notified that an 
employee has been convicted for a violation of a criminal drug statute 
occurring in the workplace, it shall take the following actions:
    (1) Within 10 calendar days of receiving notice of the conviction, 
the grantee shall provide written notice, including the convicted 
employee's position title, to every grant officer, or other designee on 
whose grant activity the convicted employee was working, unless a 
Federal agency has designated a central point for the receipt of such 
notifications. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.
    (2) Within 30 calendar days of receiving notice of the conviction, 
the grantee shall do the following with respect to the employee who was 
convicted.
    (i) Take appropriate personnel action against the employee, up to 
and including termination, consistent with requirements of the 
Rehabilitation Act of 1973, as amended; or
    (ii) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency.
    (b) A grantee who is an individual who is convicted for a violation 
of a criminal drug statute occurring during the conduct of any grant 
activity shall report the conviction, in writing, within 10 calendar 
days, to his or her Federal agency grant officer, or other designee, 
unless the Federal agency has designated a central point for the receipt 
of such notices. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.

(Approved by the Office of Management and Budget under control number 
0991-0002)

 Appendix A to Part 29--Certification Regarding Debarment, Suspension, 
     and Other Responsibility Matters--Primary Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective primary 
participant is providing the certification set out below.
    2. The inability of a person to provide the certification required 
below will not necessarily result in denial of participation in this 
covered transaction. The prospective participant shall submit an 
explanation of why it cannot provide the certification set out below. 
The certification or explanation will be considered in connection with 
the department or agency's determination whether to enter into this 
transaction. However, failure of the prospective primary participant to 
furnish a certification or an explanation shall disqualify such person 
from participation in this transaction.
    3. The certification in this clause is a material representation of 
fact upon which reliance was placed when the department or agency 
determined to enter into this transaction. If it is later determined 
that the prospective primary participant knowingly rendered an erroneous 
certification, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.
    4. The prospective primary participant shall provide immediate 
written notice to the department or agency to which this proposal is 
submitted if at any time the prospective primary participant learns that 
its

[[Page 308]]

certification was erroneous when submitted or has become erroneous by 
reason of changed circumstances.
    5. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meanings set out in the Definitions and Coverage 
sections of the rules implementing Executive Order 12549. You may 
contact the department or agency to which this proposal is being 
submitted for assistance in obtaining a copy of those regulations.
    6. The prospective primary participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency entering into this transaction.
    7. The prospective primary participant further agrees by submitting 
this proposal that it will include the clause titled ``Certification 
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency 
entering into this covered transaction, without modification, in all 
lower tier covered transactions and in all solicitations for lower tier 
covered transactions.
    8. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from the covered transaction, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    9. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    10. Except for transactions authorized under paragraph 6 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.

Certification Regarding Debarment, Suspension, and Other Responsibility 
                  Matters--Primary Covered Transactions

    (1) The prospective primary participant certifies to the best of its 
knowledge and belief, that it and its principals:
    (a) Are not presently debarred, suspended, proposed for debarment, 
declared ineligible, or voluntarily excluded by any Federal department 
or agency;
    (b) Have not within a three-year period preceding this proposal been 
convicted of or had a civil judgment rendered against them for 
commission of fraud or a criminal offense in connection with obtaining, 
attempting to obtain, or performing a public (Federal, State or local) 
transaction or contract under a public transaction; violation of Federal 
or State antitrust statutes or commission of embezzlement, theft, 
forgery, bribery, falsification or destruction of records, making false 
statements, or receiving stolen property;
    (c) Are not presently indicted for or otherwise criminally or 
civilly charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses enumerated in paragraph (1)(b) of this 
certification; and
    (d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local) 
terminated for cause or default.
    (2) Where the prospective primary participant is unable to certify 
to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[60 FR 33042, 33064, June 26, 1995]

 Appendix B to Part 29--Certification Regarding Debarment, Suspension, 
 Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective lower 
tier participant is providing the certification set out below.
    2. The certification in this clause is a material representation of 
fact upon which reliance was placed when this transaction was entered 
into. If it is later determined that the prospective lower tier 
participant knowingly rendered an erroneous certification, in addition 
to other remedies available to the Federal Government the department or

[[Page 309]]

agency with which this transaction originated may pursue available 
remedies, including suspension and/or debarment.
    3. The prospective lower tier participant shall provide immediate 
written notice to the person to which this proposal is submitted if at 
any time the prospective lower tier participant learns that its 
certification was erroneous when submitted or had become erroneous by 
reason of changed circumstances.
    4. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meaning set out in the Definitions and Coverage 
sections of rules implementing Executive Order 12549. You may contact 
the person to which this proposal is submitted for assistance in 
obtaining a copy of those regulations.
    5. The prospective lower tier participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency with which this transaction originated.
    6. The prospective lower tier participant further agrees by 
submitting this proposal that it will include this clause titled 
``Certification Regarding Debarment, Suspension, Ineligibility and 
Voluntary Exclusion-Lower Tier Covered Transaction,'' without 
modification, in all lower tier covered transactions and in all 
solicitations for lower tier covered transactions.
    7. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from covered transactions, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    8. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    9. Except for transactions authorized under paragraph 5 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency with which this transaction 
originated may pursue available remedies, including suspension and/or 
debarment.

    Certification Regarding Debarment, Suspension, Ineligibility an 
          Voluntary Exclusion--Lower Tier Covered Transactions

    (1) The prospective lower tier participant certifies, by submission 
of this proposal, that neither it nor its principals is presently 
debarred, suspended, proposed for debarment, declared ineligible, or 
voluntarily excluded from participation in this transaction by any 
Federal department or agency.
    (2) Where the prospective lower tier participant is unable to 
certify to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[60 FR 33042, 33064, June 26, 1995]

   Appendix C to Part 29--Certification Regarding Drug-Free Workplace 
                              Requirements

                     Instructions for Certification

    1. By signing and/or submitting this application or grant agreement, 
the grantee is providing the certification set out below.
    2. The certification set out below is a material representation of 
fact upon which reliance is placed when the agency awards the grant. If 
it is later determined that the grantee knowingly rendered a false 
certification, or otherwise violates the requirements of the Drug-Free 
Workplace Act, the agency, in addition to any other remedies available 
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
    3. For grantees other than individuals, Alternate I applies.
    4. For grantees who are individuals, Alternate II applies.
    5. Workplaces under grants, for grantees other than individuals, 
need not be identified on the certification. If known, they may be 
identified in the grant application. If the grantee does not identify 
the workplaces at the time of application, or upon award, if there is no 
application, the grantee must keep the identity of the workplace(s) on 
file in its office and make the information available for Federal 
inspection. Failure to identify all known workplaces constitutes a 
violation of the grantee's drug-free workplace requirements.

[[Page 310]]

    6. Workplace identifications must include the actual address of 
buildings (or parts of buildings) or other sites where work under the 
grant takes place. Categorical descriptions may be used (e.g., all 
vehicles of a mass transit authority or State highway department while 
in operation, State employees in each local unemployment office, 
performers in concert halls or radio studios).
    7. If the workplace identified to the agency changes during the 
performance of the grant, the grantee shall inform the agency of the 
change(s), if it previously identified the workplaces in question (see 
paragraph five).
    8. Definitions of terms in the Nonprocurement Suspension and 
Debarment common rule and Drug-Free Workplace common rule apply to this 
certification. Grantees' attention is called, in particular, to the 
following definitions from these rules:
    Controlled substance means a controlled substance in Schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812) and as 
further defined by regulation (21 CFR 1308.11 through 1308.15);
    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    Employee means the employee of a grantee directly engaged in the 
performance of work under a grant, including: (i) All direct charge 
employees; (ii) All indirect charge employees unless their impact or 
involvement is insignificant to the performance of the grant; and, (iii) 
Temporary personnel and consultants who are directly engaged in the 
performance of work under the grant and who are on the grantee's 
payroll. This definition does not include workers not on the payroll of 
the grantee (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the grantee's 
payroll; or employees of subrecipients or subcontractors in covered 
workplaces).

        Certification Regarding Drug-Free Workplace Requirements

             Alternate I. (Grantees Other Than Individuals)

    A. The grantee certifies that it will or will continue to provide a 
drug-free workplace by:
    (a) Publishing a statement notifying employees that the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance is prohibited in the grantee's workplace and 
specifying the actions that will be taken against employees for 
violation of such prohibition;
    (b) Establishing an ongoing drug-free awareness program to inform 
employees about--
    (1) The dangers of drug abuse in the workplace;
    (2) The grantee's policy of maintaining a drug-free workplace;
    (3) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (4) The penalties that may be imposed upon employees for drug abuse 
violations occurring in the workplace;
    (c) Making it a requirement that each employee to be engaged in the 
performance of the grant be given a copy of the statement required by 
paragraph (a);
    (d) Notifying the employee in the statement required by paragraph 
(a) that, as a condition of employment under the grant, the employee 
will--
    (1) Abide by the terms of the statement; and
    (2) Notify the employer in writing of his or her conviction for a 
violation of a criminal drug statute occurring in the workplace no later 
than five calendar days after such conviction;
    (e) Notifying the agency in writing, within ten calendar days after 
receiving notice under paragraph (d)(2) from an employee or otherwise 
receiving actual notice of such conviction. Employers of convicted 
employees must provide notice, including position title, to every grant 
officer or other designee on whose grant activity the convicted employee 
was working, unless the Federal agency has designated a central point 
for the receipt of such notices. Notice shall include the identification 
number(s) of each affected grant;
    (f) Taking one of the following actions, within 30 calendar days of 
receiving notice under paragraph (d)(2), with respect to any employee 
who is so convicted--
    (1) Taking appropriate personnel action against such an employee, up 
to and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973, as amended; or
    (2) Requiring such employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency;
    (g) Making a good faith effort to continue to maintain a drug-free 
workplace through implementation of paragraphs (a), (b), (c), (d), (e) 
and (f).
    B. The grantee may insert in the space provided below the site(s) 
for the performance of work done in connection with the specific grant:

Place of Performance (Street address, city, county, state, zip code)

[[Page 311]]

_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Check {time}  if there are workplaces on file that are not identified 
here.

              Alternate II. (Grantees Who Are Individuals)

    (a) The grantee certifies that, as a condition of the grant, he or 
she will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity with the grant;
    (b) If convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any grant activity, he or she 
will report the conviction, in writing, within 10 calendar days of the 
conviction, to every grant officer or other designee, unless the Federal 
agency designates a central point for the receipt of such notices. When 
notice is made to such a central point, it shall include the 
identification number(s) of each affected grant.

[55 FR 21690, 21705, May 25, 1990]



PART 30--DENIAL OF PUBLIC WORKS CONTRACTS TO SUPPLIERS OF GOODS AND SERVICES OF COUNTRIES THAT DENY PROCUREMENT MARKET ACCESS TO U.S. CONTRACTORS--Table of Contents




Sec.
30.1  Purpose.
30.3  Applicability.
30.5  Effective dates.
30.7  Definitions.
30.9  Citizenship: Direct or indirect control.
30.11  Use of solicitation provisions and contract clauses.
30.13  Restrictions on Federal public works projects: Certification.
30.15  Restrictions on Federal public works projects.
30.17  Waivers.
30.19  Buy American Act.

    Authority: 49 U.S.C. 322(a); Containing Resolution on the Fiscal 
Year 1988 Budget 109(a), Pub. L. 100-202; Airport and Airways Safety and 
Capacity Expansion Act of 1987, 115, Pub. L. 100-223.

    Source: 53 FR 19916, June 1, 1988, unless otherwise noted.



Sec. 30.1  Purpose.

    The rules in this part implement section 109(a) of the Continuing 
Resolution on the Fiscal Year 1988 Budget, Public Law No. 100-202 
(signed December 22, 1987) [the Continuing Resolution], and section 115 
of the Airport and Airways Safety and Capacity Expansion Act of 1987, 
Public Law No. 100-223 (signed December 30, 1987) [the Airport Safety 
Act]. These rules are intended to give uniform implementation to these 
statutes throughout DOT procurement and grant programs.



Sec. 30.3  Applicability.

    (a) The restrictions imposed by section 109(a) of the Continuing 
Resolution extend to all DOT agencies as well as all recipients of DOT 
funds. The restrictions apply to all projects for which funds are 
obligated or contracts or subcontracts are awarded during fiscal year 
1988, including projects and contracts under all DOT financial 
assistance programs. The prohibition applies to public buildings and 
public works projects everywhere in the United States or any territory 
or possession of the United States. U.S. overseas bases, installations, 
and embassies are not subject to this part.
    (b) The restrictions imposed by section 115 of the Airport Safety 
Act extend to all projects for which funds are made available by that 
Act, whether or not the contracts are awarded during fiscal year 1988. 
The restrictions apply to all contracts entered into under grants 
authorized by the Airport Safety Act.
    (c) This part applies to projects covered by section 109(a) of the 
Continuing Resolution, section 115 of the Airport Safety Act, or both. 
Whether one or the other statute or both apply, the effect on the 
project shall be the same, subject to paragraph (e) of this section.
    (d) In addition to construction, alteration, and repair contracts, 
the restrictions of this part cover all architect, engineering, and 
other services related to the preparation and performance of 
construction, alteration, and repair of public projects and public 
works.
    (e) The restrictions of this part also apply to all products used in 
the construction, alteration, or repair of public projects and public 
works; Provided, however, That
    (1) The restrictions of this part do not apply to construction 
equipment or vehicles that do not become part of a delivered structure, 
product, or project and

[[Page 312]]

    (2) Notwithstanding paragraph (c) of this section, the restrictions 
of section 109(a) of the Continuing Resolution do not apply to vehicles 
to be used by the project, including, but not limited to, buses, trucks, 
automobiles, rail rolling stock, and aircraft.



Sec. 30.5  Effective dates.

    The provisions of section 109(a) of the Continuing Resolution apply 
to contracts (or new subcontracts under existing contracts, whether or 
not subject to the restriction) entered into after December 22, 1987, 
its date of enactment, and before October 1, 1988. The provisions of 
section 115 of the Airport Safety Act apply to contracts funded by the 
Act and entered into after December 30, 1987, its date of enactment; the 
restrictions remain effective so long as money provided by the Airport 
Safety Act is used. Accordingly, any contracts or subcontracts subject 
to the restrictions of this part entered into with contractors or 
subcontractors owned or controlled by citizens of subject countries, as 
defined by Secs. 30.7 and 30.9 of this part, since December 22, 1987 
shall be canceled at no cost to the Government, subject to the waiver 
provisions of Sec. 30.17 of this part. All public works or public 
buildings contracts entered into after December 22, 1987, shall include, 
or be modified to include, a provision prohibiting subcontracting with 
citizens of subject countries, as defined by Secs. 30.7 and 30.9 of this 
part.



Sec. 30.7  Definitions.

    (a) Funds appropriated for FY 1988 by this resolution or any other 
law, as used in this part with reference to section 109(a) of the 
Continuing Resolution, means all appropriated and trust funds available 
to DOT, its modal administration, or their grantees for expenditure or 
obligation in fiscal year 1988, regardless of the fiscal year in which 
the funds were appropriated.
    (b) Funds made available by this Act, as used in this part with 
reference to section 115(a) of the Airport Safety Act, means all funds, 
including trust funds, made available to DOT, its modal administrations, 
or their grantees by that Act, whether or not the contracts to be funded 
are awarded during fiscal year 1988.
    (c) Contractor and subcontractor means any person, other than a 
supplier of products, performing any architectural, engineering, or 
other service directly related to the preparation for or performance of 
the construction, alteration, or repair of any public building or public 
work in the United States or any territory or possession of the United 
States.
    (d) Contractor or subcontractor of a foreign country means any 
contractor or subcontractor that is a citizen or national of a foreign 
country, or is controlled directly or indirectly by one or more citizens 
or nationals of a foreign country.
    (e) Service of a foreign country means any service provided by a 
person that is a citizen or national of a foreign country, or is 
controlled by one or more citizens or nationals of a foreign country.
    (f) Product of a foreign country means construction materials, i.e., 
articles, materials, and supplies brought to the construction site for 
incorporation into the public works project. A product is considered to 
have been produced in a foreign country if more than fifty percent of 
the total cost of the product is allocable to production or manufacture 
in the foreign country.
    (g) Foreign country means a country included in the list of 
countries that discriminate against U.S. firms published by the U.S.T.R.



Sec. 30.9  Citizenship: Direct or indirect control.

    A contractor, subcontractor, or person providing a service shall be 
considered to be a citizen or national of a foreign country, or 
controlled directly or indirectly by citizens or nationals of a foreign 
country, within the meaning of this part.
    (a) If 50 percent or more of the contractor or subcontractor is 
owned by one or more citizens or nationals of the foreign country;
    (b) If the title to 50 percent or more of the stock of the 
contractor or subcontractor is held subject to trust or fiduciary 
obligation in favor of one or more citizens or nationals of the foreign 
country;

[[Page 313]]

    (c) If 50 percent or more of the voting power in the contractor or 
subcontractor is vested in or exercisable on behalf of one or more 
citizens or nationals of the foreign country;
    (d) In the case of a partnership, if any general partner is a 
citizen or national of the foreign country;
    (e) In the case of a corporation, if the number of its directors 
necessary to constitute a quorum are citizens of the foreign country or 
the corporation is organized under the laws of the foreign country or 
any subdivision, territory, or possession thereof; or
    (f) In the case of a contractor or subcontractor that is a joint 
venture, if any participant meets any of the criteria in paragraphs (a) 
through (e) of this section.



Sec. 30.11  Use of solicitation provisions and contract clauses.

    (a) Unless the President or the Secretary waives the restrictions 
imposed by section 109(a) of the Continuing Resolution in accordance 
with Sec. 30.17 of this part, the contracting officer shall insert a 
clause similar to the clause at Sec. 30.15, Restrictions on Federal 
Public Works Projects, in contractions and solicitations, if--
    (1) The contract is awarded on or after December 22, 1987, and 
before October 1, 1988; and
    (2) The contract obligates funds appropriated for use in FY 1988 by 
the Continuing Resolution or any other law; and
    (3) The contract is for the acquisition of construction, alteration 
and repair, architectural, engineering, or other services directly 
related to the preparation for, or performance of, construction, 
alteration, and repair for Federal public works projects inside the 
United States, U.S. territories, or U.S. possessions.
    (b) Unless the Secretary waives the restrictions imposed by section 
115 of the Airport Safety Act in accordance with Sec. 30.17 of this 
part, the contracting officer shall insert a clause similar to the 
clause at Sec. 30.15, Restrictions on Federal Public Works Projects, in 
contracts and solicitations relating to any project for which funds, 
including grant funds, are made available by that Act, whether or not 
the contract is awarded during fiscal year 1988.
    (c) Any contract already awarded that should have contained the 
clause prescribed in paragraph (a) or (b) of this section, but did not, 
shall be modified to include the clause. In the event that the 
contracting officer is unable to modify such contract, the contract 
shall be canceled at no cost to the Government, unless a waiver is 
granted in accordance with Sec. 30.17 of this part.
    (d) Contracting officers shall insert a provision similar to the 
solicitation provision at Sec. 30.13 of this part, Restrictions on 
Public Works Projects--Certification, in solicitations containing the 
clause at Sec. 30.15 of this part, Restrictions on Federal Public Works 
Projects.
    (e) Any solicitation issued before December 22, 1987, that will 
result in the award of a contract covered by paragraph (a) of this 
section after December 22, 1987, and before October 1, 1988, and that 
should have contained a provision similar to that Sec. 30.13 of this 
part, but did not, shall be amended to include the provision if the 
contract has not yet been awarded.



Sec. 30.13  Restrictions on Federal public works projects: Certification.

    As prescribed in Sec. 30.11(c) of this part, the contracting officer 
shall insert the following provision in solicitations containing the 
clause at Sec. 30.15, Restrictions on Federal Public Works Projects:

      Restrictions on Federal Public Works Projects--Certification

    (a) Definitions. The definitions pertaining to this provision are 
those that are set forth in 49 CFR 30.7-30.9.
    (b) Certification. By signing this solicitation, the Offeror 
certifies that with respect to this solicitation, and any resultant 
contract, the Offeror--
    (1) Is [  ] is not [  ] a contractor of a foreign country included 
on the list of countries that discriminated against U.S. firms published 
by the Office of the United States Trade Representative (U.S.T.R.);
    (2) Has [  ] has not [  ] entered into any contract or subcontract 
with a subcontractor of a foreign country included on the list of 
countries that discriminate against U.S. firms published by the 
U.S.T.R.; and
    (3) Has [  ] has not [  ] entered into any subcontract for any 
product to be used on

[[Page 314]]

the Federal public works project that is produced in a foreign country 
included on the list of countries that discriminate against U.S. firms 
published by the U.S.T.R.
    (c) Applicability of 18 U.S.C. 1001. This certification in this 
solicitation provision concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the maker subject to prosecution 
under Title 18, United States Code, Section 1001.
    (d) Notice. The Offeror shall provide immediate written notice to 
the Contracting Officer if, at any time prior to contract award, the 
Offeror learns that its certification was erroneous when submitted or 
has become erroneous by reason of changed circumstances.
    (e) Restrictions on contract award. No contract will be awarded to 
an offeror (1) who is owned or controlled by one or more citizens or 
nationals of a foreign country included on the list of countries that 
discriminate against U.S. firms published by the U.S.T.R. or (2) whose 
subcontractors are owned or controlled by one or more citizens or 
nationals of a foreign country on such U.S.T.R. list or (3) who 
incorporates in the public works project any product of a foreign 
country on such U.S.T.R. list; unless a waiver to these restrictions is 
granted by the President of the United States or the Secretary of 
Transportation. (Notice of the granting of a waiver will be published in 
the Federal Register.)
    (f) System. Nothing contained in the foregoing shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by paragraph (b) of this provision. 
The knowledge and information of an Offeror is not required to exceed 
that which is normally possessed by a prudent person in the ordinary 
course of business dealings.
    (g) Subcontracts. The Offeror agrees that, if awarded a contract 
resulting from this solicitation, it will incorporate this solicitation 
provision, including this paragraph (g), in each solicitation issued 
under such contract.

                           [End of Provision]



Sec. 30.15  Restrictions on Federal public works projects.

    The contracting officer shall insert the following clause in 
solicitations and contracts as prescribed at Sec. 30.11(a) through (b) 
of this part:

              Restrictions on Federal Public Works Projects

    (a) Definitions. The definitions pertaining to this clause are those 
that are set forth in 49 CFR 30.7--30.9
    (b) General. This clause implements the procurement provisions 
contained in the Continuing Resolution on the Fiscal Year 1988 Budget, 
Public Law No. 100-202, and the Airport and Airway Safety and Capacity 
Expansion Act of 1987, Public Law No. 100-223.
    (c) Restrictions. The Contractor shall not knowingly enter into any 
subcontract under this contract: (1) With a subcontractor of a foreign 
country included on the list of countries that discriminate against U.S. 
firms published by the United States Trade Representative (U.S.T.R.); or 
(2) for the supply of any product for use on the Federal Public works 
project under this contract that is produced or manufactured in a 
foreign country included on the list of countries that discriminate 
against U.S. firms published by the U.S.T.R.
    (d) Certification. The Contractor may rely upon the certification of 
a prospective subcontractor that it is not a subcontractor of a foreign 
country included on the list of countries that discriminates against 
U.S. firms published by the U.S.T.R. and that products supplied by such 
subcontractor for use on the Federal public works project under this 
contract are not products of a foreign country included on the list of 
countries that discriminate against U.S. firms published by the 
U.S.T.R., unless the contractor has knowledge that the certification is 
erroneous.
    (e) Erroneous certification. The certification in paragraph (b) of 
the provision entitled ``Restriction on Federal Public Works Projects--
Certification,'' is a material representation of fact upon which 
reliance was placed when making the award. If it is later determined 
that the Contractor knowingly rendered an erroneous certification, in 
addition to other remedies available to the Government, the Contracting 
Officer may cancel this contract for default at no cost to the 
Government.
    (f) Cancellation. Unless the restrictions of this clause are waived 
as provided in paragraph (e) of the provision entitled ``Restriction on 
Federal Public Works Projects--Certification,'' if the Contractor 
knowingly enters into a subcontract with a subcontractor that is a 
subcontractor of a foreign country included on the list of countries 
that discriminate against U.S. firms published by the U.S.T.R. or that 
supplies any product for use on the Federal public works project under 
this contract of a foreign country included on the list of countries 
that discriminate against U.S. firms published by the U.S.T.R., the 
Contracting Officer may cancel this contract for default, at no cost to 
the Government.
    (g) Subcontracts. The Contractor shall incorporate this clause, 
without modification, including this paragraph (g) in all solicitations 
and subcontracts under this contract:

[[Page 315]]

 Certification Regarding Restrictions on Federal Public Works Projects--
                             Subcontractors

    (1) The Offeror/Contractor, by submission of an offer and/or 
execution of a contract certifies that the Offeror/Contractor is (i) not 
an Offeror/Contractor owned or controlled by one or more citizens or 
nationals of a foreign country included on the list of countries that 
discriminate against U.S. firms published by the United States Trade 
Representative (U.S.T.R.) or (2) not supplying any product for use on 
the Federal public works project that is produced or manufactured in a 
foreign country included on the list of foreign countries that 
discriminate against U.S. firms published by the U.S.T.R.

   THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN 
  AGENCY OF THE UNITED STATES AND THE MAKING OF A FALSE FICTITIOUS, OR 
  FRAUDULENT CERTIFICATION MAY RENDER THE MAKER SUBJECT TO PROSECUTION 
            UNDER TITLE 18, UNITED STATES CODE, SECTION 1001

    (2) The Offeror shall provide immediate written notice to the 
Contractor if, at any time, the Offeror learns that its certification 
was erroneous by reason of changed circumstances.
    (3) The Contractor shall not knowingly enter into any subcontract 
under this contract: (i) with a subcontractor of a foreign country 
included on the list of countries that discriminate against U.S. firms 
published by the U.S.T.R.; or (ii) for the supply of any product for use 
on the Federal public works project under this contract that is produced 
or manufactured in a foreign country included on the list of countries 
that discriminate against U.S. firms published by the U.S.T.R. The 
contractor may rely upon the certification in paragraph (g)(1) of this 
clause unless it has knowledge that the certification is erroneous.
    (4) Unless the restrictions of this clause have been waived under 
the contract for the Federal public works project, if a contractor 
knowingly enters into a subcontract with a subcontractor that is a 
subcontractor of a foreign country included on the list of countries 
that discriminate against U.S. firms published by the U.S.T.R. or that 
supplies any product for use on the Federal public works project under 
this contract that is produced or manufactured in a foreign country 
included on the list of countries that discriminate against U.S. firms 
published by the U.S.T.R., the Government Contracting Officer may 
direct, through higher-tier contractors, cancellation of this contract 
at no cost to the Government.
    (5) Definitions. The definitions pertaining to this clause are those 
that are set forth in 49 CFR 30.7--30.9.
    (6) The certification in paragraph (g)(1) of this clause is a 
material representation of fact upon which reliance was placed when 
making the award. If it is later determined that the Contractor 
knowingly rendered an erroneous certification, in addition to other 
remedies available to the Government, the Government Contracting Officer 
may direct, through higher-tier Contractors, cancellation of this 
subcontract at no cost to the Government.
    (7) The Contractor agrees to insert this clause, without 
modification, including this paragraph, in all solicitations and 
subcontracts under this clause.

                             [End of Clause]



Sec. 30.17  Waivers.

    (a) The Secretary may waive the restrictions imposed by section 115 
of the Airport Safety Act on the use of a product or service in a 
project if the Secretary determines that:
    (1) Application of the restriction to such product, service, or 
project would not be in the public interest;
    (2) Products or services of the same class or kind are not produced 
or offered in the United States, or in any foreign country that is not 
listed by the U.S.T.R. in sufficient and reasonable available quantities 
and of a satisfactory quality; or
    (3) Exclusion of such product or service from the project would 
increase the cost of the overall project contract by more than 20 
percent.
    (b) The President or the Secretary may waive the restrictions 
imposed by section 109(a) of the Continuing Resolution with respect to 
an individual contract if the President or the Secretary determines that 
such action is necessary in the public interest, on a contract-by-
contract basis. The Secretary may apply the factors listed in paragraphs 
(a)(2) and (a)(3) of this section in determining whether a waiver is in 
the public interest.
    (c) The authority of the President or the Secretary to issue waivers 
may not be delegated. The Department shall publish notice of any waiver 
granted pursuant to this part by the President or the Secretary in the 
Federal Register within ten days. The notice shall

[[Page 316]]

describe in detail the contract involved, the specific reasons for 
granting the waiver, and how the waiver meets the criteria of this 
section.



Sec. 30.19  Buy American Act.

    The restrictions of this part are in addition to any other 
restrictions contained in Federal law, including the Buy American Act, 
41 U.S.C. 10a-10d, and Buy American provisions in legislation governing 
DOT provisions. Normal evaluation methods for implementing the 
provisions of the Buy American Act in contracts for the construction, 
alteration, or repair of public buildings or public works will be 
applied after determining the offeror's eligible for award on the basis 
of application of the provisions in this part.



PART 31--PROGRAM FRAUD CIVIL REMEDIES--Table of Contents




Sec.
31.1  Basis and purpose.
31.2  Definitions.
31.3  Basis for civil penalties and assessments.
31.4  Investigation.
31.5  Review by the reviewing official.
31.6  Prerequisites for issuing a complaint.
31.7  Complaint.
31.8  Service of complaint.
31.9  Answer.
31.10  Default upon failure to answer.
31.11  Referral of complaint and answer to the ALJ.
31.12  Notice of hearing.
31.13  Parties to the hearing.
31.14  Separation of functions.
31.15  Ex parte contacts.
31.16  Disqualification of reviewing official or ALJ.
31.17  Rights of parties.
31.18  Authority of the ALJ.
31.19  Prehearing conferences.
31.20  Disclosure of documents.
31.21  Discovery.
31.22  Exchange of witness lists, statements, and exhibits.
31.23  Subpoenas for attendance at hearing.
31.24  Protective order.
31.25  Fees.
31.26  Filing, form, and service of papers.
31.27  Computation of time.
31.28  Motions.
31.29  Sanctions.
31.30  The hearing and burden of proof.
31.31  Determining the amount of penalties and assessments.
31.32  Location of hearing.
31.33  Witnesses.
31.34  Evidence.
31.35  The record.
31.36  Post-hearing briefs.
31.37  Initial decision.
31.38  Reconsideration of initial decision.
31.39  Appeal to authority head.
31.40  Stays ordered by the Department of Justice.
31.41  Stay pending appeal.
31.42  Judicial review.
31.43  Collection of civil penalties and assessments.
31.44  Right to administrative offset.
31.45  Deposit in Treasury of United States.
31.46  Compromise or settlement.
31.47  Limitations.

    Authority: 31 U.S.C. 3801-3812.

    Source: 53 FR 881, Jan. 14, 1988, unless otherwise noted.



Sec. 31.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law No. 99-509, sections 6101-6104, 100 Stat. 1874 
(October 21, 1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 
3809 of the statute requires each authority head to promulgate 
regulations necessary to implement the provisions of the statute.
    (b) Purpose. This part (1) establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to the authority 
or to certain others, and (2) specifies the hearing and appeal rights of 
persons subject to allegations of liability for such penalties and 
assessments.



Sec. 31.2  Definitions.

    ALJ means an Administrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    Authority means the Department of Transportation.
    Authority head means the Assistant Secretary or Deputy Assistant 
Secretary for Budget and Programs, Department of Transportation.
    Benefit means, in the context of ``statement,'' anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status, or loan guarantee.

[[Page 317]]

    Claim means any request, demand, or submission--
    (a) Made to the authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (b) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority--
    (1) For property or services if the United States--
    (i) Provided such property or services;
    (ii) Provided any portion of the funds for the purchase of such 
property or services; or
    (iii) Will reimburse such recipient or party for the purchase of 
such property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (i) Provided any portion of the money requested or demanded; or
    (ii) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (c) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    Complaint means the administrative complaint served by the reviewing 
official on the defendant under Sec. 31.7.
    Defendant means any person alleged in a complaint under Sec. 31.7 to 
be liable for a civil penalty or assessment under Sec. 31.3.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Secs. 31.10 or 31.37 and includes a revised initial decision issued 
following a remand or a motion for reconsideration.
    Investigating official means the Inspector General of the Department 
of Transportation or an officer or employee of the Office of Inspector 
General designated by the Inspector General and serving in a position 
for which the rate of basic pay is not less than the minimum rate of 
basic pay for grade GS-16 under the General Schedule.
    Knows or has reason to know, means that a person, with respect to a 
claim or statement--
    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made, shall likewise include the corresponding forms 
of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization, and includes the plural of that term.
    Representative means an attorney who is a member in good standing of 
the bar of any State, Territory, or possession of the United States or 
of the District of Columbia or the Commonwealth of Puerto Rico. This 
definition is not intended to foreclose pro se appearances. An 
individual may appear for himself or herself, and a corporation or other 
entity may appear by an owner, officer, or employee of the corporation 
or entity.
    Reviewing official means the Deputy General Counsel of the 
Department of Transportation, or other officer or employee of the 
Department who is designated by the Deputy General Counsel and eligible 
under 31 U.S.C. 3801(a)(8).
    Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (a) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (b) With respect to (including relating to eligibility for)--
    (1) A contract with, or bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from,

the authority, or any State, political subdivision of a State, or other 
party, if the United States Government provides any portion of the money 
or property under such contract or for such

[[Page 318]]

grant, loan, or benefit, or if the Government will reimburse such State, 
political subdivision, or party for any portion of the money or property 
under such contract or for such grant, loan, or benefit.



Sec. 31.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $5,500 for each such claim.1
---------------------------------------------------------------------------

    \1\ As adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-140), as amended by the 
Debt Collection Improvement Act of 1996 (Pub. L. 104-143, section 
31001).
---------------------------------------------------------------------------

    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains, or is accompanied by, an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than 
$5,500.2
---------------------------------------------------------------------------

    \2\ As adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-140), as amended by the 
Debt Collection Improvement Act of 1996 (Pub. L. 104-143, section 
31001).
---------------------------------------------------------------------------

    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the authority.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any

[[Page 319]]

such person or jointly and severally against any combination of such 
persons.

[53 FR 881, Jan. 14, 1988, as amended at 62 FR 6720, Feb. 13, 1997]



Sec. 31.4  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefor, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
defer or postpone a report or referral to the reviewing official to 
avoid interference with a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec. 31.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 31.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 31.3 of this 
part, the reviewing official shall transmit to the Attorney General a 
written notice of the reviewing official's intention to issue a 
complaint under Sec. 31.7.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of 
Sec. 31.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec. 31.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 31.7 
only if--
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1), and
    (2) In the case of allegations of liability under Sec. 31.3(a) with 
respect to a claim, the reviewing official determines that, with respect 
to such claim or a group of related claims submitted at the same time 
such claim is submitted (as defined in paragraph (b) of this section), 
the amount of money or the value of property or services demanded or 
requested in violation of Sec. 31.3(a) does not exceed $150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person's claims that

[[Page 320]]

are unrelated or were not submitted simultaneously, regardless of the 
amount of money, or the value of property or services, demanded or 
requested.



Sec. 31.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec. 31.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in 
Sec. 31.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec. 31.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service of a complaint is complete upon 
receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the defendant or his or her 
representative.



Sec. 31.9  Answer.

    (a) The defendant may request a hearing by serving an answer on the 
reviewing official within 30 days of service of the complaint. Service 
of an answer shall be made by delivering a copy to the reviewing 
official or by placing a copy in the United States mail, postage prepaid 
and addressed to the reviewing official. Service of an answer is 
complete upon such delivery or mailing. An answer shall be deemed to be 
a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, serve on the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to serve an answer meeting the requirements of 
paragraph (b) of this section. The reviewing official shall file 
promptly the complaint, the general answer denying liability, and the 
request for an extension of time as provided in Sec. 31.11. For good 
cause shown, the ALJ may grant the defendant up to 30 additional days 
from the original due date within which to serve an answer meeting the 
requirements of paragraph (b) of this section.



Sec. 31.10  Default upon failure to answer.

    (a) If the defendant does not answer within the time prescribed in 
Sec. 31.9(a), the reviewing official may refer the

[[Page 321]]

complaint to an ALJ by filing the complaint and a statement that 
defendant has failed to answer on time.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec. 31.8, a notice that an 
initial decision will be issued under this section.
    (c) In addition, the ALJ shall assume the facts alleged in the 
complaint to be true, and, if such facts establish liability under 
Sec. 31.3, the ALJ shall issue an initial decision imposing the maximum 
amount of penalties and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to 
answer on time, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion seeking to reopen on the grounds that extraordinary 
circumstances prevented the defendant from answering, the initial 
decision shall be stayed pending the ALJ's decision on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to answer on time, the ALJ shall 
withdraw the initial decision in paragraph (c) of this section, if such 
a decision has been issued, and shall grant the defendant an opportunity 
to answer the complaint.
    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec. 31.38.
    (h) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal in accordance 
with Sec. 31.26 within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the defendant files a timely notice of appeal, the Docket 
Clerk shall forward two copies of the notice of appeal to the authority 
head, and shall forward or make available the record of the proceeding 
to the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to answer on 
time based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to answer on time, the authority head 
shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (l) If the authority head decides that the defendant's failure to 
answer on time is not excused, the authority head shall reinstate the 
initial decision of the ALJ, which shall become final and binding upon 
the parties 30 days after the authority head issues such decision.



Sec. 31.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall refer the 
matter to an ALJ by filing the complaint and answer in accordance with 
Sec. 31.26.



Sec. 31.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec. 31.8. At the time, the ALJ shall send a copy of such 
notice to the representative for the Government and shall file a copy 
with the Docket Clerk.
    (b) Such notice shall include--
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 31.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
authority.

[[Page 322]]

    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 31.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of, the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.



Sec. 31.15  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec. 31.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file a motion for disqualification of a reviewing 
official or an ALJ. Such motion shall be accompanied by an affidavit 
alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e)(1) If the ALJ determines that a reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the authority head may 
determine the matter only as part of his or her review of the initial 
decision upon appeal, if any.



Sec. 31.17  Rights of parties.

    Except as otherwise limited by this part, all parties may--
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 31.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider

[[Page 323]]

other matters that may aid in the expeditious disposition of the 
proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find Federal statutes or 
regulations invalid.



Sec. 31.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.



Sec. 31.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 31.4(b) are based, unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 31.5 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed following the serving of an answer pursuant to Sec. 31.9.



Sec. 31.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;

[[Page 324]]

    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Secs. 31.22 and 31.23, the 
term ``documents'' includes information, documents, reports, answers, 
records, accounts, papers, and other data and documentary evidence. 
Nothing contained herein shall be interpreted to require the creation of 
a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion. Such a motion shall be accompanied by a copy of the request for 
production of documents, request for admissions, or interrogatories, or 
in the case of depositions, a summary of the scope of the proposed 
deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in 
Sec. 31.24.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 31.24.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 31.8.
    (3) The deponent may file a motion to quash the subpoena or a motion 
for a protective order within ten days of service. If the ALJ has not 
acted on such a motion by the return date, such date shall be suspended 
pending the ALJ's final action on the motion.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 31.22  Exchange of witness lists, statements, and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 31.33(b). At the time the above documents are exchanged, any party 
that intends to rely on the transcript of deposition testimony in lieu 
of live testimony at the hearing, if permitted by the ALJ, shall provide 
each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
of any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 31.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less

[[Page 325]]

than 15 days before the date fixed for the hearing unless otherwise 
allowed by the ALJ for good cause shown. Such request shall be 
accompanied by a proposed subpoena, which shall specify and documents to 
be produced and shall designate the witnesses and describe the address 
and location thereof with sufficient particularity to permit such 
witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 31.8. A subpoena on a party or upon an individual 
under the control of party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file a motion to quash the subpoena within ten days after service or on 
or before the time specified in the subpoena for compliance if it is 
less than ten days after service. If the ALJ has not acted on such a 
motion by the return date, such date shall be suspended pending the 
ALJ's final action on the motion.



Sec. 31.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously submit to the ALJ specified 
documents or information enclosed in sealed envelopes to be opened as 
directed by the ALJ.



Sec. 31.25  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage shall accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the authority, a 
check for witness fees and mileage need not accompany the subpoena.



Sec. 31.26  Filing, form, and service of papers.

    (a) Filing and form. (1) A party filing any document under this part 
shall submit (i) the original and two copies to the Docket Clerk, 
Documentary Services Division (C-55), room 4107, Department of 
Transportation, 400 7th Street SW., Washington, DC 20590; and (ii) two 
copies simultaneously to the ALJ or, if on appeal, to the authority 
head. The requirements of this paragraph apply to all filings under this 
part, regardless of whether there is a cross-reference to Sec. 31.26.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the Docket Clerk, and a designation of the paper (e.g., motion to 
quash subpoena).
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone nunber of, the party or the person on whose 
behalf the paper was filed, or his or her representative.

[[Page 326]]

    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document shall, at the time of filing, 
serve a copy of such document on every other party. Service upon any 
party of any document other than those required to be served as 
prescribed in Sec. 31.8 shall be made by delivering a copy, or by 
placing a copy of the document in the United States mail, postage 
prepaid and addressed, to the party's last known address. When a party 
is represented by a representative, service shall be made upon such 
representative in lieu of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec. 31.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal government shall be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
United States mail, an additional five days will be added to the the 
time permitted for any responses.



Sec. 31.28  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed and served on all other 
parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing response thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.
    (f) Except as provided by Secs. 31.21(e)(3) and 31.23(f), which 
concern subpoenas, the filing or pendency of a motion shall not 
automatically alter or extend a deadline or return date.



Sec. 31.29  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative, for--
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Sanctions include but are not limited to those specifically set 
forth in paragraph (c), (d), and (e) of this section. Any such sanction 
shall reasonably relate to the severity and nature of the failure or 
misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and

[[Page 327]]

    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposition penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 31.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec. 31.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove defendent's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec. 31.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, ordinarily double damages 
and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false fictitious, of fraudulent claims or 
statements) charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
State, directly or indirectly; and

[[Page 328]]

    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 31.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the defendant and 
the ALJ.
    (b) Each party shall have the opportunity to present written and 
oral argument with respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec. 31.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in 
Sec. 31.22(a).
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to (1) 
make the interrogation and presentation effective for the ascertainment 
of the truth, (2) avoid needless consumption of time, and (3) protect 
witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party (i) appearing for the entity pro se or (ii) 
designated by the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 31.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.

[[Page 329]]

    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 31.24.



Sec. 31.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected at the offices of the Docket Clerk 
(see Sec. 31.26(a)(1) for address) and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 31.24.



Sec. 31.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs. Such briefs may be accompanied by proposed 
findings of fact and conclusions of law. The ALJ may permit the parties 
to file reply briefs.



Sec. 31.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 31.3;
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 31.31.
    (c) The ALJ shall promptly serve the intitial decision on all 
parties within 90 days after the time for submission of post-hearing 
briefs and reply briefs (if permitted) has expired. The ALJ shall at the 
same time serve all parties with a statement describing the right of any 
defendant determined to be liable for a civil penalty or assessment to 
file a motion for reconsideration with the ALJ or a notice of appeal 
with the authority head. If the ALJ fails to meet the deadline contained 
in this paragraph, he or she shall notify the parties of the reason for 
the delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
authority head, or a motion for reconsideration of the intitial decision 
is timely filed, the initial decision shall constitute the final 
decision of the authority head and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec. 31.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the authority head and 
shall be final and binding on the parties 30 days after the

[[Page 330]]

ALJ denies the motion, unless the initial decision is timely appealed to 
the authority head in accordance with Sec. 31.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the authority head in accordance with Sec. 31.39.



Sec. 31.39  Appeal to authority head.

    (a) Any defendant who has served a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the authority head by filing a 
notice of appeal in accordance with this section and Sec. 31.26.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if another party 
files a motion for reconsideration under Sec. 31.38, consideration of 
the appeal shall be stayed automatically pending resolution of the 
motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) The authority head may extend the initial 30-day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30-day period and shows good 
cause.
    (c) If the defendant files a timely notice of appeal and the time 
for filing motions for reconsideration under Sec. 31.38 has expired, the 
Docket Clerk shall forward two copies of the notice of appeal to the 
authority head, and shall forward or make available the record of the 
proceeding to the authority head.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the authority 
head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (j) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment determined by the ALJ in any 
initial decision.
    (k) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and with a statement 
describing the right of any person determined to be liable for a penalty 
or assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the defendant with a copy of the authority head's decision, a 
determination that a defendant is liable under Sec. 31.3 is final and is 
not subject to judicial review.



Sec. 31.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the authority head a 
written finding that continuation of the administrative process 
described in this part with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the authority head shall stay the 
process immediately. The authority head may order the process resumed 
only upon receipt of the written authorization of the Attorney General.

[[Page 331]]



Sec. 31.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    (b) No administrative stay is available following a final decision 
of the authority head.



Sec. 31.42  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the authority head imposing penalties or assessments under 
this part and specifies the procedures for such review.



Sec. 31.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec. 31.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 31.42 or Sec. 31.43, or 
any amount agreed upon in a compromise or settlement under Sec. 31.46, 
may be collected by administrative offset under 31 U.S.C. 3716, except 
that an administrative offset may not be made under this subsection 
against a refund of an overpayment of Federal taxes, then or later owing 
by the United States to the defendant.



Sec. 31.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 31.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec. 31.42 or during the pendency of any action to collect 
penalties and assessments under Sec. 31.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 31.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 31.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 31.8 within 6 years after the 
date on which such claim or statement is made.
    (b) If the defendant fails to serve a timely answer, service of a 
notice under Sec. 31.10(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.



PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES (ADA)--Table of Contents




                           Subpart A--General

Sec.
37.1  Purpose.
37.3  Definitions.
37.5  Nondiscrimination.
37.7  Standards for accessible vehicles.
37.9  Standards for accessible transportation facilities.
37.11  Administrative enforcement.
37.13  Effective date for certain vehicle specifications.
37.15  Temporary suspension of certain detectable warning requirements.
37.16--37.19  [Reserved]

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                        Subpart B--Applicability

37.21  Applicability: General.
37.23  Service under contract.
37.25  University transportation systems.
37.27  Transportation for elementary and secondary education systems.
37.29  Private entities providing taxi service.
37.31  Vanpools.
37.33  Airport transportation systems.
37.35  Supplemental service for other transportation modes.
37.37  Other applications.
37.39  [Reserved]

                  Subpart C--Transportation Facilities

37.41  Construction of transportation facilities by public entities.
37.43  Alteration of transportation facilities by public entities.
37.45  Construction and alteration of transportation facilities by 
          private entities.
37.47  Key stations in light and rapid rail systems.
37.49  Designation of responsible person(s) for intercity and commuter 
          rail stations.
37.51  Key stations in commuter rail systems.
37.53  Exception for New York and Philadelphia.
37.55  Intercity rail station accessibility.
37.57  Required cooperation.
37.59  Differences in accessibility completion dates.
37.61  Public transportation programs and activities in existing 
          facilities.
37.63--37.69  [Reserved]

    Subpart D--Acquisition of Accessible Vehicles by Public Entities

37.71  Purchase or lease of new non-rail vehicles by public entities 
          operating fixed route systems.
37.73  Purchase or lease of used non-rail vehicles by public entities 
          operating fixed route systems.
37.75  Remanufacture of non-rail vehicles and purchase or lease of 
          remanufactured non-rail vehicles by public entities operating 
          fixed route systems.
37.77  Purchase or lease of new non-rail vehicles by public entities 
          operating demand responsive systems for the general public.
37.79  Purchase or lease of new rail vehicles by public entities 
          operating rapid or light rail systems.
37.81  Purchase or lease of used rail vehicles by public entities 
          operating rapid or light rail systems.
37.83  Remanufacture of rail vehicles and purchase or lease of 
          remanufactured rail vehicles by public entities operating 
          rapid or light rail systems.
37.85  Purchase or lease of new intercity and commuter rail cars.
37.87  Purchase or lease of used intercity and commuter rail cars.
37.89  Remanufacture of intercity and commuter rail cars and purchase or 
          lease of remanufactured intercity and commuter rail cars.
37.91  Wheelchair locations and food service on intercity rail trains.
37.93  One car per train rule.
37.95  Ferries and other passenger vessels operated by public entities. 
          [Reserved]
37.97--37.99  [Reserved]

    Subpart E--Acquisition of Accessible Vehicles by Private Entities

37.101  Purchase or lease of vehicles by private entities not primarily 
          engaged in the business of transporting people.
37.103  Purchase or lease of new non-rail vehicles by private entities 
          primarily engaged in the business of transporting people.
37.105  Equivalent service standard.
37.107  Acquisition of passenger rail cars by private entities primarily 
          engaged in the business of transporting people.
37.109  Ferries and other passenger vessels operated by private 
          entities. [Reserved]
37.111--37.119  [Reserved]

      Subpart F--Paratransit as a Complement to Fixed Route Service

37.121  Requirement for comparable complementary paratransit service.
37.123  ADA paratransit eligibility: Standards.
37.125  ADA paratransit eligibility: Process.
37.127  Complementary paratransit service for visitors.
37.129  Types of service.
37.131  Service criteria for complementary paratransit.
37.133  Subscription service.
37.135  Submission of paratransit plan.
37.137  Paratransit plan development.
37.139  Plan contents.
37.141  Requirements for a joint paratransit plan.
37.143  Paratransit plan implementation.
37.145  State comment on plans.
37.147  Considerations during FTA review.
37.149  Disapproved plans.
37.151  Waiver for undue financial burden.
37.153  FTA waiver determination.
37.155  Factors in decision to grant an undue financial burden waiver.
37.157--37.159  [Reserved]

                     Subpart G--Provision of Service

37.161  Maintenance of accessible features: General.
37.163  Keeping vehicle lifts in operative condition--public entities.
37.165  Lift and securement use.

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37.167  Other service requirements.
37.169  Interim requirements for over-the-road bus service operated by 
          private entities.
37.171  Equivalency requirement for demand responsive service operated 
          by private entities not primarily engaged in the business of 
          transporting people.
37.173  Training requirements.

                 Subpart H--Over-the-road Buses (OTRBs)

37.181  Applicability dates.
37.183  Purchase or lease of new OTRBs by operators of fixed-route 
          systems.
37.185  Fleet accessibility requirement for OTRB fixed-route systems of 
          large operators.
37.187  Interline service.
37.189  Service requirement for OTRB demand-responsive systems.
37.191  Special provision for small mixed-service operators.
37.193  Interim service requirements.
37.195  Purchase or lease of OTRBs by private entities not primarily in 
          the business of transporting people.
37.197  Remanufactured OTRBs.
37.199  Compensation for failure to provide required vehicles or 
          service.
37.201  Intermediate and rest stops.
37.203  Lift maintenance.
37.205  Additional passengers who use wheelchairs.
37.207  Discriminatory practices.
37.209  Training and other requirements.
37.211  Effect of NHTSA and FHWA safety rules.
37.213  Information collection requirements.
37.215  Review of requirements.

Appendix A to Subpart H of Part 37--Forms for Advance Notice Requests 
          and Provision of Equivalent Service
Appendix A to Part 37--Standards for Accessible Transportation 
          Facilities
Appendix B to Part 37--FTA Regional Offices
Appendix C to Part 37--Certifications
Appendix D to Part 37--Construction and Interpretations of Provisions of 
          49 CFR Part 37

    Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.

    Source: 56 FR 45621, Sept. 6, 1991, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 37 appear at 58 FR 
63101, Nov. 30, 1993.



                           Subpart A--General



Sec. 37.1  Purpose.

    The purpose of this part is to implement the transportation and 
related provisions of titles II and III of the Americans with 
Disabilities Act of 1990.



Sec. 37.3  Definitions.

    As used in this part:
    Accessible means, with respect to vehicles and facilities, complying 
with the accessibility requirements of parts 37 and 38 of this title.
    The Act or ADA means the Americans with Disabilities Act of 1990 
(Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 
and 611), as it may be amended from time to time.
    Administrator means Administrator of the Federal Transit 
Administration, or his or her designee.
    Alteration means a change to an existing facility, including, but 
not limited to, remodeling, renovation, rehabilitation, reconstruction, 
historic restoration, changes or rearrangement in structural parts or 
elements, and changes or rearrangement in the plan configuration of 
walls and full-height partitions. Normal maintenance, reroofing, 
painting or wallpapering, asbestos removal, or changes to mechanical or 
electrical systems are not alterations unless they affect the usability 
of the building or facility.
    Automated guideway transit system or AGT means a fixed-guideway 
transit system which operates with automated (driverless) individual 
vehicles or multi-car trains. Service may be on a fixed schedule or in 
response to a passenger-activated call button.
    Auxiliary aids and services includes:
    (1) Qualified interpreters, notetakers, transcription services, 
written materials, telephone headset amplifiers, assistive listening 
devices, assistive listening systems, telephones compatible with hearing 
aids, closed caption decoders, closed and open captioning, text 
telephones (also known as telephone devices for the deaf, or TDDs), 
videotext displays, or other effective methods of making aurally 
delivered materials available to individuals with hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, Brailled 
materials, large print materials, or other effective methods of making 
visually delivered materials available to individuals with visual 
impairments;

[[Page 334]]

    (3) Acquisition or modification of equipment or devices; or
    (4) Other similar services or actions.
    Bus means any of several types of self-propelled vehicles, generally 
rubber-tired, intended for use on city streets, highways, and busways, 
including but not limited to minibuses, forty- and thirty-foot buses, 
articulated buses, double-deck buses, and electrically powered trolley 
buses, used by public entities to provide designated public 
transportation service and by private entities to provide transportation 
service including, but not limited to, specified public transportation 
services. Self-propelled, rubber-tired vehicles designed to look like 
antique or vintage trolleys are considered buses.
    Commerce means travel, trade, transportation, or communication among 
the several states, between any foreign country or any territory or 
possession and any state, or between points in the same state but 
through another state or foreign country.
    Commuter authority means any state, local, regional authority, 
corporation, or other entity established for purposes of providing 
commuter rail transportation (including, but not necessarily limited to, 
the New York Metropolitan Transportation Authority, the Connecticut 
Department of Transportation, the Maryland Department of Transportation, 
the Southeastern Pennsylvania Transportation Authority, the New Jersey 
Transit Corporation, the Massachusetts Bay Transportation Authority, the 
Port Authority Trans-Hudson Corporation, and any successor agencies) and 
any entity created by one or more such agencies for the purposes of 
operating, or contracting for the operation of, commuter rail 
transportation.
    Commuter bus service means fixed route bus service, characterized by 
service predominantly in one direction during peak periods, limited 
stops, use of multi-ride tickets, and routes of extended length, usually 
between the central business district and outlying suburbs. Commuter bus 
service may also include other service, characterized by a limited route 
structure, limited stops, and a coordinated relationship to another mode 
of transportation.
    Commuter rail car means a rail passenger car obtained by a commuter 
authority for use in commuter rail transportation.
    Commuter rail transportation means short-haul rail passenger service 
operating in metropolitan and suburban areas, whether within or across 
the geographical boundaries of a state, usually characterized by reduced 
fare, multiple ride, and commutation tickets and by morning and evening 
peak period operations. This term does not include light or rapid rail 
transportation.
    Demand responsive system means any system of transporting 
individuals, including the provision of designated public transportation 
service by public entities and the provision of transportation service 
by private entities, including but not limited to specified public 
transportation service, which is not a fixed route system.
    Designated public transportation means transportation provided by a 
public entity (other than public school transportation) by bus, rail, or 
other conveyance (other than transportation by aircraft or intercity or 
commuter rail transportation) that provides the general public with 
general or special service, including charter service, on a regular and 
continuing basis.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1) The phrase physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological, musculoskeletal, special sense organs, respiratory 
including speech organs, cardiovascular, reproductive, digestive, 
genito-urinary, hemic and lymphatic, skin, and endocrine;
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;

[[Page 335]]

    (iii) The term physical or mental impairment includes, but is not 
limited to, such contagious or noncontagious diseases and conditions as 
orthopedic, visual, speech, and hearing impairments; cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease, tuberculosis, drug addiction and alcoholism;
    (iv) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and work.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having such an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities, but which is treated by a public or private 
entity as constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits a 
major life activity only as a result of the attitudes of others toward 
such an impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a public or private entity as having such 
an impairment.
    (5) The term disability does not include--
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania;
    (iii) Psychoactive substance abuse disorders resulting from the 
current illegal use of drugs.
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, roads, walks, passageways, parking lots, or other 
real or personal property, including the site where the building, 
property, structure, or equipment is located.
    Fixed route system means a system of transporting individuals (other 
than by aircraft), including the provision of designated public 
transportation service by public entities and the provision of 
transportation service by private entities, including, but not limited 
to, specified public transportation service, on which a vehicle is 
operated along a prescribed route according to a fixed schedule.
    FT Act means the Federal Transit Act of 1964, as amended (49 U.S.C. 
App. 1601 et seq.).
    High speed rail means a rail service having the characteristics of 
intercity rail service which operates primarily on a dedicated guideway 
or track not used, for the most part, by freight, including, but not 
limited to, trains on welded rail, magnetically levitated (maglev) 
vehicles on a special guideway, or other advanced technology vehicles, 
designed to travel at speeds in excess of those possible on other types 
of railroads.
    Individual with a disability means a person who has a disability, 
but does not include an individual who is currently engaging in the 
illegal use of drugs, when a public or private entity acts on the basis 
of such use.
    Intercity rail passenger car means a rail car, intended for use by 
revenue passengers, obtained by the National Railroad Passenger 
Corporation (Amtrak) for use in intercity rail transportation.
    Intercity rail transportation means transportation provided by 
Amtrak.
    Light rail means a streetcar-type vehicle operated on city streets, 
semi-exclusive rights of way, or exclusive rights of way. Service may be 
provided by step-entry vehicles or by level boarding.
    New vehicle means a vehicle which is offered for sale or lease after 
manufacture without any prior use.
    Operates includes, with respect to a fixed route or demand 
responsive system, the provision of transportation service by a public 
or private entity itself or by a person under a contractual or other 
arrangement or relationship with the entity.

[[Page 336]]

    Over-the-road bus means a bus characterized by an elevated passenger 
deck located over a baggage compartment.
    Paratransit means comparable transportation service required by the 
ADA for individuals with disabilities who are unable to use fixed route 
transportation systems.
    Private entity means any entity other than a public entity.
    Public entity means:
    (1) Any state or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of one or more state or local governments; and
    (3) The National Railroad Passenger Corporation (Amtrak) and any 
commuter authority.
    Purchase or lease, with respect to vehicles, means the time at which 
an entity is legally obligated to obtain the vehicles, such as the time 
of contract execution.
    Public school transportation means transportation by schoolbus 
vehicles of schoolchildren, personnel, and equipment to and from a 
public elementary or secondary school and school-related activities.
    Rapid rail means a subway-type transit vehicle railway operated on 
exclusive private rights of way with high level platform stations. Rapid 
rail also may operate on elevated or at grade level track separated from 
other traffic.
    Remanufactured vehicle means a vehicle which has been structurally 
restored and has had new or rebuilt major components installed to extend 
its service life.
    Secretary means the Secretary of Transportation or his/her designee.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 794), as amended.
    Service animal means any guide dog, signal dog, or other animal 
individually trained to work or perform tasks for an individual with a 
disability, including, but not limited to, guiding individuals with 
impaired vision, alerting individuals with impaired hearing to intruders 
or sounds, providing minimal protection or rescue work, pulling a 
wheelchair, or fetching dropped items.
    Small operator means, in the context of over-the-road buses (OTRBs), 
a private entity primarily in the business of transporting people that 
is not a Class I motor carrier. To determine whether an operator has 
sufficient average annual gross transportation operating revenues to be 
a Class I motor carrier, its revenues are combined with those of any 
other OTRB operator with which it is affiliated.
    Solicitation means the closing date for the submission of bids or 
offers in a procurement.
    Specified public transportation means transportation by bus, rail, 
or any other conveyance (other than aircraft) provided by a private 
entity to the general public, with general or special service (including 
charter service) on a regular and continuing basis.
    Station means, with respect to intercity and commuter rail 
transportation, the portion of a property located appurtenant to a right 
of way on which intercity or commuter rail transportation is operated, 
where such portion is used by the general public and is related to the 
provision of such transportation, including passenger platforms, 
designated waiting areas, restrooms, and, where a public entity 
providing rail transportation owns the property, concession areas, to 
the extent that such public entity exercises control over the selection, 
design, construction, or alteration of the property, but this term does 
not include flag stops (i.e., stations which are not regularly scheduled 
stops but at which trains will stop to board or detrain passengers only 
on signal or advance notice).
    Transit facility means, for purposes of determining the number of 
text telephones needed consistent with section 10.3.1(12) of appendix A 
to this part, a physical structure the primary function of which is to 
facilitate access to and from a transportation system which has 
scheduled stops at the structure. The term does not include an open 
structure or a physical structure the primary purpose of which is other 
than providing transportation services.
    Used vehicle means a vehicle with prior use.
    Vanpool means a voluntary commuter ridesharing arrangement, using 
vans with a seating capacity greater

[[Page 337]]

than 7 persons (including the driver) or buses, which provides 
transportation to a group of individuals traveling directly from their 
homes to their regular places of work within the same geographical area, 
and in which the commuter/driver does not receive compensation beyond 
reimbursement for his or her costs of providing the service.
    Vehicle, as the term is applied to private entities, does not 
include a rail passenger car, railroad locomotive, railroad freight car, 
or railroad caboose, or other rail rolling stock described in section 
242 of title III of the Act.
    Wheelchair means a mobility aid belonging to any class of three or 
four-wheeled devices, usable indoors, designed for and used by 
individuals with mobility impairments, whether operated manually or 
powered. A ``common wheelchair'' is such a device which does not exceed 
30 inches in width and 48 inches in length measured two inches above the 
ground, and does not weigh more than 600 pounds when occupied.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63101, Nov. 30, 1993; 
61 FR 25415, May 21, 1996; 63 FR 51690, Sept. 28, 1998]

    Effective Date Note: At 63 FR 51690, Sept. 28, 1998, Sec. 37.3 was 
amended by adding the definition for ``small operator'', effective Oct. 
28, 1998.



Sec. 37.5  Nondiscrimination.

    (a) No entity shall discriminate against an individual with a 
disability in connection with the provision of transportation service.
    (b) Notwithstanding the provision of any special transportation 
service to individuals with disabilities, an entity shall not, on the 
basis of disability, deny to any individual with a disability the 
opportunity to use the entity's transportation service for the general 
public, if the individual is capable of using that service.
    (c) An entity shall not require an individual with a disability to 
use designated priority seats, if the individual does not choose to use 
these seats.
    (d) An entity shall not impose special charges, not authorized by 
this part, on individuals with disabilities, including individuals who 
use wheelchairs, for providing services required by this part or 
otherwise necessary to accommodate them.
    (e) An entity shall not require that an individual with disabilities 
be accompanied by an attendant.
    (f) Private entities that are primarily engaged in the business of 
transporting people and whose operations affect commerce shall not 
discriminate against any individual on the basis of disability in the 
full and equal enjoyment of specified transportation services. This 
obligation includes, with respect to the provision of transportation 
services, compliance with the requirements of the rules of the 
Department of Justice concerning eligibility criteria, making reasonable 
modifications, providing auxiliary aids and services, and removing 
barriers (28 CFR 36.301--36.306).
    (g) An entity shall not refuse to serve an individual with a 
disability or require anything contrary to this part because its 
insurance company conditions coverage or rates on the absence of 
individuals with disabilities or requirements contrary to this part.
    (h) It is not discrimination under this part for an entity to refuse 
to provide service to an individual with disabilities because that 
individual engages in violent, seriously disruptive, or illegal conduct. 
However, an entity shall not refuse to provide service to an individual 
with disabilities solely because the individual's disability results in 
appearance or involuntary behavior that may offend, annoy, or 
inconvenience employees of the entity or other persons.



Sec. 37.7  Standards for accessible vehicles.

    (a) For purposes of this part, a vehicle shall be considered to be 
readily accessible to and usable by individuals with disabilities if it 
meets the requirements of this part and the standards set forth in part 
38 of this title.
    (b)(1) For purposes of implementing the equivalent facilitation 
provision in Sec. 38.2 of this subtitle, the following parties may 
submit to the Administrator of the applicable operating administration a 
request for a determination of equivalent facilitation:

[[Page 338]]

    (i) A public or private entity that provides transportation services 
and is subject to the provisions of subpart D or subpart E this part; or
    (ii) The manufacturer of a vehicle or a vehicle component or 
subsystem to be used by such entity to comply with this part.
    (2) The requesting party shall provide the following information 
with its request:
    (i) Entity name, address, contact person and telephone;
    (ii) Specific provision of part 38 of this title concerning which 
the entity is seeking a determination of equivalent facilitation.
    (iii) [Reserved]
    (iv) Alternative method of compliance, with demonstration of how the 
alternative meets or exceeds the level of accessibility or usability of 
the vehicle provided in part 38 of this subtitle; and
    (v) Documentation of the public participation used in developing an 
alternative method of compliance.
    (3) In the case of a request by a public entity that provides 
transportation services subject to the provisions of subpart D of this 
part, the required public participation shall include the following:
    (i) The entity shall contact individuals with disabilities and 
groups representing them in the community. Consultation with these 
individuals and groups shall take place at all stages of the development 
of the request for equivalent facilitation. All documents and other 
information concerning the request shall be available, upon request, to 
members of the public.
    (ii) The entity shall make its proposed request available for public 
comment before the request is made final or transmitted to DOT. In 
making the request available for public review, the entity shall ensure 
that it is available, upon request, in accessible formats.
    (iii) The entity shall sponsor at least one public hearing on the 
request and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements.
    (4) In the case of a request by a private entity that provides 
transportation services subject to the provisions of subpart E of this 
part or a manufacturer, the private entity or manufacturer shall 
consult, in person, in writing, or by other appropriate means, with 
representatives of national and local organizations representing people 
with those disabilities who would be affected by the request.
    (5) A determination of compliance will be made by the Administrator 
of the concerned operating administration on a case-by-case basis, with 
the concurrence of the Assistant Secretary for Policy and International 
Affairs.
    (6) Determinations of equivalent facilitation are made only with 
respect to vehicles or vehicle components used in the provision of 
transportation services covered by subpart D or subpart E of this part, 
and pertain only to the specific situation concerning which the 
determination is made. Entities shall not cite these determinations as 
indicating that a product or method constitute equivalent facilitations 
in situations other than those to which the determinations specifically 
pertain. Entities shall not claim that a determination of equivalent 
facilitation indicates approval or endorsement of any product or method 
by the Federal government, the Department of Transportation, or any of 
its operating administrations.
    (c) Over-the-road buses acquired by public entities (or by a 
contractor to a public entity as provided in Sec. 37.23 of this part) 
shall comply with Sec. 38.23 and subpart G of part 38 of this title.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63101, Nov. 30, 1993; 
61 FR 25416, May 21, 1996]



Sec. 37.9  Standards for accessible transportation facilities.

    (a) For purposes of this part, a transportation facility shall be 
considered to be readily accessible to and usable by individuals with 
disabilities if it meets the requirements of this part and the standards 
set forth in appendix A to this part.
    (b) Facility alterations begun before January 26, 1992, in a good 
faith effort to make a facility accessible to individuals with 
disabilities may be used to meet the key station requirements set forth 
in Secs. 37.47 and 37.51 of this part,

[[Page 339]]

even if these alterations are not consistent with the standards set 
forth in appendix A to this part, if the modifications complied with the 
Uniform Federal Accessibility Standard (UFAS) (41 CFR part 101-19, 
subpart 101-19.6) or ANSI A117.1(1980) (American National Standards 
Specification for Making Buildings and Facilities Accessible to and 
Usable by, the Physically Handicapped). This paragraph applies only to 
alterations of individual elements and spaces and only to the extent 
that provisions covering those elements or spaces are contained in UFAS 
or ANSI A117.1, as applicable.
    (c) Public entities shall ensure the construction of new bus stop 
pads are in compliance with section 10.2.1.(1) of appendix A to this 
part, to the extent construction specifications are within their 
control.
    (d)(1) For purposes of implementing the equivalent facilitation 
provision in section 2.2 of appendix A to this part, the following 
parties may submit to the Administrator of the applicable operating 
administration a request for a determination of equivalent facilitation:
    (i)(A) A public or private entity that provides transportation 
facilities subject to the provisions of subpart C this part, or other 
appropriate party with the concurrence of the Administrator;
    (B) With respect to airport facilities, an entity that is an airport 
operator subject to the requirements of 49 CFR part 27 or regulations 
implementing the Americans with Disabilities Act, an air carrier subject 
to the requirements of 14 CFR part 382, or other appropriate party with 
the concurrence of the Administrator.
    (ii) The manufacturer of a product or accessibility feature to be 
used in the facility of such entity to comply with this part.
    (2) The requesting party shall provide the following information 
with its request:
    (i) Entity name, address, contact person and telephone;
    (ii) Specific provision of Appendix A to Part 37 concerning which 
the entity is seeking a determination of equivalent facilitation.
    (iii) [Reserved]
    (iv) Alternative method of compliance, with demonstration of how the 
alternative meets or exceeds the level of accessibility or usability of 
the vehicle provided in appendix A to this part; and
    (v) Documentation of the public participation used in developing an 
alternative method of compliance.
    (3) In the case of a request by a public entity that provides 
transportation facilities (including an airport operator), or a request 
by an air carrier with respect to airport facilities, the required 
public participation shall include the following:
    (i) The entity shall contact individuals with disabilities and 
groups representing them in the community. Consultation with these 
individuals and groups shall take place at all stages of the development 
of the request for equivalent facilitation. All documents and other 
information concerning the request shall be available, upon request, to 
members of the public.
    (ii) The entity shall make its proposed request available for public 
comment before the request is made final or transmitted to DOT. In 
making the request available for public review, the entity shall ensure 
that it is available, upon request, in accessible formats.
    (iii) The entity shall sponsor at least one public hearing on the 
request and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements.
    (4) In the case of a request by a manufacturer or a private entity 
other than an air carrier, the manufacturer or private entity shall 
consult, in person, in writing, or by other appropriate means, with 
representatives of national and local organizations representing people 
with those disabilities who would be affected by the request.
    (5) A determination of compliance will be made by the Administrator 
of the concerned operating administration on a case-by-case basis, with 
the concurrence of the Assistant Secretary for Policy and International 
Affairs.
    (6) Determinations of equivalent facilitation are made only with 
respect

[[Page 340]]

to transportation facilities, and pertain only to the specific situation 
concerning which the determination is made. Entities shall not cite 
these determinations as indicating that a products or methods constitute 
equivalent facilitations in situations other than those to which the 
determinations specifically pertain. Entities shall not claim that a 
determination of equivalent facilitation indicates approval or 
endorsement of any product or method by the Federal government, the 
Department of Transportation, or any of its operating administrations.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63102, Nov. 30, 1993; 
59 FR 46703, Sept. 9, 1994; 61 FR 25416, May 21, 1996]



Sec. 37.11  Administrative enforcement.

    (a) Recipients of Federal financial assistance from the Department 
of Transportation are subject to administrative enforcement of the 
requirements of this part under the provisions of 49 CFR part 27, 
subpart C.
    (b) Public entities, whether or not they receive Federal financial 
assistance, also are subject to enforcement action as provided by the 
Department of Justice.
    (c) Private entities, whether or not they receive Federal financial 
assistance, are also subject to enforcement action as provided in the 
regulations of the Department of Justice implementing title III of the 
ADA (28 CFR part 36).

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec. 37.13  Effective date for certain vehicle specifications.

    (a) The vehicle lift specifications identified in Secs. 38.23(b)(6), 
38.83(b)(6), 38.95(b)(6), and 38.125(b)(6) of this title apply to 
solicitations for vehicles under this part after January 25, 1992.
    (b) The vehicle door height requirements for vehicles over 22 feet 
identified in Sec. 38.25(c) of this title apply to solicitations for 
vehicles under this part after January 25, 1992.

[56 FR 64215, Dec. 9, 1991]



Sec. 37.15  Temporary suspension of certain detectable warning requirements.

    The detectable warning requirements contained in Secs. 4.7.7, 
4.29.5, and 4.29.6 of appendix A to this part are suspended temporarily 
until July 26, 1998.

[61 FR 39324, 39325, July 29, 1996]



Secs. 37.16--37.19  [Reserved]



                        Subpart B--Applicability



Sec. 37.21  Applicability: General.

    (a) This part applies to the following entities, whether or not they 
receive Federal financial assistance from the Department of 
Transportation:
    (1) Any public entity that provides designated public transportation 
or intercity or commuter rail transportation;
    (2) Any private entity that provides specified public 
transportation; and
    (3) Any private entity that is not primarily engaged in the business 
of transporting people but operates a demand responsive or fixed route 
system.
    (b) For entities receiving Federal financial assistance from the 
Department of Transportation, compliance with applicable requirements of 
this part is a condition of compliance with section 504 of the 
Rehabilitation Act of 1973 and of receiving financial assistance.
    (c) Entities to which this part applies also may be subject to ADA 
regulations of the Department of Justice (28 CFR parts 35 or 36, as 
applicable). The provisions of this part shall be interpreted in a 
manner that will make them consistent with applicable Department of 
Justice regulations. In any case of apparent inconsistency, the 
provisions of this part shall prevail.



Sec. 37.23  Service under contract.

    (a) When a public entity enters into a contractual or other 
arrangement or relationship with a private entity to operate fixed route 
or demand responsive service, the public entity shall ensure that the 
private entity meets the requirements of this part that would apply to 
the public entity if the public entity itself provided the service.

[[Page 341]]

    (b) A private entity which purchases or leases new, used, or 
remanufactured vehicles, or remanufactures vehicles, for use, or in 
contemplation of use, in fixed route or demand responsive service under 
contract or other arrangement or relationship with a public entity, 
shall acquire accessible vehicles in all situations in which the public 
entity itself would be required to do so by this part.
    (c) A public entity which enters into a contractual or other 
arrangement or relationship with a private entity to provide fixed route 
service shall ensure that the percentage of accessible vehicles operated 
by the public entity in its overall fixed route or demand responsive 
fleet is not diminished as a result.
    (d) A private entity that provides fixed route or demand responsive 
transportation service under contract or other arrangement with another 
private entity shall be governed, for purposes of the transportation 
service involved, by the provisions of this part applicable to the other 
entity.



Sec. 37.25  University transportation systems.

    (a) Transportation services operated by private institutions of 
higher education are subject to the provisions of this part governing 
private entities not primarily engaged in the business of transporting 
people.
    (b) Transportation systems operated by public institutions of higher 
education are subject to the provisions of this part governing public 
entities. If a public institution of higher education operates a fixed 
route system, the requirements of this part governing commuter bus 
service apply to that system.



Sec. 37.27  Transportation for elementary and secondary education systems.

    (a) The requirements of this part do not apply to public school 
transportation.
    (b) The requirements of this part do not apply to the transportation 
of school children to and from a private elementary or secondary school, 
and its school-related activities, if the school is providing 
transportation service to students with disabilities equivalent to that 
provided to students without disabilities. The test of equivalence is 
the same as that provided in Sec. 37.105. If the school does not meet 
the requirement of this paragraph for exemption from the requirements of 
this part, it is subject to the requirements of this part for private 
entities not primarily engaged in transporting people.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25415, May 21, 1996]



Sec. 37.29  Private entities providing taxi service.

    (a) Providers of taxi service are subject to the requirements of 
this part for private entities primarily engaged in the business of 
transporting people which provide demand responsive service.
    (b) Providers of taxi service are not required to purchase or lease 
accessible automobiles. When a provider of taxi service purchases or 
leases a vehicle other than an automobile, the vehicle is required to be 
accessible unless the provider demonstrates equivalency as provided in 
Sec. 37.105 of this part. A provider of taxi service is not required to 
purchase vehicles other than automobiles in order to have a number of 
accessible vehicles in its fleet.
    (c) Private entities providing taxi service shall not discriminate 
against individuals with disabilities by actions including, but not 
limited to, refusing to provide service to individuals with disabilities 
who can use taxi vehicles, refusing to assist with the stowing of 
mobility devices, and charging higher fares or fees for carrying 
individuals with disabilities and their equipment than are charged to 
other persons.



Sec. 37.31  Vanpools.

    Vanpool systems which are operated by public entities, or in which 
public entities own or purchase or lease the vehicles, are subject to 
the requirements of this part for demand responsive service for the 
general public operated by public entities. A vanpool system in this 
category is deemed to be providing equivalent service to individuals 
with disabilities if a vehicle that an individual with disabilities can 
use is made available to and used by a vanpool in which such an 
individual chooses to participate.

[[Page 342]]



Sec. 37.33  Airport transportation systems.

    (a) Transportation systems operated by public airport operators, 
which provide designated public transportation and connect parking lots 
and terminals or provide transportation among terminals, are subject to 
the requirements of this part for fixed route or demand responsive 
systems, as applicable, operated by public entities. Public airports 
which operate fixed route transportation systems are subject to the 
requirements of this part for commuter bus service operated by public 
entities. The provision by an airport of additional accommodations 
(e.g., parking spaces in a close-in lot) is not a substitute for meeting 
the requirements of this part.
    (b) Fixed-route transportation systems operated by public airport 
operators between the airport and a limited number of destinations in 
the area it serves are subject to the provisions of this part for 
commuter bus systems operated by public entities.
    (c) Private jitney or shuttle services that provide transportation 
between an airport and destinations in the area it serves in a route-
deviation or other variable mode are subject to the requirements of this 
part for private entities primarily engaged in the business of 
transporting people which provide demand responsive service. They may 
meet equivalency requirements by such means as sharing or pooling 
accessible vehicles among operators, in a way that ensures the provision 
of equivalent service.



Sec. 37.35  Supplemental service for other transportation modes.

    (a) Transportation service provided by bus or other vehicle by an 
intercity commuter or rail operator, as an extension of or supplement to 
its rail service, and which connects an intercity rail station and 
limited other points, is subject to the requirements of this part for 
fixed route commuter bus service operated by a public entity.
    (b) Dedicated bus service to commuter rail systems, with through 
ticketing arrangements and which is available only to users of the 
commuter rail system, is subject to the requirements of this part for 
fixed route commuter bus service operated by a public entity.



Sec. 37.37  Other applications.

    (a) A private entity does not become subject to the requirements of 
this part for public entities, because it receives an operating subsidy 
from, is regulated by, or is granted a franchise or permit to operate by 
a public entity.
    (b) Shuttle systems and other transportation services operated by 
privately-owned hotels, car rental agencies, historical or theme parks, 
and other public accommodations are subject to the requirements of this 
part for private entities not primarily engaged in the business of 
transporting people. Either the requirements for demand responsive or 
fixed route service may apply, depending upon the characteristics of 
each individual system of transportation.
    (c) Conveyances used by members of the public primarily for 
recreational purposes rather than for transportation (e.g., amusement 
park rides, ski lifts, or historic rail cars or trolleys operated in 
museum settings) are not subject to the requirements of this part. Such 
conveyances are subject to Department of Justice regulations 
implementing title II or title III of the ADA (28 CFR part 35 or 36), as 
applicable.
    (d) Transportation services provided by an employer solely for its 
own employees are not subject to the requirements of this part. Such 
services are subject to the regulations of the Equal Employment 
Opportunity Commission under title I of the ADA (29 CFR part 1630) and, 
with respect to public entities, the regulations of the Department of 
Justice under title II of the ADA (28 CFR part 35).
    (e) Transportation systems operated by private clubs or 
establishments exempted from coverage under title II of the Civil Rights 
Act of 1964 (42 U.S.C. 2000-a(e)) or religious organizations or entities 
controlled by religious organizations are not subject to the 
requirements of this part.
    (f) If a parent private company is not primarily engaged in the 
business of transporting people, or is not a place of

[[Page 343]]

public accommodation, but a subsidiary company or an operationally 
distinct segment of the company is primarily engaged in the business of 
transporting people, the transportation service provided by the 
subsidiary or segment is subject to the requirements of this part for 
private entities primarily engaged in the business of transporting 
people.
    (g) High-speed rail systems operated by public entities are subject 
to the requirements of this part governing intercity rail systems.
    (h) Private rail systems providing fixed route or specified public 
transportation service are subject to the requirements of Sec. 37.107 
with respect to the acquisition of rail passenger cars. Such systems are 
subject to the requirements of the regulations of the Department of 
Justice implementing title III of the ADA (28 CFR part 36) with respect 
to stations and other facilities.



Sec. 37.39  [Reserved]



                  Subpart C--Transportation Facilities



Sec. 37.41  Construction of transportation facilities by public entities.

    A public entity shall construct any new facility to be used in 
providing designated public transportation services so that the facility 
is readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs. This requirement also applies 
to the construction of a new station for use in intercity or commuter 
rail transportation. For purposes of this section, a facility or station 
is ``new'' if its construction begins (i.e., issuance of notice to 
proceed) after January 25, 1992, or, in the case of intercity or 
commuter rail stations, after October 7, 1991.



Sec. 37.43  Alteration of transportation facilities by public entities.

    (a)(1) When a public entity alters an existing facility or a part of 
an existing facility used in providing designated public transportation 
services in a way that affects or could affect the usability of the 
facility or part of the facility, the entity shall make the alterations 
(or ensure that the alterations are made) in such a manner, to the 
maximum extent feasible, that the altered portions of the facility are 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, upon the completion of such 
alterations.
    (2) When a public entity undertakes an alteration that affects or 
could affect the usability of or access to an area of a facility 
containing a primary function, the entity shall make the alteration in 
such a manner that, to the maximum extent feasible, the path of travel 
to the altered area and the bathrooms, telephones, and drinking 
fountains serving the altered area are readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs, upon completion of the alterations. Provided, that 
alterations to the path of travel, drinking fountains, telephones and 
bathrooms are not required to be made readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs, if the cost and scope of doing so would be 
disproportionate.
    (3) The requirements of this paragraph also apply to the alteration 
of existing intercity or commuter rail stations by the responsible 
person for, owner of, or person in control of the station.
    (4) The requirements of this section apply to any alteration which 
begins (i.e., issuance of notice to proceed or work order, as 
applicable) after January 25, 1992, or, in the case of intercity and 
commuter rail stations, after October 7, 1991.
    (b) As used in this section, the phrase to the maximum extent 
feasible applies to the occasional case where the nature of an existing 
facility makes it impossible to comply fully with applicable 
accessibility standards through a planned alteration. In these 
circumstances, the entity shall provide the maximum physical 
accessibility feasible. Any altered features of the facility or portion 
of the facility that can be made accessible shall be made accessible. If 
providing accessibility to certain individuals with disabilities (e.g., 
those who use wheelchairs) would not be feasible, the facility shall be

[[Page 344]]

made accessible to individuals with other types of disabilities (e.g., 
those who use crutches, those who have impaired vision or hearing, or 
those who have other impairments).
    (c) As used in this section, a primary function is a major activity 
for which the facility is intended. Areas of transportation facilities 
that involve primary functions include, but are not necessarily limited 
to, ticket purchase and collection areas, passenger waiting areas, train 
or bus platforms, baggage checking and return areas and employment areas 
(except those involving non-occupiable spaces accessed only by ladders, 
catwalks, crawl spaces, very narrow passageways, or freight (non-
passenger) elevators which are frequented only by repair personnel).
    (d) As used in this section, a ``path of travel'' includes a 
continuous, unobstructed way of pedestrian passage by means of which the 
altered area may be approached, entered, and exited, and which connects 
the altered area with an exterior approach (including sidewalks, parking 
areas, and streets), an entrance to the facility, and other parts of the 
facility. The term also includes the restrooms, telephones, and drinking 
fountains serving the altered area. An accessible path of travel may 
include walks and sidewalks, curb ramps and other interior or exterior 
pedestrian ramps, clear floor paths through corridors, waiting areas, 
concourses, and other improved areas, parking access aisles, elevators 
and lifts, bridges, tunnels, or other passageways between platforms, or 
a combination of these and other elements.
    (e)(1) Alterations made to provide an accessible path of travel to 
the altered area will be deemed disproportionate to the overall 
alteration when the cost exceeds 20 percent of the cost of the 
alteration to the primary function area (without regard to the costs of 
accessibility modifications).
    (2) Costs that may be counted as expenditures required to provide an 
accessible path of travel include:
    (i) Costs associated with providing an accessible entrance and an 
accessible route to the altered area (e.g., widening doorways and 
installing ramps);
    (ii) Costs associated with making restrooms accessible (e.g., grab 
bars, enlarged toilet stalls, accessible faucet controls);
    (iii) Costs associated with providing accessible telephones (e.g., 
relocation of phones to an accessible height, installation of 
amplification devices or TDDs);
    (iv) Costs associated with relocating an inaccessible drinking 
fountain.
    (f)(1) When the cost of alterations necessary to make a path of 
travel to the altered area fully accessible is disproportionate to the 
cost of the overall alteration, then such areas shall be made accessible 
to the maximum extent without resulting in disproportionate costs;
    (2) In this situation, the public entity should give priority to 
accessible elements that will provide the greatest access, in the 
following order:
    (i) An accessible entrance;
    (ii) An accessible route to the altered area;
    (iii) At least one accessible restroom for each sex or a single 
unisex restroom (where there are one or more restrooms);
    (iv) Accessible telephones;
    (v) Accessible drinking fountains;
    (vi) When possible, other accessible elements (e.g., parking, 
storage, alarms).
    (g) If a public entity performs a series of small alterations to the 
area served by a single path of travel rather than making the 
alterations as part of a single undertaking, it shall nonetheless be 
responsible for providing an accessible path of travel.
    (h)(1) If an area containing a primary function has been altered 
without providing an accessible path of travel to that area, and 
subsequent alterations of that area, or a different area on the same 
path of travel, are undertaken within three years of the original 
alteration, the total cost of alteration to the primary function areas 
on that path of travel during the preceding three year period shall be 
considered in determining whether the cost of making that path of travel 
is disproportionate;
    (2) For the first three years after January 26, 1992, only 
alterations undertaken between that date and the date of the alteration 
at issue shall be considered in determining if the cost of

[[Page 345]]

providing accessible features is disproportionate to the overall cost of 
the alteration.
    (3) Only alterations undertaken after January 26, 1992, shall be 
considered in determining if the cost of providing an accessible path of 
travel is disproportionate to the overall cost of the alteration.



Sec. 37.45  Construction and alteration of transportation facilities by private entities.

    In constructing and altering transit facilities, private entities 
shall comply with the regulations of the Department of Justice 
implementing Title III of the ADA (28 CFR part 36).



Sec. 37.47  Key stations in light and rapid rail systems.

    (a) Each public entity that provides designated public 
transportation by means of a light or rapid rail system shall make key 
stations on its system readily accessible to and usable by individuals 
with disabilities, including individuals who use wheelchairs. This 
requirement is separate from and in addition to requirements set forth 
in Sec. 37.43 of this part.
    (b) Each public entity shall determine which stations on its system 
are key stations. The entity shall identify key stations, using the 
planning and public participation process set forth in paragraph (d) of 
this section, and taking into consideration the following criteria:
    (1) Stations where passenger boardings exceed average station 
passenger boardings on the rail system by at least fifteen percent, 
unless such a station is close to another accessible station;
    (2) Transfer stations on a rail line or between rail lines;
    (3) Major interchange points with other transportation modes, 
including stations connecting with major parking facilities, bus 
terminals, intercity or commuter rail stations, passenger vessel 
terminals, or airports;
    (4) End stations, unless an end station is close to another 
accessible station; and
    (5) Stations serving major activity centers, such as employment or 
government centers, institutions of higher education, hospitals or other 
major health care facilities, or other facilities that are major trip 
generators for individuals with disabilities.
    (c)(1) Unless an entity receives an extension under paragraph (c)(2) 
of this section, the public entity shall achieve accessibility of key 
stations as soon as possible, but in no case later than July 26, 1993, 
except that an entity is not required to complete installation of 
detectable warnings required by section 10.3.2(2) of appendix A to this 
part until July 26, 1994.
    (2) The FTA Administrator may grant an extension of this completion 
date for key station accessibility for a period up to July 26, 2020, 
provided that two-thirds of key stations are made accessible by July 26, 
2010. Extensions may be granted as provided in paragraph (e) of this 
section.
    (d) The public entity shall develop a plan for compliance for this 
section. The plan shall be submitted to the appropriate FTA regional 
office by July 26, 1992. (See appendix B to this part for list.)
    (1) The public entity shall consult with individuals with 
disabilities affected by the plan. The public entity also shall hold at 
least one public hearing on the plan and solicit comments on it. The 
plan submitted to FTA shall document this public participation, 
including summaries of the consultation with individuals with 
disabilities and the comments received at the hearing and during the 
comment period. The plan also shall summarize the public entity's 
responses to the comments and consultation.
    (2) The plan shall establish milestones for the achievement of 
required accessibility of key stations, consistent with the requirements 
of this section.
    (e) A public entity wishing to apply for an extension of the July 
26, 1993, deadline for key station accessibility shall include a request 
for an extension with its plan submitted to FTA under paragraph (d) of 
this section. Extensions may be granted only with respect to key 
stations which need extraordinarily expensive structural changes to, or 
replacement of, existing facilities (e.g., installations of elevators, 
raising the entire passenger platform,

[[Page 346]]

or alterations of similar magnitude and cost). Requests for extensions 
shall provide for completion of key station accessibility within the 
time limits set forth in paragraph (c) of this section. The FTA 
Administrator may approve, approve with conditions, modify, or 
disapprove any request for an extension.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63102, Nov. 30, 1993]



Sec. 37.49  Designation of responsible person(s) for intercity and commuter rail stations.

    (a) The responsible person(s) designated in accordance with this 
section shall bear the legal and financial responsibility for making a 
key station accessible in the same proportion as determined under this 
section.
    (b) In the case of a station more than fifty percent of which is 
owned by a public entity, the public entity is the responsible party.
    (c) In the case of a station more than fifty percent of which is 
owned by a private entity the persons providing commuter or intercity 
rail service to the station are the responsible parties, in a proportion 
equal to the percentage of all passenger boardings at the station 
attributable to the service of each, over the entire period during which 
the station is made accessible.
    (d) In the case of a station of which no entity owns more than fifty 
percent, the owners of the station (other than private entity owners) 
and persons providing intercity or commuter rail service to the station 
are the responsible persons.
    (1) Half the responsibility for the station shall be assumed by the 
owner(s) of the station. The owners shall share this responsibility in 
proportion to their ownership interest in the station, over the period 
during which the station is made accessible.
    (2) The person(s) providing commuter or intercity rail service to 
the station shall assume the other half of the responsibility. These 
persons shall share this responsibility. These persons shall share this 
responsibility for the station in a proportion equal to the percentage 
of all passenger boardings at the station attributable to the service of 
each, over the period during which the station is made accessible.
    (e) Persons who must share responsibility for station accessibility 
under paragraphs (c) and (d) of this section may, by agreement, allocate 
their responsibility in a manner different from that provided in this 
section.



Sec. 37.51  Key stations in commuter rail systems.

    (a) The responsible person(s) shall make key stations on its system 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs. This requirement is separate 
from and in addition to requirements set forth in Sec. 37.43 of this 
part.
    (b) Each commuter authority shall determine which stations on its 
system are key stations. The commuter authority shall identify key 
stations, using the planning and public participation process set forth 
in paragraph (d) of this section, and taking into consideration the 
following criteria:
    (1) Stations where passenger boardings exceed average station 
passenger boardings on the rail system by at least fifteen percent, 
unless such a station is close to another accessible station;
    (2) Transfer stations on a rail line or between rail lines;
    (3) Major interchange points with other transportation modes, 
including stations connecting with major parking facilities, bus 
terminals, intercity or commuter rail stations, passenger vessel 
terminals, or airports;
    (4) End stations, unless an end station is close to another 
accessible station; and
    (5) Stations serving major activity centers, such as employment or 
government centers, institutions of higher education, hospitals or other 
major health care facilities, or other facilities that are major trip 
generators for individuals with disabilities.
    (c)(1) Except as provided in this paragraph, the responsible 
person(s) shall achieve accessibility of key stations as soon as 
possible, but in no case later than July 26, 1993, except that an entity 
is not required to complete installation of detectable warnings required

[[Page 347]]

by section 10.3.2(2) of appendix A to this part until July 26, 1994.
    (2) The FTA Administrator may grant an extension of this deadline 
for key station accessibility for a period up to July 26, 2010. 
Extensions may be granted as provided in paragraph (e) of this section.
    (d) The commuter authority and responsible person(s) for stations 
involved shall develop a plan for compliance for this section. This plan 
shall be completed and submitted to FTA by July 26, 1992.
    (1) The commuter authority and responsible person(s) shall consult 
with individuals with disabilities affected by the plan. The commuter 
authority and responsible person(s) also shall hold at least one public 
hearing on the plan and solicit comments on it. The plan shall document 
this public participation, including summaries of the consultation with 
individuals with disabilities and the comments received at the hearing 
and during the comment period. The plan also shall summarize the 
responsible person(s) responses to the comments and consultation.
    (2) The plan shall establish milestones for the achievement of 
required accessibility of key stations, consistent with the requirements 
of this section.
    (3) The commuter authority and responsible person(s) of each key 
station identified in the plan shall, by mutual agreement, designate a 
project manager for the purpose of undertaking the work of making the 
key station accessible.
    (e) Any commuter authority and/or responsible person(s) wishing to 
apply for an extension of the July 26, 1993, deadline for key station 
accessibility shall include a request for extension with its plan 
submitted to under paragraph (d) of this section. Extensions may be 
granted only in a case where raising the entire passenger platform is 
the only means available of attaining accessibility or where other 
extraordinarily expensive structural changes (e.g., installations of 
elevators, or alterations of magnitude and cost similar to installing an 
elevator or raising the entire passenger platform) are necessary to 
attain accessibility. Requests for extensions shall provide for 
completion of key station accessibility within the time limits set forth 
in paragraph (c) of this section. The FTA Administrator may approve, 
approve with conditions, modify, or disapprove any request for an 
extension.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63102, Nov. 30, 1993]



Sec. 37.53  Exception for New York and Philadelphia.

    (a) The following agreements entered into in New York, New York, and 
Philadelphia, Pennsylvania, contain lists of key stations for the public 
entities that are a party to those agreements for those service lines 
identified in the agreements. The identification of key stations under 
these agreements is deemed to be in compliance with the requirements of 
this Subpart.
    (1) Settlement Agreement by and among Eastern Paralyzed Veterans 
Association, Inc., James J. Peters, Terrance Moakley, and Denise 
Figueroa, individually and as representatives of the class of all 
persons similarly situated (collectively, ``the EPVA class 
representatives''); and Metropolitan Transportation Authority, New York 
City Transit Authority, and Manhattan and Bronx Surface Transit 
Operating Authority (October 4, 1984).
    (2) Settlement Agreement by and between Eastern Paralyzed Veterans 
Association of Pennsylvania, Inc., and James J. Peters, individually; 
and Dudley R. Sykes, as Commissioner of the Philadelphia Department of 
Public Property, and his successors in office and the City of 
Philadelphia (collectively ``the City'') and Southeastern Pennsylvania 
Transportation Authority (June 28, 1989).
    (b) To comply with Secs. 37.47 (b) and (d) or 37.51 (b) and (d) of 
this part, the entities named in the agreements are required to use 
their public participation and planning processes only to develop and 
submit to the FTA Administrator plans for timely completion of key 
station accessibilty, as provided in this subpart.
    (c) In making accessible the key stations identified under the 
agreements cited in this section, the entities named in the agreements 
are subject to the requirements of Sec. 37.9 of this part.

[[Page 348]]



Sec. 37.55  Intercity rail station accessibility.

    All intercity rail stations shall be made readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs, as soon as practicable, but in no event later than July 26, 
2010. This requirement is separate from and in addition to requirements 
set forth in Sec. 37.43 of this part.



Sec. 37.57  Required cooperation.

    An owner or person in control of an intercity or commuter rail 
station shall provide reasonable cooperation to the responsible 
person(s) for that station with respect to the efforts of the 
responsible person to comply with the requirements of this subpart.



Sec. 37.59  Differences in accessibility completion dates.

    Where different completion dates for accessible stations are 
established under this part for a station or portions of a station 
(e.g., extensions of different periods of time for a station which 
serves both rapid and commuter rail systems), accessibility to the 
following elements of the station shall be achieved by the earlier of 
the completion dates involved:
    (a) Common elements of the station;
    (b) Portions of the facility directly serving the rail system with 
the earlier completion date; and
    (c) An accessible path from common elements of the station to 
portions of the facility directly serving the rail system with the 
earlier completion date.



Sec. 37.61  Public transportation programs and activities in existing facilities.

    (a) A public entity shall operate a designated public transportation 
program or activity conducted in an existing facility so that, when 
viewed in its entirety, the program or activity is readily accessible to 
and usable by individuals with disabilities.
    (b) This section does not require a public entity to make structural 
changes to existing facilities in order to make the facilities 
accessible by individuals who use wheelchairs, unless and to the extent 
required by Sec. 37.43 (with respect to alterations) or Secs. 37.47 or 
37.51 of this part (with respect to key stations). Entities shall comply 
with other applicable accessibility requirements for such facilities.
    (c) Public entities, with respect to facilities that, as provided in 
paragraph (b) of this section, are not required to be made accessible to 
individuals who use wheelchairs, are not required to provide to such 
individuals services made available to the general public at such 
facilities when the individuals could not utilize or benefit from the 
services.



Secs. 37.63--37.69  [Reserved]



    Subpart D--Acquisition of Accessible Vehicles By Public Entities



Sec. 37.71  Purchase or lease of new non-rail vehicles by public entities operating fixed route systems.

    (a) Except as provided elsewhere in this section, each public entity 
operating a fixed route system making a solicitation after August 25, 
1990, to purchase or lease a new bus or other new vehicle for use on the 
system, shall ensure that the vehicle is readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs.
    (b) A pubilc entity may purchase or lease a new bus that is not 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, if it applies for, and the 
FTA Administrator grants, a waiver as provided for in this section.
    (c) Before submitting a request for such a waiver, the public entity 
shall hold at least one public hearing concerning the proposed request.
    (d) The FTA Administrator may grant a request for such a waiver if 
the public entity demonstrates to the FTA Administrator's satisfaction 
that--
    (1) The initial solicitation for new buses made by the public entity 
specified that all new buses were to be lift-equipped and were to be 
otherwise accessible to and usable by individuals with disabilities;
    (2) Hydraulic, electromechanical, or other lifts for such new buses 
could not be provided by any qualified lift manufacturer to the 
manufacturer of such

[[Page 349]]

new buses in sufficient time to comply with the solicitation; and
    (3) Any further delay in purchasing new buses equipped with such 
necessary lifts would significantly impair transportation services in 
the community served by the public entity.
    (e) The public entity shall include with its waiver request a copy 
of the initial solicitation and written documentation from the bus 
manufacturer of its good faith efforts to obtain lifts in time to comply 
with the solicitation, and a full justification for the assertion that 
the delay in bus procurement needed to obtain a lift-equipped bus would 
significantly impair transportation services in the community. This 
documentation shall include a specific date at which the lifts could be 
supplied, copies of advertisements in trade publications and inquiries 
to trade associations seeking lifts, and documentation of the public 
hearing.
    (f) Any waiver granted by the FTA Administrator under this section 
shall be subject to the following conditions:
    (1) The waiver shall apply only to the particular bus delivery to 
which the waiver request pertains;
    (2) The waiver shall include a termination date, which will be based 
on information concerning when lifts will become available for 
installation on the new buses the public entity is purchasing. Buses 
delivered after this date, even though procured under a solicitation to 
which a waiver applied, shall be equipped with lifts;
    (3) Any bus obtained subject to the waiver shall be capable of 
accepting a lift, and the public entity shall install a lift as soon as 
one becomes available;
    (4) Such other terms and conditions as the FTA Administrator may 
impose.
    (g)(1) When the FTA Administrator grants a waiver under this 
section, he/she shall promptly notify the appropriate committees of 
Congress.
    (2) If the FTA Administrator has reasonable cause to believe that a 
public entity fraudulently applied for a waiver under this section, the 
FTA Administrator shall:
    (i) Cancel the waiver if it is still in effect; and
    (ii) Take other appropriate action.



Sec. 37.73  Purchase or lease of used non-rail vehicles by public entities operating fixed route systems.

    (a) Except as provided elsewhere in this section, each public entity 
operating a fixed route system purchasing or leasing, after August 25, 
1990, a used bus or other used vehicle for use on the system, shall 
ensure that the vehicle is readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    (b) A public entity may purchase or lease a used vehicle for use on 
its fixed route system that is not readily accessible to and usable by 
individuals with disabilities if, after making demonstrated good faith 
efforts to obtain an accessible vehicle, it is unable to do so.
    (c) Good faith efforts shall include at least the following steps:
    (1) An initial solicitation for used vehicles specifying that all 
used vehicles are to be lift-equipped and otherwise accessible to and 
usable by individuals with disabilities, or, if an initial solicitation 
is not used, a documented communication so stating;
    (2) A nationwide search for accessible vehicles, involving specific 
inquiries to used vehicle dealers and other transit providers; and
    (3) Advertising in trade publications and contacting trade 
associations.
    (d) Each public entity purchasing or leasing used vehicles that are 
not readily accessible to and usable by individuals with disabilities 
shall retain documentation of the specific good faith efforts it made 
for three years from the date the vehicles were purchased. These records 
shall be made available, on request, to the FTA Administrator and the 
public.



Sec. 37.75  Remanufacture of non-rail vehicles and purchase or lease of remanufactured non-rail vehicles by public entities operating fixed route systems.

    (a) This section applies to any public entity operating a fixed 
route system which takes one of the following actions:
    (1) After August 25, 1990, remanufactures a bus or other vehicle so 
as to extend its useful life for five years or

[[Page 350]]

more or makes a solicitation for such remanufacturing; or
    (2) Purchases or leases a bus or other vehicle which has been 
remanufactured so as to extend its useful life for five years or more, 
where the purchase or lease occurs after August 25, 1990, and during the 
period in which the useful life of the vehicle is extended.
    (b) Vehicles acquired through the actions listed in paragraph (a) of 
this section shall, to the maximum extent feasible, be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (c) For purposes of this section, it shall be considered feasible to 
remanufacture a bus or other motor vehicle so as to be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless an engineering analysis 
demonstrates that including accessibility features required by this part 
would have a significant adverse effect on the structural integrity of 
the vehicle.
    (d) If a public entity operates a fixed route system, any segment of 
which is included on the National Register of Historic Places, and if 
making a vehicle of historic character used solely on such segment 
readily accessible to and usable by individuals with disabilities would 
significantly alter the historic character of such vehicle, the public 
entity has only to make (or purchase or lease a remanufactured vehicle 
with) those modifications to make the vehicle accessible which do not 
alter the historic character of such vehicle, in consultation with the 
National Register of Historic Places.
    (e) A public entity operating a fixed route system as described in 
paragraph (d) of this section may apply in writing to the FTA 
Administrator for a determination of the historic character of the 
vehicle. The FTA Administrator shall refer such requests to the National 
Register of Historic Places, and shall rely on its advice in making 
determinations of the historic character of the vehicle.



Sec. 37.77  Purchase or lease of new non-rail vehicles by public entities operating a demand responsive system for the general public.

    (a) Except as provided in this section, a public entity operating a 
demand responsive system for the general public making a solicitation 
after August 25, 1990, to purchase or lease a new bus or other new 
vehicle for use on the system, shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (b) If the system, when viewed in its entirety, provides a level of 
service to individuals with disabilities, including individuals who use 
wheelchairs, equivalent to the level of service it provides to 
individuals without disabilities, it may purchase new vehicles that are 
not readily accessible to and usable by individuals with disabilities.
    (c) For purposes of this section, a demand responsive system, when 
viewed in its entirety, shall be deemed to provide equivalent service if 
the service available to individuals with disabilities, including 
individuals who use wheelchairs, is provided in the most integrated 
setting appropriate to the needs of the individual and is equivalent to 
the service provided other individuals with respect to the following 
service characteristics:
    (1) Response time;
    (2) Fares;
    (3) Geographic area of service;
    (4) Hours and days of service;
    (5) Restrictions or priorities based on trip purpose;
    (6) Availability of information and reservations capability; and
    (7) Any constraints on capacity or service availability.
    (d) A public entity receiving FTA funds under section 18 or a public 
entity in a small urbanized area which receives FTA funds under Section 
9 from a state administering agency rather than directly from FTA, which 
determines that its service to individuals with disabilities is 
equivalent to that provided other persons shall, before any procurement 
of an inaccessible vehicle, file with the appropriate state

[[Page 351]]

program office a certificate that it provides equivalent service meeting 
the standards of paragraph (c) of this section. Public entities 
operating demand responsive service receiving funds under any other 
section of the FT Act shall file the certificate with the appropriate 
FTA regional office. A public entity which does not receive FTA funds 
shall make such a certificate and retain it in its files, subject to 
inspection on request of FTA. All certificates under this paragraph may 
be made and filed in connection with a particular procurement or in 
advance of a procurement; however, no certificate shall be valid for 
more than one year. A copy of the required certificate is found in 
appendix C to this part.
    (e) The waiver mechanism set forth in Sec. 37.71(b)-(g) 
(unavailability of lifts) of this subpart shall also be available to 
public entities operating a demand responsive system for the general 
public.



Sec. 37.79  Purchase or lease of new rail vehicles by public entities operating rapid or light rail systems.

    Each public entity operating a rapid or light rail system making a 
solicitation after August 25, 1990, to purchase or lease a new rapid or 
light rail vehicle for use on the system shall ensure that the vehicle 
is readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs.



Sec. 37.81  Purchase or lease of used rail vehicles by public entities operating rapid or light rail systems.

    (a) Except as provided elsewhere in this section, each public entity 
operating a rapid or light rail system which, after August 25, 1990, 
purchases or leases a used rapid or light rail vehicle for use on the 
system shall ensure that the vehicle is readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs.
    (b) A public entity may purchase or lease a used rapid or light rail 
vehicle for use on its rapid or light rail system that is not readily 
accessible to and usable by individuals if, after making demonstrated 
good faith efforts to obtain an accessible vehicle, it is unable to do 
so.
    (c) Good faith efforts shall include at least the following steps:
    (1) The initial solicitation for used vehicles made by the public 
entity specifying that all used vehicles were to be accessible to and 
usable by individuals with disabilities, or, if a solicitation is not 
used, a documented communication so stating;
    (2) A nationwide search for accessible vehicles, involving specific 
inquiries to manufacturers and other transit providers; and
    (3) Advertising in trade publications and contacting trade 
associations.
    (d) Each public entity purchasing or leasing used rapid or light 
rail vehicles that are not readily accessible to and usable by 
individuals with disabilities shall retain documentation of the specific 
good faith efforts it made for three years from the date the vehicles 
were purchased. These records shall be made available, on request, to 
the FTA Administrator and the public.



Sec. 37.83  Remanufacture of rail vehicles and purchase or lease of remanufactured rail vehicles by public entities operating rapid or light rail systems.

    (a) This section applies to any public entity operating a rapid or 
light rail system which takes one of the following actions:
    (1) After August 25, 1990, remanufactures a light or rapid rail 
vehicle so as to extend its useful life for five years or more or makes 
a solicitation for such remanufacturing;
    (2) Purchases or leases a light or rapid rail vehicle which has been 
remanufactured so as to extend its useful life for five years or more, 
where the purchase or lease occurs after August 25, 1990, and during the 
period in which the useful life of the vehicle is extended.
    (b) Vehicles acquired through the actions listed in paragraph (a) of 
this section shall, to the maximum extent feasible, be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (c) For purposes of this section, it shall be considered feasible to 
remanufacture a rapid or light rail vehicle so

[[Page 352]]

as to be readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs, unless an 
engineering analysis demonstrates that doing so would have a significant 
adverse effect on the structural integrity of the vehicle.
    (d) If a public entity operates a rapid or light rail system any 
segment of which is included on the National Register of Historic Places 
and if making a rapid or light rail vehicle of historic character used 
solely on such segment readily accessible to and usable by individuals 
with disabilities would significantly alter the historic character of 
such vehicle, the public entity need only make (or purchase or lease a 
remanufactured vehicle with) those modifications that do not alter the 
historic character of such vehicle.
    (e) A public entity operating a fixed route system as described in 
paragraph (d) of this section may apply in writing to the FTA 
Administrator for a determination of the historic character of the 
vehicle. The FTA Administrator shall refer such requests to the National 
Register of Historic Places and shall rely on its advice in making a 
determination of the historic character of the vehicle.



Sec. 37.85  Purchase or lease of new intercity and commuter rail cars.

    Amtrak or a commuter authority making a solicitation after August 
25, 1990, to purchase or lease a new intercity or commuter rail car for 
use on the system shall ensure that the vehicle is readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.



Sec. 37.87  Purchase or lease of used intercity and commuter rail cars.

    (a) Except as provided elsewhere in this section, Amtrak or a 
commuter authority purchasing or leasing a used intercity or commuter 
rail car after August 25, 1990, shall ensure that the car is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (b) Amtrak or a commuter authority may purchase or lease a used 
intercity or commuter rail car that is not readily accessible to and 
usable by individuals if, after making demonstrated good faith efforts 
to obtain an accessible vehicle, it is unable to do so.
    (c) Good faith efforts shall include at least the following steps:
    (1) An initial solicitation for used vehicles specifying that all 
used vehicles accessible to and usable by individuals with disabilities;
    (2) A nationwide search for accessible vehicles, involving specific 
inquiries to used vehicle dealers and other transit providers; and
    (3) Advertising in trade publications and contacting trade 
associations.
    (d) When Amtrak or a commuter authority leases a used intercity or 
commuter rail car for a period of seven days or less, Amtrak or the 
commuter authority may make and document good faith efforts as provided 
in this paragraph instead of in the ways provided in paragraph (c) of 
this section:
    (1) By having and implementing, in its agreement with any intercity 
railroad or commuter authority that serves as a source of used intercity 
or commuter rail cars for a lease of seven days or less, a provision 
requiring that the lessor provide all available accessible rail cars 
before providing any inaccessible rail cars.
    (2) By documenting that, when there is more than one source of 
intercity or commuter rail cars for a lease of seven days or less, the 
lessee has obtained all available accessible intercity or commuter rail 
cars from all sources before obtaining inaccessible intercity or 
commuter rail cars from any source.
    (e) Amtrak and commuter authorities purchasing or leasing used 
intercity or commuter rail cars that are not readily accessible to and 
usable by individuals with disabilities shall retain documentation of 
the specific good faith efforts that were made for three years from the 
date the cars were purchased. These records shall be made available, on 
request, to the Federal Railroad Administration or FTA Administrator, as 
applicable. These records shall be made available to the public, on 
request.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63102, Nov. 30, 1993]

[[Page 353]]



Sec. 37.89  Remanufacture of intercity and commuter rail cars and purchase or lease of remanufactured intercity and commuter rail cars.

    (a) This section applies to Amtrak or a commuter authority which 
takes one of the following actions:
    (1) Remanufactures an intercity or commuter rail car so as to extend 
its useful life for ten years or more;
    (2) Purchases or leases an intercity or commuter rail car which has 
been remanufactured so as to extend its useful life for ten years or 
more.
    (b) Intercity and commuter rail cars listed in paragraph (a) of this 
section shall, to the maximum extent feasible, be readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.
    (c) For purposes of this section, it shall be considered feasible to 
remanufacture an intercity or commuter rail car so as to be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless an engineering analysis 
demonstrates that remanufacturing the car to be accessible would have a 
significant adverse effect on the structural integrity of the car.



Sec. 37.91  Wheelchair locations and food service on intercity rail trains.

    (a) As soon as practicable, but in no event later than July 26, 
1995, each person providing intercity rail service shall provide on each 
train a number of spaces--
    (1) To park wheelchairs (to accommodate individuals who wish to 
remain in their wheelchairs) equal to not less than one half of the 
number of single level rail passenger coaches in the train; and
    (2) To fold and store wheelchairs (to accommodate individuals who 
wish to transfer to coach seats) equal to not less than one half the 
number of single level rail passenger coaches in the train.
    (b) As soon as practicable, but in no event later than July 26, 
2000, each person providing intercity rail service shall provide on each 
train a number of spaces--
    (1) To park wheelchairs (to accommodate individuals who wish to 
remain in their wheelchairs) equal to not less than the total number of 
single level rail passenger coaches in the train; and
    (2) To fold and store wheelchairs (to accommodate individuals who 
wish to transfer to coach seats) equal to not less than the total number 
of single level rail passenger coaches in the train.
    (c) In complying with paragraphs (a) and (b) of this section, a 
person providing intercity rail service may not provide more than two 
spaces to park wheelchairs nor more than two spaces to fold and store 
wheelchairs in any one coach or food service car.
    (d) Unless not practicable, a person providing intercity rail 
transportation shall place an accessible car adjacent to the end of a 
single level dining car through which an individual who uses a 
wheelchair may enter.
    (e) On any train in which either a single level or bi-level dining 
car is used to provide food service, a person providing intercity rail 
service shall provide appropriate aids and services to ensure that 
equivalent food service is available to individuals with disabilities, 
including individuals who use wheelchairs, and to passengers traveling 
with such individuals. Appropriate auxiliary aids and services include 
providing a hard surface on which to eat.
    (f) This section does not require the provision of securement 
devices on intercity rail cars.



Sec. 37.93  One car per train rule.

    (a) The definition of accessible for purposes of meeting the one car 
per train rule is spelled out in the applicable subpart for each 
transportation system type in part 38 of this title.
    (b) Each person providing intercity rail service and each commuter 
rail authority shall ensure that, as soon as practicable, but in no 
event later than July 26, 1995, that each train has one car that is 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs.
    (c) Each public entity providing light or rapid rail service shall 
ensure that each train, consisting of two or more vehicles, includes at 
least one car that is readily accessible to and usable by individuals 
with disabilities, including individuals who use wheelchairs, as

[[Page 354]]

soon as practicable but in no case later than July 25, 1995.



Sec. 37.95  Ferries and other passenger vessels operated by public entities. [Reserved]



Secs. 37.97--37.99  [Reserved]



    Subpart E--Acquisition of Accessible Vehicles By Private Entities



Sec. 37.101  Purchase or lease of vehicles by private entities not primarily engaged in the business of transporting people.

    (a) Application. This section applies to all purchases or leases of 
vehicles by private entities which are not primarily engaged in the 
business of transporting people, in which a solicitation for the vehicle 
is made after August 25, 1990.
    (b) Fixed Route System. Vehicle Capacity Over 16. If the entity 
operates a fixed route system and purchases or leases a vehicle with a 
seating capacity of over 16 passengers (including the driver) for use on 
the system, it shall ensure that the vehicle is readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.
    (c) Fixed Route System. Vehicle Capacity of 16 or Fewer. If the 
entity operates a fixed route system and purchases or leases a vehicle 
with a seating capacity of 16 or fewer passengers (including the driver) 
for use on the system, it shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless the system, when viewed in its 
entirety, meets the standard for equivalent service of Sec. 37.105 of 
this part.
    (d) Demand Responsive System, Vehicle Capacity Over 16. If the 
entity operates a demand responsive system, and purchases or leases a 
vehicle with a seating capacity of over 16 passengers (including the 
driver) for use on the system, it shall ensure that the vehicle is 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, unless the system, when 
viewed in its entirety, meets the standard for equivalent service of 
Sec. 37.105 of this part.
    (e) Demand Responsive System, Vehicle Capacity of 16 or Fewer. 
Entities providing demand responsive transportation covered under this 
section are not specifically required to ensure that new vehicles with 
seating capacity of 16 or fewer are accessible to individuals with 
wheelchairs. These entities are required to ensure that their systems, 
when viewed in their entirety, meet the equivalent service requirements 
of Secs. 37.171 and 37.105, regardless of whether or not the entities 
purchase a new vehicle.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec. 37.103  Purchase or lease of new non-rail vehicles by private entities primarily engaged in the business of transporting people.

    (a) Application. This section applies to all acquisitions of new 
vehicles by private entities which are primarily engaged in the business 
of transporting people and whose operations affect commerce, in which a 
solicitation for the vehicle is made (except as provided in paragraph 
(d) of this section) after August 25, 1990.
    (b) Fixed route systems. If the entity operates a fixed route 
system, and purchases or leases a new vehicle other than an automobile, 
a van with a seating capacity of less than eight persons (including the 
driver), or an over-the-road bus, it shall ensure that the vehicle is 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs.
    (c) Demand responsive systems. If the entity operates a demand 
responsive system, and purchases or leases a new vehicle other than an 
automobile, a van with a seating capacity of less than eight persons 
(including the driver), or an over-the-road bus, it shall ensure that 
the vehicle is readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs, unless the 
system, when viewed in its entirety, meets the standard for equivalent 
service of Sec. 37.105 of this part.
    (d) Vans with a capacity of fewer than 8 persons. If the entity 
operates either a fixed route or demand responsive system, and purchases 
or leases a new van with a seating capacity of fewer than

[[Page 355]]

eight persons including the driver (the solicitation for the vehicle 
being made after February 25, 1992), the entity shall ensure that the 
vehicle is readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs, unless the 
system, when viewed in its entirety, meets the standard for equivalent 
service of Sec. 37.105 of this part.



Sec. 37.105  Equivalent service standard.

    For purposes of Secs. 37.101 and 37.103 of this part, a fixed route 
system or demand responsive system, when viewed in its entirety, shall 
be deemed to provide equivalent service if the service available to 
individuals with disabilities, including individuals who use 
wheelchairs, is provided in the most integrated setting appropriate to 
the needs of the individual and is equivalent to the service provided 
other individuals with respect to the following service characteristics:
    (a) (1) Schedules/headways (if the system is fixed route);
    (2) Response time (if the system is demand responsive);
    (b) Fares;
    (c) Geographic area of service;
    (d) Hours and days of service;
    (e) Availability of information;
    (f) Reservations capability (if the system is demand responsive);
    (g) Any constraints on capacity or service availability;
    (h) Restrictions priorities based on trip purpose (if the system is 
demand responsive).



Sec. 37.107  Acquisition of passenger rail cars by private entities primarily engaged in the business of transporting people.

    (a) A private entity which is primarily engaged in the business of 
transporting people and whose operations affect commerce, which makes a 
solicitation after February 25, 1992, to purchase or lease a new rail 
passenger car to be used in providing specified public transportation, 
shall ensure that the car is readily accessible to, and usable by, 
individuals with disabilities, including individuals who use 
wheelchairs. The accessibility standards in part 38 of this title which 
apply depend upon the type of service in which the car will be used.
    (b) Except as provided in paragraph (c) of this section, a private 
entity which is primarily engaged in transporting people and whose 
operations affect commerce, which remanufactures a rail passenger car to 
be used in providing specified public transportation to extend its 
useful life for ten years or more, or purchases or leases such a 
remanufactured rail car, shall ensure that the rail car, to the maximum 
extent feasible, is made readily accessible to and usable by individuals 
with disabilities, including individuals who use wheelchairs. For 
purposes of this paragraph, it shall be considered feasible to 
remanufacture a rail passenger car to be readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs, unless an engineering analysis demonstrates that doing so 
would have a significant adverse effect on the structural integrity of 
the car.
    (c) Compliance with paragraph (b) of this section is not required to 
the extent that it would significantly alter the historic or antiquated 
character of a historic or antiquated rail passenger car, or a rail 
station served exclusively by such cars, or would result in the 
violation of any rule, regulation, standard or order issued by the 
Secretary under the Federal Railroad Safety Act of 1970. For purposes of 
this section, a historic or antiquated rail passenger car means a rail 
passenger car--
    (1) Which is not less than 30 years old at the time of its use for 
transporting individuals;
    (2) The manufacturer of which is no longer in the business of 
manufacturing rail passenger cars; and
    (3) Which--
    (i) Has a consequential association with events or persons 
significant to the past; or
    (ii) Embodies, or is being restored to embody, the distinctive 
characteristics of a type of rail passenger car used in the past, or to 
represent a time period which has passed.

[[Page 356]]



Sec. 37.109  Ferries and other passenger vessels operated by private entities. [Reserved]



Secs. 37.111--37.119  [Reserved]



      Subpart F--Paratransit as a Complement to Fixed Route Service



Sec. 37.121  Requirement for comparable complementary paratransit service.

    (a) Except as provided in paragraph (c) of this section, each public 
entity operating a fixed route system shall provide paratransit or other 
special service to individuals with disabilities that is comparable to 
the level of service provided to individuals without disabilities who 
use the fixed route system.
    (b) To be deemed comparable to fixed route service, a complementary 
paratransit system shall meet the requirements of Secs. 37.123-37.133 of 
this subpart. The requirement to comply with Sec. 37.131 may be modified 
in accordance with the provisions of this subpart relating to undue 
financial burden.
    (c) Requirements for complementary paratransit do not apply to 
commuter bus, commuter rail, or intercity rail systems.



Sec. 37.123  ADA paratransit eligibility: Standards.

    (a) Public entities required by Sec. 37.121 of this subpart to 
provide complementary paratransit service shall provide the service to 
the ADA paratransit eligible individuals described in paragraph (e) of 
this section.
    (b) If an individual meets the eligibility criteria of this section 
with respect to some trips but not others, the individual shall be ADA 
paratransit eligible only for those trips for which he or she meets the 
criteria.
    (c) Individuals may be ADA paratransit eligible on the basis of a 
permanent or temporary disability.
    (d) Public entities may provide complementary paratransit service to 
persons other than ADA paratransit eligible individuals. However, only 
the cost of service to ADA paratransit eligible individuals may be 
considered in a public entity's request for an undue financial burden 
waiver under Secs. 37.151-37.155 of this part.
    (e) The following individuals are ADA paratransit eligible:
    (1) Any individual with a disability who is unable, as the result of 
a physical or mental impairment (including a vision impairment), and 
without the assistance of another individual (except the operator of a 
wheelchair lift or other boarding assistance device), to board, ride, or 
disembark from any vehicle on the system which is readily accessible to 
and usable individuals with disabilities.
    (2) Any individual with a disability who needs the assistance of a 
wheelchair lift or other boarding assistance device and is able, with 
such assistance, to board, ride and disembark from any vehicle which is 
readily accessible to and usable by individuals with disabilities if the 
individual wants to travel on a route on the system during the hours of 
operation of the system at a time, or within a reasonable period of such 
time, when such a vehicle is not being used to provide designated public 
transportation on the route.
    (i) An individual is eligible under this paragraph with respect to 
travel on an otherwise accessible route on which the boarding or 
disembarking location which the individual would use is one at which 
boarding or disembarking from the vehicle is precluded as provided in 
Sec. 37.167(g) of this part.
    (ii) An individual using a common wheelchair is eligible under this 
paragraph if the individual's wheelchair cannot be accommodated on an 
existing vehicle (e.g., because the vehicle's lift does not meet the 
standards of part 38 of this title), even if that vehicle is accessible 
to other individuals with disabilities and their mobility wheelchairs.
    (iii) With respect to rail systems, an individual is eligible under 
this paragraph if the individual could use an accessible rail system, 
but--
    (A) There is not yet one accessible car per train on the system; or
    (B) Key stations have not yet been made accessible.
    (3) Any individual with a disability who has a specific impairment-
related

[[Page 357]]

condition which prevents such individual from traveling to a boarding 
location or from a disembarking location on such system.
    (i) Only a specific impairment-related condition which prevents the 
individual from traveling to a boarding location or from a disembarking 
location is a basis for eligibility under this paragraph. A condition 
which makes traveling to boarding location or from a disembarking 
location more difficult for a person with a specific impairment-related 
condition than for an individual who does not have the condition, but 
does not prevent the travel, is not a basis for eligibility under this 
paragraph.
    (ii) Architectural barriers not under the control of the public 
entity providing fixed route service and environmental barriers (e.g., 
distance, terrain, weather) do not, standing alone, form a basis for 
eligibility under this paragraph. The interaction of such barriers with 
an individual's specific impairment-related condition may form a basis 
for eligibility under this paragraph, if the effect is to prevent the 
individual from traveling to a boarding location or from a disembarking 
location.
    (f) Individuals accompanying an ADA paratransit eligible individual 
shall be provided service as follows:
    (1) One other individual accompanying the ADA paratransit eligible 
individual shall be provided service--
    (i) If the ADA paratransit eligible individual is traveling with a 
personal care attendant, the entity shall provide service to one other 
individual in addition to the attendant who is accompanying the eligible 
individual;
    (ii) A family member or friend is regarded as a person accompanying 
the eligible individual, and not as a personal care attendant, unless 
the family member or friend registered is acting in the capacity of a 
personal care attendant;
    (2) Additional individuals accompanying the ADA paratransit eligible 
individual shall be provided service, provided that space is available 
for them on the paratransit vehicle carrying the ADA paratransit 
eligible individual and that transportation of the additional 
individuals will not result in a denial of service to ADA paratransit 
eligible individuals;
    (3) In order to be considered as ``accompanying'' the eligible 
individual for purposes of this paragraph (f), the other individual(s) 
shall have the same origin and destination as the eligible individual.



Sec. 37.125  ADA paratransit eligibility: Process.

    Each public entity required to provide complementary paratransit 
service by Sec. 37.121 of this part shall establish a process for 
determining ADA paratransit eligibility.
    (a) The process shall strictly limit ADA paratransit eligibility to 
individuals specified in Sec. 37.123 of this part.
    (b) All information about the process, materials necessary to apply 
for eligibility, and notices and determinations concerning eligibility 
shall be made available in accessible formats, upon request.
    (c) If, by a date 21 days following the submission of a complete 
application, the entity has not made a determination of eligibility, the 
applicant shall be treated as eligible and provided service until and 
unless the entity denies the application.
    (d) The entity's determination concerning eligibility shall be in 
writing. If the determination is that the individual is ineligible, the 
determination shall state the reasons for the finding.
    (e) The public entity shall provide documentation to each eligible 
individual stating that he or she is ``ADA Paratransit Eligible.'' The 
documentation shall include the name of the eligible individual, the 
name of the transit provider, the telephone number of the entity's 
paratransit coordinator, an expiration date for eligibility, and any 
conditions or limitations on the individual's eligibility including the 
use of a personal care attendant.
    (f) The entity may require recertification of the eligibility of ADA 
paratransit eligible individuals at reasonable intervals.
    (g) The entity shall establish an administrative appeal process 
through which individuals who are denied eligibility can obtain review 
of the denial.

[[Page 358]]

    (1) The entity may require that an appeal be filed within 60 days of 
the denial of an individual's application.
    (2) The process shall include an opportunity to be heard and to 
present information and arguments, separation of functions (i.e., a 
decision by a person not involved with the initial decision to deny 
eligibility), and written notification of the decision, and the reasons 
for it.
    (3) The entity is not required to provide paratransit service to the 
individual pending the determination on appeal. However, if the entity 
has not made a decision within 30 days of the completion of the appeal 
process, the entity shall provide paratransit service from that time 
until and unless a decision to deny the appeal is issued.
    (h) The entity may establish an administrative process to suspend, 
for a reasonable period of time, the provision of complementary 
paratransit service to ADA eligible individuals who establish a pattern 
or practice of missing scheduled trips.
    (1) Trips missed by the individual for reasons beyond his or her 
control (including, but not limited to, trips which are missed due to 
operator error) shall not be a basis for determining that such a pattern 
or practice exists.
    (2) Before suspending service, the entity shall take the following 
steps:
    (i) Notify the individual in writing that the entity proposes to 
suspend service, citing with specificity the basis of the proposed 
suspension and setting forth the proposed sanction.
    (ii) Provide the individual an opportunity to be heard and to 
present information and arguments;
    (iii) Provide the individual with written notification of the 
decision and the reasons for it.
    (3) The appeals process of paragraph (g) of this section is 
available to an individual on whom sanctions have been imposed under 
this paragraph. The sanction is stayed pending the outcome of the 
appeal.
    (i) In applications for ADA paratransit eligibility, the entity may 
require the applicant to indicate whether or not he or she travels with 
a personal care attendant.



Sec. 37.127  Complementary paratransit service for visitors.

    (a) Each public entity required to provide complementary paratransit 
service under Sec. 37.121 of this part shall make the service available 
to visitors as provided in this section.
    (b) For purposes of this section, a visitor is an individual with 
disabilities who does not reside in the jurisdiction(s) served by the 
public entity or other entities with which the public entity provides 
coordinated complementary paratransit service within a region.
    (c) Each public entity shall treat as eligible for its complementary 
paratransit service all visitors who present documentation that they are 
ADA paratransit eligible, under the criteria of Sec. 37.125 of this 
part, in the jurisdiction in which they reside.
    (d) With respect to visitors with disabilities who do not present 
such documentation, the public entity may require the documentation of 
the individual's place of residence and, if the individual's disability 
is not apparent, of his or her disability. The entity shall provide 
paratransit service to individuals with disabilities who qualify as 
visitors under paragraph (b) of this section. The entity shall accept a 
certification by such individuals that they are unable to use fixed 
route transit.
    (e) A public entity shall make the service to a visitor required by 
this section available for any combination of 21 days during any 365-day 
period beginning with the visitor's first use of the service during such 
365-day period. In no case shall the public entity require a visitor to 
apply for or receive eligibility certification from the public entity 
before receiving the service required by this section.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec. 37.129  Types of service.

    (a) Except as provided in this section, complementary paratransit 
service for ADA paratransit eligible persons shall be origin-to-
destination service.
    (b) Complementary paratransit service for ADA paratransit eligible 
persons described in Sec. 37.123(e)(2) of this part may also be provided 
by on-call

[[Page 359]]

bus service or paratransit feeder service to an accessible fixed route, 
where such service enables the individual to use the fixed route bus 
system for his or her trip.
    (c) Complementary paratransit service for ADA eligible persons 
described in Sec. 37.123(e)(3) of this part also may be provided by 
paratransit feeder service to and/or from an accessible fixed route.



Sec. 37.131  Service criteria for complementary paratransit.

    The following service criteria apply to complementary paratransit 
required by Sec. 37.121 of this part.
    (a) Service Area--(1) Bus. (i) The entity shall provide 
complementary paratransit service to origins and destinations within 
corridors with a width of three-fourths of a mile on each side of each 
fixed route. The corridor shall include an area with a three-fourths of 
a mile radius at the ends of each fixed route.
    (ii) Within the core service area, the entity also shall provide 
service to small areas not inside any of the corridors but which are 
surrounded by corridors.
    (iii) Outside the core service area, the entity may designate 
corridors with widths from three-fourths of a mile up to one and one 
half miles on each side of a fixed route, based on local circumstances.
    (iv) For purposes of this paragraph, the core service area is that 
area in which corridors with a width of three-fourths of a mile on each 
side of each fixed route merge together such that, with few and small 
exceptions, all origins and destinations within the area would be 
served.
    (2) Rail. (i) For rail systems, the service area shall consist of a 
circle with a radius of \3/4\ of a mile around each station.
    (ii) At end stations and other stations in outlying areas, the 
entity may designate circles with radii of up to 1\1/2\ miles as part of 
its service area, based on local circumstances.
    (3) Jurisdictional boundaries. Notwithstanding any other provision 
of this paragraph, an entity is not required to provide paratransit 
service in an area outside the boundaries of the jurisdiction(s) in 
which it operates, if the entity does not have legal authority to 
operate in that area. The entity shall take all practicable steps to 
provide paratransit service to any part of its service area.
    (b) Response time. The entity shall schedule and provide paratransit 
service to any ADA paratransit eligible person at any requested time on 
a particular day in response to a request for service made the previous 
day. Reservations may be taken by reservation agents or by mechanical 
means.
    (1) The entity shall make reservation service available during at 
least all normal business hours of the entity's administrative offices, 
as well as during times, comparable to normal business hours, on a day 
when the entity's offices are not open before a service day.
    (2) The entity may negotiate pickup times with the individual, but 
the entity shall not require an ADA paratransit eligible individual to 
schedule a trip to begin more than one hour before or after the 
individual's desired departure time.
    (3) The entity may use real-time scheduling in providing 
complementary paratransit service.
    (4) The entity may permit advance reservations to be made up to 14 
days in advance of an ADA paratransit eligible individual's desired 
trips. When an entity proposes to change its reservations system, it 
shall comply with the public participation requirements equivalent to 
those of Sec. 37.131(b) and (c).
    (c) Fares. The fare for a trip charged to an ADA paratransit 
eligible user of the complementary paratransit service shall not exceed 
twice the fare that would be charged to an individual paying full fare 
(i.e., without regard to discounts) for a trip of similar length, at a 
similar time of day, on the entity's fixed route system.
    (1) In calculating the full fare that would be paid by an individual 
using the fixed route system, the entity may include transfer and 
premium charges applicable to a trip of similar length, at a similar 
time of day, on the fixed route system.
    (2) The fares for individuals accompanying ADA paratransit eligible 
individuals, who are provided service under

[[Page 360]]

Sec. 37.123 (f) of this part, shall be the same as for the ADA 
paratransit eligible individuals they are accompanying.
    (3) A personal care attendant shall not be charged for complementary 
paratransit service.
    (4) The entity may charge a fare higher than otherwise permitted by 
this paragraph to a social service agency or other organization for 
agency trips (i.e., trips guaranteed to the organization).
    (d) Trip purpose restrictions. The entity shall not impose 
restrictions or priorities based on trip purpose.
    (e) Hours and days of service. The complementary paratransit service 
shall be available throughout the same hours and days as the entity's 
fixed route service.
    (f) Capacity constraints. The entity shall not limit the 
availability of complementary paratransit service to ADA paratransit 
eligible individuals by any of the following:
    (1) Restrictions on the number of trips an individual will be 
provided;
    (2) Waiting lists for access to the service; or
    (3) Any operational pattern or practice that significantly limits 
the availability of service to ADA paratransit eligible persons.
    (i) Such patterns or practices include, but are not limited to, the 
following:
    (A) Substantial numbers of significantly untimely pickups for 
initial or return trips;
    (B) Substantial numbers of trip denials or missed trips;
    (C) Substantial numbers of trips with excessive trip lengths.
    (ii) Operational problems attributable to causes beyond the control 
of the entity (including, but not limited to, weather or traffic 
conditions affecting all vehicular traffic that were not anticipated at 
the time a trip was scheduled) shall not be a basis for determining that 
such a pattern or practice exists.
    (g) Additional service. Public entities may provide complementary 
paratransit service to ADA paratransit eligible individuals exceeding 
that provided for in this section. However, only the cost of service 
provided for in this section may be considered in a public entity's 
request for an undue financial burden waiver under Secs. 37.151-37.155 
of this part.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec. 37.133  Subscription service.

    (a) This part does not prohibit the use of subscription service by 
public entities as part of a complementary paratransit system, subject 
to the limitations in this section.
    (b) Subscription service may not absorb more than fifty percent of 
the number of trips available at a given time of day, unless there is 
non-subscription capacity.
    (c) Notwithstanding any other provision of this part, the entity may 
establish waiting lists or other capacity constraints and trip purpose 
restrictions or priorities for participation in the subscription service 
only.



Sec. 37.135  Submission of paratransit plan.

    (a) General. Each public entity operating fixed route transportation 
service, which is required by Sec. 37.121 to provide complementary 
paratransit service, shall develop a paratransit plan.
    (b) Initial submission. Except as provided in Sec. 37.141 of this 
part, each entity shall submit its initial plan for compliance with the 
complementary paratransit service provision by January 26, 1992, to the 
appropriate location identified in paragraph (f) of this section.
    (c) Annual Updates. Except as provided in this paragraph, each 
entity shall submit an annual update to its plan on January 26 of each 
succeeding year.
    (1) If an entity has met and is continuing to meet all requirements 
for complementary paratransit in Secs. 37.121-37.133 of this part, the 
entity may submit to FTA an annual certification of continued compliance 
in lieu of a plan update. Entities that have submitted a joint plan 
under Sec. 37.141 may submit a joint certification under this paragraph. 
The requirements of Secs. 37.137 (a) and (b), 37.138 and 37.139 do not 
apply when a certification is submitted under this paragraph.
    (2) In the event of any change in circumstances that results in an 
entity which has submitted a certification of

[[Page 361]]

continued compliance falling short of compliance with Secs. 37.121-
37.133, the entity shall immediately notify FTA in writing of the 
problem. In this case, the entity shall also file a plan update meeting 
the requirements of Secs. 37.137-37.139 of this part on the next 
following January 26 and in each succeeding year until the entity 
returns to full compliance.
    (3) An entity that has demonstrated undue financial burden to the 
FTA shall file a plan update meeting the requirements of Secs. 37.137-
37.139 of this part on each January 26 until full compliance with 
Secs. 37.121-37.133 is attained.
    (4) If FTA reasonably believes that an entity may not be fully 
complying with all service criteria, FTA may require the entity to 
provide an annual update to its plan.
    (d) Phase-in of implementation. Each plan shall provide full 
compliance by no later than January 26, 1997, unless the entity has 
received a waiver based on undue financial burden. If the date for full 
compliance specified in the plan is after January 26, 1993, the plan 
shall include milestones, providing for measured, proportional progress 
toward full compliance.
    (e) Plan implementation. Each entity shall begin implementation of 
its plan on January 26, 1992.
    (f) Submission locations. An entity shall submit its plan to one of 
the following offices, as appropriate:
    (1) The individual state administering agency, if it is--
    (i) A section 18 recipient;
    (ii) A small urbanized area recipient of section 9 funds 
administered by the State;
    (iii) A participant in a coordinated plan, in which all of the 
participating entities are eligible to submit their plans to the State; 
or
    (2) The FTA Regional Office (as listed in appendix B to this part) 
for all other entities required to submit a paratransit plan. This 
includes an FTA recipient under section 9 of the FT Act; entities 
submitting a joint plan (unless they meet the requirements of paragraph 
(f)(1)(iii) of this section), and a public entity not an FT Act 
recipient.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996; 61 
FR 26468, May 28, 1996]



Sec. 37.137  Paratransit plan development.

    (a) Survey of existing services. Each submitting entity shall survey 
the area to be covered by the plan to identify any person or entity 
(public or private) which provides a paratransit or other special 
transportation service for ADA paratransit eligible individuals in the 
service area to which the plan applies.
    (b) Public participation. Each submitting entity shall ensure public 
participation in the development of its paratransit plan, including at 
least the following:
    (1) Outreach. Each submitting entity shall solicit participation in 
the development of its plan by the widest range of persons anticipated 
to use its paratransit service. Each entity shall develop contacts, 
mailing lists and other appropriate means for notification of 
opportunities to participate in the development of the paratransit plan;
    (2) Consultation with individuals with disabilities. Each entity 
shall contact individuals with disabilities and groups representing them 
in the community. Consultation shall begin at an early stage in the plan 
development and should involve persons with disabilities in all phases 
of plan development. All documents and other information concerning the 
planning procedure and the provision of service shall be available, upon 
request, to members of the public, except where disclosure would be an 
unwarranted invasion of personal privacy;
    (3) Opportunity for public comment. The submitting entity shall make 
its plan available for review before the plan is finalized. In making 
the plan available for public review, the entity shall ensure that the 
plan is available upon request in accessible formats;
    (4) Public hearing. The entity shall sponsor at a minimum one public 
hearing and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements; and
    (5) Special requirements. If the entity intends to phase-in its 
paratransit

[[Page 362]]

service over a multi-year period, or request a waiver based on undue 
financial burden, the public hearing shall afford the opportunity for 
interested citizens to express their views concerning the phase-in, the 
request, and which service criteria may be delayed in implementation.
    (c) Ongoing requirement. The entity shall create an ongoing 
mechanism for the participation of individuals with disabilities in the 
continued development and assessment of services to persons with 
disabilities. This includes, but is not limited to, the development of 
the initial plan, any request for an undue financial burden waiver, and 
each annual submission.



Sec. 37.139  Plan contents.

    Each plan shall contain the following information:
    (a) Identification of the entity or entities submitting the plan, 
specifying for each--
    (1) Name and address; and
    (2) Contact person for the plan, with telephone number and facsimile 
telephone number (FAX), if applicable.
    (b) A description of the fixed route system as of January 26, 1992 
(or subsequent year for annual updates), including--
    (1) A description of the service area, route structure, days and 
hours of service, fare structure, and population served. This includes 
maps and tables, if appropriate;
    (2) The total number of vehicles (bus, van, or rail) operated in 
fixed route service (including contracted service), and percentage of 
accessible vehicles and percentage of routes accessible to and usable by 
persons with disabilities, including persons who use wheelchairs;
    (3) Any other information about the fixed route service that is 
relevant to establishing the basis for comparability of fixed route and 
paratransit service.
    (c) A description of existing paratransit services, including:
    (1) An inventory of service provided by the public entity submitting 
the plan;
    (2) An inventory of service provided by other agencies or 
organizations, which may in whole or in part be used to meet the 
requirement for complementary paratransit service; and
    (3) A description of the available paratransit services in 
paragraphs (c)(2) and (c)(3) of this section as they relate to the 
service criteria described in Sec. 37.131 of this part of service area, 
response time, fares, restrictions on trip purpose, hours and days of 
service, and capacity constraints; and to the requirements of ADA 
paratransit eligibility.
    (d) A description of the plan to provide comparable paratransit, 
including:
    (1) An estimate of demand for comparable paratransit service by ADA 
eligible individuals and a brief description of the demand estimation 
methodology used;
    (2) An analysis of differences between the paratransit service 
currently provided and what is required under this part by the 
entity(ies) submitting the plan and other entities, as described in 
paragraph (c) of this section;
    (3) A brief description of planned modifications to existing 
paratransit and fixed route service and the new paratransit service 
planned to comply with the ADA paratransit service criteria;
    (4) A description of the planned comparable paratransit service as 
it relates to each of the service criteria described in Sec. 37.131 of 
this part--service area, absence of restrictions or priorities based on 
trip purpose, response time, fares, hours and days of service, and lack 
of capacity constraints. If the paratransit plan is to be phased in, 
this paragraph shall be coordinated with the information being provided 
in paragraphs (d)(5) and (d)(6) of this paragraph;
    (5) A timetable for implementing comparable paratransit service, 
with a specific date indicating when the planned service will be 
completely operational. In no case may full implementation be completed 
later than January 26, 1997. The plan shall include milestones for 
implementing phases of the plan, with progress that can be objectively 
measured yearly;
    (6) A budget for comparable paratransit service, including capital 
and operating expenditures over five years.
    (e) A description of the process used to certify individuals with 
disabilities

[[Page 363]]

as ADA paratransit eligible. At a minimum, this must include--
    (1) A description of the application and certification process, 
including--
    (i) The availability of information about the process and 
application materials inaccessible formats;
    (ii) The process for determining eligibility according to the 
provisions of Secs. 37.123-37.125 of this part and notifying individuals 
of the determination made;
    (iii) The entity's system and timetable for processing applications 
and allowing presumptive eligibility; and
    (iv) The documentation given to eligible individuals.
    (2) A description of the administrative appeals process for 
individuals denied eligibility.
    (3) A policy for visitors, consistent with Sec. 37.127 of this part.
    (f) Description of the public participation process including--
    (1) Notice given of opportunity for public comment, the date(s) of 
completed public hearing(s), availability of the plan in accessible 
formats, outreach efforts, and consultation with persons with 
disabilities.
    (2) A summary of significant issues raised during the public comment 
period, along with a response to significant comments and discussion of 
how the issues were resolved.
    (g) Efforts to coordinate service with other entities subject to the 
complementary paratransit requirements of this part which have 
overlapping or contiguous service areas or jurisdictions.
    (h) The following endorsements or certifications:
    (1) A resolution adopted by the board of the entity authorizing the 
plan, as submitted. If more than one entity is submitting the plan there 
must be an authorizing resolution from each board. If the entity does 
not function with a board, a statement shall be submitted by the 
entity's chief executive;
    (2) In urbanized areas, certification by the Metropolitan Planning 
Organization (MPO) that it has reviewed the plan and that the plan is in 
conformance with the transportation plan developed under the Federal 
Transit/Federal Highway Administration joint planning regulation (49 CFR 
part 613 and 23 CFR part 450). In a service area which is covered by 
more than one MPO, each applicable MPO shall certify conformity of the 
entity's plan. The provisions of this paragraph do not apply to non-FTA 
recipients;
    (3) A certification that the survey of existing paratransit service 
was conducted as required in Sec. 37.137(a) of this part;
    (4) To the extent service provided by other entities is included in 
the entity's plan for comparable paratransit service, the entity must 
certify that:
    (i) ADA paratransit eligible individuals have access to the service;
    (ii) The service is provided in the manner represented; and
    (iii) Efforts will be made to coordinate the provision of 
paratransit service by other providers.
    (i) A request for a waiver based on undue financial burden, if 
applicable. The waiver request should include information sufficient for 
FTA to consider the factors in Sec. 37.155 of this part. If a request 
for an undue financial burden waiver is made, the plan must include a 
description of additional paratransit services that would be provided to 
achieve full compliance with the requirement for comparable paratransit 
in the event the waiver is not granted, and the timetable for the 
implementation of these additional services.
    (j) Annual plan updates. (1) The annual plan updates submitted 
January 26, 1993, and annually thereafter, shall include information 
necessary to update the information requirements of this section. 
Information submitted annually must include all significant changes and 
revisions to the timetable for implementation;
    (2) If the paratransit service is being phased in over more than one 
year, the entity must demonstrate that the milestones identified in the 
current paratransit plans have been achieved. If the milestones have not 
been achieved, the plan must explain any slippage and what actions are 
being taken to compensate for the slippage.
    (3) The annual plan must describe specifically the means used to 
comply with the public participation requirements, as described in 
Sec. 37.137 of this part.

[[Page 364]]



Sec. 37.141  Requirements for a joint paratransit plan.

    (a) Two or more entities with overlapping or contiguous service 
areas or jurisdictions may develop and submit a joint plan providing for 
coordinated paratransit service. Joint plans shall identify the 
participating entities and indicate their commitment to participate in 
the plan.
    (b) To the maximum extent feasible, all elements of the coordinated 
plan shall be submitted on January 26, 1992. If a coordinated plan is 
not completed by January 26, 1992, those entities intending to 
coordinate paratransit service must submit a general statement declaring 
their intention to provide coordinated service and each element of the 
plan specified in Sec. 37.139 to the extent practicable. In addition, 
the plan must include the following certifications from each entity 
involved in the coordination effort:
    (1) A certification that the entity is committed to providing ADA 
paratransit service as part of a coordinated plan.
    (2) A certification from each public entity participating in the 
plan that it will maintain current levels of paratransit service until 
the coordinated plan goes into effect.
    (c) Entities submitting the above certifications and plan elements 
in lieu of a completed plan on January 26, 1992, must submit a complete 
plan by July 26, 1992.
    (d) Filing of an individual plan does not preclude an entity from 
cooperating with other entities in the development or implementation of 
a joint plan. An entity wishing to join with other entities after its 
initial submission may do so by meeting the filing requirements of this 
section.



Sec. 37.143  Paratransit plan implementation.

    (a) Each entity shall begin implementation of its complementary 
paratransit plan, pending notice from FTA. The implementation of the 
plan shall be consistent with the terms of the plan, including any 
specified phase-in period.
    (b) If the plan contains a request for a wavier based on undue 
financial burden, the entity shall begin implementation of its plan, 
pending a determination on its waiver request.



Sec. 37.145  State comment on plans.

    Each state required to receive plans under Sec. 37.135 of this part 
shall:
    (a) Ensure that all applicable section 18 and section 9 recipients 
have submitted plans.
    (b) Certify to FTA that all plans have been received.
    (c) Forward the required certification with comments on each plan to 
FTA. The plans, with comments, shall be submitted to FTA no later than 
April 1, 1992, for the first year and April 1 annually thereafter.
    (d) The State shall develop comments to on each plan, responding to 
the following points:
    (1) Was the plan filed on time?
    (2) Does the plan appear reasonable?
    (3) Are there circumstances that bear on the ability of the grantee 
to carry out the plan as represented? If yes, please elaborate.
    (4) Is the plan consistent with statewide planning activities?
    (5) Are the necessary anticipated financial and capital resources 
identified in the plan accurately estimated?



Sec. 37.147  Considerations during FTA review.

    In reviewing each plan, at a minimum FTA will consider the 
following:
    (a) Whether the plan was filed on time;
    (b) Comments submitted by the state, if applicable;
    (c) Whether the plan contains responsive elements for each component 
required under Sec. 37.139 of this part;
    (d) Whether the plan, when viewed in its entirety, provides for 
paratransit service comparable to the entity's fixed route service;
    (e) Whether the entity complied with the public participation 
efforts required by this part; and
    (f) The extent to which efforts were made to coordinate with other 
public entities with overlapping or contiguous service areas or 
jurisdictions.



Sec. 37.149  Disapproved plans.

    (a) If a plan is disapproved in whole or in part, FTA will specify 
which provisions are disapproved. Each entity

[[Page 365]]

shall amend its plan consistent with this information and resubmit the 
plan to the appropriate FTA Regional Office within 90 days of receipt of 
the disapproval letter.
    (b) Each entity revising its plan shall continue to comply with the 
public participation requirements applicable to the initial development 
of the plan (set out in Sec. 37.137 of this part).



Sec. 37.151  Waiver for undue financial burden.

    If compliance with the service criteria of Sec. 37.131 of this part 
creates an undue financial burden, an entity may request a waiver from 
all or some of the provisions if the entity has complied with the public 
participation requirements in Sec. 37.137 of this part and if the 
following conditions apply:
    (a) At the time of submission of the initial plan on January 26, 
1992--
    (1) The entity determines that it cannot meet all of the service 
criteria by January 26, 1997; or
    (2) The entity determines that it cannot make measured progress 
toward compliance in any year before full compliance is required. For 
purposes of this part, measured progress means implementing milestones 
as scheduled, such as incorporating an additional paratransit service 
criterion or improving an aspect of a specific service criterion.
    (b) At the time of its annual plan update submission, if the entity 
believes that circumstances have changed since its last submission, and 
it is no longer able to comply by January 26, 1997, or make measured 
progress in any year before 1997, as described in paragraph (a)(2) of 
this section.



Sec. 37.153  FTA waiver determination.

    (a) The Administrator will determine whether to grant a waiver for 
undue financial burden on a case-by-case basis, after considering the 
factors identified in Sec. 37.155 of this part and the information 
accompanying the request. If necessary, the Administrator will return 
the application with a request for additional information.
    (b) Any waiver granted will be for a limited and specified period of 
time.
    (c) If the Administrator grants the applicant a waiver, the 
Administrator will do one of the following:
    (1) Require the public entity to provide complementary paratransit 
to the extent it can do so without incurring an undue financial burden. 
The entity shall make changes in its plan that the Administrator 
determines are appropriate to maximize the complementary paratransit 
service that is provided to ADA paratransit eligible individuals. When 
making changes to its plan, the entity shall use the public 
participation process specified for plan development and shall consider 
first a reduction in number of trips provided to each ADA paratransit 
eligible person per month, while attempting to meet all other service 
criteria.
    (2) Require the public entity to provide basic complementary 
paratransit services to all ADA paratransit eligible individuals, even 
if doing so would cause the public entity to incur an undue financial 
burden. Basic complementary paratransit service in corridors defined as 
provided in Sec. 37.131(a) along the public entity's key routes during 
core service hours.
    (i) For purposes of this section, key routes are defined as routes 
along which there is service at least hourly throughout the day.
    (ii) For purposes of this section, core service hours encompass at 
least peak periods, as these periods are defined locally for fixed route 
service, consistent with industry practice.
    (3) If the Administrator determines that the public entity will 
incur an undue financial burden as the result of providing basic 
complementary paratransit service, such that it is infeasible for the 
entity to provide basic complementary paratransit service, the 
Administrator shall require the public entity to coordinate with other 
available providers of demand responsive service in the area served by 
the public entity to maximize the service to ADA paratransit eligible 
individuals to the maximum extent feasible.

[[Page 366]]



Sec. 37.155  Factors in decision to grant an undue financial burden waiver.

    (a) In making an undue financial burden determination, the FTA 
Administrator will consider the following factors:
    (1) Effects on current fixed route service, including reallocation 
of accessible fixed route vehicles and potential reduction in service, 
measured by service miles;
    (2) Average number of trips made by the entity's general population, 
on a per capita basis, compared with the average number of trips to be 
made by registered ADA paratransit eligible persons, on a per capita 
basis;
    (3) Reductions in other services, including other special services;
    (4) Increases in fares;
    (5) Resources available to implement complementary paratransit 
service over the period covered by the plan;
    (6) Percentage of budget needed to implement the plan, both as a 
percentage of operating budget and a percentage of entire budget;
    (7) The current level of accessible service, both fixed route and 
paratransit;
    (8) Cooperation/coordination among area transportation providers;
    (9) Evidence of increased efficiencies, that have been or could be 
effectuated, that would benefit the level and quality of available 
resources for complementary paratransit service; and
    (10) Unique circumstances in the submitting entity's area that 
affect the ability of the entity to provide paratransit, that militate 
against the need to provide paratransit, or in some other respect create 
a circumstance considered exceptional by the submitting entity.
    (b)(1) Costs attributable to complementary paratransit shall be 
limited to costs of providing service specifically required by this part 
to ADA paratransit eligible individuals, by entities responsible under 
this part for providing such service.
    (2) If the entity determines that it is impracticable to distinguish 
between trips mandated by the ADA and other trips on a trip-by-trip 
basis, the entity shall attribute to ADA complementary paratransit 
requirements a percentage of its overall paratransit costs. This 
percentage shall be determined by a statistically valid methodology that 
determines the percentage of trips that are required by this part. The 
entity shall submit information concerning its methodology and the data 
on which its percentage is based with its request for a waiver. Only 
costs attributable to ADA-mandated trips may be considered with respect 
to a request for an undue financial burden waiver.
    (3) Funds to which the entity would be legally entitled, but which, 
as a matter of state or local funding arrangements, are provided to 
another entity and used by that entity to provide paratransit service 
which is part of a coordinated system of paratransit meeting the 
requirements of this part, may be counted in determining the burden 
associated with the waiver request.



Secs. 37.157--37.159  [Reserved]



                     Subpart G--Provision of Service



Sec. 37.161  Maintenance of accessible features: General.

    (a) Public and private entities providing transportation services 
shall maintain in operative condition those features of facilities and 
vehicles that are required to make the vehicles and facilities readily 
accessible to and usable by individuals with disabilities. These 
features include, but are not limited to, lifts and other means of 
access to vehicles, securement devices, elevators, signage and systems 
to facilitate communications with persons with impaired vision or 
hearing.
    (b) Accessibility features shall be repaired promptly if they are 
damaged or out of order. When an accessibility feature is out of order, 
the entity shall take reasonable steps to accommodate individuals with 
disabilities who would otherwise use the feature.
    (c) This section does not prohibit isolated or temporary 
interruptions in service or access due to maintenance or repairs.



Sec. 37.163  Keeping vehicle lifts in operative condition: Public entities.

    (a) This section applies only to public entities with respect to 
lifts in non-rail vehicles.

[[Page 367]]

    (b) The entity shall establish a system of regular and frequent 
maintenance checks of lifts sufficient to determine if they are 
operative.
    (c) The entity shall ensure that vehicle operators report to the 
entity, by the most immediate means available, any failure of a lift to 
operate in service.
    (d) Except as provided in paragraph (e) of this section, when a lift 
is discovered to be inoperative, the entity shall take the vehicle out 
of service before the beginning of the vehicle's next service day and 
ensure that the lift is repaired before the vehicle returns to service.
    (e) If there is no spare vehicle available to take the place of a 
vehicle with an inoperable lift, such that taking the vehicle out of 
service will reduce the transportation service the entity is able to 
provide, the public entity may keep the vehicle in service with an 
inoperable lift for no more than five days (if the entity serves an area 
of 50,000 or less population) or three days (if the entity serves an 
area of over 50,000 population) from the day on which the lift is 
discovered to be inoperative.
    (f) In any case in which a vehicle is operating on a fixed route 
with an inoperative lift, and the headway to the next accessible vehicle 
on the route exceeds 30 minutes, the entity shall promptly provide 
alternative transportation to individuals with disabilities who are 
unable to use the vehicle because its lift does not work.



Sec. 37.165  Lift and securement use.

    (a) This section applies to public and private entities.
    (b) All common wheelchairs and their users shall be transported in 
the entity's vehicles or other conveyances. The entity is not required 
to permit wheelchairs to ride in places other than designated securement 
locations in the vehicle, where such locations exist.
    (c)(1) For vehicles complying with part 38 of this title, the entity 
shall use the securement system to secure wheelchairs as provided in 
that Part.
    (2) For other vehicles transporting individuals who use wheelchairs, 
the entity shall provide and use a securement system to ensure that the 
wheelchair remains within the securement area.
    (3) The entity may require that an individual permit his or her 
wheelchair to be secured.
    (d) The entity may not deny transportation to a wheelchair or its 
user on the ground that the device cannot be secured or restrained 
satisfactorily by the vehicle's securement system.
    (e) The entity may recommend to a user of a wheelchair that the 
individual transfer to a vehicle seat. The entity may not require the 
individual to transfer.
    (f) Where necessary or upon request, the entity's personnel shall 
assist individuals with disabilities with the use of securement systems, 
ramps and lifts. If it is necessary for the personnel to leave their 
seats to provide this assistance, they shall do so.
    (g) The entity shall permit individuals with disabilities who do not 
use wheelchairs, including standees, to use a vehicle's lift or ramp to 
enter the vehicle. Provided, that an entity is not required to permit 
such individuals to use a lift Model 141 manufactured by EEC, Inc. If 
the entity chooses not to allow such individuals to use such a lift, it 
shall clearly notify consumers of this fact by signage on the exterior 
of the vehicle (adjacent to and of equivalent size with the 
accessibility symbol).


[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993]



Sec. 37.167  Other service requirements.

    (a) This section applies to public and private entities.
    (b) On fixed route systems, the entity shall announce stops as 
follows:
    (1) The entity shall announce at least at transfer points with other 
fixed routes, other major intersections and destination points, and 
intervals along a route sufficient to permit individuals with visual 
impairments or other disabilities to be oriented to their location.
    (2) The entity shall announce any stop on request of an individual 
with a disability.
    (c) Where vehicles or other conveyances for more than one route 
serve the same stop, the entity shall provide a means by which an 
individual with a

[[Page 368]]

visual impairment or other disability can identify the proper vehicle to 
enter or be identified to the vehicle operator as a person seeking a 
ride on a particular route.
    (d) The entity shall permit service animals to accompany individuals 
with disabilities in vehicles and facilities.
    (e) The entity shall ensure that vehicle operators and other 
personnel make use of accessibility-related equipment or features 
required by part 38 of this title.
    (f) The entity shall make available to individuals with disabilities 
adequate information concerning transportation services. This obligation 
includes making adequate communications capacity available, through 
accessible formats and technology, to enable users to obtain information 
and schedule service.
    (g) The entity shall not refuse to permit a passenger who uses a 
lift to disembark from a vehicle at any designated stop, unless the lift 
cannot be deployed, the lift will be damaged if it is deployed, or 
temporary conditions at the stop, not under the control of the entity, 
preclude the safe use of the stop by all passengers.
    (h) The entity shall not prohibit an individual with a disability 
from traveling with a respirator or portable oxygen supply, consistent 
with applicable Department of Transportation rules on the transportation 
of hazardous materials (49 CFR subtitle B, chapter 1, subchapter C).
    (i) The entity shall ensure that adequate time is provided to allow 
individuals with disabilities to complete boarding or disembarking from 
the vehicle.
    (j)(1) When an individual with a disability enters a vehicle, and 
because of a disability, the individual needs to sit in a seat or occupy 
a wheelchair securement location, the entity shall ask the following 
persons to move in order to allow the individual with a disability to 
occupy the seat or securement location:
    (i) Individuals, except other individuals with a disability or 
elderly persons, sitting in a location designated as priority seating 
for elderly and handicapped persons (or other seat as necessary);
    (ii) Individuals sitting in or a fold-down or other movable seat in 
a wheelchair securement location.
    (2) This requirement applies to light rail, rapid rail, and commuter 
rail systems only to the extent practicable.
    (3) The entity is not required to enforce the request that other 
passengers move from priority seating areas or wheelchair securement 
locations.
    (4) In all signage designating priority seating areas for elderly 
persons and persons with disabilities, or designating wheelchair 
securement areas, the entity shall include language informing persons 
sitting in these locations that they should comply with requests by 
transit provider personnel to vacate their seats to make room for an 
individual with a disability. This requirement applies to all fixed 
route vehicles when they are acquired by the entity or to new or 
replacement signage in the entity's existing fixed route vehicles.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993]



Sec. 37.169  Interim requirements for over-the-road bus service operated by private entities.

    (a) Private entities operating over-the-road buses, in addition to 
compliance with other applicable provisions of this part, shall provide 
accessible service as provided in this section.
    (b) The private entity shall provide assistance, as needed, to 
individuals with disabilities in boarding and disembarking, including 
moving to and from the bus seat for the purpose of boarding and 
disembarking. The private entity shall ensure that personnel are trained 
to provide this assistance safely and appropriately.
    (c) To the extent that they can be accommodated in the areas of the 
passenger compartment provided for passengers' personal effects, 
wheelchairs or other mobility aids and assistive devices used by 
individuals with disabilities, or components of such devices, shall be 
permitted in the passenger compartment. When the bus is at rest at a 
stop, the driver or other personnel shall assist individuals with 
disabilities with the stowage and retrieval of mobility aids, assistive 
devices, or other items that can be accommodated

[[Page 369]]

in the passenger compartment of the bus.
    (d) Wheelchairs and other mobility aids or assistive devices that 
cannot be accommodated in the passenger compartment (including electric 
wheelchairs) shall be accommodated in the baggage compartment of the 
bus, unless the size of the baggage compartment prevents such 
accommodation.
    (e) At any given stop, individuals with disabilities shall have the 
opportunity to have their wheelchairs or other mobility aids or 
assistive devices stowed in the baggage compartment before other baggage 
or cargo is loaded, but baggage or cargo already on the bus does not 
have to be off-loaded in order to make room for such devices.
    (f) The entity may require up to 48 hours' advance notice only for 
providing boarding assistance. If the individual does not provide such 
notice, the entity shall nonetheless provide the service if it can do so 
by making a reasonable effort, without delaying the bus service.



Sec. 37.171  Equivalency requirement for demand responsive service operated by private entities not primarily engaged in the business of transporting people.

    A private entity not primarily engaged in the business of 
transporting people which operates a demand responsive system shall 
ensure that its system, when viewed in its entirety, provides equivalent 
service to individuals with disabilities, including individuals who use 
wheelchairs, as it does to individuals without disabilities. The 
standards of Sec. 37.105 shall be used to determine if the entity is 
providing equivalent service.



Sec. 37.173  Training requirements.

    Each public or private entity which operates a fixed route or demand 
responsive system shall ensure that personnel are trained to 
proficiency, as appropriate to their duties, so that they operate 
vehicles and equipment safely and properly assist and treat individuals 
with disabilities who use the service in a respectful and courteous way, 
with appropriate attention to the difference among individuals with 
disabilities.



                 Subpart H--Over-the-Road Buses (OTRBs)

    Source: 63 FR 51690, Sept. 28, 1998, unless otherwise noted.

    Effective Date Note: At 63 FR 51690, Sept. 2, 1998, Subpart H was 
added, effective Oct. 28, 1998.



Sec. 37.181  Applicability dates.

    This subpart applies to all private entities that operate OTRBs. The 
requirements of the subpart begin to apply to large operators beginning 
October 30, 2000 and to small operators beginning October 29, 2001.



Sec. 37.183  Purchase or lease of new OTRBs by operators of fixed-route systems.

    The following requirements apply to private entities that are 
primarily in the business of transporting people, whose operations 
affect commerce, and that operate a fixed-route system, with respect to 
OTRBs delivered to them on or after the date on which this subpart 
applies to them:
    (a) Large operators. If a large entity operates a fixed-route 
system, and purchases or leases a new OTRB for or in contemplation of 
use in that system, it shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (b) Small operators. If a small entity operates a fixed-route 
system, and purchases or leases a new OTRB for or in contemplation of 
use in that system, it must do one of the following two things:
    (1) Ensure that the vehicle is readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs; or
    (2) Ensure that equivalent service, as defined in Sec. 37.105, is 
provided to individuals with disabilities, including individuals who use 
wheelchairs. To meet this equivalent service standard, the service 
provided by the operator must permit a wheelchair user to travel in his 
or her own mobility aid.



Sec. 37.185  Fleet accessibility requirement for OTRB fixed-route systems of large operators.

    Each large operator subject to the requirements of Sec. 37.183 shall 
ensure that--

[[Page 370]]

    (a) By October 30, 2006 no less than 50 percent of the buses in its 
fleet with which it provides fixed-route service are readily accessible 
to and usable by individuals with disabilities, including individuals 
who use wheelchairs.
    (b) By October 29, 2012, 100 percent of the buses in its fleet with 
which it provides fixed-route service are readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs.
    (c) Request for time extension. An operator may apply to the 
Secretary for a time extension of the fleet accessibility deadlines of 
this section. If he or she grants the request, the Secretary sets a 
specific date by which the operator must meet the fleet accessibility 
requirement. In determining whether to grant such a request, the 
Secretary considers the following factors:
    (1) Whether the operator has purchased or leased, since October 30, 
2000, enough new OTRBs to replace 50 percent of the OTRBs with which it 
provides fixed-route service by October 30, 2006 or 100 percent of such 
OTRBs by October 29, 2012;
    (2) Whether the operator has purchased or leased, between October 
28, 1998 and October 30, 2000, a number of new inaccessible OTRBs 
significantly exceeding the number of buses it would normally obtain in 
such a period;
    (3) The compliance with all requirements of this part by the 
operator over the period between October 28, 1998 and the request for 
time extension.



Sec. 37.187  Interline service.

    (a) When the general public can purchase a ticket or make a 
reservation with one operator for a fixed-route trip of two or more 
stages in which another operator provides service, the first operator 
must arrange for an accessible bus, or equivalent service, as 
applicable, to be provided for each stage of the trip to a passenger 
with a disability. The following examples illustrate the provisions of 
this paragraph (a):

    Example 1. By going to Operator X's ticket office or calling X for a 
reservation, a passenger can buy or reserve a ticket from Point A 
through to Point C, transferring at intermediate Point B to a bus 
operated by Operator Y. Operator X is responsible for communicating 
immediately with Operator Y to ensure that Y knows that a passenger 
needing accessible transportation or equivalent service, as applicable, 
is traveling from Point B to Point C. By immediate communication, we 
mean that the ticket or reservation agent for Operator X, by phone, fax, 
computer, or other instantaneous means, contacts Operator Y the minute 
the reservation or ticketing transaction with the passenger, as 
applicable, has been completed. It is the responsibility of each carrier 
to know how to contact carriers with which it interlines (e.g., Operator 
X must know Operator Y's phone number).
    Example 2. Operator X fails to provide the required information in a 
timely manner to Operator Y. Operator X is responsible for compensating 
the passenger for the consequent unavailability of an accessible bus or 
equivalent service, as applicable, on the B-C leg of the interline trip.

    (b) Each operator retains the responsibility for providing the 
transportation required by this subpart to the passenger for its portion 
of an interline trip. The following examples illustrate the provisions 
of this paragraph (b):

    Example 1. In Example 1 to paragraph (a) of this section, Operator X 
provides the required information to Operator Y in a timely fashion. 
However, Operator Y fails to provide an accessible bus or equivalent 
service to the passenger at Point B as the rules require. Operator Y is 
responsible for compensating the passenger as provided in Sec. 37. 199.
    Example 2. Operator X provides the required information to Operator 
Y in a timely fashion. However, the rules require Operator Y to provide 
an accessible bus on 48 hours' advance notice (i.e., as a matter of 
interim service under Sec. 37.193(a) or service by a small mixed-service 
operator under Sec. 37.191), and the passenger has purchased the ticket 
or made the reservation for the interline trip only 8 hours before 
Operator Y's bus leaves from Point B to go to Point C. In this 
situation, Operator Y is not responsible for providing an accessible bus 
to the passenger at Point B, any more than that it would be had the 
passenger directly contacted Operator Y to travel from Point B to Point 
C.

    (c) All fixed-route operators involved in interline service shall 
ensure that they have the capacity to receive communications at all 
times concerning interline service for passengers with disabilities. The 
following examples illustrate the provisions of this paragraph (c):

    Example 1. Operator Y's office is staffed only during normal weekday 
business hours. Operator Y must have a means of receiving communications 
from carriers with which it

[[Page 371]]

interlines (e.g., telephone answering machine, fax, computer) when no 
one is in the office.
    Example 2. Operator Y has the responsibility to monitor its 
communications devices at reasonable intervals to ensure that it can act 
promptly on the basis of messages received. If Operator Y receives a 
message from Operator X on its answering machine on Friday night, 
notifying Y of the need for an accessible bus on Monday morning, it has 
the responsibility of making sure that the accessible bus is there on 
Monday morning. Operator Y is not excused from its obligation because no 
one checked the answering machine over the weekend.



Sec. 37.189  Service requirement for OTRB demand-responsive systems.

    (a) This section applies to private entities primarily in the 
business of transporting people, whose operations affect commerce, and 
that provide demand-responsive OTRB service. Except as needed to meet 
the other requirements of this section, these entities are not required 
to purchase or lease accessible buses in connection with providing 
demand-responsive service.
    (b) Demand-responsive operators shall ensure that, beginning one 
year from the date on which the requirements of this subpart begin to 
apply to the entity, any individual with a disability who requests 
service in an accessible OTRB receives such service. This requirement 
applies to both large and small operators.
    (c) The operator may require up to 48 hours' advance notice to 
provide this service.
    (d) If the individual with a disability does not provide the advance 
notice the operator requires under paragraph (a) of this section, the 
operator shall nevertheless provide the service if it can do so by 
making a reasonable effort.
    (e) To meet this requirement, an operator is not required to 
fundamentally alter its normal reservation policies or to displace 
another passenger who has reserved a seat on the bus. The following 
examples illustrate the provisions of this paragraph (e):

    Example 1. A tour bus operator requires all passengers to reserve 
space on the bus three months before the trip date. This requirement 
applies to passengers with disabilities on the same basis as other 
passengers. Consequently, an individual passenger who is a wheelchair 
user would have to request an accessible bus at the time he or she made 
his reservation, at least three months before the trip date. If the 
individual passenger with a disability makes a request for space on the 
trip and an accessible OTRB 48 hours before the trip date, the operator 
could refuse the request because all passengers were required to make 
reservations three months before the trip date.
    Example 2. A group makes a reservation to charter a bus for a trip 
four weeks in advance. A week before the trip date, the group discovers 
that someone who signed up for the trip is a wheelchair user who needs 
an accessible bus, or someone who later buys a seat in the block of 
seats the group has reserved needs an accessible bus. A group 
representative or the passenger with a disability informs the bus 
company of this need more than 48 hours before the trip date. The bus 
company must provide an accessible bus.
    Example 3. While the operator's normal deadline for reserving space 
on a charter or tour trip has passed, a number of seats for a trip are 
unfilled. The operator permits members of the public to make late 
reservations for the unfilled seats. If a passenger with a disability 
calls 48 hours before the trip is scheduled to leave and requests a seat 
and the provision of an accessible OTRB, the operator must meet this 
request, as long as it does not displace another passenger with a 
reservation.
    Example 4. A tour bus trip is nearly sold out three weeks in advance 
of the trip date. A passenger with a disability calls 48 hours before 
the trip is scheduled to leave and requests a seat and the provision of 
an accessible OTRB. The operator need not meet this request if it will 
have the effect of displacing a passenger with an existing reservation. 
If other passengers would not be displaced, the operator must meet this 
request.



Sec. 37.191  Special provision for small mixed-service operators.

    (a) For purposes of this section, a small mixed-service operator is 
a small operator that provides both fixed-route and demand-responsive 
service and does not use more than 25 percent of its buses for fixed-
route service.
    (b) An operator meeting the criteria of paragraph (a) of this 
section may conduct all its trips, including fixed-route trips, on an 
advance-reservation basis as provided for demand-responsive trips in 
Sec. 37.189. Such an operator is not required to comply with the 
accessible bus acquisition/equivalent service obligations of 
Sec. 37.183(b).

[[Page 372]]



Sec. 37.193  Interim service requirements.

    (a) Until 100 percent of the fleet of a large or small operator uses 
to provide fixed-route service is composed of accessible OTRBs, the 
operator shall meet the following interim service requirements:
    (1) Beginning one year from the date on which the requirements of 
this subpart begin to apply to the operator, it shall ensure that any 
individual with a disability that requests service in an accessible OTRB 
receives such service.
    (i) The operator may require up to 48 hours' advance notice to 
provide this service.
    (ii) If the individual with a disability does not provide the 
advance notice the operator requires, the operator shall nevertheless 
provide the service if it can do so by making a reasonable effort.
    (iii) If the trip on which the person with a disability wishes to 
travel is already provided by an accessible bus, the operator has met 
this requirement.
    (2) Before a date one year from the date on which this subpart 
applies to the operator, an operator which is unable to provide the 
service specified in paragraph (a) of this section shall comply with the 
requirements of Sec. 37.169.
    (3) Interim service under this paragraph (a) is not required to be 
provided by a small operator who is providing equivalent service to its 
fixed-route service as provided in Sec. 37.183(b)(2).
    (b) Some small fixed-route operators may never have a fleet 100 
percent of which consists of accessible buses (e.g., a small fixed-route 
operator who exclusively or primarily purchases or leases used buses). 
Such an operator must continue to comply with the requirements of this 
section with respect to any service that is not provided entirely with 
accessible buses.
    (c) Before a date one year from the date on which this subpart 
applies to an operator providing demand-responsive service, an operator 
which is unable to provide the service described in Sec. 37.189 shall 
comply with the requirements of Sec. 37.169.



Sec. 37.195  Purchase or lease of OTRBs by private entities not primarily in the business of transporting people.

    This section applies to all purchases or leases of new vehicles by 
private entities which are not primarily engaged in the business of 
transporting people, with respect to buses delivered to them on or after 
the date on which this subpart begins to apply to them.
    (a) Fixed-route systems. If the entity operates a fixed-route system 
and purchases or leases an OTRB for or in contemplation of use on the 
system, it shall meet the requirements of Sec. 37.183 (a) or (b), as 
applicable.
    (b) Demand-responsive systems. The requirements of Sec. 37.189 apply 
to demand-responsive systems operated by private entities not primarily 
in the business of transporting people. If such an entity operates a 
demand-responsive system, and purchases or leases an OTRB for or in 
contemplation of use on the system, it is not required to purchase or 
lease an accessible bus except as needed to meet the requirements of 
Sec. 37.189.



Sec. 37.197  Remanufactured OTRBs.

    (a) This section applies to any private entity operating OTRBs that 
takes one of the following actions:
    (1) On or after the date on which this subpart applies to the 
entity, it remanufactures an OTRB so as to extend its useful life for 
five years or more or makes a solicitation for such remanufacturing; or
    (2) Purchases or leases an OTRB which has been remanufactured so as 
to extend its useful life for five years or more, where the purchase or 
lease occurs after the date on which this subpart applies to the entity 
and during the period in which the useful life of the vehicle is 
extended.
    (b) In any situation in which this subpart requires an entity 
purchasing or leasing a new OTRB to purchase or lease an accessible 
OTRB, OTRBs acquired through the actions listed in paragraph (a) of this 
section shall, to the maximum extent feasible, be readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.

[[Page 373]]

    (c) For purposes of this section, it shall be considered feasible to 
remanufacture an OTRB so as to be readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs, unless an engineering analysis demonstrates that including 
accessibility features required by this part would have a significant 
adverse effect on the structural integrity of the vehicle.



Sec. 37.199  Compensation for failure to provide required vehicles or service.

    (a) Operators shall pay compensation to passengers with disabilities 
as provided in this section in the following situations:
    (1) If a demand-responsive operator under Sec. 37.189 or a small 
mixed-service operator under Sec. 37.191 fails to provide in a timely 
manner an accessible OTRB to a passenger with a disability who has made 
a timely request for such a bus;
    (2) If a fixed-route operator providing interim service under 
Sec. 37.193(a)(1) fails to provide in a timely manner an accessible OTRB 
to a passenger with a disability who has made a timely request for such 
a bus;
    (3) If a small fixed-route operator who chooses to provide 
equivalent service under Sec. 37.183(b)(2) fails to provide equivalent 
service to a passenger;
    (4) If required service is not provided to a passenger with a 
disability because accessibility equipment does not function or operator 
personnel do not perform essential tasks;
    (5) If, for a trip involving an interline connection (see 
Sec. 37.187), the operator with whom the passenger purchases the ticket 
or makes a reservation for the trip fails to communicate immediately 
with other operators providing a portion of the trip to inform them of 
the need for an accessible bus or equivalent service, as applicable, 
with the result that other operators do not provide the service required 
by this subpart; or
    (6) If an operator required to provide interim service under 
Sec. 37.169, after the date on which this subpart begins to apply to the 
operator, fails to provide this service.
    (b) When one of the events in paragraph (a) of this section calling 
for compensation occurs, the operator shall pay compensation regardless 
of the reason for the failure to provide the required service. The only 
exception to this requirement is a situation in which, for reasons 
beyond the control of the operator, no transportation is provided to any 
passenger.
    (c) The amount of the compensation shall be the following:
    (1) On the first occasion on which the operator fails to provide the 
required service as provided in paragraph (a) of this section to any 
passenger, $300;
    (2) On the second such occasion, $400;
    (3) On the third such occasion, $500;
    (4) On the fourth such occasion, $600;
    (5) On the fifth and subsequent such occasions, $700.
    (d) The operator shall provide this compensation to the passenger 
within seven working days of the date on which the operator failed to 
provide the accessible OTRB or provide equivalent service, as 
applicable.
    (e) Payment of compensation under this section is not a defense to 
legal action brought against the operator to enforce the Americans with 
Disabilities Act or this part.



Sec. 37.201  Intermediate and rest stops.

    (a) Whenever an OTRB makes an intermediate or rest stop, a passenger 
with a disability, including an individual using a wheelchair, shall be 
permitted to leave and return to the bus on the same basis as other 
passengers. The operator shall ensure that assistance is provided to 
passengers with disabilities as needed to enable the passenger to get on 
and off the bus at the stop (e.g., operate the lift and provide 
assistance with securement; provide other boarding assistance if needed, 
as in the case of a wheelchair user who has transferred to a vehicle 
seat because other wheelchair users occupied all securement locations).
    (b) If an OTRB operator owns, leases, or controls the facility at 
which a rest or intermediate stop is made, or if an OTRB operator 
contracts with the person who owns, leases, or controls such a facility 
to provide rest stop services, the OTRB operator shall ensure the 
facility complies fully with applicable requirements of the Americans 
with Disabilities Act.

[[Page 374]]

    (c) If an OTRB equipped with an inaccessible restroom is making an 
express run of three hours or more without a rest stop, and a passenger 
with a disability who is unable to use the inaccessible restroom 
requests an unscheduled rest stop, the operator shall make a good faith 
effort to accommodate the request. The operator is not required to make 
the stop. However, if the operator does not make the stop, the operator 
shall explain to the passenger making the request the reason for its 
decision not to do so.



Sec. 37.203  Lift maintenance.

    (a) The entity shall establish a system of regular and frequent 
maintenance checks of lifts sufficient to determine if they are 
operative.
    (b) The entity shall ensure that vehicle operators report to the 
entity, by the most immediate means available, any failure of a lift to 
operate in service.
    (c) Except as provided in paragraph (d) of this section, when a lift 
is discovered to be inoperative, the entity shall take the vehicle out 
of service before the beginning of the vehicle's next trip and ensure 
that the lift is repaired before the vehicle returns to service.
    (d) If there is no other vehicle available to take the place of an 
OTRB with an inoperable lift, such that taking the vehicle out of 
service before its next trip will reduce the transportation service the 
entity is able to provide, the entity may keep the vehicle in service 
with an inoperable lift for no more than five days from the day on which 
the lift is discovered to be inoperative.



Sec. 37.205  Additional passengers who use wheelchairs.

    If a number of wheelchair users exceeding the number of securement 
locations on the bus seek to travel on a trip, the operator shall assign 
the securement locations on a first come-first served basis. The 
operator shall offer boarding assistance and the opportunity to sit in a 
vehicle seat to passengers who are not assigned a securement location. 
If the passengers who are not assigned securement locations are unable 
or unwilling to accept this offer, the operator is not required to 
provide transportation to them on the bus.



Sec. 37.207  Discriminatory practices.

    It shall be considered discrimination for any operator to--
    (a) Deny transportation to passengers with disabilities, except as 
provided in Sec. 37.5(h);
    (b) Use or request the use of persons other than the operator's 
employees (e.g., family members or traveling companions of a passenger 
with a disability, medical or public safety personnel) for routine 
boarding or other assistance to passengers with disabilities, unless the 
passenger requests or consents to assistance from such persons;
    (c) Require or request a passenger with a disability to reschedule 
his or her trip, or travel at a time other than the time the passenger 
has requested, in order to receive transportation as required by this 
subpart;
    (d) Fail to provide reservation services to passengers with 
disabilities equivalent to those provided other passengers; or
    (e) Fail or refuse to comply with any applicable provision of this 
part.



Sec. 37.209  Training and other requirements.

    OTRB operators shall comply with the requirements of Secs. 37.161, 
37.165-37.167, and 37.173. For purposes of Sec. 37.173, ``training to 
proficiency'' is deemed to include, as appropriate to the duties of 
particular employees, training in proper operation and maintenance of 
accessibility features and equipment, boarding assistance, securement of 
mobility aids, sensitive and appropriate interaction with passengers 
with disabilities, handling and storage of mobility devices, and 
familiarity with the requirements of this subpart. OTRB operators shall 
provide refresher training to personnel as needed to maintain 
proficiency.



Sec. 37.211  Effect of NHTSA and FHWA safety rules.

    OTRB operators are not required to take any action under this 
subpart

[[Page 375]]

that would violate an applicable National Highway Traffic Safety 
Administration or Federal Highway Administration safety rule.



Sec. 37.213  Information collection requirements.

    (a) This paragraph (a) applies to demand-responsive operators under 
Sec. 37.189 and fixed-route operators under Sec. 37.193(a)(1) that are 
required to, and small mixed-service operators under Sec. 37.191 that 
choose to, provide accessible OTRB service on 48 hours' advance notice.
    (1) When the operator receives a request for accessible bus service, 
the operator shall complete lines 1-8 of the Form A in Appendix A to 
this subpart. The operator shall immediately provide a copy of the form 
to the passenger.
    (2) On the scheduled date of the trip, the operator shall complete 
lines 9-11 of the form. In any case in which the requested accessible 
bus was not provided, the operator shall immediately provide a copy of 
the form to the passenger.
    (3) The operator shall retain its copy of the completed form for 
five years. The operator shall make these forms available to Department 
of Transportation or Department of Justice officials at their request.
    (4) Beginning October 29, 2001 for large operators, and October 28, 
2002 for small operators, and on that date in each year thereafter, each 
operator shall submit a summary of its forms to the Department of 
Transportation. The summary shall state the number of requests for 
accessible bus service, the number of times these requests were met, and 
the number of times compensation was paid. It shall also include the 
name, address, telephone number, and contact person name for the 
operator.
    (b) This paragraph (b) applies to small fixed-route operators who 
choose to provide equivalent service to passengers with disabilities 
under Sec. 37.183(b)(2).
    (1) The operator shall complete Form B in Appendix A to this subpart 
on every occasion on which a passenger with a disability needs 
equivalent service in order to be provided transportation.
    (2) The operator shall provide one copy of the form to the passenger 
and retain another copy of the completed form for five years. The 
operator shall make these forms available to Department of 
Transportation or Department of Justice officials at their request.
    (3) Beginning October 28, 2002, and on that date in each year 
thereafter, each operator shall submit a summary of its forms to the 
Department of Transportation. The summary shall state the number of 
situations in which equivalent service was needed, the number of times 
such service was provided, and the number of times compensation was 
paid. It shall also include the name, address, telephone number, and 
contact person name for the operator.
    (c) Beginning October 30, 2000 for large operators, and October 29, 
2001 for small operators, and on that date in each year thereafter, each 
fixed-route operator shall submit to the Department a report on how many 
passengers with disabilities used the lift to board accessible buses. 
For fixed-route operators, the report shall reflect separately the data 
pertaining to 48-hour advance reservation service and other service.
    (d) Each operator shall submit to the Department, October 28, 1999 
and each year thereafter on that date, a summary report listing the 
number of new buses and used buses it has purchased or leased during the 
preceding year, and how many of the buses in each category are 
accessible. It shall also include the total number of buses in the 
operator's fleet and the name, address, telephone number, and contact 
person name for the operator.
    (e) The information required to be submitted to the Department shall 
be sent to the following address: Bureau of Transportation Statistics, 
400 7th Street, SW., Washington, DC 20590.



Sec. 37.215  Review of requirements.

    (a) Beginning October 28, 2005, the Department will review the 
requirements of Sec. 37.189 and their implementation. The Department 
will complete this review by October 30, 2006.
    (1) As part of this review, the Department will consider factors 
including,

[[Page 376]]

but not necessarily limited to, the following:
    (i) The percentage of accessible buses in the demand-responsive 
fleets of large and small demand-responsive operators.
    (ii) The success of small and large demand-responsive operators' 
service at meeting the requests of passengers with disabilities for 
accessible buses in a timely manner.
    (iii) The ridership of small and large operators' demand-responsive 
service by passengers with disabilities.
    (iv) The volume of complaints by passengers with disabilities.
    (v) Cost and service impacts of implementation of the requirements 
of Sec. 37.189.
    (2) The Department will make one of the following decisions on the 
basis of the review:
    (i) Retain Sec. 37.189 without change; or
    (ii) Modify the requirements of Sec. 37.189 for large and/or small 
demand-responsive operators.
    (b) Beginning October 30, 2006, the Department will review the 
requirements of Secs. 37.183, 37.185, 37.187, 37.191 and 37.193(a) and 
their implementation. The Department will complete this review by 
October 29, 2007.
    (1) As part of this review, the Department will consider factors 
including, but not necessarily limited to, the following:
    (i) The percentage of accessible buses in the fixed-route fleets of 
large and small fixed-route operators.
    (ii) The success of small and large fixed-route operators' interim 
or equivalent service at meeting the requests of passengers with 
disabilities for accessible buses in a timely manner.
    (iii) The ridership of small and large operators' fixed-route 
service by passengers with disabilities.
    (iv) The volume of complaints by passengers with disabilities.
    (v) Cost and service impacts of implementation of the requirements 
of these sections.
    (2) The Department will make one of the following decisions on the 
basis of the review:
    (i) Retain Secs. 37.183, 37.185, 37.187, 37.191, 37.193(a) without 
change; or
    (ii) Modify the requirements of Secs. 37.183, 37.185, 37.187, 
37.191, 37.193(a) for large and/or small fixed-route operators.

 Appendix A to Subpart H of Part 37--Forms for Advance Notice Requests 
                   and Provision of Equivalent Service

         Form A--For Use by Providers of Advance Notice Service

1. Operator's name______________________________________________________
2. Address______________________________________________________________
_______________________________________________________________________
3. Phone number:________________________________________________________
4. Passenger's name:____________________________________________________
5. Address:_____________________________________________________________
_______________________________________________________________________
6. Phone number:________________________________________________________
7. Scheduled date and time of trip:_____________________________________
8. Date and time of request:____________________________________________
9. Was accessible bus provided for trip? Yes____ no____
10. Was there a basis recognized by U.S. Department of transportation 
          regulations for not providing an accessible bus for the trip? 
          Yes____ no____
If yes, explain_________________________________________________________
_______________________________________________________________________
11. If the answers to items 9 and 10 were both no, attach documentation 
          that compensation required by department of transportation 
          regulations was paid.

           Form B--For Use by Providers of Equivalent Service

1. Operator's name______________________________________________________
2. Address______________________________________________________________
_______________________________________________________________________
3. Phone number:________________________________________________________
4. Passenger's name:____________________________________________________
5. Address:_____________________________________________________________

_______________________________________________________________________
6. Phone number:________________________________________________________
7. Date and time of trip:_______________________________________________
8. Location of need for equivalent service:
_______________________________________________________________________
9. Was equivalent service provided for trip? Yes____ no____
10. If the answer to items 9 and 10 is no, attach documentation that 
          compensation required by Department of Transportation 
          regulations was paid.


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               Appendix B to Part 37--FTA Regional Offices

Region I, Federal Transit Administration, 206 Federal Plaza, Suite 2940, 
New York, NY 10278
Region II, Federal Transit Administration, Transportation Systems 
Center, Kendall Square, 55 Broadway, Suite 921, Cambridge, MA 02142
Region III, Federal Transit Administration, 841 Chestnut Street, Suite 
714, Philadelphia, PA 19107
Region IV, Federal Transit Administration, 1720 Peachtree Road NW., 
Suite 400, Atlanta, GA 30309
Region V, Federal Transit Administration, 55 East Monroe Street, Room 
1415, Chicago, IL 60603
Region VI, Federal Transit Administration, 819 Taylor Street, Suite 
9A32, Ft. Worth, TX 76102
Region VII, Federal Transit Administration, 6301 Rockville Road, Suite 
303, Kansas City, MS 64131
Region VIII, Federal Transit Administration, Federal Office Building, 
1961 Stout Street, 5th Floor, Denver, CO 80294
Region IX, Federal Transit Administration, 211 Main Street, Room 1160, 
San Francisco, CA 94105
Region X, Federal Transit Administration, 3142 Federal Building, 915 
Second Avenue, Seattle, WA 98174

                  Appendix C to Part 37--Certifications

                   Certification of Equivalent Service

    The (name of agency) certifies that its demand responsive service 
offered to individuals with disabilities, including individuals who use 
wheelchairs, is equivalent to the level and quality of service offered 
to individuals without disabilities. Such service, when viewed in its 
entirety, is provided in the most integrated setting feasible and is 
equivalent with respect to:
    (1) Response time;
    (2) Fares;
    (3) Geographic service area;
    (4) Hours and days of service;
    (5) Restrictions on trip purpose;
    (6) Availability of information and reservation capability; and
    (7) Constraints on capacity or service availability.
    In accordance with 49 CFR 37.77, public entities operating demand 
responsive systems for the general public which receive financial 
assistance under section 18 of the Federal Transit Act must file this 
certification with the appropriate state program office before procuring 
any inaccessible vehicle. Such public entities not receiving FTA funds 
shall also file the certification with the appropriate state program 
office. Such public entities receiving FTA funds under any other section 
of the FT Act must file the certification with the appropriate FTA 
regional office. This certification is valid for no longer than one year 
from its date of filing.

_______________________________________________________________________
(name of authorized official)

_______________________________________________________________________
(title)

_______________________________________________________________________
(signature)

                  MPO Certification of Paratransit Plan

    The (name of Metropolitan Planning Organization) hereby certifies 
that it has reviewed the ADA paratransit plan prepared by (name of 
submitting entity (ies)) as required under 49 CFR part 37. 139(h) and 
finds it to be in conformance with the transportation plan developed 
under 49 CFR part 613 and 23 CFR part 450 (the FTA/FHWA joint planning 
regulation). This certification is valid for one year.

_______________________________________________________________________
signature

_______________________________________________________________________
name of authorized official

_______________________________________________________________________
title

_______________________________________________________________________
date

                   Existing Paratransit Service Survey

    This is to certify that (name of public entity (ies)) has conducted 
a survey of existing paratransit services as required by 49 CFR 37.137 
(a).

_______________________________________________________________________
signature

_______________________________________________________________________
name of authorized official

_______________________________________________________________________
title

_______________________________________________________________________
date

                     Included Service Certification

    This is to certify that service provided by other entities but 
included in the ADA paratransit plan submitted by (name of submitting 
entity (ies)) meets the requirements of 49 CFR part 37, subpart F 
providing that ADA eligible individuals have access to the service; the 
service is provided in the manner represented; and, that efforts will be 
made to coordinate the provision of paratransit service offered by other 
providers.

_______________________________________________________________________
signature

_______________________________________________________________________
name of authorized official


[[Page 468]]


_______________________________________________________________________
title

_______________________________________________________________________
date

                       Joint Plan Certification I

    This is to certify that (name of entity covered by joint plan) is 
committed to providing ADA paratransit service as part of this 
coordinated plan and in conformance with the requirements of 49 CFR part 
37, subpart F.

_______________________________________________________________________
signature

_______________________________________________________________________
name of authorized official

_______________________________________________________________________
title

_______________________________________________________________________
date

                       Joint Plan Certification II

    This is to certify that (name of entity covered by joint plan) will, 
in accordance with 49 CFR 37.141, maintain current levels of paratransit 
service until the coordinated plan goes into effect.

_______________________________________________________________________
signature

_______________________________________________________________________
name of authorized official

_______________________________________________________________________
title

_______________________________________________________________________
date

            State Certification that Plans have been Received

    This is to certify that all ADA paratransit plans required under 49 
CFR 37.139 have been received by (state DOT)

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Appendix D to Part 37--Construction and Interpretation of Provisions of 
                             49 CFR Part 37

    This appendix explains the Department's construction and 
interpretation of provisions of 49 CFR part 37. It is intended to be 
used as definitive guidance concerning the meaning and implementation of 
these provisions. The appendix is organized on a section-by-section 
basis. Some sections of the rule are not discussed in the appendix, 
because they are self-explanatory or we do not currently have 
interpretive material to provide concerning them.
    The Department also provides guidance by other means, such as 
manuals and letters. The Department intends to update this Appendix 
periodically to include guidance, provided in response to inquiries 
about specific situations, that is of general relevance or interest.

                      Amendments to 49 CFR Part 27

    Section 27.67(d) has been revised to reference the Access Board 
facility guidelines (found in appendix A to part 37) as well as the 
Uniform Federal Accessibility Standard (UFAS). This change was made to 
ensure consistency between requirements under section 504 and the ADA. 
Several caveats relating to the application of UFAS (e.g., that spaces 
not used by the public or likely to result in the employment of 
individuals with disabilities would not have to meet the standards) have 
been deleted. It is the Department's understanding that provisions of 
the Access Board standards and part 37 make them unnecessary.
    The Department is aware that there is a transition period between 
the publication of this rule and the effective date of many of its 
provisions (e.g., concerning facilities and paratransit services) during 
which section 504 remains the basic authority for accessibility 
modifications. In this interval, the Department expects recipients' 
compliance with section 504 to look forward to compliance with the ADA 
provisions. That is, if a recipient is making a decision about the shape 
of its paratransit service between the publication of this rule and 
January 26, 1992, the decision should be in the direction of service 
that will help to comply with post-January 1992 requirements. A 
recipient that severely curtailed its present paratransit service in 
October, and then asked for a three- or five-year phase-in of service 
under its paratransit plan, would not be acting consistent with this 
policy.
    Likewise, the Department would view with disfavor any attempt by a 
recipient to accelerate the beginning of the construction, installation 
or alteration of a facility to before January 26, 1992, to ``beat the 
clock'' and avoid the application of this rule's facility standards. The 
Department would be very reluctant to approve grants, contracts, 
exemption requests etc., that appear to have this effect. The purpose of 
the Department's administration of section 504 is to ensure compliance 
with the national policy stated in the ADA, not to permit avoidance of 
it.

                           Subpart A--General

                        Section 37.3  Definitions

    The definition of ``commuter authority'' includes a list of commuter 
rail operators drawn from a statutory reference in the

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ADA. It should be noted that this list is not exhaustive. Other commuter 
rail operators (e.g., in Chicago or San Francisco) would also be 
encompassed by this definition.
    The definition of ``commuter bus service'' is important because the 
ADA does not require complementary paratransit to be provided with 
respect to commuter bus service operated by public entities. The 
rationale that may be inferred for the statutory exemption for this kind 
of service concerns its typical characteristics (e.g., no attempt to 
comprehensively cover a service area, limited route structure, limited 
origins and destinations, interface with another mode of transportation, 
limited purposes of travel). These characteristics can be found in some 
transportation systems other than bus systems oriented toward work 
trips. For example, bus service that is used as a dedicated connecter to 
commuter or intercity rail service, certain airport shuttles, and 
university bus systems share many or all of these characteristics. As 
explained further in the discussion of subpart B, the Department has 
determined that it is appropriate to cover these services with the 
requirements applicable to commuter bus systems.
    The definitions of ``designated public transportation'' and 
``specified public transportation'' exclude transportation by aircraft. 
Persons interested in matters concerning access to air travel for 
individuals with disabilities should refer to 14 CFR part 382, the 
Department's regulation implementing the Air Carrier Access Act. Since 
the facility requirements of this part refer to facilities involved in 
the provision of designated or specified public transportation, airport 
facilities are not covered by this part. DOJ makes clear that public and 
private airport facilities are covered under its title II and title III 
regulations, respectively.
    The examples given in the definition of ``facility'' all relate to 
ground transportation. We would point out that, since transportation by 
passenger vessels is covered by this rule and by DOJ rules, such vessel-
related facilities as docks, wharfs, vessel terminals, etc. fall under 
this definition. It is intended that specific requirements for vessels 
and related facilities will be set forth in future rulemaking.
    The definitions of ``fixed route system'' and ``demand responsive 
system'' derive directly from the ADA's definitions of these terms. Some 
systems, like a typical city bus system or a dial-a-ride van system, fit 
clearly into one category or the other. Other systems may not so clearly 
fall into one of the categories. Nevertheless, because how a system is 
categorized has consequences for the requirements it must meet, entities 
must determine, on a case-by-case basis, into which category their 
systems fall.
    In making this determination, one of the key factors to be 
considered is whether the individual, in order to use the service, must 
request the service, typically by making a call.
    With fixed route service, no action by the individual is needed to 
initiate public transportation. If an individual is at a bus stop at the 
time the bus is scheduled to appear, then that individual will be able 
to access the transportation system. With demand-reponsive service, an 
additional step must be taken by the individual before he or she can 
ride the bus, i.e., the individual must make a telephone call.
(S. Rept. 101-116 at 54).
    Other factors, such as the presence or absence of published 
schedules, or the variation of vehicle intervals in anticipation of 
differences in usage, are less important in making the distinction 
between the two types of service. If a service is provided along a given 
route, and a vehicle will arrive at certain times regardless of whether 
a passenger actively requests the vehicle, the service in most cases 
should be regarded as fixed route rather than demand responsive.
    At the same time, the fact that there is an interaction between a 
passenger and transportation service does not necessarily make the 
service demand responsive. For many types of service (e.g., intercity 
bus, intercity rail) which are clearly fixed route, a passenger has to 
interact with an agent to buy a ticket. Some services (e.g., certain 
commuter bus or commuter rail operations) may use flag stops, in which a 
vehicle along the route does not stop unless a passenger flags the 
vehicle down. A traveler staying at a hotel usually makes a room 
reservation before hopping on the hotel shuttle. This kind of 
interaction does not make an otherwise fixed route service demand 
responsive.
    On the other hand, we would regard a system that permits user-
initiated deviations from routes or schedules as demand-responsive. For 
example, if a rural public transit system (e.g., a section 18 recipient) 
has a few fixed routes, the fixed route portion of its system would be 
subject to the requirements of subpart F for complementary paratransit 
service. If the entity changed its system so that it operated as a 
route-deviation system, we would regard it as a demand responsive 
system. Such a system would not be subject to complementary paratransit 
requirements.
    The definition of ``individual with a disability'' excludes someone 
who is currently engaging in the illegal use of drugs, when a covered 
entity is acting on the basis of such use. This concept is more 
important in employment and public accommodations contexts than it is in 
transportation, and is discussed at greater length in the DOJ and EEOC 
rules. Essentially, the definition says that, although drug addiction 
(i.e., the status or a diagnosis of being a drug abuser) is a 
disability, no one is regarded as being an

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individual with a disability on the basis of current illegal drug use.
    Moreover, even if an individual has a disability, a covered entity 
can take action against the individual if that individual is currently 
engaging in illegal drug use. For example, if a person with a mobility 
or vision impairment is ADA paratransit eligible, but is caught 
possessing or using cocaine or marijuana on a paratransit vehicle, the 
transit provider can deny the individual further eligibility. If the 
individual has successfully undergone rehabilitation or is no longer 
using drugs, as explained in the preamble to the DOJ rules, the transit 
provider could not continue to deny eligibility on the basis that the 
individual was a former drug user or still was diagnosed as a person 
with a substance abuse problem.
    We defined ``paratransit'' in order to note its specialized usage in 
the rule. Part 37 uses this term to refer to the complementary 
paratransit service comparable to public fixed route systems which must 
be provided. Typically, paratransit is provided in a demand responsive 
mode. Obviously, the rule refers to a wide variety of demand responsive 
services that are not ``paratransit,'' in this specialized sense.
    The ADA's definition of ``over-the-road bus'' may also be somewhat 
narrower than the common understanding of the term. The ADA definition 
focuses on a bus with an elevated passenger deck over a baggage 
compartment (i.e., a ``Greyhound-type'' bus). Other types of buses 
commonly referred to as ``over-the-road buses,'' which are sometimes 
used for commuter bus or other service, do not come within this 
definition. Only buses that do come within the definition are subject to 
the over-the-road bus exception to accessibility requirements in Title 
III of the ADA.
    For terminological clarity, we want to point out that two different 
words are used in ADA regulations to refer to devices on which 
individuals with hearing impairments communicate over telephone lines. 
DOJ uses the more traditional term ``telecommunications device for the 
deaf'' (TDD). The Access Board uses a newer term, ``text telephone.'' 
The DOT rule uses the terms interchangably.
    The definition of ``transit facility'' applies only with reference 
to the TDD requirement of appendix A to this Part. The point of the 
definition is to exempt from TDD requirements open structures, like bus 
shelters, or facilities which are not used primarily as transportation 
stops or terminals. For example, a drug store in a small town may sell 
intercity bus tickets, and people waiting for the bus may even wait for 
the bus inside the store. But the drug store's raison d'etre is not to 
be a bus station. Its transportation function is only incidental. 
Consequently, its obligations with respect to TDDs would be those 
required of a place of public accommodation by DOJ rules.
    A ``used vehicle'' means a vehicle which has prior use; prior, that 
is, to its acquisition by its present owner or lessee. The definition is 
not relevant to existing vehicles in one's own fleet, which were 
obtained before the ADA vehicle accessibility requirements took effect.
    A ``vanpool'' is a voluntary commuter ridesharing arrangement using 
a van with a seating capacity of more than seven persons, including the 
driver. Carpools are not included in the definition. There are some 
systems using larger vehicles (e.g., buses) that operate, in effect, as 
vanpools. This definition encompasses such systems. Vanpools are used 
for daily work trips, between commuters' homes (or collection points 
near them) and work sites (or drop points near them). Drivers are 
themselves commuters who are either volunteers who receive no 
compensation for their efforts or persons who are reimbursed by other 
riders for the vehicle, operating, and driving costs.
    The definition of ``wheelchair'' includes a wide variety of mobility 
devices. This inclusiveness is consistent with the legislative history 
of the ADA (See S. Rept. 101-116 at 48). While some mobility devices may 
not look like many persons' traditional idea of a wheel chair, three and 
four wheeled devices, of many varied designs, are used by individuals 
with disabilities and must be transported. The definition of ``common 
wheelchair,'' developed by the Access Board, is intended to help transit 
providers determine which wheelchairs they have to carry. The definition 
involves an ``envelope'' relating to the Access Board requirements for 
vehicle lifts.
    A lift conforming to Access Board requirements is 30" x 48" and 
capable of lifting a wheelchair/occupant combination of up to 600 
pounds. Consequently, a common wheelchair is one that fits these size 
and weight dimensions. Devices used by individuals with disabilities 
that do not fit this envelope (e.g., may ``gurneys'') do not have to be 
carried.

                     Section 37.5  Nondiscrimination

    This section states the general nondiscrimination obligation for 
entities providing transportation service. It should be noted that 
virtually all public and private entities covered by this regulation are 
also covered by DOJ regulations, which have more detailed statements of 
general nondiscrimination obligations.
    Under the ADA, an entity may not consign an individual with 
disabilities to a separate, ``segregated,'' service for such persons, if 
the individual can in fact use the service for the general public. This 
is true even if the individual takes longer, or has more difficulty, 
than other persons in using the service for the general public.

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    One instance in which this principal applies concerns the use of 
designated priority seats (e.g., the so-called ``elderly and 
handicapped'' seats near the entrances to buses). A person with a 
disability (e.g., a visual impairment) may choose to take advantage of 
this accommodation or not. If not, it is contrary to rule for the entity 
to insist that the individual must sit in the priority seats.
    The prohibition on special charges applies to charges for service to 
individuals with disabilities that are higher than charges for the same 
or comparable services to other persons. For example, if a shuttle 
service charges $20.00 for a ride from a given location to the airport 
for most people, it could not charge $40.00 because the passenger had a 
disability or needed to use the shuttle service's lift-equipped van. 
Higher mileage charges for using an accessible vehicle would likewise be 
inconsistent with the rule. So would charging extra to carry a service 
animal accompanying an individual with a disability.
    If a taxi company charges $1.00 to stow luggage in the trunk, it 
cannot charge $2.00 to stow a folding wheelchair there. This provision 
does not mean, however, that a transportation provider cannot charge 
nondiscriminatory fees to passengers with disabilities. The taxi company 
in the above example can charge a passenger $1.00 to stow a wheelchair 
in the trunk; it is not required to waive the charge. This section does 
not prohibit the fares for paratransit service which transit providers 
are allowed to charge under Sec. 37.131(d).
    A requirement for an attendant is inconsistent with the general 
nondiscrimination principle that prohibits policies that unnecessarily 
impose requirements on individuals with disabilities that are not 
imposed on others. Consequently, such requirements are prohibited. An 
entity is not required to provide attendant services (e.g., assistance 
in toileting, feeding, dressing), etc.
    This provision must also be considered in light of the fact that an 
entity may refuse service to someone who engages in violent, seriously 
disruptive, or illegal conduct. If an entity may legitimately refuse 
service to someone, it may condition service to him on actions that 
would mitigate the problem. The entity could require an attendant as a 
condition of providing service it otherwise had the right to refuse.
    The rule also points out that involuntary conduct related to a 
disability that may offend or annoy other persons, but which does not 
pose a direct treat, is not a basis for refusal of transportation. For 
example, some persons with Tourette's syndrome may make involuntary 
profane exclamations. These may be very annoying or offensive to others, 
but would not be a ground for denial of service. Nor would it be 
consistent with the nondiscrimination requirements of this part to deny 
service based on fear or misinformation about the disability. For 
example, a transit provider could not deny service to a person with HIV 
disease because its personnel or other passengers are afraid of being 
near people with that condition.
    This section also prohibits denials of service or the placing on 
services of conditions inconsistent with this part on individuals with 
disabilities because of insurance company policies or requirements. If 
an insurance company told a transit provider that it would withdraw 
coverage, or raise rates, unless a transit provider refused to carry 
persons with disabilities, or unless the provider refused to carry 
three-wheeled scooters, this would not excuse the provider from 
providing the service as mandate by this part. This is not a regulatory 
requirement on insurance companies, but simply says that covered 
entities must comply with this part, even in the face of difficulties 
with their insurance companies.

             Section 37.7  Standards for Accessible Vehicles

    This section makes clear that, in order to meet accessibility 
requirements of this rule, vehicles must comply with Access Board 
standards, incorporated in DOT rules as 49 CFR part 38. Paragraph (b) of 
Sec. 37.7 spells out a procedure by which an entity (public or private) 
can deviate from provisions of part 38 with respect to vehicles. The 
entity can make a case to the Administrator that it is unable to comply 
with a particular portion of part 38, as written, for specified reasons, 
and that it is providing comparable compliance by some alternative 
method. The entity would have to describe how its alternative mode of 
compliance would meet or exceed the level of access to or usability of 
the vehicle that compliance with part 38 would otherwise provide.
    It should be noted that equivalent facilitation does not provide a 
means to get a waiver of accessibility requirements. Rather, it is a way 
in which comparable (not a lesser degree of) accessibility can be 
provided by other means. The entity must consult with the public through 
some means of public participation in devising its alternative form of 
compliance, and the public input must be reflected in the submission to 
the Administrator (or the Federal Railroad Administrator in appropriate 
cases, such as a request concerning Amtrak). The Administrator will make 
a case-by-case decision about whether compliance with part 38 was 
achievable and, if not, whether the proffered alternative complies with 
the equivalent facilitation standard. DOT intends to consult with the 
Access Board in making these determinations.
    This equivalent facilitation provision can apply to buses or other 
motor vehicles as well as to rail cars and vehicles. An example of what 
could be an equivalent facilitation

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would concern rail cars which would leave too wide a horizontal gap 
between the door and the platform. If the operator used a combination of 
bridgeplates and personnel to bridge the gap, it might be regarded as an 
equivalent facilitation in appropriate circumstances.
    Section 37.7(c) clarifies which specifications must be complied with 
for over-the-road buses purchased by public entities (under subpart D of 
part 37) or private entities standing in the shoes of the public entity 
(as described in Sec. 37.23 of part 37). This section is necessary to 
make clear that over-the-road coaches must be accessible, when they are 
purchased by or in furtherance of a contract with a public entity. While 
the October 4, 1990 rule specified that over-the-road coaches must be 
accessible under these circumstances, we had not previously specified 
what constitutes accessibility.
    Accordingly, this paragraph specifies that an over-the-road bus must 
have a lift which meets the performance requirements of a regular bus 
lift (see Sec. 38.23) and must meet the interim accessibility features 
specified for all over-the-road buses in part 3, subpart G.

          Section 37.9  Standards for Transportation Facilities

    This section makes clear that, in order to meet accessibility 
requirements of this rule, vehicles must comply with appendix A to part 
37, which incorporates the Access Board facility guidelines.
    Paragraph (b) of Sec. 37.9 provides that, under certain 
circumstances, existing accessibility modifications to key station 
facilities do not need to be modified further in order to conform to 
appendix A. This is true even if the standards under which the facility 
was modified differ from the Access Board guidelines or provide a lesser 
standard of accessibility.
    To qualify for this ``grandfathering,'' alterations must have been 
before January 26, 1992. As in other facility sections of the rule, an 
alteration is deemed to begin with the issuance of a notice to proceed 
or work order. The existing modifications must conform to ANSI A-117.1, 
Specifications for Making Buildings and Facilities Accessible to and 
Usable by the Physically Handicapped 1980, or the Uniform Federal 
Accessibility Standard. (UFAS).
    For example, if an entity used a Federal grant or loan or money to 
make changes to a building, it would already have had to comply with the 
Uniform Federal Accessibility Standards. Likewise, if a private entity, 
acting without any Federal money in the project, may have complied with 
the ANSI A117.1 standard. So long as the work was done in conformity 
with the standard that was in effect when the work was done, the 
alteration will be considered accessible.
    However, because one modification was made to a facility under one 
of these standards, the entity still has a responsibility to make other 
modifications needed to comply with applicable accessibility 
requirements. For example, if an entity has made some modifications to a 
key station according to one of these older standards, but the 
modifications do not make the key station entirely accessible as this 
rule requires, then additional modifications would have to be made 
according to the standards of appendix A. Suppose this entity has put an 
elevator into the station to make it accessible to individuals who use 
wheelchairs. If the elevator does not fully meet appendix A standards, 
but met the applicable ANSI standard when it was installed, it would not 
need further modifications now. But if it had not already done so, the 
entity would have to install a tactile strip along the platform edge in 
order to make the key station fully accessible as provided in this rule. 
The tactile strip would have to meet appendix A requirements.
    The rule specifically provides that ``grandfathering'' applies only 
to alterations of individual elements and spaces and only to the extent 
that provisions covering those elements or spaces are found in UFAS or 
AHSI A117.1. For example, alterations to the telephones in a key station 
may have been carried out in order to lower them to meet the 
requirements of UFAS, but telecommunications devices for the deaf (TDDs) 
were not installed. (Neither UFAS nor the ANSI standard include 
requirements concerning TDDs). However, because appendix A does contain 
TDD requirements, the key station must now be altered in accordance with 
the standards for TDDs. Similarly, earlier alteration of an entire 
station in accordance with UFAS or the ANSI standard would not relieve 
an entity from compliance with any applicable provision concerning the 
gap between the platform between the platform and the vehicle in a key 
station, because neither of these two standards addresses the interface 
between vehicle and platform.
    New paragraph (c) of this section clarifies a provision of the 
Access Board's standards concerning the construction of bus stop pads at 
bus stops. The final Access Board standard (found at section 10.2.1(1) 
of appendix A to part 37) has been rewritten slightly to clear up 
confusion about the perceived necessary construction of a bus stop pad. 
Section 10.2.1(1) does not require that anyone build a bus stop pad; it 
does specify what a bus stop pad must look like, if it is constructed. 
The further clarifying language in Sec. 37.9(c) explains that public 
entities must exert control over the construction of bus stop pads if 
they have the ability to do so. The Access Board, as well as DOT, 
recognize that most physical improvements related to bus stops are out 
of the control of the transit

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provider. Paragraph (c) of Sec. 37.9 merely notes that where a transit 
provider does have control over the construction, it must exercise that 
control to ensure that the pad meets these specifications.
    One further clarification concerning the implication of this 
provision deals with a bus loading island at which buses pull up on both 
sides of the island. It would be possible to read the bus pad 
specification to require the island to be a minimum of 84 inches wide 
(two widths of a bus stop pad), so that a lift could be deployed from 
buses on both sides of the island at the same time. A double-wide bus 
pad, however, is likely to exceed available space in most instances.
    Where there is space, of course, building a double-wide pad is one 
acceptable option under this rule. However, the combination of a pad of 
normal width and standard operational practices may also suffice. (Such 
practices could be offered as an equivalent facilitation.) For example, 
buses on either side of the island could stop at staggered locations 
(i.e., the bus on the left side could stop several feet ahead of the bus 
on the right side), so that even when buses were on both sides of the 
island at once, their lifts could be deployed without conflict. Where it 
is possible, building the pad a little longer than normal size could 
facilitate such an approach. In a situation where staggered stop areas 
are not feasible, an operational practice of having one bus wait until 
the other's lift cycle had been completed could do the job. Finally, the 
specification does not require that a pad be built at all. If there is 
nothing that can be done to permit lift deployment on both sides of an 
island, the buses can stop on the street, or some other location, so 
long as the lift is deployable.
    Like Sec. 37.7, this section contains a provision allowing an entity 
to request approval for providing accessibility through an equivalent 
facilitation.

                Section 37.11  Administrative Enforcement

    This section spells out administrative means of enforcing the 
requirements of the ADA. Recipients of Federal financial assistance from 
DOT (whether public or private entities) are subject to DOT's section 
504 enforcement procedures. The existing procedures, including 
administrative complaints to the DOT Office of Civil Rights, 
investigation, attempts at conciliation, and final resort to proceedings 
to cut off funds to a noncomplying recipient, will continue to be used.
    In considering enforcement matters, the Department is guided by a 
policy that emphasizes compliance. The aim of enforcement action, as we 
see it, is to make sure that entities meet their obligations, not to 
impose sanctions for their own sake. The Department's enforcement 
priority is on failures to comply with basic requirements and ``pattern 
or practice'' kinds of problems, rather than on isolated operational 
errors.
    Under the DOJ rules implementing title II of the ADA (28 CFR part 
35), DOT is a ``designated agency'' for enforcement of complaints 
relating to transportation programs of public entities, even if they do 
not receive Federal financial assistance. When it receives such a 
complaint, the Department will investigate the complaint, attempt 
conciliation and, if conciliation is not possible, take action under 
section 504 and/or refer the matter to the DOJ for possible further 
action.
    Title III of the ADA does not give DOT any administrative 
enforcement authority with respect to private entities whose 
transportation services are subject to part 37. In its title III rule 
(28 CFR part 36), DOJ assumes enforcement responsibility for all title 
III matters. If the Department of Transportation receives complaints of 
violations of part 37 by private entities, it will refer the matters to 
the DOJ.
    It should be pointed out that the ADA includes other enforcement 
options. Individuals have a private right of action against entities who 
violate the ADA and its implementing regulations. The DOJ can take 
violators to court. These approaches are not mutually exclusive with the 
administrative enforcement mechanisms described in this section. An 
aggrieved individual can complain to DOT about an alleged transportation 
violation and go to court at the same time. Use of administrative 
enforcement procedures is not, under titles II and III, an 
administrative remedy that individuals must exhaust before taking legal 
action.
    We also would point out that the ADA does not assert any blanket 
preemptive authority over state or local nondiscrimination laws and 
enforcement mechanisms. While requirements of the ADA and this 
regulation would preempt conflicting state or local provisions (e.g., a 
building code or zoning ordinance that prevents compliance with appendix 
A or other facility accessibility requirements, a provision of local law 
that said bus drivers could not leave their seats to help secure 
wheelchair users), the ADA and this rule do not prohibit states and 
localities from legislating in areas relating to disability. For 
example, if a state law requires a higher degree of service than the 
ADA, that requirement could still be enforced. Also, states and 
localities may continue to enforce their own parallel requirements. For 
example, it would be a violation of this rule for a taxi driver to 
refuse to pick up a person based on that person's disability. Such a 
refusal may also be a violation of a county's taxi rules, subjecting the 
violator to a fine or suspension of operating privileges. Both ADA and 
local remedies could proceed in such a case.
    Labor-management agreements cannot stand in conflict with the 
requirements of

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the ADA and this rule. For example, if a labor-management agreement 
provides that vehicle drivers are not required to provide assistance to 
persons with disabilities in a situation in which this rule requires 
such assistance, then the assistance must be provided notwithstanding 
the agreement. Labor and management do not have the authority to agree 
to violate requirements of Federal law.

 Section 37.13  Effective Date for Certain Vehicle Lift Specifications.

    This section contains an explicit statement of the effective date 
for vehicle lift platform specifications. The Department has decided to 
apply the new part 38 lift platform specifications to solicitations 
after January 25, 1992. As in the October 4, 1990, rule implementing the 
acquisition requirements; the date of a solicitation is deemed to be the 
closing date for the submission of bids or offers in a procurement.

                        Subpart B--Applicability

                 Section 37.21  Applicability.--General

    This section emphasizes the broad applicability of part 37. Unlike 
section 504, the ADA and its implementing rules apply to entities 
whether or not they receive Federal financial assistance. They apply to 
private and public entities alike. For entities which do receive Federal 
funds, compliance with the ADA and part 37 is a condition of compliance 
with section 504 and 49 CFR part 27, DOT's section 504 rule.
    Virtually all entities covered by this rule also are covered by DOJ 
rules, either under 28 CFR part 36 as state and local program providers 
or under 28 CFR part 35 as operators of places of public accommodation. 
Both sets of rules apply; one does not override the other. The DOT rules 
apply only to the entity's transportation facilities, vehicles, or 
services; the DOJ rules may cover the entity's activities more broadly. 
For example, if a public entity operates a transit system and a zoo, 
DOT's coverage would stop at the transit system's edge, while DOJ's rule 
would cover the zoo as well.
    DOT and DOJ have coordinated their rules, and the rules have been 
drafted to be consistent with one another. Should, in the context of 
some future situation, there be an apparent inconsistency between the 
two rules, the DOT rule would control within the sphere of 
transportation services, facilities and vehicles.

                  Section 37.23  Service Under Contract

    This section requires private entities to ``stand in the shoes'' of 
public entities with whom they contract to provide transportation 
services. It ensures that, while a public entity may contract out its 
service, it may not contract away its ADA responsibilities. The 
requirement applies primarily to vehicle acquisition requirements and to 
service provision requirements.
    If a public entity wishes to acquire vehicles for use on a commuter 
route, for example, it must acquire accessible vehicles. It may acquire 
accessible over-the-road buses, it may acquire accessible full-size 
transit buses, it may acquire accessible smaller buses, or it may 
acquire accessible vans. It does not matter what kind of vehicles it 
acquires, so long as they are accessible. On the other hand, if the 
public entity wants to use inaccessible buses in its existing fleet for 
the commuter service, it may do so. All replacement vehicles acquired in 
the future must, of course, be accessible.
    Under this provision, a private entity which contracts to provide 
this commuter service stands in the shoes of the public entity and is 
subject to precisely the same requirements (it is not required to do 
more than the public entity). If the private entity acquires vehicles 
used to provide the service, the vehicles must be accessible. If it 
cannot, or chooses not to, acquire an accessible vehicle of one type, it 
can acquire an accessible vehicle of another type. Like the public 
entity, it can provide the service with inaccessible vehicles in its 
existing fleet.
    The import of the provision is that it requires a private entity 
contracting to provide transportation service to a public entity to 
follow the rules applicable to the public entity. For the time being, a 
private entity operating in its own right can purchase a new over-the-
road bus inaccessible to individuals who use wheelchairs. When that 
private entity operates service under contract to the public entity, 
however, it is just as obligated as the public entity itself to purchase 
an accessible bus for use in that service, whether or not it is an over-
the-road bus.
    The ``stand in the shoes'' requirement applies not only to vehicles 
acquired by private entities explicitly under terms of an executed 
contract to provide service to a public entity, but also to vehicles 
acquired ``in contemplation of use'' for service under such a contract. 
This language is included to ensure good faith compliance with 
accessibility requirements for vehicles acquired before the execution of 
a contract. Whether a particular acquisition is in contemplation of use 
on a contract will be determined on a case-by-case basis. However, 
acquiring a vehicle a short time before a contract is executed and then 
using it for the contracted service is an indication that the vehicle 
was acquired in contemplation of use on the contract, as is acquiring a 
vehicle obstensibly for other service provided by the entity and then 
regularly rotating it into service under the contract.
    The ``stand in the shoes'' requirement is applicable only to the 
vehicles and service

[[Page 475]]

(public entity service requirements, like Sec. 37.163, apply to a 
private entity in these situations) provided under contract to a public 
entity. Public entity requirements clearly do not apply to all phases of 
a private entity's operations, just because it has a contract with a 
public entity. For example, a private bus company, if purchasing buses 
for service under contract to a public entity, must purchase accessible 
buses. The same company, to the extent permitted by the private entity 
provisions of this part, may purchase inaccessible vehicles for its tour 
bus operations.
    The Department also notes that the ``stands in the shoes'' 
requirement may differ depending on the kind of service involved. The 
public entity's ``shoes'' are shaped differently, for example, depending 
on whether the public entity is providing fixed route or demand 
responsive service to the general public. In the case of demand 
responsive service, a public entity is not required to buy an accessible 
vehicle if its demand responsive system, when viewed in its entirety, 
provides service to individuals with disabilities equivalent to its 
service to other persons. A private contractor providing a portion of 
this paratransit service would not necessarily have to acquire an 
accessible vehicle if this equivalency test is being met by the system 
as a whole. Similarly, a public entity can, after going through a ``good 
faith efforts'' search, acquire inaccessible buses. A private entity 
under contract to the public can do the same. ``Stand in the shoes'' may 
also mean that, under some circumstances, a private contractor need not 
acquire accessible vehicles. If a private company contracts with a 
public school district to provide school bus service, it is covered, for 
that purpose, by the exemption for public school transportation.
    In addition, the requirement that a private entity play by the rules 
applicable to a public entity can apply in situations involving an 
``arrangement or other relationship'' with a public entity other than 
the traditional contract for service. For example, a private utility 
company that operates what is, in essence, a regular fixed route public 
transportation system for a city, and which receives section 3 or 9 
funds from FTA via an agreement with a state or local government agency, 
would fall under the provisions of this section. The provider would have 
to comply with the vehicle acquisition, paratransit, and service 
requirements that would apply to the public entity through which it 
receives the FTA funds, if that public entity operated the system 
itself. The Department would not, however, construe this section to 
apply to situations in which the degree of FTA funding and state and 
local agency involvement is considerably less, or in which the system of 
transportation involved is not a de facto surrogate for a traditional 
public entity fixed route transit system serving a city (e.g., a private 
non-profit social service agency which receives FTA section 16(b)(2) 
funds to purchase a vehicle).
    This section also requires that a public entity not diminish the 
percentage of accessible vehicles in its fleet through contracting. For 
example, suppose a public entity has 100 buses in its fleet, of which 20 
are accessible, meaning that 20 percent of its fleet is accessible. The 
entity decides to add a fixed route, for which a contractor is engaged. 
The contractor is supplying ten of its existing inaccessible buses for 
the fixed route. To maintain the 20 percent accessibility ratio, there 
would have to be 22 accessible buses out of the 110 buses now in 
operation in carrying out the public entity's service. The public entity 
could maintain its 20 percent level of accessibility through any one or 
more of a number of means, such as having the contractor to provide two 
accessible buses, retrofitting two if its own existing buses, or 
accelerating replacement of two of its own inaccessible buses with 
accessible buses.
    This rule applies the ``stand in the shoes'' principle to 
transactions wholly among private entities as well. For example, suppose 
a taxi company (a private entity primarily engaged in the business of 
transporting people) contracts with a hotel to provide airport shuttle 
van service. With respect to that service, the taxi company would be 
subject to the requirements for private entities not primarily in the 
business of transporting people, since it would be ``standing in the 
shoes'' of the hotel for that purpose.

            Section 37.25  University Transportation Systems

    Private university-operated transportation systems are subject to 
the requirements of this rule for private entities not primarily engaged 
in the business of transporting people. With one important exception, 
public university-operated transportation systems are subject to the 
requirements of the rule for public entities. The nature of the systems 
involved--demand-responsive or fixed route--determines the precise 
requirements involved.
    For public university fixed route systems, public entity 
requirements apply. In the case of fixed route systems, the requirements 
for commuter bus service would govern. This has the effect of requiring 
the acquisition of accessible vehicles and compliance with most other 
provisions of the rule, but does not require the provision of 
complementary paratransit or submitting a paratransit plan. As a result, 
private and public universities will have very similar obligations under 
the rule.

[[Page 476]]

  Section 37.27  Transportation for Elementary and Secondary Education 
                                 Systems

    This section restates the statutory exemption from public entity 
requirements given to public school transportation. This extension also 
applies to transportation of pre-school children to Head Start or 
special education programs which receive Federal assistance. It also 
applies to arrangements permitting pre-school children of school bus 
drivers to ride a school bus or allowing teenage mothers to be 
transported to day care facilities at a school or along a school bus 
route so that their mothers may continue to attend school (See H. Rept. 
101-485, pt. 1 at 27). The situation for private schools is more 
complex. According to the provision, a private elementary or secondary 
school's transportation system is exempt from coverage under this rule 
if all three of the following conditions are met: (1) The school 
receives Federal financial assistance; (2) the school is subject to 
section 504; and (3) the school's transportation system provides 
transportation services to individuals with disabilities, including 
wheelchair users, equivalent to those provided to individuals without 
disabilities. The test of equivalency is the same as that for other 
private entities, and is described under Sec. 37.105. If the school does 
not meet all these criteria, then it is subject to the requirements of 
Part 37 for private entities not primarily engaged in the business of 
transporting people.
    The Department notes that, given the constitutional law on church-
state separation, it is likely that church-affiliated private schools do 
not receive Federal financial assistance. To the extent that these 
schools' transportation systems are operated by religious entities or 
entities controlled by religious organizations, they are not subject to 
the ADA at all, so this section does not apply to them.

            Section 37.29  Private Providers of Taxi Service

    This section first recites that providers of taxi service are 
private entities primarily engaged in the business of transporting 
people which provide demand responsive service. For purposes of this 
section, other transportation services that involve calling for a car 
and a driver to take one places (e.g., limousine services, of the kind 
that provide luxury cars and chauffeurs for senior proms and analogous 
adult events) are regarded as taxi services.
    Under the ADA, no private entity is required to purchase an 
accessible automobile. If a taxi company purchases a larger vehicle, 
like a van, it is subject to the same rules as any other private entity 
primarily engaged in the business of transporting people which operates 
a demand responsive service. That is, unless it is already providing 
equivalent service, any van it acquires must be accessible. Equivalent 
service is measured according to the criteria of Sec. 37.105. Taxi 
companies are not required to acquire vehicles other than automobiles to 
add accessible vehicles to their fleets.
    Taxi companies are subject to nondiscrimination obligations. These 
obligations mean, first, that a taxi service may not deny a ride to an 
individual with a disability who is capable of using the taxi vehicles. 
It would be discrimination to pass up a passenger because he or she was 
blind or used a wheelchair, if the wheelchair was one that could be 
stowed in the cab and the passenger could transfer to a vehicle seat. 
Nor could a taxi company insist that a wheelchair user wait for a lift-
equipped van if the person could use an automobile.
    It would be discrimination for a driver to refuse to assist with 
stowing a wheelchair in the trunk (since taxi drivers routinely assist 
passengers with stowing luggage). It would be discrimination to charge a 
higher fee or fare for carrying a person with a disability than for 
carrying a non-disabled passenger, or a higher fee for stowing a 
wheelchair than for stowing a suitcase. (Charging the same fee for 
stowing a wheelchair as for stowing a suitcase would be proper, 
however.) The fact that it may take somewhat more time and effort to 
serve a person with a disability than another passenger does not justify 
discriminatory conduct with respect to passengers with disabilities.
    State or local governments may run user-side subsidy arrangements 
for the general public (e.g., taxi voucher systems for senior citizens 
or low-income persons). Under the DOJ title II rule, these programs 
would have to meet ``program accessibility'' requirements, which 
probably would require that accessible transportation be made available 
to senior citizens or low-income persons with disabilities. This would 
not directly require private taxi providers who accept the vouchers to 
purchase accessible vehicles beyond the requirements of this rule, 
however.

                         Section 37.31  Vanpools

    This provision applies to public vanpool systems the requirements 
for public entities operating demand responsive systems for the general 
public. A public vanpool system is one operated by a public entity, or 
in which a public entity owns or purchases or leases the vehicles. 
Lesser degrees of public involvement with an otherwise private 
ridesharing arrangement (e.g., provision of parking spaces, HOV lanes, 
coordination or clearinghouse services) do not convert a private into a 
public system.
    The requirement for a public vanpool system is that it purchase or 
lease an accessible vehicle unless it can demonstrate that it provides 
equivalent service to individuals with disabilities, including 
individuals who use wheelchairs, as it provides to individuals

[[Page 477]]

without disabilities. For a public vanpool system, the equivalency 
requirement would be met if an accessible vehicle is made available to 
and used by a vanpool when an individual with a disability needs such a 
vehicle to participate. Public vanpool systems may meet this requirement 
through obtaining a percentage of accessible vehicles that is reasonable 
in light of demand for them by participants, but this is not required, 
so long as the entity can respond promptly to requests for participation 
in a vanpool with the provision of an accessible van when needed.
    There is no requirement for private vanpools, defined as a voluntary 
arrangement in which the driver is compensated only for expenses.

              Section 37.33  Airport Transportation Systems

    Fixed route transportation systems operated by public airports are 
regarded by this section as fixed route commuter bus systems. As such, 
shuttles among terminals and parking lots, connector systems among the 
airport and a limited number of other local destinations must acquire 
accessible buses, but are not subject to complementary paratransit 
requirements. (If a public airport operates a demand responsive system 
for the general public, it would be subject to the rules for demand 
responsive systems for the general public.)
    It should be noted that this section applies only to transportation 
services that are operated by public airports themselves (or by private 
contractors who stand in their shoes). When a regular urban mass transit 
system serves the airport, the airport is simply one portion of its 
service area, treated for purposes of this rule like the rest of its 
service area.
    Virtually all airports are served by taxi companies, who are subject 
to Sec. 37.29 at airports as elsewhere. In addition, many airports are 
served by jitney or shuttle systems. Typically, these systems operate in 
a route-deviation or similar variable mode in which there are passenger-
initiated decisions concerning destinations. We view such systems as 
demand responsive transportation operated by private entities primarily 
engaged in the business of transporting people.
    Since many of these operators are small businesses, it may be 
difficult for them to meet equivalency requirements on their own without 
eventually having all or nearly all accessible vehicles, which could 
pose economic problems. One suggested solution to this problem is for 
the operators serving a given airport to form a pool or consortium 
arrangement, in which a number of shared accessible vehicles would meet 
the transportations of individuals with disabilities. As in other forms 
of transportation, such an arrangement would have to provide service in 
a nondiscriminatory way (e.g., in an integrated setting, no higher fares 
for accessible service).

   Section 37.35  Supplemental Service for Other Transportation Modes

    This section applies to a number of situations in which an operator 
of another transportation mode uses bus or other service to connect its 
service with limited other points.
    One instance is when an intercity railroad route is set up such that 
the train stops outside the major urban center which is the actual 
destination for many passengers. Examples mentioned to us include bus 
service run by Amtrak from a stop in Columbus, Wisconsin, to downtown 
Madison, or from San Jose to San Francisco. Such service is fixed route, 
from the train station to a few points in the metropolitan area, with a 
schedule keyed to the train schedule. It would be regarded as commuter 
bus service, meaning that accessible vehicles would have to be acquired 
but complementary paratransit was not required.
    Another instance is one in which a commuter rail operator uses fixed 
route bus service as a dedicated connection to, or extension of, its 
rail service. The service may go to park and ride lots or other 
destinations beyond the vicinity of the rail line. Again, this service 
shares the characteristics of commuter bus service that might be used 
even if the rail line were not present, and does not attempt to be a 
comprehensive mass transit bus service for the area.
    Of course, there may be instances in which a rail operator uses 
demand responsive instead of fixed route service for a purpose of this 
kind. In that case, the demand responsive system requirements of the 
rule would apply.
    Private entities (i.e., those operating places of public 
accommodation) may operate similar systems, as when a cruise ship 
operator provides a shuttle or connector between an airport and the 
dock. This service is covered by the rules governing private entities 
not primarily engaged in the business of transporting people. Fixed 
route or demand responsive rules apply, depending on the characteristics 
of the system involved.
    One situation not explicitly covered in this section concerns ad hoc 
transportation arranged, for instance, by a rail operator when the train 
does not wind up at its intended destination. For example, an Amtrak 
train bound for Philadelphia may be halted at Wilmington by a track 
blockage between the two cities. Usually, the carrier responds by 
providing bus service to the scheduled destination or to the next point 
where rail service can resume.
    The service that the carrier provides in this situation is 
essentially a continuation by other means of its primary service. We 
view the obligation of the rail operator as

[[Page 478]]

being to ensure that all passengers, including individuals with 
disabilities, are provided service to the destination in a 
nondiscriminatory manner. This includes, for instance, providing service 
in the most integrated setting appropriate to the needs of the 
individual and service that gets a passenger with a disability to the 
destination as soon as other passengers.

                    Section 37.37  Other Applications

    The ADA specifically defines ``public entity.'' Anything else is a 
``private entity.'' The statute does not include in this definition a 
private entity that receives a subsidy or franchise from a state or 
local government or is regulated by a public entity. Only through the 
definition of ``operates'' (see discussion of Sec. 37.23) do private 
entities' relationships to public entities subject private entities to 
the requirements for public entities. Consequently, in deciding which 
provisions of the rule to apply to an entity in other than situations 
covered by Sec. 37.23, the nature of the entity--public or private--is 
determinative.
    Transportation service provided by public accommodations is viewed 
as being provided by private entities not primarily engaged in the 
business of transporting people. Either the provisions of this part 
applicable to demand responsive or fixed route systems apply, depending 
on the nature of a specific system at a specific location. The 
distinction between fixed route and demand responsive systems is 
discussed in connection with the definitions section above. It is the 
responsibility of each private entity, in the first instance, to assess 
the nature of each transportation system on a case-by-case basis and 
determine the applicable rules.
    On the other hand, conveyances used for recreational purposes, such 
as amusement park rides, ski lifts, or historic rail cars or trolleys 
operated in museum settings, are not viewed as transportation under this 
rule at all. Other conveyances may fit into this category as well.
    The criterion for determining what requirements apply is whether the 
conveyances are primarily an aspect of the recreational experience 
itself or a means of getting from Point A to Point B. At a theme park, 
for instance, a large roller coaster (though a ``train'' of cars on a 
track) is a public accommodation not subject to this rule; the tram that 
transports the paying customers around the park, with a stop at the 
roller coaster, is a transportation system subject to the ``private, not 
primarily'' provisions of this part.
    Employer-provided transportation for employees is not covered by 
this part, but by EEOC rules under title I of the ADA. (Public entities 
are also subject to DOJ's title II rules with respect to employment.) 
This exclusion from part 37 applies to transportation services provided 
by an employer (whether access to motor pool vehicles, parking shuttles, 
employer-sponsored van pools) that is made available solely to its own 
employees. If an employer provides service to its own employees and 
other persons, such as workers of other employers or customers, it would 
be subject to the requirements of this part from private entities not 
primarily engaged in the business of transporting people or public 
entities, as applicable.
    The rule looks to the private entity actually providing the 
transportation service in question in determining whether the ``private, 
primarily'' or ``private, not primarily'' rules apply. For example, 
Conglomerate, Inc., owns a variety of agribusiness, petrochemical, 
weapons system production, and fast food corporations. One of its many 
subsidiaries, Green Tours, Inc., provides charter bus service for people 
who want to view national parks, old-growth forests, and other 
environmentally significant places. It is probably impossible to say in 
what business Conglomerate, Inc. is primarily engaged, but it clearly is 
not transporting people. Green Tours, Inc., on the other hand, is 
clearly primarily engaged in the business of transporting people, and 
the rule treats it as such.
    On the other hand, when operating a transportation service off to 
the side of to the main business of a public accommodation (e.g., a 
hotel shuttle), the entity as a whole would be considered. Even if some 
dedicated employees are used to provide the service, shuttles and other 
systems provided as a means of getting to, from, or around a public 
accommodation remain solidly in the ``private, not primarily'' category.

                  Subpart C--Transportation Facilities

   Section 37.41  Construction of Transportation Facilities by Public 
                                Entities

    Section 37.41 contains the general requirement that all new 
facilities constructed after January 25, 1992, be accessible to and 
usable by individuals with disabilities. This provision tracks the 
statute closely, and is analogous to a provision in the DOJ regulations 
for private entities. Section 226 of the ADA provides little discretion 
in this requirement.
    The requirement is keyed to construction which ``begins'' after 
January 25, 1992. The regulation defines ``begin'' to mean when a notice 
to proceed order has been issued. This term has a standard meaning in 
the construction industry, as an instruction to the contractor to 
proceed with the work.
    Questions have been raised concerning which standards apply before 
January 26, 1992. There are Federal requirements that apply to all 
recipients of federal money, depending on the circumstances.

[[Page 479]]

    First, if an entity is a Federal recipient and uses Federal dollars 
to construct the facility, regulations implementing section 504 of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), require the recipient to 
comply with the Uniform Federal Accessibility Standards.
    Second, since the Civil Rights Restoration Act of 1987 (Pub. L. 100-
259), an operation of a recipient of federal funds would also have to 
comply with section 504, even though the activity was not paid for with 
Federal funds. Thus, the Uniform Federal Accessibility Standards would 
apply to this construction as well.
    As mentioned above, the Department intends, in the period before 
January 26, 1991, to view compliance with section 504 in light of 
compliance with ADA requirements (this point applies to alterations as 
well as new construction). Consequently, in reviewing requests for 
grants, contract approvals, exemptions, etc., (whether with respect to 
ongoing projects or new, experimental, or one-time efforts), the 
Department will, as a policy matter, seek to ensure compliance with ADA 
standards.

    Section 37.43  Alteration of Transportation Facilities by Public 
                                Entities

    This section sets out the accessibility requirements that apply when 
a public entity undertakes an alteration of an existing facility. In 
general, the section requires that any alteration, to the maximum extent 
feasible, results in the altered area being accessible to and usable by 
individuals with disabilities, including persons who use wheelchairs. 
The provisions follow closely those adopted by the DOJ, in its 
regulations implementing title III of the ADA.
    The section requires specific activities whenever an alteration of 
an existing facility is undertaken.
    First, if the alteration is made to a primary function area, (or 
access to an area containing a primary function), the entity shall make 
the alteration in such a way as to ensure that the path of travel to the 
altered area and the restrooms, telephones and drinking fountains 
servicing the altered area are readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    Second, alterations to drinking fountains, telephones, and restrooms 
do not have to be completed if the cost and scope of making them 
accessible is disproportionate.
    Third, the requirement goes into effect for alterations begun after 
January 25, 1992.
    Fourth, the term ``maximum extent feasible'' means that all changes 
that are possible must be made. The requirement to make changes to the 
maximum extent feasible derives from clear legislative history. The 
Senate Report states--
    The phrase ``to the maximum extent feasible'' has been included to 
allow for the occasional case in which the nature of an existing 
facility is such as to make it virtually impossible to renovate the 
building in a manner that results in its being entirely accessible to 
and usable by individuals with disabilities. In all such cases, however, 
the alteration should provide the maximum amount of physical 
accessibility feasible.
    Thus, for example the term ``to the maximum extent feasible'' should 
be construed as not requiring entities to make building alterations that 
have little likelihood of being accomplished without removing or 
altering a load-bearing structural member unless the load-bearing 
structural member is otherwise being removed or altered as part of the 
alteration. (S. Rept. 101-116, at 68).
    Fifth, primary function means a major activity for which the 
facility is intended. Primary function areas include waiting areas, 
ticket purchase and collection areas, train or bus platforms, baggage 
checking and return areas, and employment areas (with some exceptions 
stated in the rule, for areas used by service personnel that are very 
difficult to access).
    Sixth, ``path of travel'' means a continuous, unobstructed way of 
pedestrian passage by means of which the altered area may be approached, 
entered, and exited, and which connects the altered area with an 
exterior approach and includes restrooms, telephones, and drinking 
fountains serving the altered area. If changes to the path of travel are 
disproportionate, then only those changes which are not disproportionate 
are to be completed.
    Seven, the final rule specifies that costs exceeding 20 percent 
would be disproportionate. This is consistent with the DOJ. In 
determining costs, the Department intends costs to be based on changes 
to the passenger service area that is scheduled for alteration.
    Finally, the Department has defined the term ``begin'', in the 
context of begin an alteration that is subject to the alteration 
provision to mean when a notice to proceed or work order is issued. Two 
terms are used (instead of only notice to proceed in the context of new 
construction) because many alterations may be carried out by the entity 
itself, in which case the only triggering event would be a work order or 
similar authorization to begin.
    In looking at facility concepts like ``disproportionality'' and ``to 
the maximum extent feasible,'' the Department will consider any expenses 
related to accessibility for passengers. It is not relevant to consider 
non-passenger related improvements (e.g., installing a new track bed) or 
to permit ``gold-plating'' (attributing to accessibility costs the 
expense of non-related improvements, such as charging to accessibility 
costs the price of a whole new door, when only adding a new handle to 
the old door was needed for accessibility).

[[Page 480]]

       Section 37.47  Key Stations in Light and Rapid Rail Systems

 Section 37.49  Designation of Responsible Person(s) for Intercity and 
                         Commuter Rail Stations

    This section sets forth a mechanism for determining who bears the 
legal and financial responsibility for accessibility modifications to a 
commuter and/or intercity rail station. The final provision of the 
section is the most important. It authorizes all concerned parties to 
come to their own agreement concerning the allocation of responsibility. 
Such an agreement can allocate responsibility in any way acceptable to 
the parties. The Department strongly encourages parties to come to such 
an agreement.
    In the absence of such an agreement, a statutory/regulatory scheme 
allocates responsibility. In the first, and simplest, situation posed by 
the statute, a single public entity owns more than 50 percent of the 
station. In this case, the public entity is the responsible person and 
nobody else is required to bear any of the responsibility.
    In the second situation, a private entity owns more than 50 percent 
of the station. The private entity need not bear any of the 
responsibility for making the station accessible. A public entity owner 
of the station, who does not operate passenger railroad service through 
the station, is not required to bear any of the responsibility for 
making the station accessible. The total responsibility is divided 
between passenger railroads operating service through the station, on 
the basis of respective passenger boardings. If there is only one 
railroad operating service through the station, it bears the total 
responsibility.
    The Department believes that reference to passenger boardings is the 
most equitable way of dividing responsibility among railroads, since the 
number of people drawn to the station by each is likely to reflect 
``cost causation'' quite closely. The Department notes, however, that, 
as passenger boarding percentages change over time, the portion of 
responsibility assigned to each party also may change. Station 
modifications may involve long-term capital investment and planning, 
while passenger boarding percentages are more volatile. Some railroads 
may stop serving a station, while others may begin service, during the 
period of time before modifications to the station are complete. To help 
accommodate such situations, the rule refers to passenger boardings 
``over the entire period during which the station is made accessible.''
    This language is intended to emphasize that as circumstances change, 
the parties involved have the responsibility to adjust their 
arrangements for cost sharing. For example, suppose Railroad A has 30 
percent of the passenger boardings in year 1, but by year 10 has 60 
percent of the boardings. It would not be fair for Railroad A to pay 
only 30 percent of the costs of station modifications occurring in later 
years. Ultimately, the total cost burden for modifying the station over 
(for example) 20 years would be allocated on the share of the total 
number or boardings attributable to each railroad over the whole 20 year 
period, in order to avoid such unfairness.
    The third, and most complicated, situation is one in which no party 
owns 50 percent of the station. For example, consider the following 
hypothetical situation:

------------------------------------------------------------------------
                                                 Ownership    Boardings
                     Party                       percentage   percentage
------------------------------------------------------------------------
Private freight RR............................           40            0
City..........................................           30            0
Amtrak........................................            0           25
Commuter A....................................           30           50
Commuter B....................................            0           25
------------------------------------------------------------------------

The private freight railroad drops out of the calculation of who is 
responsible. All of the responsibility would be allocated among four 
public entities: the city (a public entity who does not operate railroad 
service), Amtrak, and the two commuter railroads. Half the 
responsibility would go to public entity owners of the station (whether 
or not they are railroads who run passenger service through the 
station). The other half of the responsibility would go to railroads who 
run passenger service through the station (whether or not they are 
station owners).
    On the ownership side of the equation, the city and Commuter A each 
own half of that portion of the station that is not owned by the private 
freight railroad. Therefore, the two parties divide up the ownership 
half of the responsibility equally. Based on their ownership interest, 
each of these two parties bears 25 percent of the responsibility for the 
entire station. Note that, should ownership percentages or owners change 
over the period during which the station is to be made accessible, these 
percentages may change. It is ownership percentage over this entire 
period that ultimately determines the percentage of responsibility.
    On the passenger rail operations side of the equation, 50 percent of 
passenger boardings are attributable to Commuter A and 25 percent each 
to Commuter B and Amtrak. Therefore, half of this portion of the 
responsibility belongs to Commuter A, while a quarter share each goes to 
the other railroads. This means that, based on passenger boardings, 25 
percent of the responsibility goes to Commuter A, 12.5 percent to 
Commuter B, and 12.5 percent to Amtrak. Again, it is the proportion of 
passenger boardings over the entire length of the period during which 
the station is made accessible that ultimately determines the percentage 
of responsibility.

[[Page 481]]

    In this hypothetical, Commuter A is responsible for a total of 50 
percent of the responsibility for the station. Commuter A is responsible 
for 25 percent of the responsibility because of its role as a station 
owner and another 25 percent because of its operation of passenger rail 
service through the station.
    The Department recognizes that there will be situations in which 
application of this scheme will be difficult (e.g., involving problems 
with multiple owners of a station whose ownership percentages may be 
difficult to ascertain). The Department again emphasizes that agreement 
among the parties is the best way of resolving these problems, but we 
are willing to work with the parties to ensure a solution consistent 
with this rule.

          Section 37.51  Key Stations in Commuter Rail Systems

    These sections require that key stations in light, rapid, and 
commuter rail systems be made accessible as soon as practicable, but no 
later than July 26, 1993. Being made accessible, for this purpose, means 
complying with the applicable provisions of appendix A to this part. 
``As soon as practicable'' means that, if modification can be made 
before July 26, 1993, they must be. A rail operator that failed to make 
a station accessible by July 1993 would be in noncompliance with the ADA 
and this rule, except in a case where an extension of time had been 
granted.
    What is a key station? A key station is one designated as such by 
the commuter authority or light/rapid rail operator, through the 
planning process and public participation process set forth in this 
section. The five criteria listed in the regulation are intended to 
guide the selection process but, while the entity must take these 
criteria into account (and this consideration must be reflected in the 
planning process and documents), they are not mandatory selection 
standards. That is, it is not required that every station that meets one 
of the criteria be designated as a key station. Since the criteria are 
not mandatory selection standards, the understanding of their terms is 
also a matter appropriately left to the planning process. A tight, 
legalistic definition is not necessary in the context of factors 
intended for consideration. For instance, what constitutes a major 
activity center or how close a station needs to be to another station to 
not be designated as key depend largely on local factors that it would 
not be reasonable to specify in this rule.
    Given the wide discretion permitted to rail operators in identifying 
key stations, there would be no objection to identifying as a key 
station a new (presumably accessible) station now under construction. 
Doing so would involve consideration of the key station criteria and 
would be subject to the planning/public participation process.
    If an extension to a rail system (e.g., a commuter system) is made, 
such that the system comes to include existing inaccessible stations 
that have not previously been part of the system, the Department 
construes the ADA to require application of key station accessibility in 
such a situation. The same would be true for a new start commuter rail 
system that began operations using existing stations. Key station 
planning, designation of key stations, and with being consistent with 
the ADA would be required. The Department would work with the commuter 
authority involved on a case-by-case basis to determine applicable time 
limits for accessibility, consistent with the time frames of the ADA.
    The entity must develop a compliance plan, subject to the public 
participation and planning process set forth in paragraph (d) of each of 
these sections. Note that this plan must be completed by July 26, 1992, 
not January 26, 1992, as in the case of paratransit plans. The key 
station plans must be submitted to FTA at that time. (The statute does 
not require FTA approval of the plans, however.).
    A rail operator may request an extension of the July 1993 completion 
deadline for accessibility modifications to one or more key stations. 
The extension for light and rapid rail stations can be up to July 2020, 
though two thirds of the key stations (per the legislative history of 
the statute, selected in a way to maximize accessibility to the whole 
system) must be accessible by July 2010.
    Commuter rail stations can be extended up to July 2010.
    Requests for extension of time must be submitted by July 26, 1992. 
FTA will review the requests on a station-by-station basis according to 
the statutory criterion, which is whether making the station accessible 
requires extraordinarily expensive alterations. An extraordinarily 
expensive alteration is raising the entire platform, installing an 
elevator, or making another alteration of similar cost and magnitude. If 
another means of making a station accessible (e.g., installation of a 
mini-high platform in a station where it is not necessary to install an 
elevator or to provide access to the platform for wheelchair users), 
then an extension can be granted only if the rail operator shows that 
the cost and magnitude of the alteration is similar to that of an 
elevator installation or platform raising.
    The rule does not include a specific deadline for FTA consideration 
of an extension request. However, since we are aware that, in the 
absence of an extension request, accessibility must be completed by July 
1993, we will endeavor to complete review of plans as soon as possible, 
to give as much lead time as possible to local planning and 
implementation efforts.

[[Page 482]]

    Once an extension is granted, the extension applies to all 
accessibility modifications in the station. However, the rail operator 
should not delay non-extraordinarily expensive modifications to the 
station. The key station plan and any extension request should include a 
schedule for phasing in non-extraordinarily expensive modifications to 
the station. For example, even if a key station is not going to be 
accessible to wheelchair users for 15 years, pending the installation of 
an elevator, the rail operator can improve its accessibility to persons 
with visual impairments by installing tactile strips.
    An extension cannot be granted except for a particular station which 
needs an extraordinarily expensive modification. An extension cannot be 
granted non-extraordinarily expensive changes to Station B because the 
extraordinarily expensive changes to Station A will absorb many 
resources. Non-extraordinarily expensive changes, however costly 
considered collectively for a system, are not, under the statute, 
grounds for granting an extension to one or more stations or the whole 
system. Only particular stations where an extraordinarily expensive 
modification must be made qualify for extensions.
    The FTA Administrator can approve, modify, or disapprove any request 
for an extension. For example, it is not a forgone conclusion that a 
situation for which an extension is granted will have the maximum 
possible extension granted. If it appears that the rail operator can 
make some stations accessible sooner, FTA can grant an extension for a 
shorter period (e.g., 2005 for a particular station rather than 2010).

         Section 37.53  Exception for New York and Philadelphia

    Consistent with the legislative history of the ADA, this section 
formally recognizes the selection of key stations in two identified 
litigation settlement agreements in New York and Philadelphia as in 
compliance with the ADA. Consequently, the entities involved can limit 
their key station planning process to issues concerning the timing of 
key station accessibility. The section references also Sec. 37.9, which 
provides that key station accessibility alterations which have already 
been made, or which are begun before January 26, 1992, and which conform 
to specified prior standards, do not have to be re-modified. On the 
other hand, alterations begun after January 25, 1992 (including 
forthcoming key station modifications under the New York and 
Philadelphia agreements), must meet the requirements of appendix A to 
this part.
    This is an exception only for the two specified agreements. There 
are no situations in which other cities can take advantage of this 
provision. Nor are the provisions of the two agreements normative for 
other cities. Other cities must do their own planning, with involvement 
from local citizens, and cannot rely on agreements unique to New York 
and Philadelphia to determine the appropriate number of percentage of 
key stations or other matters.

                   Section 37.57  Required Cooperation

    This section implements Sec. 242(e)(2)(C) of the ADA, which treats 
as discrimination a failure, by an owner or person in control of an 
intercity rail station, to provide reasonable cooperation to the 
responsible persons' efforts to comply with accessibility requirements. 
For example, the imposition by the owner of an unreasonable insurance 
bond from the responsible person as a condition of making accessibility 
modifications would violate this requirement. See H. Rept. 101-485 at 
53.
    The statute also provides that failure of the owner or person in 
control to cooperate does not create a defense to a discrimination suit 
against the responsible person, but the responsible person would have a 
third party action against the uncooperative owner or person in control. 
The rule does not restate this portion of the statute in the regulation, 
since it would be implemented by the courts if such an action is 
brought. Since cooperation is also a regulatory requirement, however, 
the Department could entertain a section 504 complaint against a 
recipient of Federal funds who failed to cooperate.
    The House Energy and Commerce Committee provided as an example of an 
action under this provision a situation in which a failure to cooperate 
leads to a construction delay, which in turn leads to a lawsuit by an 
individual with disabilities against the responsible person for missing 
an accessibility deadline. The responsible person could not use the lack 
of cooperation as a defense in the lawsuit, but the uncooperative party 
could be made to indemnify the responsible person for damages awarded 
the plaintiff. Also, a responsible person could obtain an injunction to 
force the recalcitrant owner or controller of the station to permit 
accessibility work to proceed. (Id.)
    This provision does not appear to be intended to permit a 
responsible person to seek contribution for a portion of the cost of 
accessibility work from a party involved with the station whom the 
statute and Sec. 37.49 do not identify as a responsible person. It 
simply provides a remedy for a situation in which someone impedes the 
responsible person's efforts to comply with accessibility obligations.

[[Page 483]]

Section 37.59  Differences in Accessibility Completion Date Requirements

    Portions of the same station may have different accessibility 
completion date requirements, both as the result of different statutory 
time frames for different kinds of stations and individual decisions 
made on requests for extension. The principle at work in responding to 
such situations is that if part of a station may be made accessible 
after another part, the ``late'' part of the work should not get in the 
way of people's use of modifications resulting from the ``early'' part.
    For example, the commuter part of a station may have to be made 
accessible by July 1993 (e.g., there is no need to install an elevator, 
and platform accessibility can be achieved by use of a relatively 
inexpensive mini-high platform). The Amtrak portion of the same station, 
by statute, is required to be accessible as soon as practicable, but no 
later than July 2010. If there is a common entrance to the station, that 
commuter rail passengers and Amtrak passengers both use, or a common 
ticket counter, it would have to be accessible by July 1993. If there 
were a waiting room used by Amtrak passengers but not commuter 
passengers (who typically stand and wait on the platform at this 
station), it would not have to be accessible by July 1993, but if the 
path from the common entrance to the commuter platform went through the 
waiting room, the path would have to be an accessible path by July 1993.

Section 37.61  Public Transportation Programs and Activities in Existing 
                               Facilities

    This section implements section 228(a) of the ADA and establishes 
the general requirement for entities to operate their transportation 
facilities in a manner that, when viewed in its entirety, is accessible 
to and usable by individuals with disabilities. The section clearly 
excludes from this requirement access by persons in wheelchairs, unless 
these changes would be necessitated by the alterations or key station 
provisions.
    This provision is intended to cover activities and programs of an 
entity that do not rise to the level of alteration. Even if an entity is 
not making alterations to a facility, it has a responsibility to conduct 
its program in an accessible manner. Examples of possible activities 
include user friendly farecards, schedules, of edge detection on rail 
platforms, adequate lighting, telecommunication display devices (TDDs) 
or text telephones, and other accommodations for use by persons with 
speech and hearing impairments, signage for people with visual 
impairments, continuous pathways for persons with visual and ambulatory 
impairments, and public address systems and clocks.
    The Department did not prescribe one list of things that would be 
appropriate for all stations. For example, we believe that tactile 
strips are a valuable addition to platforms which have drop-offs. We 
also believe that most larger systems, to the extent they publish 
schedules, should make those schedules readily available in alternative 
formats. We encourage entities to find this another area which benefits 
from its commitment to far-reaching public participation efforts.

    Subpart D--Acquisition of Accessible Vehicles by Public Entities

  Section 37.71  Purchase or Lease of New Non-Rail Vehicles by Public 
                 Entities Operating Fixed Route Systems

    This section sets out the basic acquisition requirements for a 
public entity purchasing a new vehicle. Generally, the section requires 
any public entity who purchases or leases a new vehicle to acquire an 
accessible vehicle. There is a waiver provision if lifts are unavailable 
and these provisions track the conditions in the ADA. One statutory 
condition, that the public entity has made a good faith effort to locate 
a qualified manufacturer to supply the lifts, presumes a direct 
relationship between the transit provider and the lift manufacturer. In 
fact, it is the bus manufacturer, rather than the transit provider 
directly, who would have the task of looking for a supplier of lifts to 
meet the transit provider's specifications. The task must still be 
performed, but the regulation does not require the transit provider to 
obtain actual information about available lifts. Rather the bus 
manufacturer obtains the information and provides this assurance to the 
entity applying for the waiver, and the entity may rely on this 
representation. More specifically, the regulation requires that each 
waiver request must include a copy of the written solicitation (showing 
that it requested lift-equipped vehicles) and written responses from 
lift manufacturers to the vehicle manufacturer documenting their 
inability to provide the lifts. The information from the lift 
manufacturer must also include when the lifts will be available.
    In addition, the waiver request must include copies of 
advertisements in trade publications and inquiries to trade associations 
seeking lifts for the buses. The public entity also must include a full 
justification for the assertion that a delay in the bus procurement 
sufficient to obtain a lift-equipped bus would significantly impair 
transportation services in the community. There is no length of time 
that would be a per se delay constituting a ``significant impairment''. 
It will be more difficult to obtain a waiver if a relatively short 
rather than relatively

[[Page 484]]

lengthy delay is involved. A showing of timetables, absent a showing of 
significant impairment of actual transit services, would not form a 
basis for granting a waiver.
    Any waiver granted by the Department under this provision will be a 
conditional waiver. The conditions are intended to ensure that the 
waiver provision does not create a loophole in the accessible vehicle 
acquisition requirement that Congress intended to impose. The ADA 
requires a waiver to be limited in duration and the rule requires a 
termination date to be included. The date will be established on the 
basis of the information the Department receives concerning the 
availability of lifts in the waiver request and elsewhere. In addition, 
so that a waiver does not become open-ended, it will apply only to a 
particular procurement. If a transit agency wants a waiver for a 
subsequent delivery of buses in the procurement, or another procurement 
entirely, it will have to make a separate waiver request.
    For example, if a particular order of buses is delivered over a 
period of time, each delivery would be the potential subject of a waiver 
request. First, the entity would request a waiver for the first shipment 
of buses. If all of the conditions are met, the waiver would be granted, 
with a date specified to coincide with the due date of the lifts. When 
the lifts become available those buses would have to be retrofitted with 
the lifts. A subsequent delivery of buses--on the same order--would have 
to receive its own waiver, subject to the same conditions and 
specifications of the first waiver.
    The purpose of the waiver, as the Department construes it, is to 
address a situation in which (because of a sudden increase in the number 
of lift-equipped buses requested) lift manufacturers are unable to 
produce enough lifts to meet the demand in a timely fashion.

  Section 37.73  Purchase or Lease of Used Non-Rail Vehicles by Public 
                 Entities Operating a Fixed Route System

    The basic rule is that an acquisition of a used vehicle would have 
to be for an accessible vehicle.
    There is an exception, however, for situations in which the transit 
provider makes a good faith effort to obtain accessible used vehicles 
but does not succeed in finding them. The ADA requires transit agencies 
to purchase accessible used vehicles, providing a ``demonstrated good 
faith efforts'' exception to the requirement. The reports of the Senate 
Committee on Labor and Human Resources and the House Committee on 
Education and Labor offered the following guidance on what ``good faith 
efforts'' involve:
    The phrase ``demonstrated good faith efforts'' is intended to 
require a nationwide search and not a search limited to a particular 
region. For instance, it would not be enough for a transit operator to 
contact only the manufacturer where the transit authority usually does 
business to see if there are accessible used buses. It involves the 
transit authority advertising in a trade magazine, i.e., Passenger 
Transport, or contacting the transit trade association, American Public 
Transit Association (APTA), to determine whether accessible used 
vehicles are available. It is the Committee's expectation that as the 
number of buses with lifts increases, the burden on the transit 
authority to demonstrate its inability to purchase accessible vehicles 
despite good faith efforts will become more and more difficult to 
satisfy. S. Rept. 101-116 at 49; H. Rept. 101-485 at 90.
    Consistent with this guidance, this section requires that good faith 
efforts include specifying accessible vehicles in bid solicitations. The 
section also requires that the entity retain for two years documentation 
of that effort, and that the information be available to FTA and the 
public.
    It does not meet the good faith efforts requirement to purchase 
inaccessible, rather than accessible, used buses, just because the 
former are less expensive, particularly if the difference is a 
difference attributable to the presence of a lift. There may be 
situations in which good faith efforts involve buying fewer accessible 
buses in preference to more inaccessible buses.
    The public participation requirements involved in the development of 
the paratransit plans for all fixed route operators requires an ongoing 
relationship, including extensive outreach, to the community likely to 
be using its accessible service. We believe that it will be difficult to 
comply with the public participation requirements and not involve the 
affected community in the decisions concerning the purchase or lease of 
used accessible vehicles.
    There is an exception to these requirements for donated vehicles. 
Not all ``zero dollar'' transfers are donations, however. The 
legislative history to this provision provides insight.
    It is not the Committee's intent to make the vehicle accessibility 
provisions of this title applicable to vehicles donated to a public 
entity. The Committee understands that it is not usual to donate 
vehicles to a public entity. However, there could be instances where 
someone could conceivably donate a bus to a public transit operator in a 
will. In such a case, the transit operators should not be prevented from 
accepting a gift.
    The Committee does not intend that this limited exemption for 
donated vehicles be used to circumvent the intent of the ADA. For 
example, a local transit authority could not arrange to be the recipient 
of donated inaccessible buses. This would be a violation of the ADA. S. 
Rpt. 101-116, at 46; H. Rpt. 101-486, at 87.

[[Page 485]]

    Entities interested in accepting donated vehicles must submit a 
request to FTA to verify that the transaction is a donation.
    There is one situation, in which a vehicle has prior use is not 
treated as a used vehicle. If a vehicle has been remanufactured, and it 
is within the period of the extension of its useful life, it is not 
viewed as a used vehicle (see H. Rept. 101-485, Pt 1 at 27). During this 
period, such a vehicle may be acquired by another entity without going 
through the good faith efforts process. This is because, at the time of 
its remanufacture, the bus would have been made as accessible if 
feasible. When the vehicle has completed its extended useful life (e.g., 
the beginning of year six when its useful life has extended five years), 
it becomes subject to used bus requirements.

Section 37.75  Remanufacture of Non-Rail Vehicles and Purchase or Lease 
 of Remanufactured Non-rail Vehicles by Public Entities Operating Fixed 
                              Route Systems

    This section tracks the statute closely, and contains the following 
provisions. First, it requires any public entity operating a fixed route 
system to purchase an accessible vehicle if the acquisition occurs after 
August 25, 1990, if the vehicle is remanufactured after August 25, 1990, 
or the entity contracts or undertakes the remanufacture of a vehicle 
after August 25, 1990. The ADA legislative history makes it clear that 
remanufacture is to include changes to the structure of the vehicle 
which extend the useful life of the vehicle for five years. It clearly 
is not intended to capture things such as engine overhauls and the like.
    The term remanufacture, as used in the ADA context, is different 
from the use of the term in previously issued FTA guidance. The term has 
a specific meaning under the ADA: there must be structural work done to 
the vehicle and the work must extend the vehicle's useful life by five 
years.
    The ADA imposes no requirements on what FTA traditionally considers 
bus rehabilitation. Such work involves rebuilding a bus to original 
specifications and focuses on mechanical systems and interiors. Often 
this work includes replacing components. It is less extensive than 
remanufacture.
    The statute, and the rule, includes an exception for the 
remanufacture of historical vehicles. This exception applies to the 
remanufacture of or purchase of a remanufactured vehicle that (1) is of 
historic character; (2) operates solely on a segment of a fixed route 
system which is on the National Register of Historic Places; and (3) 
making the vehicle accessible would significantly alter the historic 
character of the vehicle. The exception only extends to the 
remanufacture that would alter the historic character of the vehicle. 
All modifications that can be made without altering the historic 
character (such as slip resistant flooring) must be done.

  Section 37.77  Purchase or Lease of New Non-Rail Vehicles by Public 
  Entities Operating a Demand Responsive System for the General Public

    Section 224 of the ADA requires that a public entity operating a 
demand responsive system purchase or lease accessible new vehicles, for 
which a solicitation is made after August 25, 1990, unless the system, 
when viewed in its entirety, provides a level of service to individuals 
with disabilities, including individuals who use wheelchairs, equivalent 
to the level of service provided to individuals without disabilities. 
This section is the same as the October 4, 1990 final rule which 
promulgated the immediately effective acquisition requirements of the 
ADA.
    The Department has been asked to clarify what ``accessible when 
viewed in its entirety'' means in the context of a demand responsive 
system being allowed to purchase an inaccessible vehicle. First, it is 
important to note that this exception applies only to demand responsive 
systems (and not fixed route systems). The term ``equivalent service'' 
was discussed during the passage of the ADA. Material from the 
legislative history indicates that ``when viewed in its entirety/
equivalent service'' means that ``when all aspects of a transportation 
system are analyzed, equal opportunities for each individual with a 
disability to use the transportation system must exist. (H. Rept. 101-
184, Pt. 2, at 95; S. Rept. 101-116 at 54). For example, both reports 
said that ``the time delay between a phone call to access the demand 
responsive system and pick up the individual is not greater because the 
individual needs a lift or ramp or other accommodation to access the 
vehicle.'' (Id.)
    Consistent with this, the Department has specified certain service 
criteria that are to be used when determining if the service is 
equivalent. As in previous rulemakings on this provision, the standards 
(which include service area, response time, fares, hours and days of 
service, trip purpose restrictions, information and reservations 
capability, and other capacity constraints) are not absolute standards. 
They do not say, for example, that a person with a disability must be 
picked up in a specified number of hours. The requirement is that there 
must be equivalent service for all passengers, whether or not they have 
a disability. If the system provides service to persons without 
disabilities within four hours of a call for service, then passengers 
with disabilities must be afforded the same service.
    The Department has been asked specifically where an entity should 
send its ``equivalent level of service'' certifications. We provide the 
following: Equivalent level of service certifications should be 
submitted to the state program office if you are a public entity 
receiving FTA funds through the state.

[[Page 486]]

All other entities should submit their equivalent level of service 
certifications to the FTA regional office (listed in appendix B of this 
part). Certifications must be submitted before the acquisition of the 
vehicles.
    Paragraph (e) of this section authorizes a waiver for the 
unavailability of lifts. Since demand responsive systems need not 
purchase accessible vehicles if they can certify equivalent service, the 
Department has been asked what this provision is doing in this section.
    Paragraph (e) applies in the case in which an entity operates a 
demand responsive system, which is not equivalent, and the entity cannot 
find accessible vehicles to acquire. In this case, the waiver provisions 
applicable to a fixed route entity purchasing or leasing inaccessible 
new vehicles applies to the demand responsive operator as well.

Section 37.79  Purchase or Lease of New Rail Vehicles by Public Entities 
                  Operating Rapid or Light Rail Systems

    This section echoes the requirement of Sec. 37.71--all new rail cars 
must be accessible.

    Section 37.81  Purchase or Lease of Used Rail Vehicles by Public 
             Entities Operating Rapid or Light Rail Systems

    This section lays out the requirements for a public entity acquiring 
a used rail vehicle. The requirements and standards are the same as 
those specified for non-rail vehicles in Sec. 37.73. While we recognize 
it may create difficulties for entities in some situations, the statute 
does not include any extension or short-term leases. The Department will 
consider, in a case-by-case basis, how the good faith efforts 
requirement would apply in the case of an agreement between rail 
carriers to permit quick-response, short-term leases of cars over a 
period of time.

 Section 37.83  Remanufacture of Rail Vehicles and Purchase or Lease of 
Remanufactured Rail Vehicles by Public Entities Operating Rapid or Light 
                               Rail System

    This section parallels the remanufacturing section for buses, 
including the exception for historical vehicles. With respect to an 
entity having a class of historic vehicles that may meet the standards 
for the historic vehicle exception (e.g., San Francisco cable cars), the 
Department would not object to a request for application of the 
exception on a system-wide, as approved to car-by-car, basis.

Section 37.85  Purchase or Lease of New Intercity and Commuter Rail Cars

    This section incorporates the statutory requirement that new 
intercity and commuter rail cars be accessible. The specific 
accessibility provisions of the statute (for example, there are slightly 
different requirements for intercity rail cars versus commuter rail 
cars) are specified in part 38 of this regulation. These standards are 
adopted from the voluntary guidelines issues by the Access Board. The 
section basically parallels the acquisition requirements for buses and 
other vehicles. It should be noted that the definition of commuter rail 
operator clearly allows for additional operators to qualify as commuter, 
since the definition describes the functional characteristics of an 
operator, as well as listing existing commuter rail operators.
    We would point out that the ADA applies this requirement to all new 
vehicles. This includes not only vehicles and systems that currently are 
being operated in the U.S., but new, experimental, or imported vehicles 
and systems. The ADA does not stand in the way of new technology, but it 
does require that new technology, and the benefits it brings, be 
accessible to all persons, including those with disabilities. This point 
applies to all vehicle acquisition provisions of this regulation, 
whether for rail or non-rail, private or public, fixed route or demand 
responsive vehicles and systems.

  Section 37.87  Purchase or Lease of Used Intercity and Commuter Rail 
                                  Cars

    The section also parallels closely the requirements in the ADA for 
the purchase or lease of accessible used rail vehicles. We acknowledge 
that, in some situations, the statutory requirement for to make good 
faith efforts to acquire accessible used vehicles may create 
difficulties for rail operators attempting to lease rail cars quickly 
for a short time (e.g., as fill-ins for cars which need repairs). In 
some cases, it may be possible to mitigate these difficulties through 
means such as making good faith efforts with respect to an overall 
agreement between two rail operators to make cars available to one 
another when needed, rather than each time a car is provided under such 
an agreement.

    Section 37.89  Remanufacture of Intercity and Commuter Rail Cars

    This section requires generally that remanufactured cars be made 
accessible, to the maximum extent feasible. Feasible is defined in 
paragraph (c) of the section to be ``unless an engineering analysis 
demonstrates that remanufacturing the car to be accessible would have a 
significant adverse effect on the structural integrity of the car.'' 
Increased cost is not a reason for viewing other sections of this 
subpart concerning remanufactured vehicles.
    In addition, this section differs from the counterpart sections for 
non-rail vehicles and light and rapid rail vehicles in two ways. First, 
the extension of useful life needed to trigger the section is ten rather 
than five

[[Page 487]]

years. Second, there is no historic vehicle exception. Both of these 
differences are statutory.
    Remanufacture of vehicles implies work that extends their expected 
useful life of the vehicle. A mid-life overhaul, not extending the total 
useful life of the vehicle, would not be viewed as a remanufacture of 
the vehicle.

                  Section 37.93 One Car Per Train Rule

    This section implements the statutory directive that all rail 
operators (light, rapid, commuter and intercity) have at least one car 
per train accessible to persons with disabilities, including individuals 
who use wheelchairs by July 26, 1995. (See ADA sections 242(a)(1), 
242(b)(1), 228(b)(1).) Section 37.93 contains this general requirement. 
In some cases, entities will meet the one-car-per train rule through the 
purchase of new cars. In this case, since all new rail vehicles have to 
be accessible, compliance with this provision is straightforward.
    However, certain entities may not be purchasing any new vehicles by 
July 26, 1995, or may not be purchasing enough vehicles to ensure that 
one car per train is accessible. In these cases, these entities will 
have to retrofit existing cars to meet this requirement. What a 
retrofitted car must look like to meet the requirement has been decided 
by the Access Board. These standards are contained in part 38 of this 
rule.
    We would point that, consistent with the Access Board standards, a 
rail system using mini-high platforms or wayside lifts is not required, 
in most circumstances, to ``double-stop'' in order to give passengers a 
chance to board the second or subsequent car in a train at the mini-high 
platform or way-side lift. The only exception to this would be a 
situation in which all the wheelchair positions spaces in the first car 
were occupied. In this case, the train would have to double-stop to 
allow a wheelchair user to board, rather than passing the person by when 
there was space available in other than the first car.

           Section 37.95  Ferries and Other Passenger Vessels

    Although at this time there are no specific requirements for 
vessels, ferries and other passenger vessels operated by public entities 
are subject to the requirements of Sec. 37.5 of this part and applicable 
requirements of 28 CFR part 35, the DOJ rule under title II of the ADA.

    Subpart E--Acquisition of Accessible Vehicles by Private Entities

   Section 37.101  Purchase or Lease of Non-Rail Vehicles by Private 
  Entities Not Primarily Engaged in the Business of Transporting People

 Section 37.103  Purchase or Lease of New Non-Rail Vehicles by Private 
    Entities Primarily Engaged in the Business of Transporting People

               Section 37.105  Equivalent Service Standard

    The first two sections spell out the distinctions among the 
different types of service elaborated in the ADA and requirements that 
apply to them. For clarity, we provide the following chart.

               Private Entities ``Not Primarily Engaged''
------------------------------------------------------------------------
           System type             Vehicle capacity       Requirement
------------------------------------------------------------------------
Fixed Route.....................  Over 16...........  Acquire accessible
                                                       vehicle.
Fixed Route.....................  16 or less........  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Demand Responsive...............  Over 16...........  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Demand Responsive...............  16 or less........  Equivalency--see
                                                       Sec.  37.171.
------------------------------------------------------------------------


                 Private Entities ``Primarily Engaged''
------------------------------------------------------------------------
                                     Vehicle type/
           System type                 capacity           Requirement
------------------------------------------------------------------------
Fixed route.....................  All new vehicles    Acquire accessible
                                   except auto, van    vehicle.
                                   with less than 8
                                   capacity, or over
                                   the road bus.
Demand responsive...............  Same as above.....  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Either fixed route or demand      New vans with a     Same as above.
 responsive.                       capacity of less
                                   than 8.
------------------------------------------------------------------------

    Equivalency, for purposes of these requirements, is spelled out in 
Sec. 37.105. It is important to note that some portions of this section 
(referring to response time, reservations capacity, and restrictions on 
trip purpose) apply only to demand responsive systems. Another provision 
(schedules/headways) applies only to fixed route systems. This is 
because these points of comparison apply only to one or the other type 
system. The remaining provisions apply to both kinds of systems.

[[Page 488]]

    In applying the provisions this section, it is important to note 
that they are only points of comparison, not substantive criteria. For 
example, unlike the response time criterion of Sec. 37.131, this section 
does not require that a system provide any particular response time. All 
it says is that, in order for there to be equivalency, if the demand 
responsive system gets a van to a non-disabled person in 2 hours, or 8 
hours, or a week and a half after a call for service, the system must 
get an accessible van to a person with a disability in 2 hours, or 8 
hours, or a week and a half.
    The vehicle acquisition and equivalency provisions work together in 
the following way. A private entity is about to acquire a vehicle for a 
transportation service in one of the categories to which equivalency is 
relevant. The entity looks at its present service (considered without 
regard to the vehicle it plans to acquire). Does the present service 
meet the equivalency standard? (In answering this question, the point of 
reference is the next potential customer who needs an accessible 
vehicle. The fact that such persons have not called in the past is 
irrelevant). If not, the entity is required to acquire an accessible 
vehicle. If so, the entity may acquire an accessible or an inaccessible 
vehicle. This process must be followed every time the entity purchases 
or leases a vehicle. Given changes in the mixes of both customers and 
vehicles, the answer to the question about equivalency will probably not 
be the same for an entity every time it is asked.
    One difference between the requirements for ``private, not 
primarily'' and ``private, primarily'' entities is that the requirements 
apply to all vehicles purchased or leased for the former, but only to 
new vehicles for the latter. This means that entities in the latter 
category are not required to acquire accessible vehicles when they 
purchase or lease used vehicles. Another oddity in the statute which 
entities should note is that the requirement for ``private, primarily'' 
entities to acquire accessible vans with less than eight passenger 
capacity (or provide equivalent service) does not become effective until 
after February 25, 1992 (This also date also applies no private entities 
``primarily engaged'' which purchase passenger rail cars). All other 
vehicle acquisition requirements became effective after August 25, 1990.
    The Department views the line between ``private, primarily'' and 
``private, not primarily'' entities as being drawn with respect to the 
bus, van, or other service which the entity is providing. For example, 
there is an obvious sense in which an airline or car rental company is 
primarily engaged in the business of transporting people. If the airline 
or car rental agency runs a shuttle bus from the airport terminal to a 
downtown location or a rental car lot, however, the Department views 
that shuttle service as covered by the ``private, not primarily'' 
requirements of the rule (see discussion of the Applicability sections 
above). This is because the airline or car rental agency is not 
primarily engaged in the business of providing transportation by bus or 
van. The relationship of the bus or van service to an airline's main 
business is analogous to that of a shuttle to a hotel. For this purpose, 
it is of only incidental interest that the main business of the airline 
is flying people around the country instead of putting them up for the 
night.

           Section 37.109  Ferries and Other Passenger Vessels

    Although at this time there are no specific requirements for 
vessels, ferries and other passenger vessels operated by private 
entities are subject to the requirements of Sec. 37.5 of this part and 
applicable requirements of 28 CFR part 36, the DOJ rule under title III 
of the ADA.

      Subpart F--Paratransit as a Complement to Fixed Route Service

  Section 37.121  Requirement for Comparable Complementary Paratransit 
                                 Service

    This section sets forth the basic requirement that all public 
entities who operate a fixed route system have to provide paratransit 
service that is both comparable and complementary to the fixed route 
service. By ``complementary,'' we mean service that acts as a ``safety 
net'' for individuals with disabilities who cannot use the fixed route 
system. By ``comparable,'' we mean service that meets the service 
criteria of this subpart.
    This requirement applies to light and rapid rail systems as well as 
to bus systems, even when rail and bus systems share all or part of the 
same service area. Commuter bus, commuter rail and intercity rail 
systems do not have to provide paratransit, however. The remaining 
provisions of subpart F set forth the details of the eligibility 
requirements for paratransit, the service criteria that paratransit 
systems must meet, the planning process involved, and the procedures for 
applying for waivers based on undue financial burden.
    Paratransit may be provided by a variety of modes. Publicly operated 
dial-a-ride vans, service contracted out to a private paratransit 
provider, user-side subsidy programs, or any combination of these and 
other approaches is acceptable. Entities who feel it necessary to apply 
for an undue financial burden waiver should be aware that one of the 
factors FTA will examine in evaluating waiver requests is efficiencies 
the provider could realize in its paratransit service. Therefore, it is 
important for entities in this situation to use the most economical and 
efficient methods of providing paratransit they can devise.

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    It is also important for them to establish and consistently 
implement strong controls against fraud, waste and abuse in the 
paratransit system. Fraud, waste and abuse can drain significant 
resources from a system and control of these problems is an important 
``efficiency for any paratransit system. It will be difficult for the 
Department to grant an undue financial burden waiver to entities which 
do not have a good means of determining if fraud, waste and abuse are 
problems and adequate methods of combating these problems, where they 
are found to exist.

         Section 37.123  ADA Paratransit Eligibility--Standards

                           General Provisions

    This section sets forth the minimum requirements for eligibility for 
complementary paratransit service. All fixed route operators providing 
complementary paratransit must make service available at least to 
individuals meeting these standards. The ADA does not prohibit providing 
paratransit service to anyone. Entities may provide service to 
additional persons as well. Since only service to ADA eligible persons 
is required by the rule, however, only the costs of this service can be 
counted in the context of a request for an undue financial burden 
waiver.
    When the rule says that ADA paratransit eligibility shall be 
strictly limited to persons in the eligible categories, then, it is not 
saying that entities are in any way precluded from serving other people. 
It is saying that the persons who must be provided service, and counting 
the costs of providing them service, in context of an undue burden 
waiver, are limited to the regulatory categories.

                         Temporary Disabilities

    Eligibility may be based on a temporary as well as a permanent 
disability. The individual must meet one of the three eligibility 
criteria in any case, but can do so for a limited period of time. For 
example, if an individual breaks both legs and is in two casts for 
several weeks, becomes a wheelchair user for the duration, and the bus 
route that would normally take him to work is not accessible, the 
individual could be eligible under the second eligibility category. In 
granting eligibility to such a person, the entity should establish an 
expiration date for eligibility consistent with the expected end of the 
period disability.

                        Trip-by-Trip Eligibility

    A person may be ADA paratransit eligible for some trips but not 
others. Eligibility does not inhere in the individual or his or her 
disability, as such, but in meeting the functional criteria of inability 
to use the fixed route system established by the ADA. This inability is 
likely to change with differing circumstances.
    For example, someone whose impairment-related condition is a severe 
sensitivity to temperatures below 20 degrees is not prevented from using 
fixed route transit when the temperature is 75 degrees. Someone whose 
impairment-related condition is an inability to maneuver a wheelchair 
through snow is not prevented from using fixed route transit when there 
is no snow on the ground. Someone with a cognitive disability may have 
learned to take the same bus route to a supported employment job every 
day. This individual is able to navigate the system for work purposes 
and therefore would not be eligible for paratransit for work trips. But 
the individual may be unable to get to other destinations on the bus 
system without getting lost, and would be eligible for paratransit for 
non-work trips. Someone who normally drives his own car to a rail system 
park and ride lot may have a specific impairment related condition 
preventing him from getting to the station when his car is in the shop. 
A person who can use accessible fixed route service can go to one 
destination on an accessible route; another destination would require 
the use of an inaccessible route. The individual would be eligible for 
the latter but not the former.
    In many cases, though the person is eligible for some trips but not 
others, eligibility determinations would not have to be made literally 
on a trip-by-trip basis. It may often be possible to establish the 
conditions on eligibility as part of the initial eligibility 
determination process. Someone with a temperature sensitivity might be 
granted seasonal eligibility. Somebody who is able to navigate the 
system for work but not non-work trips could have this fact noted in his 
or her eligibility documentation. Likewise, someone with a variable 
condition (e.g., multiple sclerosis, HIV disease, need for kidney 
dialysis) could have their eligibility based on the underlying 
condition, with paratransit need for a particular trip dependent on 
self-assessment or a set of medical standards (e.g., trip within a 
certain amount of time after a dialysis session). On the other hand, 
persons in the second eligibility category (people who can use 
accessible fixed route service where it exists) would be given service 
on the basis of the particular route they would use for a given trip.
    Because entities are not precluded from providing service beyond 
that required by the rule, an entity that believes it is too difficult 
to administer a program of trip-by-trip eligibility is not required to 
do so. Nothing prevents an entity from providing all requested trips to 
a person whom the ADA requires to receive service for only some trips. 
In this case, if the entity intends to request an undue financial burden 
waiver, the entity, as provided in the undue burden provisions of

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this rule, must estimate, by a statistically valid technique, the 
percentage of its paratransit trips that are mandated by the ADA. Only 
that percentage of its total costs will be counted in considering the 
undue burden waiver request.

                         Category 1  Eligibility

    The first eligibility category includes, among others, persons with 
mental or visual impairments who, as a result, cannot ``navigate the 
system.'' This eligibility category includes people who cannot board, 
ride, or disembark from an accessible vehicle ``without the assistance 
of another individual.'' This means that, if an individual needs an 
attendant to board, ride, or disembark from an accessible fixed route 
vehicles (including ``navigating the system''), the individual is 
eligible for paratransit. One implication of this language is that an 
individual does not lose paratransit eligibility based on ``inability to 
navigate the system'' because the individual chooses to travel with a 
friend on the paratransit system (even if the friend could help the 
person navigate the fixed route system). Eligibility in this category is 
based on ability to board, ride, and disembark independently.
    Mobility training (e.g., of persons with mental or visual 
impairments) may help to improve the ability of persons to navigate the 
system or to get to a bus stop. Someone who is successfully mobility 
trained to use the fixed route system for all or some trips need not be 
provided paratransit service for those trips. The Department encourages 
entities to sponsor such training as a means of assisting individuals to 
use fixed route rather than paratransit.

                         Category 2  Eligibility

    The second eligibility criterion is the broadest, with respect to 
persons with mobility impairments, but its impact should be reduced over 
time as transit systems become more accessible. This category applies to 
persons who could use accessible fixed route transportation, but 
accessible transportation is not being used at the time, and on the 
route, the persons would travel. This concept is route based, not system 
based.
    Speaking first of bus systems, if a person is traveling from Point A 
to Point B on route 1, and route 1 is accessible, the person is not 
eligible for paratransit for the trip. This is true even though other 
portions of the system are still inaccessible. If the person is 
traveling from Point A to Point C on route 2, which is not accessible, 
the person is eligible for that trip. If the person is traveling from 
Point A to Point B on accessible route 1, with a transfer at B to go on 
inaccessible route 3 to Point D, then the person is eligible for the 
second leg of the trip. (The entity could choose to provide a 
paratransit trip from A to D or a paratransit or on-call bus trip from B 
to D.)
    For purposes of this standard, we view a route as accessible when 
all buses scheduled on the route are accessible. Otherwise, it is 
unlikely that an accessible vehicle could be provided ``within a 
reasonable period of [a] time'' when the individual wants to travel, as 
the provision requires. We recognize that some systems' operations may 
not be organized in a way that permits determining whether a given route 
is accessible, even though a route-by-route determination appears to be 
contemplated by the statute. In such cases, it may be that category 2 
eligibility would persist until the entire system was eligible.
    With respect to a rail system, an individual is eligible under this 
standard if, on the route or line he or she wants to use, there is not 
yet one car per train accessible or if key stations are not yet 
accessible. This eligibility remains even if bus systems covering the 
area served by the rail system have become 100 percent accessible. This 
is necessary because people use rail systems for different kinds of 
trips than bus systems. It would often take much more in the way of 
time, trouble, and transfers for a person to go on the buses of one or 
more transit authorities than to have a direct trip provided by the rail 
operator. Since bus route systems are often designed to feed rail 
systems rather than duplicate them, it may often be true that ``you 
can't get there from here'' relying entirely on bus routes or the 
paratransit service area that parallels them.
    If the lift on a vehicle cannot be deployed at a particular stop, an 
individual is eligible for paratransit under this category with respect 
to the service to the inaccessible stop. If on otherwise accessible 
route 1, an individual wants to travel from Point A to Point E, and the 
lift cannot be deployed at E, the individual is eligible for paratransit 
for the trip. (On-call bus would not work as a mode of providing this 
trip, since a bus lift will not deploy at the stop.) This is true even 
though service from Point A to all other points on the line is fully 
accessible. In this circumstance, the entity should probably think 
seriously about working with the local government involved to have the 
stop moved or made accessible.
    When we say that a lift cannot be deployed, we mean literally that 
the mechanism will not work at the location to permit a wheelchair user 
or other person with a disability to disembark or that the lift will be 
damaged if it is used there. It is not consistent with the rule for a 
transit provider to declare a stop off-limits to someone who uses the 
lift while allowing other passengers to use the stop. However, if 
temporary conditions not under the operator's control (e.g., 
construction, an accident, a landslide) make it so hazardous for anyone 
to disembark that

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the stop is temporarily out of service for all passengers may the 
operator refuse to allow a passenger to disembark using the lift.

                         Category 3  Eligibility

    The third eligibility criterion concerns individuals who have a 
specific impairment-related condition which prevents them from getting 
to or from a stop or station. As noted in the legislative history of the 
ADA, this is intended to be a ``very narrow exception'' to the general 
rule that difficulty in traveling to or from boarding or disembarking 
locations is not a basis for eligibility.
    What is a specific impairment-related condition? The legislative 
history mentions four examples: Chronic fatigue, blindness, a lack of 
cognitive ability to remember and follow directions, or a special 
sensitivity to temperature. Impaired mobility, severe communications 
disabilities (e.g., a combination of serious vision and hearing 
impairments), cardiopulmonary conditions, or various other serious 
health problems may have similar effects. The Department does not 
believe that it is appropriate, or even possible, to create an 
exhaustive list.
    What the rule uses as an eligibility criterion is not just the 
existence of a specific impairment-related condition. To be a basis for 
eligibility, the condition must prevent the individual from traveling to 
a boarding location or from a disembarking location. The word 
``prevent'' is very important. For anyone, going to a bus stop and 
waiting for a bus is more difficult and less comfortable than waiting 
for a vehicle at one's home. This is likely to be all the more true for 
an individual with a disability. But for many persons with disabilities, 
in many circumstances, getting to a bus stop is possible. If an 
impairment related condition only makes the job of accessing transit 
more difficult than it might otherwise be, but does not prevent the 
travel, then the person is not eligible.
    For example, in many areas, there are not yet curb cuts. A 
wheelchair user can often get around this problem by taking a less 
direct route to a destination than an ambulatory person would take. That 
involves more time, trouble, and effort than for someone without a 
mobility impairment. But the person can still get to the bus stop. On 
the basis of these architectural barriers, the person would not be 
eligible.
    Entities are cautioned that, particularly in cases involving lack of 
curb cuts and other architectural barrier problems, assertions of 
eligibility should be given tight scrutiny. Only if it is apparent from 
the facts of a particular case that an individual cannot find a 
reasonable alternative path to a location should eligibility be granted.
    If we add a foot of snow to the scenario, then the same person 
taking the same route may be unable to get to the bus stop. It is not 
the snow alone that stops him; it is the interaction of the snow and the 
fact that the individual has a specific-impairment related condition 
that requires him to push a wheelchair through the snow that prevents 
the travel.
    Inevitably, some judgment is required to distinguish between 
situations in which travel is prevented and situations in which it is 
merely made more difficult. In the Department's view, a case of 
``prevented travel'' can be made not only where travel is literally 
impossible (e.g., someone cannot find the bus stop, someone cannot push 
a wheelchair through the foot of snow or up a steep hill) but also where 
the difficulties are so substantial that a reasonable person with the 
impairment-related condition in question would be deterred from making 
the trip.
    The regulation makes the interaction between an impairment-related 
condition and the environmental barrier (whether distance, weather, 
terrain, or architectural barriers) the key to eligibility 
determinations. This is an individual determination. Depending on the 
specifics of their impairment-related condition, one individual may be 
able to get from his home to a bus stop under a given set of conditions, 
while his next-door neighbor may not.

                               Companions

    The ADA requires entities to provide paratransit to one person 
accompanying the eligible individual, with others served on a space-
available basis. The one individual who is guaranteed space on the 
vehicle can be anyone--family member, business associate, friend, date, 
etc. The provider cannot limit the eligible individual's choice of type 
of companion. The transit authority may require that the eligible 
individual reserve a space for the companion when the individual 
reserves his or her own ride. This one individual rides even if this 
means that there is less room for other eligible individuals. Additional 
individuals beyond the first companion are carried only on a space 
available basis; that is, they do not displace other ADA paratransit 
eligible individuals.
    A personal care attendant (i.e., someone designated or employed 
specifically to help the eligible individual meet his or her personal 
needs) always may ride with the eligible individual. If there is a 
personal care attendant on the trip, the eligible individual may still 
bring a companion, plus additional companions on a space available 
basis. The entity may require that, in reserving the trip, the eligible 
individual reserve the space for the attendant.
    To prevent potential abuse of this provision, the rule provides that 
a companion (e.g., friend or family member) does not count as a personal 
care attendant unless the eligible individual regularly makes use

[[Page 492]]

of a personal care attendant and the companion is actually acting in 
that capacity. As noted under Sec. 37.125, a provider may require that, 
as part of the initial eligibility certification process, an individual 
indicate whether he or she travels with a personal care attendant. If 
someone does not indicate the use of an attendant, then any individual 
accompanying him or her would be regarded simply as a companion.
    To be viewed as ``accompanying'' the eligible individual, a 
companion must have the same origin and destination points as the 
eligible individual. In appropriate circumstances, entities may also 
wish to provide service to a companion who has either an origin or 
destination, but not both, with the eligible individual (e.g., the 
individual's date is dropped off at her own residence on the return trip 
from a concert).

          Section 37.125  ADA Paratransit Eligibility--Process

    This section requires an eligibilty process to be established by 
each operator of complementary paratransit. The details of the process 
are to be devised through the planning and public participation process 
of this subpart. The process may not impose unreasonable administrative 
burdens on applicants, and, since it is part of the entity's 
nondiscrimination obligations, may not involve ``user fees'' or 
application fees to the applicant.
    The process may include functional criteria related to the 
substantive eligibility criteria of Sec. 37.123 and, where appropriate, 
functional evaluation or testing of applicants. The substantive 
eligibility process is not aimed at making a medical or diagnostic 
determination. While evaluation by a physician (or professionals in 
rehabilitation or other relevant fields) may be used as part of the 
process, a diagnosis of a disability is not dispositive. What is needed 
is a determination of whether, as a practical matter, the individual can 
use fixed route transit in his or her own circumstances. That is a 
transportation decision primarily, not a medical decision.
    The goal of the process is to ensure that only people who meet the 
regulatory criteria, strictly applied, are regarded as ADA paratransit 
eligible. The Department recognizes that transit entities may wish to 
provide service to other persons, which is not prohibited by this rule. 
However, the eligibility process should clearly distinguish those 
persons who are ADA eligible from those who are provided service on 
other grounds. For example, eligibility documentation must clearly state 
whether someone is ADA paratransit eligible or eligible on some other 
basis.
    Often, people tend to think of paratransit exclusively in terms of 
people with mobility impairments. Under the ADA, this is not accurate. 
Persons with visual impairments may be eligible under either the first 
or third eligibility categories. To accommodate them, all documents 
concerning eligibility must be made available in one or more accessible 
formats, on request. Accessible formats include computer disks, braille 
documents, audio cassettes, and large print documents. A document does 
not necessarily need to be made available in the format a requester 
prefers, but it does have to be made available in a format the person 
can use. There is no use giving a computer disk to someone who does not 
have a computer, for instance, or a braille document to a person who 
does not read braille.
    When a person applies for eligibility, the entity will provide all 
the needed forms and instructions. These forms and instructions may 
include a declaration of whether the individual travels with a personal 
care attendant. The entity may make further inquiries concerning such a 
declaration (e.g., with respect to the individual's actual need for a 
personal care attendant).
    When the application process is complete--all necessary actions by 
the applicant taken--the entity should process the application in 21 
days. If it is unable to do so, it must begin to provide service to the 
applicant on the 22nd day, as if the application had been granted. 
Service may be terminated only if and when the entity denies the 
application. All determinations shall be in writing; in the case of a 
denial, reasons must be specified. The reasons must specifically relate 
the evidence in the matter to the eligibility criteria of this rule and 
of the entity's process. A mere recital that the applicant can use fixed 
route transit is not sufficient.
    For people granted eligibility, the documentation of eligibility 
shall include at least the following information:

--The individual's name
--The name of the transit provider
--The telephone number of the entity's paratransit coordinator
--An expiration date for eligibility
--Any conditions or limitations on the individual's eligibility, 
including the use of a personal care attendant.

    The last point refers to the situation in which a person is eligible 
for some trips but not others. Or if the traveler is authorized to have 
a personal care attendant ride free of charge. For example, the 
documentation may say that the individual is eligible only when the 
temperature falls below a certain point, or when the individual is going 
to a destination not on an accessible bus route, or for non-work trips, 
etc.
    As the mention of an expiration date implies, certification is not 
forever. The entity

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may recertify eligibility at reasonable intervals to make sure that 
changed circumstances have not invalidated or changed the individual's 
eligibility. In the Department's view, a reasonable interval for 
recertification is probably between one and three years. Less than one 
year would probably be too burdensome for consumers; over three years 
would begin to lose the point of doing recertifications. The 
recertification interval should be stated in the entity's plan. Of 
course, a user of the service can apply to modify conditions on his or 
her eligibility at any time.
    The administrative appeal process is intended to give applicants who 
have been denied eligibility the opportunity to have their cases heard 
by some official other than the one who turned them down in the first 
place. In order to have appropriate separation of functions--a key 
element of administrative due process--not only must the same person not 
decide the case on appeal, but that person, to the extent practicable, 
should not have been involved in the first decision (e.g., as a member 
of the same office, or a supervisor or subordinate of the original 
decisionmaker). When, as in the case of a small transit operator, this 
degree of separation is not feasible, the second decisionmaker should at 
least be ``bubbled'' with respect to the original decision (i.e., not 
have participated in the original decision or discussed it with the 
original decisionmaker). In addition, there must be an opportunity to be 
heard in person as well as the chance to present written evidence and 
arguments. All appeals decisions must be in writing, stating the reasons 
for the decision.
    To prevent the filing of stale claims, the entity may establish a 60 
day ``statute of limitations'' on filing of appeals, the time starting 
to run on the date the individual is notified on the negative initial 
decision. After the appeals process has been completed (i.e., the 
hearing and/or written submission completed), the entity should make a 
decision within 30 days. If it does not, the individual must be provided 
service beginning the 31st day, until and unless an adverse decision is 
rendered on his or her appeal.
    Under the eligibility criteria of the rule, an individual has a 
right to paratransit if he or she meets the eligibility criteria. As 
noted in the discussion of the nondiscrimination section, an entity may 
refuse service to anindividual with a disability who engages in violent, 
seriously disruptive, or illegal conduct, using the same standards for 
exclusion that would apply to any other person who acted in such an 
inappropriate way.
    The rule also allows an entity to establish a process to suspend, 
for a reasonable period of time, the provision of paratransit service to 
an ADA eligible person who establishes a pattern or practice of missing 
scheduled trips. The purpose of this process would be to deter or deal 
with chronic ``no-shows.'' The sanction system--articulated criteria for 
the imposition of sanctions, length of suspension periods, details of 
the administrative process, etc.--would be developed through the public 
planning and participation process for the entity's paratransit plan, 
and the result reflected in the plan submission to FTA.
    It is very important to note that sanctions could be imposed only 
for a ``pattern or practice'' of missed trips. A pattern or practice 
involves intentional, repeated or regular actions, not isolated, 
accidental, or singular incidents. Moreover, only actions within the 
control of the individual count as part of a pattern or practice. Missed 
trips due to operator error are not attributable to the individual 
passenger for this purpose. If the vehicle arrives substantially after 
the scheduled pickup time, and the passenger has given up on the vehicle 
and taken a taxi or gone down the street to talk to a neighbor, that is 
not a missed trip attributable to the passenger. If the vehicle does not 
arrive at all, or is sent to the wrong address, or to the wrong entrance 
to a building, that is not a missed trip attributable to the passenger. 
There may be other circumstances beyond the individual's control (e.g., 
a sudden turn for the worse in someone with a variable condition, a 
sudden family emergency) that make it impracticable for the individual 
to travel at the scheduled time and also for the individual to notify 
the entity in time to cancel the trip before the vehicle comes. Such 
circumstances also would not form part of a sanctionable pattern or 
practice.
    Once an entity has certified someone as eligible, the individual's 
eligibility takes on the coloration of a property right. (This is not 
merely a theoretical statement. If one depends on transportation one has 
been found eligible for to get to a job, and the eligibility is removed, 
one may lose the job. The same can be said for access to medical care or 
other important services.) Consequently, before eligibility may be 
removed ``for cause'' under this provision, the entity must provide 
administrative due process to the individual.
    If the entity proposes to impose sanctions on someone, it must first 
notify the individual in writing (using accessible formats where 
necessary). The notice must specify the basis of the proposed action 
(e.g., Mr. Smith scheduled trips for 8 a.m. on May 15, 2 p.m. on June 3, 
9 a.m. on June 21, and 9:20 p.m. on July 10, and on each occasion the 
vehicle appeared at the scheduled time and Mr. Smith was nowhere to be 
found) and set forth the proposed sanction (e.g., Mr. Smith would not 
receive service for 15 days).
    The entity would provide the individual an opportunity to be heard 
(i.e., an in-person informal hearing before a decisionmaker) as well as 
to present written and oral information and arguments. All relevant 
entity

[[Page 494]]

records and personnel would be made available to the individual, and 
other persons could testify. It is likely that, in many cases, an 
important factual issue would be whether a missed trip was the 
responsibility of the provider or the passenger, and the testimony of 
other persons and the provider's records or personnel are likely to be 
relevant in deciding this issue. While the hearing is intended to be 
informal, the individual could bring a representative (e.g., someone 
from an advocacy organization, an attorney).
    The individual may waive the hearing and proceed on the basis of 
written presentations. If the individual does not respond to the notice 
within a reasonable time, the entity may make, in effect, a default 
finding and impose sanctions. If there is a hearing, and the individual 
needs paratransit service to attend the hearing, the entity must provide 
it. We would emphasize that, prior to a finding against the individual 
after this due process procedure, the individual must continue to 
receive service. The entity cannot suspend service while the matter is 
pending.
    The entity must notify the individual in writing about the decision, 
the reasons for it, and the sanctions imposed, if any. Again, this 
information would be made available in accessible formats. In the case 
of a decision adverse to the individual, the administrative appeals 
process of this section would apply. The sanction would be stayed 
pending an appeal.
    There are means other than sanctions, however, by which a transit 
provider can deal with a ``no-show'' problem in its system. Providers 
who use ``real time scheduling'' report that this technique is very 
effective in reducing no-shows and cancellations, and increasing the mix 
of real time scheduling in a system can probably be of benefit in this 
area. Calling the customer to reconfirm a reasonable time before pickup 
can head off some problems, as can educating consumers to call with 
cancellations ahead of time. Training of dispatch and operator personnel 
can help to avoid miscommunications that lead to missed trips.

         Section 37.127  Complementary Paratransit for Visitors

    This section requires each entity having a complementary paratransit 
system to provide service to visitors from out of town on the same basis 
as it is provided to local residents. By ``on the same basis,'' we mean 
under all the same conditions, service criteria, etc., without 
distinction. For the period of a visit, the visitor is treated exactly 
like an eligible local user, without any higher priority being given to 
either.
    A visitor is defined as someone who does not reside in the 
jurisdiction or jurisdictions served by the public entity or other 
public entities with which it coordinates paratransit service. For 
example, suppose a five-county metropolitan area provides coordinated 
paratransit service under a joint plan. A resident of any of the five 
counties would not be regarded as a visitor in any of them. Note that 
the rule talks in terms of ``jurisdiction'' rather than ``service 
area.'' If an individual lives in XYZ County, but outside the fixed 
route service area of that county's transit provider, the individual is 
still not a visitor for purposes of paratransit in PQR County, if PQR is 
one of the counties with which XYZ provides coordinated paratransit 
service.
    A visitor can become eligible in one of two ways. The first is to 
present documentation from his or her ``home'' jurisdiction's 
paratransit system. The local provider will give ``full faith and 
credit'' to the ID card or other documentation from the other entity. If 
the individual has no such documentation, the local provider may require 
the provision of proof of visitor status (i.e., proof of residence 
somewhere else) and, if the individual's disability is not apparent, 
proof of the disability (e.g., a letter from a doctor or rehabilitation 
professional). Once this documentation is presented and is satisfactory, 
the local provider will make service available on the basis of the 
individual's statement that he or she is unable to use the fixed route 
transit system.
    The local provider need serve someone based on visitor eligibility 
for no more than 21 days. After that, the individual is treated the same 
as a local person for eligibility purposes. This is true whether the 21 
days are consecutive or parceled out over several shorter visits. The 
local provider may require the erstwhile visitor to apply for 
eligibility in the usual local manner. A visitor who expects to be 
around longer than 21 days should apply for regular eligibility as soon 
as he arrives. The same approach may be used for a service of requested 
visits totaling 21 days or more in a relating compact period of time. 
Preferably, this application process should be arranged before the 
visitor arrives, by letter, telephone or fax, so that a complete 
application can be processed expeditiously.

                    Section 37.129  Types of Service

    The basic mode of service for complementary paratransit is demand 
responsive, origin-to-destination service. This service may be provided 
for persons in any one of the three eligibility categories, and must 
always be provided to persons in the first category (e.g., people who 
cannot navigate the system). The local planning process should decide 
whether, or in what circumstances, this service is to be provided as 
door-to-door or curb-to-curb service.
    For persons in the second eligibility category (e.g., persons who 
can use accessible buses, but do not have an accessible bus

[[Page 495]]

route available to take them to their destination), origin-to-
destination service can be used. Alternatively, the entity can provide 
either of two other forms of service. One is on-call bus, in which the 
individual calls the provider and arranges for one or more accessible 
buses to arrive on the routes he needs to use at the appropriate time. 
On-call bus service must meet all the service criteria of Sec. 37.131, 
except that on-call buses run only on fixed routes and the fare charged 
can be only the fixed route fare that anyone pays on the bus (including 
discounts).
    The second option is ``feeder paratransit'' to an accessible fixed 
route that will take the individual to his or her destination. Feeder 
paratransit, again, would have to meet all the criteria of Sec. 37.131. 
With respect to fares, the paratransit fare could be charged, but the 
individual would not be double charged for the trip. That is, having 
paid the paratransit fare, the transfer to the fixed route would be 
free.
    For persons in the third eligibility category (e.g., persons who can 
use fixed route transit but who, because of a specific impairment-
related condition, cannot get to or from a stop), the ``feeder 
paratransit'' option, under the conditions outlined above, is available. 
For some trips, it might be necessary to arrange for feeder service at 
both ends of the fixed route trip. Given the more complicated logistics 
of such arrangements, and the potential for a mistake that would 
seriously inconvenience the passenger, the transit provider should 
consider carefully whether such a ``double feeder'' system, while 
permissible, is truly workable in its system (as opposed to a simpler 
system that used feeder service only at one end of a trip when the bus 
let the person off at a place from which he or she could independently 
get to the destination). There may be some situations in which origin to 
destination service is easier and less expensive.

 Section 37.131  Service Criteria for Complementary Paratransit Service 
                                  Area

    The basic bus system service area is a corridor with a width of \3/
4\ of a mile on each side of each fixed route. At the end of a route, 
there is a semicircular ``cap'' on the corridor, consisting of a three-
quarter mile radius from the end point of the route to the parallel 
sides of the corridor.
[GRAPHIC] [TIFF OMITTED] TC02FE91.191

    Complementary paratransit must provide service to any origin or 
destination point within a corridor fitting this description around any 
route in the bus system. Note that this does not say that an eligible 
user must live within a corridor in order to be eligible. If an 
individual lives outside the corridor, and can find a way of getting to 
a pickup point within the corridor, the service must pick him up there. 
The same holds true at the destination end of the trip.
    Another concept involved in this service criterion is the core 
service area. Imagine a bus route map of a typical city. Color the bus 
routes and their corridors blue, against the white outline map. In the 
densely populated areas of the city, the routes (which, with their 
corridors attached, cut 1\1/2\ mile swaths) merge together into a solid 
blue mass. There are few, if any, white spots left uncovered, and they 
are likely to be very small. Paratransit would serve all origins and 
destinations in the solid blue mass.
    But what of the little white spots surrounded by various bus 
corridors? Because it would make sense to avoid providing service to 
such small isolated areas, the rule requires paratransit service there 
as well. So color them in too.
    Outside the core area, though, as bus routes follow radial arteries 
into the suburbs and exurbs (we know real bus route maps are more 
complicated than this, but we simplify for purposes of illustration), 
there are increasingly wide white areas between the blue

[[Page 496]]

corridors, which may have corridors on either side of them but are not 
small areas completely surrounded by corridors. These white spaces are 
not part of the paratransit service area and the entity does not have to 
serve origins and destinations there. However, if, through the planning 
process, the entity wants to enlarge the width of one or more of the 
blue corridors from the \3/4\ of a mile width, it can do so, to a 
maximum of 1\1/2\ miles on each side of a route. The cost of service 
provided within such an expanded corridor can be counted in connection 
with an undue financial burden waiver request.
    There may be a part of the service area where part of one of the 
corridors overlaps a political boundary, resulting in a requirement to 
serve origins and destinations in a neighboring jurisdiction which the 
entity lacks legal authority to service. The entity is not required to 
serve such origins and destinations, even though the area on the other 
side of the political boundary is within a corridor. This exception to 
the service area criterion d when there is a legal bar to the entity 
providing service on the other side of the boundary.
    The rule requires, in this situation, that the entity take all 
practicable steps to get around the problem so that it can provide 
service throughout its service area. The entity should work with the 
state or local governments involved, via coordination plans, reciprocity 
agreements, memoranda of understanding or other means to prevent 
political boundaries from becoming barriers to the travel of individuals 
with disabilities.
    The definition of the service area for rail systems is somewhat 
different, though many of the same concepts apply.
[GRAPHIC] [TIFF OMITTED] TC02FE91.192

    Around each station on the line (whether or not a key station), the 
entity would draw a circle with a radius of \3/4\ mile. Some circles may 
touch or overlap. The series of circles is the rail system's service 
area. (We recognize that, in systems where stations are close together, 
this could result in a service area that approached being a corridor 
like that of a bus line.) The rail system would provide paratransit 
service from any point in one circle to any point in any other circle. 
The entity would not have to provide service to two points within the 
same circle, since a trip between two points in the vicinity of the same 
station is not a trip that typically would be taken by train. Nor would 
the entity have to provide service to spaces between the circles. For 
example, a train trip would not get close to point x; one would have to 
take a bus or other mode of transportation to get from station E or F to 
point x. A paratransit system comparable to the rail service area would 
not be required to take someone there either.
    Rail systems typically provide trips that are not made, or cannot be 
made conveniently, on bus systems. For example, many rail systems cross 
jurisdictional boundaries that bus systems often do not. One can travel 
from Station A to a relatively distant Station E on a rail system in a 
single trip, while a bus trip between the same points, if possible at 
all, may involve a number of indirect routings and transfers, on two bus 
systems that may not interface especially well.

[[Page 497]]

    Rail operators have an obligation to provide paratransit equivalents 
of trips between circles to persons who cannot use fixed route rail 
systems because they cannot navigate the system, because key stations or 
trains are not yet accessible, or because they cannot access stations 
from points within the circles because of a specific impairment-related 
condition. For individuals who are eligible in category 2 because they 
need an accessible key station to use the system, the paratransit 
obligation extends only to transportation among ``circles'' centered on 
designated key stations (since, even when the key station plan is fully 
implemented, these individuals will be unable to use non-key stations).
    It is not sufficient for a rail operator to refer persons with 
disabilities to an accessible bus system in the area. The obligation to 
provide paratransit for a rail system is independent of the operations 
of any bus system serving the same area, whether operated by the same 
entity that operates the rail system or a different entity. Obviously, 
it will be advantageous for bus and rail systems to coordinate their 
paratransit efforts, but a coordinated system would have to ensure 
coverage of trips comparable to rail trips that could not conveniently 
be taken on the fixed route bus system.

                              Response Time

    Under this provision, an entity must make its reservation service 
available during the hours its administrative offices are open. If those 
offices are open 9 to 5, those are the hours during which the 
reservations service must be open, even if the entity's transit service 
operated 6 a.m. to midnight. On days prior to a service day on which the 
administrative offices are not open at all (e.g., a Sunday prior to a 
Monday service day), the reservation service would also be open 9 to 5. 
Note that the reservation service on any day does not have to be 
provided directly by a ``real person.'' An answering machine or other 
technology can suffice.
    Any caller reaching the reservation service during the 9 to 5 
period, in this example, could reserve service for any time during the 
next 6 a.m. to 12 midnight service day. This is the difference between 
``next day scheduling'' and a system involving a 24-hour prior 
reservation requirement, in which a caller would have to reserve a trip 
at 7 a.m. today if he or she wanted to travel at 7 a.m. tomorrow. The 
latter approach is not adequate under this rule.
    The entity may use real time scheduling for all or part of its 
service. Like the Moliere character who spoke prose all his life without 
knowing it, many entities may already be using some real time scheduling 
(e.g., for return trips which are scheduled on a when-needed basis, as 
opposed to in advance). A number of transit providers who have used real 
time scheduling believe that it is more efficient on a per-trip basis 
and reduces cancellations and no-shows significantly. We encourage 
entities to consider this form of service.
    Sometimes users want to schedule service well in advance, to be sure 
of traveling when they want to. The rule tells providers to permit 
reservations to be made as much as 14 days in advance. In addition, 
though an entity may negotiate with a user to adjust pickup and return 
trip times to make scheduling more efficient, the entity cannot insist 
on scheduling a trip more than one hour earlier or later than the 
individual desires to travel. Any greater deviation from desired trip 
would exceed the bounds of comparability.

                                  Fares

    To calculate the proper paratransit fare, the entity would determine 
the route(s) that an individual would take to get from his or her origin 
to his or her destination on the fixed route system. At the time of day 
the person was traveling, what is the fare for that trip on those 
routes? Applicable charges like transfer fees or premium service charges 
may be added to the amount, but discounts (e.g., the half-fare discount 
for off-peak fixed route travel by elderly and handicapped persons) 
would not be subtracted. The transit provider could charge up to twice 
the resulting amount for the paratransit trip.
    The mode through which paratransit is provided does not change the 
method of calculation. For example, if paratransit is provided via user 
side subsidy taxi service rather than publicly operated dial-a-ride van 
service, the cost to the user could still be only twice the applicable 
fixed route fare. The system operates the same regardless of whether the 
paratransit trip is being provided in place of a bus or a rail trip the 
user cannot make on the fixed route system. Where bus and rail systems 
are run by the same provider (or where the same bus provider runs 
parallel local and express buses along the same route), the comparison 
would be made to the mode on which a typical fixed route user would make 
the particular trip, based on schedule, length, convenience, avoidance 
of transfers, etc.
    Companions are charged the same fare as the eligible individual they 
are accompanying. Personal care attendants ride free.
    One exception to the fare requirement is made for social service 
agency (or other organization-sponsored) trips. This exception, which 
allows the transit provider to negotiate a price with the agency that is 
more than twice the relevant fixed route fare, applies to ``agency 
trips,'' by which we mean trips which are guaranteed to the agency for 
its use. That is, if an agency wants 12 slots for a trip to the mall on 
Saturday for clients

[[Page 498]]

with disabilities, the agency makes the reservation for the trips in its 
name, the agency will be paying for the transportation, and the trips 
are reserved to the agency, for whichever 12 people the agency 
designates, the provider may then negotiate any price it can with the 
agency for the trips. We distinguish this situation from one in which an 
agency employee, as a service, calls and makes an individual reservation 
in the name of a client, where the client will be paying for the 
transportation.

            Restrictions and Priorities Based on Trip Purpose

    This is a simple and straightforward requirement. There can be no 
restrictions or priorities based on trip purpose in a comparable 
complementary paratransit system. When a user reserves a trip, the 
entity will need to know the origin, destination, time of travel, and 
how many people are traveling. The entity does not need to know why the 
person is traveling, and should not even ask.

                        Hours and Days of Service

    This criterion says simply that if a person can travel to a given 
destination using a given fixed route at a given time of day, an ADA 
paratransit eligible person must be able to travel to that same 
destination on paratransit at that time of day. This criterion 
recognizes that the shape of the service area can change. Late at night, 
for example, it is common for certain routes not to be run. Those 
routes, and their paratransit corridors, do not need to be served with 
paratransit when the fixed route system is not running on them. One 
couldn't get to destinations in that corridor by fixed route at those 
times, so paratransit service is not necessary either.
    It should be pointed out that service during low-demand times need 
not be by the same paratransit mode as during higher usage periods. For 
example, if a provider uses its own paratransit vans during high demand 
periods, it could use a private contractor or user-side subsidy provider 
during low demand periods. This would presumably be a more efficient way 
of providing late night service. A call-forwarding device for 
communication with the auxiliary carrier during these low demand times 
would be perfectly acceptable, and could reduce administrative costs.

                          Capacity Constraints

    This provision specifically prohibits two common mechanisms that 
limit use of a paratransit system so as to constrain demand on its 
capacity. The first is a waiting list. Tyically, a waiting list involves 
a determination by a provider that it can provide service only to a 
given number of eligible persons. Other eligible persons are not able to 
receive service until one of the people being served moves away or 
otherwise no longer uses the service. Then the persons on the waiting 
list can move up. The process is analogous to the wait that persons in 
some cities have to endure to be able to buy season tickets to a sold-
out slate of professional football games.
    The second mechanism specifically mentioned is a number limit on the 
trips a passenger can take in a given period of time. It is a kind of 
rationing in which, for example, if one has taken his quota of 30 trips 
this month, he cannot take further trips for the rest of the month.
    In addition, this paragraph prohibits any operational pattern or 
practice that significantly limits the availability of service of ADA 
paratransit eligible persons. As discussed under Sec. 37.125 in the 
context of missed trips by passengers, a ``pattern or practice'' 
involves, regular, or repeated actions, not isolated, accidental, or 
singular incidents. A missed trip, late arrival, or trip denial now and 
then does not trigger this provision.
    Operational problems outside the control of the entity do not count 
as part of a pattern or practice under this provision. For example, if 
the vehicle has an accident on the way to pick up a passenger, the late 
arrival would not count as part of a pattern or practice. If something 
that could not have been anticipated at the time the trip was scheduled 
(e.g., a snowstorm, an accident or hazardous materials incident that 
traps the paratransit vehicle, like all traffic on a certain highway, 
for hours), the resulting missed trip would not count as part of a 
pattern or practice. On the other hand, if the entity regularly does not 
maintain its vehicles well, such that frequent mechanical breakdowns 
result in missed trips or late arrivals, a pattern or practice may 
exist. This is also true in a situation in which scheduling practices 
fail to take into account regularly occurring traffic conditions (e.g., 
rush hour traffic jams), resulting in frequent late arrivals.
    The rule mentions three specific examples of operational patterns or 
practices that would violate this provision. The first is a pattern or 
practice of substantial numbers of significantly untimely pickups 
(either for initial or return trips). To violate this provision, there 
must be both a substantial number of late arrivals and the late arrivals 
in question must be significant in length. For example, a DOT Inspector 
General's (IG) report on one city's paratransit system disclosed that 
around 30 percent of trips were between one and five hours late. Such a 
situation would trigger this provision. On the other hand, only a few 
instances of trips one to five hours late, or many instances of trips a 
few minutes late, would not trigger this provision.

[[Page 499]]

    The second example is substantial numbers of trip denials or missed 
trips. For example, if on a regular basis the reservation phone lines 
open at 5 a.m. and callers after 7 a.m. are all told that they cannot 
travel, or the phone lines shut down after 7 a.m. and a recorded message 
says to call back the next day, or the phone lines are always so busy 
that no one can get through, this provision would be triggered. 
(Practices of this kind would probably violate the response time 
criterion as well.) Also, if, on a regular basis, the entity misses a 
substantial number of trips (e.g., a trip is scheduled, the passenger is 
waiting, but the vehicle never comes, goes to the wrong address, is 
extremely late, etc.), it would violate this provision.
    The third example is substantial numbers of trips with excessive 
trip lengths. Since paratransit is a shared ride service, paratransit 
rides between Point A and Point B will usually take longer, and involve 
more intermediate stops, than a taxi ride between the same two points. 
However, when the number of intermediate stops and the total trip time 
for a given passenger grows so large as to make use of the system 
prohibitively inconvenient, then this provision would be triggered. For 
example, the IG report referred to above mentioned a situation in which 
9 percent of riders had one way trips averaging between two and four 
hours, with an average of 16 intermediate stops. Such a situation would 
probably trigger this provision.
    Though these three examples probably cover the most frequently cited 
problems in paratransit operations that directly or indirectly limit the 
provision of service that is theoretically available to eligible 
persons, the list is not exhaustive. Other patterns or practices could 
trigger this provision. For example, the Department has heard about a 
situation in which an entity's paratransit contractor was paid on a per-
trip basis, regardless of the length of the trip. The contractor 
therefore had an economic incentive to provide as many trips as 
possible. As a result, the contractor accepted short trips and routinely 
denied longer trips. This would be a pattern or practice contrary to 
this provision (and contrary to the service area provision as well).

                           Additional Service

    This provision emphasizes that entities may go beyond the 
requirements of this section in providing service to ADA paratransit 
individuals. For example, no one is precluded from offering service in a 
larger service area, during greater hours than the fixed route system, 
or without charge. However, costs of such additional service do not 
count with respect to undue financial burden waiver requests. Where a 
service criterion itself incorporates a range of actions the entity may 
take (e.g., providing wide corridors outside the urban core, using real 
time scheduling), however, costs of providing that optional service may 
be counted for undue financial burden waiver request purposes.

                  Section 37.133  Subscription Service

    As part of its paratransit service, an entity may include a 
subscription service component. However, at any given time of day, this 
component may not absorb more than 50 percent of available capacity on 
the total system. For example, if, at 8 a.m., the system can provide 400 
trips, no more than 200 of these can be subscription trips.
    The one exception to this rule would occur in a situation in which 
there is excess non-subscription capacity available. For example, if 
over a long enough period of time to establish a pattern, there were 
only 150 non-subscription trips requested at 8 a.m., the provider could 
begin to provide 250 subscription trips at that time. Subsequently, if 
non-subscription demand increased over a period of time, such that the 
50 trips were needed to satisfy a regular non-subscription demand at 
that time, and overall system capacity had not increased, the 50 trips 
would have to be returned to the non-subscription category. During times 
of high subscription demand, entities could use the trip time 
negotiation discretion of Sec. 37.131(c)(2) to shift some trips to other 
times.
    Because subscription service is a limited subcomponent of 
paratransit service, the rule permits restrictions to be imposed on its 
use that could not be imposed elsewhere. There may be a waiting list for 
provision of subscription service or the use of other capacity 
constraints. Also, there may be restrictions or priorities based on trip 
purpose. For example, subscription service under peak work trip times 
could be limited to work trips. We emphasize that these limitations 
apply only to subscription service. It is acceptable for a provider to 
put a person on a waiting list for access to subscription service at 8 
a.m. for work trips; the same person could not be wait-listed for access 
to paratransit service in general.

             Section 37.135  Submission of Paratransit Plans

    This section contains the general requirements concerning the 
submission of paratransit plans. Each public entity operating fixed 
route service is required to develop and submit a plan for paratransit 
service. Where you send your plans depends on the type of entity you 
are. There are two categories of entities which should submit their 
plans to states--(1) FTA recipients and (2) entities who are 
administered by the state on behalf of FTA.
    These FTA grantees submit their plans to the states because the 
agency would like the benefit of the states' expertise before final

[[Page 500]]

review. The states' role is as a commenter, not as a reviewer.
    This section also specifies annual progress reports concerning the 
meeting of previously approved milestones, any slippage (with the 
reasons for it and plans to catch up), and any significant changes in 
the operator's environment, such as the withdrawal from the marketplace 
of a private paratransit provider or whose service the entity has relied 
upon to provide part of its paratransit service.
    Paragraph (d) of this section specifies a maximum time period for 
the phase-in of the implementation of paratransit plans. The Department 
recognizes that it is not reasonable to expect paratransit systems to 
spring into existence fully formed, like Athena from the head of Zeus. 
Under this paragraph, all entities must be in full compliance with all 
paratransit provisions by January 26, 1997, unless the entity has 
received a waiver from FTA based on undue financial burden (which 
applies only to the service criteria of Sec. 37.131, not to eligibility 
requirements or other paratransit provisions).
    While the rule assumes that most entities will take a year to fully 
implement these provisions, longer than a year requires the paratransit 
plans to submit milestones that are susceptible to objective 
verification. Not all plans will be approved with a five-year lead-in 
period. Consistent with the proposed rule, the Department intends to 
look at each plan individually to see what is required for 
implementation in each case. DOT may approve only a shorter phase-in 
period in a given case.

              Section 37.137  Paratransit Plan Development

    Section 35.137 establishes three principal requirements in the 
development of paratransit plans.
    First is the requirement to survey existing paratransit services 
within the service area. This is required by section 223(c)(8) of the 
ADA. While the ADA falls short of explicitly requiring coordination, 
clearly this is one of the goals. The purpose of the survey is to 
determine what is being provided already, so that a transit provider can 
accurately assess what additional service is needed to meet the service 
criteria for comparable paratransit service. The plan does not have to 
discuss private paratransit providers whose services will not be used to 
help meet paratransit requirements under this rule. However, the public 
entity will need to know specifically what services are being provided 
by whom if the entity is to count the transportation toward the overall 
need.
    Since the public entity is required to provide paratransit to all 
ADA paratransit eligible individuals, there is some concern that 
currently provided service may be cut back or eliminated. It is possible 
that this may happen and such action would have a negative effect on 
transportation provided to persons with disabilities in general. The 
Department urges each entity required to submit a plan to work with 
current providers of transportation, not only to determine what 
transportation services they provide, but also to continue to provide 
service into the foreseeable future.
    Second, Sec. 37.137 specifies requirements for public participation. 
First, the entity must perform outreach, to ensure that a wide range of 
persons anticipated to use the paratransit service know about and have 
the opportunity to participate in the development of the plan. Not only 
must the entity identify who these individuals or groups are, the entity 
also must contact the people at an early stage in the development 
process.
    The other public participation requirements are straightforward. 
There must be a public hearing and an opportunity to comment. The 
hearing must be accessible to those with disabilities, and notice of the 
hearing must be accessible as well. There is a special efforts test 
identified in this paragraph for comments concerning a multi-year phase-
in of a paratransit plan.
    The final general requirement of the section specifies that efforts 
at public participation must be made permanent through some mechanism 
that provides for participation in all phases of paratransit plan 
development and submission. The Department is not requiring that there 
be an advisory committee established, although this is one method of 
institutionalizing participation. The Department is not as interested in 
the specific structure used to ensure public participation as we are 
interested in the effectiveness of the effort.
    The Department believes that public participation is a key element 
in the effective implementation of the ADA. The ADA is an opportunity to 
develop programs that will ensure the integration of all persons into 
not just the transportation system of America, but all of the 
opportunities transportation makes possible. This opportunity is not 
without tremendous challenges to the transit providers. It is only 
through dialogue, over the long term, that usable, possible plans can be 
developed and implemented.

                      Section 37.139  Plan Contents

    This section contains substantive categories of information to be 
contained in the paratransit plan: Information on current and changing 
fixed route service; inventory of existing paratransit service; 
discussion of the discrepancies between existing paratransit and what is 
required under this regulation; a discussion of the public participation 
requirements and how they have been met; the plan for paratransit 
service; the budget for paratransit services; efforts to coordinate with 
other transportation providers; a description of the process in place or

[[Page 501]]

to be used to register ADA paratransit eligible individuals; a 
description of the documentation provided to each individual verifying 
eligibility; and a request for a waiver based on undue financial burden, 
if applicable. The final rule contains a reorganized and slightly 
expanded section on plan contents, reflecting requests to be more 
explicit, rather than less explicit.
    The list of required elements is the same for all entities required 
to submit paratransit plans. There is no document length requirement, 
however. Each entity (or group plan) is unique and we expect the plans 
to reflect this. While we would like the plan elements presented in the 
order listed in this section, the contents most likely will vary 
greatly, depending on the size, geographic area, budget, complexity of 
issues, etc. of the particular submitting agency.
    This section and Sec. 37.139 provide for a maximum phase-in period 
of five years, with an assumed one-year phase-in for all paratransit 
programs. (The required budget has been changed to five years as well.) 
The Department has established a maximum five-year phase-in in the 
belief that not all systems will require that long, but that some, 
particularly those which had chosen to meet compliance with section 504 
requirements with accessible fixed route service, may indeed need five 
years.
    We are confident that, through the public participation process, 
entities can develop a realistic plan for full compliance with the ADA. 
To help ensure this, the paratransit plan contents section now requires 
that any plan which projects full compliance after January 26, 1993 must 
include milestones which can be measured and which result in steady 
progress toward full compliance. For example, it is possible that the 
first part of year one is used to ensure comprehensive registration of 
all eligible persons with disabilities, training of transit provider 
staffs and the development and dissemination of information to users and 
potential users in accessible formats and some modest increase in 
paratransit service is provided. A plan would not be permitted to 
indicate that no activity was possible in the first year, but 
proportionately more progress could be planned for later years than for 
the first year. Implementation must begin in January 1992.
    Each plan, including its proposed phase-in period, will be the 
subject of examination by FTA. Not all providers who request a five-year 
phase-in will receive approval for a five-year phase-in. The plan must 
be careful, therefore, to explain what current services are, what the 
projections are, and what methods are in place to determine and provide 
accountability for progress toward full compliance.
    We have been asked for assistance in assessing what the demand for 
paratransit service will be. FTA's ADA Paratransit Manual provides 
detailed assistance in this and many other areas of the plan development 
process.
    The ADA itself contained a figure of 43 million persons with 
disabilities. It should be pointed out that many of these may not 
necessarily be eligible for ADA paratransit service. The Department's 
regulatory impact analysis discussing the probable costs involved in 
implementing this rule places the possible percentage of population who 
would be eligible for paratransit service at between 1.4 and 1.9 
percent. This figure can vary depending on the type and variety of 
services you have available, or on such things as climate, proximity to 
medical care, family, etc. that a person with a disability may need. 
Clearly estimating demand is one of the most critical elements in the 
plan, since it will be used to make decisions about all of the various 
service criteria.
    Section 37.139 contains a new paragraph (j), spelling out in more 
detail requirements related to the annual submission of plans. Since 
there is now the possibility for five-year phase-ins, the annual plan 
demonstrates the progress made to date, and explains any delays.

        Section 37.141  Requirements If a Joint Plan is Submitted

    The Department believes that, particularly in large, multi-provider 
regions, a coordinated regional paratransit plan and system are 
extremely important. Such coordination can do much to ensure that the 
most comprehensive transportation can be provided with the most 
efficient use of available resources. We recognize that the effort of 
putting together such a coordinated system can be a lengthy one. This 
section is intended to facilitate the process of forming such a 
coordinated system.
    If a number of entities wish to submit a joint plan for a 
coordinated system, they must, like other entities, submit a document by 
January 26, 1992. At a minimum, this document must include the 
following:
    (1) A general statement that the participating entities intend to 
file a joint coordinated plan;
    (2) A certification from each participating entity that it is 
committed to providing paratransit as a part of a coordinated plan;
    (3) A certification from each participating entity that it will 
maintain at least current levels of paratransit service until the 
coordinated paratransit service called for by the joint plan is 
implemented;
    (4) As many elements of the plan as possible.
    These provisions ensure that significant planning will precede, and 
plan implementation will begin by, January 26, 1992, without precluding 
entities from cooperating because it was not possible to complete 
coordinating

[[Page 502]]

different public entities by that date. The entities involved in a joint 
plan are required to submit all elements of their plan by July 26, 1992.
    The final provision in the section notes that an entity may later 
join a coordinated plan, even if it has filed its own plan on January 
26, 1992. An entity must submit its own plan by January 26, 1992, if it 
has not provided a certification of participation in a joint plan.). In 
this case, the entity must provide the assurances and certifications 
required of all of the other participating entities.
    The Department fully expects that many jurisdictions filing joint 
plans will be able to do so by January 26, 1992. For those who cannot, 
the regulatory provision ensures that there will be no decrease in 
paratransit service. Further, since we anticipate coordinated service 
areas to provide more effective service, complete implementation of a 
joint plan could be more rapid than if each entity was providing service 
on its own.
    Entities submitting a joint plan do not have any longer than any 
other entities to fully implement complementary paratransit service. In 
any case, all plans (joint or single) must be fully implemented by 
January 26, 1997, absent a waiver for undue financial burden (which 
would, in the case of a joint plan, be considered on a joint basis).

             Section 37.143  Paratransit Plan Implementation

    As already discussed under Sec. 37.135, the states will receive FTA 
recipient plans for section 18 recipients administered by the State or 
any small urbanized area recipient of section 9 funds administered by a 
state. Public entities who do not receive FTA funds will submit their 
plans directly to the applicable Regional Office (listed in appendix B 
to the rule).
    The role of the state is to accept the plans on behalf of FTA, to 
ensure that all plans are submitted to it and forward the plans, with 
any comments on the plans, to FTA. This comment is very important for 
FTA to receive, since states administer these programs on behalf of FTA. 
Each state's specific knowledge of FTA grantees it administers will 
provide helpful information to FTA in making its decisions.
    The rule lists five questions the states must answer when they 
forward the plans. These questions are gauged to capitalize on the 
working knowledge the states possess on the grantees. FTA will send a 
more specific letter of instruction to each state explaining its role.

                   Section 37.147  FTA Review of Plans

    This provision spells out factors FTA will consider in reviewing 
each plan, including whether the submission is complete, whether the 
plan complies with the substance of the ADA regulation, whether the 
entity complied with the public participation requirements in developing 
the plan, efforts by the entity to coordinate with other entities in a 
plan submission, and any comments submitted by the states.
    These elements are not the only items that will be reviewed by FTA. 
Every portion of the plan will be reviewed and assessed for compliance 
with the regulation. This section merely highlights those provisions 
thought most important by the Department.

            Section 37.151  Waiver for Undue Financial Burden

    The Department has adopted a five-year phase-in for paratransit 
service. Under this scheme, each entity required to provide paratransit 
service will be able to design a phase-in of its service specifically 
geared to local circumstances. While all jurisdictions will not receive 
approval for plans with a five year phase-in, each entity will be able 
to request what it needs based on local circumstances. Generally, the 
section allows an entity to request a wavier at any time it determines 
that it will not be able to meet a five-year phase-in or make measured 
progress toward its full compliance date specified in its original plan.
    A waiver for undue financial burden should be requested if one of 
the following circumstances applies. First, when the entity submits its 
first plan on January 26, 1992, if the entity knows it will not be able 
to reach full compliance within five years, or if the entity cannot make 
measured progress the first year it may submit a waiver request. The 
entity also should apply for a waiver, if, during plan implementation, 
there are changed circumstances which make it unlikely that compliance 
will be possible.
    The concept of measured progress should be given its plain meaning. 
It is not acceptable to submit a plan which shows significant progress 
in implementing a plan in years four and five, but no progress in years 
one and two. Similarly, the progress must be susceptible to objective 
verification. An entity cannot merely ``work toward'' developing a 
particular aspect of a plan.
    The Department intends that undue burden waiver requests will be 
given close scrutiny, and waiver will not be granted highly. In 
reviewing requests, however, as the legislative history indicates, FTA 
will look at the individual financial constraints within which each 
public entity operates its fixed route system. ``Any determination of 
undue financial burden cannot have assumed the collection of additional 
revenues, such as those received through increases in local taxes or 
legislative appropriations, which would not have otherwise been made 
available to the fixed route operator.'' (H. Rept. 101-485, Pt. 1, at 
31)

[[Page 503]]

                Section 37.153  FTA Waiver Determination

    If the FTA Administrator grants a waiver for undue financial burden, 
the waiver will be for a specified period of time and the Administrator 
will determine what the entity must do to meet its responsibilities 
under the ADA. Each determination will involve a judgment of what is 
appropriate on a case-by-case basis. Since each waiver will be granted 
based on individual circumstances, the Department does not deem it 
appropriate to specify a generally applicable duration for a waiver.
    When a waiver is granted, the rule calls for entities to look first 
at limiting the number of trips provided to each individual as a means 
of providing service that does not create an undue burden. This capacity 
constraint, unlike manipulations of other service criteria, will not 
result in a degradation of the quality of service. An entity intending 
to submit an undue burden waiver request should take this approach into 
account in its planning process.
    It should be noted that requiring an entity to provide paratransit 
service at least during core hours along key routes is one option that 
the Administrator has available in making a decision about the service 
to be provided. This requirement stems from the statutory provision that 
the Administrator can require the entity to provide a minimum level of 
service, even if to do so would be an undue financial burden. Certainly 
part of a request for a waiver could be a locally endorsed alternative 
to this description of basic service. The rule states explicitly the 
Administrator's discretion to return the application for more 
information if necessary.

 Section 37.155  Factors in Decision to Grant an Undue Financial Burden 
                                 Waiver

    Factors the Administrator will consider in making a decision whether 
to grant an undue financial burden waiver request include effects on 
current fixed route service, reductions in other services, increases in 
fares, resources available to implement complementary paratransit over 
the period of the plan, current level of accessible service (fixed route 
and paratransit), cooperation among transit providers, evidence of 
increased efficiencies that have been or could be used, any unique 
circumstances that may affect the entity's ability to provide 
paratransit service, the level of per capita service being provided, 
both to the population as a whole and what is being or anticipated to be 
provided to persons who are eligible and registered to receive ADA 
paratransit service.
    This final element allows some measure of comparability, regardless 
of the specific service criteria and should assist in a general 
assessment of level of effort.
    It is only the costs associated with providing paratransit service 
to ADA-paratransit eligible persons that can be counted in assessing 
whether or not there is an undue financial burden. Two cost factors are 
included in the considerations which enhance the Administrator's ability 
to assess real commitment to these paratransit provisions.
    First, the Department will allow a statistically valid methodology 
for estimating number of trips mandated by the ADA. While the regulation 
calls for a trip-by-trip determination of eligibility, this provision 
recognizes that this is not possible for some systems, particularly the 
large systems. Since only those trips provided to a person when he or 
she is ADA eligible may be counted in determining an undue financial 
burden, this provision is necessary.
    Second, in determining costs to be counted toward providing 
paratransit service, paragraph (b)(3) allows an entity to include in its 
paratransit budget dollars to which it is legally entitled, but which, 
as a matter of state or local funding arrangements, are provided to 
another entity that is actually providing the paratransit service.
    For example, a state government may provide a certain formula 
allocation of the revenue from a certain tax to each jurisdiction for 
use in providing transportation service at the local level. The funds, 
depending on local arrangements, may flow either to a transit 
authority--a regulated entity under this rule--or to a city or county 
government. If the funds go to the transit authority, they clearly may 
be counted in an undue burden calculation. In addition, however, this 
provision also allows funds that flow through the city or county 
government to be counted in the undue burden calculation, since they are 
basically the same funds and should not be treated differently based on 
the accident of previously-determined local arrangements. On the other 
hand, this provision does not allow funds of a private non-profit or 
other organization who uses Department of Health and Human Services 
grant or private contributions to be counted toward the entity's 
financial commitment to paratransit.

                     Subpart G--Provision of Service

       Section 37.161  Maintenance of Accessible Features--General

    This section applies to all entities providing transportation 
services, public and private. It requires those entities to maintain in 
operative condition those features or facilities and equipment that make 
facilities and vehicles accessible to and usable by individuals with 
disabilities.
    The ADA requires that, to the maximum extent feasible, facilities be 
accessible to and usable by individuals with disabilities. This section 
recognizes that it is not sufficient to provide features such as lift-
equipped vehicles, elevators, communications systems to provide 
information to people with vision or

[[Page 504]]

hearing impairments, etc. if these features are not maintained in a 
manner that enables individuals with disabilities to use them. 
Inoperative lifts or elevators, locked accessible doors, accessible 
paths of travel that are blocked by equipment or boxes of materials are 
not accessible to or usable by individuals with disabilities.
    The rule points out that temporary obstructions or isolated 
instances of mechanical failure would not be considered violations of 
the ADA or this rule. Repairs must be made ``promptly.'' The rule does 
not, and probably could not, state a time limit for making particular 
repairs, given the variety of circumstances involved. However, repairing 
accessible features must be made a high priority. Allowing obstructions 
or out of order accessibility equipment to persist beyond a reasonable 
period of time would violate this Part, as would mechanical failures due 
to improper or inadequate maintenance. Failure of the entity to ensure 
that accessible routes are free of obstruction and properly maintained, 
or failure to arrange prompt repair of inoperative elevators, lifts, or 
other accessibility-related equipment, would also violate this part.
    The rule also requires that accommodations be made to individuals 
with disabilities who would otherwise use an inoperative accessibility 
feature. For example, when a rail system discovers that an elevator is 
out of order, blocking access to one of its stations, it could 
accommodate users of the station by announcing the problem at other 
stations to alert passengers and offer accessible shuttle bus service 
around the temporarily inaccessible station. If a public address system 
were out of order, the entity could designate personnel to provide 
information to customers with visual impairments.

  Section 37.163  Keeping Vehicle Lifts in Operative Condition--Public 
                                Entities

    This section applies only to public entities. Of course, like 
vehicle acquisition requirements and other provisions applying to public 
entities, these requirements also apply when private entities ``stand in 
the shoes'' of public entities in contracting situations, as provided in 
Sec. 37.23.
    This section's first requirement is that the entity establish a 
system of regular and frequent maintenance checks of lifts sufficient to 
determine if they are operative.
    Vehicle and equipment maintenance is an important component of 
successful accessible service. In particular, an aggressive preventive 
maintenance program for lifts is essential. Lifts remain rather delicate 
pieces of machinery, with many moving parts, which often must operate in 
a harsh environment of potholes, dust and gravel, variations in 
temperature, snow, slush, and deicing compounds. It is not surprising 
that they sometimes break down.
    The point of a preventive maintenance program is to prevent 
breakdowns, of course. But it is also important to catch broken lifts as 
soon as possible, so that they can be repaired promptly. Especially in a 
bus system with relatively low lift usage, it is possible that a vehicle 
could go for a number of days without carrying a passenger who uses the 
lift. It is highly undesirable for the next passenger who needs a lift 
to be the person who discovers that the lift is broken, when a 
maintenance check by the operator could have discovered the problem days 
earlier, resulting in its repair.
    Therefore, the entity must have a system for regular and frequent 
checks, sufficient to determine if lifts are actually operative. This is 
not a requirement for the lift daily. (Indeed, it is not, as such, a 
requirement for lift cycling at all. If there is another means available 
of checking the lift, it may be used.) If alternate day checks, for 
example, are sufficient to determine that lifts are actually working, 
then they are permitted. If a lift is used in service on a given day, 
that may be sufficient to determine that the lift is operative with 
respect to the next day. It would be a violation of this part, however, 
for the entity to neglect to check lifts regularly and frequently, or to 
exhibit a pattern of lift breakdowns in service resulting in stranded 
passengers when the lifts had not been checked before the vehicle failed 
to provide required accessibility to passengers that day.
    When a lift breaks down in service, the driver must let the entity 
know about the problem by the most immediate means available. If the 
vehicle is equipped with a radio or telephone, the driver must call in 
the problem on the spot. If not, then the driver would have to make a 
phone call at the first opportunity (e.g., from a phone booth during the 
turnaround time at the end of the run). It is not sufficient to wait 
until the end of the day and report the problem when the vehicle returns 
to the barn.
    When a lift is discovered to be inoperative, either because of an 
in-service failure or as the result of a maintenance check, the entity 
must take the vehicle out of service before the beginning of its next 
service day (with the exception discussed below) and repair the lift 
before the vehicle is put back into service. In the case of an in-
service failure, this means that the vehicle can continue its runs on 
that day, but cannot start a new service day before the lift is 
repaired. If a maintenance check in the evening after completion of a 
day's run or in the morning before a day's runs discloses the problem, 
then the bus would not go into service until the repair had taken place.
    The Department realizes that, in the years before bus fleets are 
completely accessible, taking buses with lifts out of service for 
repairs in this way would probably result in an

[[Page 505]]

inaccessible spare bus being used on the route, but at least attention 
would have to be paid quickly to the lift repair, resulting in a quicker 
return to service of a working accessible bus.
    The rule provides an exception for those situations in which there 
is no spare vehicle (either accessible or inaccessible) available to 
take the place of the vehicle with an operative lift, such that putting 
the latter vehicle into the shop would result in a reduction of service 
to the public (e.g., a scheduled run on a route could not be made). The 
Department would emphasize that the exception does not apply when there 
is any spare vehicle available.
    Where the exception does apply, the provider may keep the vehicle 
with the inoperative lift in service for a maximum of three days (for 
providers operating in an area of over 50,000 population) or five days 
(for providers operating in an area of 50,000 population or less). After 
these times have elapsed, the vehicle must go into the shop, not to 
return until the lift is repaired. Even during the three- or five-day 
period, if an accessible spare bus becomes available at any time, it 
must be used in place of the bus with the inoperative lift or an 
inaccessible spare that is being used in its place.
    In a fixed route system, if a bus is operating without a working 
lift (either on the day when the lift fails in service or as the result 
of the exception discussed above) and headways between accessible buses 
on the route on which the vehicle is operating exceed 30 minutes, the 
entity must accommodate passengers who would otherwise be inconvenienced 
by the lack of an accessible bus. This accommodation would be by a 
paratransit or other special vehicle that would pick up passengers with 
disabilities who cannot use the regular bus because its lift is 
inoperative. Passengers who need lifts in this situation would, in 
effect, be ADA paratransit eligible under the second eligibility 
category. However, since they would have no way of knowing that the bus 
they sought to catch would not be accessible that day, the transit 
authority must actively provide alternative service to them. This could 
be done, for example, by having a ``shadow'' accessible service 
available along the route or having the bus driver call in the minute he 
saw an accessible passenger he could not pick up (including the original 
passenger stranded by an in-service lift failure), with a short (i.e., 
less than 30-minute) response from an accessible vehicle dispatched to 
pick up the stranded passenger. To minimize problems in providing such 
service, when a transit authority is using the ``no spare vehicles'' 
exception, the entity could place the vehicle with the inoperative lift 
on a route with headways between accessible buses shorter than 30 
minutes.

                 Section 37.165  Lift and Securement Use

    This provision applies to both public and private entities.
    All people using common wheelchairs (an inclusive term for mobility 
devices that fit on lifts meeting Access Board guideline dimensions--30" 
by 48" and a maximum of 600 pounds for device and user combined--which 
includes three-wheeled scooters and other so-called non-traditional 
mobility devices) are to be allowed to ride the entity's vehicles.
    Entities may require wheelchair users to ride in designated 
securement locations. That is, the entity is not required to carry 
wheelchair users whose wheelchairs would have to park in an aisle or 
other location where they could obstruct other persons' passage or where 
they could not be secured or restrained. An entity's vehicle is not 
required to pick up a wheelchair user when the securement locations are 
full, just as the vehicle may pass by other passengers waiting at the 
stop if the bus is full.
    The entity may require that wheelchair users make use of securement 
systems for their mobility devices. The entity, in other words, can 
require wheelchair users to ``buckle up'' their mobility devices. The 
entity is required, on a vehicle meeting part 38 standards, to use the 
securement system to secure wheelchairs as provided in that part. On 
other vehicles (e.g., existing vehicles with securement systems which do 
not comply with Part 38 standards), the entity must provide and use a 
securement system to ensure that the mobility device remains within the 
securement area. This latter requirement is a mandate to use best 
efforts to restrain or confine the wheelchair to the securement area. 
The entity does the best it can, given its securement technology and the 
nature of the wheelchair. The Department encourages entities with 
relatively less adequate securement systems on their vehicles, where 
feasible, to retrofit the vehicles with better securement systems, that 
can successfully restrain a wide variety of wheelchairs. It is our 
understanding that the cost of doing so is not enormous.
    An entity may not, in any case, deny transportation to a common 
wheelchair and its user because the wheelchair cannot be secured or 
restrained by a vehicle's securement system, to the entity's 
satisfaction.
    Entities have often recommended or required that a wheelchair user 
transfer out of his or her own device into a vehicle seat. Under this 
rule, it is no longer permissible to require such a transfer. The entity 
may provide information on risks and make a recommendation with respect 
to transfer, but the final decision on whether to transfer is up to the 
passenger.
    The entity's personnel have an obligation to ensure that a passenger 
with a disability is able to take advantage of the accessibility

[[Page 506]]

and safety features on vehicles. Consequently, the driver or other 
personnel must provide assistance with the use of lifts, ramps, and 
securement devices. For example, the driver must deploy the lift 
properly and safely. If the passenger cannot do so independently, the 
driver must assist the passenger with using the securement device. On a 
vehicle which uses a ramp for entry, the driver may have to assist in 
pushing a manual wheelchair up the ramp (particularly where the ramp 
slope is relatively steep). All these actions my involve a driver 
leaving his seat. Even in entities whose drivers traditionally do not 
leave their seats (e.g., because of labor-management agreements or 
company rules), this assistance must be provided. This rule overrides 
any requirements to the contrary.
    Wheelchair users--especially those using electric wheelchairs often 
have a preference for entering a lift platform and vehicle in a 
particular direction (e.g., backing on or going on frontwards). Except 
where the only way of successfully maneuvering a device onto a vehicle 
or into its securement area, or an overriding safety concern (i.e., a 
direct threat) requires one way of doing this or another, the transit 
provider should respect the passenger's preference. We note that most 
electric wheelchairs are usually not equipped with rearview mirrors, and 
that many persons who use them are not able to rotate their heads 
sufficiently to see behind. When an electric wheelchair must back up a 
considerable distance, this can have unfortunate results for other 
people's toes.
    People using canes or walkers and other standees with disabilities 
who do not use wheelchairs but have difficulty using steps (e.g., an 
elderly person who can walk on a plane without use of a mobility aid but 
cannot raise his or her legs sufficiently to climb bus steps) must also 
be permitted to use the lift, on request.

               Section 37.167  Other Service Requirements

    The requirements in this section apply to both public and private 
entities.
    On fixed route systems, the entity must announce stops. These stops 
include transfer points with other fixed routes. This means that any 
time a vehicle is to stop where a passenger can get off and transfer to 
another bus or rail line (or to another form of transportation, such as 
commuter rail or ferry), the stop would be announced. The announcement 
can be made personally by the vehicle operator or can be made by a 
recording system. If the vehicle is small enough so that the operator 
can make himself or herself heard without a P.A. system, it is not 
necessary to use the system.
    Announcements also must be made at major intersections or 
destination points. The rule does not define what major intersections or 
destination points are. This is a judgmental matter best left to the 
local planning process. In addition, the entity must make announcements 
at sufficient intervals along a route to orient a visually impaired 
passenger to his or her location. The other required announcements may 
serve this function in many instances, but if there is a long distance 
between other announcements, fill-in orientation announcements would be 
called for. The entity must announce any stop requested by a passenger 
with a disability, even if it does not meet any of the other criteria 
for announcement.
    When vehicles from more than one route serve a given stop or 
station, the entity must provide a means to assist an individual with a 
visual impairment or other disability in determining which is the proper 
vehicle to enter. Some entities have used external speakers. FTA is 
undertaking a study to determine what is the best available technology 
in this area. Some transit properties have used colored mitts, or 
numbered cards, to allow passengers to inform drivers of what route they 
wanted to use. The idea is to prevent, at a stop where vehicles from a 
number of routes arrive, a person with a visual impairment from having 
to ask every driver whether the bus is the right one. The rule does not 
prescribe what means is to be used, only that some effective means be 
provided.
    Service animals shall always be permitted to accompany their users 
in any private or public transportation vehicle or facility. One of the 
most common misunderstandings about service animals is that they are 
limited to being guide dogs for persons with visual impairments. Dogs 
are trained to assist people with a wide variety of disabilities, 
including individuals with hearing and mobility impairments. Other 
animals (e.g., monkeys) are sometimes used as service animals as well. 
In any of these situations, the entity must permit the service animal to 
accompany its user.
    Part 38 requires a variety of accessibility equipment. This section 
requires that the entity use the equipment it has. For example, it would 
be contrary to this provision for a transit authority to bolt its bus 
lifts shut because transit authority had difficulty maintaining the 
lifts. It does little good to have a public address system on a vehicle 
if the operator does not use it to make announcements (except, as noted 
above, in the situation where the driver can make himself or herself 
heard without recourse to amplification.)
    Entities must make communications and information available, using 
accessible formats and technology (e.g., Braille, large print, TDDs) to 
obtain information about transportation services. Someone cannot 
adequately use the bus system if schedule and route information is not 
available in a form he or she can use. If there is only one phone line 
on which ADA paratransit eligible

[[Page 507]]

individuals can reserve trips, and the line is chronically busy, 
individuals cannot schedule service. Such obstacles to the use of 
transportation service are contrary to this section. (The latter could, 
in some circumstances, be viewed as a capacity constraint.)
    It is inconsistent with this section for a transit provider to 
refuse to let a passenger use a lift at any designated stop, unless the 
lift is physically unable to deploy or the lift would be damaged if it 
did deploy (see discussion under Sec. 37.123). In addition, if a 
temporary situation at the stop (e.g., construction, an accident, a 
landslide) made the stop unsafe for anyone to use, the provider could 
decline to operate the lift there (just as it refused to open the door 
for other passengers at the same point). The provider could not, 
however, declare a stop ``off limits'' to persons with disabilities that 
is used for other persons. If the transit authority has concerns about 
barriers or safety hazards that peculiarly affect individuals with 
disabilities that would use the stop, it should consider making efforts 
to move the stop.
    Under DOT hazardous materials rules, a passenger may bring a 
portable medical oxygen supply on board a vehicle. Since the hazardous 
materials rules permit this, transit providers cannot prohibit it. For 
further information on hazardous materials rules, as they may affect 
transportation of assistive devices, entities may contact the 
Department's Research and Special Programs Administration, Office of 
Hazardous Materials Transportation (202-366-0656).
    One concern that has been expressed is that transportation systems 
(particularly some rail systems) may make it difficult for persons with 
disabilities to board or disembark from vehicles by very rapidly closing 
doors on the vehicles before individuals with disabilities (who may move 
more slowly through crowds in the vehicle or platform than other 
persons) have a chance to get on or off the vehicle. Doing so is 
contrary to the rule; operators must make appropriate provision to give 
individuals with disabilities adequate time to board or disembark.

   Section 37.169  Interim Requirements for Over-the-Road Bus Service 
                      Operated by Private Entities

    Private over-the-road bus (OTRB) service is, first of all, subject 
to all the other private entity requirements of the rule. The 
requirements of this section are in addition to the other applicable 
provisions.
    Boarding assistance is required. The Department cannot require any 
particular boarding assistance devices at this time. Each operator may 
decide what mode of boarding assistance is appropriate for its 
operation. We agree with the discussion in the DOJ Title II rule's 
preamble that carrying is a disfavored method of providing assistance to 
an individual with a disability. However, since accessible private OTRBs 
cannot be required by this rule, there may be times when carrying is the 
only available means of providing access to an OTRB, if the entity does 
not exercise its discretion to provide an alternative means. It is 
required by the rule that any employee who provides boarding 
assistance--above all, who may carry or otherwise directly physically 
assist a passenger--must be trained to provide this assistance 
appropriately and safely.
    The baggage priority provision for wheelchairs and other assistive 
devices involves a similar procedure to that established in the 
Department's Air Carrier Access Act rule (14 CFR part 382). In brief, it 
provides that, at any given stop, a person with a wheelchair or other 
assistive device would have the device loaded before other items at this 
stop. An individual traveling with a wheelchair is not similarly 
situated to a person traveling with luggage. For the wheelchair user, 
the wheelchair is an essential mobility device, without which travel is 
impossible. The rationale of this provision is that, while no one wants 
his or her items left behind, carrying the wheelchair is more important 
to its user than ordinary luggage to a traveler. If it comes to an 
either/or choice (the wheelchair user's luggage would not have any 
priority over other luggage, however). There would be no requirement, 
under this provision, for ``bumping'' baggage already on the bus from 
previous stops in order to make room for the wheelchair.
    The entity could require advance notice from a passenger in only one 
circumstance. If a passenger needed boarding assistance, the entity 
could require up to 48 hours' advance notice for the purpose of 
providing needed assistance. While advance notice requirements are 
generally undesirable, this appears to be a case in which a needed 
accommodation may be able to be provided successfully only if the 
transportation provider knows in advance that some extra staffing is 
needed to accomplish it. While the primary need for advance notice 
appears to be in the situation of an unstaffed station, there could be 
other situations in which advance notice was needed in order to ensure 
that the accommodation could be made. Entities should not ask for 
advance notice in all cases, but just in those cases in which it is 
really needed for this purpose. Even if advance notice is not provided, 
the entity has the obligation to provide boarding assistance if it can 
be provided with available staff.

[[Page 508]]

 Section 37.171  Equivalency Requirement for Demand Responsive Service 
     Operated by Private Entities Not Primarily in the Business of 
                           Transporting People

    This provision is a service requirement closely related to the 
private entity requirements for Secs. 37.101-37.105 of this part. 
Entities in this category are always required to provide equivalent 
service, regardless of what they are doing with respect to the 
acquisition of vehicles. The effect of this provision may be to require 
some entities to arrange, either through acquiring their own accessible 
vehicles or coordinating with other providers, to have accessible 
vehicles available to meet the equivalency standards of Sec. 37.105 or 
otherwise to comply with those standards.

                        Section 37.173  Training

    A well-trained workforce is essential in ensuring that the 
accessibility-related equipment and accommodations required by the ADA 
actually result in the delivery of good transportation service to 
individuals with disabilities. The utility of training was recognized by 
Congress as well. (See S. Rept. 100-116 at 48.) At the same time, we 
believe that training should be conducted in an efficient and effective 
manner, with appropriate flexibility allowed to the organizations that 
must carry it out. Each transportation provider is to design a training 
program which suits the needs of its particular operation. While we are 
confident of this approach, we are mindful that the apparent lack of 
training has been a source of complaint to FTA and transit providers. 
Good training is difficult and it is essential.
    Several points of this section deserve emphasis. First, the 
requirements for training apply to private as well as to public 
providers, of demand responsive as well as of fixed route service. 
Training is just as necessary for the driver of a taxicab, a hotel 
shuttle, or a tour bus as it is for a driver in an FTA-funded city bus 
system.
    Second, training must be to proficiency. The Department is not 
requiring a specific course of training or the submission of a training 
plan for DOT approval. However, every employee of a transportation 
provider who is involved with service to persons with disabilities must 
have been trained so that he or she knows what needs to be done to 
provide the service in the right way. When it comes to providing service 
to individuals with disabilities, ignorance is no excuse for failure.
    While there is no specific requirement for recurrent or refresher 
training, there is an obligation to ensure that, at any given time, 
employees are trained to proficiency. An employee who has forgotten what 
he was told in past training sessions, so that he or she does not know 
what needs to be done to serve individuals with disabilities, does not 
meet the standard of being trained to proficiency.
    Third, training must be appropriate to the duties of each employee. 
A paratransit dispatcher probably must know how to use a TDD and enough 
about various disabilities to know what sort of vehicle to dispatch. A 
bus driver must know how to operate lifts and securement devices 
properly. A mechanic who works on lifts must know how to maintain them. 
Cross-training, while useful in some instances, is not required, so long 
as each employee is trained to proficiency in what he or she does with 
respect to service to individuals with disabilities.
    Fourth, the training requirement goes both to technical tasks and 
human relations. Employees obviously need to know how to run equipment 
the right way. If an employee will be assisting wheelchair users in 
transferring from a wheelchair to a vehicle seat, the employee needs 
training in how to do this safely. But every public contact employee 
also has to understand the necessity of treating individuals with 
disabilities courteously and respectfully, and the details of what that 
involves.
    One of the best sources of information on how best to train 
personnel to interact appropriately with individuals with disabilities 
is the disability community itself. Consequently, the Department urges 
entities to consult with disability organizations concerning how to 
train their personnel. Involving these groups in the process of 
establishing training programs, in addition to providing useful 
information, should help to establish or improve working relationships 
among transit providers and disability groups that, necessarily, will be 
of long duration. We note that several transit providers use persons 
with disabilities to provide the actual training. Others have reported 
that role playing is an effective method to instill an appreciation of 
the particular perspective of one traveling with a disability.
    Finally, one of the important points in training concerns 
differences among individuals with disabilities. All individuals with 
disabilities, of course, are not alike. The appropriate ways one deals 
with persons with various kinds of disabilities (e.g., mobility, vision, 
hearing, or mental impairments) are likely to differ and, while no one 
expects bus drivers to be trained as disability specialists, recognizing 
relevant differences and responding to them appropriately is extremely 
significant. Public entities who contract with private entities to have 
service provided--above all, complementary paratransit--are responsible 
for ensuring that contractor personnel receive the appropriate training.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]

[[Page 509]]



PART 38--AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY SPECIFICATIONS FOR TRANSPORTATION VEHICLES--Table of Contents




                           Subpart A--General

Sec.
38.1  Purpose.
38.2  Equivalent facilitation.
38.3  Definitions.
38.4  Miscellaneous instructions.

                   Subpart B--Buses, Vans and Systems

38.21  General.
38.23  Mobility aid accessibility.
38.25  Doors, steps and thresholds.
38.27  Priority seating signs.
38.29  Interior circulation, handrails and stanchions.
38.31  Lighting.
38.33  Fare box.
38.35  Public information system.
38.37  Stop request.
38.39  Destination and route signs.

               Subpart C--Rapid Rail Vehicles and Systems

38.51  General.
38.53  Doorways.
38.55  Priority seating signs.
38.57  Interior circulation, handrails and stanchions.
38.59  Floor surfaces.
38.61  Public information system.
38.63  Between-car barriers.

               Subpart D--Light Rail Vehicles and Systems

38.71  General.
38.73  Doorways.
38.75  Priority seating signs.
38.77  Interior circulation, handrails and stanchions.
38.79  Floors, steps and thresholds,
38.81  Lighting.
38.83  Mobility aid accessibility.
38.85  Between-car barriers.
38.87  Public information system.

                Subpart E--Commuter Rail Cars and Systems

38.91  General.
38.93  Doorways.
38.95  Mobility aid accessibility.
38.97  Interior circulation, handrails and stanchions.
38.99  Floors, steps and thresholds.
38.101  Lighting.
38.103  Public information system.
38.105  Priority seating signs.
38.107  Restrooms.
38.109  Between-car barriers.

               Subpart F--Intercity Rail Cars and Systems

38.111  General.
38.113  Doorways.
38.115  Interior circulation, handrails and stanchions.
38.117  Floors, steps and thresholds.
38.119  Lighting.
38.121  Public information system.
38.123  Restrooms.
38.125  Mobility aid accessibility.
38.127  Sleeping compartments.

               Subpart G--Over-the-Road Buses and Systems

38.151  General.
38.153  Doors, steps and thresholds.
38.155  Interior circulation, handrails and stanchions.
38.157  Lighting.
38.159  Mobility aid accessibility.
38.161  Moveable aisle armrests.

                  Subpart H--Other Vehicles and Systems

38.171  General.
38.173  Automated guideway transit vehicles and systems.
38.175  High-speed rail cars, monorails and systems.
38.177  Ferries, excursion boats and other vessels. [Reserved]
38.179  Trams, and similar vehicles, and systems.

Figures to Part 38
Appendix to Part 38--Guidance Material

    Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.

    Source: 56 FR 45756, Sept. 6, 1991, unless otherwise noted.



                           Subpart A--General



Sec. 38.1  Purpose.

    This part provides minimum guidelines and requirements for 
accessibility standards in part 37 of this title for transportation 
vehicles required to be accessible by the Americans With Disabilities 
Act (ADA) of 1990 (42 U.S.C. 1201 et seq.).



Sec. 38.2  Equivalent facilitation.

    Departures from particular technical and scoping requirements of 
these guidelines by use of other designs and technologies are permitted 
where the alternative designs and technologies used will provide 
substantially equivalent or greater access to and usability of the 
vehicle. Departures are to be considered on a case-by-case basis

[[Page 510]]

under procedures set forth in Sec. 37.7 of this title.



Sec. 38.3  Definitions.

    See Sec. 37.3 of this title.



Sec. 38.4  Miscellaneous instructions.

    (a) Dimensional conventions. Dimensions that are not noted as 
minimum or maximum are absolute.
    (b) Dimensional tolerances. All dimensions are subject to 
conventional engineering tolerances for material properties and field 
conditions, including normal anticipated wear not exceeding accepted 
industry-wide standards and practices.
    (c) Notes. The text of these guidelines does not contain notes or 
footnotes. Additional information, explanations, and advisory materials 
are located in the Appendix.
    (d) General terminology. (1) Comply with means meet one or more 
specification of these guidelines.
    (2) If or if * * * then denotes a specification that applies only 
when the conditions described are present.
    (3) May denotes an option or alternative.
    (4) Shall denotes a mandatory specification or requirement.
    (5) Should denotes an advisory specification or recommendation.



                   Subpart B--Buses, Vans and Systems



Sec. 38.21  General.

    (a) New, used or remanufactured buses and vans (except over-the-road 
buses covered by subpart G of this part), to be considered accessible by 
regulations in part 37 of this title shall comply with the applicable 
provisions of this subpart.
    (b) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible buses be retrofitted with 
lifts, ramps or other boarding devices.



Sec. 38.23  Mobility aid accessibility.

    (a) General. All vehicles covered by this subpart shall provide a 
level-change mechanism or boarding device (e.g., lift or ramp) complying 
with paragraph (b) or (c) of this section and sufficient clearances to 
permit a wheelchair or other mobility aid user to reach a securement 
location. At least two securement locations and devices, complying with 
paragraph (d) of this section, shall be provided on vehicles in excess 
of 22 feet in length; at least one securement location and device, 
complying with paragraph (d) of this section, shall be provided on 
vehicles 22 feet in length or less.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds. Working parts, such as cables, pulleys, and 
shafts, which can be expected to wear, and upon which the lift depends 
for support of the load, shall have a safety factor of at least six, 
based on the ultimate strength of the material. Nonworking parts, such 
as platform, frame, and attachment hardware which would not be expected 
to wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, transmission, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the vehicle cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all levels (i.e., ground, curb, and intermediate positions) normally 
encountered in the operating environment. Where provided, each control 
for deploying, lowering, raising, and stowing the lift and lowering the 
roll-off barrier shall be of a momentary contact type requiring 
continuous manual pressure by the operator and shall not allow improper 
lift sequencing when the lift platform is occupied. The controls shall 
allow reversal of the lift operation sequence, such as raising or 
lowering a platform that is part way down, without allowing an occupied 
platform to fold or retract into the stowed position.
    (ii) Exception. Where the lift is designed to deploy with its long 
dimension parallel to the vehicle axis and which pivots into or out of 
the vehicle while occupied (i.e., ``rotary lift''), the

[[Page 511]]

requirements of this paragraph prohibiting the lift from being stowed 
while occupied shall not apply if the stowed position is within the 
passenger compartment and the lift is intended to be stowed while 
occupied.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method, manual or otherwise, shall be capable of being 
operated in a manner that could be hazardous to the lift occupant or to 
the operator when operated according to manufacturer's instructions, and 
shall not permit the platform to be stowed or folded when occupied, 
unless the lift is a rotary lift and is intended to be stowed while 
occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the platform during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the platform is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches high. Such barriers shall not interfere with maneuvering 
into or out of the aisle. The loading-edge barrier (outer barrier) which 
functions as a loading ramp when the lift is at ground level, shall be 
sufficient when raised or closed, or a supplementary system shall be 
provided, to prevent a power wheelchair or mobility aid from riding over 
or defeating it. The outer barrier of the lift shall automatically raise 
or close, or a supplementary system shall automatically engage, and 
remain raised, closed, or engaged at all times that the platform is more 
than 3 inches above the roadway or sidewalk and the platform is 
occupied. Alternatively, a barrier or system may be raised, lowered, 
opened, closed, engaged, or disengaged by the lift operator, provided an 
interlock or inherent design feature prevents the lift from rising 
unless the barrier is raised or closed or the supplementary system is 
engaged.
    (6) Platform surface. The platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the platform surface to 30 inches above the platform, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface of the platform. 
(See Fig. 1)
    (7) Platform gaps. Any openings between the platform surface and the 
raised barriers shall not exceed \5/8\ inch in width. When the platform 
is at vehicle floor height with the inner barrier (if applicable) down 
or retracted, gaps between the forward lift platform edge and the 
vehicle floor shall not exceed \1/2\ inch horizontally and \5/8\ inch 
vertically. Platforms on semi-automatic lifts may have a hand hold not 
exceeding 1\1/2\ inches by 4\1/2\ inches located between the edge 
barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, measured on 
level ground, for a maximum rise of 3 inches, and the transition from 
roadway or sidewalk to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll or pitch) in any direction between its unloaded position 
and its position when loaded with 600 pounds applied through a 26 inch 
by 26 inch test pallet at the centroid of the platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying

[[Page 512]]

or stowing. This requirement does not apply to the deployment or stowage 
cycles of lifts that are manually deployed or stowed. The maximum 
platform horizontal and vertical acceleration when occupied shall be 
0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchair and mobility aid users.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The platform may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall be placed to 
provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface. Handrails shall not interfere with wheelchair or 
mobility aid maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp--(1) Design load. Ramps 30 inches or longer shall 
support a load of 600 pounds, placed at the centroid of the ramp 
distributed over an area of 26 inches by 26 inches, with a safety factor 
of at least 3 based on the ultimate strength of the material. Ramps 
shorter than 30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp surface shall be continuous and slip 
resistant; shall not have protrusions from the surface greater than \1/
4\ inch high; shall have a clear width of 30 inches; and shall 
accommodate both four-wheel and three-wheel mobility aids.
    (3) Ramp threshold. The transition from roadway or sidewalk and the 
transition from vehicle floor to the ramp may be vertical without edge 
treatment up to \1/4\ inch. Changes in level between \1/4\ inch and \1/
2\ inch shall be beveled with a slope no greater than 1:2.
    (4) Ramp barriers. Each side of the ramp shall have barriers at 
least 2 inches high to prevent mobility aid wheels from slipping off.
    (5) Slope. Ramps shall have the least slope practicable and shall 
not exceed 1:4 when deployed to ground level. If the height of the 
vehicle floor from which the ramp is deployed is 3 inches or less above 
a 6-inch curb, a maximum slope of 1:4 is permitted; if the height of the 
vehicle floor from which the ramp is deployed is 6 inches or less, but 
greater than 3 inches, above a 6-inch curb, a maximum slope of 1:6 is 
permitted; if the height of the vehicle floor from which the ramp is 
deployed is 9 inches or less, but greater than 6 inches, above a 6-inch 
curb, a maximum slope of 1:8 is permitted; if the height of the vehicle 
floor from which the ramp is deployed is greater than 9 inches above a 
6-inch curb, a slope of 1:12 shall be achieved. Folding or telescoping 
ramps are permitted provided they meet all structural requirements of 
this section.
    (6) Attachment. When in use for boarding or alighting, the ramp 
shall be firmly attached to the vehicle so that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that no gap between vehicle and ramp exceeds \5/8\ inch.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps, including portable 
ramps stowed in the passenger area, do not impinge on a passenger's 
wheelchair or mobility aid or pose any hazard to passengers in the event 
of a sudden stop or maneuver.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches and 38 inches above the ramp 
surface. The handrails

[[Page 513]]

shall be capable of withstanding a force of 100 pounds concentrated at 
any point on the handrail without permanent deformation of the rail or 
its supporting structure. The handrail shall have a cross-sectional 
diameter between 1\1/4\ inches and 1\1/2\ inches or shall provide an 
equivalent grasping surface, and have eased edges with corner radii of 
not less than \1/8\ inch. Handrails shall not interfere with wheelchair 
or mobility aid maneuverability when entering or leaving the vehicle.
    (d) Securement devices--(1) Design load. Securement systems on 
vehicles with GVWRs of 30,000 pounds or above, and their attachments to 
such vehicles, shall restrain a force in the forward longitudinal 
direction of up to 2,000 pounds per securement leg or clamping mechanism 
and a minimum of 4,000 pounds for each mobility aid. Securement systems 
on vehicles with GVWRs of up to 30,000 pounds, and their attachments to 
such vehicles, shall restrain a force in the forward longitudinal 
direction of up to 2,500 pounds per securement leg or clamping mechanism 
and a minimum of 5,000 pounds for each mobility aid.
    (2) Location and size. The securement system shall be placed as near 
to the accessible entrance as practicable and shall have a clear floor 
area of 30 inches by 48 inches. Such space shall adjoin, and may 
overlap, an access path. Not more than 6 inches of the required clear 
floor space may be accommodated for footrests under another seat 
provided there is a minimum of 9 inches from the floor to the lowest 
part of the seat overhanging the space. Securement areas may have fold-
down seats to accommodate other passengers when a wheelchair or mobility 
aid is not occupying the area, provided the seats, when folded up, do 
not obstruct the clear floor space required. (See Fig. 2)
    (3) Mobility aids accommodated. The securement system shall secure 
common wheelchairs and mobility aids and shall either be automatic or 
easily attached by a person familiar with the system and mobility aid 
and having average dexterity.
    (4) Orientation. In vehicles in excess of 22 feet in length, at 
least one securement device or system required by paragraph (a) of this 
section shall secure the wheelchair or mobility aid facing toward the 
front of the vehicle. Additional securement devices or systems shall 
secure the wheelchair or mobility aid facing forward, or rearward with a 
padded barrier, extending from a height of 38 inches from the vehicle 
floor to a height of 56 inches from the vehicle floor with a width of 18 
inches, laterally centered immediately in back of the seated individual. 
In vehicles 22 feet in length or less, the required securement device 
may secure the wheelchair or mobility aid either facing toward the front 
of the vehicle or facing rearward, with a padded barrier as described. 
Additional securement locations shall be either forward or rearward 
facing with a padded barrier. Such barriers need not be solid provided 
equivalent protection is afforded.
    (5) Movement. When the wheelchair or mobility aid is secured in 
accordance with manufacturer's instructions, the securement system shall 
limit the movement of an occupied wheelchair or mobility aid to no more 
than 2 inches in any direction under normal vehicle operating 
conditions.
    (6) Stowage. When not being used for securement, or when the 
securement area can be used by standees, the securement system shall not 
interfere with passenger movement, shall not present any hazardous 
condition, shall be reasonably protected from vandalism, and shall be 
readily accessed when needed for use.
    (7) Seat belt and shoulder harness. For each wheelchair or mobility 
aid securement device provided, a passenger seat belt and shoulder 
harness, complying with all applicable provisions of part 571 of this 
title, shall also be provided for use by wheelchair or mobility aid 
users. Such seat belts and shoulder harnesses shall not be used in lieu 
of a device which secures the wheelchair or mobility aid itself.



Sec. 38.25  Doors, steps and thresholds.

    (a) Slip resistance. All aisles, steps, floor areas where people 
walk and floors in securement locations shall have slip-resistant 
surfaces.
    (b) Contrast. All step edges, thresholds and the boarding edge of 
ramps or

[[Page 514]]

lift platforms shall have a band of color(s) running the full width of 
the step or edge which contrasts from the step tread and riser, or lift 
or ramp surface, either light-on-dark or dark-on-light.
    (c) Door height. For vehicles in excess of 22 feet in length, the 
overhead clearance between the top of the door opening and the raised 
lift platform, or highest point of a ramp, shall be a minimum of 68 
inches. For vehicles of 22 feet in length or less, the overhead 
clearance between the top of the door opening and the raised lift 
platform, or highest point of a ramp, shall be a minimum of 56 inches.



Sec. 38.27  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that seats in 
the front of the vehicle are priority seats for persons with 
disabilities, and that other passengers should make such seats available 
to those who wish to use them. At least one set of forward-facing seats 
shall be so designated.
    (b) Each securement location shall have a sign designating it as 
such.
    (c) Characters on signs required by paragraphs (a) and (b) of this 
section shall have a width-to-height ratio between 3:5 and 1:1 and a 
stroke width-to-height ratio between 1:5 and 1:10, with a minimum 
character height (using an upper case ``X'') of \5/8\ inch, with 
``wide'' spacing (generally, the space between letters shall be \1/16\ 
the height of upper case letters), and shall contrast with the 
background either light-on-dark or dark-on-light.



Sec. 38.29  Interior circulation, handrails and stanchions.

    (a) Interior handrails and stanchions shall permit sufficient 
turning and maneuvering space for wheelchairs and other mobility aids to 
reach a securement location from the lift or ramp.
    (b) Handrails and stanchions shall be provided in the entrance to 
the vehicle in a configuration which allows persons with disabilities to 
grasp such assists from outside the vehicle while starting to board, and 
to continue using such assists throughout the boarding and fare 
collection process. Handrails shall have a cross-sectional diameter 
between 1\1/4\ inches and 1\1/2\ inches or shall provide an equivalent 
grasping surface, and have eased edges with corner radii of not less 
than \1/8\ inch. Handrails shall be placed to provide a minimum 1\1/2\ 
inches knuckle clearance from the nearest adjacent surface. Where on-
board fare collection devices are used on vehicles in excess of 22 feet 
in length, a horizontal passenger assist shall be located across the 
front of the vehicle and shall prevent passengers from sustaining 
injuries on the fare collection device or windshield in the event of a 
sudden deceleration. Without restricting the vestibule space, the assist 
shall provide support for a boarding passenger from the front door 
through the boarding procedure. Passengers shall be able to lean against 
the assist for security while paying fares.
    (c) For vehicles in excess of 22 feet in length, overhead 
handrail(s) shall be provided which shall be continuous except for a gap 
at the rear doorway.
    (d) Handrails and stanchions shall be sufficient to permit safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (e) For vehicles in excess of 22 feet in length with front-door 
lifts or ramps, vertical stanchions immediately behind the driver shall 
either terminate at the lower edge of the aisle-facing seats, if 
applicable, or be ``dog-legged'' so that the floor attachment does not 
impede or interfere with wheelchair footrests. If the driver seat 
platform must be passed by a wheelchair or mobility aid user entering 
the vehicle, the platform, to the maximum extent practicable, shall not 
extend into the aisle or vestibule beyond the wheel housing.
    (f) For vehicles in excess of 22 feet in length, the minimum 
interior height along the path from the lift to the securement location 
shall be 68 inches. For vehicles of 22 feet in length or less, the 
minimum interior height from lift to securement location shall be 56 
inches.



Sec. 38.31  Lighting.

    (a) Any stepwell or doorway immediately adjacent to the driver shall 
have, when the door is open, at least 2 foot-candles of illumination 
measured on the step tread or lift platform.

[[Page 515]]

    (b) Other stepwells and doorways, including doorways in which lifts 
or ramps are installed, shall have, at all times, at least 2 foot-
candles of illumination measured on the step tread, or lift or ramp, 
when deployed at the vehicle floor level.
    (c) The vehicle doorways, including doorways in which lifts or ramps 
are installed, shall have outside light(s) which, when the door is open, 
provide at least 1 foot-candle of illumination on the street surface for 
a distance 3 feet (915 mm) perpendicular to the bottom step tread or 
lift outer edge. Such light(s) shall be shielded to protect the eyes of 
entering and exiting passengers.

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51697, 51702, Sept. 28, 
1998]

    Effective Date Note: At 63 FR 51697, 51702, Sept. 28, 1998, 
Sec. 38.31 was amended by revising paragraph (c), effective Oct. 28, 
1998. For the convenience of the user, the superseded text is set forth 
as follows:

Sec. 38.31  Lighting.

                                * * * * *

    (c) The vehicle doorways, including doorways in which lifts or ramps 
are installed, shall have outside light(s) which, when the door is open, 
provide at least 1 foot-candle of illumination on the street surface for 
a distance of 3 feet perpendicular to all points on the bottom step 
tread outer edge. Such light(s) shall be located below window level and 
shielded to protect the eyes of entering and existing passengers.



Sec. 38.33  Fare box.

    Where provided, the farebox shall be located as far forward as 
practicable and shall not obstruct traffic in the vestibule, especially 
wheelchairs or mobility aids.



Sec. 38.35  Public information system.

    (a) Vehicles in excess of 22 feet in length, used in multiple-stop, 
fixed-route service, shall be equipped with a public address system 
permitting the driver, or recorded or digitized human speech messages, 
to announce stops and provide other passenger information within the 
vehicle.
    (b) [Reserved]



Sec. 38.37  Stop request.

    (a) Where passengers may board or alight at multiple stops at their 
option, vehicles in excess of 22 feet in length shall provide controls 
adjacent to the securement location for requesting stops and which 
alerts the driver that a mobility aid user wishes to disembark. Such a 
system shall provide auditory and visual indications that the request 
has been made.
    (b) Controls required by paragraph (a) of this section shall be 
mounted no higher than 48 inches and no lower than 15 inches above the 
floor, shall be operable with one hand and shall not require tight 
grasping, pinching, or twisting of the wrist. The force required to 
activate controls shall be no greater than 5 lbf (22.2 N).



Sec. 38.39  Destination and route signs.

    (a) Where destination or route information is displayed on the 
exterior of a vehicle, each vehicle shall have illuminated signs on the 
front and boarding side of the vehicle.
    (b) Characters on signs required by paragraph (a) of this section 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of 1 inch for signs on the boarding 
side and a minimum character height of 2 inches for front ``headsigns'', 
with ``wide'' spacing (generally, the space between letters shall be 1/
16 the height of upper case letters), and shall contrast with the 
background, either dark-on-light or light-on-dark.



               Subpart C--Rapid Rail Vehicles and Systems



Sec. 38.51  General.

    (a) New, used and remanufactured rapid rail vehicles, to be 
considered accessible by regulations in part 37 of this title, shall 
comply with this subpart.
    (b) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this

[[Page 516]]

subpart. This provision does not require that inaccessible vehicles be 
retrofitted with lifts, ramps or other boarding devices.
    (c) Existing vehicles which are retrofitted to comply with the 
``one-car-per-train rule'' of Sec. 37.93 of this title shall comply with 
Secs. 38.55, 38.57(b), 38.59 of this part and shall have, in new and key 
stations, at least one door complying with Secs. 38.53 (a)(1), (b) and 
(d) of this part. Removal of seats is not required. Vehicles previously 
designed and manufactured in accordance with the accessibility 
requirements of part 609 of this title or the Secretary of 
Transportation regulations implementing section 504 of the 
Rehabilitation Act of 1973 that were in effect before October 7, 1991, 
and which can be entered and used from stations in which they are to be 
operated, may be used to satisfy the requirements of Sec. 37.93 of this 
title.



Sec. 38.53  Doorways.

    (a) Clear width. (1) Passenger doorways on vehicle sides shall have 
clear openings at least 32 inches wide when open.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have a 
minimum clear opening of 30 inches to permit wheelchair and mobility aid 
users to be evacuated to an adjoining vehicle in an emergency.
    (b) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of accessible vehicles operating on an 
accessible rapid rail system unless all vehicles are accessible and are 
not marked by the access symbol. (See Fig. 6.)
    (c) Signals. Auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platform--(1) Requirements. Where new 
vehicles will operate in new stations, the design of vehicles shall be 
coordinated with the boarding platform design such that the horizontal 
gap between each vehicle door at rest and the platform shall be no 
greater than 3 inches and the height of the vehicle floor shall be 
within plus or minus \5/8\ inch of the platform height under all normal 
passenger load conditions. Vertical alignment may be accomplished by 
vehicle air suspension or other suitable means of meeting the 
requirement.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one door of 
each such vehicle and the platform shall be no greater than 3 inches.
    (3) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.



Sec. 38.55  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that certain 
seats are priority seats for persons with disabilities, and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Characters on signs required by paragraph (a) of this section 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of \5/8\ inch, with ``wide'' spacing 
(generally, the space between letters shall be \1/16\ the height of 
upper case letters), and shall contrast with the background, either 
light-on-dark or dark-on-light.



Sec. 38.57  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be provided to assist safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (b) Handrails, stanchions, and seats shall allow a route at least 32 
inches wide so that at least two wheelchair or mobility aid users can 
enter the vehicle and position the wheelchairs or mobility aids in 
areas, each having a minimum clear space of 48 inches by 30 inches, 
which do not unduly restrict movement of other passengers. Space

[[Page 517]]

to accommodate wheelchairs and mobility aids may be provided within the 
normal area used by standees and designation of specific spaces is not 
required. Particular attention shall be given to ensuring maximum 
maneuverability immediately inside doors. Ample vertical stanchions from 
ceiling to seat-back rails shall be provided. Vertical stanchions from 
ceiling to floor shall not interfere with wheelchair or mobility aid 
user circulation and shall be kept to a minimum in the vicinity of 
doors.
    (c) The diameter or width of the gripping surface of handrails and 
stanchions shall be 1\1/4\ inches to 1\1/2\ inches or provide an 
equivalent gripping surface and shall provide a minimum 1\1/2\ inches 
knuckle clearance from the nearest adjacent surface.



Sec. 38.59  Floor surfaces.

    Floor surfaces on aisles, places for standees, and areas where 
wheelchair and mobility aid users are to be accommodated shall be slip-
resistant.



Sec. 38.61  Public information system.

    (a)(1) Requirements. Each vehicle shall be equipped with a public 
address system permitting transportation system personnel, or recorded 
or digitized human speech messages, to announce stations and provide 
other passenger information. Alternative systems or devices which 
provide equivalent access are also permitted. Each vehicle operating in 
stations having more than one line or route shall have an external 
public address system to permit transportation system personnel, or 
recorded or digitized human speech messages, to announce train, route, 
or line identification information.
    (2) Exception. Where station announcement systems provide 
information on arriving trains, an external train speaker is not 
required.
    (b) [Reserved]



Sec. 38.63  Between-car barriers.

    (a) Requirement. Suitable devices or systems shall be provided to 
prevent, deter or warn individuals from inadvertently stepping off the 
platform between cars. Acceptable solutions include, but are not limited 
to, pantograph gates, chains, motion detectors or similar devices.
    (b) Exception. Between-car barriers are not required where platform 
screens are provided which close off the platform edge and open only 
when trains are correctly aligned with the doors.



               Subpart D--Light Rail Vehicles and Systems



Sec. 38.71  General.

    (a) New, used and remanufactured light rail vehicles, to be 
considered accessible by regulations in part 37 of this title shall 
comply with this subpart.
    (b)(1) Vehicles intended to be operated solely in light rail systems 
confined entirely to a dedicated right-of-way, and for which all 
stations or stops are designed and constructed for revenue service after 
the effective date of standards for design and construction in 
Sec. 37.21 and Sec. 37.23 of this title shall provide level boarding and 
shall comply with Sec. 38.73(d)(1) and Sec. 38.85 of this part.
    (2) Vehicles designed for, and operated on, pedestrian malls, city 
streets, or other areas where level boarding is not practicable shall 
provide wayside or car-borne lifts, mini-high platforms, or other means 
of access in compliance with Sec. 38.83 (b) or (c) of this part.
    (c) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible vehicles be retrofitted 
with lifts, ramps or other boarding devices.
    (d) Existing vehicles retrofitted to comply with the ``one-car-per-
train rule'' at Sec. 37.93 of this title shall comply with Sec. 38.75, 
Sec. 38.77(c), Sec. 38.79(a) and Sec. 38.83(a) of this part and shall 
have, in new and key stations, at least one door which complies with 
Secs. 38.73 (a)(1), (b) and (d) of this part. Vehicles previously 
designed and manufactured in accordance with the accessibility 
requirements of part 609 of this title or the Secretary of 
Transportation regulations implementing section 504 of the 
Rehabilitation Act of 1973 that were in

[[Page 518]]

effect before October 7, 1991, and which can be entered and used from 
stations in which they are to be operated, may be used to satisfy the 
requirements of Sec. 37.93 of this title.



Sec. 38.73  Doorways.

    (a) Clear width--(1) All passenger doorways on vehicle sides shall 
have minimum clear openings of 32 inches when open.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have a 
minimum clear opening of 30 inches to permit wheelchair and mobility aid 
users to be evacuated to an adjoining vehicle in an emergency.
    (b) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of each vehicle operating on an accessible 
light rail system unless all vehicles are accessible and are not marked 
by the access symbol (see fig. 6).
    (c) Signals. Auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platform--(1) Requirements. The 
design of level-entry vehicles shall be coordinated with the boarding 
platform or mini-high platform design so that the horizontal gap between 
a vehicle at rest and the platform shall be no greater than 3 inches and 
the height of the vehicle floor shall be within plus or minus \5/8\ inch 
of the platform height. Vertical alignment may be accomplished by 
vehicle air suspension, automatic ramps or lifts, or any combination.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one door of 
each such vehicle and the platform shall be no greater than 3 inches.
    (3) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (4) Exception. Where it is not operationally or structurally 
practicable to meet the horizontal or vertical requirements of 
paragraphs (d) (1), (2) or (3) of this section, platform or vehicle 
devices complying with Sec. 38.83(b) or platform or vehicle mounted 
ramps or bridge plates complying with Sec. 38.83(c) shall be provided.



Sec. 38.75  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that certain 
seats are priority seats for persons with disabilities, and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Where designated wheelchair or mobility aid seating locations 
are provided, signs shall indicate the location and advise other 
passengers of the need to permit wheelchair and mobility aid users to 
occupy them.
    (c) Characters on signs required by paragraphs (a) or (b) of this 
section shall have a width-to-height ratio between 3:5 and 1:1 and a 
stroke width-to-height ratio between 1:5 and 1:10, with a minimum 
character height (using an upper case ``X'') of \5/8\ inch, with 
``wide'' spacing (generally, the space between letters shall be \1/16\ 
the height of upper case letters), and shall contrast with the 
background, either light-on-dark or dark-on-light.



Sec. 38.77  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be sufficient to permit safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (b) At entrances equipped with steps, handrails and stanchions shall 
be provided in the entrance to the vehicle in a configuration which 
allows passengers to grasp such assists from outside the vehicle while 
starting to board, and to continue using such handrails or stanchions 
throughout the boarding process. Handrails shall have a cross-sectional 
diameter between 1\1/4\ inches and 1\1/2\ inches or shall provide an 
equivalent grasping surface, and have eased edges with corner radii of

[[Page 519]]

not less than \1/8\ inch. Handrails shall be placed to provide a minimum 
1\1/2\ inches knuckle clearance from the nearest adjacent surface. Where 
on-board fare collection devices are used, a horizontal passenger assist 
shall be located between boarding passengers and the fare collection 
device and shall prevent passengers from sustaining injuries on the fare 
collection device or windshield in the event of a sudden deceleration. 
Without restricting the vestibule space, the assist shall provide 
support for a boarding passenger from the door through the boarding 
procedure. Passengers shall be able to lean against the assist for 
security while paying fares.
    (c) At all doors on level-entry vehicles, and at each entrance 
accessible by lift, ramp, bridge plate or other suitable means, 
handrails, stanchions, passenger seats, vehicle driver seat platforms, 
and fare boxes, if applicable, shall be located so as to allow a route 
at least 32 inches wide so that at least two wheelchair or mobility aid 
users can enter the vehicle and position the wheelchairs or mobility 
aids in areas, each having a minimum clear space of 48 inches by 30 
inches, which do not unduly restrict movement of other passengers. Space 
to accommodate wheelchairs and mobility aids may be provided within the 
normal area used by standees and designation of specific spaces is not 
required. Particular attention shall be given to ensuring maximum 
maneuverability immediately inside doors. Ample vertical stanchions from 
ceiling to seat-back rails shall be provided. Vertical stanchions from 
ceiling to floor shall not interfere with wheelchair or mobility aid 
circulation and shall be kept to a minimum in the vicinity of accessible 
doors.



Sec. 38.79  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads, places for standees, and 
areas where wheelchair and mobility aid users are to be accommodated 
shall be slip-resistant.
    (b) All thresholds and step edges shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec. 38.81  Lighting.

    (a) Any stepwell or doorway with a lift, ramp or bridge plate 
immediately adjacent to the driver shall have, when the door is open, at 
least 2 foot-candles of illumination measured on the step tread or lift 
platform.
    (b) Other stepwells, and doorways with lifts, ramps or bridge 
plates, shall have, at all times, at least 2 foot-candles of 
illumination measured on the step tread or lift or ramp, when deployed 
at the vehicle floor level.
    (c) The doorways of vehicles not operating at lighted station 
platforms shall have outside lights which provide at least 1 foot-candle 
of illumination on the station platform or street surface for a distance 
of 3 feet perpendicular to all points on the bottom step tread. Such 
lights shall be located below window level and shielded to protect the 
eyes of entering and exiting passengers.



Sec. 38.83  Mobility aid accessibility.

    (a)(1) General. All new light rail vehicles, other than level entry 
vehicles, covered by this subpart shall provide a level-change mechanism 
or boarding device (e.g., lift, ramp or bridge plate) complying with 
either paragraph (b) or (c) of this section and sufficient clearances to 
permit at least two wheelchair or mobility aid users to reach areas, 
each with a minimum clear floor space of 48 inches by 30 inches, which 
do not unduly restrict passenger flow. Space to accommodate wheelchairs 
and mobility aids may be provided within the normal area used by 
standees and designation of specific spaces is not required.
    (2) Exception. If lifts, ramps or bridge plates meeting the 
requirements of this section are provided on station platforms or other 
stops required to be accessible, or mini-high platforms complying with 
Sec. 38.73(d) of this part are provided, the vehicle is not required to 
be equipped with a car-borne device. Where each new vehicle is 
compatible with a single platform-mounted access system or device, 
additional systems or devices are not required for each vehicle provided 
that the single device could be used to provide access to each

[[Page 520]]

new vehicle if passengers using wheelchairs or mobility aids could not 
be accommodated on a single vehicle.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds. Working parts, such as cables, pulleys, and 
shafts, which can be expected to wear, and upon which the lift depends 
for support of the load, shall have a safety factor of at least six, 
based on the ultimate strength of the material. Nonworking parts, such 
as platform, frame, and attachment hardware which would not be expected 
to wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, propulsion system, or door, or shall provide 
other appropriate mechanisms or systems, to ensure that the vehicle 
cannot be moved when the lift is not stowed and so the lift cannot be 
deployed unless the interlocks or systems are engaged. The lift shall 
deploy to all levels (i.e., ground, curb, and intermediate positions) 
normally encountered in the operating environment. Where provided, each 
control for deploying, lowering, raising, and stowing the lift and 
lowering the roll-off barrier shall be of a momentary contact type 
requiring continuous manual pressure by the operator and shall not allow 
improper lift sequencing when the lift platform is occupied. The 
controls shall allow reversal of the lift operation sequence, such as 
raising or lowering a platform that is part way down, without allowing 
an occupied platform to fold or retract into the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the vehicle axis, the transportation entity may specify 
a lift which is designed to deploy with its long dimension parallel to 
the vehicle axis and which pivots into or out of the vehicle while 
occupied (i.e., ``rotary lift''). The requirements of paragraph 
(b)(2)(i) of this section prohibiting the lift from being stowed while 
occupied shall not apply to a lift design of this type if the stowed 
position is within the passenger compartment and the lift is intended to 
be stowed while occupied.
    (iii) Exception. The brake or propulsion system interlocks 
requirement does not apply to a station platform mounted lift provided 
that a mechanical, electrical or other system operates to ensure that 
vehicles do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method, manual or otherwise, shall be capable of being 
operated in a manner that could be hazardous to the lift occupant or to 
the operator when operated according to manufacturer's instructions, and 
shall not permit the platform to be stowed or folded when occupied, 
unless the lift is a rotary lift intended to be stowed while occupied.
    (4) Power or equipment failure. Lift platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the lift is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches high. Such barriers shall not interfere with maneuvering 
into or out of the aisle. The loading-edge barrier (outer barrier) which 
functions as a loading ramp when the lift is at ground level, shall be 
sufficient when raised or closed, or a supplementary system shall be 
provided, to prevent a power wheelchair or mobility aid from riding over 
or defeating it. The outer barrier on the outboard of the lift shall 
automatically rise or close, or a supplementary system shall 
automatically engage, and

[[Page 521]]

remain raised, closed, or engaged at all times that the lift is more 
than 3 inches above the station platform or roadway and the lift is 
occupied. Alternatively, a barrier or system may be raised, lowered, 
opened, closed, engaged or disengaged by the lift operator provided an 
interlock or inherent design feature prevents the lift from rising 
unless the barrier is raised or closed or the supplementary system is 
engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at vehicle floor height with the inner barrier (if applicable) down 
or retracted, gaps between the forward lift platform edge and vehicle 
floor shall not exceed \1/2\ inch horizontally and \5/8\ inch 
vertically. Platforms on semi-automatic lifts may have a hand hold not 
exceeding 1\1/2\ inches by 4\1/2\ inches located between the edge 
barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8 measured on 
level ground, for a maximum rise of 3 inches, and the transition from 
the station platform or roadway to ramp may be vertical without edge 
treatment up to \1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch 
high shall be beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll) in any direction between its unloaded position and its 
position when loaded with 600 pounds applied through a 26 inch by 26 
inch test pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The lift may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails, 
on two sides, which move in tandem with the lift which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. Handrails shall have a cross-
sectional diameter between 1\1/4\ inches and 1\1/2\ inches or shall 
provide an equivalent grasping surface, and have eased edges with corner 
radii of not less than \1/8\ inch. Handrails shall be placed to provide 
a minimum 1\1/2\ inches knuckle clearance from the nearest adjacent 
surface. Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp or bridge plate.--(1) Design load. Ramps or bridge 
plates 30 inches or longer shall support a load of 600 pounds, placed at 
the centroid of the ramp or bridge plate distributed over an area of 26 
inches, with a safety factor of at least 3 based on the ultimate 
strength of the material. Ramps or bridge plates shorter than 30 inches 
shall support a load of 300 pounds.
    (2) Ramp surface. The ramp or bridge plate surface shall be 
continuous and

[[Page 522]]

slip resistant, shall not have protrusions from the surface greater then 
\1/4\ inch, shall have a clear width of 30 inches, and shall accommodate 
both four-wheel and three-wheel mobility aids.
    (3) Ramp threshold. The transition from roadway or station platform 
and the transition from vehicle floor to the ramp or bridge plate may be 
vertical without edge treatment up to \1/4\ inch. Changes in level 
between \1/4\ inch and \1/2\ inch shall be beveled with a slope no 
greater than 1:2.
    (4) Ramp barriers. Each side of the ramp or bridge plate shall have 
barriers at least 2 inches high to prevent mobility aid wheels from 
slipping off.
    (5) Slope. Ramps or bridge plates shall have the least slope 
practicable. If the height of the vehicle floor, under 50% passenger 
load, from which the ramp is deployed is 3 inches or less above the 
station platform a maximum slope of 1:4 is permitted; if the height of 
the vehicle floor, under 50% passenger load, from which the ramp is 
deployed is 6 inches or less, but more than 3 inches, above the station 
platform a maximum slope of 1:6 is permitted; if the height of the 
vehicle floor, under 50% passenger load, from which the ramp is deployed 
is 9 inches or less, but more than 6 inches, above the station platform 
a maximum slope of 1:8 is permitted; if the height of the vehicle floor, 
under 50% passenger load, from which the ramp is deployed is greater 
than 9 inches above the station platform a slope of 1:12 shall be 
achieved. Folding or telescoping ramps are permitted provided they meet 
all structural requirements of this section.
    (6) Attachment--(i) Requirement. When in use for boarding or 
alighting, the ramp or bridge plate shall be attached to the vehicle, or 
otherwise prevented from moving such that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that any gaps between vehicle and ramp or bridge plate, and station 
platform and ramp or bridge plate, shall not exceed \5/8\ inch.
    (ii) Exception. Ramps or bridge plates which are attached to, and 
deployed from, station platforms are permitted in lieu of vehicle 
devices provided they meet the displacement requirements of paragraph 
(c)(6)(i) of this section.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps or bridge plates, 
including portable ramps or bridges plates stowed in the passenger area, 
do not impinge on a passenger's wheelchair or mobility aid or pose any 
hazard to passengers in the event of a sudden stop.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches and 38 inches above the ramp 
surface. The handrails shall be capable of withstanding a force of 100 
pounds concentrated at any point on the handrail without permanent 
deformation of the rail or its supporting structure. The handrail shall 
have a cross- sectional diameter between 1\1/4\ inches and 1\1/2\ inches 
or shall provide an equivalent grasping surface, and have ``eased'' 
edges with corner radii of not less than \1/8\ inch. Handrails shall not 
interfere with wheelchair or mobility aid maneuverability when entering 
or leaving the vehicle.



Sec. 38.85  Between-car barriers.

    Where vehicles operate in a high-platform, level-boarding mode, 
devices or systems shall be provided to prevent, deter or warn 
individuals from inadvertently stepping off the platform between cars. 
Appropriate devices include, but are not limited to, pantograph gates, 
chains, motion detectors or other suitable devices.



Sec. 38.87  Public information system.

    (a) Each vehicle shall be equipped with an interior public address 
system permitting transportation system personnel, or recorded or 
digitized human speech messages, to announce stations and provide other 
passenger information. Alternative systems or devices which provide 
equivalent access are also permitted.
    (b) [Reserved]

[[Page 523]]



                Subpart E--Commuter Rail Cars and Systems



Sec. 38.91  General.

    (a) New, used and remanufactured commuter rail cars, to be 
considered accessible by regulations in part 37 of this title, shall 
comply with this subpart.
    (b) If portions of the car are modified in such a way that it 
affects or could affect accessibility, each such portion shall comply, 
to the extent practicable, with the applicable provisions of this 
subpart. This provision does not require that inaccessible cars be 
retrofitted with lifts, ramps or other boarding devices.
    (c)(1) Commuter rail cars shall comply with Secs. 38.93(d) and 
38.109 of this part for level boarding wherever structurally and 
operationally practicable.
    (2) Where level boarding is not structurally or operationally 
practicable, commuter rail cars shall comply Sec. 38.95 of this part.
    (d) Existing vehicles retrofitted to comply with the ``one-car-per-
train rule'' at Sec. 37.93 of this title shall comply with 
Secs. 38.93(e), 38.95(a) and 38.107 of this part and shall have, in new 
and key stations at least one door on each side from which passengers 
board which complies with Sec. 38.93(d) of this part. Vehicles 
previously designed and manufactured in accordance with the program 
accessibility requirements of section 504 of the Rehabilitation Act of 
1973, or implementing regulations of the Secretary of Transportation 
that were in effect before October 7, 1991; and which can be entered and 
used from stations in which they are to be operated, may be used to 
satisfy the requirements of Sec. 37.93 of this title.



Sec. 38.93  Doorways.

    (a) Clear width. (1) At least one door on each side of the car from 
which passengers board opening onto station platforms and at least one 
adjacent doorway into the passenger coach compartment, if provided, 
shall have a minimum clear opening of 32 inches.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have, to 
the maximum extent practicable in accordance with the regulations issued 
under the Federal Railroad Safety Act of 1970 (49 CFR parts 229 and 
231), a clear opening of 30 inches.
    (b) Passageways. A route at least 32 inches wide shall be provided 
from doors required to be accessible by paragraph (a)(1) of this section 
to seating locations complying with Sec. 38.95(d) of this part. In cars 
where such doorways require passage through a vestibule, such vestibule 
shall have a minimum width of 42 inches. (See Fig. 3.)
    (c) Signals. If doors to the platform close automatically or from a 
remote location, auditory and visual warning signals shall be provided 
to alert passengers or closing doors.
    (d) Coordination with boarding platform--(1) Requirements. Cars 
operating in stations with high platforms, or mini-high platforms, shall 
be coordinated with the boarding platform design such that the 
horizontal gap between a car at rest and the platform shall be no 
greater than 3 inches and the height of the car floor shall be within 
plus or minus \5/8\ inch of the platform height. Vertical alignment may 
be accomplished by car air suspension, platform lifts or other devices, 
or any combination.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one 
accessible door of each such vehicle and the platform shall be no 
greater than 3 inches.
    (3) Exception. Where platform set-backs do not allow the horizontal 
gap or vertical alignment specified in paragraph (d)(1) or (d)(2) of 
this section, car, platform or portable lifts complying with 
Sec. 38.95(b) of this part, or car or platform ramps or bridge plates, 
complying with Sec. 38.95(c) of this part, shall be provided.
    (4) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall

[[Page 524]]

be within plus or minus 2 inches of the platform height.
    (e) Signage. The International Symbol of Accessibility shall be 
displaced on the exterior of all doors complying with this section 
unless all cars are accessible and are not marked by the access symbol 
(see Fig. 6). Appropriate signage shall also indicate which accessible 
doors are adjacent to an accessible restroom, if applicable.



Sec. 38.95  Mobility aid accessibility.

    (a)(1) General. All new commuter rail cars, other than level entry 
cars, covered by this subpart shall provide a level-change mechanism or 
boarding device (e.g., lift, ramp or bridge plate) complying with either 
paragraph (b) or (c) of this section; sufficient clearances to permit a 
wheelchair or mobility aid user to reach a seating location; and at 
least two wheelchair or mobility aid seating locations complying with 
paragraph (d) of this section.
    (2) Exception. If portable or platform lifts, ramps or bridge plates 
meeting the applicable requirements of this section are provided on 
station platforms or other stops required to be accessible, or mini-high 
platforms complying with Sec. 38.93(d) are provided, the car is not 
required to be equipped with a car-borne device. Where each new car is 
compatible with a single platform-mounted access system or device, 
additional systems or devices are not required for each car provided 
that the single device could be used to provide access to each new car 
if passengers using wheelchairs or mobility aids could not be 
accommodated on a single car.
    (b) Car Lift--(1) Design load. The design load of the lift shall be 
at least 600 pounds. Working parts, such as cables, pulleys, and shafts, 
which can be expected to wear, and upon which the lift depends for 
support of the load, shall have a safety factor of at least six, based 
on the ultimate strength of the material. Nonworking parts, such as 
platform, frame, and attachment hardware which would not be expected to 
wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the car brakes, propulsion system, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the car cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all platform levels normally encountered in the operating environment. 
Where provided, each control for deploying, lowering, raising, and 
stowing the lift and lowering the roll-off barrier shall be of a 
monetary contact type requiring continuous manual pressure by the 
operator and shall not allow improper lift sequencing when the lift 
platform is occupied. The controls shall allow reversal of the lift 
operation sequence, such as raising or lowering a platform that is part 
way down, without allowing an occupied platform to fold or retract into 
the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the car axis, the transportation entity may specify a 
lift which is designed to deploy with its long dimension parallel to the 
car axis and which pivots into or out of the car while occupied (i.e., 
``rotary lift''). The requirements of paragraph (b)(2)(i) of this 
section prohibiting the lift from being stowed while occupied shall not 
apply to a lift design of this type if the stowed position is within the 
passenger compartment and the lift is intended to be stowed while 
occupied.
    (iii) Exception. The brake or propulsion system interlock 
requirement does not apply to a platform mounted or portable lift 
provided that a mechanical, electrical or other system operates to 
ensure that cars do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground or platform level with a lift 
occupant, and raising and stowing the empty lift if the power to the 
lift fails. No emergency method, manual or otherwise, shall be capable 
of being operated in a manner that could be hazardous to the lift 
occupant or to the operator when operated according to manufacturer's 
instructions, and shall not permit the platform to be stowed or folded 
when

[[Page 525]]

occupied, unless the lift is a rotary lift intended to be stowed while 
occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the car until the lift is in its fully 
raised position. Each side of the lift platform which, in its raised 
position, extends beyond the car shall have a barrier a minimum 1\1/2\ 
inches high. Such barriers shall not interfere with maneuvering into or 
out of the car. The loading-edge barrier (outer barrier) which functions 
as a loading ramp when the lift is at ground or station platform level, 
shall be sufficient when raised or closed, or a supplementary system 
shall be provided, to prevent a power wheelchair or mobility aid from 
riding over or defeating it. The outer barrier of the lift shall 
automatically rise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the lift platform is more than 3 inches above the station platform 
and the lift is occupied. Alternatively, a barrier or system may be 
raised, lowered, opened, closed, engaged or disengaged by the lift 
operator provided an interlock or inherent design feature prevents the 
lift from rising unless the barrier is raised or closed or the 
supplementary system is engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at car floor height with the inner barrier down (if applicable) or 
retracted, gaps between the forward lift platform edge and car floor 
shall not exceed \1/2\ inch horizontally and \5/8\ inch vertically.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, when measured 
on level ground, for a maximum rise of 3 inches, and the transition from 
station platform to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll) in any direction between its unloaded position and its 
position when loaded with 600 pounds applied through a 26 inch by 26 
inch test pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The lift may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails, 
on two sides, which move in tandem with the lift which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a

[[Page 526]]

minimum 30 inches above the platform and the highest portion a maximum 
38 inches above the platform. The handrails shall be capable of 
withstanding a force of 100 pounds concentrated at any point on the 
handrail without permanent deformation of the rail or its supporting 
structure. The handrail shall have a cross-sectional diameter between 
1\1/4\ inches and 1\1/2\ inches or shall provide an equivalent grasping 
surface, and have eased edges with corner radii of not less than \1/8\ 
inch. Handrails shall be placed to provide a minimum 1\1/2\ inches 
knuckle clearance from the nearest adjacent surface. Handrails shall not 
interfere with wheelchair or mobility aid maneuverability when entering 
or leaving the car.
    (c) Car ramp or bridge plate--(1) Design load. Ramps or bridge 
plates 30 inches or longer shall support a load of 600 pounds, placed at 
the centroid of the ramp or bridge plate distributed over an area of 26 
inches by 26 inches, with a safety factor of at least 3 based on the 
ultimate strength of the material. Ramps or bridge plates shorter than 
30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp or bridge plate surface shall be 
continuous and slip resistant, shall not have protrusions from the 
surface greater than \1/4\ inch high, shall have a clear width of 30 
inches and shall accommodate both four-wheel and three-wheel mobility 
aids.
    (3) Ramp threshold. The transition from station platform to the ramp 
or bridge plate and the transition from car floor to the ramp or bridge 
plate may be vertical without edge treatment up to \1/4\ inch. Changes 
in level between \1/4\ inch and \1/2\ inch shall be beveled with a slope 
no greater than 1:2.
    (4) Ramp barriers. Each side of the ramp or bridge plate shall have 
barriers at least 2 inches high to prevent mobility aid wheels from 
slipping off.
    (5) Slope. Ramps or bridge plates shall have the least slope 
practicable. If the height of the vehicle floor, under 50% passenger 
load, from which the ramp is deployed is 3 inches or less above the 
station platform a maximum slope of 1:4 is permitted; if the height of 
the vehicle floor, under 50% passenger load, from which the ramp is 
deployed is 6 inches or less, but more than 3 inches, above the station 
platform a maximum slope of 1:6 is permitted; if the height of the 
vehicle floor, under 50% passenger load, from which the ramp is deployed 
is 9 inches or less, but more than 6 inches, above the station platform 
a maximum slope of 1:8 is permitted; if the height of the vehicle floor, 
under 50% passenger load, from which the ramp is deployed is greater 
than 9 inches above the station platform a slope of 1:12 shall be 
achieved. Folding or telescoping ramps are permitted provided they meet 
all structural requirements of this section.
    (6) Attachment--(i) Requirement. When in use for boarding or 
alighting, the ramp or bridge plate shall be attached to the vehicle, or 
otherwise prevented from moving such that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that any gaps between vehicle and ramp or bridge plate, and station 
platform and ramp or bridge plate, shall not exceed \5/8\ inch.
    (ii) Exception. Ramps or bridge plates which are attached to, and 
deployed from, station platforms are permitted in lieu of car devices 
provided they meet the displacement requirements of paragraph (c)(6)(i) 
of this section.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps or bridge plates, 
including portable ramps or bridge plates stowed in the passenger area, 
do not impinge on a passenger's wheelchair or mobility aid or pose any 
hazard to passengers in the event of a sudden stop.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the car while starting to board, 
and to continue to use them throughout the boarding process, and shall 
have the top between 30 inches and 38 inches above the ramp surface. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased

[[Page 527]]

edges with corner radii of not less than \1/8\ inch. Handrails shall not 
interfere with wheelchair or mobility aid maneuverability when entering 
or leaving the car.
    (d) Mobility aid seating location. Spaces for persons who wish to 
remain in their wheelchairs or mobility aids shall have a minimum clear 
floor space 48 inches by 30 inches. Such spaces shall adjoin, and may 
overlap, an accessible path. Not more than 6 inches of the required 
clear floor space may be accommodated for footrests under another seat 
provided there is a minimum of 9 inches from the floor to the lowest 
part of the seat overhanging the space. Seating spaces may have fold-
down or removable seats to accommodate other passengers when a 
wheelchair or mobility aid user is not occupying the area, provided the 
seats, when folded up, do not obstruct the clear floor space required. 
(See Fig. 2.)



Sec. 38.97  Interior circulation, handrails and stanchions.

    (a) Where provided, handrails or stanchions within the passenger 
compartment shall be placed to permit sufficient turning and maneuvering 
space for wheelchairs and other mobility aids to reach a seating 
location, complying with Sec. 38.95(d) of this part, from an accessible 
entrance. The diameter or width of the gripping surface of interior 
handrails and stanchions shall be 1\1/4\ inches to 1\1/2\ inches or 
shall provide an equivalent gripping surface. Handrails shall be placed 
to provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface.
    (b) Where provided, handrails or stanchions shall be sufficient to 
permit safe boarding, on-board circulation, seating and standing 
assistance, and alighting by persons with disabilities.
    (c) At entrances equipped with steps, handrails or stanchions shall 
be provided in the entrance to the car in a configuration which allows 
passengers to grasp such assists from outside the car while starting to 
board, and to continue using such assists throughout the boarding 
process, to the extent permitted by part 231 of this title.



Sec. 38.99  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads, places for standees, and 
areas where wheelchair and mobility aid users are to be accommodated 
shall be slip-resistant.
    (b) All thresholds and step edges shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec. 38.101  Lighting

    (a) Any stepwell or doorway with a lift, ramp or bridge plate shall 
have, when the door is open, at least 2 footcandles of illumination 
measured on the step tread, ramp, bridge plate, or lift platform.
    (b) The doorways of cars not operating at lighted station platforms 
shall have outside lights which, when the door is open, provide at least 
1 footcandle of illumination on the station platform surface for a 
distance of 3 feet perpendicular to all points on the bottom step tread 
edge. Such lights shall be shielded to protect the eyes of entering and 
exiting passengers.



Sec. 38.103  Public information system.

    (a) Each car shall be equipped with an interior public address 
system permitting transportation system personnel, or recorded or 
digitized human speech messages, to announce stations and provide other 
passenger information. Alternative systems or devices which provide 
equivalent access are also permitted.
    (b) [Reserved]



Sec. 38.105  Priority seating signs.

    (a) Each car shall contain sign(s) which indicate that certain seats 
are priority seats for persons with disabilities and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Characters on signs required by paragraph (a) shall have a 
width-to-height ratio between 3:5 and 1:1 and a stroke width-to-height 
ratio between 1:5 and 1:10, with a minimum character height (using an 
upper case ``X'') of \5/8\ inch, with ``wide'' spacing (generally, the 
space between letters shall be \1/16\

[[Page 528]]

the height of upper case letters), and shall contrast with the 
background either light-on-dark or dark-on-light.



Sec. 38.107  Restrooms.

    (a) If a restroom is provided for the general public, it shall be 
designed so as to allow a person using a wheelchair or mobility aid to 
enter and use such restroom as specified in paragraphs (a) (1) through 
(5) of this section.
    (1) The minimum clear floor area shall be 35 inches by 60 inches. 
Permanently installed fixtures may overlap this area a maximum of 6 
inches, if the lowest portion of the fixture is a minimum of 9 inches 
above the floor, and may overlap a maximum of 19 inches, if the lowest 
portion of the fixture is a minimum of 29 inches above the floor, 
provided such fixtures do not interfere with access to the water closet. 
Fold-down or retractable seats or shelves may overlap the clear floor 
space at a lower height provided they can be easily folded up or moved 
out of the way.
    (2) The height of the water closet shall be 17 inches to 19 inches 
measured to the top of the toilet seat. Seats shall not be sprung to 
return to a lifted position.
    (3) A grab bar at least 24 inches long shall be mounted behind the 
water closet, and a horizontal grab bar at least 40 inches long shall be 
mounted on at least one side wall, with one end not more than 12 inches 
from the back wall, at a height between 33 inches and 36 inches above 
the floor.
    (4) Faucets and flush controls shall be operable with one hand and 
shall not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls shall be no greater than 5 lbf 
(22.2 N). Controls for flush valves shall be mounted no more than 44 
inches above the floor.
    (5) Doorways on the end of the enclosure, opposite the water closet, 
shall have a minimum clear opening width of 32 inches. Doorways on the 
side wall shall have a minimum clear opening width of 39 inches. Door 
latches and hardware shall be operable with one hand and shall not 
require tight grasping, pinching, or twisting of the wrist.
    (b) Restrooms required to be accessible shall be in close proximity 
to at least one seating location for persons using mobility aids and 
shall be connected to such a space by an unobstructed path having a 
minimum width of 32 inches.



Sec. 38.109  Between-car barriers.

    Where vehicles operate in a high-platform, level-boarding mode, and 
where between-car bellows are not provided, devices or systems shall be 
provided to prevent, deter or warn individuals from inadvertently 
stepping off the platform between cars. Appropriate devices include, but 
are not limited to, pantograph gates, chains, motion detectors or other 
suitable devices.



               Subpart F--Intercity Rail Cars and Systems



Sec. 38.111  General.

    (a) New, used and remanufactured intercity rail cars, to be 
considered accessible by regulations in part 37 of this title shall 
comply with this subpart to the extent required for each type of car as 
specified below.
    (1) Single-level rail passenger coaches and food service cars (other 
than single-level dining cars) shall comply with Secs. 38.113 through 
38.123 of this part. Compliance with Sec. 38.125 of this part shall be 
required only to the extent necessary to meet the requirements of 
paragraph (d) of this section.
    (2) Single-level dining and lounge cars shall have at least one 
connecting doorway complying with Sec. 38.113(a)(2) of this part 
connected to a car accessible to persons using wheelchairs or mobility 
aids, and at least one space complying with Secs. 38.125(d) (2) and (3) 
of this part, to provide table service to a person who wishes to remain 
in his or her wheelchair, and space to fold and store a wheelchair for a 
person who wishes to transfer to an existing seat.
    (3) Bi-level dining cars shall comply with Secs. 38.113(a)(2), 
38.115(b), 38.117(a), and 38.121 of this part.
    (4) Bi-level lounge cars shall have doors on the lower level, on 
each side of the car from which passengers board, complying with 
Sec. 38.113, a restroom complying with Sec. 38.123, and at least one 
space complying with Sec. 38.125(d) (2) and (3) to provide table service 
to a person who wishes to remain in his or her wheelchair and space to 
fold and

[[Page 529]]

store a wheelchair for a person who wishes to transfer to an existing 
seat.
    (5) Restrooms, complying with Sec. 38.123 shall be provided in 
single-level rail passenger coaches and food services cars adjacent to 
the accessible seating locations required by paragraph (d) of this 
section. Accessible restrooms are required in dining and lounge cars 
only if restrooms are provided for other passengers.
    (6) Sleeper cars shall comply with Secs. 38.113 (b) through (d), 
38.115 through 38.121, and 38.125, of this part, and have at least one 
compartment which can be entered and used by a person using a wheelchair 
or mobility aid and complying with Sec. 38.127 of this part.
    (b)(1) If physically and operationally practicable, intercity rail 
cars shall comply with Sec. 38.113(d) of this part for level boarding.
    (2) Where level boarding is not structurally or operationally 
practicable, intercity rail cars shall comply with Sec. 38.125.
    (c) If portions of the car are modified in a way that it affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible cars be retrofitted with 
lifts, ramps or other boarding devices.
    (d) Passenger coaches or food service cars shall have the number of 
spaces complying with Sec. 38.125(d)(2) of this part and the number of 
spaces complying with Sec. 38.125(d)(3) of this part, as required by 
Sec. 37.91 of this title.
    (e) Existing cars retrofitted to meet the seating requirements of 
Sec. 37.91 of this title shall comply with Sec. 38.113(e), Sec. 38.123, 
Sec. 38.125(d) of this part and shall have at least one door on each 
side from which passengers board complying with Sec. 38.113(d) of this 
part. Existing cars designed and manufactured to be accessible in 
accordance with the Secretary of Transportation regulations implementing 
section 504 of the Rehabilitation Act of 1973 that were in effect before 
October 7, 1991, shall comply with Sec. 38.125(a) of this part.



Sec. 38.113  Doorways.

    (a) Clear width. (1) At least one doorway, on each side of the car 
from which passengers board, of each car required to be accessible by 
Sec. 38.111(a) and where the spaces required by Sec. 38.111(d) of this 
part are located, and at least one adjacent doorway into coach passenger 
compartments shall have a minimum clear opening width of 32 inches.
    (2) Doorways at ends of cars connecting two adjacent cars, to the 
maximum extent practicable in accordance with regulations issued under 
the Federal Railroad Safety Act of 1970 (49 CFR parts 229 and 231), 
shall have a clear opening width of 32 inches to permit wheelchair and 
mobility aid users to enter into a single-level dining car, if 
available.
    (b) Passageway. Doorways required to be accessible by paragraph (a) 
of this section shall permit access by persons using mobility aids and 
shall have an unobstructed passageway at least 32 inches wide leading to 
an accessible sleeping compartment complying with Sec. 38.127 of this 
part or seating locations complying with Sec. 38.125(d) of this part. In 
cars where such doorways require passage through a vestibule, such 
vestibule shall have a minimum width of 42 inches. (see Fig. 4)
    (c) Signals. If doors to the platform close automatically or from a 
remote location, auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platforms.--(1) Requirements. Cars 
which provide level-boarding in stations with high platforms shall be 
coordinated with the boarding platform or mini-high platform design such 
that the horizontal gap between a car at rest and the platform shall be 
no greater than 3 inches and the height of the car floor shall be within 
plus or minus \5/8\ inch of the platform height. Vertical alignment may 
be accomplished by car air suspension, platform lifts or other devices, 
or any combination.
    (2) Exception. New cars operating in existing stations may have a 
floor height within plus or minus 1\1/2\ inches of the platform height.
    (3) Exception. Where platform set-backs do not allow the horizontal 
gap or vertical alignment specified in paragraph (d) (1) or (2), 
platform or portable lifts complying with Sec. 38.125(b) of this part, 
or car or platform bridge plates,

[[Page 530]]

complying with Sec. 38.125(c) of this part, may be provided.
    (4) Exception. Retrofitted vehicles shall be coordinated with the 
platform in existing stations such that the horizontal gap shall be no 
greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (e) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of all doors complying with this section 
unless all cars and doors are accessible and are not marked by the 
access symbol (see fig. 6). Appropriate signage shall also indicate 
which accessible doors are adjacent to an accessible restroom, if 
applicable.

[56 FR 45756, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993]



Sec. 38.115  Interior circulation, handrails and stanchions.

    (a) Where provided, handrails or stanchions within the passenger 
compartment shall be placed to permit sufficient turning and maneuvering 
space for wheelchairs and other mobility aids to reach a seating 
location, complying with Sec. 38.125(d) of this part, from an accessible 
entrance. The diameter or width of the gripping surface of interior 
handrails and stanchions shall be 1\1/4\ inches to 1\1/2\ inches or 
shall provide an equivalent gripping surface. Handrails shall be placed 
to provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface.
    (b) Where provided, handrails and stanchions shall be sufficient to 
permit safe boarding, on-board circulation, seating and standing 
assistance, and alighting by persons with disabilities.
    (c) At entrances equipped with steps, handrails or stanchions shall 
be provided in the entrance to the car in a configuration which allows 
passengers to grasp such assists from outside the car while starting to 
board, and to continue using such assists throughout the boarding 
process, to the extent permitted by part 231 of this title.



Sec. 38.117  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads and areas where wheelchair 
and mobility aid users are to be accommodated shall be slip-resistant.
    (b) All step edges and thresholds shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec. 38.119  Lighting.

    (a) Any stepwell, or doorway with a lift, ramp or bridge plate, 
shall have, when the door is open, at least 2 foot-candles of 
illumination measured on the step tread, ramp, bridge plate or lift 
platform.
    (b) The doorways of cars not operating at lighted station platforms 
shall have outside lights which, when the door is open, provide at least 
1 foot-candle of illumination on the station platform surface for a 
distance of 3 feet perpendicular to all points on the bottom step tread 
edge. Such lights shall be shielded to protect the eyes of entering and 
exiting passengers.



Sec. 38.121  Public information system.

    (a) Each car shall be equipped with a public address system 
permitting transportation system personnel, or recorded or digitized 
human speech messages, to announce stations and provide other passenger 
information. Alternative systems or devices which provide equivalent 
access are also permitted.
    (b) [Reserved]



Sec. 38.123  Restrooms.

    (a) If a restroom is provided for the general public, and an 
accessible restroom is required by Sec. 38.111 (a) and (e) of this part, 
it shall be designed so as to allow a person using a wheelchair or 
mobility aid to enter and use such restroom as specified in paragraphs 
(a) (1) through (5) of this section.
    (1) The minimum clear floor area shall be 35 inches by 60 inches. 
Permanently installed fixtures may overlap this area a maximum of 6 
inches, if the lowest portion of the fixture is a minimum of 9 inches 
above the floor, and may overlap a maximum of 19 inches, if the lowest 
portion of the fixture is a minimum of 29 inches above the floor. 
Fixtures shall not interfere with access to and use of the water closet. 
Fold-

[[Page 531]]

down or retractable seats or shelves may overlap the clear floor space 
at a lower height provided they can be easily folded up or moved out of 
the way.
    (2) The height of the water closet shall be 17 inches to 19 inches 
measured to the top of the toilet seat. Seats shall not be sprung to 
return to a lifted position.
    (3) A grab bar at least 24 inches long shall be mounted behind the 
water closet, and a horizontal grab bar at least 40 inches long shall be 
mounted on at least one side wall, with one end not more than 12 inches 
from the back wall, at a height between 33 inches and 36 inches above 
the floor.
    (4) Faucets and flush controls shall be operable with one hand and 
shall not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls shall be no greater than 5 lbf 
(22.2 N). Controls for flush valves shall be mounted no more than 44 
inches above the floor.
    (5) Doorways on the end of the enclosure, opposite the water closet, 
shall have a minimum clear opening width of 32 inches. Doorways on the 
side wall shall have a minimum clear opening width of 39 inches. Door 
latches and hardware shall be operable with one hand and shall not 
require tight grasping, pinching, or twisting of the wrist.
    (b) Restrooms required to be accessible shall be in close proximity 
to at least one seating location for persons using mobility aids 
complying with Sec. 38.125(d) of this part and shall be connected to 
such a space by an unobstructed path having a minimum width of 32 
inches.



Sec. 38.125  Mobility aid accessibility.

    (a)(1) General. All intercity rail cars, other than level entry 
cars, required to be accessible by Secs. 38.111 (a) and (e) of this 
subpart shall provide a level-change mechanism or boarding device (e.g., 
lift, ramp or bridge plate) complying with either paragraph (b) or (c) 
of this section and sufficient clearances to permit a wheelchair or 
other mobility aid user to reach a seating location complying with 
paragraph (d) of this section.
    (2) Exception. If portable or platform lifts, ramps or bridge plates 
meeting the applicable requirements of this section are provided on 
station platforms or other stops required to be accessible, or mini-high 
platforms complying with Sec. 38.113(d) are provided, the car is not 
required to be equipped with a car-borne device.
    (b) Car Lift--(1) Design load. The design load of the lift shall be 
at least 600 pounds. Working parts, such as cables, pulleys, and shafts, 
which can be expected to wear, and upon which the lift depends for 
support of the load, shall have a safety factor of at least six, based 
on the ultimate strength of the material. Nonworking parts, such as 
platform, frame, and attachment hardware which would not be expected to 
wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the car brakes, propulsion system, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the car cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all platform levels normally encountered in the operating environment. 
Where provided, each control for deploying, lowering, raising, and 
stowing the lift and lowering the roll-off barrier shall be of a 
monetary contact type requiring continuous manual pressure by the 
operator and shall not allow improper lift sequencing when the lift 
platform is occupied. The controls shall allow reversal of the lift 
operation sequence, such as raising or lowering a platform that is part 
way down, without allowing an occupied platform to fold or retract into 
the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the car axis, the transportation entity may specify a 
lift which is designed to deploy with its long dimension parallel to the 
car axis and which pivots into or out of the car while occupied (i.e., 
``rotary lift''). The requirements of paragraph (b)(2)(i) of this 
section prohibiting the lift from being stowed while occupied shall not 
apply to a lift design of this type if the stowed position is

[[Page 532]]

within the passenger compartment and the lift is intended to be stowed 
while occupied.
    (iii) Exception. The brake or propulsion system interlocks 
requirement does not apply to platform mounted or portable lifts 
provided that a mechanical, electrical or other system operates to 
ensure that cars do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground or station platform level with a 
lift occupant, and raising and stowing the empty lift if the power to 
the lift fails. No emergency method, manual or otherwise, shall be 
capable of being operated in a manner that could be hazardous to the 
lift occupant or to the operator when operated according to 
manufacturer's instructions, and shall not permit the platform to be 
stowed or folded when occupied, unless the lift is a rotary lift and is 
intended to be stowed while occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the car until the lift is in its fully 
raised position. Each side of the lift platform which, in its raised 
position, extends beyond the car shall have a barrier a minimum 1\1/2\ 
inches high. Such barriers shall not interfere with maneuvering into or 
out of the car. The loading-edge barrier (outer barrier) which functions 
as a loading ramp when the lift is at ground or station platform level, 
shall be sufficient when raised or closed, or a supplementary system 
shall be provided, to prevent a power wheelchair or mobility aid from 
riding over or defeating it. The outer barrier of the lift shall 
automatically rise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the lift platform is more than 3 inches above the station platform 
and the lift is occupied. Alternatively, a barrier or system may be 
raised, lowered, opened, closed, engaged or disengaged by the lift 
operator provided an interlock or inherent design feature prevents the 
lift from rising unless the barrier is raised or closed or the 
supplementary system is engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1.)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at car floor height with the inner barrier (if applicable) down or 
retracted, gaps between the forward lift platform edge and car floor 
shall not exceed \1/2\ inch horizontally and \5/8\ inch vertically.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, when measured 
on level ground, for a maximum rise of 3 inches, and the transition from 
station platform to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of car 
roll) in any direction between its unloaded position and its position 
when loaded with 600 pounds applied through a 26 inch by 26 inch test 
pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and

[[Page 533]]

lifting an occupant, and shall not exceed 12 inches/second during 
deploying or stowing. This requirement does not apply to the deployment 
or stowage cycles of lifts that are manually deployed or stowed. The 
maximum platform horizontal and vertical acceleration when occupied 
shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The lift may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails, 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall be placed to 
provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface. Handrails shall not interfere with wheelchair or 
mobility aid maneuverability when entering or leaving the car.
    (c) Car ramp or bridge plate--(1) Design load. Ramps or bridge 
plates 30 inches or longer shall support a load of 600 pounds, placed at 
the centroid of the ramp or bridge plate distributed over an area of 26 
inches by 26 inches, with a safety factor of at least 3 based on the 
ultimate strength of the material. Ramps or bridge plates shorter than 
30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp or bridge plate surface shall be 
continuous and slip resistant, shall not have protrusions from the 
surface greater than \1/4\ inch high, shall have a clear width of 30 
inches and shall accommodate both four-wheel and three-wheel mobility 
aids.
    (3) Ramp threshold. The transition from station platform to the ramp 
or bridge plate and the transition from car floor to the ramp or bridge 
plate may be vertical without edge treatment up to \1/4\ inch. Changes 
in level between \1/4\ inch and \1/2\ inch shall be beveled with a slope 
no greater than 1:2.
    (4) Ramp barriers. Each side of the ramp or bridge plate shall have 
barriers at least 2 inches high to prevent mobility aid wheels from 
slipping off.
    (5) Slope. Ramps or bridge plates shall have the least slope 
practicable. If the height of the vehicle floor, under 50% passenger 
load, from which the ramp is deployed is 3 inches or less above the 
station platform a maximum slope of 1:4 is permitted; if the height of 
the vehicle floor, under 50% passenger load, from which the ramp is 
deployed is 6 inches or less, but more than 3 inches, above the station 
platform a maximum slope of 1:6 is permitted; if the height of the 
vehicle floor, under 50% passenger load, from which the ramp is deployed 
is 9 inches or less, but more than 6 inches, above the station platform 
a maximum slope of 1:8 is permitted; if the height of the vehicle floor, 
under 50% passenger load, from which the ramp is deployed is greater 
than 9 inches above the station platform a slope of 1:12 shall be 
achieved. Folding or telescoping ramps are permitted provided they meet 
all structural requirements of this section.
    (6) Attachment--(i) Requirement. When in use for boarding or 
alighting, the ramp or bridge plate shall be attached to the vehicle, or 
otherwise prevented from moving such that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that any gaps between vehicle and ramp or bridge plate, and station 
platform and ramp or bridge plate, shall not exceed \5/8\ inch.
    (ii) Exception. Ramps or bridge plates which are attached to, and 
deployed from, station platforms are permitted in lieu of car devices 
provided they

[[Page 534]]

meet the displacement requirements of paragraph (c)(6)(i) of this 
section.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps or bridge plates, 
including portable ramps or bridge plates stowed in the passenger area, 
do not impinge on a passenger's wheelchair or mobility aid or pose any 
hazard to passengers in the event of a sudden stop.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the car while starting to board, 
and to continue to use them throughout the boarding process, and shall 
have the top between 30 inches and 38 inches above the ramp surface. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall not interfere 
with wheelchair or mobility aid maneuverability when entering or leaving 
the car.
    (d) Seating--(1) Requirements. All intercity rail cars required to 
be accessible by Secs. 38.111 (a) and (e) of this subpart shall provide 
at least one, but not more than two, mobility aid seating location(s) 
complying with paragraph (d)(2) of this section; and at least one, but 
not more than two, seating location(s) complying with paragraph (d)(3) 
of this section which adjoin or overlap an accessible route with a 
minimum clear width of 32 inches.
    (2) Wheelchair or mobility aid spaces. Spaces for persons who wish 
to remain in their wheelchairs or mobility aids shall have a minimum 
clear floor space 48 inches by 30 inches. Such spaces shall adjoin, and 
may overlap, an accessible path. Not more than 6 inches of the required 
clear floor space may be accommodated for footrests under another seat 
provided there is a minimum of 9 inches from the floor to the lowest 
part of the seat overhanging the space. Seating spaces may have fold-
down or removable seats to accommodate other passengers when a 
wheelchair or mobility aid user is not occupying the area, provided the 
seats, when folded up, do not obstruct the clear floor space provided 
(See Fig. 2).
    (3) Other spaces. Spaces for individuals who wish to transfer shall 
include a regular coach seat or dining car booth or table seat and space 
to fold and store the passenger's wheelchair.

[56 FR 45756, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993]



Sec. 38.127  Sleeping compartments.

    (a) Sleeping compartments required to be accessible shall be 
designed so as to allow a person using a wheelchair or mobility aid to 
enter, maneuver within and approach and use each element within such 
compartment. (See Fig. 5.)
    (b) Each accessible compartment shall contain a restroom complying 
with Sec. 38.123(a) which can be entered directly from such compartment.
    (c) Controls and operating mechanisms (e.g., heating and air 
conditioning controls, lighting controls, call buttons, electrical 
outlets, etc.) shall be mounted no more than 48 inches, and no less than 
15 inches, above the floor and shall have a clear floor area directly in 
front a minimum of 30 inches by 48 inches. Controls and operating 
mechanisms shall be operable with one hand and shall not require tight 
grasping, pinching, or twisting of the wrist.



               Subpart G--Over-the-Road Buses and Systems



Sec. 38.151  General.

    (a) New, used and remanufactured over-the-road buses, to be 
considered accessible by regulations in part 37 of this title, shall 
comply with this subpart.
    (b) Over-the-road buses covered by Sec. 37.7 (c) of this title shall 
comply with Sec. 38.23 and this subpart.



Sec. 38.153  Doors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads and areas where wheelchair 
and mobility aid users are to be accommodated shall be slip-resistant.
    (b) All step edges shall have a band of color(s) running the full 
width of the step which contrasts from the step

[[Page 535]]

tread and riser, either dark-on-light or light-on-dark.
    (c)(1) Doors shall have a minimum clear width when open of 30 inches 
(760 mm), measured from the lowest step to a height of at least 48 
inches (1220 mm), from which point they may taper to a minimum width of 
18 inches (457 mm). The clear width may be reduced by a maximum of 4 
inches (100 mm) by protrusions of hinges or other operating mechanisms.
    (2) Exception. Where compliance with the door width requirement of 
paragraph (c)(1) of this section is not feasible, the minimum door width 
shall be 27 in (685 mm).
    (d) The overhead clearance between the top of the lift door opening 
and the sill shall be the maximum practicable but not less than 65 
inches (1651 mm).

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51698, 51702, Sept. 28, 
1998]

    Effective Date Note: At 63 FR 51698, 51702, Sept. 28, 1998, 
Sec. 38.153 was amended by revising paragraph (c) and by adding 
paragraph (d), effective Oct. 28, 1998. For the convenience of the user, 
the superseded text is set forth as follows:

Sec. 38.153  Doors, steps and thresholds.

                                * * * * *

    (c) To the maximum extent practicable, doors shall have a minimum 
clear width when open of 30 inches, but in no case less than 27 inches.



Sec. 38.155  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be provided in the entrance to 
the vehicle in a configuration which allows passengers to grasp such 
assists from outside the vehicle while starting to board, and to 
continue using such handrails or stanchions throughout the boarding 
process. Handrails shall have a cross-sectional diameter between 1\1/4\ 
inches and 1\1/2\ inches or shall provide an equivalent grasping 
surface, and have eased edges with corner radii of not less than \1/8\ 
inch. Handrails shall be placed to provide a minimum 1\1/2\ inches 
knuckle clearance from the nearest adjacent surface. Where on-board fare 
collection devices are used, a horizontal passenger assist shall be 
located between boarding passengers and the fare collection device and 
shall prevent passengers from sustaining injuries on the fare collection 
device or windshield in the event of a sudden deceleration. Without 
restricting the vestibule space, the assist shall provide support for a 
boarding passenger from the door through the boarding procedure. 
Passengers shall be able to lean against the assist for security while 
paying fares.
    (b) Where provided within passenger compartments, handrails or 
stanchions shall be sufficient to permit safe on-board circulation, 
seating and standing assistance, and alighting by persons with 
disabilities.



Sec. 38.157  Lighting.

    (a) Any stepwell or doorway immediately adjacent to the driver shall 
have, when the door is open, at least 2 foot-candles of illumination 
measured on the step tread.
    (b) The vehicle doorway shall have outside light(s) which, when the 
door is open, provide at least 1 foot-candle of illumination on the 
pathway to the door for a distance of 3 feet (915 mm) to the bottom step 
tread or lift outer edge. Such light(s) shall be shielded to protect the 
eyes of entering and exiting passengers.

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51698, 51702, Sept. 28, 
1998]

    Effective Date Note: At 63 FR 51698, 51702, Sept. 28, 1998, 
Sec. 38.157 was amended by revising paragraph (b), effective Oct. 28, 
1998. For the convenience of the user, the superseded text is set forth 
as follows:

Sec. 38.157  Lighting.

                                * * * * *

    (b) The vehicle doorway shall have outside light(s) which, when the 
door is open, provide at least 1 foot-candle of illumination on the 
street surface for a distance of 3 feet perpendicular to all points on 
the bottom step tread outer edge. Such light(s) shall be located below 
window level and shielded to protect the eyes of entering and exiting 
passengers.



Sec. 38.159  Mobility aid accessibility.

    (a)(1) General. All vehicles covered by this subpart shall provide a 
level-change mechanism or boarding device (e.g., lift or ramp) complying 
with paragraph (b) or (c) of this section and

[[Page 536]]

sufficient clearances to permit a wheelchair or other mobility aid user 
to reach a securement location. At least two securement locations and 
devices, complying with paragraph (d) of this section, shall be 
provided.
    (2) Exception. If portable or station-based lifts, ramps or bridge 
plates meeting the applicable requirements of this section are provided 
at stations or other stops required to be accessible under regulations 
issued by the Department of Transportation, the bus is not required to 
be equipped with a vehicle-borne device.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds (2665 N). Working parts, such as cables, pulleys, 
and shafts, which can be expected to wear, and upon which the lift 
depends for support of the load, shall have a safety factor of at least 
six, based on the ultimate strength of the material. Nonworking parts, 
such as platform, frame and attachment hardware which would not be 
expected to wear, shall have a safety factor of at least three, based on 
the ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, transmission, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the vehicle cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all levels (i.e., ground, curb, and intermediate positions) normally 
encountered in the operating environment. Where provided, each control 
for deploying, lowering, raising, and stowing the lift and lowering the 
roll-off barrier shall be of a momentary contact type requiring 
continuous manual pressure by the operator and shall not allow improper 
lift sequencing when the lift platform is occupied. The controls shall 
allow reversal of the lift operation sequence, such as raising or 
lowering a platform that is part way down, without allowing an occupied 
platform to fold or retract into the stowed position.
    (ii) Exception. Where the lift is designed to deploy with its long 
dimension parallel to the vehicle axis and which pivots into or out of 
the vehicle while occupied (i.e., ``rotary lift''), the requirements of 
this paragraph (b)(2) prohibiting the lift from being stowed while 
occupied shall not apply if the stowed position is within the passenger 
compartment and the lift is intended to be stowed while occupied.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method, manual or otherwise, shall be capable of being 
operated in a manner that could be hazardous to the lift occupant or to 
the operator when operated according to manufacturer's instructions, and 
shall not permit the platform to be stowed or folded when occupied, 
unless the lift is a rotary lift and is intended to be stowed while 
occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second (305 mm/sec) or their dropping of an occupant in the event of a 
single failure of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the platform during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the platform is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches (13 mm) high. Such barriers shall not interfere with 
maneuvering into or out of the aisle. The loading-edge barrier (outer 
barrier) which functions as a loading ramp when the lift is at ground 
level, shall be sufficient when raised or closed, or a supplementary 
system shall be provided, to prevent a power wheelchair or mobility aid 
from riding over or defeating it. The outer barrier of the lift shall 
automatically raise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the platform is more than 3 inches

[[Page 537]]

(75 mm) above the roadway or sidewalk and the platform is occupied. 
Alternatively, a barrier or system may be raised, lowered, opened, 
closed, engaged, or disengaged by the lift operator, provided an 
interlock or inherent design feature prevents the lift from rising 
unless the barrier is raised or closed or the supplementary system is 
engaged.
    (6) Platform surface. The platform surface shall be free of any 
protrusions of \1/4\ inch (6.5 mm) high and shall be slip resistant. The 
platform shall have a minimum clear width of 28\1/2\ inches (725 mm) at 
the platform, a minimum clear width of 30 inches (760 mm) measured from 
2 inches (50 mm) above the platform surface to 30 inches (760 mm) above 
the platform, and a minimum clear length of 48 inches (1220 mm) measured 
from 2 inches (50 mm) above the surface of the platform to 30 inches 
(760 mm) above the surface of the platform. (See Figure 1 to this part.)
    (7) Platform gaps. Any openings between the platform surface and the 
raised barriers shall not exceed \5/8\ inch (16 mm) in width. When the 
platform is at vehicle floor height with the inner barrier (if 
applicable) down or retracted, gaps between the forward lift platform 
edge and the vehicle floor shall not exceed \1/2\ inch (13 mm) 
horizontally and \5/8\ inch (16 mm) vertically. Platforms on semi-
automatic lifts may have a hand hold not exceeding 1\1/2\ inches (28 mm) 
by 4\1/2\ inches (113 mm) located between the edge barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, measured on 
level ground, for a maximum rise of 3 inches (75 mm), and the transition 
from roadway or sidewalk to ramp may be vertical without edge treatment 
up to \1/4\ inch (6.5 mm) . Thresholds between \1/4\ inch (6.5 mm) and 
\1/2\ inch (13 mm) high shall be beveled with a slope no greater than 
1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll or pitch) in any direction between its unloaded position 
and its position when loaded with 600 pounds (2665 N) applied through a 
26 inch (660 mm) by 26 inch test pallet at the centroid of the platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second (150 mm/sec) during lowering and lifting an 
occupant, and shall not exceed 12 inches/second (300 mm/sec) during 
deploying or stowing. This requirement does not apply to the deployment 
or stowage cycles of lifts that are manually deployed or stowed. The 
maximum platform horizontal and vertical acceleration when occupied 
shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchair and mobility aid users.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The platform may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
(200 mm) long with the lowest portion a minimum 30 inches (760 mm) above 
the platform and the highest portion a maximum 38 inches (965 mm) above 
the platform. The handrails shall be capable of withstanding a force of 
100 pounds (445 N) concentrated at any point on the handrail without 
permanent deformation of the rail or its supporting structure. The 
handrail shall have a cross-sectional diameter between 1\1/4\ inches (32 
mm) and 1\1/2\ inches (38 mm) or shall provide an equivalent grasping 
surface, and have eased edges with corner radii of not less than \5/8\ 
inch (3.5 mm). Handrails shall be placed to provide a minimum 1\1/2\ 
inches (38 mm) knuckle clearance from the nearest adjacent surface. 
Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp--(1) Design load. Ramps 30 inches (760 mm) or 
longer shall support a load of 600 pounds (2665 N), placed at the 
centroid of the ramp distributed over an area of 26 inches by 26 inches 
(660 mm by 660 mm), with a

[[Page 538]]

safety factor of at least 3 based on the ultimate strength of the 
material. Ramps shorter than 30 inches (760 mm) shall support a load of 
300 pounds (1332 N).
    (2) Ramp surface. The ramp surface shall be continuous and slip 
resistant; shall not have protrusions from the surface greater than \1/
4\ inch (6.5 mm) high; shall have a clear width of 30 inches (760 mm); 
and shall accommodate both four-wheel and three-wheel mobility aids.
    (3) Ramp threshold. The transition from roadway or sidewalk and the 
transition from vehicle floor to the ramp may be vertical without edge 
treatment up to \1/4\ inch (6.5 mm). Changes in level between \1/4\ inch 
(6.5 mm) and \1/2\ inch (13 mm) shall be beveled with a slope no greater 
than 1:2.
    (4) Ramp barriers. Each side of the ramp shall have barriers at 
least 2 inches (50 mm) high to prevent mobility aid wheels from slipping 
off.
    (5) Slope. Ramps shall have the least slope practicable and shall 
not exceed 1:4 when deployed to ground level. If the height of the 
vehicle floor from which the ramp is deployed is 3 inches (75 mm) or 
less above a 6 inch (150 mm) curb, a maximum slope of 1:4 is permitted; 
if the height of the vehicle floor from which the ramp is deployed is 6 
inches (150 mm) or less, but greater than 3 inches (75 mm), above a 6 
inch (150 mm) curb, a maximum slope of 1:6 is permitted; if the height 
of the vehicle floor from which the ramp is deployed is 9 inches (225 
mm) or less, but greater than 6 inches (150 mm), above a 6 inch curb, a 
maximum slope of 1:8 is permitted; if the height of the vehicle floor 
from which the ramp is deployed is greater than 9 inches (225 mm) above 
a 6 inch (150 mm) curb, a slope of 1:12 shall be achieved. Folding or 
telescoping ramps are permitted provided they meet all structural 
requirements of this section.
    (6) Attachment. When in use for boarding or alighting, the ramp 
shall be firmly attached to the vehicle so that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that no gap between vehicle and ramp exceeds \5/8\ inch (16 mm).
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps, including portable 
ramps stowed in the passenger area, do not impinge on a passenger's 
wheelchair or mobility aid or pose any hazard to passengers in the event 
of a sudden stop or maneuver.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches (760 mm) above the ramp surface. 
The handrails shall be capable of withstanding a force of 100 pounds 
(445 N) concentrated at any point on the handrail without permanent 
deformation of the rail or its supporting structure. The handrail shall 
have a cross-sectional diameter between 1\1/4\ inches (32 mm) and 1\1/2\ 
inches (38 mm) or shall provide an equivalent grasping surface, and have 
eased edges with corner radii of not less than \1/8\ inch (3.5 mm). 
Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (d) Securement devices--(1) Design load. Securement systems, and 
their attachments to vehicles, shall restrain a force in the forward 
longitudinal direction of up to 2,000 pounds (8,880 N) per securement 
leg or clamping mechanism and a minimum of 4,000 pounds (17,760 N) for 
each mobility aid.
    (2) Location and size. The securement system shall be placed as near 
to the accessible entrance as practicable and shall have a clear floor 
area of 30 inches (760 mm) by 48 inches (1220 mm). Such space shall 
adjoin, and may overlap, an access path. Not more than 6 inches (150 mm) 
of the required clear floor space may be accommodated for footrests 
under another seat, modesty panel, or other fixed element provided there 
is a minimum of 9 inches (230 mm) from the floor to the lowest part of 
the seat overhanging the space. Securement areas may have fold-down 
seats to accommodate other passengers when a wheelchair or mobility aid 
is not occupying the area, provided the seats, when folded up, do not 
obstruct

[[Page 539]]

the clear floor space required. (See Figure 2 to this part.)
    (3) Mobility aids accommodated. The securement system shall secure 
common wheelchairs and mobility aids and shall either be automatic or 
easily attached by a person familiar with the system and mobility aid 
and having average dexterity.
    (4) Orientation. At least one securement device or system required 
by paragraph (a) of this section shall secure the wheelchair or mobility 
aid facing toward the front of the vehicle. Additional securement 
devices or systems shall secure the wheelchair or mobility aid facing 
forward or rearward. Where the wheelchair or mobility aid is secured 
facing the rear of the vehicle, a padded barrier shall be provided. The 
padded barrier shall extend from a height of 38 inches (965 mm) from the 
vehicle floor to a height of 56 inches (1420 mm) from the vehicle floor 
with a width of 18 inches (455 mm), laterally centered immediately in 
back of the seated individual. Such barriers need not be solid provided 
equivalent protection is afforded.
    (5) Movement. When the wheelchair or mobility aid is secured in 
accordance with manufacturer's instructions, the securement system shall 
limit the movement of an occupied wheelchair or mobility aid to no more 
than 2 inches (50 mm) in any direction under normal vehicle operating 
conditions.
    (6) Stowage. When not being used for securement, or when the 
securement area can be used by standees, the securement system shall not 
interfere with passenger movement, shall not present any hazardous 
condition, shall be reasonably protected from vandalism, and shall be 
readily accessed when needed for use.
    (7) Seat belt and shoulder harness. For each wheelchair or mobility 
aid securement device provided, a passenger seat belt and shoulder 
harness, complying with all applicable provisions of the Federal Motor 
Vehicle Safety Standards (49 CFR part 571), shall also be provided for 
use by wheelchair or mobility aid users. Such seat belts and shoulder 
harnesses shall not be used in lieu of a device which secures the 
wheelchair or mobility aid itself.

[63 FR 51698, 51703, Sept. 28, 1998]

    Effective Date Note: At 63 FR 51698, 51703, Sept. 28, 1998, 
Sec. 38.159 was added, effective Oct. 28, 1998.



Sec. 38.161  Moveable aisle armrests.

    A minimum of 50% of aisle seats, including all moveable or removable 
seats at wheelchair or mobility aide securement locations, shall have an 
armrest on the aisle side which can be raised, removed, or retracted to 
permit easy entry or exit.

[63 FR 51700, 51703, Sept. 28, 1998]

    Effective Date Note: At 63 FR 51700, 51703, Sept. 28, 1998, 
Sec. 38.161 was added, effective Oct. 28, 1998.



                  Subpart H--Other Vehicles and Systems



Sec. 38.171  General.

    (a) New, used and remanufactured vehicles and conveyances for 
systems not covered by other subparts of this part, to be considered 
accessible by regulations in part 37 of this title shall comply with 
this subpart.
    (b) If portions of the vehicle or conveyance are modified in a way 
that affects or could affect accessibility, each such portion shall 
comply, to the extent practicable, with the applicable provisions of 
this subpart. This provision does not require that inaccessible vehicles 
be retrofitted with lifts, ramps or other boarding devices.
    (c) Requirements for vehicles and systems not covered by this part 
shall be determined on a case-by-case basis by the Department of 
Transportation in consultation with the U.S. Architectural and 
Transportation Barriers Compliance Board (Access Board).



Sec. 38.173  Automated guideway transit vehicles and systems.

    (a) Automated Guideway Transit (AGT) vehicles and systems, sometimes 
called ``people movers'', operated in airports and other areas where AGT 
vehicles travel at slow speed (i.e., at a speed of no more than 20 miles 
per hour at any location on their route during normal operation), shall 
comply with the provisions of Sec. 38.53 (a) through (c), and 
Secs. 38.55 through 38.61 of this part for rapid rail vehicles and 
systems.

[[Page 540]]

    (b) Where the vehicle covered by paragraph (a) will operate in an 
accessible station, the design of vehicles shall be coordinated with the 
boarding platform design such that the horizontal gap between a vehicle 
door at rest and the platform shall be no greater than 1 inch and the 
height of the vehicle floor shall be within plus or minus \1/2\ inch of 
the platform height under all normal passenger load conditions. Vertical 
alignment may be accomplished by vehicle air suspension or other 
suitable means of meeting the requirement.
    (c) In stations where open platforms are not protected by platform 
screens, a suitable device or system shall be provided to prevent, deter 
or warn individuals from stepping off the platform between cars. 
Acceptable devices include, but are not limited to, pantograph gates, 
chains, motion detectors or other appropriate devices.
    (d) Light rail and rapid rail AGT vehicles and systems shall comply 
with subparts D and C of this part, respectively. AGT systems whose 
vehicles travel at a speed of more than 20 miles per hour at any 
location on their route during normal operation are covered under this 
paragraph rather than under paragraph (a) of this section.

[56 FR 45756, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec. 38.175  High-speed rail cars, monorails and systems.

    (a) All cars for high-speed rail systems, including but not limited 
to those using ``maglev'' or high speed steel-wheel-on-steel rail 
technology, and monorail systems operating primarily on dedicated rail 
(i.e., not used by freight trains) or guideway, in which stations are 
constructed in accordance with part 37, subpart C of this title, shall 
be designed for high-platform, level boarding and shall comply with 
Sec. 38.111(a) of this part for each type of car which is similar to 
intercity rail, Secs. 38.111(d), 38.113 (a) through (c) and (e), 38.115 
(a) and (b), 38.117 (a) and (b), 38.121 through 38.123, 38.125(d), and 
38.127 (if applicable) of this part. The design of cars shall be 
coordinated with the boarding platform design such that the horizontal 
gap between a car door at rest and the platform shall be no greater than 
3 inches and the height of the car floor shall be within plus or minus 
\5/8\ inch of the platform height under all normal passenger load 
conditions. Vertical alignment may be accomplished by car air suspension 
or other suitable means of meeting the requirement. All doorways shall 
have, when the door is open, at least 2 footcandles of illumination 
measured on the door threshold.
    (b) All other high-speed rail cars shall comply with the similar 
provisions of subpart F of this part.



Sec. 38.177    Ferries, excursion boats and other vessels. [Reserved]



Sec. 38.179  Trams, and similar vehicles, and systems

    (a) New and used trams consisting of a tractor unit, with or without 
passenger accommodations, and one or more passenger trailer units, 
including but not limited to vehicles providing shuttle service to 
remote parking areas, between hotels and other public accommodations, 
and between and within amusement parks and other recreation areas, shall 
comply with this section. For purposes of determining applicability of 
49 CFR 37.101, 37.103, or 37.105 the capacity of such a vehicle or 
``train'' shall consist of the total combined seating capacity of all 
units, plus the driver, prior to any modification for accessibility.
    (b) Each tractor unit which accommodates passengers and each trailer 
unit shall comply with Sec. 38.25 and Sec. 38.29 of this part. In 
addition, each such unit shall comply with Sec. 38.23 (b) or (c) and 
shall provide at least one space for wheelchair or mobility aid users 
complying with Sec. 38.23(d) of this part unless the complete operating 
unit consisting of tractor and one or more trailers can already 
accommodate at least two wheelchair or mobility aid users.

[[Page 541]]

                           Figures to Part 38
      [GRAPHIC] [TIFF OMITTED] TR28SE98.000
      

[[Page 542]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.194


[[Page 543]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.195


[[Page 544]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.196

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51700, 51703, Sept. 28, 
1998]

    Effective Date Note: At 63 FR 51700, 51703, Sept. 28, 1998, figures 
1 and 2 to part 38 were revised, effective Oct. 28, 1998. The superseded 
figures appear in the Oct. 1, 1997 revision of title 49 parts 1 to 99.

                 Appendix to Part 38--Guidance Material

    This appendix contains materials of an advisory nature and provides 
additional information that should help the reader to understand the 
minimum requirements of the standards or to design vehicles for greater 
accessibility. Each entry is applicable to all subparts of this part 
except where noted. Nothing in this appendix shall in any way obviate 
any obligation to comply with the requirements of the standards 
themselves.

I. Slip Resistant Surface--Aisles, Steps, Floor Areas Where People Walk, 
       Floor Areas in Securement Locations, Lift Platforms, Ramps

    Slip resistance is based on the frictional force necessary to keep a 
shoe heel or crutch tip from slipping on a walking surface under 
conditions likely to be found on the surface. While the dynamic 
coefficient of friction during walking varies in a complex and non-
uniform way, the static coefficient of friction, which can be measured 
in several ways,

[[Page 545]]

provides a close approximation of the slip resistance of a surface. 
Contrary to popular belief, some slippage is necessary to walking, 
especially for persons with restricted gaits; a truly ``non-slip'' 
surface could not be negotiated.
    The Occupational Safety and Health Administration recommends that 
walking surfaces have a static coefficient of friction of 0.5. A 
research project sponsored by the Architectural and Transportation 
Barriers Compliance Board (Access Board) conducted tests with persons 
with disabilities and concluded that a higher coefficient of friction 
was needed by such persons. A static coefficient of friction of 0.6 is 
recommended for steps, floors, and lift platforms and 0.8 for ramps.
    It is recognized that the coefficient of friction varies 
considerably due to the presence of contaminants, water, floor finishes, 
and other factors not under the control of transit providers and may be 
difficult to measure. Nevertheless, many common materials suitable for 
flooring are now labeled with information on the static coefficient of 
friction. While it may not be possible to compare one product directly 
with another, or to guarantee a constant measure, transit operators or 
vehicle designers and manufacturers are encouraged to specify materials 
with appropriate values. As more products include information on slip 
resistance, improved uniformity in measurement and specification is 
likely. The Access Board's advisory guidelines on Slip Resistant 
Surfaces provides additional information on this subject.

           II. Color Contrast--Step Edges, Lift Platform Edges

    The material used to provide contrast should contrast by at least 
70%. Contrast in percent is determined by:

Contrast=[B-B)/B] x 100

Where B=light reflectance value (LRV) of the lighter area
and B=light reflectance value (LRV) of the darker area.

Note that in any application both white and black are never absolute; 
thus, B never equals 100 and B is always greater than 0.

                      III. Handrails and Stanchions

    In addition to the requirements for handrails and stanchions for 
rapid, light, and commuter rail vehicles, consideration should be given 
to the proximity of handrails or stanchions to the area in which 
wheelchair or mobility aid users may position themselves. When 
identifying the clear floor space where a wheelchair or mobility aid 
user can be accommodated, it is suggested that at least one such area be 
adjacent or in close proximity to a handrail or stanchion. Of course, 
such a handrail or stanchion cannot encroach upon the required 32 inch 
width required for the doorway or the route leading to the clear floor 
space which must be at least 30 by 48 inches in size.

              IV. Priority Seating Signs and Other Signage

    A. Finish and Contrast. The characters and background of signs 
should be eggshell, matte, or other non-glare finish. An eggshell finish 
(11 to 19 degree gloss on 60 degree glossimeter) is recommended. 
Characters and symbols shall contrast with their background--either 
light characters on a dark background or dark characters on a light 
background. Research indicates that signs are more legible for persons 
with low vision when characters contrast with their background by at 
least 70 percent. Contrast in percent shall be determined by:

Contrast=[B-B)/B] x 100

Where B=light reflectance value (LRV) of the lighter area
and B=light reflectance value (LRV) of the darker area.

Note that in any application both white and black are never absolute; 
thus, B never equals 100 and B is always greater than 0.
    The greatest readability is usually achieved through the use of 
light-colored characters or symbols on a dark background.
    B. Destination and Route Signs. (The following specifications, which 
are required for buses (Sec. 38.39), are recommended for other types of 
vehicles, particularly light rail vehicles, were appropriate.)
    1. Where destination or route information is displayed on the 
exterior of a vehicle, each vehicle shall have illuminated signs on the 
front and boarding side of the vehicle.
    2. Characters on signs required by paragraph IV.B.1 of this appendix 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of 1 inch for signs on the boarding 
side and a minimum character height of 2 inches for front ``headsigns,'' 
with ``wide'' spacing (generally, the space between letters shall be \1/
16\ the height of upper case letters), and shall contrast with the 
background, either dark-on-light or light-on-dark, or as recommended 
above.
    C. Designation of Accessible Vehicles. The International Symbol of 
Accessibility should be displayed as shown in Figure 6.

                      V. Public Information Systems

    This section has been reserved and there currently is no requirement 
that vehicles be equipped with an information system which is capable of 
providing the same or equivalent information to persons with hearing 
loss. While the Department assesses available and soon-to-be available 
technology during a study to be conducted during Fiscal Year 1992, 
entities are encouraged to employ whatever services, signage or 
alternative systems or devices that provide equivalent access and are 
available. Two possible types

[[Page 546]]

of devices are visual display systems and listening systems. However, it 
should be noted that while visual display systems accommodate persons 
who are deaf or are hearing impaired, assistive listening systems aid 
only those with a partial loss of hearing.
    A. Visual Display Systems. Announcements may be provided in a visual 
format by the use of electronic message boards or video monitors.
    Electronic message boards using a light emitting diode (LED) or 
``flip-dot'' display are currently provided in some transit stations and 
terminals and may be usable in vehicles. These devices may be used to 
provide real time or pre-programmed messages; however, real time message 
displays require the availability of an employee for keyboard entry of 
the information to be announced.
    Video monitor systems, such as visual paging systems provided in 
some airports (e.g., Baltimore-Washington International Airport), are 
another alternative. The Architectural and Transportation Barriers 
Compliance Board (Access Board) can provide technical assistance and 
information on these systems (``Airport TDD Access: Two Case Studies,'' 
(1990)).
    B. Assistive Listening Systems. Assistive listening systems (ALS) 
are intended to augment standard public address and audio systems by 
providing signals which can be received directly by persons with special 
receivers or their own hearing aids and which eliminate or filter 
background noise. Magnetic induction loops, infra-red and radio 
frequency systems are types of listening systems which are appropriate 
for various applications.
    An assistive listening system appropriate for transit vehicles, 
where a group of persons or where the specific individuals are not known 
in advance, may be different from the system appropriate for a 
particular individual provided as an auxiliary aid or as part of a 
reasonable accommodation. The appropriate device for an individual is 
the type that individual can use, whereas the appropriate system for a 
station or vehicle will necessarily be geared toward the ``average'' or 
aggregate needs of various individuals. Earphone jacks with variable 
volume controls can benefit only people who have slight hearing loss and 
do not help people who use hearing aids. At the present time, magnetic 
induction loops are the most feasible type of listening system for 
people who use hearing aids equipped with ``T-coils'', but people 
without hearing aids or those with hearing aids not equipped with 
inductive pick-ups cannot use them without special receivers. Radio 
frequency systems can be extremely effective and inexpensive. People 
without hearing aids can use them, but people with hearing aids need a 
special receiver to use them as they are presently designed. If hearing 
aids had a jack to allow a by-pass of microphones, then radio frequency 
systems would be suitable for people with and without hearing aids. Some 
listening systems may be subject to interference from other equipment 
and feedback from hearing aids of people who are using the systems. Such 
interference can be controlled by careful engineering design that 
anticipates feedback sources in the surrounding area.
    The Architectural and Transportation Barriers Compliance Board 
(Access Board) has published a pamphlet on Assistive Listening Systems 
which lists demonstration centers across the country where technical 
assistance can be obtained in selecting and installing appropriate 
systems. The State of New York has also adopted a detailed technical 
specification which may be useful.

                         VI. Over-the-Road Buses

    A. Door Width. Achieving a 30 inch wide front door on an over-the-
road bus is considered not feasible if doing so would necessitate 
reduction of the bus approach angle, relocating the front axle rearward, 
or increasing the bus overall length.
    B. Restrooms. The following is provided to assist manufacturers and 
designers to create restrooms which can be used by people with 
disabilities. These specifications are derived from requirements for 
rail vehicles and represent compromises between space needed for use and 
constraints imposed by vehicle dimensions. As a result, some persons 
with disabilities cannot use a restroom which meets these specifications 
and operators who do provide such restrooms should provide passengers 
with disabilities sufficient advance information about design so that 
those passengers can assess their ability to use them. Designers should 
provide additional space beyond these minimum specifications whenever 
possible.
    (1) If an accessible restroom is provided, it should be designed so 
as to allow a person using a wheelchair or mobility aid to enter and use 
such restroom as specified in paragraphs (1)(a) through (e) of section 
VI.B of this appendix.
    (a) The minimum clear floor area should be 35 inches (890 mm) by 60 
inches (1525 mm). Permanently installed fixtures may overlap this area a 
maximum of 6 inches (150 mm), if the lowest portion of the fixture is a 
minimum of 9 inches (230 mm) above the floor, and may overlap a maximum 
of 19 inches (485 mm), if the lowest portion of the fixture is a minimum 
of 29 inches (740 mm) above the floor, provided such fixtures do not 
interfere with access to the water closet. Fold-down or retractable 
seats or shelves may overlap the clear floor space at a lower height 
provided they can be easily folded up or moved out of the way.
    (b) The height of the water closet should be 17 inches (430 mm) to 
19 inches (485 mm) measured to the top of the toilet seat. Seats

[[Page 547]]

should not be sprung to return to a lifted position.
    (c) A grab bar at least 24 inches (610 mm) long should be mounted 
behind the water closet, and a horizontal grab bar at least 40 inches 
(1015 mm) long should be mounted on at least one side wall, with one end 
not more than 12 inches (305 mm) from the back wall, at a height between 
33 inches (840 mm) and 36 inches (915 mm) above the floor.
    (d) Faucets and flush controls should be operable with one hand and 
should not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls should be no greater than 5 lbs 
(22.2 N). Controls for flush valves should be mounted no more than 44 
inches (1120 mm) above the floor.
    (e) Doorways on the end of the enclosure, opposite the water closet, 
should have a minimum clear opening width of 32 inches (815 mm). Door 
latches and hardware should be operable with one hand and should not 
require tight grasping, pinching, or twisting of the wrist.
    (2) Accessible restrooms should be in close proximity to at least 
one seating location for persons using mobility aids and should be 
connected to such a space by an unobstructed path having a minimum width 
of 32 inches (815 mm).
    C. Visibility Through a Window. Care should be taken so that the 
lift does not obscure the vision of the person occupying the securement 
position.

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51702, 51703, Sept. 28, 
1998]

    Effective Date Note: At 63 FR 51702, 51703, Sept. 28, 1998, the 
appendix to part 38 was amended by adding a new section VI, effective 
Oct. 28, 1998.



PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG TESTING PROGRAMS--Table of Contents




Sec.

                           Subpart A--General

40.1  Applicability.
40.3  Definitions.
40.5-40.19  [Reserved]

                         Subpart B--Drug Testing

40.21  The drugs.
40.23  Preparation for testing.
40.25  Specimen collection procedures.
40.27  Laboratory personnel.
40.29  Laboratory analysis procedures.
40.31  Quality assurance and quality control.
40.33  Reporting and review of results.
40.35  Protection of employee records.
40.37  Individual access to test and laboratory certification results.
40.39  Use of certified laboratories.

                       Subpart C--Alcohol Testing

40.51  The breath alcohol technician.
40.53  Devices to be used for breath alcohol tests.
40.55  Quality assurance plans for EBTs.
40.57  Locations for breath alcohol testing.
40.59  The breath alcohol testing form.
40.61  Preparation for breath alcohol testing.
40.63  Procedures for screening tests.
40.65  Procedures for confirmation tests.
40.67  Refusals to test and uncompleted tests.
40.69  Inability to provide an adequate amount of breath.
40.71--40.77  [Reserved]
40.79  Invalid tests.
40.81  Availability and disclosure of alcohol testing information about 
          individual employees.
40.83  Maintenance and disclosure of records concerning EBTs and BATs.

           Subpart D--Non-Evidential Alcohol Screening Devices

40.91  Authorization for use of non-evidential alcohol screening 
          devices.
40.93  The screening test technician.
40.95  Quality assurance plans for non-evidential screening devices.
40.97  Locations for non-evidential alcohol screening tests.
40.99  Testing forms.
40.101  Screening test procedure.
40.103  Refusals to test and uncompleted tests.
40.105  Inability to provide an adequate amount of breath or saliva.
40.107  Invalid tests.
40.109  Availability and disclosure of alcohol testing information about 
          individual employees.
40.111  Maintenance and disclosure of records concerning non-evidential 
          testing devices and STTs.

Appendix A to Part 40--Federal Drug Testing Custody and Control Form
Appendix B to Part 40--The Breath Alcohol Testing Form

    Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, 45101-45106.

    Source: 54 FR 49866, Dec. 1, 1989, unless otherwise noted.



                           Subpart A--General

    Source: 59 FR 7354, Feb. 15, 1994, unless otherwise noted.

[[Page 548]]



Sec. 40.1  Applicability.

    This part applies, through regulations that reference it issued by 
agencies of the Department of Transportation, to transportation 
employers, including self-employed individuals, required to conduct drug 
and/or alcohol testing programs by DOT agency regulations and to such 
transportation employers' officers, employees, agents and contractors 
(including, but not limited to, consortia). Employers are responsible 
for the compliance of their officers, employees, agents, consortia and/
or contractors with the requirements of this part.



Sec. 40.3  Definitions.

    The following definitions apply to this part:
    Air blank. A reading by an EBT of ambient air containing no alcohol. 
(In EBTs using gas chromatography technology, a reading of the device's 
internal standard.)
    Alcohol. The intoxicating agent in beverage alcohol, ethyl alcohol 
or other low molecular weight alcohols including methyl or isopropyl 
alcohol.
    Alcohol concentration. The alcohol in a volume of breath expressed 
in terms of grams of alcohol per 210 liters of breath as indicated by a 
breath test under this part.
    Alcohol use. The consumption of any beverage, mixture or 
preparation, including any medication, containing alcohol.
    Aliquot. A portion of a specimen used for testing.
    Blind sample or blind performance test specimen. A urine specimen 
submitted to a laboratory for quality control testing purposes, with a 
fictitious identifier, so that the laboratory cannot distinguish it from 
employee specimens, and which is spiked with known quantities of 
specific drugs or which is blank, containing no drugs.
    Breath Alcohol Technician (BAT). An individual who instructs and 
assists individuals in the alcohol testing process and operates an EBT.
    Canceled or invalid test. In drug testing, a drug test that has been 
declared invalid by a Medical Review Officer. A canceled test is neither 
a positive nor a negative test. For purposes of this part, a sample that 
has been rejected for testing by a laboratory is treated the same as a 
canceled test. In alcohol testing, a test that is deemed to be invalid 
under Sec. 40.79. It is neither a positive nor a negative test.
    Chain of custody. Procedures to account for the integrity of each 
urine or blood specimen by tracking its handling and storage from point 
of specimen collection to final disposition of the specimen. With 
respect to drug testing, these procedures shall require that an 
appropriate drug testing custody form (see Sec. 40.23(a)) be used from 
time of collection to receipt by the laboratory and that upon receipt by 
the laboratory an appropriate laboratory chain of custody form(s) 
account(s) for the sample or sample aliquots within the laboratory.
    Collection container. A container into which the employee urinates 
to provide the urine sample used for a drug test.
    Collection site. A place designated by the employer where 
individuals present themselves for the purpose of providing a specimen 
of their urine to be analyzed for the presence of drugs.
    Collection site person. A person who instructs and assists 
individuals at a collection site and who receives and makes a screening 
examination of the urine specimen provided by those individuals.
    Confirmation (or confirmatory) test. In drug testing, a second 
analytical procedure to identify the presence of a specific drug or 
metabolite that is independent of the screening test and that uses a 
different technique and chemical principle from that of the screening 
test in order to ensure reliability and accuracy. (Gas chromatography/
mass spectrometry (GC/MS) is the only authorized confirmation method for 
cocaine, marijuana, opiates, amphetamines, and phencyclidine.) In 
alcohol testing, a second test, following a screening test with a result 
of 0.02 or greater, that provides quantitative data of alcohol 
concentration.
    DHHS. The Department of Health and Human Services or any designee of 
the Secretary, Department of Health and Human Services.
    DOT agency. An agency of the United States Department of 
Transportation administering regulations related to drug or alcohol 
testing, including the

[[Page 549]]

United States Coast Guard (for drug testing purposes only), the Federal 
Aviation Administration, the Federal Railroad Administration, the 
Federal Highway Administration, the Federal Transit Administration, the 
Research and Special Programs Administration, and the Office of the 
Secretary.
    Employee. An individual designated in a DOT agency regulation as 
subject to drug testing and/or alcohol testing. As used in this part 
``employee'' includes an applicant for employment. ``Employee'' and 
``individual'' or ``individual to be tested'' have the same meaning for 
purposes of this part.
    Employer. An entity employing one or more employees that is subject 
to DOT agency regulations requiring compliance with this part. As used 
in this part, employer includes an industry consortium or joint 
enterprise comprised of two or more employing entities.
    EBT (or evidential breath testing device). An EBT approved by the 
National Highway Traffic Safety Administration (NHTSA) for the 
evidential testing of breath and placed on NHTSA's ``Conforming Products 
List of Evidential Breath Measurement Devices'' (CPL), and identified on 
the CPL as conforming with the model specifications available from the 
National Highway Traffic Safety Administration, Office of Alcohol and 
State Programs.
    Medical Review Officer (MRO). A licensed physician (medical doctor 
or doctor of osteopathy) responsible for receiving laboratory results 
generated by an employer's drug testing program who has knowledge of 
substance abuse disorders and has appropriate medical training to 
interpret and evaluate an individual's confirmed positive test result 
together with his or her medical history and any other relevant 
biomedical information.
    Screening test (or initial test). In drug testing, an immunoassay 
screen to eliminate ``negative'' urine specimens from further analysis. 
In alcohol testing, an analytic procedure to determine whether an 
employee may have a prohibited concentration of alcohol in a breath 
specimen.
    Secretary. The Secretary of Transportation or the Secretary's 
designee.
    Shipping container. A container capable of being secured with a 
tamper-evident seal that is used for transfer of one or more urine 
specimen bottle(s) and associated documentation from the collection site 
to the laboratory.
    Specimen bottle. The bottle that, after being labeled and sealed 
according to the procedures in this part, is used to transmit a urine 
sample to the laboratory.
    Substance abuse professional. A licensed physician (Medical Doctor 
or Doctor of Osteopathy); or a licensed or certified psychologist, 
social worker, or employee assistance professional; or an addiction 
counselor (certified by the National Association of Alcoholism and Drug 
Abuse Counselors Certification Commission or by the International 
Certification Reciprocity Consortium/Alcohol & Other Drug Abuse). All 
must have knowledge of and clinical experience in the diagnosis and 
treatment of alcohol and controlled substances-related disorders.

[59 FR 7354, Feb. 15, 1994, as amended at 59 FR 43000, Aug. 19, 1994; 61 
FR 37224, July 17, 1996]



Secs. 40.5--40.19  [Reserved]



                         Subpart B--Drug Testing



Sec. 40.21  The drugs.

    (a) DOT agency drug testing programs require that employers test for 
marijuana, cocaine, opiates, amphetamines and phencyclidine.
    (b) An employer may include in its testing protocols other 
controlled substances or alcohol only pursuant to a DOT agency approval, 
if testing for those substances is authorized under agency regulations 
and if the DHHS has established an approved testing protocol and 
positive threshold for each such substance.
    (c) Urine specimens collected under DOT agency regulations requiring 
compliance with this part may only be used to test for controlled 
substances designated or approved for testing as described in this 
section and shall not be used to conduct any other analysis or test 
unless otherwise specifically authorized by DOT agency regulations.

[[Page 550]]

    (d) This section does not prohibit procedures reasonably incident to 
analysis of the specimen for controlled substances (e.g., determination 
of pH or tests for specific gravity, creatinine concentration or 
presence of adulterants).



Sec. 40.23  Preparation for testing.

    The employer and certified laboratory shall develop and maintain a 
clear and well-documented procedure for collection, shipment, and 
accessioning of urine specimens under this part. Such a procedure shall 
include, at a minimum, the following:
    (a)(1) Except as provided in paragraph (a)(2) of this section, use 
of the drug testing form prescribed under this part.
    (i) This form is found in appendix A to this part.
    (ii) Employers and other participants in the DOT drug testing 
program may not modify or revise this form, except that the drug testing 
custody and control form may include such additional information as may 
be required for billing or other legitimate purposes necessary to the 
collection, provided that personal identifying information on the donor 
(other than the social security number or other employee ID number) may 
not be provided to the laboratory.
    (iii) Donor medical information may appear only on the copy provided 
the donor.
    (2) Notwithstanding the requirement of paragraph (a)(1)(ii) of this 
section, employers and other participants may use existing forms that 
were in use in the DOT drug testing program prior to February 16, 1995, 
until June 1, 1995.
    (b)(1) Use of a clean, single-use specimen bottle that is securely 
wrapped until filled with the specimen. A clean, single-use collection 
container (e.g., disposable cup or sterile urinal) that is securely 
wrapped until used may also be employed. If urination is directly into 
the specimen bottle, the specimen bottle shall be provided to the 
employee still sealed in its wrapper or shall be unwrapped in the 
employee's presence immediately prior to its being provided. If a 
separate collection container is used for urination, the collection 
container shall be provided to the employee still sealed in its wrapper 
or shall be unwrapped in the employee's presence immediately prior to 
its being provided; and the collection site person shall unwrap the 
specimen bottle in the presence of the employee at the time the urine 
specimen is presented.
    (2) Use of a tamperproof sealing system, designed in a manner such 
to ensure against undetected opening. The specimen bottle shall be 
identified with a unique identifying number identical to that appearing 
on the urine custody and control form, and space shall be provided to 
initial the bottle affirming its identity. For purposes of clarity, this 
part assumes use of a system made up of one or more preprinted labels 
and seals (or a unitary label/seal), but use of other, equally effective 
technologies is authorized.
    (c) Use of a shipping container in which the specimen and associated 
paperwork may be transferred and which can be sealed and initialled to 
prevent undetected tampering. If the split specimen option is exercised, 
the split specimen and associated paperwork shall be sealed in a 
shipping (or storage) container and initialled to prevent undetected 
tampering.
    (d) Written procedures, instructions and training shall be provided 
as follows:
    (1) Employer collection procedures and training shall clearly 
emphasize that the collection site person is responsible for maintaining 
the integrity of the specimen collection and transfer process, carefully 
ensuring the modesty and privacy of the donor, and is to avoid any 
conduct or remarks that might be construed as accusatorial or otherwise 
offensive or inappropriate.
    (2) A collection site person shall have successfully completed 
training to carry out this function or shall be a licensed medical 
professional or technician who is provided instructions for collection 
under this part and certifies completion as required in this part
    (i) A non-medical collection site person shall receive training in 
compliance with this part and shall demonstrate proficiency in the 
application

[[Page 551]]

of this part prior to serving as a collection site person. A medical 
professional, technologist or technician licensed or otherwise approved 
to practice in the jurisdiction in which the collection takes place is 
not required to receive such training if that person is provided 
instructions described in this part and performs collections in 
accordance with those instructions.
    (ii) Collection site persons shall be provided with detailed, clear 
instructions on the collection of specimens in compliance with this 
part. Employer representatives and donors subject to testing shall also 
be provided standard written instructions setting forth their 
responsibilities.
    (3) Unless it is impracticable for any other individual to perform 
this function, a direct supervisor of an employee shall not serve as the 
collection site person for a test of the employee. If the rules of a DOT 
agency are more stringent than this provision regarding the use of 
supervisors as collection site personnel, the DOT agency rules shall 
prevail with respect to testing to which they apply.
    (4) In any case where a collection is monitored by non-medical 
personnel or is directly observed, the collection site person shall be 
of the same gender as the donor. A collection is monitored for this 
purpose if the enclosure provides less than complete privacy for the 
donor (e.g., if a restroom stall is used and the collection site person 
remains in the restroom, or if the collection site person is expected to 
listen for use of unsecured sources of water.)

[54 FR 49866, Dec. 1, 1989, as amended at 60 FR 19536, Apr. 19, 1995]



Sec. 40.25  Specimen collection procedures.

    (a) Designation of collection site. (1) Each employer drug testing 
program shall have one or more designated collection sites which have 
all necessary personnel, materials, equipment, facilities and 
supervision to provide for the collection, security, temporary storage, 
and shipping or transportation of urine specimens to a certified drug 
testing laboratory. An independent medical facility may also be utilized 
as a collection site provided the other applicable requirements of this 
part are met.
    (2) A designated collection site may be any suitable location where 
a specimen can be collected under conditions set forth in this part, 
including a properly equipped mobile facility. A designated collection 
site shall be a location having an enclosure within which private 
urination can occur, a toilet for completion of urination (unless a 
single-use collector is used with sufficient capacity to contain the 
void), and a suitable clean surface for writing. The site must also have 
a source of water for washing hands, which, if practicable, should be 
external to the enclosure where urination occurs.
    (b) Security. The purpose of this paragraph is to prevent 
unauthorized access which could compromise the integrity of the 
collection process or the specimen.
    (1) Procedures shall provide for the designated collection site to 
be secure. If a collection site facility is dedicated solely to urine 
collection, it shall be secure at all times. If a facility cannot be 
dedicated solely to drug testing, the portion of the facility used for 
testing shall be secured during drug testing.
    (2) A facility normally used for other purposes, such as a public 
rest room or hospital examining room, may be secured by visual 
inspection to ensure other persons are not present and undetected access 
(e.g., through a rear door not in the view of the collection site 
person) is not possible. Security during collection may be maintained by 
effective restriction of access to collection materials and specimens. 
In the case of a public rest room, the facility must be posted against 
access during the entire collection procedure to avoid embarrassment to 
the employee or distraction of the collection site person.
    (3) If it is impractical to maintain continuous physical security of 
a collection site from the time the specimen is presented until the 
sealed mailer is transferred for shipment, the following minimum 
procedures shall apply. The specimen shall remain under the direct 
control of the collection site person from delivery to its being sealed 
in the mailer. The mailer shall be immediately mailed, maintained in 
secure storage, or remain until mailed under

[[Page 552]]

the personal control of the collection site person.
    (c) Chain of custody. The chain of custody block of the drug testing 
custody and control form shall be properly executed by authorized 
collection site personnel upon receipt of specimens. Handling and 
transportation of urine specimens from one authorized individual or 
place to another shall always be accomplished through chain of custody 
procedures. Since specimens and documentation are sealed in shipping 
containers that would indicate any tampering during transit to the 
laboratory and couriers, express carriers, and postal service personnel 
do not have access to the chain of custody forms, there is no 
requirement that such personnel document chain of custody for the 
shipping container during transit. Nor is there a requirement that there 
be a chain of custody entry when a specimen which is sealed in such a 
shipping container is put into or taken out of secure storage at the 
collection site prior to pickup by such personnel. This means that the 
chain of custody is not broken, and a test shall not be canceled, 
because couriers, express carriers, postal service personnel, or similar 
persons involved solely with the transportation of a specimen to a 
laboratory, have not documented their participation in the chain of 
custody documentation or because the chain of custody does not contain 
entries related to putting the specimen into or removing it from secure 
temporary storage at the collection site. Every effort shall be made to 
minimize the number of persons handling specimens.
    (d) Access to authorized personnel only. No unauthorized personnel 
shall be permitted in any part of the designated collection site where 
urine specimens are collected or stored. Only the collection site person 
may handle specimens prior to their securement in the mailing container 
or monitor or observe specimen collection (under the conditions 
specified in this part). In order to promote security of specimens, 
avoid distraction of the collection site person and ensure against any 
confusion in the identification of specimens, the collection site person 
shall have only one donor under his or her supervision at any time. For 
this purpose, a collection procedure is complete when the urine bottle 
has been sealed and initialled, the drug testing custody and control 
form has been executed, and the employee has departed the site (or, in 
the case of an employee who was unable to provide a complete specimen, 
has entered a waiting area).
    (e) Privacy. (1) Procedures for collecting urine specimens shall 
allow individual privacy unless there is a reason to believe that a 
particular individual may alter or substitute the specimen to be 
provided, as further described in this paragraph.
    (2) For purposes of this part, the following circumstances are the 
exclusive grounds constituting a reason to believe that the individual 
may alter or substitute the specimen:
    (i) The employee has presented a urine specimen that falls outside 
the normal temperature range (32 deg.-38 deg. C/90 deg.-100 deg. F), and
    (A) The employee declines to provide a measurement of body 
temperature (taken by a means other than use of a rectal thermometer), 
as provided in paragraph (f)(14) of the part; or
    (B) Body temperature varies by more than 1 deg.C/1.8 deg.F from the 
temperature of the specimen;
    (ii) The last urine specimen provided by the employee (i.e., on a 
previous occasion) was determined by the laboratory to have a specific 
gravity of less than 1.003 and a creatinine concentration below .2g/L;
    (iii) The collection site person observes conduct clearly and 
unequivocally indicating an attempt to substitute or adulterate the 
sample (e.g., substitute urine in plain view, blue dye in specimen 
presented, etc.); or
    (iv) The employee has previously been determined to have used a 
controlled substance without medical authorization and the particular 
test was being conducted under a DOT agency regulation providing for 
follow-up testing upon or after return to service.
    (3) A higher-level supervisor of the collection site person, or a 
designated employer representative, shall review and concur in advance 
with any decision by a collection site person to obtain a specimen under 
the direct observation of a same gender collection site person based 
upon the circumstances

[[Page 553]]

described in subparagraph (2) of this paragraph.
    (f) Integrity and identity of specimen. Employers shall take 
precautions to ensure that a urine specimen is not adulterated or 
diluted during the collection procedure and that information on the 
urine bottle and on the urine custody and control form can identify the 
individual from whom the specimen was collected. The following minimum 
precautions shall be taken to ensure that unadulterated specimens are 
obtained and correctly identified:
    (1) To deter the dilution of specimens at the collection site, 
toilet bluing agents shall be placed in toilet tanks wherever possible, 
so the reservoir of water in the toilet bowl always remains blue. Where 
practicable, there shall be no other source of water (e.g., shower or 
sink) in the enclosure where urination occurs. If there is another 
source of water in the enclosure it shall be effectively secured or 
monitored to ensure it is not used as a source for diluting the 
specimen.
    (2) When an individual arrives at the collection site, the 
collection site person shall ensure that the individual is positively 
identified as the employee selected for testing (e.g., through 
presentation of photo identification or identification by the employer's 
representative). If the individual's identity cannot be established, the 
collection site person shall not proceed with the collection. If the 
employee requests, the collection site person shall show his/her 
identification to the employee.
    (3) If the individual fails to arrive at the assigned time, the 
collection site person shall contact the appropriate authority to obtain 
guidance on the action to be taken.
    (4) The collection site person shall ask the individual to remove 
any unnecessary outer garments such as a coat or jacket that might 
conceal items or substances that could be used to tamper with or 
adulterate the individual's urine specimen. The collection site person 
shall ensure that all personal belongings such as a purse or briefcase 
remain with the outer garments. The individual may retain his or her 
wallet. If the employee requests it, the collection site personnel shall 
provide the employee a receipt for any personal belongings.
    (5) The individual shall be instructed to wash and dry his or her 
hands prior to urination.
    (6) After washing hands, the individual shall remain in the presence 
of the collection site person and shall not have access to any water 
fountain, faucet, soap dispenser, cleaning agent or any other materials 
which could be used to adulterate the specimen.
    (7) The individual may provide his/her specimen in the privacy of a 
stall or otherwise partitioned area that allows for individual privacy. 
The collection site person shall provide the individual with a specimen 
bottle or collection container, if applicable, for this purpose.
    (8) The collection site person shall note any unusual behavior or 
appearance on the urine custody and control form.
    (9) In the exceptional event that an employer-designated collection 
site is not accessible and there is an immediate requirement for 
specimen collection (e.g., circumstances require a post-accident test), 
a public rest room may be used according to the following procedures: A 
collection site person of the same gender as the individual shall 
accompany the individual into the public rest room which shall be made 
secure during the collection procedure. If possible, a toilet bluing 
agent shall be placed in the bowl and any accessible toilet tank. The 
collection site person shall remain in the rest room, but outside the 
stall, until the specimen is collected. If no bluing agent is available 
to deter specimen dilution, the collection site person shall instruct 
the individual not to flush the toilet until the specimen is delivered 
to the collection site person. After the collection site person has 
possession of the specimen, the individual will be instructed to flush 
the toilet and to participate with the collection site person in 
completing the chain of custody procedures.
    (10) The collection site person shall instruct the employee to 
provide at least 45 ml of urine under the split sample method of 
collection or 30 ml of urine under the single sample method of 
collection.

[[Page 554]]

    (i)(A) Employers with employees subject to drug testing only under 
the drug testing rules of the Research and Special Programs 
Administration and/or Coast Guard may use the ``split sample'' method of 
collection or may collect a single sample for those employees.
    (B) Employers with employees subject to drug testing under the drug 
testing rules of the Federal Highway Administration, Federal Railroad 
Administration, Federal Transit Administration, or Federal Aviation 
Administration shall use the ``split sample'' method of collection for 
those employees.
    (ii) Employers using the split sample method of collection shall 
follow the procedures in this paragraph (f)(10)(ii):
    (A) The donor shall urinate into a collection container or a 
specimen bottle capable of holding at least 60 ml.
    (B)(1) If a collection container is used, the collection site 
person, in the presence of the donor, pours the urine into two specimen 
bottles. Thirty (30) ml shall be poured into one specimen bottle, to be 
used as the primary specimen. At least 15 ml shall be poured into the 
other bottle, to be used as the split specimen.
    (2) If a single specimen bottle is used as a collection container, 
the collection site person, in the presence of the donor, shall pour 15 
ml of urine from the specimen bottle into a second specimen bottle (to 
be used as the split specimen) and retain the remainder (at least 30 ml) 
in the collection bottle (to be used as the primary specimen).
    (C) Nothing in this section precludes the use of a collection method 
or system that does not involve the physical pouring of urine from one 
container or bottle to another by the collection site person, provided 
that the method or system results in the subdivision of the specimen 
into a primary (30 ml) and a split (at least 15 ml) specimen that can be 
transmitted to the laboratory and tested in accordance with the 
requirements of this Subpart.
    (D) Both bottles shall be shipped in a single shipping container, 
together with copies 1,2, and the split specimen copy of the chain of 
custody form, to the laboratory.
    (E) If the test result of the primary specimen is positive, the 
employee may request that the MRO direct that the split specimen be 
tested in a different DHHS-certified laboratory for presence of the 
drug(s) for which a positive result was obtained in the test of the 
primary specimen. The MRO shall honor such a request if it is made 
within 72 hours of the employee having been notified of a verified 
positive test result.
    (F) When the MRO informs the laboratory in writing that the employee 
has requested a test of the split specimen, the laboratory shall 
forward, to a different DHHS-approved laboratory, the split specimen 
bottle, with seal intact, a copy of the MRO request, and the split 
specimen copy of the chain of custody form with appropriate chain of 
custody entries.
    (G) The result of the test of the split specimen is transmitted by 
the second laboratory to the MRO.
    (H) Action required by DOT agency regulations as the result of a 
positive drug test (e.g., removal from performing a safety-sensitive 
function) is not stayed pending the result of the test of the split 
specimen.
    (I) If the result of the test of the split specimen fails to 
reconfirm the presence of the drug(s) or drug metabolite(s) found in the 
primary specimen, the MRO shall cancel the test, and report the 
cancellation and the reasons for it to the DOT, the employer, and the 
employee.
    (iii) Employers using the single sample collection method shall 
follow the procedures in paragraph:
    (A) The collector may choose to direct the employee to urinate 
either directly into a specimen bottle or into a separate collection 
container.
    (B) If a separate collection container is used, the collection site 
person shall pour at least 30 ml of the urine from the collection 
container into the specimen bottle in the presence of the employee.
    (iv)(A)(1) In either collection methodology, upon receiving the 
specimen from the individual, the collection site person shall determine 
if the specimen has at least 30 milliliters of urine for a single 
specimen collection or 45 milliliters of urine for a split specimen 
collection.

[[Page 555]]

    (2) If the individual has not provided the required quantity of 
urine, the specimen shall be discarded. The collection site person shall 
direct the individual to drink up to 40 ounces of fluid, distributed 
reasonably through a period of up to three hours, or until the 
individual has provided a new urine specimen, whichever occurs first. If 
the employee refuses to drink fluids as directed or to provide a new 
urine specimen, the collection site person shall terminate the 
collection and notify the employer that the employee has refused to 
submit to testing.
    (3) If the employee has not provided a sufficient specimen within 
three hours of the first unsuccessful attempt to provide the specimen, 
the collection site person shall discontinue the collection and notify 
the employer.
    (B) The employer shall direct any employee who does not provide a 
sufficient urine specimen (see paragraph (f)(10)(iv)(A)(3) of this 
section) to obtain, as soon as possible after the attempted provision of 
urine, an evaluation from a licensed physician who is acceptable to the 
employer concerning the employee's ability to provide an adequate amount 
of urine.
    (1) If the physician determines, in his or her reasonable medical 
judgment, that a medical condition has, or with a high degree of 
probability, could have, precluded the employee from providing an 
adequate amount of urine, the employee's failure to provide an adequate 
amount of urine shall not be deemed a refusal to take a test. For 
purposes of this paragraph, a medical condition includes an 
ascertainable physiological condition (e.g., a urinary system 
dysfunction) or a documented pre-existing psychological disorder, but 
does not include unsupported assertions of ``situational anxiety'' or 
dehydration. The physician shall provide to the MRO a brief written 
statement setting forth his or her conclusion and the basis for it, 
which shall not include detailed information on the medical condition of 
the employee. Upon receipt of this statement, the MRO shall report his 
or her conclusions to the employer in writing.
    (2) If the physician, in his or her reasonable medical judgment, is 
unable to make the determination set forth in paragraph 
(f)(10)(iv)(B)(1) of this section, the employee's failure to provide an 
adequate amount of urine shall be regarded as a refusal to take a test. 
The physician shall provide to the MRO a brief written statement setting 
forth his or her conclusion and the basis for it, which shall not 
include detailed information on the medical condition of the employee. 
Upon receipt of this statement, the MRO shall report his or her 
conclusions to the employer in writing.
    (11) After the specimen has been provided and submitted to the 
collection site person, the individual shall be allowed to wash his or 
her hands.
    (12) Immediately after the specimen is collected, the collection 
site person shall measure the temperature of the specimen. The 
temperature measuring device used must accurately reflect the 
temperature of the specimen and not contaminate the specimen. The time 
from urination to temperature measure is critical and in no case shall 
exceed 4 minutes.
    (13) A specimen temperature outside the range of 32 deg.-38 deg. C/
90 deg.-100 deg. F constitutes a reason to believe that the individual 
has altered or substituted the specimen (see paragraph (e)(2)(i) of this 
section). In such cases, the individual supplying the specimen may 
volunteer to have his or her oral temperature taken to provide evidence 
to counter the reason to believe the individual may have altered or 
substituted the specimen.
    (14) Immediately after the specimen is collected, the collection 
site person shall also inspect the specimen to determine its color and 
look for any signs of contaminants. Any unusual findings shall be noted 
on the urine custody and control form.
    (15) All specimens suspected of being adulterated shall be forwarded 
to the laboratory for testing.
    (16) Whenever there is reason to believe that a particular 
individual has altered or substituted the specimen as described in 
paragraph (e)(2) (i) or (iii) of this section, a second specimen shall 
be obtained as soon as possible under the direct observation of a same 
gender collection site person.
    (17) Both the individual being tested and the collection site person 
shall

[[Page 556]]

keep the specimen in view at all times prior to its being sealed and 
labeled. As provided below, the specimen shall be sealed (by placement 
of a tamperproof seal over the bottle cap and down the sides of the 
bottle) and labeled in the presence of the employee. If the specimen is 
transferred to a second bottle, the collection site person shall request 
the individual to observe the transfer of the specimen and the placement 
of the tamperproof seal over the bottle cap and down the sides of the 
bottle.
    (18) The collection site person and the individual being tested 
shall be present at the same time during procedures outlined in 
paragraphs (f)(19)-(f)(22) of this section.
    (19) The collection site person shall place securely on the bottle 
an identification label which contains the date, the individual's 
specimen number, and any other identifying information provided or 
required by the employer. If separate from the label, the tamperproof 
seal shall also be applied.
    (20) The individual shall initial the identification label on the 
specimen bottle for the purpose of certifying that it is the specimen 
collected from him or her.
    (21) The collection site person shall enter on the drug testing 
custody and control form all information identifying the specimen. The 
collection site person shall sign the drug testing custody and control 
form certifying that the collection was accomplished according to the 
applicable Federal requirements.
    (22)(i) The individual shall be asked to read and sign a statement 
on the drug testing custody and control form certifying that the 
specimen identified as having been collected from him or her is in fact 
the specimen he or she provided.
    (ii) When specified by DOT agency regulation or required by the 
collection site (other than an employer site) or by the laboratory, the 
employee may be required to sign a consent or release form authorizing 
the collection of the specimen, analysis of the specimen for designated 
controlled substances, and release of the results to the employer. The 
employee may not be required to waive liability with respect to 
negligence on the part of any person participating in the collection, 
handling or analysis of the specimen or to indemnify any person for the 
negligence of others.
    (23) The collection site person shall complete the chain of custody 
portion of the drug testing custody and control form to indicate receipt 
of the specimen from the employee and shall certify proper completion of 
the collection.
    (24) The urine specimen and chain of custody form are now ready for 
shipment. If the specimen is not immediately prepared for shipment, the 
collection site person shall ensure that it is appropriately safeguarded 
during temporary storage.
    (25)(i) While any part of the above chain of custody procedures is 
being performed, it is essential that the urine specimen and custody 
documents be under the control of the involved collection site person. 
If the involved collection site person leaves his or her work station 
momentarily, the collection site person shall take the specimen and drug 
testing custody and control form with him or her or shall secure them. 
After the collection site person returns to the work station, the 
custody process will continue. If the collection site person is leaving 
for an extended period of time, he or she shall package the specimen for 
mailing before leaving the site.
    (ii) The collection site person shall not leave the collection site 
in the interval between presentation of the specimen by the employee and 
securement of the sample with an identifying label bearing the 
employee's specimen identification number (shown on the urine custody 
and control form) and seal initialed by the employee. If it becomes 
necessary for the collection site person to leave the site during this 
interval, the collection shall be nullified and (at the election of the 
employer) a new collection begun.
    (g) Collection control. To the maximum extent possible, collection 
site personnel shall keep the individual's specimen bottle within sight 
both before and after the individual has urinated. After the specimen is 
collected, it shall be properly sealed and labeled.
    (h) Transportation to laboratory. Collection site personnel shall 
arrange to

[[Page 557]]

ship the collected specimen to the drug testing laboratory. The 
specimens shall be placed in shipping containers designed to minimize 
the possibility of damage during shipment (e.g., specimen boxes and/or 
padded mailers); and those containers shall be securely sealed to 
eliminate the possibility of undetected tampering with the specimen and/
or the form. On the tape sealing the shipping container, the collection 
site person shall sign and enter the date specimens were sealed in the 
shipping container for shipment. The collection site person shall ensure 
that the chain of custody documentation is enclosed in each container 
sealed for shipment to the drug testing laboratory. Since specimens and 
documentation are sealed in shipping containers that would indicate any 
tampering during transit to the laboratory and couriers, express 
carriers, and postal service personnel do not have access to the chain 
of custody forms, there is no requirement that such personnel document 
chain of custody for the shipping container during transit. Nor is there 
a requirement that there be a chain of custody entry when a specimen 
which is sealed in such a shipping container is put into or taken out of 
secure storage at the collection site prior to pickup by such personnel. 
This means that the chain of custody is not broken, and a test shall not 
be canceled, because couriers, express carriers, postal service 
personnel, or similar persons involved solely with the transportation of 
a specimen to a laboratory, have not documented their participation in 
the chain of custody documentation or because the chain of custody does 
not contain entries related to putting the specimen into or removing it 
from secure temporary storage at the collection site.
    (i) Failure to cooperate. If the employee refuses to cooperate with 
the collection process, the collection site person shall inform the 
employer representative and shall document the non-cooperation on the 
drug testing custody and control form.
    (j) Employee requiring medical attention. If the sample is being 
collected from an employee in need of medical attention (e.g., as part 
of a post-accident test given in an emergency medical facility), 
necessary medical attention shall not be delayed in order to collect the 
specimen.
    (k) Use of chain of custody form. A chain of custody form (and a 
laboratory internal chain of custody document, where applicable), shall 
be used for maintaining control and accountability of each specimen from 
the point of collection to final disposition of the specimen. The date 
and purpose shall be documented on the form each time a specimen is 
handled or transferred and every individual in the chain of custody 
shall be identified. Since specimens and documentation are sealed in 
shipping containers that would indicate any tampering during transit to 
the laboratory and couriers, express carriers, and postal service 
personnel do not have access to the chain of custody forms, there is no 
requirement that such personnel document chain of custody for the 
shipping container during transit. Nor is there a requirement that there 
be a chain of custody entry when a specimen which is sealed in such a 
shipping container is put into or taken out of secure storage at the 
collection site prior to pickup by such personnel. This means that the 
chain of custody is not broken, and a test shall not be canceled, 
because couriers, express carriers, postal service personnel, or similar 
persons involved solely with the transportation of a specimen to a 
laboratory, have not documented their participation in the chain of 
custody documentation or because the chain of custody does not contain 
entries related to putting the specimen into or removing it from secure 
temporary storage at the collection site. Every effort shall be made to 
minimize the number of persons handling specimens.

[54 FR 49866, Dec. 1, 1989, as amended at 59 FR 7355, Feb. 15, 1994; 59 
FR 43000, Aug. 19, 1994; 61 FR 37699, July 19, 1996]



Sec. 40.27  Laboratory personnel.

    (a) Day-to-day management. (1) The laboratory shall have a qualified 
individual to assume professional, organizational, educational, and 
administrative responsibility for the laboratory's urine drug testing 
facility.

[[Page 558]]

    (2) This individual shall have documented scientific qualifications 
in analytical forensic toxicology. Minimum qualifications are:
    (i) Certification as a laboratory director by a State in forensic or 
clinical laboratory toxicology; or
    (ii) A Ph.D. in one of the natural sciences with an adequate 
undergraduate and graduate education in biology, chemistry, and 
pharmacology or toxicology; or
    (iii) Training and experience comparable to a Ph.D. in one of the 
natural sciences, such as a medical or scientific degree with additional 
training and laboratory/research experience in biology, chemistry, and 
pharmacology or toxicology; and
    (iv) In addition to the requirements in paragraph (a)(2) (i), (ii), 
or (iii) of this section, minimum qualifications also require:
    (A) Appropriate experience in analytical forensic toxicology 
including experience with the analysis of biological material for drugs 
of abuse, and
    (B) Appropriate training and/or experience in forensic applications 
of analytical toxicology, e.g., publications, court testimony, research 
concerning analytical toxicology of drugs of abuse, or other factors 
which qualify the individual as an expert witness in forensic 
toxicology.
    (3) This individual shall be engaged in and responsible for the day-
to-day management of the drug testing laboratory even where another 
individual has overall responsibility for an entire multi-specialty 
laboratory.
    (4) This individual shall be responsible for ensuring that there are 
enough personnel with adequate training and experience to supervise and 
conduct the work of the drug testing laboratory. He or she shall assure 
the continued competency of laboratory personnel by documenting their 
in-service training, reviewing their work performance, and verifying 
their skills.
    (5) This individual shall be responsible for the laboratory's having 
a procedure manual which is complete, up-to-date, available for 
personnel performing tests, and followed by those personnel. The 
procedure manual shall be reviewed, signed, and dated by this 
responsible individual whenever procedures are first placed into use or 
changed or when a new individual assumes responsibility for management 
of the drug testing laboratory. Copies of all procedures and dates on 
which they are in effect shall be maintained. (Specific contents of the 
procedure manual are described in Sec. 40.29(n)(1).)
    (6) This individual shall be responsible for maintaining a quality 
assurance program to assure the proper performance and reporting of all 
test results; for maintaining acceptable analytical performance for all 
controls and standards; for maintaining quality control testing; and for 
assuring and documenting the validity, reliability, accuracy, precision, 
and performance characteristics of each test and test system.
    (7) This individual shall be responsible for taking all remedial 
actions necessary to maintain satisfactory operation and performance of 
the laboratory in response to quality control systems not being within 
performance specifications, errors in result reporting or in analysis of 
performance testing results. This individual shall ensure that sample 
results are not reported until all corrective actions have been taken 
and he or she can assure that the tests results provided are accurate 
and reliable.
    (b) Test validation. The laboratory's urine drug testing facility 
shall have a qualified individual(s) who reviews all pertinent data and 
quality control results in order to attest to the validity of the 
laboratory's test reports. A laboratory may designate more than one 
person to perform this function. This individual(s) may be any employee 
who is qualified to be responsible for day-to-day management or 
operation of the drug testing laboratory.
    (c) Day-to-day operations and supervision of analysts. The 
laboratory's urine drug testing facility shall have an individual to be 
responsible for day-to-day operations and to supervise the technical 
analysts. This individual(s) shall have at least a bachelor's degree in 
the chemical or biological sciences or medical technology or equivalent. 
He or she shall have training and experience in the theory and practice 
of the

[[Page 559]]

procedures used in the laboratory, resulting in his or her thorough 
understanding of quality control practices and procedures; the review, 
interpretation, and reporting of test results; maintenance of chain of 
custody; and proper remedial actions to be taken in response to test 
systems being out of control limits or detecting aberrant test or 
quality control results.
    (d) Other personnel. Other technicians or nontechnical staff shall 
have the necessary training and skills for the tasks assigned.
    (e) Training. The laboratory's urine drug testing program shall make 
available continuing education programs to meet the needs of laboratory 
personnel.
    (f) Files. Laboratory personnel files shall include: resume of 
training and experience, certification or license if any; references; 
job descriptions; records of performance evaluation and advancement; 
incident reports; and results of tests which establish employee 
competency for the position he or she holds, such as a test for color 
blindness, if appropriate.



Sec. 40.29  Laboratory analysis procedures.

    (a) Security and chain of custody. (1) Drug testing laboratories 
shall be secure at all times. They shall have in place sufficient 
security measures to control access to the premises and to ensure that 
no unauthorized personnel handle specimens or gain access to the 
laboratory process or to areas where records are stored. Access to these 
secured areas shall be limited to specifically authorized individuals 
whose authorization is documented. With the exception of personnel 
authorized to conduct inspections on behalf of Federal agencies for 
which the laboratory is engaged in urine testing or on behalf of DHHS, 
all authorized visitors and maintenance and service personnel shall be 
escorted at all times. Documentation of individuals accessing these 
areas, dates, and time of entry and purpose of entry must be maintained.
    (2) Laboratories shall use chain of custody procedures to maintain 
control and accountability of specimens from receipt through completion 
of testing, reporting of results during storage, and continuing until 
final disposition of specimens. The date and purpose shall be documented 
on an appropriate chain of custody form each time a specimen is handled 
or transferred and every individual in the chain shall be identified. 
Accordingly, authorized technicians shall be responsible for each urine 
specimen or aliquot in their possession and shall sign and complete 
chain of custody forms for those specimens or aliquots as they are 
received.
    (b) Receiving. (1)(i) When a shipment of specimens is received, 
laboratory personnel shall inspect each package for evidence of possible 
tampering and compare information on specimen bottles within each 
package to the information on the accompanying chain of custody forms. 
Any direct evidence of tampering or discrepancies in the information on 
specimen bottles and the employer's chain of custody forms attached to 
the shipment shall be immediately reported to the employer and shall be 
noted on the laboratory's chain of custody form which shall accompany 
the specimens while they are in the laboratory's possession.
    (ii) Where the employer has used the split sample method, and the 
laboratory observes that the split specimen is untestable, inadequate, 
or unavailable for testing, the laboratory shall nevertheless test the 
primary specimen. The laboratory does not inform the MRO or the employer 
of the untestability, inadequacy, or unavailability of the split 
specimen until and unless the primary specimen is a verified positive 
test and the MRO has informed the laboratory that the employee has 
requested a test of the split specimen.
    (2) In situations where the employer uses the split sample 
collection method, the laboratory shall log in the split specimen, with 
the split specimen bottle seal remaining intact. The laboratory shall 
store this sample securely (see paragraph (c) of this section). If the 
result of the test of the primary specimen is negative, the laboratory 
may discard the split specimen. If the result of the test of the primary 
specimen is positive, the laboratory shall retain the split specimen in 
frozen storage for 60 days from the date on which the laboratory 
acquires it (see

[[Page 560]]

paragraph (h) of this section). Following the end of the 60-day period, 
if not informed by the MRO that the employee has requested a test of the 
split specimen, the laboratory may discard the split specimen.
    (3) When directed in writing by the MRO to forward the split 
specimen to another DHHS-certified laboratory for analysis, the second 
laboratory shall analyze the split specimen by GC/MS to reconfirm the 
presence of the drug(s) or drug metabolite(s) found in the primary 
specimen. Such GC/MS confirmation shall be conducted without regard to 
the cutoff levels of Sec. 40.29(f). The split specimen shall be retained 
in long-term storage for one year by the laboratory conducting the 
analysis of the split specimen (or longer if litigation concerning the 
test is pending).
    (c) Short-term refrigerated storage. Specimens that do not receive 
an initial test within 7 days of arrival at the laboratory shall be 
placed in secure refrigeration units. Temperatures shall not exceed 
6 deg.C. Emergency power equipment shall be available in case of 
prolonged power failure.
    (d) Specimen processing. Laboratory facilities for urine drug 
testing will normally process specimens by grouping them into batches. 
The number of specimens in each batch may vary significantly depending 
on the size of the laboratory and its workload. When conducting either 
initial or confirmatory tests, every batch shall contain an appropriate 
number of standards for calibrating the instrumentation and a minimum of 
10 percent controls. Both quality control and blind performance test 
samples shall appear as ordinary samples to laboratory analysts.
    (e) Initial test. (1) The initial test shall use an immunoassay 
which meets the requirements of the Food and Drug Administration for 
commercial distribution. The following initial cutoff levels shall be 
used when screening specimens to determine whether they are negative for 
these five drugs or classes of drugs:

------------------------------------------------------------------------
                                                           Initial test
                                                           cutoff levels
                                                              (ng/ml)
------------------------------------------------------------------------
Marijuana metabolites...................................              50
Cocaine metabolites.....................................             300
Opiate metabolites......................................           * 300
Phencyclidine...........................................              25
Amphetamines............................................           1,000
------------------------------------------------------------------------
*-25 ng/ml if immunoassay specific for free morphine.


    (2) These cutoff levels are subject to change by the Department of 
Health and Human Services as advances in technology or other 
considerations warrant identification of these substances at other 
concentrations.
    (f) Confirmatory test. (1) All specimens identified as positive on 
the initial test shall be confirmed using gas chromatography/mass 
spectrometry (GC/MS) techniques at the cutoff levels listed in this 
paragraph for each drug. All confirmations shall be by quantitative 
analysis. Concentrations that exceed the linear region of the standard 
curve shall be documented in the laboratory record as ``greater than 
highest standard curve value.''

------------------------------------------------------------------------
                                                           Confirmatory
                                                            test cutoff
                                                          levels (ng/ml)
------------------------------------------------------------------------
Marijuana metabolite \1\................................              15
Cocaine metabolite \2\..................................             150
Opiates
  Morphine..............................................             300
  Codeine...............................................             300
Phencyclidine...........................................              25
Amphetamines:
  Amphetamine...........................................             500
  Methamphetamine \3\...................................            500
------------------------------------------------------------------------
\1\ Delta-9-tetrahydrocannabinol-9-carboxylic acid.
\2\ Benzoylecgonine.
\3\ Specimen must also contain amphetamine at a concentration greater
  than or equal to 200 ng/ml.


    (2) These cutoff levels are subject to change by the Department of 
Health and Human Services as advances in technology or other 
considerations warrant identification of these substances at other 
concentrations.
    (g) Reporting results. (1) The laboratory shall report test results 
to the employer's Medical Review Officer within an average of 5 working 
days after receipt of the specimen by the laboratory. Before any test 
result is reported (the results of initial tests, confirmatory tests, or 
quality control data), it shall be reviewed and the test certified as an 
accurate report by the responsible individual. The report shall identify 
the drugs/metabolites tested for, whether positive or negative, the 
specimen number assigned by the employer,

[[Page 561]]

and the drug testing laboratory specimen identification number 
(accession number).
    (2) The laboratory shall report as negative all specimens that are 
negative on the initial test or negative on the confirmatory test. Only 
specimens confirmed positive shall be reported positive for a specific 
drug.
    (3) The Medical Review Officer may request from the laboratory and 
the laboratory shall provide quantitation of test results. The MRO shall 
report whether the test is positive or negative, and may report the 
drug(s) for which there was a positive test, but shall not disclose the 
quantitation of test results to the employer. Provided, that the MRO may 
reveal the quantitation of a positive test result to the employer, the 
employee, or the decisionmaker in a lawsuit, grievance, or other 
proceeding initiated by or on behalf of the employee and arising from a 
verified positive drug test.
    (4) The laboratory may transmit results to the Medical Review 
Officer by various electronic means (for example, teleprinters, 
facsimile, or computer) in a manner designed to ensure confidentiality 
of the information. Results may not be provided verbally by telephone. 
The laboratory and employer must ensure the security of the data 
transmission and limit access to any data transmission, storage, and 
retrieval system.
    (5) The laboratory shall send only to the Medical Review Officer the 
original or a certified true copy of the drug testing custody and 
control form (part 2), which, in the case of a report positive for drug 
use, shall be signed (after the required certification block) by the 
individual responsible for day-to-day management of the drug testing 
laboratory or the individual responsible for attesting to the validity 
of the test reports, and attached to which shall be a copy of the test 
report.
    (6) The laboratory shall provide the employer an aggregate quarterly 
statistical summary of urinalysis testing of the employer's employees. 
Laboratories may provide the report to a consortium provided that the 
laboratory provides employer-specific data and the consortium forwards 
the employer-specific data to the respective employers within 14 days of 
receipt of the laboratory report. The laboratory shall provide the 
report to the employer or consortium not more than 14 calendar days 
after the end of the quarter covered by the summary. Laboratory 
confirmation data only shall be included from test results reported 
within that quarter. The summary shall contain only the following 
information:
    (i) Number of specimens received for testing;
    (ii) Number of specimens confirmed positive for--
    (A) Marijuana metabolite
    (B) Cocaine metabolite
    (C) Opiates;
    (D) Phencyclidine;
    (E) Amphetamines;
    (iii) Number of specimens for which a test was not performed.
    Quarterly reports shall not contain personal identifying information 
or other data from which it is reasonably likely that information about 
individuals' tests can be readily inferred. If necessary, in order to 
prevent disclosure of such data, the laboratory shall not send such a 
report until data are sufficiently aggregated to make such an inference 
unlikely. In any quarter in which a report is withheld for this reason, 
or because no testing was conducted, the laboratory shall so inform the 
consortium/employer in writing.
    (7) The laboratory shall make available copies of all analytical 
results for employer drug testing programs when requested by DOT or any 
DOT agency with regulatory authority over the employer.
    (8) Unless otherwise instructed by the employer in writing, all 
records pertaining to a given urine specimen shall be retained by the 
drug testing laboratory for a minimum of 2 years.
    (h) Long-term storage. Long-term frozen storage (-20 deg.C or less) 
ensures that positive urine specimens will be available for any 
necessary retest during administrative or disciplinary proceedings. Drug 
testing laboratories shall retain and place in properly secured long-
term frozen storage for a minimum of 1 year all specimens confirmed 
positive, in their original labeled specimen bottles. Within this 1-year 
period, an employer (or other person designated in a DOT agency 
regulation) may request

[[Page 562]]

the laboratory to retain the specimen for an additional period of time, 
but if no such request is received the laboratory may discard the 
specimen after the end of 1 year, except that the laboratory shall be 
required to maintain any specimens known to be under legal challenge for 
an indefinite period.
    (i) Retesting specimens. Because some analytes deteriorate or are 
lost during freezing and/or storage, quantitation for a retest is not 
subject to a specific cutoff requirement but must provide data 
sufficient to confirm the presence of the drug or metabolite.
    (j) Subcontracting. Drug testing laboratories shall not subcontract 
and shall perform all work with their own personnel and equipment. The 
laboratory must be capable of performing testing for the five classes of 
drugs (marijuana, cocaine, opiates, phencyclidine and amphetamines) 
using the initial immunoassay and confirmatory GC/MS methods specified 
in this part. This paragraph does not prohibit subcontracting of 
laboratory analysis if specimens are sent directly from the collection 
site to the subcontractor, the subcontractor is a laboratory certified 
by DHHS as required in this part, the subcontractor performs all 
analysis and provides storage required under this part, and the 
subcontractor is responsible to the employer for compliance with this 
part and applicable DOT agency regulations as if it were the prime 
contractor.
    (k) Laboratory facilities. (1) Laboratory facilities shall comply 
with applicable provisions of any State licensing requirements.
    (2) Laboratories certified in accordance with DHHS Guidelines shall 
have the capability, at the same laboratory premises, of performing 
initial and confirmatory tests for each drug or metabolite for which 
service is offered.
    (l) Inspections. The Secretary, a DOT agency, any employer utilizing 
the laboratory, DHHS or any organization performing laboratory 
certification on behalf of DHHS reserves the right to inspect the 
laboratory at any time. Employer contracts with laboratories for drug 
testing, as well as contracts for collection site services, shall permit 
the employer and the DOT agency of jurisdiction (directly or through an 
agent) to conduct unannounced inspections.
    (m) Documentation. The drug testing laboratories shall maintain and 
make available for at least 2 years documentation of all aspects of the 
testing process. This 2 year period may be extended upon written 
notification by a DOT agency or by any employer for which laboratory 
services are being provided. The required documentation shall include 
personnel files on all individuals authorized to have access to 
specimens; chain of custody documents; quality assurance/quality control 
records; procedure manuals; all test data (including calibration curves 
and any calculations used in determining test results); reports; 
performance records on performance testing; performance on certification 
inspections; and hard copies of computer-generated data. The laboratory 
shall maintain documents for any specimen known to be under legal 
challenge for an indefinite period.
    (n) Additional requirements for certified laboratories.--(1) 
Procedure manual. Each laboratory shall have a procedure manual which 
includes the principles of each test preparation of reagents, standards 
and controls, calibration procedures, derivation of results, linearity 
of methods, sensitivity of methods, cutoff values, mechanisms for 
reporting results, controls criteria for unacceptable specimens and 
results, remedial actions to be taken when the test systems are outside 
of acceptable limits, reagents and expiration dates, and references. 
Copies of all procedures and dates on which they are in effect shall be 
maintained as part of the manual.
    (2) Standards and controls. Laboratory standards shall be prepared 
with pure drug standards which are properly labeled as to content and 
concentration. The standards shall be labeled with the following dates: 
when received; when prepared or opened; when placed in service; and 
expiration date.
    (3) Instruments and equipment. (i) Volumetric pipettes and measuring 
devices shall be certified for accuracy or be checked by gravimetric, 
colorimetric, or other verification procedure. Automatic pipettes and 
dilutors shall

[[Page 563]]

be checked for accuracy and reproducibility before being placed in 
service and checked periodically thereafter.
    (ii) There shall be written procedures for instrument set-up and 
normal operation, a schedule for checking critical operating 
characteristics for all instruments, tolerance limits for acceptable 
function checks and instructions for major trouble shooting and repair. 
Records shall be available on preventive maintenance.
    (4) Remedial actions. There shall be written procedures for the 
actions to be taken when systems are out of acceptable limits or errors 
are detected. There shall be documentation that these procedures are 
followed and that all necessary corrective actions are taken. There 
shall also be in place systems to verify all stages of testing and 
reporting and documentation that these procedures are followed.
    (5) Personnel available to testify at proceedings. A laboratory 
shall have qualified personnel available to testify in an administrative 
or disciplinary proceeding against an employee when that proceeding is 
based on positive urinalysis results reported by the laboratory.
    (6) The laboratory shall not enter into any relationship with an 
employer's MRO that may be construed as a potential conflict of interest 
or derive any financial benefit by having an employer use a specific 
MRO.

[54 FR 49866, Dec. 1, 1989, as amended at 59 FR 7356, Feb. 15, 1994; 59 
FR 43001, Aug. 19, 1994]



Sec. 40.31  Quality assurance and quality control.

    (a) General. Drug testing laboratories shall have a quality 
assurance program which encompasses all aspects of the testing process 
including but not limited to specimen acquisition, chain of custody 
security and reporting of results, initial and confirmatory testing and 
validation of analytical procedures. Quality assurance procedures shall 
be designed, implemented and reviewed to monitor the conduct of each 
step of the process of testing for drugs.
    (b) Laboratory quality control requirements for initial tests. Each 
analytical run of specimens to be screened shall include:
    (1) Urine specimens certified to contain no drug;
    (2) Urine specimens fortified with known standards; and
    (3) Positive controls with the drug or metabolite at or near the 
cutoff level.
    In addition, with each batch of samples a sufficient number of 
standards shall be included to ensure and document the linearity of the 
assay method over time in the concentration area of the cutoff. After 
acceptable values are obtained for the known standards, those values 
will be used to calculate sample data. Implementation of procedures to 
ensure the carryover does not contaminate the testing of an individual's 
specimen shall be documented. A minimum of 10 percent of all test 
samples shall be quality control specimens. Laboratory quality control 
samples, prepared from spiked urine samples of determined concentration 
shall be included in the run and should appear as normal samples to 
laboratory analysts. One percent of each run, with a minimum of at least 
one sample, shall be the laboratory's own quality control samples.
    (c) Laboratory quality control requirements for confirmation tests. 
Each analytical run of specimens to be confirmed shall include:
    (1) Urine specimens certified to contain no drug;
    (2) Urine specimens fortified with known standards; and
    (3) Positive controls with the drug or metabolite at or near the 
cutoff level. The linearity and precision of the method shall be 
periodically documented. Implementation of procedures to ensure that 
carryover does not contaminate the testing of an individual's specimen 
shall also be documented.
    (d) Employer blind performance test procedures. (1) Each employer 
covered by DOT agency drug testing regulations shall use blind testing 
quality control procedures as provided in this paragraph.
    (2) Each employer shall submit three blind performance test 
specimens for each 100 employee specimens it submits, up to a maximum of 
100 blind performance test specimens submitted per quarter. A DOT agency 
may increase this per quarter maximum number of

[[Page 564]]

samples if doing so is necessary to ensure adequate quality control of 
employers or consortiums with very large numbers of employees.
    (3) For employers with 2000 or more covered employees, approximately 
80 percent of the blind performance test samples shall be blank (i.e., 
containing no drug or otherwise as approved by a DOT agency) and the 
remaining samples shall be positive for one or more drugs per sample in 
a distribution such that all the drugs to be tested are included in 
approximately equal frequencies of challenge. The positive samples shall 
be spiked only with those drugs for which the employer is testing. This 
paragraph shall not be construed to prohibit spiking of other 
(potentially interfering) compounds, as technically appropriate, in 
order to verify the specificity of a particular assay.
    (4) Employers with fewer than 2000 covered employees may submit 
blind performance test specimens as provided in paragraph (d)(3) of this 
section. Such employers may also submit only blank samples or may submit 
two separately labeled portions of a specimen from the same non-covered 
employee.
    (5) Consortiums shall be responsible for the submission of blind 
samples on behalf of their members. The blind sampling rate shall apply 
to the total number of samples submitted by the consortium.
    (6) The DOT agency concerned shall investigate, or shall refer to 
DHHS for investigation, any unsatisfactory performance testing result 
and, based on this investigation, the laboratory shall take action to 
correct the cause of the unsatisfactory performance test result. A 
record shall be made of the investigative findings and the corrective 
action taken by the laboratory, and that record shall be dated and 
signed by the individual responsible for the day-to-day management and 
operation of the drug testing laboratory. Then the DOT agency shall send 
the document to the employer as a report of the unsatisfactory 
performance testing incident. The DOT agency shall ensure notification 
of the finding to DHHS.
    (7) Should a false positive error occur on a blind performance test 
specimen and the error is determined to be an administrative error 
(clerical, sample mixup, etc.), the employer shall promptly notify the 
DOT agency concerned. The DOT agency and the employer shall require the 
laboratory to take corrective action to minimize the occurrence of the 
particular error in the future, and, if there is reason to believe the 
error could have been systemic, the DOT agency may also require review 
and reanalysis of previously run specimens.
    (8) Should a false positive error occur on a blind performance test 
specimen and the error is determined to be a technical or methodological 
error, the employer shall instruct the laboratory to submit all quality 
control data from the batch of specimens which included the false 
positive specimen to the DOT agency concerned. In addition, the 
laboratory shall retest all specimens analyzed positive for that drug or 
metabolite from the time of final resolution of the error back to the 
time of the last satisfactory performance test cycle. This retesting 
shall be documented by a statement signed by the individual responsible 
for day-to-day management of the laboratory's urine drug testing. The 
DOT agency concerned may require an on-site review of the laboratory 
which may be conducted unannounced during any hours of operation of the 
laboratory. Based on information provided by the DOT agency, DHHS has 
the option of revoking or suspending the laboratory's certification or 
recommending that no further action be taken if the case is one of less 
serious error in which corrective action has already been taken, thus 
reasonably assuring that the error will not occur again.



Sec. 40.33  Reporting and review of results.

    (a) Medical review officer shall review confirmed positive results. 
(1) An essential part of the drug testing program is the final review of 
confirmed positive results from the laboratory. A positive test result 
does not automatically identify an employee/applicant as having used 
drugs in violation of a DOT agency regulation. An individual with a 
detailed knowledge of possible alternate medical explanations is 
essential

[[Page 565]]

to the review of results. This review shall be performed by the Medical 
Review Officer (MRO) prior to the transmission of the results to 
employer administrative officials. The MRO review shall include review 
of the chain of custody to ensure that it is complete and sufficient on 
its face.
    (2) The duties of the MRO with respect to negative results are 
purely administrative.
    (b) Medical review officer--qualifications and responsibilities. (1) 
The MRO shall be a licensed physician with knowledge of substance abuse 
disorders and may be an employee of a transportation employer or a 
private physician retained for this purpose.
    (2) [Reserved]
    (3) The role of the MRO is to review and interpret confirmed 
positive test results obtained through the employer's testing program. 
In carrying out this responsibility, the MRO shall examine alternate 
medical explanations for any positive test result. This action may 
include conducting a medical interview and review of the individual's 
medical history, or review of any other relevant biomedical factors. The 
MRO shall review all medical records made available by the tested 
individual when a confirmed positive test could have resulted from 
legally prescribed medication. The MRO shall not, however, consider the 
results or urine samples that are not obtained or processed in 
accordance with this part.
    (c) Positive test result. (1) Prior to making a final decision to 
verify a positive test result for an individual, the MRO shall give the 
individual an opportunity to discuss the test result with him or her.
    (2) The MRO shall contact the individual directly, on a confidential 
basis, to determine whether the employee wishes to discuss the test 
result. A staff person under the MRO's supervision may make the initial 
contact, and a medically licensed or certified staff person may gather 
information from the employee. Except as provided in paragraph (c)(5) of 
this section, the MRO shall talk directly with the employee before 
verifying a test as positive.
    (3) If, after making all reasonable efforts and documenting them, 
the MRO is unable to reach the individual directly, the MRO shall 
contact a designated management official who shall direct the individual 
to contact the MRO as soon as possible. If it becomes necessary to reach 
the individual through the designated management official, the 
designated management official shall employ procedures that ensure, to 
the maximum extent practicable, the requirement that the employee 
contact the MRO is held in confidence.
    (4) If, after making all reasonable efforts, the designated 
management official is unable to contact the employee, the employer may 
place the employee on temporary medically unqualified status or medical 
leave.
    (5) The MRO may verify a test as positive without having 
communicated directly with the employee about the test in three 
circumstances:
    (i) The employee expressly declines the opportunity to discuss the 
test;
    (ii) Neither the MRO nor the designated employer representative, 
after making all reasonable efforts, has been able to contact the 
employee within 14 days of the date on which the MRO receives the 
confirmed positive test result from the laboratory;
    (iii) The designated employer representative has successfully made 
and documented a contact with the employee and instructed the employee 
to contact the MRO (see paragraphs (c)(3) and (c)(4) of this section), 
and more than five days have passed since the date the employee was 
successfully contacted by the designated employer representative.
    (6) If a test is verified positive under the circumstances specified 
in paragraph (c)(5) (ii) or (iii) of this section, the employee may 
present to the MRO information documenting that serious illness, injury, 
or other circumstances unavoidably prevented the employee from being 
contacted by the MRO or designated employer representative (paragraph 
(c)(5)(ii) of this section) or from contacting the MRO (paragraph 
(c)(5)(iii) of this section) within the times provided. The MRO, on the 
basis of such information, may reopen the verification, allowing the 
employee to present information concerning a legitimate explanation for 
the confirmed

[[Page 566]]

positive test. If the MRO concludes that there is a legitimate 
explanation, the MRO declares the test to be negative.
    (7) Following verification of a positive test result, the MRO shall, 
as provided in the employer's policy, refer the case to the employer's 
employee assistance or rehabilitation program, if applicable, to the 
management official empowered to recommend or take administrative action 
(or the official's designated agent), or both.
    (d) Verification for opiates; review for prescription medication. 
Before the MRO verifies a confirmed positive result for opiates, he or 
she shall determine that there is clinical evidence--in addition to the 
urine test--of unauthorized use of any opium, opiate, or opium 
derivative (e.g., morphine/codeine). (This requirement does not apply if 
the employer's GC/MS confirmation testing for opiates confirms the 
presence of 6-monoacetylmorphine.)
    (e) In a situation in which the employer has used the single sample 
method of collection, the MRO shall notify each employee who has a 
confirmed positive test that the employee has 72 hours in which to 
request a reanalysis of the original specimen, if the test is verified 
positive. If requested to do so by the employee within 72 hours of the 
employee's having been informed of a verified positive test, the Medical 
Review Officer shall direct, in writing, a reanalysis of the original 
sample. The MRO may also direct, in writing, such a reanalysis if the 
MRO questions the accuracy or validity of any test result. Only the MRO 
may authorize such a reanalysis, and such a reanalysis may take place 
only at laboratories certified by DHHS. If the reanalysis fails to 
reconfirm the presence of the drug or drug metabolite, the MRO shall 
cancel the test and report the cancellation and the reasons for it to 
the DOT, the employer and the employee.
    (f)(1) In situations in which the employer uses the split sample 
method of collection, the MRO shall notify each employee who has a 
confirmed positive test that the employee has 72 hours in which to 
request a test of the split specimen, if the test is verified as 
positive. If the employee requests an analysis of the split specimen 
within 72 hours of having been informed of a verified positive test, the 
MRO shall direct, in writing, the laboratory to provide the split 
specimen to another DHHS-certified laboratory for analysis. If the 
analysis of the split specimen fails to reconfirm the presence of the 
drug(s) or drug metabolite(s) found in the primary specimen, or if the 
split specimen is unavailable, inadequate for testing or untestable, the 
MRO shall cancel the test and report cancellation and the reasons for it 
to the DOT, the employer, and the employee.
    (2) If the analysis of the split specimen is reconfirmed by the 
second laboratory for the presence of the drug(s) or drug 
metabolites(s), the MRO shall notify the employer and employee of the 
results of the test.
    (g) If an employee has not contacted the MRO within 72 hours, as 
provided in paragraphs (e) and (f) of this section, the employee may 
present to the MRO information documenting that serious illness, injury, 
inability to contact the MRO, lack of actual notice of the verified 
positive test, or other circumstances unavoidably prevented the employee 
from timely contacting the MRO. If the MRO concludes that there is a 
legitimate explanation for the employee's failure to contact the MRO 
within 72 hours, the MRO shall direct that the reanalysis of the primary 
specimen or analysis of the split specimen, as applicable, be performed.
    (h) When the employer uses the split sample method of collection, 
the employee is not authorized to request a reanalysis of the primary 
specimen as provided in paragraph (e) of this section.
    (i) Disclosure of information. Except as provided in this paragraph, 
the MRO shall not disclose to any third party medical information 
provided by the individual to the MRO as a part of the testing 
verification process.
    (1) The MRO may disclose such information to the employer, a DOT 
agency or other Federal safety agency, or a physician responsible for 
determining the medical qualification of the employee under an 
applicable DOT agency regulation, as applicable, only if--
    (i) An applicable DOT regulation permits or requires such 
disclosure;

[[Page 567]]

    (ii) In the MRO's reasonable medical judgment, the information could 
result in the employee being determined to be medically unqualified 
under an applicable DOT agency rule; or
    (iii) In the MRO's reasonable medical judgment, in a situation in 
which there is no DOT agency rule establishing physical qualification 
standards applicable to the employee, the information indicates that 
continued performance by the employee of his or her safety-sensitive 
function could pose a significant safety risk.
    (2) Before obtaining medical information from the employee as part 
of the verification process, the MRO shall inform the employee that 
information may be disclosed to third parties as provided in this 
paragraph and the identity of any parties to whom information may be 
disclosed.

[54 FR 49866, Dec. 1, 1989, as amended at 59 FR 7356, Feb. 15, 1994; 61 
FR 37699, July 19, 1996]



Sec. 40.35  Protection of employee records.

    Employer contracts with laboratories shall require that the 
laboratory maintain employee test records in confidence, as provided in 
DOT agency regulations. The contracts shall provide that the laboratory 
shall disclose information related to a positive drug test of an 
individual to the individual, the employer, or the decisionmaker in a 
lawsuit, grievance, or other proceeding initiated by or on behalf of the 
individual and arising from a certified positive drug test.



Sec. 40.37  Individual access to test and laboratory certification results.

    Any employee who is the subject of a drug test conducted under this 
part shall, upon written request, have access to any records relating to 
his or her drug test and any records relating to the results of any 
relevant certification, review, or revocation-of-certification 
proceedings.



Sec. 40.39  Use of certified laboratories.

    (a) Except as provided in paragraph (b) of this section, employers 
subject to this part shall use only laboratories certified under the 
DHHS ``Mandatory Guidelines for Federal Workplace Drug Testing 
Programs,'' April 11, 1988, and subsequent amendments thereto.
    (b) Employers subject to this part may also use laboratories located 
outside the United States if--
    (1) The Department of Transportation, based on a written 
recommendation from DHHS, has certified the laboratory as meeting DHHS 
laboratory certification standards or deemed the laboratory fully 
equivalent to a laboratory meeting DHHS laboratory certification 
standards; or
    (2) The Department of Transportation, based on a written 
recommendation from DHHS, has recognized a foreign certifying 
organization as having equivalent laboratory certification standards and 
procedures to those of DHHS, and the foreign certifying organization has 
certified the laboratory, pursuant to those equivalent standards and 
procedures.

[61 FR 37016, July 16, 1996]



                       Subpart C--Alcohol Testing

    Source: 59 FR 7357, Feb. 15, 1994, unless otherwise noted.



Sec. 40.51  The breath alcohol technician.

    (a) The breath alcohol technician (BAT) shall be trained to 
proficiency in the operation of the EBT he or she is using and in the 
alcohol testing procedures of this part.
    (1) Proficiency shall be demonstrated by successful completion of a 
course of instruction which, at a minimum, provides training in the 
principles of EBT methodology, operation, and calibration checks; the 
fundamentals of breath analysis for alcohol content; and the procedures 
required in this part for obtaining a breath sample, and interpreting 
and recording EBT results.
    (2) Only courses of instruction for operation of EBTs that are 
equivalent to the Department of Transportation model course, as 
determined by the National Highway Traffic Safety Administration 
(NHTSA), may be used to train BATs to proficiency. On request, NHTSA 
will review a BAT instruction course for equivalency.
    (3) The course of instruction shall provide documentation that the 
BAT

[[Page 568]]

has demonstrated competence in the operation of the specific EBT(s) he/
she will use.
    (4) Any BAT who will perform an external calibration check of an EBT 
shall be trained to proficiency in conducting the check on the 
particular model of EBT, to include practical experience and 
demonstrated competence in preparing the breath alcohol simulator or 
alcohol standard, and in maintenance and calibration of the EBT.
    (5) The BAT shall receive additional training, as needed, to ensure 
proficiency, concerning new or additional devices or changes in 
technology that he or she will use.
    (6) The employer or its agent shall establish documentation of the 
training and proficiency test of each BAT it uses to test employees, and 
maintain the documentation as provided in Sec. 40.83.
    (b) A BAT-qualified supervisor of an employee may conduct the 
alcohol test for that employee only if another BAT is unavailable to 
perform the test in a timely manner. A supervisor shall not serve as a 
BAT for the employee in any circumstance prohibited by a DOT operating 
administration regulation.
    (c) Law enforcement officers who have been certified by state or 
local governments to conduct breath alcohol testing are deemed to be 
qualified as BATs. In order for a test conducted by such an officer to 
be accepted under Department of Transportation alcohol testing 
requirements, the officer must have been certified by a state or local 
government to use the EBT or non-evidential alcohol screening device 
that was used for the test.

[59 FR 7357, Feb. 15, 1994, as amended at 60 FR 19679, Apr. 20, 1995]



Sec. 40.53  Devices to be used for breath alcohol tests.

    (a) For screening tests, employers shall use only EBTs. When the 
employer uses for a screening test an EBT that does not meet the 
requirements of paragraphs (b) (1) through (3) of this section, the 
employer shall use a log book in conjunction with the EBT (see 
Sec. 40.59(c)).
    (b) For confirmation tests, employers shall use EBTs that meet the 
following requirements:
    (1) EBTs shall have the capability of providing, independently or by 
direct link to a separate printer, a printed result in triplicate (or 
three consecutive identical copies) of each breath test and of the 
operations specified in paragraphs (b) (2) and (3) of this section.
    (2) EBTs shall be capable of assigning a unique and sequential 
number to each completed test, with the number capable of being read by 
the BAT and the employee before each test and being printed out on each 
copy of the result.
    (3) EBTs shall be capable of printing out, on each copy of the 
result, the manufacturer's name for the device, the device's serial 
number, and the time of the test.
    (4) EBTs shall be able to distinguish alcohol from acetone at the 
0.02 alcohol concentration level.
    (5) EBTs shall be capable of the following operations:
    (i) Testing an air blank prior to each collection of breath; and
    (ii) Performing an external calibration check.



Sec. 40.55  Quality assurance plans for EBTs.

    (a) In order to be used in either screening or confirmation alcohol 
testing subject to this part, an EBT shall have a quality assurance plan 
(QAP) developed by the manufacturer.
    (1) The plan shall designate the method or methods to be used to 
perform external calibration checks of the device, using only 
calibration devices on the NHTSA ``Conforming Products List of 
Calibrating Units for Breath Alcohol Tests.''
    (2) The plan shall specify the minimum intervals for performing 
external calibration checks of the device. Intervals shall be specified 
for different frequencies of use, environmental conditions (e.g., 
temperature, altitude, humidity), and contexts of operation (e.g., 
stationary or mobile use).
    (3) The plan shall specify the tolerances on an external calibration 
check within which the EBT is regarded to be in proper calibration.
    (4) The plan shall specify inspection, maintenance, and calibration 
requirements and intervals for the device.

[[Page 569]]

    (5) For a plan to be regarded as valid, the manufacturer shall have 
submitted the plan to NHTSA for review and have received NHTSA approval 
of the plan.
    (b) The employer shall comply with the NHTSA-approved quality 
assurance plan for each EBT it uses for alcohol screening or 
confirmation testing subject to this part.
    (1) The employer shall ensure that external calibration checks of 
each EBT are performed as provided in the QAP.
    (2) The employer shall take an EBT out of service if any external 
calibration check results in a reading outside the tolerances for the 
EBT set forth in the QAP. The EBT shall not again be used for alcohol 
testing under this part until it has been serviced and has had an 
external calibration check resulting in a reading within the tolerances 
for the EBT.
    (3) The employer shall ensure that inspection, maintenance, and 
calibration of each EBT are performed by the manufacturer or a 
maintenance representative certified by the device's manufacturer or a 
state health agency or other appropriate state agency. The employer 
shall also ensure that each BAT or other individual who performs an 
external calibration check of an EBT used for alcohol testing subject to 
this part has demonstrated proficiency in conducting such a check of the 
model of EBT in question.
    (4) The employer shall maintain records of the external calibration 
checks of EBTs as provided in Sec. 40.83.
    (c) When the employer is not using the EBT at an alcohol testing 
site, the employer shall store the EBT in a secure space.



Sec. 40.57  Locations for breath alcohol testing.

    (a) Each employer shall conduct alcohol testing in a location that 
affords visual and aural privacy to the individual being tested, 
sufficient to prevent unauthorized persons from seeing or hearing test 
results. All necessary equipment, personnel, and materials for breath 
testing shall be provided at the location where testing is conducted.
    (b) An employer may use a mobile collection facility (e.g., a van 
equipped for alcohol testing) that meets the requirements of paragraph 
(a) of this section.
    (c) No unauthorized persons shall be permitted access to the testing 
location when the EBT remains unsecured or, in order to prevent such 
persons from seeing or hearing a testing result, at any time when 
testing is being conducted.
    (d) In unusual circumstances (e.g., when it is essential to conduct 
a test outdoors at the scene of an accident), a test may be conducted at 
a location that does not fully meet the requirements of paragraph (a) of 
this section. In such a case, the employer or BAT shall provide visual 
and aural privacy to the employee to the greatest extent practicable.
    (e) The BAT shall supervise only one employee's use of the EBT at a 
time. The BAT shall not leave the alcohol testing location while the 
testing procedure for a given employee (see Secs. 40.61 through 40.65) 
is in progress.



Sec. 40.59  The breath alcohol testing form.

    (a) Each employer shall use the breath alcohol testing form 
prescribed under this part. The form is found in appendix A to this 
subpart. Employers may not modify or revise this form, except that a 
form directly generated by an EBT may omit the space for affixing a 
separate printed result to the form.
    (b) The form shall provide triplicate (or three consecutive 
identical) copies. Copy 1 (white) shall be transmitted to the employer. 
Copy 2 (green) shall be provided to the employee. Copy 3 (blue) shall be 
retained by the BAT. Except for a form generated by an EBT, the form 
shall be 8\1/2\ by 11 inches in size.

[59 FR 7357, Feb. 15, 1994, as amended at 59 FR 43001, Aug. 19, 1994; 60 
FR 19679, Apr. 20, 1995]



Sec. 40.61  Preparation for breath alcohol testing.

    (a) When the employee enters the alcohol testing location, the BAT 
will require him or her to provide positive identification (e.g., 
through use of a photo I.D. card or identification by an employer 
representative). On request by the employee, the BAT shall provide 
positive identification to the employee.

[[Page 570]]

    (b) The BAT shall explain the testing procedure to the employee.



Sec. 40.63  Procedures for screening tests.

    (a) The BAT shall complete Step 1 on the Breath Alcohol Testing 
Form. The employee shall then complete Step 2 on the form, signing the 
certification. Refusal by the employee to sign this certification shall 
be regarded as a refusal to take the test.
    (b) An individually-sealed mouthpiece shall be opened in view of the 
employee and BAT and attached to the EBT in accordance with the 
manufacturer's instructions.
    (c) The BAT shall instruct the employee to blow forcefully into the 
mouthpiece for at least 6 seconds or until the EBT indicates that an 
adequate amount of breath has been obtained.
    (d)(1) If the EBT does not meet the requirements of Sec. 40.53(b) 
(1) through (3), the BAT shall ensure, before a screening test is 
administered to each employee, that he or she and the employee read the 
sequential test number displayed on the EBT. The BAT shall record the 
displayed result, test number, testing device, serial number of the 
testing device, and time in Step # of the form.
    (2) If the EBT does not meet the requirements of Sec. 40.53(b)(1) 
through (3), the BAT and the employee shall take the following steps:
    (i) Show the employee the result displayed on the EBT. The BAT shall 
record the displayed result, test number, testing device, serial number 
of the testing device, time and quantified result in Step 3 of the form.
    (ii) Record the test number, date of the test, name of the BAT, 
location, and quantified test result in the log book. The employee shall 
initial the log book entry.
    (3) If the EBT provides a printed result, but does not print the 
results directly onto the form, the BAT shall show the employee the 
result displayed on the EBT. The BAT shall then affix the test result 
printout to the breath alcohol test form in the designated space, using 
a method that will provide clear evidence of removal (e.g., tamper-
evident tape).
    (4) If the EBT prints the test results directly onto the form, the 
BAT shall show the employee the result displayed on the EBT.
    (e)(1) In any case in which the result of the screening test is a 
breath alcohol concentration of less than 0.02, the BAT shall date the 
form and sign the certification in Step 3 of the form. The employee 
shall sign the certification and fill in the date in Step 4 of the form.
    (2) No further testing is authorized. The BAT shall transmit the 
result of less than 0.02 to the employer in a confidential manner, and 
the employer shall receive and store the information so as to ensure 
that confidentiality is maintained as required by Sec. 40.81.
    (3) If the employee does not sign the certification in Step 4 of the 
form for a test, it shall not be considered a refusal to be tested. In 
this event, the BAT shall note the employee's failure to sign in the 
``Remarks'' section of the form.
    (4) If a test result printed by the EBT (see paragraph (d)(3) or 
(d)(4) of this section) does not match the displayed result, or if a 
sequential test number printed by the EBT does not match the sequential 
test number displayed by the EBT prior to the screening test (see 
paragraph (d)(1) of this section), the BAT shall note the disparity in 
the ``Remarks'' section. Both the employee and the BAT shall initial and 
sign the notation. In accordance with Sec. 40.79, the test is invalid 
and the employee shall be so advised.
    (f) If the result of the screening test is an alcohol concentration 
of 0.02 or greater, a confirmation test shall be performed as provided 
in Sec. 40.65.
    (g) If the confirmation test will be conducted by a different BAT, 
the BAT who conducts the screening test shall complete and sign the form 
and log book entry. The BAT will provide the employee with Copy 2 of the 
form.
    (h) If the confirmation test will be conducted at a different site 
from the screening test, the employer or its agent shall ensure that--
    (1) The employee is advised against taking any of the actions 
mentioned in the first sentence of Sec. 40.65(b) of this part;

[[Page 571]]

    (2) The employee is advised that he or she must not drive, perform 
safety-sensitive duties, or operate heavy equipment, as noted in Block 4 
of the alcohol testing form; and
    (3) The employee is under observation of a BAT, STT, or other 
employer personnel while in transit from the screening test site to the 
confirmation test site.

[59 FR 7357, Feb. 15, 1994, as amended at 59 FR 43001, Aug. 19, 1994; 60 
FR 19679, Apr. 20, 1995]



Sec. 40.65  Procedures for confirmation tests.

    (a) If a BAT other than the one who conducted the screening test is 
conducting the confirmation test, the new BAT shall follow the 
procedures of Sec. 40.61.
    (b) The BAT shall instruct the employee not to eat, drink, put any 
object or substance in his or her mouth, and, to the extent possible, 
not belch during a waiting period before the confirmation test. This 
time period begins with the completion of the screening test, and shall 
not be less than 15 minutes. The confirmation test shall be conducted 
within 30 minutes of the completion of the screening test. The BAT shall 
explain to the employee the reason for this requirement (i.e., to 
prevent any accumulation of mouth alcohol leading to an artificially 
high reading) and the fact that it is for the employee's benefit. The 
BAT shall also explain that the test will be conducted at the end of the 
waiting period, even if the employee has disregarded the instruction. If 
the BAT becomes aware that the employee has not complied with this 
instruction, the BAT shall so note in the ``Remarks'' section of the 
form. If the BAT conducts the confirmation test more than 30 minutes 
after the result of the screening test has been obtained, the BAT shall 
note in the ``Remarks'' section of the form the time that elapsed 
between the screening and confirmation tests and the reason why the 
confirmation test could not be conducted within 30 minutes of the 
screening test.
    (c)(1) If a BAT other than the one who conducted the screening test 
is conducting the confirmation test, the new BAT shall initiate a new 
Breath Alcohol Testing form. The BAT shall complete Step 1 on the form. 
The employee shall then complete Step 2 on the form, signing the 
certification. Refusal by the employee to sign this certification shall 
be regarded as a refusal to take the test. The BAT shall note in the 
``Remarks'' section of the form that a different BAT conducted the 
screening test.
    (2) In all cases, the procedures of Sec. 40.63 (a), (b), and (c) 
shall be followed. A new mouthpiece shall be used for the confirmation 
test.
    (d) Before the confirmation test is administered for each employee, 
the BAT shall ensure that the EBT registers 0.00 on an air blank. If the 
reading is greater than 0.00, the BAT shall conduct one more air blank. 
If the reading is greater than 0.00, testing shall not proceed using 
that instrument, which shall be taken out of service. However, testing 
may proceed on another instrument. Any EBT taken out of service because 
of failure to perform an air blank accurately shall not be used for 
testing until a check of external calibration is completed and the EBT 
is found to be within tolerance limits.
    (e) Before the confirmation test is administered for each employee, 
the BAT shall ensure that he or she and the employee read the sequential 
test number displayed by the EBT.
    (f) In the event that the screening and confirmation test results 
are not identical, the confirmation test result is deemed to be the 
final result upon which any action under operating administration rules 
shall be based.
    (g)(1) If the EBT provides a printed result, but does not print the 
results directly onto the form, the BAT shall show the employee the 
result displayed on the EBT. The BAT shall then affix the test result 
printout to the breath alcohol test form in the designated space, using 
a method that will provide clear evidence of removal (e.g., tamper-
evident tape).
    (2) If the EBT prints the test results directly onto the form, the 
BAT shall show the employee the result displayed on the EBT.
    (h)(1) Following the completion of the test, the BAT shall date the 
form and sign the certification in Step 3 of

[[Page 572]]

the form. The employee shall sign the certification and fill in the date 
in Step 4 of the form.
    (2) If the employee does not sign the certification in Step 4 of the 
form, it shall not be considered a refusal to be tested. In this event, 
the BAT shall note the employee's failure to sign in the ``Remarks'' 
section.
    (3) If a test result printed by the EBT (see paragraph (g)(1) or 
(g)(2) of this section) does not match the displayed result, or if a 
sequential test number printed by the EBT does not match the sequential 
test number displayed by the EBT prior to the confirmation test (see 
paragraph (e) of this section), the BAT shall note the disparity in the 
``Remarks'' section. Both the employee and the BAT shall initial and 
sign the notation. In accordance with Sec. 40.79, the test is invalid 
and the employee shall be so advised.
    (i) The BAT shall transmit all results to the employer in a 
confidential manner.
    (1) Each employer shall designate one or more employer 
representatives for the purpose of receiving and handling alcohol 
testing results in a confidential manner. All communications by BATs to 
the employer concerning the alcohol testing results of employees shall 
be to a designated employer representative.
    (2) Such transmission may be in writing (the employer copy (Copy 1) 
of the breath alcohol testing form), in person or by telephone or 
electronic means, but the BAT shall ensure immediate transmission to the 
employer of results that require the employer to prevent the employee 
from performing a safety-sensitive function.
    (3) If the initial transmission is not in writing (e.g., by 
telephone), the employer shall establish a mechanism to verify the 
identity of the BAT providing the information.
    (4) If the initial transmission is not in writing, the BAT shall 
follow the initial transmission by providing to the employer the 
employer's copy of the breath alcohol testing form. The employer shall 
store the information so as to ensure that confidentiality is maintained 
as required by Sec. 40.81.

[59 FR 7357, Feb. 15, 1994, as amended at 59 FR 43002, Aug. 19, 1994; 60 
FR 19679, Apr. 20, 1995]



Sec. 40.67  Refusals to test and uncompleted tests.

    (a) Refusal by an employee to complete and sign the breath alcohol 
testing form (Step 2), to provide breath, to provide an adequate amount 
of breath, or otherwise to cooperate with the testing process in a way 
that prevents the completion of the test, shall be noted by the BAT in 
the remarks section of the form. The testing process shall be terminated 
and the BAT shall immediately notify the employer.
    (b) If a screening or confirmation test cannot be completed, or if 
an event occurs that would invalidate the test, the BAT shall, if 
practicable, begin a new screening or confirmation test, as applicable, 
using a new breath alcohol testing form with a new sequential test 
number (in the case of a screening test conducted on an EBT that meets 
the requirements of Sec. 40.53(b) or in the case of a confirmation 
test).



Sec. 40.69  Inability to provide an adequate amount of breath.

    (a) This section sets forth procedures to be followed in any case in 
which an employee is unable, or alleges that he or she is unable, to 
provide an amount of breath sufficient to permit a valid breath test 
because of a medical condition.
    (b) The BAT shall again instruct the employee to attempt to provide 
an adequate amount of breath. If the employee refuses to make the 
attempt, the BAT shall immediately inform the employer.
    (c) If the employee attempts and fails to provide an adequate amount 
of breath, the BAT shall so note in the ``Remarks'' section of the 
breath alcohol testing form and immediately inform the employer.
    (d) If the employee attempts and fails to provide an adequate amount 
of breath, the employer shall proceed as follows:
    (1) [Reserved]
    (2) The employer shall direct the employee to obtain, as soon as 
practical after the attempted provision of breath, an evaluation from a 
licensed physician who is acceptable to the employer concerning the 
employee's medical ability to provide an adequate amount of breath.

[[Page 573]]

    (i) If the physician determines, in his or her reasonable medical 
judgment, that a medical condition has, or with a high degree of 
probability, could have, precluded the employee from providing an 
adequate amount of breath, the employee's failure to provide an adequate 
amount of breath shall not be deemed a refusal to take a test. The 
physician shall provide to the employer a written statement of the basis 
for his or her conclusion.
    (ii) If the licensed physician, in his or her reasonable medical 
judgment, is unable to make the determination set forth in paragraph 
(d)(2)(i) of this section the employee's failure to provide an adequate 
amount of breath shall be regarded as a refusal to take a test. The 
licensed physician shall provide a written statement of the basis for 
his or her conclusion to the employer.



Secs. 40.71-40.77  [Reserved]



Sec. 40.79  Invalid tests.

    (a) A breath alcohol test shall be invalid under the following 
circumstances:
    (1) The next external calibration check of an EBT produces a result 
that differs by more than the tolerance stated in the QAP from the known 
value of the test standard. In this event, every test result of 0.02 or 
above obtained on the device since the last valid external calibration 
check shall be invalid;
    (2) The BAT does not observe the minimum 15-minute waiting period 
prior to the confirmation test, as provided in Sec. 40.65(b);
    (3) The BAT does not perform an air blank of the EBT before a 
confirmation test, or an air blank does not result in a reading of 0.00 
prior to the administration of the test, as provided in Sec. 40.65;
    (4) The BAT does not sign the form as required by Secs. 40.63 and 
40.65;
    (5) The BAT has failed to note on the remarks section of the form 
that the employee has failed or refused to sign the form following the 
recording or printing on or attachment to the form of the test result;
    (6) An EBT fails to print a confirmation test result; or
    (7) On a confirmation test and, where applicable, on a screening 
test, the sequential test number or alcohol concentration displayed on 
the EBT is not the same as the sequential test number or alcohol 
concentration on the printed result.
    (b) [Reserved]

[59 FR 7357, Feb. 15, 1994, as amended at 59 FR 43002, Aug. 19, 1994]



Sec. 40.81  Availability and disclosure of alcohol testing information about individual employees.

    (a) Employers shall maintain records in a secure manner, so that 
disclosure of information to unauthorized persons does not occur.
    (b) Except as required by law or expressly authorized or required in 
this section, no employer shall release covered employee information 
that is contained in the records required to be maintained by this part 
or by DOT agency alcohol misuse rules.
    (c) An employee subject to testing is entitled, upon written 
request, to obtain copies of any records pertaining to the employee's 
use of alcohol, including any records pertaining to his or her alcohol 
tests. The employer shall promptly provide the records requested by the 
employee. Access to an employee's records shall not be contingent upon 
payment for records other than those specifically requested.
    (d) Each employer shall permit access to all facilities utilized in 
complying with the requirements of this part and DOT agency alcohol 
misuse rules to the Secretary of Transportation, any DOT agency with 
regulatory authority over the employer, or a state agency with 
regulatory authority over the employer (as authorized by DOT agency 
regulations).
    (e) When requested by the Secretary of Transportation, any DOT 
agency with regulatory authority over the employer, or a state agency 
with regulatory authority over the employer (as authorized by DOT agency 
regulations), each employer shall make available copies of all results 
for employer alcohol testing conducted under the requirements of this 
part and any other information pertaining to the employer's alcohol 
misuse prevention program. The information shall include name-specific 
alcohol test results, records and reports.

[[Page 574]]

    (f) When requested by the National Transportation Safety Board as 
part of an accident investigation, an employer shall disclose 
information related to the employer's administration of any post-
accident alcohol tests administered following the accident under 
investigation.
    (g) An employer shall make records available to a subsequent 
employer upon receipt of a written request from a covered employee. 
Disclosure by the subsequent employer is permitted only as expressly 
authorized by the terms of the employee's written request.
    (h) An employer may disclose information required to be maintained 
under this part pertaining to a covered employee to that employee or to 
the decisionmaker in a lawsuit, grievance, or other proceeding initiated 
by or on behalf of the individual, and arising from the results of an 
alcohol test administered under the requirements of this part, or from 
the employer's determination that the employee engaged in conduct 
prohibited by a DOT agency alcohol misuse regulation (including, but not 
limited to, a worker's compensation, unemployment compensation, or other 
proceeding relating to a benefit sought by the employee).
    (i) An employer shall release information regarding a covered 
employee's records as directed by the specific, written consent of the 
employee authorizing release of the information to an identified person. 
Release of such information is permitted only in accordance with the 
terms of the employee's consent.



Sec. 40.83  Maintenance and disclosure of records concerning EBTs and BATs.

    (a) Each employer or its agent shall maintain the following records 
for two years:
    (1) Records of the inspection and maintenance of each EBT used in 
employee testing;
    (2) Documentation of the employer's compliance with the QAP for each 
EBT it uses for alcohol testing under this part;
    (3) Records of the training and proficiency testing of each BAT used 
in employee testing;
    (4) The log books required by Sec. 40.59(c).
    (b) Each employer or its agent shall maintain for five years records 
pertaining to the calibration of each EBT used in alcohol testing under 
this part, including records of the results of external calibration 
checks.
    (c) Records required to be maintained by this section shall be 
disclosed on the same basis as provided in Sec. 40.81.



           Subpart D--Non-Evidential Alcohol Screening Devices

    Source: 60 FR 19679, Apr. 20, 1995, unless otherwise noted.



Sec. 40.91  Authorization for use of non-evidential alcohol screening devices.

    Non-evidential alcohol screening tests, performed using screening 
devices included by the National Highway Traffic Safety Administration 
on its conforming products list for non-evidential screening devices, 
may be used in lieu of EBTs to perform screening tests required by 
operating administrations' alcohol testing regulations. Non-evidential 
screening devices may not be used for confirmation alcohol tests, which 
must be conducted using EBTs as provided in subpart C of this part.



Sec. 40.93  The screening test technician.

    (a) Anyone meeting the requirements of this part to be a BAT may act 
as a screening test technician (STT), provided that the individual has 
demonstrated proficiency in the operation of the non-evidential 
screening device he or she is using.
    (b) Any other individual may act as an STT if he or she successfully 
completes a course of instruction concerning the procedures required by 
this part for conducting alcohol screening tests. Only the Department of 
Transportation model course, or a course of instruction determined by 
the Department of Transportation's Office of Drug Enforcement and 
Program Compliance to be equivalent to it, may be used for this purpose.
    (c) With respect to any non-evidential screening device involving 
changes, contrasts, or other readings that are indicated on the device 
in terms of color, STTs shall, in order to be regarded as proficient, be 
able to

[[Page 575]]

discern correctly these changes, contrasts or readings.
    (d) The STT shall receive additional training, as needed, to ensure 
proficiency, concerning new or additional devices or changes in 
technology that he or she will use.
    (e) The employer or its agent shall document the training and 
proficiency of each STT it uses to test employees and maintain the 
documentation as provided in Sec. 40.83.
    (f) The provisions of Sec. 40.51(b) and (c); Sec. 40.57; Sec. 40.59; 
Sec. 40.61; Sec. 40.63 (e)(1)-(2), (f), (g), and (h); Sec. 40.69; and 
Sec. 40.81; and other provisions, as applicable, of this part apply to 
STTs as well as to BATs.



Sec. 40.95  Quality assurance plans for non-evidential screening devices.

    (a) In order to be used for alcohol screening tests subject to this 
part, a non-evidential screening device shall have an approved quality 
assurance plan (QAP) developed by the manufacturer and approved by the 
National Highway Traffic Safety Administration (NHTSA).
    (1) The plan shall designate the method or methods to be used to 
perform quality control checks; the temperatures at which the non-
evidential screening device shall be stored and used, as well as other 
environmental conditions (e.g., altitude, humidity) that may affect the 
performance of the device; and, where relevant, the shelf life of the 
device.
    (2) The QAP shall prohibit the use of any device that does not pass 
the specified quality control checks or that has passed its expiration 
date.
    (b) The manufacturers' instructions on or included in the package 
for each saliva testing device shall include directions on the proper 
use of the device, the time frame within which the device must be read 
and the manner in which the reading is made.
    (c) The employer and its agents shall comply with the QAP and 
manufacturer's instructions for each non-evidential screening device it 
uses for alcohol screening tests subject to this Part.



Sec. 40.97  Locations for non-evidential alcohol screening tests.

    (a) Locations for non-evidential alcohol screening tests shall meet 
the same requirements set forth for breath alcohol testing in Sec. 40.57 
of this part.
    (b) The STT shall supervise only one employee's use of a non-
evidential screening device at a time. The STT shall not leave the 
alcohol testing location while the screening test procedure for a given 
employee is in progress.



Sec. 40.99  Testing forms.

    STTs conducting tests using a non-evidential screening device shall 
use the alcohol testing form as provided in Sec. 40.59 and appendix B of 
this part for the screening test.



Sec. 40.101  Screening test procedure.

    (a) The steps for preparation for testing shall be the same as 
provided for breath alcohol testing in Sec. 40.61 of this part.
    (b) The STT shall complete Step 1 on the form required by 
Sec. 40.99. The employee shall then complete Step 2 on the form, signing 
the certification. Refusal by the employee to sign this certification 
shall be regarded as a refusal to take the test.
    (c) If the employer is using a non-evidential breath testing device, 
the STT shall follow the same steps outlined for screening tests using 
EBTs in Sec. 40.63.
    (d) If the employer is using a saliva testing device, the STT shall 
take the following steps:
    (1) The STT shall explain the testing procedure to the employee.
    (2) The STT shall check the expiration date of the saliva testing 
device, show the date to the employee, and shall not use a device at any 
time subsequent to the expiration date.
    (3) The STT shall open an individually sealed package containing the 
device in the presence of the employee.
    (4) The STT shall offer the employee the opportunity to use the 
swab. If the employee chooses to use the swab, the STT shall instruct 
the employee to insert the absorbent end of the swab into the employee's 
mouth, moving it actively throughout the mouth for a sufficient time to 
ensure that it is completely saturated, as provided in the 
manufacturer's instructions for the device.
    (5) If the employee chooses not to use the swab, or in all cases in 
which a new test is necessary because the device did

[[Page 576]]

not activate (see paragraph (d)(8) of this section), the STT shall 
insert the absorbent end of the swab into the employee's mouth, moving 
it actively throughout the mouth for a sufficient time to ensure that it 
is completely saturated, as provided in the manufacturer's instructions 
for the device. The STT shall wear a surgical grade glove while doing 
so.
    (6) The STT shall place the device on a flat surface or otherwise in 
a position in which the swab can be firmly placed into the opening 
provided in the device for this purpose. The STT shall insert the swab 
into this opening and maintain firm pressure on the device until the 
device indicates that it is activated.
    (7) If the procedures of paragraph (d)(3)-(d)(5) of this section are 
not followed successfully (e.g., the swab breaks, the STT drops the swab 
on the floor or another surface, the swab is removed or falls from the 
device before the device is activated), the STT shall discard the device 
and swab and conduct a new test using a new device. The new device shall 
be one that has been under the control of the employer or STT prior to 
the test. The STT shall note in the remarks section of the form the 
reason for the new test. In this case, the STT shall offer the employee 
the choice of using the swab himself or herself or having the STT use 
the swab. If the procedures of paragraph (d)(3)-(d)(5) of this section 
are not followed successfully on the new test, the collection shall be 
terminated and an explanation provided in the remarks section of the 
form. A new test shall then be conducted, using an EBT for both the 
screening and confirmation tests.
    (8) If the procedures of paragraph (d)(3)-(d)(5) of this section are 
followed successfully, but the device is not activated, the STT shall 
discard the device and swab and conduct a new test, in the same manner 
as provided in paragraph (d)(7) of this section. In this case, the STT 
shall place the swab into the employee's mouth to collect saliva for the 
new test.
    (9) The STT shall read the result displayed on the device two 
minutes after inserting the swab into the device. The STT shall show the 
device and its reading to the employee and enter the result on the form.
    (10) Devices, swabs, gloves and other materials used in saliva 
testing shall not be reused, and shall be disposed of in a sanitary 
manner following their use, consistent with applicable requirements.
    (e) In the case of any screening test performed under this section, 
the STT, after determining the alcohol concentration result, shall 
follow the applicable provisions of Sec. 40.63 (e)(1)-(2), (f), (g), and 
(h). The STT shall also enter, in the ``Remarks'' section of the form, a 
notation that the screening test was performed using a non-evidential 
breath testing device or a saliva device, as applicable. Following 
completion of the screening test, the STT shall date the form and sign 
the certification in Step 3 of the form.



Sec. 40.103  Refusals to test and uncompleted tests.

    (a) Refusal by an employee to complete and sign the alcohol testing 
form required by Sec. 40.99 (Step 2), to provide a breath or saliva 
sample, to provide an adequate amount of breath, or otherwise to 
cooperate in a way that prevents the completion of the testing process, 
shall be noted by the STT in the remarks section of the form. This 
constitutes a refusal to test. The testing process shall be terminated 
and the STT shall immediately notify the employer.
    (b) If the screening test cannot be completed, for reasons other 
than a refusal by the employee, or if an event occurs that would 
invalidate the test, the STT shall, if practicable, immediately begin a 
new screening test, using a new testing form and, in the case of a test 
using a saliva screening device, a new device.



Sec. 40.105  Inability to provide an adequate amount of breath or saliva.

    (a) If an employee is unable to provide sufficient breath to 
complete a test on a non-evidential breath testing device, the 
procedures of Sec. 40.69 apply.
    (b) If an employee is unable to provide sufficient saliva to 
complete a test on a saliva screening device (e.g., the employee does 
not provide sufficient saliva to activate the device), the STT,

[[Page 577]]

as provided in Sec. 40.101 of this part, shall conduct a new test using 
a new device. If the employee refuses to complete the new test, the STT 
shall terminate testing and immediately inform the employer. This 
constitutes a refusal to test.
    (c) If the new test is completed, but there is an insufficient 
amount of saliva to activate the device, STT shall immediately inform 
the employer, which shall immediately cause an alcohol test to be 
administered to the employee using an EBT.



Sec. 40.107  Invalid tests.

    An alcohol test using a non-evidential screening device shall be 
invalid under the following circumstances:
    (a) With respect to a test conducted on a saliva device--
    (1) The result is read before two minutes or after 15 minutes from 
the time the swab is inserted into the device;
    (2) The device does not activate;
    (3) The device is used for a test after the expiration date printed 
on its package; or
    (4) The STT fails to note in the remarks section of the form that 
the screening test was conducted using a saliva device;
    (b) With respect to a test conducted on any non-evidential alcohol 
testing device, the STT has failed to note on the remarks section of the 
form that the employee has failed or refused to sign the form following 
the recording on the form of the test result.



Sec. 40.109  Availability and disclosure of alcohol testing information about individual employees.

    The provisions of Sec. 40.81 apply to records of non-evidential 
alcohol screening tests.

[[Page 578]]



Sec. 40.111  Maintenance and disclosure of records concerning non-evidential testing devices and STTs.

    Records concerning STTs and non-evidential testing devices shall be 
maintained and disclosed following the same requirements applicable to 
BATs and EBTs under Sec. 40.81 of this part.

[[Page 579]]

  Appendix A to Part 40--Federal Drug Testing Custody and Control Form
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[59 FR 43002, Aug. 19, 1994, as amended at 60 FR 19537, Apr. 19, 1995]

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         Appendix B to Part 40--The Breath Alcohol Testing Form
[GRAPHIC] [TIFF OMITTED] TC02FE91.207


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[GRAPHIC] [TIFF OMITTED] TC02FE91.212

[59 FR 43013, Aug. 19, 1994]

[[Page 595]]



PART 41--SEISMIC SAFETY--Table of Contents




Sec.
41.100  Purpose and applicability.
41.105  Definitions.
41.110  New DOT owned buildings and additions to buildings.
41.115  New buildings to be leased for DOT occupancy.
41.117  Buildings built with Federal assistance.
41.119  DOT regulated buildings.
41.120  Acceptable model codes.
41.125  Judicial review.

    Authority: 42 U.S.C. 7701 et seq.; 49 U.S.C. 322; E.O. 12699, 3 CFR, 
1990 Comp., p. 269.

    Source: 58 FR 32871, June 14, 1993, unless otherwise noted.



Sec. 41.100  Purpose and applicability.

    (a) This part implements the provisions of 49 U.S.C. 7701 et seq. 
and Executive Order (E.O.) 12699, ``Seismic Safety of Federal and 
Federally-Assisted or Regulated New Building Construction'' (3 CFR, 1990 
Comp., p. 269). Under the Executive Order the DOT is given the 
responsibility for developing and implementing its own mission-
appropriate and cost-effective regulations governing seismic safety.
    (b) This part applies to new DOT owned buildings and to new DOT 
leased, assisted and regulated buildings. The purpose of this part is to 
reduce risk to lives of the building occupants, improve the capabilities 
of essential buildings to function during or after an earthquake, and to 
reduce earthquake losses of public buildings and investments.
    (c) This part may be further implemented by the DOT Operating 
Administrations.



Sec. 41.105  Definitions.

    As used in this part--
    Operating Administration includes the Office of the Secretary.
    DOT means the U.S. Department of Transportation.



Sec. 41.110  New DOT owned buildings and additions to buildings.

    (a) DOT Operating Administrations responsible for the design and 
construction of new DOT Federally owned buildings will ensure that each 
building is designed and constructed in accord with the seismic design 
and construction standards set out in Sec. 41.120 of this part.
    (b) This section pertains to all building projects for which 
development of detailed plans and specifications was initiated after 
January 5, 1990. It applies to additions to existing buildings as well 
as to new buildings. It applies worldwide.
    (c) For DOT Federally owned buildings, a certification of compliance 
with the seismic design and construction requirements of this part is 
required prior to the acceptance of the building. Such statements of 
compliance may include the engineer's and architect's authenticated 
verifications of seismic design codes, standards, and practices used in 
the design and construction of the building, construction observation 
reports, local or state building department plan review documents, or 
other documents deemed appropriate by the DOT Operating Administration.



Sec. 41.115  New buildings to be leased for DOT occupancy.

    (a) DOT Operating Administrations responsible for the design and 
construction of new buildings to be leased for DOT occupancy or use will 
ensure that each building is designed and constructed in accord with the 
seismic design and construction standards set out in Sec. 41.120 of this 
part.
    (b) This section pertains to all new building projects for which the 
agreement covering development of detailed plans and specifications was 
executed after January 5, 1990.
    (c) For new Federally leased buildings, a certification of 
compliance with the seismic design and construction requirements of this 
part is required prior to the acceptance of the building. Such 
statements of compliance may include the engineer's and architect's 
authenticated verifications of seismic design codes, standards, and 
practices used in the design and construction of the building, 
construction observation reports, local or state building department 
plan review documents, or other documents deemed appropriate by the DOT 
Operating Administration.

[[Page 596]]



Sec. 41.117  Buildings built with Federal assistance.

    (a) Each DOT Operating Administration assisting in the financing, 
through Federal grants or loans, or guaranteeing the financing, through 
loan or mortgage insurance programs, of newly constructed buildings will 
ensure that any building constructed with such assistance is constructed 
in accord with seismic standards set out in Sec. 41.120 of this part.
    (b) This section applies to new buildings and additions to existing 
buildings financed in whole or in part through Federal grants or loans 
administered by DOT Operating Administrations, or through guaranteed 
financing through loan or mortgage insurance programs administered by 
DOT Operating Administrations.
    (c) Any building constructed with Federal financial assistance, 
after July 14, 1993 must be designed and constructed in accord with 
seismic standards approved by the DOT operating Administration under 
Sec. 41.120 of this part in order to be eligible for Federal financial 
assistance.
    (d) For buildings built with Federal financial assistance, a 
certification of compliance with the seismic design and construction 
requirements of this part is required prior to the furnishing of such 
assistance. Such statements of compliance may include the engineer's and 
architect's authenticated verifications of seismic design codes, 
standards, and practices used in the design and construction of the 
building, construction observation reports, local or state building 
department plan review documents, or other documents deemed appropriate 
by the DOT Operating Administration.



Sec. 41.119  DOT regulated buildings.

    (a) Each DOT Operating Administration with responsibility for 
regulating the structural safety of buildings and additions to existing 
buildings will ensure that each DOT regulated building is designed and 
constructed in accord with seismic design and construction standards as 
provided by this part.
    (b) This section pertains to all new building projects for which 
development of detailed plans and specifications begin after July 14, 
1993.
    (c) Any building for which a DOT Operating Administration 
responsible for regulating the structural safety must comply with the 
seismic design and construction standards in this part.
    (d) For DOT regulated buildings a certification of compliance with 
the seismic design and construction requirements of this part is 
required prior to the acceptance of the building. Such statements of 
compliance may include the engineer's and architect's authenticated 
verification of seismic design codes, standards, and practices used in 
the design and construction of the building, construction observation 
reports, local or state building department plan review documents, or 
other documents deemed appropriate by the DOT Operating Administration.



Sec. 41.120  Acceptable model codes.

    (a) This section describes the standards that must be used to meet 
the seismic design and construction requirements of this part.
    (b)(1) The following are model codes which have been found to 
provide a level of seismic safety substantially equivalent to that 
provided by use of the 1988 National Earthquake Hazards Reduction 
Program (NEHRP) Recommended Provisions (Copies are available from the 
Office of Earthquakes and Natural Hazards, Federal Emergency Management 
Agency, 500 C Street, SW., Washington, DC 20472.):
    (i) The 1991 International Conference of Building Officials (ICBO) 
Uniform Building Code, published by the International Conference of 
Building Officials, 5360 South Workman Mill Rd., Whittier, Cal. 90601;
    (ii) The 1992 Supplement to the Building Officials and Code 
Administrators International (BOCA) National Building Code, published by 
the Building Officials and Code Administrators, 4051 West Flossmoor Rd., 
Country Club Hills, Ill. 60478-5795; and
    (iii) The 1992 Amendments to the Southern Building Code Congress 
(SBCC) Standard Building Code, published by the Southern Building Code 
Congress International, 900 Montclair Rd., Birmingham, Ala. 35213-1206.
    (2) Versions of the NEHRP seismic maps have been adopted along with 
the NEHRP Recommended Provisions into

[[Page 597]]

the BOCA National and SBCC Standard building codes. The seismic zone map 
in the ICBO Uniform Building Code is also based on one of the USGS maps 
of horizontal ground acceleration. However, the ICBO map should be used 
only with the ICBO code. Also, it is not appropriate to use the NEHRP 
maps with the ICBO Uniform Building Code, because the design 
requirements of building codes are keyed to the numerical values of the 
map they reference.
    (c) Revisions to the model codes listed in paragraph (b) of this 
section that are substantially equivalent to or exceed the then current 
or immediately preceding edition of the NEHRP recommended provisions, as 
it is updated, may be approved by a DOT Operating Administration to meet 
the requirements in this part.
    (d) State, county, local, or other jurisdictional building 
ordinances adopting and enforcing the model codes, listed in paragraph 
(b) of this section, in their entirety, without significant revisions or 
changes in the direction of less seismic safety, meet the requirements 
in this part. For ordinances that do not adopt the model codes listed in 
paragraph (b) of this section, substantial equivalency of the ordinances 
to the seismic safety level contained in the NEHRP recommended 
provisions must be determined by the DOT Operating Administration before 
the ordinances may be used to meet the requirements of this part.
    (e) DOT Operating Administrations that, as of January 5, 1990, 
required seismic safety levels higher than those imposed by this part in 
new building construction programs will continue to maintain such levels 
in force.
    (f) Emergencies. Nothing in this part applies to assistance provided 
for emergency work or for assistance essential to save lives and protect 
property and public health and safety performed pursuant to sections 
402, 403, 502, and 503 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (Stafford Act), 42 U.S.C. 5170a, 5170b, 5192, 
and 5193, or for temporary housing assistance programs and individual 
and family grants performed pursuant to Sections 408 and 411 of the 
Stafford Act, 42 U.S.C. 5174 and 5178. However, this part applies to 
other provisions of the Stafford Act after a Presidentially declared 
major disaster or emergency when assistance actions involve new 
construction or total replacement of a building.



Sec. 41.125  Judicial review.

    Nothing in this part is intended to create any right or benefit, 
substantive or procedural, enforceable at law by a party against the 
DOT, its Operating Administrations, its officers, or any person.



PART 71--STANDARD TIME ZONE BOUNDARIES--Table of Contents




Sec.
71.1  Limits defined; exceptions authorized for certain rail operating 
          purposes only.
71.2  Annual advancement of standard time.
71.3  Atlantic zone.
71.4  Eastern zone.
71.5  Boundary line between eastern and central zones.
71.6  Central zone.
71.7  Boundary line between central and mountain zones.
71.8  Mountain zone.
71.9  Boundary line between mountain and Pacific zones.
71.10  Pacific zone.
71.11  Alaska zone.
71.12  Hawaii-Aleutian zone.
71.13  Samoa zone.

    Authority: Secs. 1-4, 40 Stat. 450, as amended; sec. 1, 41 Stat. 
1446, as amended; secs. 2-7, 80 Stat. 107, as amended; 100 Stat. 764; 
Act of Mar. 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-267; Pub. L. 99-359; 49 CFR 1.59(a), 
unless otherwise noted.

    Source: Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, unless otherwise 
noted.



Sec. 71.1  Limits defined; exceptions authorized for certain rail operating purposes only.

    (a) This part prescribes the geographic limits of each of the eight 
standard time zones established by section 1 of the Standard Time Act, 
as amended by section 4 of the Uniform Time Act of 1966 (15 U.S.C. 261). 
It also contains lists of operating exceptions granted for specified 
rail carriers, whose operations cross the time zone boundaries 
prescribed by this part, authorizing them to carry the standard of time 
on which the major portion of a

[[Page 598]]

particular operation is conducted into an adjoining time zone.
    (b) Any rail carrier whose operations cross a time zone boundary 
prescribed by this part may apply for an operating exception to the 
General Counsel, Department of Transportation, Washington, DC 20590. 
However, each rail carrier for which an operating exception is granted 
shall, in its advertisements, time cards, station bulletin boards, and 
other publications, show arrival and departure times in terms of the 
standard time for the place concerned.
    (c) The time zones established by the Standard Time Zone Act, as 
amended by the Uniform Time Act of 1966, are Atlantic, eastern, central, 
mountain, Pacific, Alaska, Hawaii-Aleutian, and Samoa.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-21, 52 
FR 41631, Nov. 18, 1986]



Sec. 71.2  Annual advancement of standard time.

    (a) The Uniform Time Act of 1966 (15 U.S.C. 260a(a)), as amended, 
requires that the standard time of each State observing Daylight Saving 
Time shall be advanced 1 hour beginning at 2:00 a.m. on the first Sunday 
in April of each year and ending on the last Sunday in October. This 
advanced time shall be the standard time of each zone during such 
period. The Act authorizes any State to exempt itself from this 
requirement. States in two or more time zones may exempt the easternmost 
time zone portion from this requirement.
    (b) Section 3(b) of the Uniform Time Act of 1966 (15 U.S.C. 260a(b)) 
provides that ``it is the express intent of Congress * * * to supersede 
any and all laws of the States or political subdivisions thereof insofar 
as they may now or hereafter provide for advances in time or changeover 
dates different from those specified in [section 3(a) of that Act]'', 
which are those specified in paragraph (a) of this section.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-21, 52 
FR 41631, Nov. 18, 1986]



Sec. 71.3  Atlantic zone.

    The first zone, the Atlantic standard time zone, includes that part 
of the United States that is between 52 deg.30" W. longitude and 
67 deg.30" W. longitude and that part of the Commonwealth of Puerto Rico 
that is west of 67 deg.30" W. longitude, but does not include any part 
of the State of Maine.



Sec. 71.4  Eastern zone.

    The second zone, the eastern standard time zone, includes that part 
of the United States that is west of 67 deg.30" W. longitude and east of 
the boundary line described in Sec. 71.5, and includes all of the State 
of Maine, but does not include any part of the Commonwealth of Puerto 
Rico.



Sec. 71.5  Boundary line between eastern and central zones.

    (a) Minnesota-Michigan-Wisconsin. From the junction of the western 
boundary of the State of Michigan with the boundary between the United 
States and Canada northerly and easterly along the west line of Gogebic 
County to the west line of Ontonagon County; thence south along the west 
line of Ontonagon County to the north line of Gogebic County; thence 
southerly and easterly along the north line of Gogebic County to the 
west line of Iron County; thence north along the west line of Iron 
County to the north line of Iron County; thence east along the north 
line of Iron County to the east line of Iron County; thence south along 
the east line of Iron County to the north line of Dickinson County; 
thence east along the north line of Dickinson County to the east line of 
Dickinson County; thence south along the east line of Dickinson County 
to the north line of Menominee County; thence east along the north line 
of Menominee County to the east line of Menominee County; thence 
southerly and easterly along the east line of Menominee County to Lake 
Michigan; thence east to the western boundary of the State of Michigan; 
thence southerly and easterly along the western boundary of the State of 
Michigan to a point in the middle of Lake Michigan opposite the main 
channel of Green Bay; thence southerly along the western boundary of the 
State of Michigan to its junction with the southern boundary thereof and 
the northern boundary of the State of Indiana.

[[Page 599]]

    (b) Indiana-Illinois. From the junction of the western boundary of 
the State of Michigan with the northern boundary of the State of Indiana 
easterly along the northern boundary of the State of Indiana to the east 
line of LaPorte County; thence southerly along the east line of LaPorte 
County to the north line of Starke County; thence west along the north 
line of Starke County to the west line of Starke County; thence South 
along the west line of Starke County to the south line of Starke County; 
thence west along the south line of Starke County to the east line of 
Jasper County; thence south along the east line of Jasper County to the 
south line of Jasper County; thence west along the south lines of Jasper 
and Newton Counties to the western boundary of the State of Indiana; 
thence south along the western boundary of the State of Indiana to the 
north line of Gibson County; thence easterly and southerly along the 
north line of Gibson County to the east line of Gibson County; thence 
south along the east line of Gibson County to the north line of Warrick 
County; thence easterly and southerly along the north lines of Warrick 
and Spencer Counties to the east line of Spencer County; thence 
southerly along the east line of Spencer County to the Indiana-Kentucky 
boundary.
    (c) Kentucky. From the junction of the east line of Spencer County, 
Ind., with the Indiana-Kentucky boundary easterly along that boundary to 
the west line of Meade County, Ky.; thence southeasterly and 
southwesterly along the west lines of Meade and Hardin Counties to the 
southwest corner of Hardin County; thence along the south lines of 
Hardin and Larue Counties to the northwest corner of Taylor County; 
thence southeasterly along the west (southwest) line of Taylor County 
and northeasterly along the east (southeast) line of Taylor County to 
the west line of Casey County; and thence southerly along the west and 
south lines of Casey, Pulaski, and McCreary Counties to the Kentucky-
Tennessee boundary.
    (d) Tennessee. From the junction of the west line of McCreary 
County, Ky., with the Kentucky-Tennessee boundary westerly along that 
boundary to the west line of Scott County, Tenn.; thence southerly along 
the west line of Scott County, the north and west lines of Morgan 
County, and the north line of Roane County to the north line of Rhea 
County; thence northwesterly along the north line of Rhea County; and 
thence southwesterly along the west lines of Rhea and Hamilton Counties 
to the Tennessee-Georgia boundary.
    (e) Georgia-Alabama. From the junction of the west line of Hamilton 
County, Tenn., with the Tennessee-Georgia boundary westerly along that 
boundary to its junction with the Alabama-Georgia boundary; thence 
southerly along that boundary and the Florida-Georgia boundary to the 
southwest corner of the State of Georgia.
    (f) Florida. From the southwest corner of the State of Georgia to 
the midpoint of the Apalachicola River on the downstream side of Jim 
Woodruff Dam; thence southerly along the middle of the main channel of 
the Apalachicola River to its intersection with the Jackson River; 
thence westerly along the center of the Jackson River to its 
intersection with the Intracoastal Waterway; thence westerly along the 
center of the Intracoastal Waterway to the west line of Gulf County; 
thence southerly along the west line of Gulf County to the Gulf of 
Mexico.
    (g) [Reserved]
    (h) Municipalities on boundary line. All municipalities located upon 
the zone boundary line described in this section are in the central 
standard time zone.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-12, 37 
FR 11972, June 16, 1972; Amdt. 71-13, 38 FR 9229, Apr. 12, 1973; Amdt. 
71-14, 38 FR 13725, May 25, 1973; Amdt. 77-13, 42 FR 56610, Oct. 27, 
1977; Amdt. 91-17, 56 FR 52003, Oct. 17, 1991]



Sec. 71.6  Central zone.

    The third zone, the central standard time zone, includes that part 
of the United States that is west of the boundary line between the 
eastern and central standard time zones described in Sec. 71.5 and east 
of the boundary line between the central and mountain standard time 
zones described in Sec. 71.7.

[[Page 600]]



Sec. 71.7  Boundary line between central and mountain zones.

    (a) Montana-North Dakota. Beginning at the junction of the Montana-
North Dakota boundary with the boundary of the United States and Canada 
southerly along the Montana-North Dakota boundary to the Missouri River; 
thence southerly and easterly along the middle of that river to the 
midpoint of the confluence of the Missouri and Yellowstone Rivers; 
thence southerly and easterly along the middle of the Yellowstone River 
to the north boundary of T. 150 N., R. 104 W.; thence east to the 
northwest corner of T. 150 N., R. 102 W.; thence south to the southwest 
corner of T. 149 N., R. 102 W.; thence east to the northwest corner of 
T. 148 N., R. 102 W.; thence south to the northwest corner of 147 N., R. 
102 W.; thence east to the southwest corner of T. 148 N., R. 101 W., 
thence south to the middle of the Little Missouri; thence easterly and 
northerly along the middle of that river to the midpoint of its 
confluence with the Missouri River; thence southerly and easterly along 
the middle of the Missouri River to the midpoint of its confluence with 
the northern land boundary of Oliver County; thence west along the 
northern county line to the northwest boundary; thence south along the 
western county line to the southwest boundary; thence east along the 
southern county line to the northwest corner of T. 140 N., R. 83 W.; 
thence south to the southwest corner of T. 140 N., R. 82 W.; thence east 
to the southeast corner of T. 140 N., R. 83 W.; thence south to the 
middle of the Heart River; thence easterly and northerly along the 
middle of that river to the southern boundary of T. 139 N., R. 82 W.; 
thence east to the middle of the Heart River; thence southerly and 
easterly along the middle of that river to the midpoint of the 
confluence of the Heart and Missouri Rivers; thence southerly and 
easterly along the middle of the Missouri River to the northern boundary 
of T. 130 N., R. 80 W.; thence west to the northwest corner of T. 130 
N., R. 80 W.; thence south to the North Dakota-South Dakota boundary; 
thence easterly along that boundary to the middle of the Missouri River.
    (b) South Dakota. From the junction of the North Dakota-South Dakota 
boundary with the Missouri River southerly along the main channel of 
that river to the crossing of the Chicago & North Western Railway near 
Pierre; thence southwesterly to the northeast corner of T. 1 S., R. 28 
E. in Jones County; thence south along the range line between Rs. 28 and 
29 E. to the north line of Mellette County; thence east along the north 
line of Mellette County to the west line of Tripp County; thence south 
along the west line of Tripp County to the South Dakota-Nebraska 
boundary.
    (c) Nebraska. From the junction of the west line of Tripp County, 
South Dakota with the South Dakota-Nebraska boundary west along that 
boundary to the west line of R. 30 W.; thence south along the range line 
between Rs. 30 and 31 W. to the southwest corner of sec. 19, T. 33 N., 
R. 30 W.; thence easterly along section lines to the northeast corner of 
sec. 29, T. 33 N., R. 30 W.; thence southerly along section lines with 
their offsets to the northeast corner of sec. 17, T. 32 N., R. 30 W.; 
thence westerly along section lines to the northwest corner of sec. 18, 
T. 32 N., R. 30 W.; thence southerly along the range line to the 
southwest corner of T. 31 N., R. 30 W.; thence easterly along the 
township line to the northeast corner of T. 30 N., R. 30 W.; thence 
southerly along the range line to the southwest corner of T. 29 N., R. 
29 W.; thence westerly along the township line to the northwest corner 
of sec. 4, T. 28 N., R. 30 W.; thence southerly along section lines to 
the southwest corner of sec. 33, T. 28 N., R. 30 W.; thence easterly 
along the township line to the northeast corner of sec. 4, T. 27 N., R. 
30 W.; thence southerly along section lines to the southwest corner of 
sec. 22, T. 26 N., R. 30 W.; thence easterly along section lines to the 
southeast corner of sec. 24, T. 26 N., R. 30 W.; thence southerly along 
the range line to the north line of Thomas County; thence westerly along 
the north line of Thomas County to the west line of Thomas County; 
thence south along the west line of Thomas County to the north line of 
McPherson County; thence west along the north line of McPherson County 
to the west line of McPherson County; thence south along the west line 
of McPherson County to

[[Page 601]]

the north line of Keith County; thence east along the north line of 
Keith County to the west line of Lincoln County; thence south along the 
west line of Lincoln County to the north line of Hayes County; thence 
west along the north lines of Hayes County to the west line of Hayes 
County; thence south along the west line of Hayes and Hitchcock Counties 
to the Nebraska-Kansas boundary.
    (d) Kansas-Colorado. From the junction of the west line of Hitchcock 
County, Nebraska, with the Nebraska-Kansas boundary westerly along that 
boundary to the northwest corner of the State of Kansas; thence 
southerly along Kansas-Colorado boundary to the north line of Sherman 
County, Kansas; thence easterly along the north line of Sherman County 
to the east line of Sherman County; thence southerly along the east line 
of Sherman County to the north line of Logan County; thence westerly 
along the north line of Logan County to the east line of Wallace County; 
thence southerly along the east line of Wallace County to the north line 
Wichita County; thence westerly along the north line of Wichita County; 
thence westerly along the north line of Wichita County to the east line 
of Greeley County; thence southerly along the east lines of Greeley 
County and Hamilton Counties; thence westerly along the south line of 
Hamilton County to the Kansas-Colorado boundary; thence southerly along 
the Kansas Colorado boundary to the junction of that boundary with the 
north boundary of the State of Oklahoma.
    (e) Oklahoma-Texas-New Mexico. From the junction of the Kansas-
Colorado boundary with the northern boundary of the State of Oklahoma 
westerly along the Colorado-Oklahoma boundary to the northwest corner of 
the State of Oklahoma; thence southerly along the west boundary of the 
State of Oklahoma and the west boundary of the State of Texas to the 
southeast corner of the State of New Mexico; thence westerly along the 
Texas-New Mexico boundary to the east line of Hudspeth County, Tex.; 
thence southerly along the east line of Hudspeth County, Tex., to the 
boundary between the United States and Mexico.
    (f) [Reserved]
    (g) Points on boundary line. All municipalities located upon the 
zone boundary line described in this section are in the mountain 
standard time zone, except Murdo, S. Dak., which is in the central 
standard time zone.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-14, 38 
FR 13725, May 25, 1973; Amdt. 71-16, 43 FR 42763, Sept. 21, 1978; 55 FR 
30914, July 30, 1990; 57 FR 48339, Oct. 23, 1992]



Sec. 71.8  Mountain zone.

    The fourth zone, the mountain standard time zone, includes that part 
of the United States that is west of the boundary line between the 
central and mountain standard time zones described in Sec. 71.7 and east 
of the boundary line between the mountain and Pacific standard time 
zones described in Sec. 71.9.



Sec. 71.9  Boundary line between mountain and Pacific zones.

    (a) Montana-Idaho-Oregon. From the junction of the Idaho-Montana 
boundary with the boundary between the United States and Canada 
southerly along the Idaho-Montana boundary to the boundary line between 
Idaho County, Idaho, and Lemhi County, Idaho; thence southwesterly along 
the boundary line between those two counties to the main channel of the 
Salmon River; thence westerly along the main channel of the Salmon River 
to the Idaho-Oregon boundary; thence southerly along that boundary to 
the boundary line between Baker County, Oreg., and Malheur County, 
Oreg.; thence westerly along the north line of Malheur County to the 
northwest corner of Malheur County; thence southerly along the west line 
of Malheur County to the southwest corner of T. 35 S., R. 37 E.; thence 
east to the Idaho-Oregon boundary; thence south along that boundary to 
the southwest corner of the State of Idaho; thence easterly along the 
Idaho-Nevada boundary to the northeast corner of the State of Nevada.
    (b) Utah-Nevada-Arizona-California. From the northeast corner of the 
State of Nevada southerly along the Utah-Nevada boundary, the Nevada-
Arizona boundary, and the Arizona-California

[[Page 602]]

boundary to the boundary between the United States and Mexico.
    (c) [Reserved]
    (d) Points on boundary line. All municipalities located upon the 
zone boundary line described in this section are in the mountain 
standard time zone.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-14, 38 
FR 13725, May 25, 1973]



Sec. 71.10  Pacific zone.

    The fifth zone, the Pacific standard time zone, includes that part 
of the continental United States that is west of the boundary line 
between the mountain and Pacific standard time zones described in 
Sec. 71.9, but does not include any part of the State of Alaska.


(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983]



Sec. 71.11  Alaska zone.

    The sixth zone, the Alaska standard time zone, includes the entire 
State of Alaska, except as provided in Sec. 71.12 of this title.


(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983, as amended by Amdt. 71-20, 48 
FR 55289, Dec. 12, 1983]



Sec. 71.12  Hawaii-Aleutian zone.

    The seventh zone, the Hawaii-Aleutian standard time zone, includes 
the entire State of Hawaii and, in the State of Alaska, that part of the 
Aleutian Islands that is west of 169 degrees 30 minutes west longitude.


(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983, as amended by Amdt. 71-20, 48 
FR 55289, Dec. 12, 1983]



Sec. 71.13  Samoa zone.

    The eighth zone, the Samoa standard time zone, includes that part of 
the United States that is between 169 degrees 30 minutes west longitude 
and 172 degrees 30 minutes west longitude, but does not include any part 
of the States of Hawaii and Alaska.


(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983, as amended by Amdt. 71-20, 48 
FR 55289, Dec. 12, 1983]



PART 79--MEDALS OF HONOR--Table of Contents




Sec.
79.1  Scope.
79.3  Application.
79.5  Investigation.
79.7  Award.
79.9  Design.

    Authority: 49 U.S.C. 80504.

    Source: 61 FR 17578, Apr. 22, 1996, unless otherwise noted.



Sec. 79.1  Scope.

    (a) This part implements 49 U.S.C. 80504, which authorizes the 
President of the United States to award a bronze medal for bravery to 
any person who, by extreme daring, risks his/her life in trying to 
prevent, or to save the life of a person in, a grave accident/incident 
in the United States that involves an interstate rail carrier or a motor 
vehicle being operated on public highways.
    (b) The actions for which the medal may be awarded must reflect such 
unusual daring and bravery that a person would not normally be expected 
to perform them as a regular part of his/her regular work or vocation.



Sec. 79.3  Application.

    (a) Any person may apply for the award of the medal described in 
Sec. 79.1, but only on behalf of another person, by writing to the 
Secretary of Transportation, Attention: Medals of Honor, within two (2) 
years of the action that is the subject of the application.
    (b) Although no application form is required, the following 
information must be provided:
    (1) Name, address, and telephone number of the person submitting the 
application.
    (2) Name, address, and telephone number of the person on whose 
behalf the application is submitted.

[[Page 603]]

    (3) Date, time, place, and weather conditions of the action that is 
the subject of the application.
    (4) Identification of rail or motor carrier involved, or of operator 
of motor vehicles involved.
    (5) Identification of any public or private authority that 
investigated the accident/incident involved.
    (6) Name, address, and telephone number of any witness to the action 
that is the subject of the application.
    (7) Detailed description of the action that is the subject of the 
application, including why the person submitting the application thinks 
that the action merits the extraordinary recognition embodied in the 
Medal of Honor.
    (c) An application and any documentary or other evidence supporting 
it must be supported by oath or affirmation, or by the signer's 
acknowledgment that a knowingly false statement is punishable as 
perjury.



Sec. 79.5  Investigation.

    The Department of Transportation may make any investigation of an 
application that it deems appropriate, including the taking of testimony 
under oath or affirmation.



Sec. 79.7  Award.

    If the Secretary of Transportation decides that it is warranted, the 
Secretary shall award the Medal on behalf of and in the name of the 
President of the United States.



Sec. 79.9  Design.

    The Department is authorized to adopt and revise the existing 
designs for the award, rosette, and ribbon provided for by statute.



PART 89--IMPLEMENTATION OF THE FEDERAL CLAIMS COLLECTION ACT--Table of Contents




                           Subpart A--General

Sec.
89.1  Purpose.
89.3  Applicability.
89.5  Delegations of authority.
89.7  Exceptions to delegated authority.
89.9  Redelegation.
89.11  Standards for exercise of delegated authority.
89.13  Documentary evidence of compromise.
89.15  Regulations, reports, and supporting documentation.

                 Subpart B--Collection of Claims Section

89.21  Administrative collection.
89.23  Interest, late payment penalties, and collection charges.
89.25  Collection by administrative offset.
89.27  Referral for litigation.
89.29  Disclosure to commercial credit bureaus and consumer reporting 
          agencies.
89.31  Use of professional debt collection agencies.
89.33  [Reserved]

        Subpart C--Referral of Debts to IRS for Tax Refund Offset

89.37  Applicability and scope.
89.39  Administrative charges.
89.41  Notice requirement before offset.
89.43  Review within the Department.
89.45  Department determination.
89.47  Stay of offset.

    Authority: Pub. L. 89-508; Pub. L. 89-365, secs. 3, 10, 11, 13(b), 
31 U.S.C. 3701-3720A; Pub. L. 98-167; Pub. L. 98-369; Pub. L. 99-578; 
Pub. L. 101-552, 31 U.S.C. 3711(a)(2).

    Source: 53 FR 51238, Dec. 21, 1988, unless otherwise noted.



                           Subpart A--General



Sec. 89.1  Purpose.

    This part implements the Federal Claims Collection Act of 1966, 31 
U.S.C. 3701-3720 A, as amended primarily by the Debt Collection Act of 
1982 (Pub. L. 97-365, 96 Stat. 1749) and the Debt Collection Amendments 
of 1986 (Pub. L. 99-578, 100 Stat. 3305). It supplements the Federal 
Claims Collection Standards (FCCS), 4 CFR parts 101-105, issued jointly 
by the Comptroller General of the United States and the Attorney General 
of the United States under 31 U.S.C. 3711(e)(2). Pursuant to the Federal 
Claims Collection Act, as amended, and the FCCS, this part sets forth 
procedures by which the Department of Transportation (DOT) and its 
operating elements (see 49 CFR 1.3) through designated officials:
    (a) Collect claims owed to the United States arising from activities 
under its jurisdiction;
    (b) Determine and collect interest and other charges on those 
claims;
    (c) Compromise claims; and
    (d) Refer unpaid claims for litigation.

[[Page 604]]



Sec. 89.3  Applicability.

    (a) The part applies to collection of all claims due the United 
States under the Federal Claims Collection Act of 1966 as amended by the 
Debt Collection Act of 1982 and the Debt Collection Amendments of 1986 
(Pub. L. 99-578), arising from activities under the jurisdiction of DOT 
including amounts due the United States from fees, overpayments, fines, 
civil penalties, loans, damages, interest, and other sources.
    (b) This part does not apply to collection, settlement or compromise 
of debts owed the United States pursuant to authority other than Title 
31, Chapter 37, Subchapter II: for example, application of this part to 
the enforcement of contracts under 46 U.S.C. 1117, delegated to the DOT 
Maritime Administration, is not required.
    (c) Section 89.23 (interest, late payment penalties, and collection 
charges) and Sec. 89.25 (collection by administrative offset) of this 
part do not apply to debts which other United States government agencies 
or state governments or units of general local government owe the 
Department (see 31 U.S.C. 3701(c)); however, other statutory or common 
law may provide legal authority. Neither does the proposed rule apply to 
recovery of debts owed by current or former employees of the United 
States governed by 5 U.S.C. 5514.
    (d) Claims arising out of contracts that contain specific provisions 
relating to claims are governed by those specific provisions to the 
extent that those provisions comply with existing law and with 4 CFR 
chapter II.
    (e) As used in this part, the terms debt and claims are 
interchangeable and have the meaning defined in 4 CFR 101.2(a). A 
debtor's liability arising out of a particular incident or adjudication 
exclusive of interest, administrative costs, and late payment penalties, 
is a single claim.
    (f) Except as provided in paragraphs (b), (c) and (d) of this 
section the provisions of this part shall apply to the collection of all 
debts and claims owed to any DOT operating element. A claim arising from 
the assessment of civil penalty or fine is not subject to the procedures 
of this subpart until the claim has been reduced to a liquidated debt by 
a signed settlement agreement, a court order or judgment, or a final 
administrative determination.



Sec. 89.5  Delegations of authority.

    The functions, powers, and duties of the Secretary of Transportation 
to attempt collection of claims, to compromise claims of the United 
States not exceeding $100,000 (excluding interest) and to suspend and 
terminate action to collect such claims are delegated to:
    (a) The Assistant Secretary for Administration with respect to 
claims arising out of the activities of, or referred to, the Office of 
the Secretary; and
    (b) The heads of other DOT operating elements with respect to claims 
arising out of the activities of, or referred to, their organizations.

[53 FR 51238, Dec. 21, 1988, as amended at 58 FR 6898, Feb. 3, 1993]



Sec. 89.7  Exceptions to delegated authority.

    The authority delegated under Sec. 89.5 does not apply to any claim:
    (a) As to which there is an indication of (1) fraud; (2) the 
presentation of a false claim; or (3) misrepresentation on the part of 
the debtor or any other party having an interest in the claim;
    (b) Based on tax statutes; or
    (c) Arising from an exception made by the General Accounting Office 
in the account of an accountable officer.



Sec. 89.9  Redelegation.

    Each officer to whom authority is delegated under Sec. 89.5 may 
redelegate and authorize successive redelegations of the authority 
within the organization under his or her jurisdiction.



Sec. 89.11  Standards for exercise of delegated authority.

    The authority delegated under Sec. 89.5 shall be exercised in 
accordance with the standards for the collection and compromise of 
claims and for the suspension and termination of action to collect 
claims promulgated by the United States General Accounting Office and 
the United States Department of Justice, and published at 4 CFR chapter 
II, as those standards may be amended.

[[Page 605]]



Sec. 89.13  Documentary evidence of compromise.

    A compromise of any claim is not final or binding on the United 
States unless it is in writing, signed by an officer or employee 
authorized to compromise that claim.



Sec. 89.15  Regulations, reports, and supporting documentation.

    (a) Each officer to whom authority is delegated under Sec. 89.5 may 
promulgate regulations for the exercise of that authority within his or 
her organization. These regulations shall be revised, as necessary, to 
conform to any amendments to this part.
    (b) Each officer to whom authority is delegated under Sec. 89.5 
shall furnish the following information to the Assistant Secretary for 
Administration:
    (1) A copy of each redelegation of that authority.
    (2) A semiannual report listing those claims compromised or with 
respect to which collection action has been suspended or terminated, 
specifying the name of the debtors, the amount of the claim, the nature 
of the claim, the type of action taken, and the general basis for the 
action taken.
    (3) A copy of any implementing regulations governing the exercise of 
the authority delegated under Sec. 89.5, and any amendments to those 
regulations.
    (c) Each officer or employee to whom the Secretary's authority has 
been delegated or redelegated, before exercising such authority, shall 
acquire sufficient documentation to demonstrate that the action taken is 
in the best interests of the United States. This documentation will be 
retained with and treated as part of the file concerning the debt.
    (d) The failure of any officer or employee to comply with this 
section does not limit or impair his or her exercise of authority.



                     Subpart B--Collection of Claims



Sec. 89.21  Administrative collection.

    Except as provided differently by the DOT operating elements 
pursuant to Sec. 89.3:
    (a) DOT shall send a debtor a total of three progressively stronger 
written demands at not more than 30-day intervals, unless a response to 
the first or second demand indicates that a further demand would be 
futile or the debtor's response does not require rebuttal, or other 
pertinent information indicates that additional written demands would be 
unnecessary.
    (b) The initial written demand for payment (and the notice of offset 
under Sec. 89.25) shall inform the debtor of:
    (1) The basis for the indebtedness and the debtor's right to obtain 
review (see Sec. 89.21(f) for details on review).
    (2) The amount of the claim;
    (3) That domestic and overseas payment in excess of ten thousand 
dollars or more shall be made by wire transfer through the Federal 
Reserve communications, commonly known as Fedwire, to the account of the 
U.S. Treasury in accordance with the instructions provided in the demand 
letter; payments originating in foreign countries shall be made by wire 
transfer to the extent practicable.
    (4) The delinquency date, or the date by which payment is to be made 
(30 days from the date of mailing or hand delivery of the initial demand 
letter);
    (5) The standard for interest, penalties, and administrative charges 
in accordance with 31 U.S.C. 3717, if payment is not received by the due 
date (see Sec. 89.23 for details regarding interest, collection charges, 
and late payment penalty charges);
    (6) Where a notice of offset is concerned, the right to make 
voluntary payment before collection by offset begins (see Sec. 89.25).
    (7) The possible reporting of the claim to commercial credit bureaus 
and consumer reporting agencies; however a notice of offset should not 
include this warning.
    (8) The possibility that DOT will forward the claim to a collection 
agency, the General Accounting Office, the Department of Justice, or 
private counsel contracting with the Department of Justice for 
collection; however a notice of offset should not include this warning.
    (c) If the debtor fails to respond to the demands for payment by the 
due date specified in the notice, the Department may take further action 
under this part or the FCCS under 4 CFR parts 101 through 105, pursuant 
to

[[Page 606]]

31 U.S.C. 3701-3720A. These actions may include reports to commercial 
credit bureaus, consumer reporting agencies, contracts with commercial 
collection agencies, revocation of licenses, or the use of 
administrative offset, as authorized in 31 U.S.C. 3701-3720A.
    (d) DOT may collect by administrative offset, (see Sec. 89.25, 
Collection by administrative offset), if the debtor:
    (1) Has not made payment by the payment due date;
    (2) Has not requested a review of the claim within the agency as set 
out in paragraph (f) of this section; or
    (3) Has not made an arrangement for payment by the payment due date;
    (e) Except for information that may properly be withheld under 49 
CFR part 7, the debtor may inspect and copy the records of the agency 
related to the claim. Any reasonable costs associated with the copying 
and inspection of the records shall be borne by the debtor. (Payment of 
cost is governed by 49 CFR part 7, subpart I.) The debtor shall give 
reasonable notice in advance to the agency of the date on which it 
intends to inspect and copy the records involved;
    (f)(1) Except for debts established by settlement agreement, court 
order or judgment, or final administrative decision, the debtor may 
request review of the validity or amount of a claim. To do so, the 
debtor shall make a request in writing for review of the claim prior to 
it becoming delinquent. (See 4 CFR 101.2 for definition of when a debt 
is considered delinquent.) The debtor's written response shall state the 
basis for the dispute, and provide all factual information, documents, 
citation to authority, argument and any other matters to be considered. 
If only part of the claim is disputed, the undisputed portion shall be 
paid by the delinquency date stated in the initial demand. During the 
period that the claim is being reviewed, the amount of the debt is owed, 
but the accrual of interest and accrual of time to delinquency may be 
suspended on the disputed portion of the debt.
    (2) Review of claims shall be based upon the written record unless 
an oral hearing is required by 4 CFR 102.3(c). Upon completion of 
review, within 30 days whenever feasible, the Department shall advise 
the debtor whether the debt has been found to be valid in any amount, or 
that collection will be terminated. If the claim is found to be valid in 
any amount, the accrual of interest and time to delinquency shall 
commence 15 days after mailing of the notification of the review 
results. The notification of the review may also include notice of a 
specific collection action to be undertaken if payment is not received.
    (g) The debtor may offer to make a written agreement to pay the 
amount of the claim. The acceptance of such an agreement is 
discretionary with DOT. If the debtor requests an installment payment 
arrangement because a lump sum payment would create a financial 
hardship, DOT may agree to a written installment payment schedule with 
the debtor (see 4 CFR 102.11(a)). The debtor shall execute a confess-
judgment note which specifies all of the terms of the arrangement and 
includes a provision accelerating the debt in the event the debtor 
defaults. The size and frequency of installment payments shall bear a 
reasonable relation to the size of the debt and the debtor's ability to 
pay. Interest shall be provided in the note (see Sec. 89.23). The debtor 
shall be provided with a written explanation of the consequences of 
signing a confess-judgment note. The debtor shall sign a statement 
acknowledging receipt of the written explanation, which shall recite 
that the statement was read and understood before execution of the note 
and that the note is being signed knowingly and voluntarily. Evidence of 
these facts shall be maintained in DOT's file on the debtor in 
accordance with the practice of the DOT operating element.



Sec. 89.23  Interest, late payment penalties, and collection charges.

    (a) DOT shall charge interest on an outstanding debt at the Treasury 
Current Value of Funds Rate published by the Secretary of the Treasury 
in accordance with 31 U.S.C. 3717 and 4 CFR 102.13(c), unless DOT 
determines that a higher rate is necessary to protect the interests of 
the United States. DOT shall charge a late payment penalty at a rate of 
six percent a year on any portion of a debt that is more than 90 days

[[Page 607]]

past due. DOT shall also assess administrative charges to cover 
additional cost incurred in processing and handling the debt beyond the 
payment due date. The imposition of interest, collection charges, and 
late payment penalty charges shall be made in accordance with 31 U.S.C. 
3717, 4 CFR 102.13 (see Sec. 89.3(c) regarding payment of such charges 
by Federal, state and local government agencies).
    (b) Interest on debt shall begin to accrue on the date on which the 
debtor is mailed or delivered notice of the debt and the interest 
requirements or, in the case of advance billings, on the calendar day 
following the specified due date of the debt, provided the advance 
billing gives notice of the interest requirements for late payment. 
Interest on the debt shall continue to accrue until payment is received. 
Interest shall be calculated only on the principal of the debt (simple 
interest). The rate of interest assessed shall be the rate in effect on 
the date from which interest begins to accrue, and will remain fixed for 
the duration of the indebtedness. The rate of interest assessed will 
generally be the Treasury Current Value of Funds Rate.
    (c) The Department shall waive interest on debt that is paid within 
30 calendar days after the date on which interest began to accrue.
    (d) Collection charges on debt shall be computed to cover the cost 
of processing and handling the delinquent debt. It shall be either the 
actual cost to process the particular delinquent debt to which it is 
applied, or operating elements may set the amount of such monthly charge 
by cost analysis establishing the average of actual additional costs 
incurred by the operating element in processing similar debts. 
Collection charges may also include the expense of obtaining credit 
reports and of using a professional debt collection contractor.
    (e) DOT may waive interest, collection charges, or late payment 
penalty charges if it finds that:
    (1) The debtor would be eligible for compromise under standards set 
forth in 4 CFR 103.2 with regard to the amount of the debt;
    (2) Collection of interest, administrative charges, or penalties 
will jeopardize collection of the principal of the debt; or
    (3) It is otherwise in the best interests of the United States, 
including the situation in which an offset or installment payment 
agreement is in effect.



Sec. 89.25  Collection by administrative offset.

    (a) Whenever feasible, after a debtor fails to pay a claim, request 
a review of a claim, or make an arrangement for payment following a 
demand made in accordance with Sec. 89.21, DOT shall collect claims 
under this part by means of administrative offset against obligations of 
the United States to the debtor pursuant to 31 U.S.C. 3716 and 4 CFR 
102.3. Salary offset against present or former employees of the United 
States is not governed by this part (see 49 CFR part 92).
    (b) The Department shall notify the debtor in writing in conformance 
with 31 U.S.C. 3716 and the FCCS of its intent to collect the debt by 
offset, unless the debtor pays the debt in full, including all interest, 
administrative charges, and penalties, or executes an agreement to pay 
the debt by installment at terms acceptable to DOT.
    (c) In making collection by administrative offset under 31 U.S.C. 
3716, DOT must do so in accordance with the requirements set forth in 
Sec. 89.21(b)(1-6). (See also procedures for recovery of debts to the 
United States by salary offset, 49 CFR part 92.)



Sec. 89.27  Referral for litigation.

    Claims that are not settled or for which collection action is not 
compromised, suspended or terminated under 4 CFR parts 103 and 104 or 
collected by collection agencies shall be referred to the General 
Accounting Office or the Department of Justice for litigation in 
accordance with the procedures in 4 CFR part 105.



Sec. 89.29  Disclosure to commercial credit bureaus and consumer reporting agencies.

    (a) Data on all delinquent commercial and consumer debts may be 
reported to commercial credit bureaus and consumer reporting agencies 
(see 31 U.S.C. 3701(a)(3)). Sixty days prior to release of information 
to a consumer

[[Page 608]]

reporting agency, the debtor shall be notified, in writing, of the 
intent to disclose the existence of the debt to a consumer reporting 
agency. Such notice of intent may be by separate correspondence or 
included in correspondence demanding direct payment. The notice shall be 
in conformance with 31 U.S.C. 3711(f) and the Federal Claims Collection 
Standards.
    (b) The information that may be disclosed is the debtor's name, 
address, social security number or taxpayer identification number, and 
any other information to establish the identity and location of the 
individual, the amount of the claim, status and history of the claim, 
and the program under which the claim arose.



Sec. 89.31  Use of professional debt collection agencies.

    Debts over 90 days delinquent (see Sec. 89.21(b)(4)) may be turned 
over to professional debt collection agencies except for those debts 
owed by State and local governments, other Federal agencies, current 
employees, and other debts prohibited by statute from being turned over 
to commercial collection agencies.



Sec. 89.33  [Reserved]



        Subpart C--Referral of Debts to IRS for Tax Refund Offset

    Source: 54 FR 28681, July 7, 1989, unless otherwise noted.



Sec. 89.37  Applicability and scope.

    (a) This subpart implements 31 U.S.C. 3720A which authorizes the IRS 
to reduce a tax refund by the amount of a past-due legally enforceable 
debt owed to the United States.
    (b) For purposes of this subpart, a past-due legally enforceable 
debt referable to the IRS is:
    (1) A debt which:
    (i) Is owed to the United States;
    (ii) Is at least $25.00;
    (iii) Except in the case of a judgment debt, has been delinquent for 
at least three months but has not been delinquent for more than ten 
years at the time the offset is made;
    (iv) Cannot be currently collected pursuant to the salary offset 
provisions of 5 U.S.C. 5514(a)(1);
    (v) Is ineligible for administrative offset under 31 U.S.C. 3716(a) 
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by 
administrative offset under 31 U.S.C. 3716(a) by the Department against 
amounts payable to or on behalf of the debtor by or on behalf of the 
Department;
    (vi) Has been disclosed by the Department to a consumer reporting 
agency as authorized by 31 U.S.C. 3711(f), unless a consumer reporting 
agency would be prohibited from using such information by 15 U.S.C. 
1681c, or unless the amount of the debt does not exceed $100.00; and
    (2) A debt for which the Department has:
    (i) Notified or has made reasonable attempt to notify the taxpayer 
that the debt is past-due and, that the debt, unless repaid within 60 
days thereafter, will be referred to the IRS for offset against any 
overpayment of tax;
    (ii) Given the debtor at least 60 days from the date of notification 
to present information that all or part of the debt is not past-due or 
legally enforceable, has considered information presented by such 
debtor, and has determined that an amount of debt is past-due and 
legally enforceable;



Sec. 89.39  Administrative charges.

    In accordance with 4 CFR 102.13, all administrative charges incurred 
in connection with the referral of the debt to the IRS shall be added to 
the debt and thus increase the amount of the offset.



Sec. 89.41  Notice requirement before offset.

    A request for offset from an IRS tax refund will be made only after 
the Department has made a determination that an amount is owed and past-
due and provides the debtor with 60 days written notice. The 
Department's notice of intention to collect by IRS tax refund offset 
(Notice of Intent) includes:
    (a) The amount of the debt;

[[Page 609]]

    (b) That unless the debt is repaid within 60 days from the date of 
the Department's Notice of Intent, the Department will refer the debt to 
the IRS for offset against any amount due the debtor as a tax refund;
    (c) That the debtor has a right to present information that all or 
part of the debt is not past-due or legally enforceable; and
    (d) A mailing address for forwarding any written correspondence and 
a contact name and telephone number for any questions.



Sec. 89.43  Review within the Department.

    (a) Notification by debtor. A debtor who receives a Notice of Intent 
may present, for 60 days from the date of the Notice of Intent, 
information that all or part of the debt is not past-due or legally 
enforceable. (However, this does not extend the regulatory period for 
submitting written statements or for requesting an administrative 
hearing on the merits of an alleged violation, nor does it extend the 
period to appeal an assessed civil penalty.) To comply with this 
procedure, the debtor must:
    (1) Send a written request for a review of the information to the 
address provided in the notice.
    (2) State in the request the amount disputed and the reasons why the 
debtor believes that the debt is not past-due or legally enforceable.
    (3) Include in the request any documents which the debtor wishes to 
be considered or state that additional information will be submitted 
within the remainder of the 60 day period.
    (b) Submission of information. The debtor may submit information 
showing that all or part of the debt is not past-due or not legally 
enforceable along with the notification required by paragraph (a) of 
this section. Failure to submit the information within the remainder of 
the 60 day period will be interpreted as there is no additional 
information for consideration.
    (c) Review of the information. The Department considers all 
available information related to the issue of whether the debt is past-
due and the issue of whether the debt is legally enforceable. After a 
decision has been reached, the Department notifies the debtor whether 
the Department has sustained amended, or cancelled its determination 
that the debt is past-due and legally enforceable.



Sec. 89.45  Department determination.

    (a) Following review of the information, the Department notifies the 
debtor with a written decision that includes the supporting rationale.
    (b) If the Department either sustains or amends its determination, 
it shall notify the debtor that the debt is being referred to the IRS 
for offset against the debtor's Federal income tax refund. If the 
Department determines that there is no legally enforceable debt or that 
full payment has been made, the case will be closed.



Sec. 89.47  Stay of offset.

    If the debtor timely notifies the Department that he or she is 
complying with the procedures in Sec. 89.43(a) of this subpart and 
timely submits additional information in accordance with Sec. 89.43(b) 
of this subpart, the debt will not be referred to the IRS while the 
matter is under review by the Department. Referral will not be made 
until the issuance of a written decision, in accordance with Sec. 89.45 
of this subpart, which sustains or amends the Department's original 
determination.



PART 91--INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES--Table of Contents




Sec.
91.1  Purpose.
91.3  Investigations.
91.5  Findings and recommendations.
91.7  Determination of compensatory charges.
91.9  Distribution of compensatory funds.
91.11  Standards.
91.13  Refunds.

    Authority: Secs. 2-3, 88 Stat. 2103, 49 U.S.C. 1159a and 1159b, Pub. 
L. 93-623.

    Source: 41 FR 54770, Dec. 15, 1976, unless otherwise noted.



Sec. 91.1  Purpose.

    The purpose of this part is to prescribe the Secretary's role in 
executing his responsibilities under sections 2 and 3 of the 
International Air Transportation Fair Competitive Practices

[[Page 610]]

Act of 1974 to the end that U.S. flag air carriers operating in foreign 
air transportation are protected from all forms of discrimination or 
unfair competitive practices and are compensated for excessive or 
otherwise discriminatory charges levied by foreign governments or other 
foreign entities for the use of airport or airway property.



Sec. 91.3  Investigations.

    The Assistant Secretary for Policy, Plans and International Affairs 
(Assistant Secretary), in coordination with the General Counsel and the 
Federal Aviation Administrator (Administrator), on complaint of any U.S. 
flag air carrier or on their own initiative, shall investigate: (a) 
Instances of alleged excessive or otherwise discriminatory user charges 
or (b) discriminatory or unfair competitive practices to which U.S. flag 
air carriers are subjected by a foreign government or other foreign 
entity. Excessive or otherwise discriminatory charges include, but are 
not limited to, unreasonable landing fees, unreasonable monopoly ground 
handling fees and unreasonable air navigation charges. Discriminatory or 
unfair competitive practices include, but are not limited to, 
unreasonably differentiated fuel allocations, cargo, charter or currency 
restrictions and inferior monopoly ground handling services.



Sec. 91.5  Findings and recommendations.

    (a) Upon finding that a foreign government or entity imposes 
excessive or otherwise discriminatory charges against U.S. flag air 
carriers or causes such carriers to be subjected to discriminatory or 
unfair competitive practices, the Assistant Secretary, in coordination 
with the General Counsel and the Administrator, shall determine the 
extent of the discrimination or unfair competitive practices.
    (b) Where the matter involves excessive or otherwise discriminatory 
charges, the Assistant Secretary shall prepare a report and recommend 
that the Secretary promptly submit a report of the case to the Secretary 
of State and the Civil Aeronautics Board in accordance with section 11 
of the International Aviation Facilities Act, 49 U.S.C. 1159a.
    (c) Where the matter involves discrimination or unfair competitive 
practices other than user charges, the Assistant Secretary shall prepare 
a report and recommend that the Secretary take such other action within 
the jurisdiction of the Department as is appropriate under the 
circumstances in accordance with 49 U.S.C. 1159b.
    (d) If the Secretary determines, after review of the report and 
recommendations made under paragraph (b) of this section, that 
unreasonably excessive or otherwise discriminatory charges exist, the 
Secretary will submit a report on the matter to the Secretary of State 
and the Chairman of the Civil Aeronautics Board in accordance with 49 
U.S.C. 1159a.
    (e) If the Secretary determines, after review of the report and 
recommendations made under paragraph (c) of this section, that 
discriminatory or unfair competitive practices exist, the Secretary will 
commence all appropriate action within his jurisdiction in accordance 
with 49 U.S.C. 1159b.



Sec. 91.7  Determination of compensatory charges.

    (a) Upon indication by the Secretary of State that the excessive or 
otherwise discriminatory user charges have not been reduced or 
eliminated, the Secretary will direct the Assistant Secretary to compute 
the appropriate amount of compensatory charges.
    (b) Upon approving the amount of compensatory charges computed under 
paragraph (a) of this section, the Secretary will notify the Secretary 
of State and the Secretary of the Treasury of his determination.



Sec. 91.9  Distribution of compensatory funds.

    (a) On or after January 1 and July 1 of each year, each U.S. flag 
air carrier which has been subjected to excessive or otherwise 
discriminatory charges for which compensatory charges have been 
collected shall, upon compliance with paragraph (c) of this section, be 
entitled to pro rata reimbursement for excessive or otherwise 
discriminatory charges incurred to date, not to exceed the amount of 
such charges actually paid by that carrier.

[[Page 611]]

    (b) The Secretary will publish in the Federal Register, at least 30 
days before a U.S. flag air carrier becomes entitled to reimbursement, a 
notice setting forth the procedures to be followed in making claims for 
reimbursement. This notice will specify the form in which application 
shall be made and the specific items of proof, if any, to be submitted.
    (c) On or after January 1 and July 1 of each year, each U.S. flag 
carrier claiming a right to reimbursement shall apply for such 
reimbursement in accordance with the Federal Register notice referred to 
in paragraph (b) of this section.
    (d) The Assistant Secretary shall, on the basis of the application 
and such other data as may be available, compute the amount to which 
such carrier is entitled.
    (e) Subject to the provisions of Sec. 91.13(b), upon approving the 
computation made by the Assistant Secretary, the Secretary shall issue 
such certificate as will entitle each such carrier to payment from the 
account maintained by the Secretary of the Treasury for this purpose.



Sec. 91.11  Standards.

    (a) To minimize the burden of implementing this part on the United 
States, on U.S. flag air carriers and on foreign air carriers, estimates 
and periodic adjustments will be used to determine the amount of 
discrimination and compensatory charges therefor.
    (b) For the purpose of determining the amount of excessive or 
otherwise discriminatory charges imposed upon U.S. flag air carriers by 
an entity:
    (1) A service or use of airport or airway property includes, but is 
not limited to, fueling, food service, ticketing, baggage handling, 
runways, ramps, parking areas, navigational aids, communications 
facilities or any other service necessary and incidental to the conduct 
of a flight.
    (2) An excessive or otherwise discriminatory charge includes, but is 
not limited to, a charge substantially above the cost of providing a 
service or any charge for a service that is substantially inferior to 
that which the U.S. flag air carrier could have provided for itself, at 
the same cost, by contract or otherwise (see also Sec. 91.3).
    (c) In determining the amount of compensatory charge:
    (1) The total amount of excessive or otherwise discriminatory 
charges levied against U.S. flag air carriers will be estimated in 
dollars.
    (2) The total volume of operations to the United States by air 
carriers of the nation concerned will be estimated for the succeeding 
six-month period.
    (3) The total amount of excessive or otherwise discriminatory 
charges in paragraph (c)(1) of this section will be divided by the total 
volume of operations in paragraph (c)(2) of this section, and
    (4) The quotient thus computed (which may be adjusted to reflect the 
type of aircraft) will constitute the compensatory charge to be 
collected as a condition to acceptance of the general declaration at the 
time of landing or takeoff of such air carriers of the nation concerned.



Sec. 91.13  Refunds.

    (a) Where, in his discretion, the Secretary finds that good cause 
has been shown, the Secretary may authorize a refund of collected 
compensatory charges. For purposes of this section, good cause includes, 
but is not limited to, an error of fact, a miscalculation, or a 
determination that an original conclusion of entitlement was 
insufficient, invalid, erroneous or invalidated by subsequent events.
    (b) Notwithstanding the provisions of Sec. 91.9(e) the Secretary may 
suspend for a reasonable time the issuance of a certificate of 
entitlement upon a showing by a payor of compensatory charges that there 
is a substantial likelihood that the payor will make a showing of good 
cause under Sec. 91.13(a).
    (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 
section, the issuance of a certificate of entitlement under Sec. 91.9(e) 
or the distribution to U.S. flag air carriers of funds collected under 
this part shall be with prejudice to any claim for refund under this 
section.

[[Page 612]]



PART 92--RECOVERING DEBTS TO THE UNITED STATES BY SALARY OFFSET--Table of Contents




Sec.
92.1  Purpose.
92.3  Scope.
92.5  Definitions.
92.7  Notice, hearing, written response and decision.
92.9  Exceptions to notice, hearing, written response, and final 
          decision.
92.11  Demand for payment.
92.13  Request for hearing.
92.15  Request for hearing after time expires.
92.17  Form of hearings and written decisions.
92.19  Obtaining the services of a hearing official.
92.21  Deduction from pay.
92.23  Collection.
92.25  Source of deductions.
92.27  Duration of deductions.
92.29  Limitation on amount of deductions.
92.31  Liquidation from final payment.
92.33  Recovery from other payments due a separated employee.
92.35  Interest, penalties and administrative costs.
92.37  Non-waiver of rights by payment.
92.39  Refunds.
92.41  Requesting recovery when the Department is not the paying agency.
92.43  Requests for recovery when the Department is the paying agency.
92.45  Other debt collections.

    Authority: 5 U.S.C. 5514, as amended; 5 CFR part 550, subpart K; 4 
CFR parts 101-105.

    Source: 53 FR 4171, Feb. 12, 1988, unless otherwise noted.



Sec. 92.1  Purpose.

    This part implements 5 U.S.C. 5514 (Installment Deduction for 
Indebtedness to the United States), as amended by the Debt Collection 
Act of 1982 (Pub. L. 97-365, 96 Stat. 1749, 1751). It supplements 5 CFR 
part 550, subpart K, and the Federal Claims Collections Standards (4 CFR 
parts 101-105) issued jointly by the Comptroller General of the United 
States and the Attorney General of the United States under 31 U.S.C. 
3711(e)(2). It sets forth the procedures by which the Department of 
Transportation (DOT), including its operating elements (see 49 CFR 1.3):
    (a) Collects debts owed to the United States by current and former 
DOT employees;
    (b) Determines and collects interest and other charges on that 
indebtedness.
    (c) Offsets the salary of DOT employees to collect debts owed to the 
United States by those employees; and,
    (d) Obtains salary offset to collect debts owed to the United States 
by employees of other agencies under programs administered by DOT.



Sec. 92.3  Scope.

    The provisions of this part are applicable to the indebtedness of a 
current or former employee of DOT incurred under any program 
administered by DOT. The provisions of this part do not apply to the 
collection of indebtedness by authority other than 5 U.S.C. 5514.



Sec. 92.5  Definitions.

    As used in this part:
    (a) Agency means an Executive Agency as defined by section 105 of 
title 5, United States Code, the U.S. Postal Service, the U.S. Postal 
Rate Commission, a Military Department as defined by section 102 of 
title 5, United States Code, an agency or court in the judicial branch, 
an agency of the legislative branch, and any other independent 
establishments which are entities of the Federal Government. In DOT each 
operating element will act for the agency in collecting debts under this 
rule.
    (b) Creditor agency means the agency to which the debt is owed.
    (c) Debt means an amount owed to the United States from sources 
which include, but are not necessarily limited to, erronerous payments 
made to employees, overpayments of benefits, salary or other allowances, 
loans insured or guaranteed by the United States and all other amounts 
due the United States from fees, leases, rents, royalties, services, 
sales of real or personal property, overpayments, penalties, damages, 
interest, fines and forfeitures (except those arising under the Uniform 
Code of Military Justice) and all other similar sources. This term does 
not include a Government claim arising under the Internal Revenue Code 
of 1954 (26 U.S.C. 1-9602) as amended; the Social Security Act (42 
U.S.C. 301-1397f); the tariff laws of the United States; or any case 
where collection of

[[Page 613]]

a debt by salary offset is explicitly provided for or prohibited by 
another statute (e.g., emergency and travel advances under 5 U.S.C. 
5522, 5705 or 5724 and employee training expenses under 5 U.S.C. 4108).
    (d) Debt Claim Form means the form used by DOT when requesting that 
an agency, other than DOT, assist in the recovery of funds.
    (e) Delinquent debt means a debt which has not been paid by the date 
specified in the agency's initial written notification or applicable 
contractual agreement, unless other satisfactory payment arrangements 
have been made by that date, or if, at any time thereafter, the debtor 
fails to satisfy obligations under a payment agreement with the creditor 
agency.
    (f) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, or in the case of an 
employee not entitled to basic pay, other authorized pay remaining after 
the deduction of any amount required by law to be withheld. (See 5 CFR 
581.105 (b) through (f) for items required by law to be withheld, and 
therefore excluded from disposable pay for the purposes of this 
regulation).
    (g) DOT operating element (see 49 CFR 1.3) means a DOT Operating 
Administration including--
    (1) U.S. Coast Guard.
    (2) Federal Aviation Administration.
    (3) Federal Highway Administration.
    (4) Federal Railroad Administration.
    (5) National Highway Traffic Safety Administration.
    (6) Urban Mass Transportation Administration.
    (7) St. Lawrence Seaway Development Corporation.
    (8) Maritime Administration.
    (9) Research and Special Program Administration.
    (10) The Office of the Secretary.
    (h) Employee means a current or former employee of a Federal agency, 
including a member of the Armed Forces (including retired members) or a 
Reserve of the Armed Forces (Reserves). However, employees paid from 
non-appropriated funds are not included.
    (i) FCCS means the Federal Claims Collection Standards, 4 CFR Ch. 
II, jointly published by the Department of Justice and the General 
Accounting Office.
    (j) Hearing means an informal conference before a hearing official 
in which the employee and the DOT operating element are given an 
opportunity to present evidence, witnesses, and argument. The hearing 
official shall be either an administrative law judge or an individual 
not under the supervision or control of the Department.
    (k) Paying agency means the agency authorizing the payment of the 
employee's current pay.
    (l) Salary offset means an administrative offset to collect a debt 
under 5 U.S.C. 5514 by deduction(s) at one or more officially 
established pay intervals from the current pay account of a present or 
former employee with or without his or her consent. It includes a single 
offset from the final salary of an employee whose employment ends.
    (m) Waiver means the cancellation, remission, forgiveness or non-
recovery of a debt allegedly owed by an employee to an agency as 
permitted or required by 5 U.S.C. 5584, 5 U.S.C. 8346(b), 10 U.S.C. 
2774, or 32 U.S.C. 716, or any other law.



Sec. 92.7  Notice, hearing, written response and decision.

    (a) Except as provided in Sec. 92.9 of this part, each employee from 
whom the department proposes to offset a debt against the Federal pay of 
an employee who is indebted to the United States under a program 
administrated by DOT under these regulations is entitled to receive a 
minimum of 30 days written notice as described in Sec. 92.11 of this 
part (see also Sec. 92.21(a)).
    (b) Each employee owing a debt to the United States which will be 
collected by salary offset is entitled to petition for a hearing before 
collection starts. This petition shall be filed directly with the 
accounting or finance office of the DOT creditor operating element which 
shall make appropriate hearing arrangements consistent with law and 
regulations. The DOT creditor operating element shall provide an 
explanation of the rights of the employee. If a hearing is provided, the 
following issues shall be heard:

[[Page 614]]

    (1) The determination of the DOT creditor operating element 
concerning the existence and amount of the debt; and
    (2) The terms of the repayment schedule, if not previously 
established by written agreement between the employee and the DOT 
creditor operating element. (See Sec. 92.21(c) regarding copy of written 
decision by hearing officer describing method and amount of salary 
offset).



Sec. 92.9  Exceptions to notice, hearing, written response, and final decision.

    (a) Exceptions. The procedural requirements of 5 U.S.C. 5514 do not 
apply to recovery by way of retroactive deductions for administrative 
adjustments associated with the Federal benefits program. In such cases 
the content of the notification to employees is stated in Sec. 92.9(b).
    (b) Simplified procedures to be followed. In the event that a 
retroactive deduction from pay or allowances is required to recover an 
insufficiency of deductions arising through normal processing delays, 
and those insufficient deductions did not occur in more than four pay 
periods, rather than following the specific procedures required by 5 
U.S.C. 5514(a)(2), and set forth in Sec. 92.11 through Sec. 92.17 of 
this part, the DOT creditor operating element shall issue in advance of 
the collection a simplified notice to the employee that:
    (1) Because of the employee's election for changes in voluntary 
payroll deduction, corresponding deductions shall be imposed on the 
employee's salary to cover the period between the effective date of the 
election and the first regular withholding. The employee may dispute the 
amount of the retroactive collection by notifying his or her accounting 
or finance officer; or
    (2) Due to a normal ministerial adjustment in pay or allowances 
which could not be placed into effect immediately, future pay will be 
reduced to permit the DOT creditor operating element to recover any 
excess pay or allowances received by the employee. The employee may 
dispute the amount of the retroactive collection by notifying his or her 
accounting or finance officer.
    (c) Limitation on exceptions. The exceptions described in paragraph 
(a) of this section shall not include a recovery required to be made for 
any reason other than routine processing delays in putting the change 
into effect, even if the period of time for which the amounts must be 
retroactively recovered is less than four pay periods. If normal 
processing delays exceed four pay periods, then the full procedures 
prescribed under 5 U.S.C. 5514 and Secs. 92.11 through 92.17 of this 
part will be extended to the employee.

[53 FR 4171, Feb. 12, 1988, as amended at 53 FR 51279, Dec. 21, 1988]



Sec. 92.11  Demand for payment.

    (a) The DOT creditor operating element shall send a debtor a total 
of three progressively stronger written demands at not more than 30-day 
intervals, unless a response to the first or second demand indicates 
that a further demand would be futile and the debtor's response does not 
require rebuttal (see also Sec. 92.21(a)). Other information may also 
indicate that additional written demands are unnecessary.
    (b) The initial written demand for payment shall inform the debtor 
of:
    (1) The basis for the indebtedness;
    (2) The amount of the claim;
    (3) The date by which payment is to be made:
    (4) The debtor's liability for interest, penalties and 
administrative charges in accordance with 31 U.S.C. 3717 and Sec. 92.35 
of this part, if payment is not received within 30 days of the due date 
(see Sec. 92.35 for details regarding interest, penalties and 
administrative costs);
    (5) The intent of the agency to collect by salary offset, including 
asking the assistance of other Federal agencies to help in the offset 
whenever possible, if the debtor:
    (i) Has not made payment by the payment due date;
    (ii) Has not requested a review of the claim within the agency as 
set out in paragraph (b)(8) of this section; or
    (iii) Has not made an arrangement for payment by the payment due 
date:
    (6) The possible submission of claims to a collection agency or 
referral to the General Accounting Office or the Department of Justice 
for litigation in

[[Page 615]]

accordance with the procedures in 4 CFR part 105.
    (7) The right of the debtor to inspect and copy the records of the 
agency related to the claim. Any reasonable costs associated with the 
inspection and copying of these records shall be borne by the debtor. 
The debtor shall give reasonable notice in advance to the agency of the 
date upon which he or she intends to inspect and copy the records 
involved.
    (8) The right of the debtor to a review of the claim within the 
agency. If the claim is disputed in full or in part, the debtor shall 
respond to the demand by making a request in writing for a review of the 
claim within the agency by the payment due date stated in the demand. 
The debtor's written response shall state the basis for the dispute. If 
only part of the claim is disputed, the undisputed portion shall be paid 
by the due date. The DOT creditor operating element shall acknowledge 
receipt of the request for a review, and upon completion of 
consideration shall notify the debtor whether its determination has been 
sustained, amended, or canceled within 15 days of the receipt of the 
request for a review. If the DOT operating element either sustains or 
amends its determination, it shall notify the debtor of its intent to 
collect by salary offset unless payment is received within 15 days of 
the mailing of the notification of its decision following a review of 
the claim.
    (9) The right of the debtor to offer to make a written agreement to 
repay the amount of the claim (see Sec. 92.23). The acceptance of such 
an agreement is discretionary with the agency. If the debtor requests a 
repayment arrangement because a payment of the amount due would create a 
financial hardship, the DOT creditor operating element will analyze the 
debtor's financial condition. Depending on its evaluation of the 
financial strength of the debtor, the DOT operating element may agree to 
a written installment repayment schedule with the debtor. The debtor 
shall execute a confession of judgment note which specifies all of the 
terms of the arrangement. The size and frequency of installment payments 
should bear a reasonable relation to the size of the debt and the 
debtor's ability to pay. Interest, penalties and administrative charges 
shall be provided in the note (see Sec. 92.35). The debtor shall be 
provided with a written explanation of the consequences of signing a 
confession of judgment note. The debtor shall sign a statement 
acknowledging receipt of the written explanation which shall recite that 
the statement was read and understood before execution of the note and 
that the note is being signed knowingly and voluntarily. Some form of 
evidence of these facts shall be maintained in the agency's file on the 
debtor.
    (10) The right to an oral hearing or a hearing based on written 
submissions conducted by an administrative law judge or by a hearing 
official not under the control of the head of the Department in 
accordance with Sec. 92.13 of this part.
    (11) The consequences of any knowingly false statements, 
representations, or evidence provided by the employee, which may 
include:
    (i) Disciplinary procedures under 5 U.S.C. chapter 75, 5 CFR part 
752, or any other applicable statutes or regulations;
    (ii) Criminal penalties under 18 U.S.C. 286, 287, 1001 and 1002, or 
any other applicable statute; or,
    (iii) Penalties under the False Claims Act, 31 U.S.C. 3729, et seq., 
or any other applicable statute.
    (12) Proceedings under any other statutory authority for the 
collection of claims of the DOT operating element.
    (13) The fact that amounts paid on or deducted from the debt which 
are later waived or found not owed to the United States will be promptly 
refunded to the employee unless there are applicable contractual or 
statutory provisions to the contrary.
    (14) The name, address, and telephone number of the accounting or 
finance officer who may be contacted if the employee wishes to review 
the records or to obtain information.



Sec. 92.13  Request for hearing.

    (a) The employee shall be advised in the notification that a hearing 
may be requested by filing a written petition within 15 calendar days of 
receipt of the notification, addressed to the chief

[[Page 616]]

of the paying agency's accounting or finance office.
    (b) The petition shall state the grounds upon which the employee 
disputes the proposed collection of the alleged debt. The petition shall 
identify and explain with reasonable specificity the facts, evidence 
which, and witnesses who the employee believes support his or her 
position.
    (c) The timely filing of a petition for hearing shall stay any 
further collection proceedings. A decision by the administrative law 
judge or other hearing official (see Sec. 92.5(j)) will be issued at the 
earliest practical date, but no later than 60 days after the filing of a 
petition for hearing, unless a delay is granted at the request of the 
employee.



Sec. 92.15  Request for hearing after time expires.

    The Department may accept late requests for a hearing if the 
employee can show that delay in requesting a hearing beyond the period 
provided in the notice described in Sec. 92.11 of this part was caused 
by circumstances beyond his or her control or because of failure to 
receive notice of the time limit (unless he or she was otherwise aware 
of it) or because of new information.



Sec. 92.17  Form of hearings and written decisions.

    (a) Hearings shall consist of informal conferences before an 
administrative law judge or other hearing official (see Sec. 92.5(j)) in 
which the employee and the DOT creditor operating element are given full 
opportunity to present evidence, witnesses, and argument. The DOT 
operating element will maintain a summary record of a hearing provided 
under these procedures.
    (b) Written decisions provided after a request for hearing shall, at 
a minimum, summarize the evidence alleged to substantiate the nature and 
origin of the alleged debt; the administrative law judge's or other 
hearing official's analysis, findings, and conclusions; the amount and 
validity of the alleged debt; and, where applicable, the repayment 
schedule.
    (c) A copy of the administrative law judge's or other hearing 
official's final decision shall be provided to the employee as well as 
the chief of the office authorized to collect debts by deduction from 
salary.
    (d) The decision of the administrative law judge or other hearing 
official shall be final and binding on the parties.



Sec. 92.19  Obtaining the services of a hearing official.

    (a) Where a DOT operating element is the creditor agency, the chief 
of the appropriate accounting or finance office shall schedule a hearing 
before an administrative law judge or other hearing official.
    (b) If another (non-DOT) agency is the creditor agency, then it is 
the responsibility of that agency to arrange for a hearing if one is 
requested.
    (c) Agents for the paying agency are designated in appendix A to 5 
CFR part 581. (This appendix lists the agents designated to accept legal 
process for the executive branch, the U.S. Postal Service, the Postal 
Rate Commission, the District of Columbia, American Samoa, Guam, the 
Virgin Islands, and the Smithsonian Institution.)



Sec. 92.21  Deduction from pay.

    (a) After other, less severe collection actions have failed, the DOT 
operating element (see Sec. 92.5(g)) may implement steps to obtain 
collection by salary offset. The method and the amount of the salary 
offset shall be the method and amount stated in the creditor agency's 
demand letter (see Sec. 92.11) or notice (see Sec. 92.7), or, if 
applicable, in the decision of an administrative law judge or other 
hearing official after an employee-requested hearing on the matter. If a 
DOT operating element is the creditor, the procedures stated in 
Sec. 92.11 shall be followed.
    (b) Before a collection by salary offset may be made, the chief of 
the accounting or finance office of the paying DOT operating element 
shall be furnished with certified documentation by the creditor agency 
indicating that the creditor agency has sent the employee a demand 
letter pursuant to Sec. 92.11 of this part stating as a minimum:
    (1) The nature and amount of the indebtedness and the intention of 
the agency to initiate, at the expiration of thirty days, a proceeding 
to collect the

[[Page 617]]

debt by salary offset; and an explanation of the rights of the employee 
under this subsection;
    (2) That the employee has the opportunity to inspect and copy 
Government records relating to the debt;
    (3) That the employee has an opportunity to enter into a written 
agreement with the agency to establish a schedule for the repayment of 
the debt;
    (4) That the employee has an opportunity for a hearing on the 
determination of the agency concerning the existence or the amount of 
the debt, and in the case of an individual whose repayment schedule is 
established other than by a written agreement as described in paragraph 
(b)(3) of this section concerning the terms of the repayment schedule; 
and
    (5) That the creditor agency's regulations implementing 5 U.S.C. 
5514 have been approved by OPM (see 5 CFR 550.1108(a)).
    (c) Where a hearing has been held, a copy of the decision of the 
administrative law judge or other hearing official must be furnished to 
the chief of the accounting or finance office of the paying DOT 
operating element before collection of the indebtedness by salary offset 
may be initiated. The method and amount of the offset will be as stated 
in the decision.



Sec. 92.23  Collection.

    (a) A debt shall be collected in a lump sum or by installment 
deductions at officially established pay intervals from an employee's 
current pay account, unless the employee and the DOT operating element 
agree to alternative arrangements for payment (see Sec. 92.11(b)(9) 
describing such voluntary repayment arrangements). The alternative 
arrangement shall be in writing, signed by both the employee and the 
chief of the appropriate accounting or finance office, and shall be 
documented in the DOT operating element's files.
    (b) Under 31 U.S.C. 3716 and 4 CFR 102.3(b)(3), agencies may not 
initiate offset to collect a debt more than 10 years after the 
Government's right to collect the debt accrued, unless facts material to 
the Government's rights to collect the debt were not known by the DOT 
operating element's official or officials charged with the 
responsibility to discover and collect the debt.



Sec. 92.25  Source of deductions.

    Except as provided in Sec. 92.31 and Sec. 92.33 of this part (with 
respect to separated employees), the paying DOT operating element will 
make deductions only from disposable pay (see Sec. 92.5(f)).



Sec. 92.27  Duration of deductions.

    Debts shall be collected in one lump sum where possible. However, if 
the employee is financially unable to pay in one lump sum or the amount 
of the debt exceeds 15 percent of disposable pay payable in one pay 
period, collection will be made in installments. Such installment 
deductions will be made over a period not greater than the anticipated 
period of employment or active duty, as the case may be, except as 
provided in Secs. 92.29, 92.31, and 92.33 of this part.



Sec. 92.29  Limitation on amount of deductions.

    The size and frequency of installment deductions shall bear a 
reasonable relation to the size of the debt and the employee's ability 
to pay. However, the amount deducted for any period may not exceed 15 
percent of the disposable pay from which the deduction is made, unless 
the employee has agreed in writing to the deduction of a greater amount.



Sec. 92.31  Liquidation from final payment.

    If the employee retires, resigns his or her employment, is 
terminated, or the employment or period of active duty ends before 
collection of the debt is completed, there shall be an offset from 
subsequent payments of any nature (e.g., final salary, lump sum leave, 
etc.) due the employee from the DOT operating element on the date of 
separation to the extent necessary to liquidate the debt.



Sec. 92.33  Recovery from other payments due a separated employee.

    If the debt cannot be liquidated by offset from any final payment 
due the employee as of the date of separation,

[[Page 618]]

the DOT operating element shall liquidate the debt by administrative 
offset pursuant to 31 U.S.C. 3716 from later payments of any kind due 
the former employee from the United States, where appropriate (see 
Sec. 92.41(b)(2)(ii)).



Sec. 92.35  Interest, penalties and administrative costs.

    (a) Where a DOT creditor operating element (see Sec. 92.5(g)) is the 
creditor, it shall charge interest on an outstanding debt at the rate 
published by the Secretary of the Treasury in accordance with 31 U.S.C. 
3717. The rate of interest assessed shall be the rate of the current 
value of funds to the United States Treasury (i.e., the Treasury tax and 
loan account rate), as prescribed and published by the Secretary of the 
Treasury in the Federal Register and the Treasury Financial Manual 
Bulletins annually or quarterly, in accordance with 31 U.S.C. 3717. The 
DOT creditor operating element shall charge a penalty of six percent a 
year, in addition to interest, on any portion of a debt that is more 
than 90 days past due. It shall assess administrative charges to cover 
additional costs incurred in processing and handling the debt beyond the 
payment due date. The imposition of interest, penalties and 
administrative charges is made in accordance with 31 U.S.C. 3717 and 4 
CFR 102.13.
    (b) Interest on debt shall begin to accrue on the date on which the 
debtor is first sent or delivered notice of the debt and of the interest 
requirements or, in the case of advance billings, on the calendar date 
following the specified due date of the debt provided the advance 
billing gives notice of the interest requirements for late payment. 
Interest on the debt shall continue to accrue until payment is received. 
Interest shall be calculated only on the principal of the debt (simple 
interest). The rate of interest charged shall be the rate in effect on 
the date from which interest begins to accrue, and shall remain fixed 
for the duration of the indebtedness.
    (c) A DOT creditor operating element shall waive the monthly 
interest on debt that is paid within 30 calendar days after the date on 
which interest began to accrue.
    (d) A DOT creditor operating element may waive interest, penalties 
and/or administrative charges if it finds that:
    (1) The debtor is unable to pay any significant sum toward the claim 
within a reasonable period of time;
    (2) Collection of interest, penalties or administrative charges will 
jeopardize collection of the principal of the debt; or
    (3) It is otherwise in the best interest of the United States, 
including the situation where an offset or installment payment agreement 
is in effect.



Sec. 92.37  Non-waiver of rights by payment.

    An employee's payment or agreement to pay, whether voluntary or 
involuntary, of all or any portion of an alleged debt being collected 
pursuant to these procedures shall not be construed as a waiver of any 
rights which the employee may have under this part to the extent of such 
payment or agreement.



Sec. 92.39  Refunds.

    (a) Amounts paid or deducted from the account of a current or former 
employee of the United States Government, pursuant to this part, for a 
debt which is found not owing to the United States shall be promptly 
refunded to the employee.
    (b) Amounts which are waived shall, after proper application, be 
promptly returned after approval of the application.



Sec. 92.41  Requesting recovery when the Department is not the paying agency.

    (a) Format of the request for recovery. (1) Where the DOT operating 
element is the creditor agency and another agency is the paying agency, 
the chief of the accounting of finance office of the appropriate DOT 
operating element (see Sec. 92.5(g)) shall complete and certify the 
``Debt Claim Form'' (see Attachment 1), and attach a copy of the demand 
letter sent to the employee pursuant to Sec. 92.11 with a statement of 
the employee's response thereto, or, if a hearing was held pursuant to 
Sec. 92.13, attach a copy of the decision of the administrative law 
judge or other hearing

[[Page 619]]

official. The DOT creditor operating element shall certify that the 
employee owes the debt, the amount and basis of the debt, the date on 
which payment is due, the date the Government's right to collect the 
debt accrued, and that the Departmental regulations implementing 5 
U.S.C. 5514 have been approved by the Office of Personnel Management.
    (2) If the collection is to be made in voluntary or involuntary 
installments (see Attachment 1), the DOT creditor operating element 
shall also advise the paying agency of the amount of the installments 
and, if a date for the beginning of payments other than the next 
officially established pay period is required, the date of the first 
installment.
    (3) Unless the employee has voluntarily agreed to the salary offset 
in writing or, in the absence of such agreement, has signed a statement 
acknowledging receipt of the procedures required by 5 U.S.C. 5514(a)(2) 
and the writing or statement is attached to the debt claim form, the DOT 
creditor operating element shall also indicate the action(s) taken under 
5 U.S.C. 5514 and give the date(s) the action(s) were taken.
    (b) Submitting the request for recovery--(1) Current employees. The 
DOT creditor operating element shall submit the ``Debt Claim Form'' 
(Attachment 1) to the employee's paying agency.
    (2) Employees who are separating or have separated --(i) Employees 
who are in the processs of separating. If the employee is in the process 
of separating, the DOT creditor operating element shall submit its debt 
claim (Attachment 1) to the employee's paying agency for collection as 
provided in Sec. 92.31 of this part. The paying agency is required to 
certify the total amount of its collection made or to be made prior to 
separation and notify the DOT creditor operating element and the 
employee as provided in Sec. 92.41 (b)(2)(iii). If the paying agency is 
aware that the employee is entitled to payments from the Civil Service 
Retirement and Disability Fund, or other similar payments, it shall 
advise the DOT operating element and send a copy of the debt claim and 
certification to the agency responsible for making such payments as 
notice that a debt is outstanding.
    (ii) Employees who have already separated. If the employee has 
already separated and all payments due from his or her former paying 
agency have been paid, the DOT operating element may request, unless 
otherwise prohibited for example by court order, that monies which are 
due and payable to the employee from the Civil Service Retirement and 
Disability Fund (5 CFR 831.1801 et seq.) or other similar funds, be 
administratively offset in order to collect the debt (see 31 U.S.C. 3716 
and the FCCS).
    (iii) Employees who transfer from one paying agency to another. If, 
after the DOT creditor operating element has submitted the debt claim to 
the employee's paying agency, the employee transfers to a position 
served by a different paying agency before the debt is collected in 
full, the paying agency from which the employee separates shall certify 
the total amount of the collection made on the debt. One copy of the 
certification shall be furnished to the employee and another to the DOT 
operating element along with notice of the employee's transfer. The 
original of the debt claim form shall be inserted in the employee's 
official personnel folder along with a copy of the certification of the 
amount which has been collected. Upon receiving the official personnel 
folder, the new paying agency shall, in accordnce with the DOT operating 
element's properly certified claim, resume the collection from the 
employee's current pay account and notify the employee and the DOT 
creditor operating element of the resumption. The DOT operating element 
is not required to repeat the required collection procedures from the 
beginning in order to resume the collection. However, it shall be the 
responsibility of the DOT creditor operating element to review the debt 
upon receiving the former paying agency's notice of the employee's 
transfer to make sure the collection is resumed by the new paying 
agency.



Sec. 92.43  Requests for recovery when the Department is the paying agency.

    (a) Incomplete request for recovery. If the request for recovery 
received by

[[Page 620]]

the chief of the accounting or finance office of the appropriate DOT 
operating element is incomplete in any respect (see Sec. 92.21(b)) 
including, but not limited to, the failure to certify in writing that 
the employee owes the debt, the amount and basis of the debt, the date 
on which payment(s) is due, the date the creditor agency's right to 
collect the debt first accrued, and that the creditor agency's 
regulations implementing 5 U.S.C. 5514 were approved by OPM, the request 
shall be returned to the creditor agency with a statement of the 
deficiency. No action to implement salary offset may be initiated until 
a complete request has been received.
    (b) Complete request for recovery. If a complete request for 
recovery is received by the chief of the accounting or finance office of 
the appropriate DOT operating element, a copy of the request and any 
supporting documentation shall be transmitted to the appropriate payroll 
office, and deductions shall be scheduled to begin at the next 
officially established pay interval. A copy of the request and any 
supporting documentation shall be provided to the debtor, along with a 
notice of the date deductions will begin.
    (c) The DOT operating element may not review the merits of the 
creditor agency's determination with respect to the amount or validity 
of the debt as stated in the request for recovery.



Sec. 92.45  Other debt collections.

    Separate rules exist for general collection of debts owed the United 
States under 31 U.S.C. 3711, 3716-18; 4 CFR Ch. II.

[[Page 621]]

[GRAPHIC] [TIFF OMITTED] TC02FE91.213


[[Page 622]]





PART 93--AIRCRAFT ALLOCATION--Table of Contents




Sec.
93.1  Issuance of aircraft allocations.
93.3  Reporting requirements.

    Authority: Sec. 9, 80 Stat. 944; 49 U.S.C. 1657.



Sec. 93.1  Issuance of aircraft allocations.

    From time to time, the Director, Office of Emergency Transportation, 
issues planning orders allocating aircraft to the Department of Defense, 
identified by FAA registration number, for the Civil Reserve Air Fleet 
Program, or as a reserve fleet for use in certain contingencies in the 
Civil Reserve Air Fleet Program of the Department of Defense. The 
current listing of aircraft allocations may be obtained upon request 
from the Director, Office of Emergency Transportation, Department of 
Transportation, Washington, DC 20590.

[32 FR 20778, Dec. 23, 1967, as amended by Amdt. 93-1, 33 FR 7821, May 
29, 1968]



Sec. 93.3  Reporting requirements.

    In the event any aircraft identified in the allocations in effect:
    (a) Is destroyed or suffers major damage the owner or operator, or 
both, shall give immediate notice thereof to the Director, Office of 
Emergency Transportation; or
    (b) Is sold, leased, or otherwise transferred, the transferor or 
owner, or both, shall give immediate notice thereof to the Director, 
Office of Emergency Transportation, together with full information 
concerning the identity of the transferee, the date and place of 
transfer, and the terms and conditions of the transfer.

[32 FR 20778, Dec. 23, 1967]



PART 95--ADVISORY COMMITTEES--Table of Contents




Sec.
95.1  Applicability.
95.3  Definitions.
95.5  Use of advisory committees generally.
95.7  Industry advisory committees: Membership.
95.9  Meetings; other than industry advisory committees.
95.11  Meetings; industry advisory committees.
95.13  Antitrust laws.
95.15  Conflicts of interest statutes, orders, and regulations.

    Authority: Sec. 9, 80 Stat. 944 (49 U.S.C. 1657); E.O. 11007, 3 CFR, 
1959-1963 Comp., p. 573.

    Source: 33 FR 467, Jan. 12, 1968, unless otherwise noted.



Sec. 95.1  Applicability.

    (a) This part prescribes uniform regulations governing the formation 
and use of advisory committees by the Office of the Secretary of 
Transportation, the U.S. Coast Guard, the Federal Aviation 
Administration, the Federal Highway Administration, the Federal Railroad 
Administration, the Urban Mass Transportation Administration, the 
National Highway Traffic Safety Administration, and the St. Lawrence 
Seaway Development Corporation. It does not apply to the National 
Transportation Safety Board.
    (b) This part applies to advisory committees formed or used by the 
organizations named in paragraph (a) of this section. It also applies to 
those organizations whenever they affiliate with, participate in, or use 
similar advisory committees formed or used by other departments or 
agencies of the Executive Branch of the Government, unless specifically 
exempted under paragraph (c) of this section. Advisory committees whose 
membership includes ``consultants and advisers'' are subject to this 
part regardless of whether those members are considered to be Government 
employees on the days they attend committee meetings.
    (c) This part does not apply to:
    (1) Any advisory committee the purpose, composition, and operation 
of which is specified by statute, unless and to the extent that statute 
authorizes the President to prescribe regulations for the committee's 
formation and use.
    (2) Any advisory committee composed wholly of representatives of 
State or local agencies or of charitable, religious, educational, civic, 
social welfare, or similar nonprofit organizations.
    (3) Any local, regional, or national committee whose only function 
is to disseminate information for public agencies, or any local civil 
committee whose primary function is to perform a

[[Page 623]]

public service, other than giving advice or making recommendations to 
the Government.

[33 FR 467, Jan. 12, 1968, as amended by Amdt. 95-2, 35 FR 5331, Mar. 
31, 1970; Amdt. 95-3, 36 FR 431, Jan. 13, 1971]



Sec. 95.3  Definitions.

    For the purposes of this part:
    (a) Advisory committee includes any committee, board, commission, 
council, conference, panel, task force, or other similar group, or any 
subcommittee, or other subgroup thereof, which is formed within the 
Department in the interest of obtaining advice or recommendations, or 
for any other purpose, and which is not composed wholly of officers or 
employees of the Government. It also includes any committee, board, 
commission, council, conference, panel, task force, or other similar 
group, or any subcommittee or subgroup thereof, which is not formed 
within the Department, but only during the period it is being used by 
the Department in the same manner as a Government-formed advisory 
committee.
    (b) Industry advisory committee includes any advisory committee 
composed predominately of members or representatives of a single 
industry or group of related industries, or any subdivision of a single 
industry, made on a geographic, service, or product basis.
    (c) Department means Department of Transportation.
    (d) Secretary means the Secretary of Transportation.



Sec. 95.5  Use of advisory committees generally.

    (a) Advisory committees are formed to provide a means of obtaining 
advice, views, and recommendations of benefit to the operations of the 
Government from industrialists, businessmen, scientists, engineers, 
educators, and other public and private citizens whose experience and 
talents would not otherwise be available to the Department. An advisory 
committee may be used when its counsel is desired on matters under 
consideration by any part of the Department. Unless specifically 
authorized by law to the contrary, no advisory committee may be used for 
functions which are not solely advisory. Determinations of action to be 
taken with respect to matters upon which an advisory committee advises 
or recommends may be made only by a full-time, salaried officer or 
employee of the Government.
    (b) An advisory committee may be established to serve the Department 
as a whole, the Office of the Secretary, any operating administration, 
any combination of the Office of the Secretary and the operating 
administrations, or the operating administrations collectively. However, 
no advisory committee may be formed or used unless (1) the committee is 
specifically authorized by law, or (2) the committee is specifically 
approved, in writing, by the Secretary or his designee, to be in the 
public interest in connection with the performance of duties imposed on 
the Department or any part of it.



Sec. 95.7  Industry advisory committees: Membership.

    Each industry advisory committee must be reasonably representative 
of the group of industries, the single industry, or the product segment 
thereof to which it relates, taking into account the size and function 
of business enterprises in the industry or industries and their 
location, affiliation, and competitive status among other factors. 
Selection of industry members shall, unless otherwise provided by 
statute, be limited to persons actively engaged in operations in the 
particular industry, industries, or segments concerned, except in cases 
in which the Secretary or his designee considers that such a limitation 
would interfere with effective committee operations.



Sec. 95.9  Meetings; other than industry advisory committees.

    (a) Meetings of an advisory committee, other than an industry 
advisory committee, may be held only at the call, or with the advance 
approval, of a full-time, salaried officer or employee of the 
Department, with an agenda formulated or approved by that officer or 
employee.
    (b) Each meeting shall be chaired by, or be conducted in the 
presence of, a full-time, salaried officer or employee of the Government 
who is required to

[[Page 624]]

adjourn the meeting whenever he considers it to be in the public 
interest.
    (c) Minutes shall be kept of each meeting. As a minimum, the minutes 
must contain a record of the persons present, a description of the 
matter discussed and conclusions reached, and a copy of any report 
received, issued, or approved by the committee. The accuracy of all 
minutes must be certified by a full-time, salaried officer or employee 
of the Government who was present during the meeting to which the 
minutes pertain.
    (d) The Secretary or his designee may waive any requirement of this 
section in any case in which he determines that:
    (1) Compliance with that requirement would interfere with the proper 
functioning of the committee or would be impracticable;
    (2) Adequate provisions are made to assure otherwise that the 
operation of the committee is subject to Government control and purpose; 
and
    (3) The waiver is in the public interest.



Sec. 95.11  Meetings; industry advisory committees.

    (a) Meetings of an industry advisory committee may be held only at 
the call of a full-time, salaried officer or employee of the Department, 
with an agenda formulated by that officer or employee.
    (b) Each meeting shall be chaired by a full-time, salaried officer 
or employee of the Government who is required to adjourn the meeting 
whenever he considers it to be in the public interest. The Secretary or 
his designee may waive the requirements of this paragraph in any case in 
which he determines that:
    (1) Compliance with that requirement would interfere with the proper 
functioning of the committee or would be impracticable;
    (2) Adequate provisions are made to assure otherwise that the 
operation of the committee is subject to Government control and purpose;
    (3) The waiver is in the public interest; and
    (4) The meeting will be conducted in the presence of a full-time, 
salaried officer or employee of the Government who is required to 
adjourn the meeting whenever he considers it to be in the public 
interest.
    (c) A verbatim transcript shall be kept of the proceedings at each 
meeting, including the name of each person present, his affiliation, and 
the capacity in which he attended, except in any case in which the 
Secretary or his designee determines that a verbatim transcript would 
interfere with the proper functioning of the committee or would be 
impracticable and therefore waives the requirement as being in the 
public interest. In such a case the procedure prescribed in Sec. 95.9(c) 
applies.
    (d) No industry advisory committee may receive, compile, or discuss 
data or reports showing the current or projected commercial operations 
of any identified business enterprise.

[33 FR 467, Jan. 12, 1968, as amended by Amdt. 95-1, 33 FR 6913, May 3, 
1968]



Sec. 95.13  Antitrust laws.

    The activities of advisory committees are subject to the antitrust 
laws and committee members are not immune from prosecution under those 
laws. The Department of Justice takes the position that it retains 
complete freedom to institute proceedings, either civil or criminal, or 
both, in the event that any particular plan or course of action is used 
to accomplish unlawful private ends, and to institute civil actions to 
enjoin continuance of any act or practices found not to be in the public 
interest and persisted in after notice to desist. This part is intended 
to minimize the possibility of violating the antitrust laws. Industry 
representatives and Government personnel officially connected with 
advisory committees should be advised of the antitrust aspects of the 
committee activity.



Sec. 95.15  Conflicts of interest statutes, orders, and regulations.

    There is a body of statutes, orders, and regulations prescribed by 
the President, the Secretary, and other authorities, dealing with 
conflicts of interest and designed to prevent any conflict between the 
official duties and

[[Page 625]]

status of Government officers and employees and their private interest. 
Government officers and employees are required to comply with all 
applicable laws, orders, and regulations. Part 99 of this chapter sets 
forth a comprehensive list of the conflicts of interest statutes and 
guidelines for the employees of the Department to follow in the 
application of these statutes to part-time advisers and consultants to 
the Government. Any officer or employee appointed to serve on an 
advisory committee who has any doubt or question respecting a possible 
conflict of interest shall seek specific legal advice on his individual 
situation.



PART 98--ENFORCEMENT OF RESTRICTIONS ON POST-EMPLOYMENT ACTIVITIES--Table of Contents




          Subpart A--Administration of Enforcement Proceedings

Sec.
98.1  Purpose.
98.2  Definitions.
98.3  Reports of apparent violations.
98.4  Initiation of administrative disciplinary proceeding.
98.5  Former employee response to notice.
98.6  Examiner.
98.7  Hearing.
98.8  Decision by examiner.
98.9  Decision if hearing waived.
98.10  Appeal.
98.11  Final administrative decision.

                   Subpart B--Administrative Sanctions

98.12  Administrative sanctions.

                       Subpart C--Judicial Review

98.13  Judicial review.

    Authority: 18 U.S.C. 207; Pub. L. 96-28.

    Source: 48 FR 12383, Mar. 24, 1983, unless otherwise noted.



          Subpart A--Administration of Enforcement Proceedings



Sec. 98.1  Purpose.

    The purpose of this part is to set forth the administrative 
enforcement procedures that the Department of Transportation will follow 
when there is an allegation that a former employee of the Department has 
violated 18 U.S.C. 207.



Sec. 98.2  Definitions.

    For the purposes of this part, the following definitions apply:
    (a) Administration means each of the following:
    (1) The United States Coast Guard.
    (2) The Federal Aviation Administration.
    (3) The Federal Highway Administration.
    (4) The Federal Railroad Administration.
    (5) The National Highway Traffic Safety Administration.
    (6) The Urban Mass Transportation Administration.
    (7) The Saint Lawrence Seaway Development Corporation.
    (8) The Research and Special Programs Administration.
    (9) The Maritime Administration.
    (b) Department means the Department of Transportation.
    (c) 18 U.S.C. 207 means 18 U.S.C. 207 (a), (b), or (c) or any 
regulations issued under 18 U.S.C. 207.
    (d) Secretary means the Secretary of Transportation.



Sec. 98.3  Reports of apparent violations.

    Any person may report, to the Assistant General Counsel for 
Environmental, Civil Rights and General Law, an apparent violation by a 
former employee of the Department of 18 U.S.C. 207.



Sec. 98.4  Initiation of administrative disciplinary proceeding.

    (a) Whenever the Assistant General Counsel for Environmental, Civil 
Rights and General Law has determined that there is reasonable cause to 
believe that a former Departmental employee has violated 18 U.S.C. 207, 
the Assistant General Counsel for Environmental, Civil Rights, and 
General Law:
    (1) Shall expeditiously provide that information to the Director, 
Office of Government Ethics, and to the Criminal Division, Department of 
Justice; and
    (2) After coordinating any proceeding with the Criminal Division, 
Department of Justice, to avoid prejudicing criminal proceedings, may 
institute an administrative disciplinary proceeding in accordance with 
this part.

[[Page 626]]

    (b) The person who shall provide for the prosecution of the alleged 
violation in an administrative disciplinary proceeding under this part 
(hereinafter referred to as the ``Departmental counsel'') is:
    (1) In a case where the last Departmental employer of the alleged 
violator is the Office of the Secretary, the Assistant General Counsel 
for Environmental, Civil Rights and General Law, or his or her designee; 
or
    (2) In a case where the last Departmental employer of the alleged 
violator is an administration, the Chief Counsel, or his or her 
designee, for that administration.
    (c) Before beginning an administrative disciplinary proceeding, the 
Departmental counsel shall provide the former employee with actual 
notice of the institution of a proceeding. This notice must include:
    (1) A statement of allegations and the basis for those allegations, 
which statement must be sufficiently detailed to enable the former 
employee to prepare an adequate defense;
    (2) Notification of the right to a hearing;
    (3) An explanation of the method by which a hearing may be 
requested; and
    (4) A statement of the possible sanctions that may be imposed if a 
violation by the former employee is found to have occurred.



Sec. 98.5  Former employee response to notice.

    (a) Within 30 working days after service of a notice pursuant to 
Sec. 98.4(c), the former employee may submit to the Departmental counsel 
in writing:
    (1) A request for a hearing, which, if not all issues are disputed 
by the former employee, should specify those issues that are;
    (2) Any evidence and arguments in lieu of a hearing or
    (3) A statement that the allegations are true and set forth any 
factors that should be considered in determining the administrative 
sanction to be imposed.
    (b) The Department shall deem the right to a hearing to have been 
waived by the former employee if the former employee does not submit a 
request under paragraph (b)(1) of this section within 30 working days 
after service of notice pursuant to Sec. 98.4(c).



Sec. 98.6  Examiner.

    (a) The presiding official at a hearing held under this part and the 
deciding official under Sec. 98.9 of this part (hereinafter referred to 
as the ``examiner'') shall be designated by the Secretary.
    (b) The examiner shall not have been involved in any of the events 
specified in the allegations, shall not have been involved in the 
investigation of the allegations and the institution of the proceedings 
under this part, and shall not be or have been employed by the 
administration, or the Office of the Secretary if applicable, in which 
the alleged violation occurred.



Sec. 98.7  Hearing.

    (a) The examiner shall, within 30 working days of a request for a 
hearing under Sec. 98.5(b), schedule the hearing for a reasonable time, 
date, and place. The examiner shall grant any delays or continuances 
that the examiner determines to be necessary and appropriate for fair 
resolution of the case, with due regard to the former employee's need 
for adequate time to prepare a defense and for expeditious resolution of 
allegations that may be damaging to that former employee's reputation.
    (b) The following rights shall be granted to a former employee who 
requests a hearing under Sec. 98.5(b):
    (1) To represent oneself or to be represented by counsel.
    (2) To introduce and examine witnesses and to submit physical 
evidence.
    (3) To confront and cross-examine adverse witnesses.
    (4) To present oral argument.
    (5) To obtain a transcript or recording of the hearing on request 
from the official reporter upon payment of the fees fixed therefor.
    (c) In a hearing under this part, the Federal Rules of Civil 
Procedure and Evidence do not apply. However, the examiner may make such 
orders and determinations regarding discovery, admissibility of 
evidence, conduct of examination and cross-examination, and similar 
matters the examiner deems necessary or appropriate to ensure 
orderliness in the proceedings and fundamental fairness to the parties.

[[Page 627]]



Sec. 98.8  Decision by examiner.

    (a) In a hearing under Sec. 98.7 of this part, the Departmental 
counsel must establish a violation by a preponderance of the evidence.
    (b) The examiner shall make a decision exclusively on matters of 
record in the proceeding and shall set forth in the decision:
    (1) All findings of fact relevant to the matters at issue;
    (2) All conclusions of law relevant to the matters at issue; and
    (3) The sanction to be imposed, if any.



Sec. 98.9  Decision if hearing waived.

    (a) If the former employee waives or, in accordance wth Sec. 98.5(b) 
of this part, is deemed to have waived a hearing under this part, the 
examiner shall, after review of the record as it exists, make a decision 
as to whether the former employee is in violation of 18 U.S.C. 207.
    (b) In a decision under paragraph (a) of this section, the 
requirements of Sec. 98.8 of this part apply.



Sec. 98.10  Appeal.

    (a) Within 30 working days after receipt of a decision issued under 
Sec. 98.8 or Sec. 98.9 of this part, either the Departmental counsel or 
the former employee may appeal the decision to the Secretary.
    (b) In making a decision on an appeal, the Secretary shall consider 
only the evidence admitted during the prior proceeding and contained in 
the record of that proceeding.
    (c) If the Secretary modifies or reverses the initial decision, the 
Secretary shall specify the findings of fact and conclusions of law that 
are different from those of the examiner.



Sec. 98.11  Final administrative decision.

    The final administrative decision under this part shall be:
    (a) The decision of the examiner under Sec. 98.8(b), if there is no 
appeal under Sec. 98.10;
    (b) The decision by the examiner under Sec. 98.9, if a hearing is 
waived or is deemed to have been waived and there is no appeal under 
Sec. 98.10; or
    (c) The decision of the Secretary on an appeal under Sec. 98.10.



                   Subpart B--Administrative Sanctions



Sec. 98.12  Administrative sanctions.

    (a) The Secretary, in decisions under Sec. 98.10 of this part, and 
the examiner, in decisions under Sec. 98.8 and Sec. 98.9 of this part, 
may impose an administrative sanction against a former employee who, 
after a final administrative decision under this part, is found to be in 
violation of 18 U.S.C. 207.
    (b) The administrative sanctions that may be imposed under 
subsection (a) of this section are:
    (1) Prohibiting the former employee from making, on behalf of any 
other person except the United States, any formal or informal appearance 
before, or, with the intent to influence, any oral or written 
communication to, the Department of any of its administrations on any 
matter of business for a period not to exceed five years; or
    (2) Taking other appropriate disciplinary action, such as a 
reprimand or suspension from participation in a particular matter or 
matters before the Department.



                       Subpart C--Judicial Review



Sec. 98.13  Judicial review.

    Any former employee found to have violated 18 U.S.C. 207 by a final 
administrative decision under this part may seek judicial review of 
disciplinary action imposed under this part.



PART 99--EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




                           Subpart A--General

Sec.
99.735-1  Cross-reference to ethical conduct standards and financial 
          disclosure regulations.

                        Subparts B-E  [Reserved]

   Subpart F--Responsibilities of the Government Employee and Special 
     Government Employee Following Departure From Government Service

99.735-80  Applicability.
99.735-81  Post-employment duties and responsibilities.

[[Page 628]]


Appendix A--Categories of Financial Interests Exempted from the 
          Prohibitions of Section 208(a) of Title 18, United States Code
Appendix B-D  [Reserved]
Appendix E--Statutes Regulating Post-Employment Responsibilities of 
          Government and Special Government Employees

    Authority: 49 U.S.C. 322; E.O. 12674, 54 FR 15159, 3 CFR, 1989 
Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 
Comp., p. 306.

    Source: Amdt. 99-10, 42 FR 3119, Jan. 14, 1977, unless otherwise 
noted.



                           Subpart A--General



Sec. 99.735-1  Cross-reference to ethical conduct standards and financial disclosure regulations.

    Employees of the Department of Transportation are subject to the 
executive branch-wide Standards of Ethical Conduct at 5 CFR part 2635, 
the Department of Transportation regulations at 5 CFR part 6001 which 
supplement the executive branch-wide standards and the executive branch-
wide financial disclosure regulations at 5 CFR part 2634.

[61 FR 39904, July 31, 1996]



                        Subparts B--E [Reserved]



   Subpart F--Responsibilities of the Government Employee and Special 
     Government Employee Following Departure From Government Service



Sec. 99.735-80  Applicability.

    The provisions of this subpart apply only to employees who 
terminated government service before January 1, 1991.

[58 FR 7995, Feb. 11, 1993]



Sec. 99.735-81  Post-employment duties and responsibilities.

    The duties and obligations of a Government employee (or a special 
Government employee) do not end when government service terminates by 
retirement, resignation, or for any other reason. In fact the U.S. Code 
sets forth specific criminal penalties for certain activities by former 
Government employees. To summarize broadly, section 207 of title 18, 
U.S. Code, prohibits a former Government employee from acting as agent 
or attorney in various types of proceedings and matters on behalf of a 
non-Government party when the employee was involved in the subject 
matter while working for the Government. The duration and nature of the 
prohibitions depend in part on the depth of the employee's involvement 
in the matter while in Government service. Section 208 of the same title 
relates to activities performed while a Government employee that benefit 
an employee's prospective private employer. All Government employees and 
special Government employees should become familiar with the provisions 
of the two statutory sections cited, which have been made a part of this 
regulation as appendix E, so that they will be aware of the restrictions 
which might affect them upon their termination from the Government 
service.

    Appendix A--Categories of Financial Interests Exempted From the 
     Prohibitions of Section 208(a) of Title 18, United States Code

    I. (a) Pursuant to the authority of section 208(b) of title 18, 
United States Code, the following are exempted from the prohibitions of 
section 208(a) of title 18, United States Code, because they are too 
remote or too inconsequential to affect the integrity of an employee's 
services in any matter in which he may act in his governmental capacity.
    (1) Any holding in a widely held mutual fund, or regulated 
investment company, which does not specialize in an industry in which 
the possibility of conflict arise.
    (2) Continued participation in a bona fide pension, retirement, 
group life, health, or accident insurance plan or other employee welfare 
or benefit plan that is maintained by a business or nonprofit 
organization by which the employee was formerly employed, to the extent 
that the employee's rights in the plans are vested and require no 
additional services by him or further payments to the plans by the 
organization with respect to the services of the employee. In addition, 
to the extent that the welfare or benefit plan is a profit sharing or 
stock bonus plan, this exemption does not apply and the procedures 
prescribed in Sec. 99.735-15c (c) through (e) will apply to the interest 
of that employee in the plan.
    (3) Participation in an air carrier frequent flyers or substantially 
similar program that is available to the general public on the same 
terms and conditions and involves no direct financial interest in the 
carrier, such

[[Page 629]]

as stockholdings or similar types of investment interests.

[Amdt.99-10, 42 FR 3119, Jan. 14, 1977, as amended by Amdt. 99-14, 53 FR 
16414, May 9, 1988]

                        Appendix B-D  [Reserved]

  Appendix E--Statutes Regulating Post-Employment Responsibilities of 
               Government and Special Government Employees

    Note: This appendix applies only to employees who terminated 
government service before January 1, 1991.

Sec. 207  Disqualification of former officers and employees in matters 
          connected with former duties or offical responsibilities; 
          disqualification of partners.

    (a) Whoever, having been an officer or employee of the executive 
branch of the United States Government, of any independent agency of the 
United States, or of the District of Columbia, including a special 
Government employee, after his employment has ceased, knowingly acts as 
agent or attorney for anyone other than the United States in connection 
with any judicial or other proceeding, application, request for a ruling 
or other determination, contract, claim, controversy, charge, 
accusation, arrest, or other particular matter involving a specific 
party or parties in which the United States is a party or has a direct 
and substantial interest and in which he participated personally and 
substantially as an officer or employee, through decision, approval, 
disapproval, recommendation, the rendering of advice, investigation, or 
otherwise, while so employed, or
    (b) Whoever, having been so employed, within one year after his 
employment has ceased, appears personally before any court or department 
or agency of the Government as agent, or attorney for, anyone other than 
the United States in connection with any proceeding, application, 
request for a ruling or other determination, contract, claim, 
controversy, charge, accusation, arrest, or other particular matter 
involving a specific party or parties in which the United States is a 
party or directly and substantially interested, and which was under his 
official responsibility as an officer or employee of the Government at 
any time within a period of one year prior to the termination of such 
responsibility:
    Shall be fined not more than $10,000 or imprisoned for not more than 
two years, or both: Provided, That nothing in subsection (a) or (b) 
prevents a former officer or employee, including a former special 
Government employee, with outstanding scientific or technological 
qualifications from acting as attorney or agent or appearing personally 
in connection with a particular matter in a scientific or technological 
field if the head of the department or agency concerned with the matter 
shall make a certification in writing, published in the Federal 
Register, that the national interest would be served by such action or 
appearance by the former officer or employee.
    (c) Whoever, being a partner of an officer or employee of the 
executive branch of the United States Government, of any independent 
agency of the United States, or of the District of Columbia, including a 
special Government employee, acts as agent or attorney for anyone other 
than the United States, in connection with any judicial or other 
proceeding, application, request for a ruling or other determination, 
contract, claim, controversy, charge, accusation, arrest, or other 
particular matter in which the United States is a party or has a direct 
and substantial interest and in which such officer or employee of the 
Government or special Government employee participates or has 
participated personally and substantially as a Government employee 
through decision, approval, disapproval, recommendation, the rendering 
of advice, investigation or otherwise, or which is the subject of his 
official responsibility:
    Shall be fined not more than $5,000, or imprisoned not more than one 
year, or both.
    A partner of a present or former officer or employee of the 
executive branch of the United States Government, of any independent 
agency of the United States, or of the District of Columbia or of a 
present or former special Government employee shall as such be subject 
to the provisions of sections 203, 205, and 207 of this title only as 
expressly provided in subsection (c) of this section. (Added Pub. L. 87-
349, section 1(a), Oct. 23, 1962, 76 Stat. 1123.)

Sec. 203  Acts affecting a personal financial interest.

    (a) Except as permitted by subsection (b) hereof, whoever, being an 
officer or employee of the executive branch of the United States 
Government, of any independent agency of the United States, or of the 
District of Columbia, including a special Government employee, 
participates personally and substantially as a Government officer or 
employee, through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation, or otherwise, in a judicial or other 
proceeding, application, request for a ruling or other determination, 
contract, claim, controversy, charge, accusation, arrest, or other 
particular matter in which, to his knowledge, he, his spouse, minor 
child, partner, organization in which he is serving as officer, 
director, trustee, partner or employee, or any person or organization 
with whom he is

[[Page 630]]

negotiating or has any arrangement concerning prospective employment, 
has a financial interest:
    Shall be fined not more than $10,000, or imprisoned not more than 
two years, or both.
    (b) Subsection (a) hereof shall not apply (1) if the officer or 
employee first advises the Government official responsible for 
appointment to his position of the nature and circumstances of the 
judicial or other proceeding, application, request for a ruling or other 
determination, contract, claim, controversy, charge, accusation, arrest, 
or other particular matter and makes full disclosure of the financial 
interest and receives in advance a written determination made by such 
official that the interest is not so substantial as to be deemed likely 
to affect the integrity of the services which the Government may expect 
from such officer or employee, or (2) if, by general rule or regulation 
published in the Federal Register, the financial interest has been 
exempted from the requirements of clause (1) hereof as being too remote 
or too inconsequential to affect the integrity of Government officers' 
or employees' services. (Added Pub. L. 87-849, section 1(a), Oct. 23, 
1962, 76 Stat. 1124.)
    New 18 U.S.C. 208. This section forbids certain actions by an 
officer or employee of the Government in his role as a servant or 
representative of the Government. Its thrust is therefore to be 
distinguished from that of sections 203 and 205 which forbid certain 
actions in his capacity as a representative of persons outside the 
Government.
    Subsection (a) in substance requires an officer or employee of the 
executive branch, an independent agency or the District of Columbia, 
including a special Government employee, to refrain from participating 
as such in any matter in which, to his knowledge, he, his spouse, minor 
child or partner has a financial interest. He must also remove himself 
from a matter in which a business or nonprofit organization with which 
he is connected or is seeking employment has a financial interest.
    Subsection (b) permits the agency of an officer or employee to grant 
him an ad hoc exemption from subsection (a) if the outside financial 
interest in a matter is deemed not substantial enough to have an effect 
on the integrity of his services. Financial interests of this kind may 
also be made nondisqualifying by a general regulation published in the 
Federal Register.
    Section 208 is similar in purpose to the former 18 U.S.C. 434 but 
prohibits a greater variety of conduct than the ``transaction of 
business with * * * [a] business entity'' to which the prohibition of 
section 434 was limited. In addition, the provision in section 208 
including the interests of a spouse and others is new, as is the 
provision authorizing exemptions for insignificant interest.

[Amdt. 99-10, 42 FR 3119, Jan. 14, 1977, as amended by 58 FR 7995, Feb. 
11, 1993]

  Appendix to Subtitle A--United States Railway Association--Employee 
                      Responsibilities and Conduct

                           Subpart A--General

Sec.
1    Purpose and policy.
3    Definitions.
5    Applicability.

 Subpart B--Ethical and Other Conduct and Responsibilities of Employees

7    General.
9    Gifts, entertainment, and favors.
11    Outside employment and other activities.
13    Financial interests.
15    Conflicts of interest.
17    Disqualification arising from personal financial interests.
19    Use of Association property or official title.
21    Misuse of information.
23    Indebtedness.
25    Miscellaneous provisions.

       Subpart C--Statements of Employment and Financial Interest

31    Employees required to submit statement.
33    Time and place for submission of employee statements.
35    Supplementary statements.
37    Committee on Commerce, information not known by employee.
39    Information not required.
41    Confidentiality of employee's statement.
43    Interpretation and advisory service.

  Subpart D--Disqualification of Former Employees in Matters Connected 
  with Former Duties or Official Responsibilities; Disqualification of 
                                Partners

51    Matters in which employee participated personally and 
          substantially.
53    Matters under employee's official responsibility.
55    Employee with outstanding scientific or technological 
          qualifications.
57    Partner of employee.

Appendix 1--Categories of Financial Interests Exempted from the 
          Prohibitions of Sections 13(a), 15, and 17(a)
Appendix 2--List of Employees Required to Submit Statements of 
          Employment and Financial Interests, Under Section 31 
          [Reserved]


[[Page 631]]


    Authority: Sec. 202(a)(5)(2) of the Regional Rail Reorganization Act 
of 1973 (Pub. L. 93-236).

    Source: 39 FR 3825, Jan. 30, 1974.

                           Subpart A--General

    Section 1. Purpose and policy. (a) These regulations implement Pub. 
L. 93-236, The Regional Rail Reorganization Act of 1973. They prescribe 
standards of ethical and other conduct, and reporting requirements, for 
employees of the United States Railway Association (the Association). 
The standards and requirements are appropriate to the particular 
functions and activities of the Association.
    (b) The absence of a specific published standard of conduct covering 
an act tending to discredit an employee of the Association does not mean 
that the act is condoned, is permissible, or would not call for and 
result in corrective or disciplinary action.
    (c) Personnel of the Association shall observe standards of conduct 
that will reflect credit on the Association.
    Sec. 3. Definitions. Unless the context requires otherwise, the 
following definitions apply in these regulations:
    ``Association'' means the United States Railway Association 
established by Pub. L. 93-236.
    ``Chairman'' means the Chairman of the Board of Directors of the 
Association.
    ``Employee'' means an officer or employee of the Association.
    ``General Counsel'' means the General Counsel of the Association, or 
his designee.
    ``Includes'' means ``includes but is not limited to.''
    ``May'' is used in a permissive sense to state authority or 
permission to do the act prescribed, and the words ``a person may not * 
* *'' mean that a person is not required, authorized, or permitted to do 
the act prescribed.
    ``Shall'' is used in an imperative sense.
    Sec. 5. Applicability. These regulations apply to each employee of 
the Association.

 Subpart B--Ethical and Other Conduct and Responsibilities of Employees

    Sec. 7. General. (a) Each employee shall avoid any action, whether 
or not specifically prohibited by these regulations, which might result 
in or create the appearance of:
    (1) Using his Association office for private gain;
    (2) Giving preferential treatment to any person;
    (3) Impeding the efficiency or economy of the Association;
    (4) Losing complete independence or impartiality;
    (5) Making an Association decision outside of official channels; or
    (6) Affecting adversely the confidence of the public in the 
integrity of the Association.
    (b) An employee may not engage in criminal, infamous, dishonest, 
immoral, or notoriously disgraceful conduct, or any conduct prejudicial 
to the integrity of the Association.
    Sec. 9. Gifts, entertainment, and favors. (a) Except as provided in 
paragraphs (b) and (c) of this section, an employee may not solicit or 
accept, directly or indirectly, any gift, gratuity, favor, 
entertainment, food, lodging, loan, or other thing of monetary value, 
from a person or employer of a person who:
    (1) Has, or is seeking to obtain, contractual or other business or 
financial relationships with the Association.
    (2) Has interests which may be substantially affected by the 
performance or nonperformance of that employee's official duties.
    (b) Notwithstanding paragraph (a) of this section, an employee may:
    (1) Accept a gift, gratuity, favor, entertainment, loan, or other 
thing of value when the circumstances make it clear that an obvious 
family relationship rather than the business of the persons concerned is 
the motivating factor;
    (2) Accept food or refreshment of nominal value on infrequent 
occasions in the ordinary course of a luncheon or dinner meeting or 
other meeting or on an inspection tour if the employee is properly in 
attendance;
    (3) Accept unsolicited advertising or promotional material such as 
pens, pencils, note pads, calendars, or other items of nominal intrinsic 
value; or
    (4) Accept an invitation addressed to the Association, when approved 
by the General Counsel, to participate in an inaugural trip or similar 
ceremonial event related to transportation, and accept food, lodging, 
and entertainment incident thereto.
    (c) An employee may not solicit a contribution from another employee 
for a gift to an official superior, make a donation as a gift to an 
official superior, or accept a gift from an employee receiving less pay 
than himself. However, this paragraph does not prohibit a voluntary gift 
of nominal value or a donation in a nominal amount made on a special 
occasion such as marriage, illness, retirement, or transfer.
    Sec. 11. Outside employment and other activities. (a) An employee 
may not engage in any outside employment or other outside activity which 
is not compatible with the full and proper discharge of the duties and 
responsibilities of his employment with the Association. Incompatible 
activities include:
    (1) Acceptance of a fee, compensation, gift, payment of expenses, or 
any other thing of monetary value in circumstances in which acceptance 
may result in, or create the appearance of, a conflict of interest; and

[[Page 632]]

    (2) Outside employment which tends to impair his mental or physical 
capacity to perform his duties and responsibilities of his employment 
with the Association in an acceptable manner.
    (b) An employee may not receive any salary or anything of monetary 
value from a private source as compensation for his services to the 
Association.
    (c) This section does not preclude an employee from participating in 
the affairs of, or accepting an award for a meritorious public 
contribution or achievement given by a charitable, religious, 
professional, social, or fraternal organization, a nonprofit educational 
or recreational organization, or a public service or civic organization.
    Sec. 13. Financial interests. (a) Except where authorized by statute 
or these regulations, an employee may not have a direct or indirect 
financial interest that conflicts substantially, or appears to conflict 
substantially, with his Association duties and responsibilities. In any 
case in which such a question of financial interest arises the 
procedures set forth in section 17 apply.
    (b) The fact that an employee is on leave of absence from employment 
with or has served as an attorney or consultant to, a railroad, or a 
company engaged in the manufacture, construction, or supply of railroad 
facilities and equipment, or a creditor of a railroad, shall not, of 
itself, be deemed to be a financial interest conflicting with his 
Association duties or responsibilities. This provision does not affect 
the obligation of such an employee to submit a statement of employment 
and financial interest as required by section 31(a)(1).
    (c) The fact that an employee owns shares of stock, corporate bonds, 
or other corporate securities in any single railroad, or a company 
engaged in the manufacture, construction or supply of railroad 
facilities and equipment, or a creditor of a railroad, having a current 
aggregate market value of $10,000 or more, or an option to purchase such 
securities, shall not, in itself, be deemed to be a financial interest 
conflicting with his Association duties or responsibilities. Such 
ownership must, however, be reported in a special statement of financial 
interest, in a manner specified by the General Counsel, which shall be 
available for public inspection.
    Sec. 15. Conflicts of interest. (a) Except where specifically 
exempted by statute or these regulations, a conflict of interest exists 
whenever the performance of the duties of an employee has or appears to 
have a direct and predictable effect upon a financial interest of such 
employee or of his spouse, minor child, partner, or person or 
organization with which he is associated or is negotiating for future 
employment.
    (b) A conflict of interest exists even though there is no reason to 
suppose that the employee will, in fact, resolve the conflict to his own 
personal advantage rather than to that of the Association.
    Sec. 17. Disqualification arising from personal financial interests. 
(a) Except as stated in paragraph (e) of this section, or except as 
permitted by statute, an employee may not participate personally and 
substantially as an employee, through decision, approval, disapproval, 
recommendation, the rendering of advice, investigation or otherwise, in 
a judicial or other proceeding, application, request for a ruling or 
other determination, contract, claim controversy, charge, accusation, or 
other particular matter in which, to his knowledge, he, his spouse, 
minor child, a blood relative who is a resident of the employee's 
household, partner, organization in which he is serving as officer, 
director, trustee, partner or employee, or any person or organization 
with whom he is negotiating or has any arrangement concerning 
prospective employment, has a financial interest, unless he shall cause 
the financial interest involved to be divested, or request a 
determination of the propriety of his participation in any matter by 
informing the General Counsel of the nature and circumstances of the 
matter and financial interest involved.
    (b) After examining the information submitted the General Counsel 
may:
    (1) Relieve the employee from participation in the matter and, if 
possible, reassign it to another employee who is not subordinate to the 
relieved employee;
    (2) Approve the employee's participation upon determining in writing 
that the interest involved is not so substantial as to be likely to 
affect the integrity of the services the Association may expect from the 
employee;
    (3) Recommend the reassignment of the employee; or
    (4) If none of these alternatives is feasible, direct the employee 
to cause the financial interest to be divested so that it no longer 
comes within the scope of this section.
    (c) In any case in which the General Counsel has reason to believe 
that an employee may have an interest that would be disqualifying under 
this section, he shall discuss the matter with the employee. If he finds 
that the interest exists, he may take any of the actions stated in 
paragraph (b) of this section.
    (d) In any case in which the employee is dissatisfied with the 
General Counsel's decision, the employee may appeal the matter to the 
Chairman of the Association for reconsideration and final determination 
of the appropriate action.
    (e) Information concerning categories of financial interests which 
are exempted from the prohibitions of Secs. 13(a), 15, and paragraph (a) 
of this section as being too remote or too inconsequential to affect the 
integrity of an

[[Page 633]]

employee's interest in a matter, are set forth in Appendix 1.
    Sec. 19. Use of Association property or official title. (a) An 
employee may not, directly or indirectly, use or allow the use of 
Association property of any kind, including property leased to the 
Association, for other than an officially approved activity. Each 
employee has a positive duty to protect and conserve Association 
property, including equipment, supplies, and other property entrusted or 
issued to him.
    (b) An employee may not, directly or indirectly, use or allow the 
use of his title or position in connection with any commercial 
enterprise or in endorsing any commercial product or service.
    Sec. 21. Misuse of information. An employee may not, for the purpose 
of furthering a private interest, directly or indirectly, use or allow 
the use of official information obtained through or in connection with 
his Association employment, if that information has not been made 
available by the Association to the general public.
    Sec. 23. Indebtedness. Each employee shall pay his just financial 
obligations in a proper and timely manner, especially those imposed by 
law such as Federal, State, or local taxes. For the purposes of this 
section ``just financial obligations'' means those that are recognized 
as such by the employee or reduced to a judgment by a court, and ``in a 
proper and timely manner'' means in a manner which the Association 
determines does not, under the circumstances, reflect adversely on the 
Association as his employer. The Association will not determine the 
validity or amount of a disputed debt and will not initiate action to 
collect such debts.
    Sec. 25. Miscellaneous provisions. (a) Each employee shall acquaint 
himself with these regulations which relate to his ethical and other 
conduct as an employee of the Association.
    (b) In the appointment of personnel and in assignment of their 
duties, the President of the Association shall take steps to avoid, to 
as great an extent as possible, any conflict between the Association 
duties and the private interests of such personnel.

       Subpart C--Statements of Employment and Financial Interest

    Sec. 31. Employees required to submit statement. (a) Each of the 
following employees shall submit a statement of employment and financial 
interest on a form provided by the Association:
    (1) Each employee who within the preceding two years was employed by 
or served as an attorney or consultant to, a railroad or a company 
significantly engaged in the manufacture, construction or supply of 
railroad facilities and equipment, including, but not limited to, 
rolling stock, terminal facilities, signal equipment, track and road 
bed, and electrical and communication transmission equipment. The 
General Counsel shall decide, in a doubtful case, whether the 
relationship to the railroad industry is sufficiently significant as to 
require submission of a statement of employment and financial interest.
    (2) Each employee who is in a position identified in Appendix 2.
    (b) Any employee who believes that his position has been improperly 
included as one requiring the submission of a statement of employment 
and financial interest is entitled to have that inclusion reviewed by 
the General Counsel.
    (c) Any employee in a position which meets the criteria in paragraph 
(a) of this section may be excluded from the reporting requirements of 
this section if the General Counsel determines that the duties of the 
position are at such a level of responsibility that the submission of a 
statement is not necessary because of the degree of supervision and 
review and the remote or inconsequential effect on the integrity of the 
Association.
    Sec. 33. Time and place for submission of employee statements. Each 
employee who is subject to the reporting requirements of sec. 31 shall 
submit his employment and financial interest statement to the General 
Counsel within 30 days after entering the employ of the Association.
    Sec. 35. Supplementary statements. (a) Each employee shall, not 
later than July 31 of each year, file a supplementary statement, 
showing, as of June 30 of that year, any change in, or addition to, the 
information contained in his statement of employment and financial 
interest. If changes or additions have not occurred, a negative report 
is required.
    (b) Compliance with the reporting requirements of this subpart is 
not an alternative to observance of the conflict-of-interest provisions 
of subpart B of these regulations, but is to facilitate uniform 
compliance with, and the orderly administration of subpart B.
    Sec. 37. Committee on Commerce, Information not known by employee. 
If any information required to be included on a statement of employment 
and financial interest or a supplementary statement, including any 
holding placed in trust, is not known to the employee but is known to 
another person, the employee shall request that other person to submit 
the information on his behalf, and the employee shall so notify the 
General Counsel.
    Sec. 39. Information not required. An employee is not required to 
submit on a statement of employment and financial interest or 
supplementary statement any information relating to his connection with, 
or interest in, a professional society, or a charitable, religious, 
social, fraternal, recreational, public service, civic, or political

[[Page 634]]

organization, or a similar organization not conducted as a business 
enterprise. For the purposes of this section, educational and other 
institutions doing research and development or related work involving 
grants of money from or contracts with the Association are considered to 
be ``business enterprises'' and are required to be included in the 
employee's statement of employment and financial interest.
    Sec. 41. Confidentiality of employee's statement. (a) Except for 
special statements of financial interest required by sec. 13(c) each 
statement of employment and financial interest and each supplementary 
statement shall be held in confidence. The reviewing officials and 
others who receive statements are responsible for maintaining them in 
confidence and shall not allow access to, or allow information to be 
disclosed from, a statement except to carry out the purposes of these 
regulations. Information may not be disclosed to any person outside the 
Association, except as the General Counsel may determine for good cause 
shown. No disclosure permitted by this paragraph may be made unless the 
affected employee has been notified that disclosure is contemplated, and 
the employee is given an opportunity to present reasons and arguments to 
maintain the confidentiality of the statement.
    (b) Each statement of employment and financial interest and each 
supplementary statement shall be maintained in the records of the 
Association.
    Sec. 43. Interpretation and advisory service. The General Counsel 
shall provide authoritative counseling and interpretations to employees 
who require advice and guidance on questions of conflicts of interest or 
any other matters of legal import covered by these regulations.

  Subpart D--Disqualification of Former Employees in Matters Connected 
  with Former Duties or Official Responsibilities; Disqualification of 
                                Partners

    Sec. 51. Matters in which employee participated personally and 
substantially. Except as permitted by sec. 55 hereof, an employee of the 
Association, after his employment has ceased, may not act as agent or 
attorney for anyone other than the Association in connection with any 
judicial or other proceeding, application, request for a ruling or other 
determination, contract claim, controversy, charge, accusation, arrest, 
or other particular matter involving a specific party or parties, in 
which the Association is a party or has a direct and substantial 
interest and in which he participated personally and substantially as an 
employee, through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation, or otherwise, while so employed.
    Sec. 53. Matters under employee's official responsibility. Except as 
permitted by sec. 55 hereof, an employee of the Association may not, 
within one year after his employment has ceased, appear personally 
before the Association or any court or department or agency of the 
Government as agent, or attorney, for anyone other than the Association 
in connection with any proceeding, application, request for a ruling or 
other determination, contract, claim, controversy, charge, accusation, 
arrest, or other particular matter involving a specific party or 
parties, in which the Association is a party or directly and 
substantially interested, and which was under his official 
responsibility as an officer or employee of the Association at any time 
within a period of one year prior to the termination of such 
responsibility.
    Sec. 55. Employee with outstanding scientific or technological 
qualifications. A former employee with outstanding scientific or 
technological qualifications may act as attorney or agent or appear 
personally in connection with a particular matter in a scientific or 
technological field if the General Counsel certifies in writing, in 
advance, that the public interest would be served by such action or 
appearance.
    Sec. 57. Partner of employee. A partner of an employee of the 
Association may not act as agent or attorney for anyone other than the 
Association, in connection with any judicial or other proceeding, 
application, request for a ruling or other determination, contract, 
claim, controversy, charge, accusation, arrest, or other particular 
matter in which the Association is a party or has a direct and 
substantial interest and in which such employee of the Association 
participates personally and substantially as an employee through 
decision, approval, disapproval, recommendation, the rendering of 
advice, investigation or otherwise, or which is the subject of his 
official responsibility.

    Appendix 1--Categories of Financial Interests Exempted From the 
              Prohibitions of Sections 13(a), 15, and 17(a)

    I. (a) The following are exempted from the prohibitions of sections 
13(a), 15, and 17(a), because they are too remote or too inconsequential 
to affect the integrity of an employee's services in any matter in which 
he may act in his official capacity.
    (1) Any holding in a widely held mutual fund, or regulated 
investment company, which does not specialize in the transportation 
industry.
    (2) Ownership of shares of stock and of corporate bonds or other 
corporate securities, if the current aggregate market value of the 
stocks and other securities so owned in any single corporation is less 
than $10,000 and is less than one percent of the outstanding stock of 
the organization concerned, and if the employee, his spouse, or minor 
children

[[Page 635]]

are not active in the management of the organization and have no other 
connection with or interest in it.
    (3) Continued participation in a bona fide pension, retirement, 
deferred compensation, group life, health, or accident insurance plan or 
other employee welfare or benefit plan that is maintained by a business 
or nonprofit organization by which the employee was formerly employed, 
to the extent that the employee's rights in the plans are vested and 
require no additional services by him. To the extent the welfare or 
benefit plan is a profit sharing or stock bonus plan, this exemption 
does not apply.
    (b) Notwithstanding paragraph 1(a)(2), the interest of an employee, 
whose position is listed in section II of this appendix, shall not be 
exempt from the prohibitions of sections 13(a), 15, and 17(a), with 
respect to any stock or other security holding in an organization to 
which he is assigned, or for which he has specific responsibility as a 
part of his regular duties, for conducting inspections or issuing 
certificates, waivers, exemptions, or approvals.
    II. The following is a list of positions to which the exemption in 
paragraph 1(a)(2) of this appendix does not apply. This list may be 
amended at any time by the Association.
    [To be supplied]

     Appendix 2--List of Employees Required to Submit Statements of 
      Employment and Financial Interest Under Section 31 [Reserved]

[39 FR 3825, Jan. 30, 1974]


[[Page 637]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 639]]

            Material Approved for Incorporation by Reference

                     (Revised as of October 1, 1998)

  The Director of the Federal Register has approved under 5 U.S.C. 
552(a) and 1 CFR Part 51 the incorporation by reference of the following 
publications. This list contains only those incorporations by reference 
effective as of the revision date of this volume. Incorporations by 
reference found within a regulation are effective upon the effective 
date of that regulation. For more information on incorporation by 
reference, see the preliminary pages of this volume.


49 CFR (PARTS 1-99)

OFFICE OF THE SECRETARY, DEPARTMENT OF TRANSPORTATION
                                                                  49 CFR


American National Standards Institute (ANSI)

  11 West 42nd St., New York, NY 10036 Telephone: 
  (212) 642-4900
  Available from: Office of Environment and 
  Safety, DOT, 400 7th St., SW, Washington, DC 
  20590.
ANSI A117.1-61 (R 71), American National Standard            27.5; 27.67
  Specifications for Making Buildings and 
  Facilities Accessible to, and Usable by, the 
  Physically Handicapped..


Interagency Land Acquisition Conference

  Superintendent of Documents, U.S. Government 
  Printing Office, Washington, DC 20402, Telephone 
  202-512-1800
Uniform Appraisal Standards for Federal land                      25.260
  Acquisition (1972 Edition), Stock No. 5259-
  0002..



[[Page 641]]



                    Table of CFR Titles and Chapters




                   (Revised as of September 29, 1998)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)

[[Page 642]]

      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture

[[Page 643]]

         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
      XIII  Northeast Dairy Compact Commission (Parts 1300--1399)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  [Reserved]

[[Page 644]]

    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Meat and Poultry 
                Inspection, Department of Agriculture (Parts 300--
                599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)

[[Page 645]]

        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Thrift Depositor Protection Oversight Board (Parts 
                1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700-1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)

[[Page 646]]

        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)

[[Page 647]]

        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development, International 
                Development Cooperation Agency (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)
        VI  United States Arms Control and Disarmament Agency 
                (Parts 600--699)
       VII  Overseas Private Investment Corporation, International 
                Development Cooperation Agency (Parts 700--799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 648]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Multifamily Housing Assistance 
                Restructuring, Department of Housing and Urban 
                Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs and Section 202 Direct Loan Program) 
                (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

[[Page 649]]

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)

[[Page 650]]

       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)

[[Page 651]]

       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100-1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

[[Page 652]]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400-1499)

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)

[[Page 653]]

        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300.99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)

[[Page 654]]

        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)

[[Page 655]]

       III  Coast Guard (Great Lakes Pilotage), Department of 
                Transportation (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)

[[Page 656]]

        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 657]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 659]]





           Alphabetical List of Agencies Appearing in the CFR




                   (Revised as of September 29, 1998)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 660]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Arms Control and Disarmament Agency, United       22, VI
     States
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I`
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII

[[Page 661]]

  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1

[[Page 662]]

Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               4, II
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302

[[Page 663]]

  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes Pilotage                              46, III
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Multifamily Housing Assistance Restructuring    24, IV
       Office
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II

[[Page 664]]

  Mines, Bureau of                                30, VI
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, United States        22, II; 48, 7
       Agency for
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II

[[Page 665]]

Mines, Bureau of                                  30, VI
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Multifamily Housing Assistance Restructuring      24, IV
     Office
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XII, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Dairy Compact Commission                7, XIII
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17

[[Page 666]]

  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Prisons, Bureau of                                28, V
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Depositor Protection Oversight Board       12, XV
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I

[[Page 667]]

  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
Transportation, Office of                         7, XXXIII
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 669]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven 
separate volumes.

                                  1986

49 CFR
                                                                   51 FR
                                                                    Page
Subtitle A
1  Authority citation revised........................12618, 12619, 29471
1.4  (k) (3) and (5) removed; (k) (4), (6), and (7) redesignated 
        as (k) (3) through (5); new (k)(5) amended.................29471
1.22  (f) revised..................................................29232
    (a), (b), (e), and (f) revised; introductory text republished 
                                                                   34218
1.23  (f) revised..................................................29232
    (a) and (b) revised............................................34219
1.44  (m)(12) and (13) revised; (m)(14) through (19) added.........12619
    (r) added......................................................29232
1.45  (a) introductory text, (9), and (12) revised; (c), (d), and 
        (e) added..................................................29233
1.46  (pp) added...................................................12619
1.47  (a) and (p) revised..........................................20831
1.48  (a), (e), (f), (g), (k), (p), (w), (x), and (z) revised; 
        (d), (h), and (v) removed..................................12618
    (cc), (dd), and (ee) added.....................................29234
1.56  (j) introductory text and (1) revised........................20831
    (i)(1) revised.................................................34219
1.57a  Existing text designated as (a); (b) added..................20831
    Revised........................................................32320
1.59  Introductory text, (a) heading, (b) (1) through (3) and (6), 
        (c) (1) through (3) introductory text, (5) and (7) through 
        (9), and (h) through (n) revised; (c) (10) through (13) 
        and (o) added..............................................29232
    (p) added......................................................29234
1.59a  Added.......................................................29233
1.67  (a)(1) revised...............................................29471
1.69  Removed......................................................34219
1  Appendix A amended..............................................29233
25  Revised.........................................................7022
27  Authority citation revised.....................................19017
27.5  Amended......................................................19017
27.67  (d) revised.................................................19017
27.71  (a)(1) and (2) introductory text, (v), (ix), and (xii) 
        amended....................................................19017
27.73  (a)(1)(i) and (ii) introductory text and (L) amended........19017
27.75  (a)(1) amended..............................................19017
27.71--27.76 (Subpart D)  Heading amended..........................19017
27.77  Removed.....................................................19017
27.71--27.77 (Subpart D)  Appendix B removed.......................19017
27.81--27.103 (Subpart E)  Added...................................19018
71  Authority citation revised.....................................41631
71.1  (c) revised..................................................41631
71.2  (a) revised..................................................41631

[[Page 670]]

                                  1987

49 CFR
                                                                   52 FR
                                                                    Page
Subtitle A
1.44  (j) revised...................................................3012
1.45  (a)(4) revised...............................................46365
1.46  (ff) and (gg) revised........................................47007
1.48  (gg) added...................................................46365
    (ff) added.....................................................46479
    Technical correction...........................................47097
1.49  Introductory text republished; (bb) added....................24164
1.56  (k) added....................................................30688
1.57  (r) added....................................................18917
1.59  (q) added.....................................................9864
1  Appendix A amended...............................................1916
23  Authority citation revised.....................................39229
23.45  (e) amended; (f)(3) added; (g)(4) revised...................39230
23.47  (e) revised; (f) added......................................39230
23.61--23.69 (Subpart D)  Authority citation removed...............39229
23.61  (a) and (b) amended.........................................39230
23.62  Amended.....................................................39230
23.63  Revised.....................................................39231
23.61--23.69 (Subpart D)  Appendix A amended.......................39231
24  Added; interim.................................................47997
25  Authority citation revised.....................................48027
    Removed; eff. 4-2-89...........................................48028
25.1  Heading revised; (a) and (b) redesignated as (a) (1) and 
        (2); introductory text designated as new (a) introductory 
        text; new (a) heading and (b) added........................48027
29  Revised; interim...............................................39057

                                  1988

49 CFR
                                                                   53 FR
                                                                    Page
Subtitle A
1.45  (e)(2) revised...............................................15845
1.47  (q) added....................................................10251
1.48  (cc) revised; (dd) and (ee) removed..........................10251
    Introductory text, (b) introductory text, and (c) introductory 
text republished; (b) (29) and (34), (c) (1) and (2), (q), (s), 
and (cc) revised; (c)(20) and (v) added; (i) removed...............15845
1.50  Revised......................................................23122
7  Revised.........................................................30268
18  Added.....................................................8086, 8087
18.10  (a)(3) added.................................................8086
18.20  (d) added....................................................8086
18.21  (j) and (k) added............................................8086
18.22  (c), (d), and (e) added......................................8086
18.24  (b) (8), (9), and (10) and (c)(3) added......................8086
18.25  (g) (4) through (7) added....................................8087
18.31  (d) added....................................................8087
18.36  (j) through (t) added........................................8087
18.40  (c)(1) added.................................................8087
18.41  (f) added....................................................8087
23  Authority citation revised.....................................18286
23.61  (a) and (b) amended.........................................18286
23.62  Amended.....................................................18286
23.63  (d) added...................................................18286
23.64  (b)(2), (c), and (e) introductory text and (2) amended......18286
23.65  Amended.....................................................18286
23.68  (e)(2) amended..............................................18286
23.61--23.69 (Subpart D)  Appendix A amended.......................18287
24  Technical correction.............................................467
29  Revised; nomenclature change; eff. 10-1-88..............19203, 19204
29.105  (g)(3), (t)(3), (w), and (x) added; eff. 10-1-88...........19203
29.120  Added; eff. 10-1-88........................................19203
29.215  (a) added; eff. 10-1-88....................................19204
29.315  (a)(1) added; eff. 10-1-88.................................19204
29.510  (b)(1)(i) added; eff. 10-1-88..............................19204
30  Added..........................................................19916
31  Added............................................................881
40  Added; interim.................................................47004
89  Revised; eff. 1-23-89..........................................51238
92  Added...........................................................4171
92.9  (a) revised..................................................51279
99  Authority citation revised.....................................16414
99  Appendix A amended.............................................16414

                                  1989

49 CFR
                                                                   54 FR
                                                                    Page
Subtitle A
1.46  (qq) added...................................................26378
    (rr) added.....................................................35191
1.49  Introductory text republished; (cc) added.....................8747
    Introductory text republished; (dd) added......................38233
1.57  (q) removed..................................................38233
1.57b  Added.......................................................10010
1.59a  (c)(6) added................................................46616
1.63  (a) removed..................................................10010
7.1  (d) amended...................................................10010
7  Appendix A amended..............................................10010

[[Page 671]]

24  Revised.........................................................8928
24.1  (b) corrected................................................24712
24.2  (a)(1) and (g)(2)(i) corrected...............................24712
24.101  (a)(2) amended.............................................24712
24.105  (c) and (d)(2) corrected...................................24712
24.601  Corrected..................................................24712
24.603  (b) corrected..............................................24712
24  Appendix A corrected...........................................24712
    Appendix B corrected...........................................24712
25  Removal at 52 FR 48027 confirmed; see regulation codified at 
        49 CFR 24...................................................8912
27.99  (b)(5) removed..............................................31041
29  Heading and authority citation revised..........................4966
    Technical correction............................................6363
29.305  (c) (3) and (4) amended; (c)(5) added; interim..............4966
29.320  (a) revised; interim........................................4966
29.600--29.635 (Subpart F)  Added; interim..........................4966
29  Appendix C added; interim.......................................4966
40  Revised........................................................49866
89  Authority citation revised.....................................28680
89.33  Removed.....................................................28680
89.37--89.47 (Subpart C)  Added....................................28681

                                  1990

49 CFR
                                                                   55 FR
                                                                    Page
1.22  (a) and (e) amended..........................................40662
1.23  (e) amended; (i) removed.....................................40662
1.45  (a)(14) added................................................40662
1.46  (ss) added...................................................30235
1.53  (a)(8), (e), and (h) added...................................40662
    (e) correctly designated; (h)(2) corrected.....................47165
1.64  Removed......................................................40663
20  Added; interim............................................6737, 6756
27.19  Added.......................................................40763
27.85  (a)(3) removed..............................................40764
27.95  (a) amended.................................................40764
27.97  Revised.....................................................40764
27.99  Removed.....................................................40764
29.305  Regulation at 54 FR 4950, 4963 confirmed...................21705
29.320  Regulation at 54 FR 4950, 4963 confirmed...................21705
29.600--29.635  (Subpart F) Revised.........................21688, 21705
29  Appendix C revised......................................21690, 21705
37  Added..........................................................40775
40  Drug testing seminar...........................................43133
    Drug testing custody and control form transition period end....46669
71.7  (d) revised; eff. 10-28-90...................................30914

                                  1991

49 CFR
                                                                   56 FR
                                                                    Page
Subtitle A
1.45  (a)(5) amended...............................................18526
1.46  (tt) added....................................................4736
    (vv) added......................................................9635
    (uu) added.....................................................13773
    (t) revised....................................................31346
1.47  (r), (s) and (t) added........................................4561
    (k) revised....................................................31346
1.48  (hh) added....................................................6810
    (t) removed; (u) revised; (ii) added...........................31346
1.49  (ee) added....................................................6810
    (ff) added.....................................................25050
    (r) removed; (s) revised; (gg) added...........................31346
    (hh) added.....................................................47004
1.50  (m) added.....................................................6810
1.53  (i) added.....................................................6811
    (e) amended....................................................18526
    Heading and (b)(1) revised; (b)(2) removed; (b)(3) and (4) 
redesignated as (b)(2) and (3); new (b)(4) and (j) added...........31346
1.66  (w) added.....................................................6810
    (x) added......................................................22121
    (a) revised; nomenclature change...............................59893
1.67  Nomenclature change..........................................59893
1.69  Added.........................................................5958
11  Added...................................................28012, 28023
11.101  (b)(5) corrected...........................................29756
11.103  (f) corrected..............................................29756
27  Response to comments............................................6811
    Authority citation revised.....................................45621
    Nomenclature change; eff. 10-7-91..............................45621
27.3  Existing text designated as (a); (b) added; eff. 10-7-91.....45621
27.5  Amended; eff. 10-7-91........................................45621
27.19  (a) revised; eff. 10-7-91...................................45621
27.31--27.38 (Subpart B)  Removed; eff. 1-26-92....................45621
27.61--27.67 (Subpart C)  Removed; eff. 1-26-92....................45621
27.67  (d) removed; eff. 10-7-91...................................45621
27.71--27.75 (Subpart D)  Redesignated as Subpart B; eff. 1-26-92 
                                                                   45621

[[Page 672]]

27.73  Removed; eff. 10-7-91.......................................45621
27.71--27.75 (Subpart D)  Appendix removed; eff. 10-7-91...........45621
27.81-27.103 (Subpart E)  Removed; eff. 10-7-91....................45621
27.121--27.129 (Subpart F)  Redesignated as Subpart C; eff. 1-26-
        92.........................................................45621
28  Added..........................................................37296
37  Interpretations................................................13258
37  Revised; eff. 10-7-91..........................................45621
37.13  Revised.....................................................64215
38  Added; eff. 10-7-91............................................45756
40  Drug testing conferences................................30512, 33882
    Meeting........................................................46126
71.5  (b) revised..................................................52003

                                  1992

49 CFR
                                                                   57 FR
                                                                    Page
Subtitle A
1  Technical correction............................................10062
1.44  (o)(6) and (p) removed........................................8582
1.45  (a)(8) revised...............................................27947
1.46  (l), (m), (z) and (ll) revised................................8582
    (ww) added.....................................................40620
1.48  (jj) added...................................................62484
1.49  (ii) added...................................................62484
1.53  (k) added.....................................................8582
1.53  (k) redesignated as (k)(1); new (k)(2) added.................62484
1.59  (c)(5) revised...............................................27947
1.66  (y) added.....................................................8582
23  Authority citation revised.....................................18410
23.89--23.111 (Subpart F)  Added...................................18411
24  Authority citation revised.....................................33266
24.103  (d) redesignated in part as (d)(1); (d)(2) added; eff. 12-
        31-92......................................................33266
    (d)(2) corrected...............................................53295
71.7  (a) revised..................................................48339
81  Removed........................................................60728

                                  1993

49 CFR
                                                                   58 FR
                                                                    Page
Subtitle A
1  Authority citation revised.......................................6898
1.22  (a) revised...................................................6897
1.23  (i) revised; (p) and (q) added................................6897
1.26(a)(8) redesignated as (a)(9); new (a)(8) added.................6897
    (a)(7), (8) and (9) revised.....................................6897
1.45  (a)(3) amended, (15) and (16) added...........................6898
    (a)(17) added...................................................6899
1.46  (m) revised...................................................6194
    (xx) added.....................................................12543
1.48  (jj) added.....................................................503
    (jj) revised....................................................6194
1.49  (ii) revised..................................................6194
1.53  (l) added.....................................................5631
    (k) revised.....................................................6194
    (l) corrected..................................................16914
1.56  (k) removed...................................................5632
1.59  (c)(6) amended................................................6898
1.68  (c) added....................................................18018
7  Appendix D revised..............................................65824
9  Revised..........................................................6724
10  Authority citation revised.....................................67697
10.61  (a) amended.................................................67697
10  Appendixes A and D amended.....................................67697
24.2  (g)(2)(x) and (t) revised....................................26072
24.101  (a)(5) added...............................................26072
24.304  Introductory text, (a) introductory text, (3), (8) and 
        (10) revised; (a)(13) and (b)(3) removed; (b)(4) and (5) 
        redesignated as (b)(3) and (4).............................26072
24.602  Revised....................................................26072
24.603  (d) revised................................................26072
37  Nomenclature change............................................63101
37.3  Amended......................................................63101
37.7  (b) revised..................................................63101
37.9  (d) revised..................................................63102
37.47  (c)(1) revised..............................................63102
37.51  (c)(1) revised..............................................63102
37.87  (d) redesignated as (e); new (d) added......................63102
37.165  (g) revised................................................63103
37.167  (j) added..................................................63103
38  Authority citation revised.....................................63103
38.113  Amended....................................................63103
38.125  (d)(2) revised.............................................63103
41  Added..........................................................32871
89  Authority citation revised......................................6898
89.5  Introductory text amended.....................................6898
99  Authority citation revised......................................7995
99.735-1--99.735-5 (Subpart A)  Removed.............................7995
99.735-7--99.735-25 (Subpart B)  Removed............................7995
99.735-31--99.735-45 (Subpart C)  Removed...........................7995

[[Page 673]]

99.735-51--99.735-61 (Subpart D)  Removed...........................7995
99.735-71--99.735.77 (Subpart E)  Removed...........................7995
99.735-80  Added....................................................7995
99  Appendixes B, C and D removed; Appendix E amended...............7995

                                  1994

49 CFR
                                                                   59 FR
                                                                    Page
Subtitle A
1  Authority citation revised......................................40313
1.22  Revised......................................................10061
1.23  Revised......................................................10062
1.25  (b) amended..................................................10063
1.26  (a) revised..................................................10063
1.43  (c) amended...........................................10061, 10063
1.45  (e)(2) amended...............................................10061
1.46  (yy) added...................................................40314
1.47  (p)(2) amended...............................................10061
1.48  (cc) amended.................................................10061
1.56  Revised......................................................10063
1.56a  Revised.....................................................10063
1.56b  Added.......................................................10064
1.57  (q) added....................................................32134
1.57b  Heading revised.............................................10064
1.63  Heading and introductory text amended........................10064
1.65  (c)(1) amended...............................................10061
    (c) introductory text amended..................................10064
1.66  (x) removed; (z) added.......................................36988
7.11  Amended......................................................10061
7.53  (c) amended..................................................10061
7.97  (e) amended..................................................10061
8.11  (b)(1) amended........................................10061, 10064
10  Appendix A corrected...........................................13662
19  Added; interim.................................................15639
28.170  (i) amended................................................10061
37.9  (d)(1)(i)(B) and (ii) correctly designated...................46703
37.15  Added.......................................................17446
40  Authority citation revised......................................7354
40.1--40.19  Designated as Subpart A and revised....................7354
40.3  Amended......................................................43000
40.21--40.39  Designated as Subpart B...............................7355
40.23  (a) revised; eff. 2-16-95...................................43000
40.25  (f)(10) revised..............................................7355
    (c), (f)(10)(ii)(B), (C), (h) and (k) revised; (e)(2)(i) and 
(f)(13) amended....................................................43000
40.29  (b)(2) revised; (b)(3) added.................................7356
    (b)(1) redesignated as (b)(1)(i); (b)(1)(ii) and (n)(6) added; 
(e) table, (f) table and (g)(6) revised............................43001
40.33  (e), (f) and (g) revised; (h) redesignated as (i); new (h) 
        added.......................................................7356
40.51--40.83 (Subpart C)  Added.....................................7357
40.59  (b) revised; (c) amended....................................43001
40.63  (d)(1), (2), (3), (e)(2), (3) and (4) redesignated as 
        (d)(2), (3), (4), (e)(3), (4) and (2); new (d)(1) added; 
        new (e)(3) revised.........................................43001
40.65  (d), (e), (h)(2) and (3) revised; (h)(4) removed; (i)(2) 
        amended....................................................43002
40.79  (a)(3) amended..............................................43002
40.51--40.83 (Subpart C)  Appendix A redesignated as part 40 
        appendix B.................................................43013
40  Appendix A revised.............................................43002
    Appendix B redesignated from subpart C appendix A..............43013

                                  1995

49 CFR
                                                                   60 FR
                                                                    Page
Subtitle A
1.2  (j) added.....................................................30196
1.3  (b)(10) added.................................................30196
1.4  (l) added.....................................................30196
    (c)(6) and (7) amended; (c)(8) added...........................62762
1.22  (c) revised..................................................14226
    (f) revised....................................................15877
    (a) amended....................................................62762
1.23  (l) revised...................................................2891
    (n) removed....................................................62762
1.45  (a)(10) revised...............................................2891
    (a)(18) added..................................................14226
1.46  (a) removed; interim; eff. 10-30-95..........................38971
    (a) added......................................................56532
    (a) removed....................................................63450
1.47  (u), (v) and (w) added.......................................62762
1.49  (jj) added...................................................13639
1.52  (d) and (e) added; interim; eff. 10-30-95....................38971
    (d) and (e) stayed.............................................56532
    (d) and (e) reinstated.........................................63450
1.53  (g) removed..................................................30196
1.54  (b)(11) added.................................................2891
1.56a  (i) added...................................................11046

[[Page 674]]

    (f)(1) amended.................................................15877
1.56b  Amended.....................................................15877
1.57  (s) added....................................................15877
1.57a  Revised.....................................................15877
1.59  (b)(2) and (j) removed; (b)(3) through (9) and (k) through 
        (q) redesignated as (b)(2) through (8) and (j) through 
        (p); new (b)(4)(ii) removed.................................2891
1.61  (d) removed..................................................15877
1.66  (q) revised..................................................37372
    (k) revised....................................................48672
    (p) added......................................................63648
1.68  Removed......................................................62762
1.70  Added.........................................................2891
1.71  Added........................................................30196
10  Appendix A amended.............................................43983
18.6  (b)(1), (2), (c)(1) and (2) added............................19646
18.36  (d), (g), (h) and (i) revised........................19639, 19647
29  Authority citation revised.....................................33064
29.100  Revised; interim....................................33040, 33064
29.105  Amended; interim....................................33040, 33064
29.110  (c) revised; interim................................33041, 33064
29.200  Revised; interim....................................33041, 33064
29.215  Revised; interim....................................33041, 33064
29.220  Revised; interim....................................33041, 33064
29.225  Revised; interim....................................33041, 33064
29  Appendixes A and B revised; interim.....................33042, 33064
40.23  (a) revised.................................................19536
40.51  (c) amended.................................................19679
40.59  Heading revised; (c) removed................................19679
40.63  (d)(1) revised; (e)(4) removed; (e)(3) redesignated as 
        (e)(4); new (e)(3) and (h) added...........................19679
40.65  (b) amended.................................................19679
40.91--40.111 (Subpart D)  Added...................................19679
40  Appendix A amended.............................................19537

                                  1996

49 CFR
                                                                   61 FR
                                                                    Page
Subtitle A
1.44  (m)(3) and (4) removed.......................................34745
1.46  (zz) added....................................................3332
    (aaa) and (bbb) added..........................................34745
    (ccc) added....................................................55583
    (eee) added....................................................67477
    (ddd) added....................................................67952
1.48  Second (jj) redesignated as (d); (h) and (i) added...........68163
1.53  (b)(5) added.................................................68163
1.66  (v) added....................................................64030
1.71  (b) added....................................................68163
3  Authority citation revised......................................17578
3.3  Removed.......................................................17578
3.5  Removed.......................................................17578
18.26  (d) and (e) added...........................................21387
27  Authority citation revised.....................................32354
    Authority citation revised.....................................56424
    Nomenclature change............................................56424
27.5  Amended...............................................32354, 56424
27.19  Heading revised; (b) amended................................32354
27.71  Revised.....................................................56424
27.72  Added.......................................................56424
27.77  Added.......................................................56425
28.103  Amended....................................................32354
37  Technical correction...........................................26468
37.3  Amended......................................................25415
37.7  (b)(2)(ii) revised; (b)(2)(iii) removed......................25416
37.9  (d)(2)(ii) revised; (d)(2)(iii) removed......................25416
37.11  (a) amended.................................................25416
37.15  Revised..............................................39324, 39325
37.27  (b) revised.................................................25415
37.101  (e) added..................................................25416
37.127  (e) revised................................................25416
37.131  (b)(4) revised.............................................25416
37.135  (c) revised................................................25416
    (c)(1) corrected...............................................26468
37  Appendix D amended.............................................25416
38  Authority citation revised.....................................25415
    Technical correction...........................................26468
38.173  (a) and (d) amended........................................25416
40  Authority citation revised.....................................37699
40.3  Amended......................................................37224
40.25  (e)(2)(i)(A) and (B) amended; (f)(10)(iv) revised...........37699
40.33  (b)(2) removed; (c)(5) and (6) revised; (f) redesignated as 
        (f)(1); (f)(2) added.......................................37699
40.39  Revised.....................................................37016
79  Revised........................................................17578
90  Removed........................................................21387
99  Authority citation revised.....................................39904
99.735-1 (Subpart A)  Added........................................39904

                                  1997

49 CFR
                                                                   62 FR
                                                                    Page
Subtitle A
1.22  (a) revised..................................................51804
1.23  (q) added....................................................51804
1.26  (a)(8) revised...............................................55357
1.44  (o) revised..................................................11383

[[Page 675]]

1.46  (s) revised; (ll) amended....................................11383
    (hhh) added....................................................17100
    (fff) and (ggg) added..........................................19936
    (iii) through (lll) revised....................................38478
1.48  (kk) added...................................................28807
1.59  (d) revised..................................................16499
    (e)(9) added...................................................23661
1.64  Added........................................................16499
1.66  (x) added.....................................................2618
    (aa) added.....................................................11383
1.72  Added........................................................51804
6  Authority citation revised......................................19233
6.1  Amended.......................................................19233
6.3  Revised.......................................................19233
6.5  (a) revised...................................................19233
6.7  (a), (b)(1), (2) and (5) amended; (b)(6) added................19234
6.9  (a) and (b) revised; (c) and (d) added........................19234
6.11  (b) amended..................................................19234
6.25  (c) amended..................................................19234
7  Revised.........................................................19516
8  Revised.........................................................23661
10.1  (a) designation, (b), (c) and (d) removed....................23666
10.5  Amended......................................................23667
10.11  Amended.....................................................23667
10.13  (a) and (b) revised.........................................51804
10.23  Introductory text revised...................................23667
10.31  (a) revised.................................................23667
10.35  (a) introductory text revised; (a)(12) added................23667
10.37  Amended.....................................................23667
10.39  Revised.....................................................23667
10.41  Revised.....................................................23667
10.51  (c) and (h) revised.........................................23667
10.63  Introductory text revised...................................23667
10  Appendix A redesignated as Appendix; Appendixes B through J 
        removed....................................................23667
18.26  (a), (b) introductory text and (1) revised..................45939
    (a), (b) introductory text and (1) revised; (d) and (e) 
removed............................................................45947
19.26  (a), (b) and (c) revised.............................45939, 45947
27.72  (c)(2) corrected...............................................17
29.100  Regulation at 60 FR 33040 and 33064 confirmed..............15621
29.105  Regulation at 60 FR 33041 and 33064 confirmed..............15621
29.110  Regulation at 60 FR 33041 and 33064 confirmed..............15621
29.200  Regulation at 60 FR 33041 and 33064 confirmed..............15621
29.215  Regulation at 60 FR 33041 and 33064 confirmed..............15621
29.220  Regulation at 60 FR 33041 and 33064 confirmed..............15621
29.225  Regulation at 60 FR 33041 and 33064 confirmed..............15621
29  Regulation at 60 FR 33042 and 33064 confirmed..................15621
31.3  (a)(1) introductory text, (iv), (b)(1) introductory text and 
        (ii) revised................................................6720
40  Certification..................................................19057

                                  1998

  (Regulations published from January 1, 1998, through October 1, 1998)

49 CFR
                                                                   63 FR
                                                                    Page
Subtitle A
1  Authority citation revised......................................10782
1.46  (mmm) and (nnn) added........................................10782
    (ooo) added....................................................33590
1.52  (d) and (e) removed..........................................10782
1.58  (h) added....................................................33589
7  Revised.........................................................38331
10  Appendix amended..........................................2172, 4197
    Regulation at 63 FR 4197 eff. date corrected to 2-15-98.........7311
37  Authority citation revised.....................................51690
37.3  Amended; eff. 10-28-98.......................................51690
37.181--37.215 (Subpart H)  Added; eff. 10-28-98...................51690
38  Authority citation revised.....................................51702
38.31  (c) revised; eff. 10-28-98...........................51697, 51702
38.153  (c) revised; (d) added; eff. 10-28-98...............51698, 51702
38.157  (b) revised; eff. 10-28-98..........................51698, 51702
38.159  Added; eff. 10-28-98................................51698, 51703
38.161  Added; eff. 10-28-98................................51700, 51703
38  Figures 1 and 2 added; eff. 10-28-98....................51701, 51703
    Appendix A amended; eff. 10-28-98.......................51702, 51703


                                  
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