[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2003 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

   

                    15


          Parts 0 to 299

                         Revised as of January 1, 2003

Commerce and Foreign Trade





          Containing a codification of documents of general 
          applicability and future effect
          As of January 1, 2003
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register

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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003



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                            Table of Contents



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

  Title 15:
          Subtitle A--Office of the Secretary of Commerce            3
    Subtitle B--Regulations Relating to Commerce and Foreign 
      Trade
          Chapter I--Bureau of the Census, Department of 
          Commerce                                                 299
          Chapter II--National Institute of Standards and 
          Technology, Department of Commerce                       359
  Finding Aids:
      Table of CFR Titles and Chapters........................     447
      Alphabetical List of Agencies Appearing in the CFR......     465
      List of CFR Sections Affected...........................     475

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  15 CFR 0.735-1 
                       refers to title 15, part 
                       0, section 735-1.

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

[[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, January 1, 2003), 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 
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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, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

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). 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.
    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 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
[email protected].

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CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
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free). E-mail, [email protected].

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

January 1, 2003.

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                               THIS TITLE

    Title 15--Commerce and Foreign Trade is composed of three volumes. 
The parts in these volumes are arranged in the following order: parts 0-
299, 300-799, and part 800-End. The first volume containing parts 0-299 
is comprised of Subtitle A--Office of the Secretary of Commerce, 
Subtitle B, chapter I--Bureau of the Census, Department of Commerce, and 
chapter II--National Institute of Standards and Technology, Department 
of Commerce. The second volume containing parts 300-799 is comprised of 
chapter III--International Trade Administration, Department of Commerce, 
chapter IV--Foreign-Trade Zones Board, and chapter VII--Bureau of 
Industry and Security, Department of Commerce. The third volume 
containing part 800-End is comprised of chapter VIII--Bureau of Economic 
Analysis, Department of Commerce, chapter IX--National Oceanic and 
Atmospheric Administration, Department of Commerce, chapter XI--
Technology Administration, Department of Commerce, chapter XIII--East-
West Foreign Trade Board, chapter XIV--Minority Business Development 
Agency, chapter XX--Office of the United States Trade Representative, 
and chapter XXIII--National Telecommunications and Information 
Administration, Department of Commerce. The contents of these volumes 
represent all current regulations codified under this title of the CFR 
as of January 1, 2003.

[[Page x]]




[[Page 1]]



                  TITLE 15--COMMERCE AND FOREIGN TRADE




                   (This book contains parts 0 to 299)

  --------------------------------------------------------------------
                                                                    Part

SUBTITLE A--Office of the Secretary of Commerce.............           0

     SUBTITLE B--Regulations Relating to Commerce and Foreign Trade

chapter i--Bureau of the Census, Department of Commerce.....          30

chapter ii--National Institute of Standards and Technology, 
  Department of Commerce....................................         200

[[Page 3]]

             Subtitle A--Office of the Secretary of Commerce

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

Part                                                                Page
0               Employee responsibilities and conduct.......           5
1               The Seal of the Department of Commerce......          26
2               Procedures for handling and settlement of 
                    claims under the Federal Tort Claims Act          27

3

[Reserved]

4               Disclosure of government information........          29
4a              Classification, declassification and public 
                    availability of national security 
                    information.............................          59
5               Operation of vending stands.................          62
6               Civil monetary penalty inflation adjustments          64

7

[Reserved]

8               Nondiscrimination in federally-assisted 
                    programs of the Department of Commerce--
                    effectuation of Title VI of the Civil 
                    Rights Act of 1964......................          66

8a               Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..          81
8b              Prohibition of discrimination against the 
                    handicapped in federally assisted 
                    programs operated by the Department of 
                    Commerce................................          97
8c              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Commerce.............................         110
9               Procedures for a voluntary labeling program 
                    for household appliances and equipment 
                    to effect energy conservation...........         116
10              Procedures for the development of voluntary 
                    product standards.......................         119
11              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         129
12              Fair packaging and labeling.................         130

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13              Intergovernmental review of Department of 
                    Commerce programs and activities........         132
14              Uniform administrative requirements for 
                    grants and agreements with institutions 
                    of higher education, hospitals, other 
                    non-profit, and commercial organizations         135
15              Legal proceedings...........................         163
16              Procedures for a voluntary consumer product 
                    information labeling program............         174
17              Licensing of Government-owned inventions in 
                    the custody of the Department of 
                    Commerce................................         180
18              Attorney's fees and other expenses..........         181
19              Referral of debts to the IRS for tax refund 
                    offset..................................         189
20              Nondiscrimination on the basis of age in 
                    programs or activities receiving Federal 
                    financial assistance....................         190
21              Administrative offset.......................         196
22              Salary offset...............................         204
23              Use of penalty mail in the location and 
                    recovery of missing children............         209
24              Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............         212
25              Program.....................................         239
26              Governmentwide debarment and suspension 
                    (nonprocurement) and governmentwide 
                    requirements for drug-free workplace 
                    (grants)................................         254
27              Protection of human subjects................         273
28              New restrictions on lobbying................         284

[[Page 5]]



PART 0_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




                      Subpart A_General Provisions

Sec.
0.735-1 Purpose.
0.735-2 Relation to basic provisions.
0.735-3 Applicability.
0.735-4 Definitions.

                        Subpart B_General Policy

0.735-5 General principles.
0.735-6 Standards required in the Federal service.
0.735-7 Special requirements of the Department.
0.735-8 Limitations on private activities and interests.

          Subpart C_Statutory Limitations Upon Employee Conduct

0.735-9 Employee responsibilities.

         Subpart D_Regulatory Limitations Upon Employee Conduct

0.735-10 Administrative extension of statutory limitations.
0.735-10a Proscribed actions.
0.735-11 Gifts, entertainment, and favors.
0.735-12 Outside employment or other activity.
0.735-13 Financial interests.
0.735-14 Use of Government time or property.
0.735-15 Misuse of employment or information.
0.735-16 Indebtedness.
0.735-17 Gambling, betting, and lotteries.
0.735-18 General conduct prejudicial to the Government.
0.735-19 Reporting undue influence to superiors.

       Subpart E_Statements of Employment and Financial Interests

0.735-20 General provisions.
0.735-21 Form and content of statements.
0.735-22 Employees required to submit statements.
0.735-22a Employee's complaint on filing requirement.
0.735-23 Employees not required to submit statements.
0.735-24 Time and place for submission of original statements.
0.735-25 Supplementary statements.
0.735-26 Interests of employees' relatives.
0.735-27 Information not known by employees.
0.735-28 Information not required.
0.735-29 Confidentiality of employees' statements.
0.735-30 Relation of this part to other requirements.
0.735-31 Special Government employees.

                   Subpart F_Supplementary Regulations

0.735-32 Departmental.
0.735-33 Operating units.
0.735-34 Effective date of supplementary regulations.

                        Subpart G_Administration

0.735-35 Responsibilities of employees.
0.735-36 Responsibilities of operating units.
0.735-37 Procedure.
0.735-38 Availability for counseling.
0.735-39 Authorizations.
0.735-40 Disciplinary and other remedial action.
0.735-41 Inquiries and exceptions.

 Subpart H_Disciplinary Actions Concerning Post-Employment Conflict of 
                           Interest Violations

0.735-42 Scope.
0.735-43 Report of violations and investigation.
0.735-44 Initiation of proceedings.
0.735-45 Notice.
0.735-46 Hearing.
0.735-47 Decision absent a hearing.
0.735-48 Administrative appeal.
0.735-49 Sanctions.
0.735-50 Judicial review.

Appendix A to Part 0--Statutes Governing Conduct of Federal Employees
Appendix B to Part 0--Position Categories, Grade GS-13, and Above, 
          Requiring Statements of Employment and Financial Interests by 
          Incumbents
Appendix C to Part 0--Position Categories Below GS-13 Requiring 
          Statements of Employment and Financial Interests by Incumbents

    Authority: E.O. 11222 of May 8, 1965, 30 FR 6469, 3 CFR, 1965 Supp.; 
5 CFR 735.104, unless otherwise noted.

    Source: 32 FR 15222, Nov. 2, 1967, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  0.735-1  Purpose.

    The purpose of this part is to set forth Department of Commerce 
policy and procedure relating to employee responsibilities and conduct.



Sec.  0.735-2  Relation to basic provisions.

    (a) This part implements the following:

[[Page 6]]

    (1) The provisions of law cited in this part;
    (2) Executive Order 11222 of May 8, 1965 (3 CFR, 1965 Supp. p. 130);
    (3) Part 735 of the Civil Service regulations (5 CFR 735.101-
735.412, inclusive).
    (b) This part prescribe additional standards of ethical and other 
conduct and reporting requirements deemed appropriate in the light of 
the particular functions and activities of this Department.



Sec.  0.735-3  Applicability.

    This part applies to all persons included within the term 
``employee'' as defined in Sec.  0.735-4, except as otherwise provided 
in this part.



Sec.  0.735-4  Definitions.

    For purposes of this part, except as otherwise indicated in this 
part:
    (a) Employee. (1) Shall include: (i) Every officer and employee of 
the Department of Commerce (regardless of location), including 
commissioned officers of the Environmental Science Services 
Administration; and
    (ii) Every other person who is retained, designated, appointed, or 
employed by a Federal officer or employee, who is engaged in the 
performance of a function of the Department under authority of law or an 
Executive act, and who is subject to the supervision of a Federal 
officer or employee while engaged in the performance of the duties of 
his position not only as to what he does but also as to how he performs 
his duties, regardless of whether the relationship to the Department is 
created by assignment, detail, contract, agreement or otherwise.
    (2) Shall not include: (i) Members of the Executive Reserve except 
when they are serving as employees of the Department under the 
circumstances described in paragraph (a)(1) of this section;
    (ii) Members of crews of vessels owned or chartered to the 
Government and operated by or for the Maritime Administration under a 
General Agency Agreement; or
    (iii) Any other person who is determined legally not to be an 
officer or employee of the United States.
    (b) Special Government employee shall mean an employee as defined in 
paragraph (a) of this section who is retained, designated, appointed, or 
employed to perform with or without compensation, for not to exceed 130 
days during any period of 365 consecutive days, temporary duties on 
either a full-time or intermittent basis.
    (c) Personnel officer means a personnel official to whom the power 
of appointment is redelegated under Administrative Order 202-250.
    (d) Operating unit means, for purposes of this part, primary and 
constituent operating units designated as such in the Department Order 
Series of the Department of Commerce and, in addition, the Office of the 
Secretary.
    (e) Head of an operating unit, for the purposes of this part, 
includes the Assistant Secretary for Administration with respect to the 
performance of functions under this part for the Office of the 
Secretary.



                        Subpart B_General Policy



Sec.  0.735-5  General principles.

    Apart from statute, there are certain principles of fair dealing 
which have the force of law and which are applicable to all officers of 
the Government. A public office is a public trust. No public officer can 
lawfully engage in business activities which are incompatible with the 
duties of his office. He cannot, in his private or official character, 
enter into engagements in which he has, or can have, a conflicting 
personal interest. He cannot allow his public duties to be neglected by 
reason of attention to his private affairs. Such conflicts of interest 
are not tolerated in the case of any private fiduciary, and they are 
doubly proscribed for a public trustee. (40 Ops. Atty. Gen. 187, 190.)



Sec.  0.735-6  Standards required in the Federal service.

    5 CFR 735.101 states: ``The maintenance of unusually high standards 
of honesty, integrity, impartiality, and conduct by Government employees 
and special Government employees is essential to assure the proper 
performance of the Government business and the maintenance of confidence 
by citizens in their Government.''

[[Page 7]]



Sec.  0.735-7  Special requirements of the Department.

    The close and sensitive relationship between the Department of 
Commerce and the Nation's business community calls for special vigilance 
on the part of all officers and employees to avoid even any appearance 
of impropriety. The regulations set forth in this part have been adopted 
in order to promote the efficiency of the service in the light of the 
particular ethical and administrative problems arising out of the work 
of the Department.



Sec.  0.735-8  Limitations on private activities and interests.

    It is the policy of the Department to place as few limitations as 
possible on private activities or interests consistent with the public 
trust and the effective performance of the official business of the 
Department. There is no general statutory or regulatory limitation on 
the conduct of private activities for compensation by officers or 
employees of the Department, when the private activity is not connected 
with any interest of the Government. When the private activity does not 
touch upon some interest, it may be conducted if it falls outside 
applicable statutory limitations and regulatory limitations.



          Subpart C_Statutory Limitations Upon Employee Conduct



Sec.  0.735-9  Employee responsibilities.

    Each employee and special Government employee has a positive duty to 
acquaint himself with the numerous statutes relating to the ethical and 
other conduct of employees and special employees of the Department and 
of the Government Appendix A of this part contains a listing of the more 
important statutory provisions of general applicability. In case of 
doubt on any question of statutory application to fact situations that 
may arise, the employee should consult the text of the statutes, which 
will be made available to him by his organization unit, and he should 
also avail himself of the legal counseling provided by this part.



         Subpart D_Regulatory Limitations Upon Employee Conduct



Sec.  0.735-10  Administrative extension of statutory limitations.

    The provisions of the statutes identified in this part which relate 
to the ethical and other conduct of Federal employees are adopted and 
will be enforced as administrative regulations, violations of which may 
in appropriate cases be the basis for disciplinary action, including 
removal. The fact that a statute which may relate to employee conduct is 
not identified in this part does not mean that it may not be the basis 
for disciplinary action against an employee.



Sec.  0.735-10a  Proscribed actions.

    An employee shall avoid any action, whether or not specifically 
prohibited by this subpart, which might result in, or create the 
appearance of:
    (a) Using public office for private gain;
    (b) Giving preferential treatment to any person;
    (c) Impeding Government efficiency or economy;
    (d) Losing complete independence or impartiality;
    (e) Making a government decision outside official channels; or
    (f) Affecting adversely the confidence of the public in the 
integrity of the Government.



Sec.  0.735-11  Gifts, entertainment, and favors.

    (a) General limitations. Except as provided in paragraphs (b) and 
(f) of this section, an employee shall not solicit or accept, directly 
or indirectly, any gift, gratuity, favor, entertainment, loan, payment 
of expenses, fee, compensation, or any other thing of monetary value, 
for himself or another person, from a person who:
    (1) Has, or is seeking to obtain, contractual or other business or 
financial relations with the Department of Commerce;
    (2) Conducts operations or activities that are regulated by the 
Department of Commerce; or
    (3) Has interests that may be substantially affected by the 
performance or nonperformance of the employee's

[[Page 8]]

official duty or by actions of the Department.
    (b) Exceptions. The following exceptions are authorized to the 
limitation in paragraph (a) of this section:
    (1) Acceptance of a gift, gratuity, favor, entertainment, loan, 
payment of expenses, fee, compensation, or other thing of monetary value 
incident to obvious family or personal relationships (such as those 
between the employee and the parents, children, or spouse of the 
employee) when the circumstances make it clear that it is those 
relationships rather than the business of the persons concerned which 
are the motivating factors.
    (2) Acceptance of food and refreshments of nominal value on 
infrequent occasions in the ordinary course of a luncheon or dinner 
meeting or other meeting or on an inspection tour where an employee may 
properly be in attendance. For the purpose of this section, ``nominal 
value'' means that the value of the food or refreshments shall not be 
unreasonably high under the circumstances.
    (3) Acceptance of loans from banks or other financial institutions 
on customary terms and on security not inconsistent with paragraph (a) 
of this section, to finance proper and usual activities of employees, 
such as home mortgage loans.
    (4) Acceptance of unsolicited advertising or promotional material, 
such as pens, pencils, note pads, calendars, and other items of nominal 
intrinsic value.
    (5) Acceptance of a gift, gratuity, favor, entertainment, loan, 
payment of expenses, fee, compensation, or other thing of monetary value 
when such acceptance is determined by the head of the operating unit 
concerned to be necessary and appropriate in view of the work of the 
Department and the duties and responsibilities of the employee. A copy 
of each such determination shall be sent to the counselor of the 
Department.
    (6) Special Government employees are covered by this section only 
while employed by the Department or in connection with such employment.
    (c) [Reserved]
    (d) Gifts to superiors. An employee shall 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 (5 U.S.C. 7351). However, this 
paragraph does not prohibit a voluntary gift of nominal value or 
donation in a nominal amount made on a special occasion such as 
marriage, illness, or retirement. An employee who violates these 
requirements shall be removed from the service.
    (e) Gifts from a foreign government. An employee shall not accept a 
gift, present, decoration, or other thing from a foreign government 
unless acceptance is (1) authorized by Congress as provided by the 
Constitution and in Pub. L. 89-673, 80 Stat. 952, and (2) authorized by 
the Department of Commerce as provided in Administrative Order 202-739.
    (f) Reimbursement for travel expenses and subsistence. Neither this 
section nor Sec.  0.735-12 precludes an employee from receipt of bona 
fide reimbursement, unless prohibited by law, for expenses of travel and 
such other necessary subsistence as is compatible with this part for 
which no Government payment or reimbursement is made. However, this 
paragraph does not allow an employee to be reimbursed, or payment to be 
made on his behalf, for excessive personal living expenses, gifts, 
entertainment, or other personal benefits, nor does it allow an employee 
to be reimbursed by a person for travel on official business under 
agency orders when reimbursement is proscribed by Decision B-128527 of 
the Comptroller General dated March 7, 1967. (Requirements applicable to 
Department of Commerce employees are set forth in Department of Commerce 
Administrative Order 203-9.)



Sec.  0.735-12  Outside employment or other activity.

    (a) Incompatible outside employment or other outside activity. An 
employee shall not engage in outside employment or other outside 
activity not compatible
    (1) With the full and proper discharge of the duties and 
responsibilities of his Government employment,
    (2) With the policies or interests of the Department, or

[[Page 9]]

    (3) With the maintenance of the highest standards of ethical and 
moral conduct. Incompatible activities include but are not limited to:
    (i) Acceptance of a fee, compensation, gift, payment of expense, or 
any other thing of monetary value in circumstances in which acceptance 
may result in, or create the appearance of, a conflict of interest;
    (ii) Outside employment which tends to impair the employee's mental 
or physical capacity to perform his Government duties and 
responsibilities in an acceptable manner;
    (iii) Employment with any foreign government, corporation, 
partnership, instrumentality, or individual unless authorized by the 
Department;
    (iv) Employment by, or service rendered under contract with, any of 
the persons listed in Sec.  0.735-11(a);
    (v) Receipt by an employee, other than a special Government 
employee, of any salary or anything of monetary value from a private 
source as compensation for his services to the Government. (18 U.S.C. 
209).
    (b) Improper benefit from official activity. (1) No employee of the 
Department shall receive compensation (e.g., an honorarium) or anything 
of monetary value, other than that to which he is duly entitled from the 
Government, for the performance of any activity during his service as 
such employee of the Department and within the scope of his official 
responsibilities.
    (2) As used in this paragraph, ``within the scope of his official 
responsibilities'' means in the course of or in connection with his 
official responsibilities. (See 29 Comp. Gen. 163; 30 id. 246; 32 id. 
454; 35 id. 354; B-131371, July 17, 1957.)
    (3) An activity shall ordinarily be considered to be in the course 
of or in connection with an employee's official responsibilities if it 
is performed as a result of an invitation or request which is addressed 
to the Department or a component thereof, or which is addressed to an 
employee at his office at the Department, or which there is reason to 
believe is extended partly because of the official position of the 
employee concerned. (When in doubt, it may be asked whether it is likely 
that the invitation would have been received if the recipient were not 
associated with the Department.) Whether an employee is on leave while 
performing an activity shall be considered irrelevant in determining 
whether an activity is performed in the course of or in connection with 
the employee's official responsibilities.
    (4) Acceptance of a gift or bequest on behalf of the Department 
shall be made in accordance with Department Order 3 and Administrative 
Order 203-9.
    (c) Teaching, lecturing, and writing. Employees are encouraged to 
engage in teaching, lecturing, and writing that is not prohibited by 
law. Executive Order 11222, 5 CFR Part 735, or the regulations in this 
part and Administrative Order 201-4, ``Writing for Outside 
Publication,'' subject to the following conditions:
    (1) An employee shall not, either for or without compensation, 
engage in teaching, lecturing, or writing, including teaching, 
lecturing, or writing for the purpose of the special preparation of a 
person or class of persons for an examination of the Office of Personnel 
Management or the Board of Examiners for the Foreign Service, that 
depends on information obtained as a result of his Government 
employment, except when that information has been made available to the 
general public or will be made available on request, or when the 
Assistant Secretary for Administration or his designee gives written 
authorization for the use of nonpublic information on the basis that the 
use is in the public interest.
    (2) No employee shall receive compensation or anything of monetary 
value for any consultation, lecture, discussion, writing, or appearance, 
the subject matter of which is devoted substantially to the 
responsibilities, programs, or operations of the Department of Commerce, 
or which draws substantially on official data or ideas which have not 
become part of the body of public information. As used in this 
paragraph, ``the body of public information'' shall mean information 
which has been disseminated widely among segments of the public which 
may be affected by or interested in the information concerned, or which 
is known by such segments of the public

[[Page 10]]

to be freely available on request to a Government agency.
    (d) [Reserved]
    (e) Application of the limitations. This section does not preclude 
an employee from:
    (1) [Reserved]
    (2) Participation in the activities of National or State political 
parties not proscribed by law.
    (3) Participation in the affairs of, or acceptance of an award for a 
meritorious public contribution or achievement given by a charitable, 
religious, professional, social, fraternal, nonprofit educational and 
recreational, public service, or civic organization.

[32 FR 15222, Nov. 2, 1967, as amended at 33 FR 9765, July 6, 1968; 55 
FR 53489, Dec. 31, 1990]



Sec.  0.735-13  Financial interests.

    (a) An employee shall not: (1) Have a direct or indirect financial 
interest that conflicts substantially, or appears to conflict 
substantially, with his Government duties and responsibilities; or
    (2) Engage in, directly or indirectly, a financial transaction as a 
result of, or primarily relying on, information obtained through his 
Government employment.
    (b) No employee shall participate in any manner, on behalf of the 
United States, in the negotiation of contracts, the making of loans, and 
grants, the granting of subsidies, the fixing of rates, or the issuance 
of valuable permits or certificates, or in any investigation or 
prosecution, or in the transaction of any other official business, which 
affects chiefly a person with whom he has any economic interest or any 
pending negotiations concerning a prospective economic interest, except 
with express prior authorization as provided for in subpart G of this 
part.
    (c) This section does not preclude an employee from having a 
financial interest or engaging in financial transactions to the same 
extent as a private citizen not employed by the Government so long as it 
is not prohibited by law, Executive order, Civil Service regulations (5 
CFR Part 735), or regulations in this part.
    (d) The financial (or economic) interests described below are too 
remote or too inconsequential to affect the integrity of an employee's 
services in any matter involving them, and are thereby exempted from the 
prohibitions of 18 U.S.C. 208(a), and do not exclude such employee's 
participation in the transaction of any official business involving such 
financial or economic interests:

    Deposits in a bank, savings and loan association, building 
association, credit union or similar financial institution; policies 
held with an insurance company; constructive interests in companies and 
other entities owned or held by a mutual fund or other diversified 
investment company in which the employee has an interest.


These exempted financial (or economic) interests need not be reported by 
employees in their statements of employment and financial interests 
referred to in Sec.  0.735-21.

(18 U.S.C. 208(b); 5 CFR 735.404a)

[32 FR 15222, Nov. 2, 1967, as amended at 41 FR 34939, Aug. 18, 1976; 47 
FR 3350, Jan. 25, 1982]



Sec.  0.735-14  Use of Government time or property.

    (a) An employee shall not directly or indirectly use, or allow the 
use of, Government time or property of any kind, including property 
leased to the Government, for other than officially approved activities.
    (b) Each employee shall protect and conserve Government property, 
including equipment, supplies, and other property entrusted or issued to 
him.



Sec.  0.735-15  Misuse of employment or information.

    (a) Use of Government employment. An employee shall not use his 
Government employment for a purpose that is, or gives the appearance of 
being, motivated by the desire for private gain for himself or another 
person, particularly one with whom he has family, business, or financial 
ties.
    (b) Use of inside information. For the purpose of furthering a 
private interest, an employee shall not, except as provided in Sec.  
0.735-12(c), directly or indirectly use, or allow the use of, 
information which has been or has the appearance of having been obtained

[[Page 11]]

through or in connection with his Government employment and which has 
not been made available to the general public.
    (c) Coercion. An employee shall not use his Government employment to 
coerce, or give the appearance of coercing, a person to provide 
financial benefit to himself or another person, particularly one with 
whom he has family, business, or financial ties.
    (d) Disclosure of restricted information. No employee shall divulge 
restricted commercial or economic information, or restricted information 
concerning the personnel or operations of any Government agency, or 
release any such information in advance of the time prescribed for its 
authorized release.
    (e) Discrimination. No employee, acting in his official capacity, 
shall, directly or indirectly, authorize, permit, or participate in any 
act or course of conduct which, on the ground of race, color, creed, 
national origin, or sex, excludes from participation, denies any benefit 
to, or otherwise subjects to discrimination any person under any program 
or activity administered or conducted by the Department or one of its 
units, or such employee. (See Department Order 195.)



Sec.  0.735-16  Indebtedness.

    (a) An employee shall pay each just financial obligation in a proper 
and timely manner, especially one imposed by law such as Federal, State, 
or local taxes. For purposes of this section, ``a just financial 
obligation'' means one acknowledged by the employee or reduced to 
judgment by a court, and ``in a proper and timely manner'' means in a 
manner which, in the view of the Department, does not, under the 
circumstances, reflect adversely on the Government as his employer.
    (b) In the event of dispute between an employee and an alleged 
creditor, this section does not require the Department to determine the 
validity or amount of the disputed debt.



Sec.  0.735-17  Gambling, betting, and lotteries.

    An employee shall not participate while on Government-owned or 
leased property or while on duty for the Government, in any gambling 
activity including the operation of a gambling device, in conducting a 
lottery or pool, in a game for money or property or in selling or 
purchasing a numbers slip or ticket. However, this section does not 
preclude activities
    (a) Necessitated by an employee's law enforcement duties, or
    (b) Under section 3 of Executive Order 10927 (relating to 
solicitations conducted by organizations composed of civilian employees 
or members of the armed forces among their own members for 
organizational support or for benefit or welfare funds for their own 
members) and similar agency-approved activities.



Sec.  0.735-18  General conduct prejudicial to the Government.

    (a) General policy. Officers and employees of the Federal Government 
are servants of the people. Because of this, their conduct must, in many 
instances, be subject to more restrictions and to higher standards than 
may be the case in certain private employments. They are expected to 
conduct themselves in a manner which will reflect favorably upon their 
employer. Although the Government is not particularly interested in the 
private lives of its employees, it does expect them to be honest, 
reliable, trustworthy, and of good character and reputation. They are 
expected to be loyal to the Government, and to the department or agency 
in which they are employed.
    (b) Specific policy. An employee shall not engage in criminal, 
infamous, dishonest, immoral, or notoriously disgraceful conduct, or 
other conduct prejudicial to the Government.
    (c) Regulations applicable to public buildings and grounds. Each 
employee is responsible for knowing and complying with regulations of 
the General Services Administration and of the Department of Commerce 
applicable to public buildings and grounds.



Sec.  0.735-19  Reporting undue influence to superiors.

    Each employee shall report to his superior any instance in which 
another person inside or outside the Federal Government uses or attempts 
to use undue influence to induce, by reason of his official Government 
position,

[[Page 12]]

former Government employment, family relationship, political position, 
or otherwise, the employee to do or omit to do any official act in 
derogation of his official duty.



       Subpart E_Statements of Employment and Financial Interests



Sec.  0.735-20  General provisions.

    (a) In order to carry out the purpose of this part, certain 
employees of the Department, specified in or pursuant to this part, will 
be required to submit statements of outside employment and financial 
interests for review designed to disclose conflicts of interest, 
apparent conflicts of interest on the part of employees, and other 
matters within the purview of this part.
    (b) When a conflict or apparent conflict of interest on the part of 
an employee or other question of compliance with the provisions of this 
part arises and is not resolved at a lower level within the Department, 
e.g., by appropriate remedial action, the information concerning the 
matter shall be reported to the Secretary through the counselor for the 
Department designated in Sec.  0.735-38.
    (c) In the event of a conflict or apparent conflict of interest on 
the part of an employee or other question of compliance with the 
provisions of this part, the employee concerned shall be provided an 
opportunity to explain the matter. After consideration of the conflict 
or apparent conflict of interest or other question of compliance, and 
the employee's explanation thereof, appropriate action shall be taken.



Sec.  0.735-21  Form and content of statements.

    (a) Statements of employment and financial interests shall be 
submitted as far as practicable on one of the following forms, as 
appropriate:
    (1) Form CD-220, ``Confidential Statement of Employment and 
Financial Interests (For Use by Government Employees Other Than Special 
Government Employees)''; or
    (2) Form CD-219, ``Confidential Statement of Employment and 
Financial Interests (For Use by Special Government Employees).''
    (b) Each of the foregoing forms shall contain, as a minimum, the 
information required by the formats prescribed by the Office of 
Personnel Management in the Federal Personnel Manual. Questions on a 
statement of employment and financial interests that go beyond, or are 
in greater detail than, those included on the Office's formats may be 
included on a statement only with the approval of the Assistant 
Secretary for Administration and the Office.
    (c) [Reserved]
    (d) The employee will not be required to reveal precise amounts of 
financial interest when such information is not necessary for a proper 
determination as to whether there is any apparent conflict of interest.

[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  0.735-22  Employees required to submit statements.

    Except as provided in Sec.  0.735-23, a statement of employment and 
financial interests shall be submitted by the following employees other 
than special Government employees:
    (a) Employees paid at a level of the Executive Schedule in 
Subchapter II of Chapter 53 of Title 5, United States Code.
    (b) Employees classified at GS-13 or above under section 5332 of 
Title 5, United States Code, or at a comparable pay level under another 
authority, who are in positions the basic duties and responsibilities of 
which are determined by the head of the operating unit concerned to 
require the incumbent to make a Government decision or to take a 
Government action in regard to:
    (1) Contracting or procurement;
    (2) Administering or monitoring grants or subsidies;
    (3) Regulating or auditing private or other non-Federal enterprise; 
or
    (4) Other activities where the decision or action has an economic 
impact on the interests of any non-Federal enterprise.

Each employee who occupies a position in one of the above-listed 
categories and who is not excluded from the reporting requirement shall 
be notified that he is subject to the reporting requirement.

[[Page 13]]

    (c) The following employees classified at GS-13 or above under 
section 5332 of Title 5, United States Code, or at a comparable pay 
level under another authority, not otherwise subject to paragraph (b) of 
this section:
    (1) Employees in grade GS-16 or above, or in comparable or higher 
positions.
    (2) Employees in Schedule C positions.
    (3) Employees in hearing examiner or hearing officer positions.
    (4) Persons employed as experts, consultants, or advisers.
    (5) Employees in positions or categories of positions, regardless of 
their official title, identified in Appendix B of this part.
    (d) Employees classified below GS-13 under section 5332 of Title 5, 
United States Code, or at a comparable pay level under another 
authority, who are in positions or categories of positions, regardless 
of their official title, identified in Appendix C to this part.
    (e) Appendices B and C. (1) Appendix B to this part shall be 
maintained and changes made therein in accordance with the criteria in 5 
CFR 735.403(c) and in accordance with the procedure in this paragraph. 
Appendix C to this part shall be maintained and changes made therein in 
accordance with the criteria in 5 CFR 735.403(d) and in accordance with 
the procedure in this paragraph.
    (2) Heads of operating units and heads of offices in the Office of 
the Secretary shall, in conformity with the above-cited criteria, 
recommend changes in Appendix B and Appendix C to the Assistant 
Secretary for Administration for approval. Changes in Appendix C shall 
be submitted, with specific justification, to the Office of Personnel 
Management for further prior approval.
    (3) Incumbents of positions added to Appendix B or to Appendix C 
shall become subject to the reporting requirements of this part upon 
receipt of notification that their position is subject to such 
requirements. Appendix B and Appendix C shall be republished annually to 
reflect changes in the lists.

[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  0.735-22a  Employee's complaint on filing requirement.

    An employee shall have an opportunity for review through the 
Department of Commerce grievance procedure, as provided by 
Administrative Order 202-770, of a complaint by him that his position 
has been improperly included under the regulations of the Department as 
one requiring the submission of a statement of employment and financial 
interests.



Sec.  0.735-23  Employees not required to submit statements.

    (a) Employees in positions that meet the criteria in paragraph (b), 
(c), or (d) of Sec.  0.735-22 may be excluded from the reporting 
requirement when the head of the operating unit concerned determines 
that:
    (1) The duties of a position are such that the likelihood of the 
incumbent's involvement in a conflicts-of-interest situation is remote; 
or
    (2) The duties of a position are at such a level of responsibility 
that the submission of a statement of employment and financial interests 
is not necessary because of the degree of supervision and review over 
the incumbent or the inconsequential effect on the integrity of the 
Government.
    (b) A statement of employment and financial interests is not 
required by this part from the Secretary of Commerce, from the head of 
an independent agency for which the Department of Commerce performs 
administrative services, or from a full-time member of a committee, 
board, or commission appointed by the President. These employees are 
subject to separate reporting requirements under section 401 of 
Executive Order 11222.



Sec.  0.735-24  Time and place for submission of original statements.

    (a) An employee required to submit a statement of employment and 
financial interests under this part shall submit that statement not 
later than:
    (1) Ninety days after the effective date of this part if the 
employee is employed by the Department on or before the effective date 
of this part; or
    (2) Thirty days after the employee's entrance on duty date, but in 
no case

[[Page 14]]

earlier than 90 days after the effective date of this part.
    (b) Statements shall be submitted to a personnel officer specified 
by the head of the operating unit or to such other person as the head of 
the operating unit, with the approval of the Secretary, may specify. 
Secretarial officers and heads of operating units shall submit their 
statements to the Secretary or to such person as the Secretary may 
designate.



Sec.  0.735-25  Supplementary statements.

    Changes in, or additions to, the information contained in an 
employee's statement of employment and financial interests shall be 
reported in a supplementary statement as of June 30 each year, except 
when the Office of Personnel Management authorizes a different date on a 
showing by the Department of necessity therefor. (The Commission has 
authorized filing of the supplementary statement for 1967 as of 
September 30, 1967.) If no changes or additions occur, a negative report 
is required. Notwithstanding the filing of the annual report required by 
this section, each employee shall at all times avoid acquiring a 
financial interest that could result, or taking an action that would 
result, in a violation of the conflicts-of-interest provisions of 
section 208 of Title 18, United States Code, or subpart D of this part.

[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  0.735-26  Interests of employees' relatives.

    The interest of a spouse, minor child, or other member of an 
employee's immediate household is considered to be an interest of the 
employee. For the purpose of this section, ``member of an employee's 
immediate household'' means those blood relations who are members of the 
employee's household.



Sec.  0.735-27  Information not known by employees.

    If any information required to be included on a statement of 
employment and financial interests or supplementary statement, including 
holdings placed in trust, is not known to the employee but is known to 
another person, the employee shall request that other person to submit 
information in his behalf.



Sec.  0.735-28  Information not required.

    This part does not require an employee to submit on a statement of 
employment and financial interests or supplementary statement any 
information relating to the employee's connection with, or interest in, 
a professional society or a charitable, religious, social, fraternal, 
recreational, public service, civic, or political organization or a 
similar organization not conducted as a business enterprise. For the 
purpose of this section, educational and other institutions doing 
research and development or related work involving grants of money from 
or contracts with the Government are deemed ``business enterprises'' and 
are required to be included in an employee's statement of employment and 
financial interests.



Sec.  0.735-29  Confidentiality of employees' statements.

    (a) No employee may have access to a statement of employment and 
financial interests, or a supplementary statement, unless his official 
duties make access necessary. Each employee who has access to such a 
statement is responsible for maintaining it in confidence and shall not 
allow access to, or allow information to be disclosed from, a statement 
except to an employee of the Department of Commerce or the Office of 
Personnel Management to carry out the purpose of this part or to other 
persons as the Office of Personnel Management or the Assistant Secretary 
for Administration may determine for good cause shown. (The foregoing 
limitations do not apply to release of information by an employee with 
respect to a statement he has submitted under this section.)
    (b) The employees designated in paragraph (b) of Sec.  0.735-24 to 
receive statements are authorized to review and retain the statements 
and are responsible for maintaining the statements in confidence, as 
provided in this section.

[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]

[[Page 15]]



Sec.  0.735-30  Relation of this part to other requirements.

    (a) The requirement that employees submit statements of employment 
and financial interests and supplementary statements under this part is 
in addition to, and not in substitution for, or in derogation of, any 
similar requirement imposed by law, order, or regulation.
    (b) The submission of a statement or supplementary statement by an 
employee does not permit him or any other person to participate in a 
matter in which his or the other person's participation is prohibited by 
law, order, or regulation, including this part.



Sec.  0.735-31  Special Government employees.

    (a) Special Government employees shall be required to report:
    (1) All other employment; and
    (2) Financial interests specified on Form CD-219.
    (b) A waiver may be granted to the requirements of this section in 
the case of a special Government employee who is not a consultant or 
expert (as defined in Chapter 304 of the Federal Personnel Manual) when 
a determination is made that the duties of the position held by that 
special Government employee are of such a nature and at such a level of 
responsibility that the submission of the statement by the incumbent is 
not necessary to protect the integrity of the Government. Any such 
waiver shall be approved by the head of the operating unit concerned or 
his designee. A copy of the waiver shall be filed with the deputy 
counselor for the organization unit concerned.
    (c) The original statement of employment and financial interests 
required to be submitted by a special Government employee shall be 
submitted not later than his entry on duty. Each special employee shall 
keep his statement current throughout his employment with the Department 
by the submission of supplementary statements.



                   Subpart F_Supplementary Regulations



Sec.  0.735-32  Departmental.

    The Assistant Secretary for Administration may prescribe 
supplementary instructions consistent with this part.



Sec.  0.735-33  Operating units.

    Each operating unit is hereby authorized and directed to prescribe, 
after approval by the Assistant Secretary for Administration, such 
additional regulations not inconsistent with this part as may be 
necessary to effectuate the general purpose of this part in the light of 
its individual operating requirements, including but not limited to 
pertinent statutory provisions, such as:
    (a) 35 U.S.C. 4, 122 (Patent Office);
    (b) 46 U.S.C. 1111(b) (Maritime Administration);
    (c) Certain provisions of the Defense Production Act of 1950, e.g., 
50 U.S.C. App. 2160(b)(2) (avoidance of conflicts of interest), 50 
U.S.C. App. 2160(b)(6) (financial statements), and 50 U.S.C. App. 
2160(f) (prohibition of use of confidential information for purposes of 
speculation) (Business and Defense Services Administration and any other 
primary operating unit affected); and
    (d) Certain provisions of Pub. L. 89-136, the Public Works and 
Economic Development Act of 1965, e.g., section 711 (restriction on 
employing certain EDA employees by applicants for financial assistance), 
and section 710(b) (embezzlement), false book entries, sharing in loans, 
etc., and giving out unauthorized information for speculation).



Sec.  0.735-34  Effective date of supplementary regulations.

    Supplementary regulations prescribed pursuant to Sec.  0.735-33, 
shall become effective upon approval by the issuing officer unless a 
different date is required by law or a later date is specified therein.

[[Page 16]]



                        Subpart G_Administration



Sec.  0.735-35  Responsibilities of employees.

    It is the responsibility of each employee:
    (a) To assure, at the outset of his employment, that each of his 
interests and activities is consistent with the requirements established 
by or pursuant to this part;
    (b) To submit a statement of employment and financial interests at 
such times and in such form as may be specified in or pursuant to this 
part;
    (c) To certify, upon entering on duty in the Department, that he has 
read this part and applicable regulations supplementary thereto;
    (d) To obtain prior written authorization of any interest or 
activity about the propriety of which any doubt exists in the employee's 
mind, as provided in Sec.  0.735-39;
    (e) To confine each of his interests and activities at all times 
within the requirements established by or pursuant to this part, 
including any authorizations granted pursuant to this part; and
    (f) To obtain a further written authorization whenever circumstances 
change, or the nature or extent of the interest or activity changes, in 
such a manner as to involve the possibility of a violation or appearance 
of a violation of a limitation or requirement prescribed in or pursuant 
to this part.



Sec.  0.735-36  Responsibilities of operating units.

    The head of each operating unit, or his designee, shall:
    (a) Furnish or make available to each employee a copy of this part 
(or a comprehensive summary thereof) within 90 days after approval of 
this part by the Office of Personnel Management, and, upon their 
issuance, a copy of any regulations supplementary thereto (or a 
comprehensive summary thereof);
    (b) Furnish or make available to each new employee at the time of 
his entrance on duty a copy of this part as it may be amended and any 
supplementary regulations (or a comprehensive summary thereof);
    (c) Bring this part (or as it may be amended and any supplementary 
regulations thereto) to the attention of each employee annually, and at 
such other times as circumstances may warrant as may be determined by 
the Assistant Secretary for Administration;
    (d) Have available for review by employees, as appropriate, copies 
of laws, Executive orders, this part, supplementary regulations, and 
pertinent Office of Personnel Management regulations and instructions 
relating to ethical and other conduct of Government employees;
    (e) Advise each employee who is a special Government employee of his 
status for purposes of 18 U.S.C. 203 and 205;
    (f) Require each employee specified in Sec.  0.735-22 to submit a 
statement of employment and financial interests, as provided by or 
pursuant to this part;
    (g) Develop an appropriate form, with the approval of the counselor 
of the Department, on which the employee may certify that he has read 
this part and applicable regulations supplementary thereto, in 
accordance with Sec.  0.735-35(c), and on which he may, if he so 
desires, indicate that he has a private activity or interest about which 
he requests advice and guidance as provided by Sec.  0.735-38.
    (h) Require each employee upon entering on duty and at such other 
times as may be specified, to execute the certification required by 
Sec.  0.735-35(c);
    (i) Report to the program Secretarial Officer concerned and to the 
Assistant Secretary for Administration promptly any instance in which an 
employee, after notice, fails to submit the certification required under 
Sec.  0.735-35(c) or a statement of employment or financial interests 
required under this part within 14 calendar days following the 
prescribed time limit for doing so; and
    (j) Take action to impress upon each employee required to submit a 
statement of employment and financial interests, upon his supervisor, 
and upon employees with whom the employee works, their responsibility as 
follows:
    (1) The employee's supervisor is responsible (i) for excluding from 
the range of duties of the employee any contracts or other transactions 
between the Government and his outside employer, clients, or entities in 
which he has an interest within the purview

[[Page 17]]

of this part, and (ii) for overseeing the employee's activities in order 
to insure that the public interest is protected from improper conduct on 
his part and that he will not, through ignorance or inadvertence, 
embarrass the Government or himself.
    (2) The employee's supervisor and employees with whom he works are 
responsible for avoiding the use of the employee's services in any 
situation in which a violation of law, regulation, or ethical standards 
is likely to occur or to appear to occur.
    (3) The supervisor of an employee is responsible for initiating 
prompt and proper disciplinary or remedial action when a violation, 
intentional or innocent, is detected.
    (4) Employees shall avoid divulging to a special Government employee 
privileged Government information which is not necessary to the 
performance of his governmental responsibility or information which 
directly involves the financial interests of his non-Government 
employer.
    (5) An employee shall make every effort in his private work to avoid 
any personal contact with respect to negotiations with the Department 
for contracts, grants, or loans, if the subject matter is related to the 
subject matter of his Government employment. When this is not possible, 
he may participate if not otherwise prohibited by law (e.g., 18 U.S.C. 
203 and 205) in the negotiations for his private employer only with the 
prior approval of the head of the operating unit concerned.

[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  0.735-37  Procedure.

    The review of statements of employment and financial interests shall 
include the following basic measures, among others:
    (a) Statements shall be submitted to the designated officer, who 
will review each employee's statement of employment and financial 
interests to ascertain whether they are consistent with the requirements 
established by or pursuant to this part. (See Sec.  0.735-24(b).)
    (b) Where the statement raises any question of compliance with the 
requirements of this part, it shall be submitted to a deputy counselor 
for the organization unit concerned. The deputy counselor may, in his 
discretion, utilize the advice and services of others (including 
departmental facilities) to obtain further information needed to resolve 
the questions.
    (c) The designated officer shall maintain the statements of 
employment and financial interests in a file apart from the official 
personnel files and shall take every measure practicable to insure their 
confidentiality. Statements of employment and financial interests shall 
be preserved for 5 years following the separation of an employee from 
the Department or following termination of any other relationship under 
which the individual rendered service to the Department, except as may 
be otherwise authorized by the Assistant Secretary for Administration or 
as required by law.



Sec.  0.735-38  Availability for counseling.

    (a) The General Counsel of the Department shall:
    (1) Serve as the counselor for the Department of Commerce with 
respect to matters covered by the basic provisions cited in Sec.  0.735-
2(a) and otherwise by or pursuant to this part;
    (2) Serve as the Department of Commerce designee to the Office of 
Personnel Management on matters covered by this part; and
    (3) Coordinate the counseling services provided under this part and 
assure that counseling and interpretations on questions of conflicts of 
interest and other matters covered by this part are available to deputy 
counselors designated under paragraph (b) of this section.
    (b) The counselor shall designate employees who shall serve as 
deputy counselors for employees of the Department of Commerce with 
respect to matters covered by or pursuant to this part and shall give 
authoritative advice and guidance to each employee who seeks advice and 
guidance on questions of conflict of interests and other matters covered 
by or pursuant to this part.
    (c) Each operating unit shall notify its employees of the 
availability of counseling services and of how and where these services 
are available. This notification shall be given within 90 days after 
approval of this part by the

[[Page 18]]

Office of Personnel Management and periodically thereafter. In the case 
of a new employee appointed after the foregoing notification, 
notification shall be made at the time of his entrance on duty.
    (d) In each operating unit a deputy counselor shall advise and 
counsel each employee concerning any adjustments necessary in his 
financial interests or activities, or in any contemplated interests or 
activities, in order to meet the requirements established by or pursuant 
to this part.

[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  0.735-39  Authorizations.

    All requests for authorizations required under this part shall be 
addressed to the head of the operating unit concerned. In the Office of 
the Secretary such requests shall be addressed to the Secretary or such 
person as he may designate. When granted, authorizations will be in 
writing, and a copy of each authorization will be filed in the 
employees' official personnel file.
    (a) In case of doubt, or upon the request of the employee concerned, 
cases or questions will be forwarded to the counselor or a deputy 
counselor. (See Sec.  0.735-38.)
    (b) Where an activity requested to be authorized can be conducted as 
official business, it shall not be authorized as a private activity, but 
shall be conducted as official business.
    (c) Where authorizations involve speaking, writing, or teaching, use 
of the official title of the employee for identification purposes may be 
authorized, provided the employee makes it clear that his statements and 
actions are not of an official nature.
    (d) If an authorization has been granted for a specific activity or 
interest, and the activity or interest is subsequently deemed to 
constitute a violation of the limitations or requirements prescribed in 
or pursuant to this part, the employee concerned shall be notified in 
writing of the cancellation of the authorization and shall modify or 
stop the activity or interest involved, as requested.



Sec.  0.735-40  Disciplinary and other remedial action.

    (a) Violation of a requirement established in or pursuant to this 
part shall be cause for appropriate disciplinary action, which may be in 
addition to any penalty prescribed by law.
    (b) When, after consideration of the explanation of the employee 
provided by Sec.  0.735-20(c), the reviewing officer, in cooperation 
with the responsible supervisory official, decides that remedial action 
is required, he will take or cause to be taken immediate action to end 
the conflict or appearance of conflict of interest. Remedial action may 
include, but is not limited to:
    (1) Changes in assigned duties;
    (2) Divestment by the employee of his conflicting interest;
    (3) Disciplinary action (including removal from the service); or
    (4) Disqualification for a particular assignment.

Remedial action, whether disciplinary or otherwise, shall be effected in 
accordance with applicable laws, Executive orders, and regulations.
    (c) No disciplinary or remedial action may be taken under this 
section against an employee of another Federal department or agency on 
detail to the Department of Commerce other than through and with the 
concurrence of the detailed employee's employing agency.



Sec.  0.735-41  Inquiries and exceptions.

    (a) Inquiries relating to legal aspects of the limitations set forth 
in or cited in or pursuant to this part should be submitted to the 
appropriate deputy counselor. Inquiries relating to other aspects of 
this part or regulations supplementary thereto should be referred to the 
appropriate personnel office.
    (b) Within the limits of administrative discretion permitted to the 
Department, exceptions to the requirements of this part may be granted 
from time to time in unusual cases by the head of the operating unit, 
whenever the facts indicate that such an exception would promote the 
efficiency of the service. Each request for such an exception should be 
submitted in writing to the head of the operating unit concerned, and 
shall contain a full statement of the justification for the

[[Page 19]]

request. Reports concerning such requests, if approved, shall be 
forwarded to the program Secretarial Officer concerned and to the 
Assistant Secretary for Administration by the head of the operating unit 
concerned.



 Subpart H_Disciplinary Actions Concerning Post-Employment Conflict of 
                           Interest Violations

    Authority: 18 U.S.C. 207(j); 5 CFR 737.27.

    Source: 49 FR 32057, Aug. 10, 1984; 50 FR 928, Jan. 8, 1985, unless 
otherwise noted.



Sec.  0.735-42  Scope.

    (a) These regulations establish procedures for imposing sanctions 
against a former employee for violating the post-employment restrictions 
of the conflict of interest laws and regulations set forth in 18 U.S.C. 
207 and 5 CFR Part 737. These procedures are established pursuant to the 
requirement in 18 U.S.C. 207(j). The General Counsel is responsible for 
resolving questions on the legal interpretation of 18 U.S.C. 207 or 
regulations issued thereunder and for advising employees on these 
provisions.
    (b) For purposes of this subpart, (1) ``Former employee'' means a 
former Government employee as defined in 5 CFR 737.3(a)(4) who had 
served in the Department;
    (2) ``Lesser included sanctions'' means sanctions of the same type 
but more limited scope as the proposed sanction; thus a bar on 
communication with an operating unit is a lesser included sanction of a 
proposed bar on communication with the Department and a bar on 
communication for one year is a lesser included sanction of a proposed 
five year bar;
    (3) ``Assistant Secretary'' means the Assistant Secretary for 
Administration or designee;
    (4) ``Director'' means the Director for Personnel and Civil Rights, 
Office of the Secretary, or designee;
    (5) ``Inspector General'' and ``General Counsel'' include any 
persons designated by them to perform their functions under this 
subpart; and
    (6) ``Days'' means calendar days except that a dead-line which falls 
on a weekend or holiday shall be extended to the next working day.



Sec.  0.735-43  Report of violations and investigation.

    (a) If an employee has information which indicates that a former 
employee has violated any provisions of 18 U.S.C. 207 or regulations 
thereunder, that employee shall report such information to the Inspector 
General.
    (b) Upon receiving information as set forth in paragraph (a) of this 
section from an employee or any other person, the Inspector General, 
upon a determination that it is nonfrivolous, shall expeditiously 
provide the information to the Director, Office of Government Ethics, 
and to the Criminal Division, Department of Justice. The Inspector 
General shall coordinate any investigation under this subpart with the 
Department of Justice, unless the Department of Justice informs the 
Inspector General that it does not intend to initiate criminal 
prosecution.
    (c) All investigations under this subpart shall be conducted in such 
a way as to protect the privacy of former employees. To ensure this, to 
the extent reasonable and practical, any information received as a 
result of an investigation shall remain confidential except as necessary 
to carry out the purposes of this subpart, including the conduct of an 
investigation, hearing, or judicial proceeding arising thereunder, or as 
may be required to be released by law.
    (d) The Inspector General shall report the findings of the 
investigation to the Director.



Sec.  0.735-44  Initiation of proceedings.

    If the Director determines, after an investigation by the Inspector 
General, that there is reasonable cause to believe that a former 
employee has violated post-employment statutes or regulations, the 
Director shall initiate administrative proceedings under this subpart by 
proposing sanctions against the former employee and by providing notice 
to the former employee as set forth in Sec.  0.735-45.

[[Page 20]]



Sec.  0.735-45  Notice.

    (a) The Director shall notify the former employee of the proposed 
disciplinary action in writing by registered or certified mail, return 
receipt requested, or by any means which gives actual notice or is 
reasonably calculated to give actual notice. Notice shall be considered 
received if sent to the last known address of the former employee.
    (b) The notice shall include:
    (1) A statement of allegations and the basis thereof sufficiently 
detailed to enable the former employee to prepare a defense;
    (2) A statement that the former employee is entitled to a hearing if 
requested within 20 days from date of notice;
    (3) An explanation of the method by which the former employee may 
request a hearing under this subpart including the name, address, and 
telephone number of the person to contact if there are further 
questions;
    (4) A statement that the former employee has the right to submit 
documentary evidence to the Director if a hearing is not requested and 
an explanation of the method of submitting such evidence and the date by 
which it must be received; and
    (5) A statement of the sanctions which have been proposed.



Sec.  0.735-46  Hearing.

    (a) Examiner. (1) Upon timely receipt of a request for a hearing, 
the Director shall refer the matter to the Assistant Secretary who shall 
appoint an examiner to conduct the hearing and render an initial 
decision.
    (2) The examiner shall be impartial, shall not be an individual who 
has participated in any manner in the decision to initiate the 
proceedings, and shall not have been employed under the immediate 
supervision of the former employee or have been employed under a common 
immediate supervisor. The examiner shall be admitted to practice law and 
have suitable experience and training to conduct the hearing, reach a 
determination and render an initial decision in an equitable manner.
    (b) Time, date, and place. The hearing shall be conducted at a 
reasonable time, date, and place as set by the examiner. In setting the 
date, the examiner shall give due regard to the need for both parties to 
adequately prepare for the hearing and the importance of expeditiously 
resolving allegations that may be damaging to the former employee's 
reputation.
    (c) Former employee's rights. At a hearing, the former employee 
shall have the right:
    (1) To represent himself or herself 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, and
    (5) To receive a transcript or recording of the proceedings, on 
request.
    (d) Procedure and evidence. In a hearing under this subpart, the 
Federal Rules of Evidence and Civil Procedure do not apply but the 
examiner shall exclude irrelevant or unduly repetitious evidence and all 
testimony shall be taken under oath or affirmation. The examiner may 
make such orders and determinations regarding the admissibility of 
evidence, conduct of examination and cross-examination, and similar 
matters which the examiner deems necessary or appropriate to ensure 
orderliness in the proceedings and fundamental fairness to the parties. 
There shall be no discovery unless agreed to by the parties and ordered 
by the examiner. The hearing shall not be open to the public unless the 
former employee or the former employee's representative waives the right 
to a closed hearing, in which case the examiner shall determine whether 
the hearing will be open to the public.
    (e) Ex-parte communications. The former employee, the former 
employee's representative, and the agency representative shall not make 
any ex-parte communications to the examiner concerning the merits of the 
allegations against the former employee prior to the issuance of the 
initial decision.
    (f) Initial decision. (1) The proposed sanctions shall be sustained 
in an initial decision upon a determination by the examiner that the 
preponderance of the evidence indicated a violation of post-employment 
statutes or regulations.

[[Page 21]]

    (2) The examiner shall issue an initial decision which is based 
exclusively on the transcript of testimony and exhibits together with 
all papers and requests filed in connection with the proceeding and 
which sets forth all findings of fact and conclusions of law relevant to 
the matter at issue.
    (3) The initial decision shall become final thirty days after 
issuance if there has been no appeal filed under Sec.  0.735-48.



Sec.  0.735-47  Decision absent a hearing.

    (a) If the former employee does not request a hearing in a timely 
manner, the Director shall make an initial decision on the basis of 
information compiled in the investigation, and any submissions made by 
the former employee.
    (b) The proposed sanction or a lesser included sanction shall be 
imposed if the record indicates a violation of post-employment statutes 
or regulations by a preponderance of the evidence.
    (c) The initial decision shall become final thirty days after 
issuance if there has been no appeal filed under Sec.  0.735-48.



Sec.  0.735-48  Administrative appeal.

    (a) Within 30 days after issuance of the initial decision, either 
party may appeal the initial decision or any portion thereof to the 
Assistant Secretary. The opposing party shall have 20 days to respond.
    (b) If an appeal is filed, the Assistant Secretary shall issue a 
final decision which shall be based solely on the record, or portions 
thereof cited by the parties to limit issues, and the appeal and 
response. The Assistant Secretary shall also decide whether to impose 
the proposed sanction or a lesser included sanction.
    (c) If the final decision modifies or reverses the initial decision, 
it shall state findings of fact and conclusions of law which differ from 
the initial decision.



Sec.  0.735-49  Sanctions.

    (a) If there has been a final determination that the former employee 
has violated post-employment statutes or regulations, the Director shall 
impose, subject to the authority of the Assistant Secretary under Sec.  
0.735-48(b), the sanction which was proposed in the notice to the former 
employee or a lesser included sanction.
    (b) Sanctions which may be imposed include:
    (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 or any organizational sub-unit thereof 
on any matter of business for a period not to exceed five years; and
    (2) Other appropriate disciplinary action.
    (c) The Director may enforce the sanctions of paragraph (b)(1) of 
this section by directing any or all employees to refuse to participate 
in any such appearance or to accept any such communication. As a method 
of enforcement, the Director may establish a list of former employees 
against whom sanctions have been imposed.



Sec.  0.735-50  Judicial review.

    Any former employee found to have violated 18 U.S.C. 207, or 
regulations issued thereunder, by a final administrative decision under 
this subpart may seek judicial review of the administrative 
determination.

  Appendix A to Part 0--Statutes Governing Conduct of Federal Employees

    There are numerous statutes pertaining to the ethical and other 
conduct of Federal employees, far too many to attempt to list them all. 
Consequently, only the more important ones of general applicability are 
referred to in this appendix.

                          a. bribery and graft

    .01 Title 18, U.S.C., section 201, prohibits anyone from bribing or 
attempting to bribe a public official by corruptly giving, offering, or 
promising him or any person selected by him, anything of value with 
intent (a) to influence any official act by him, (b) to influence him to 
commit or allow any fraud on the United States, or (c) to induce him to 
do or omit to do any act in violation of his lawful duty. As used in 
section 201, ``Public officials'' is broadly defined to include 
officers, employees, and other persons carrying on activities for or on 
behalf of the Government.

[[Page 22]]

    .02 Section 201 also prohibits a public official's solicitation or 
acceptance of, or agreement to take, a bribe. In addition, it forbids 
offers or payments to, and solicitations or receipt by, a public 
official of anything of value ``for or because of'' any official act 
performed or to be performed by him.
    .03 Section 201 further prohibits the offering to or the acceptance 
by a witness of anything of value involving intent to influence his 
testimony at a trial, Congressional hearing, or agency proceeding. A 
similar provision applies to witnesses ``for or because of'' testimony 
given or to be given. The provisions summarized in this section do not 
preclude lawful witness fees, travel and subsistence expenses, or 
reasonable compensation for expert testimony.

   b. compensation to officers and employees in matters affecting the 
                               government

    .01 Title 18, U.S.C., section 203, prohibits an officer or employee 
from receiving compensation for services rendered for others before a 
Federal department or agency in matters in which the Government is a 
party or is interested.
    .02 Section 203 applies to a special Government employee as follows:
    a. If the special Government employee has served in the Department 
of Commerce more than 60 days during the preceding period of 365 days, 
section 203 applies to him only in relation to a particular matter 
involving a specific party or parties (1) in which he has at any time 
participated personally and substantially in his governmental capacity, 
or (2) which is pending in the Department of Commerce; or
    b. If the special Government employee has served in the Department 
no more than 60 days during the preceding period of 365 days, section 
203 applies to him only in relation to a particular matter involving a 
specific party or parties in which he has at any time participated 
personally and substantially in his governmental capacity.
    .03 Section 203 does not apply to a retired officer of the uniformed 
services while not on active duty and not otherwise an officer or 
employee of the United States.

  c. activities of officers and employees in claims against and other 
                    matters affecting the government

    .01 Title 18, U.S.C., section 205, prohibits an officer or employee, 
otherwise than in the performance of his official duties, from:
    a. Acting as agent or attorney for prosecuting any claim against the 
United States, or receiving any gratuity, or any share of or interest in 
any such claim in consideration of assistance in the prosecution of such 
claims; or
    b. Acting as agent or attorney for anyone before any Government 
agency, court, or officer in connection with any matter in which the 
United States is a party or has a direct and substantial interest.
    .02 Section 205 applies to a special Government employee as follows:
    a. If the special Government employee has served in the Department 
more than 60 days during the preceding period of 365 days, section 205 
applies to him only in relation to a particular matter involving a 
specific party or parties (1) in which he has at any time participated 
personally and substantially in his governmental capacity, or (2) which 
is pending in the Department of Commerce; or
    b. If the special Government employee has served in the Department 
no more than 60 days during the preceding period of 365 days, section 
205 applies to him only in relation to a particular matter involving a 
specific party or parties in which he has at any time participated 
personally and substantially in his governmental capacity.
    .03 Section 205 does not preclude:
    a. An employee, if not inconsistent with faithful performance of his 
duties, from acting without compensation as agent or attorney for any 
person who is the subject of disciplinary, loyalty, or other personnel 
administration proceedings, in connection with those proceedings; or
    b. An employee from giving testimony under oath or from making 
statements required to be made under penalty for perjury or contempt.
    .04 Sections 203 and 205 do not preclude:
    a. An employee from acting as agent or attorney for his parents, 
spouse, child, or any person for whom, or for any estate for which, he 
is serving as guardian, executor, administrator, trustee, or other 
personal fiduciary, except in those matters in which he has participated 
personally and substantially as a Government employee or which are the 
subject of his official responsibility, provided the head of the 
operating unit concerned approves; or
    b. A special Government employee from acting as agent or attorney 
for another person in the performance of work under a grant by, or a 
contract with, or for the benefit of, the United States, provided the 
head of the operating unit concerned, with the approval of the 
appropriate program Secretarial Officer, shall certify in writing that 
the national interest so requires, and such certification shall be 
published in the Federal Register.
    .05 Section 205 does not apply to a retired officer of the uniformed 
services while not on active duty and not otherwise an officer or 
employee of the United States.

    d. disqualification of former officers and employees in matters 
       connected with former duties or official responsibilities; 
                      disqualification of partners

    .01 Title 18 U.S.C., section 207:

[[Page 23]]

    a. Provides that a former Government officer or employee, including 
a former special Government employee, shall be permanently barred from 
acting as agent or attorney for anyone other than the United States in 
any matter in which the United States is a party or is interested and in 
which he participated personally and substantially in a governmental 
capacity;
    b. Bars a former Government officer or employee, including a special 
Government employee, of an agency, for a period of 1 year after his 
employment with it has ceased, from appearing personally as agent or 
attorney for another person before any court or agency in connection 
with a matter in which the Government has an interest and which was 
under his official responsibility at the employing agency (e.g., 
Department of Commerce) at any time within 1 year prior to the end of 
such responsibility; and
    c. Prohibits a partner of a person employed by the Government, 
including a special Government employee, from acting as agent or 
attorney for anyone other than the United States in matters in which the 
employee participates or has participated personally and substantially 
for the Government or which are the subject of his official 
responsibility.
    .02 Subparagraphs .01a. and .01b. of this section do not prevent a 
former officer or employee or special Government employee who has 
outstanding scientific or technical qualifications from acting as 
attorney or agent or appearing personally before the Department of 
Commerce in connection with a particular matter in a scientific or 
technological field if the Assistant Secretary of Commerce for Science 
and Technology 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.

             e. acts affecting a personal financial interest

    .01 Title 18, U.S.C., section 208 prohibits an officer or employee, 
including a special Government employee, from participating personally 
and substantially in a governmental capacity in any 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 negotiating or has any 
arrangement concerning prospective employment, has a financial interest.
    .02 Section 208 does not apply:
    a. If the officer or employee first advises the head of the 
operating unit concerned of the nature and circumstances of the matter 
involved, makes full disclosure of the financial interest, and receives 
in advance a written determination made by such official, with the 
approval of the appropriate program Secretarial Officer, 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 the 
officer or employee; or
    b. If, by general rule or regulation published in the Federal 
Register, the financial interest has been exempted from the requirements 
of section 208 as being too remote or too inconsequential to affect the 
integrity of Government officers' or employees' services.

             f. salary of government officials and employees

    .01 Title 18, U.S.C., section 209, prohibits:
    a. An officer or employee from receiving any salary, or any 
contribution to or supplementation of salary, as compensation for his 
services as an officer or employee of the United States from any source 
other than the Government of the United States, except as may be 
contributed out of the treasury of a State, county, or municipality; and
    b. Any person or organization from paying, contributing to, or 
supplementing the salary of an officer or employee under circumstances 
which would make its receipt a violation of subparagraph .01a. of this 
section.
    .02 Section 209:
    a. Does not prevent a Government employee from continuing to 
participate in a bona fide pension or other welfare plan maintained by a 
former employer;
    b. Exempts special Government employees and employees serving the 
Government without compensation, and grants a corresponding exemption to 
any outside person paying compensation to such individuals; and
    c. Does not prohibit the payment or acceptance of sums under the 
terms of the Government Employees Training Act.

                g. code of ethics for government service

    ``Code of Ethics for Government Service,'' House Concurrent 
Resolution 175, 85th Congress, 2d Session, 72 Stat. B12 of July 11, 
1958, which reads as follows:
    ``Any Person in Government Service Should:
    ``Put loyalty to the highest moral principles and to country above 
loyalty to persons, party, or Government department.
    ``UPHOLD the Constitution, laws, and legal regulations of the United 
States and all governments therein and never be a party to their 
evasion.
    ``GIVE a full day's labor for a full day's pay; giving to the 
performance of his duties his earnest effort and best thought.
    ``SEEK to find and employ more efficient and economical ways of 
getting tasks accomplished.

[[Page 24]]

    ``NEVER discriminate unfairly by the dispensing of special favors or 
privileges to anyone, whether for remuneration or not; and never accept 
for himself or his family, favors or benefits under circumstances which 
might be construed by reasonable persons as influencing the performance 
of his governmental duties.
    ``MAKE no private promises of any kind binding upon the duties of 
office, since a Government employee has no private word which can be 
binding on public duty.
    ``ENGAGE in no business with the Government, either directly or 
indirectly, which is inconsistent with the conscientious performance of 
his governmental duties.
    ``NEVER use any information coming to him confidentially in the 
performance of governmental duties as a means for making private profit.
    ``EXPOSE corruption wherever discovered.
    ``UPHOLD these principles, ever conscious that public office is a 
public trust.''

                             h. prohibitions

    .01 The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913) reads as follows:
    ``No part of the money appropriated by any enactment of Congress 
shall, in the absence of express authorization by Congress, be used 
directly or indirectly to pay for any personal service, advertisement, 
telegram, telephone, letter, printed or written matter, or other device, 
intended or designed to influence in any manner a Member of Congress, to 
favor or oppose, by vote or otherwise, any legislation or appropriation 
by Congress, whether before or after the introduction of any bill or 
resolution proposing such legislation or appropriation, but this shall 
not prevent officers or employees of the United States or of its 
departments or agencies from communicating to Members of Congress on the 
request of any Member or to Congress, through the proper official 
channels, requests for legislation or appropriations which they deem 
necessary for the efficient conduct of the public business.
    ``Whoever, being an officer or employee of the United States or of 
any department or agency thereof, violates or attempts to violate this 
section, shall be fined not more than $500 or imprisoned not more than 1 
year, or both; and after notice and hearing by the superior officer 
vested with the power of removing him, shall be removed from office or 
employment.''
    .02 The prohibitions against disloyalty and striking (5 U.S.C. 7311, 
18 U.S.C. 1918). An individual may not accept or hold a position in the 
Government of the United States if he:
    a. Advocates the overthrow of our constitutional form of government;
    b. Is a member of an organization that he knows advocates the 
overthrow of our constitutional form of government;
    c. Participates in a strike, or asserts the right to strike, against 
the Government of the United States or the government of the District of 
Columbia; or
    d. Is a member of an organization of employees of the Government of 
the United States or of individuals employed by the government of the 
District of Columbia that he knows asserts the right to strike against 
the Government of the United States or the government of the District of 
Columbia.
    .03 The prohibition against employment of a member of a Communist 
organization (50 U.S.C. 784).
    .04 The prohibitions against (a) the disclosure of classified 
information (18 U.S.C. 798, 50 U.S.C. 788); and (b) the disclosure of 
confidential information (18 U.S.C. 1905). Each employee who has access 
to classified information, e.g., confidential, secret, or top secret, or 
to a restricted area is responsible for knowing and for complying 
strictly with the security regulations of the Department of Commerce. 
(See Administrative Order 207-2.)
    .05 The prohibition against employment in the competitive civil 
service of any person who habitually uses intoxicating beverages to 
excess (5 U.S.C. 7352).
    .06 The prohibition against the misuse of a Government vehicle (31 
U.S.C. 638a(c)). No employee may willfully use or authorize the use of a 
Government-owned or Government-leased passenger motor vehicle or 
aircraft for other than official purposes.
    .07 The prohibition against the use of the franking privilege to 
avoid payment of postage on private mail (18 U.S.C. 1719).
    .08 The prohibition against the use of deceit in an examination or 
personnel action in connection with Government employment (18 U.S.C. 
1917).
    .09 The prohibition against fraud or false statements in a 
Government matter (18 U.S.C. 1001). An employee in connection with an 
official matter shall not knowingly and willfully conceal or cover up a 
material fact or falsify official papers or documents.
    .10 The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071). No employee may conceal, remove, mutilate, or destroy 
Government documents or records except for the disposition of records in 
accordance with law or regulation.
    .11 The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508). Falsely making, altering or 
forging, in whole or in part, any form of transportation request is 
prohibited.
    .12 The prohibitions against:
    a. Embezzlement of Government money or property (18 U.S.C. 641). No 
employee may convert any Government money or Government property to his 
own use or the use of another person.

[[Page 25]]

    b. Failure to account for public money (18 U.S.C. 643). Any 
employee, who, having received public money which he is not authorized 
to retain, fails to render his accounts for same as provided by law, is 
guilty of embezzlement.
    c. Embezzlement of the money or property of another person in the 
possession of the employee by reason of his employment (18 U.S.C. 654). 
An employee is prohibited from embezzling or wrongfully converting for 
his own use the money or property of another which comes under his 
control as the result of his employment.
    .13 The prohibition against unauthorized removal or use of documents 
relating to claims from or by the Government (18 U.S.C. 285). No 
employee, without authority, may remove from the place where it was kept 
by authority of the United States any document, record, file, or paper 
intended to be used to procure the payment of money from or by the 
United States or the allowance or payment of any claim against the 
United States, regardless of whether the document or paper has already 
been used or the claim has already been allowed or paid; and no employee 
may use or attempt to use any such document, record, file, or paper to 
procure the payment of any money from or by the United States or the 
allowance or payment of any claim against the United States.
    .14 The prohibition against proscribed political activities, 
including the following, among others:
    a. Using official authority or influence for the purpose of 
interfering with or influencing the result of an election, except as 
authorized by law (5 U.S.C. 7324);
    b. Taking an active part in political management or in political 
campaigns, except as authorized by law (5 U.S.C. 7324);
    c. Offering or promising to pay anything of value in consideration 
of the use of, or promise to use, any influence to procure any 
appointive office or place under the United States for any person (18 
U.S.C. 210);
    d. Soliciting or receiving, either as a political contribution or 
for personal emolument, anything of value in consideration of a promise 
of support or use of influence in obtaining for any person any 
appointive office or place under the United States (18 U.S.C. 211);
    e. Using official authority to interfere with a Federal election (18 
U.S.C. 595);
    f. Promising any employment compensation, or other benefit made 
possible by Act of Congress in consideration of political activity or 
support (18 U.S.C. 600);
    g. Action by a Federal officer or employee to solicit or receive, or 
to be in any manner concerned with soliciting or receiving, any 
contribution for any political purpose whatever from any other Federal 
officer or employee or from any person receiving compensation for 
services from money derived from the Treasury of the United States (18 
U.S.C. 602);
    h. Soliciting or receiving (by any person) anything of value for any 
political purpose whatever on any Government premises (18 U.S.C. 603);
    i. Soliciting or receiving contributions for political purposes from 
anyone on Federal relief or work relief (18 U.S.C. 604);
    j. Payment of a contribution for political purposes by any Federal 
officer or employee to another Federal officer or employee (18 U.S.C. 
607); and
    k. Payment of a political contribution in excess of statutory 
limitations and purchase of goods, commodities, advertising, or articles 
the proceeds of which inure to the benefit of certain political 
candidates or organizations (18 U.S.C. 608).
    .15 The prohibition against an employee acting as the agent of a 
foreign principal registered under the Foreign Agents Registration Act 
(18 U.S.C. 219).

   Appendix B to Part 0--Position Categories, Grade GS-13, and Above, 
Requiring Statements of Employment and Financial Interests by Incumbents

    (1) Auditors.
    (2) Attorneys other than attorneys engaged in patent examining or 
trademark examining operations.
    (3) Heads of divisions or comparable organization units, GS-15 or 
above.
    (4) Heads of field offices or installations, GS-15 or above.
    (5) Employees in positions involving assigned duties and 
responsibilities which require the incumbent to make fact-finding 
determinations or to exercise judgment in recommending a decision or an 
action in regard to:
    a. Evaluation, appraisal, or selection of contractors or sub-
contractors, prospective contractors or prospective subcontractors, 
proposals of such contractors or subcontractors, the activities 
performed by such contractors or subcontractors, or determination of the 
extent of compliance of such contractors or subcontractors with contract 
provisions.
    b. Negotiation, modification, or approval of contracts or 
subcontracts.
    c. Evaluation, appraisal, or selection of prospective project sites, 
or locations of work or activities, including real property proposed for 
acquisition by purchase or otherwise.
    d. Inspection and quality assurance of material, products, or 
components for acceptability.
    e. Review or approval for access permits.
    f. Technical planning or design which involves the preparation of 
specifications or technical requirements.

[[Page 26]]

    g. Negotiation of agreements for cooperation or implementing 
arrangements with foreign countries, international organizations, or 
non-Federal enterprises.
    h. Analysis, evaluation, or review of license applications.
    i. Analysis, evaluation, or review of licensees' compliance with 
Department of Commerce regulations and requirements.
    j. Utilization or disposal of excess or surplus property.
    k. Procurement of materials, services, supplies, or equipment.
    l. Authorization or monitoring of grants or subsidies to educational 
institutions or other non-Federal enterprises.
    m. Audit of financial transactions.
    n. Promulgation of safety standards, procedures, and hazards 
evaluation systems.
    o. Other activities where the decision or action has a substantial 
economic impact on the interests of a non-Federal enterprise.

    Appendix C to Part 0--Position Categories Below GS-13 Requiring 
     Statements of Employment and Financial Interests by Incumbents

    (1) Employees in the National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, who are in the following 
categories of positions:
    (a) Special Agents (Fish and Wildlife), Series GS-1812, grades 5 
through 12.
    (b) Fishery Products Inspectors, Series GS-1863, grades 5 through 
12.

(5 CFR 735.104, 735.403)

[50 FR 2276, Jan. 16, 1985]



PART 1_THE SEAL OF THE DEPARTMENT OF COMMERCE--Table of Contents




Sec.
1.1 Purpose.
1.2 Description and design.
1.3 Delegation of authority.

    Authority: Sec. 1, 32 Stat. 825, as amended, 15 U.S.C. 1501.

    Source: 33 FR 9337, June 26, 1968, unless otherwise noted.



Sec.  1.1  Purpose.

    The purpose of this part is to describe the seal of the Department 
of Commerce and to delegate authority to affix the seal to 
certifications and documents of the Department.



Sec.  1.2  Description and design.

    (a) The Act of February 14, 1903 (32 Stat. 825, as amended) (15 
U.S.C. 1501), which established the Department of Commerce, provided 
that ``The said Secretary shall cause a seal of office to be made for 
the said department of such device as the President shall approve, and 
judicial notice shall be taken of the said seal.'' On April 4, 1913, the 
President approved and declared to be the seal of the Department of 
Commerce the device which he described as follows:

    Arms: Per fesse azure and or, a ship in full sail on waves of the 
sea, in chief proper; and in base a lighthouse illumined proper.

    Crest: The American Eagle displayed. Around the Arms, between two 
concentric circles, are the words:

                         Department of Commerce

                        United States of America

    (b) The design of the approved seal is as shown below. Where 
necessitated by requirements of legibility, immediate comprehension, or 
clean reproduction, the concentric circles may be eliminated from the 
seal on publications and exhibits, and in slides, motion pictures, and 
television. In more formal uses of the seal, such as on letterheads, the 
full, proper rendition of the seal shall be used.
[GRAPHIC] [TIFF OMITTED] TC20SE91.005

    (c) The official symbolism of the seal shall be the following: The 
ship is a symbol of commerce; the blue denotes uprightness and 
constancy; the lighthouse is a well-known symbol representing guidance 
from the darkness which is translated to commercial enlightenment; and 
the gold denotes purity. The crest is the American bald eagle denoting 
the national scope of

[[Page 27]]

the Department's activities. (The above is a modification of the 
original symbolism issued with the President's approval of the seal, 
made necessary by

changes in the functions of the Department.)



Sec.  1.3  Delegation of authority.

    (a) Pursuant to authority vested in the Secretary of Commerce by 
law, (1) the Chief Administrative Officer of each operating unit, and 
(2) the Director, Office of Administrative Services in the Office of the 
Secretary, are hereby authorized to sign as Certifying Officers 
certifications as to the official nature of copies of correspondence and 
records from the files, publications and other documents of the 
Department and to affix the seal of the Department of Commerce to such 
certifications or documents for all purposes, including the purpose 
authorized by 28 U.S.C. 1733(b).
    (b) Delegations of authority to persons other than those named in 
paragraph (a) of this section may be made by the Assistant Secretary for 
Administration.
    (c) This delegation shall not affect or prejudice the use of 
properly authorized office or bureau seals in appropriate cases.



PART 2_PROCEDURES FOR HANDLING AND SETTLEMENT OF CLAIMS UNDER THE FEDERAL 
TORT CLAIMS ACT--Table of Contents




Sec.
2.1 Purpose.
2.2 Provisions of law and regulations thereunder.
2.3 Delegation of authority.
2.4 Procedure for filing claims.
2.5 Adjudication and settlement of claims.
2.6 Payment of claims.
2.7 Supplementary regulations.

    Authority: 28 U.S.C. 2672.



Sec.  2.1  Purpose.

    (a) The purpose of this part is to delegate authority to settle or 
deny claims under the Federal Tort Claims Act (in part, 28 U.S.C. 2671-
2680) as amended by Pub. L. 89-506, 80 Stat. 306, and to establish 
procedures for the administrative adjudication of such claims accruing 
on or after January 18, 1967.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983]



Sec.  2.2  Provisions of law and regulations thereunder.

    (a) Section 2672 of Title 28, U.S. Code, as above amended, provides 
that:

    The head of each Federal agency or his designee, in accordance with 
regulations prescribed by the Attorney General, may consider, ascertain, 
adjust, determine, compromise, and settle any claim for money damages 
against the United States for injury or loss of property or personal 
injury or death caused by the negligent or wrongful act or omission of 
any employee of the agency while acting within the scope of his office 
or employment, under circumstances where the United States, if a private 
person, would be liable to the claimant in accordance with the law of 
the place where the act or omission occurred: Provided, that any award, 
compromise, or settlement in excess of $25,000 shall be effected only 
with the prior written approval of the Attorney General or his designee.
    Subject to the provisions of this title relating to civil actions on 
tort claims against the United States, any such award, compromise, 
settlement, or determination shall be final and conclusive on all 
officers of the Government, except when procured by means of fraud.
    Any award, compromise, or settlement in an amount of $2,500 or less 
made pursuant to this section shall be paid by the head of the Federal 
agency concerned out of appropriations available to that agency. Payment 
of any award, compromise, or settlement in an amount in excess of $2,500 
made pursuant to this section or made by the Attorney General in any 
amount pursuant to section 2677 of this title shall be paid in a manner 
similar to judgments and compromises in like causes and appropriations 
or funds available for the payment of such judgments and compromises are 
hereby made available for the payment of awards, compromises, or 
settlements under this chapter.
    The acceptance by the claimant of any such award, compromise, or 
settlement shall be final and conclusive on the claimant, and shall 
constitute a complete release of any claim against the United States and 
against the employee of the Government whose act or omission gave rise 
to the claim, by reason of the same subject matter.

    (b) Subsection (a) section 2675 of said Title 28 provides that:

    An action shall not be instituted upon a claim against the United 
States for money

[[Page 28]]

damages for injury or loss of property or personal injury or death 
caused by the negligent or wrongful act or omission of any employee of 
the Government while acting within the scope of his office or 
employment, unless the claimant shall have first presented the claim to 
the appropriate Federal agency and his claim shall have been finally 
denied by the agency in writing and sent by certified or registered 
mail. The failure of an agency to make final disposition of a claim 
within 6 months after it is filed shall, at the option of the claimant 
any time thereafter, be deemed a final denial of the claim for purposes 
of this section. The provisions of this subsection shall not apply to 
such claims as may be asserted under the Federal Rules of Civil 
Procedure by third party complaint, crossclaim, or counterclaim.

    (c) Section 2678 of said Title 28 provides that no attorney shall 
charge fees in excess of 25 percent of a judgment or settlement after 
litigation, or over 20 percent of administrative settlements.
    (d) Section 2401(b) of said Title 28 provides that:

    A tort claim against the United States shall be forever barred 
unless it is presented in writing to the appropriate Federal agency 
within 2 years after such claim accrues or unless action is begun within 
6 months after the date of mailing, by certified or registered mail, of 
notice of final denial of the claim by the agency to which it was 
presented.

    (e) Pursuant to section 2672 as amended, the Attorney General has 
issued regulations (herein referred to as ``the Regulations''; 28 CFR 
Part 14) prescribing standards and procedures for settlement of tort 
claims (31 FR 16616). Persons delegated authority under this part shall 
follow and be guided by such Regulations (28 CFR Part 14).

[32 FR 3769, Mar. 7, 1967, as amended at 63 FR 29945, June 2, 1998]



Sec.  2.3  Delegation of authority.

    (a) The General Counsel is hereby named as the designee of the 
Secretary ofCommerce with respect to tort claims filed under section 
2672 of Title 28, U.S. Code, as described in Sec.  2.2, with authority 
to act on such claims as provided in said section 2672, including denial 
thereof.
    (b) Authority delegated under this section may, with the approval of 
the General Counsel, be redelegated to other designees.
    (c) Settlement or denial of any claim under this part is final for 
the Department of Commerce.

[48 FR 31636, July 11, 1983]



Sec.  2.4  Procedure for filing claims.

    (a) The procedure for filing and the contents of claims shall be 
pursuant to Sec. Sec.  14.2, 14.3, and 14.4 of the Regulations (28 CFR 
Part 14).
    (b) Claims shall be filed with the Assistant General Counsel for 
Finance and Litigation, Department of Commerce, Washington, D.C. 20230.
    (c) If a claim is filed elsewhere in the Department, it shall 
immediately be recorded and transmitted to the Assistant General Counsel 
for Finance and Litigation.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63 
FR 29945, June 2, 1998]



Sec.  2.5  Adjudication and settlement of claims.

    (a) Upon receipt of a claim by the Assistant General Counsel for 
Finance and Litigation, the time and date of receipt shall be recorded. 
The Assistant General Counsel may, after recording the claim, transmit 
it to the Departmental office or primary operating unit involved in the 
claim and request that an investigation be conducted. The appropriate 
Departmental office or primary operating unit shall designate an 
official to conduct the investigation, who shall prepare a file, obtain 
additional information as necessary, and prepare for the Assistant 
General Counsel's signature a proposed award or denial of the claim. If 
the investigation capabilities of the office or unit are insufficient 
for a proper and complete investigation, the office or unit shall 
consult with the Departmental Office of Investigations and Security to:
    (1) Have that Office conduct the investigation or
    (2) Request another Federal agency to conduct the investigation as 
necessary, pursuant to Sec.  14.8 of the regulations (28 CFR Part 14), 
all on a reimbursable basis.
    (b) If the amount of the proposed award exceeds $25,000 (in which 
case,

[[Page 29]]

approval by the Attorney General is required), or if consultation with 
the Department of Justice is desired or required pursuant to Sec.  14.6 
of the regulations, the Assistant General Counsel for Finance and 
Litigation will prepare and compile the material required by the 
Department of Justice under Sec.  14.7 of the Regulations.
    (c) Denial of a claim shall be communicated as provided by Sec.  
14.9 of the regulations (28 CFR Part 14).
    (d) Designees hereunder are responsible for the control over and 
expeditious handling of claims, bearing in mind the applicable statutory 
time limitations for adjudications of claims.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63 
FR 29945, June 2, 1998]



Sec.  2.6  Payment of claims.

    When an award is made, the file on the case shall be transmitted to 
the appropriate fiscal office for payment by the Department or for 
transmittal for payment as prescribed by Sec.  14.10 of the Regulations 
(28 CFR Part 14). Prior to payment appropriate releases shall be 
obtained, as provided in said section.

[32 FR 3769, Mar. 7, 1967]



Sec.  2.7  Supplementary regulations.

    (a) The Assistant General Counsel for Finance and Litigation may 
from time to time issue such supplementary regulations or instructions 
as he/she deems appropriate to carry out the purpose of this part.
    (b) Any designee mentioned in paragraph (a) of Sec.  2.3 may issue 
regulations or instructions covering his/her area of responsibility 
hereunder which are consistent with this part and with those issued 
under paragraph (a) of this section, such regulations and instructions 
to be approved by the Assistant General Counsel for Finance and 
Litigation.

[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983. 
Redesignated and amended at 63 FR 29945, June 2, 1998]

                            PART 3 [RESERVED]



PART 4_DISCLOSURE OF GOVERNMENT INFORMATION--Table of Contents




                  Subpart A_Freedom of Information Act

Sec.
4.1 General.
4.2 Public reference facilities.
4.3 Records under the FOIA.
4.4 Requirements for making requests.
4.5 Responsibility for responding to requests.
4.6 Time limits and expedited processing.
4.7 Responses to requests.
4.8 Classified information.
4.9 Business Information.
4.10 Appeals from initial determinations or untimely delays.
4.11 Fees.

                          Subpart B_Privacy Act

4.21 Purpose and scope.
4.22 Definitions.
4.23 Procedures for making inquiries.
4.24 Procedures for making requests for records.
4.25 Disclosure of requested records to individuals.
4.26 Special procedures: Medical records.
4.27 Procedures for making requests for correction or amendment.
4.28 Agency review of requests for correction or amendment.
4.29 Appeal of initial adverse agency determination on correction or 
          amendment.
4.30 Disclosure of record to person other than the individual to whom it 
          pertains.
4.31 Fees.
4.32 Penalties.
4.33 General exemptions.
4.34 Specific exemptions.

Appendix A to Part 4--Freedom of Information Public Inspection 
          Facilities, and Addresses for Requests for Records Under the 
          Freedom of Information Act and Privacy Act, and Requests for 
          Correction or Amendment Under the Privacy Act.
Appendix B to Part 4--Officials Authorized to Deny Requests for Records 
          Under the Freedom of Information Act, and Requests for Records 
          and Requests for Correction or Amendment Under the Privacy 
          Act.
Appendix C to Part 4--Systems of Records Noticed by Other Federal 
          Agencies and Applicable to Records of the Department, and 
          Applicability of this Part Thereto.

    Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 553; 
31 U.S.C. 3717; 44 U.S.C. 3101; Reorganization Plan No. 5 of 1950.

[[Page 30]]


    Source: 66 FR 65632, Dec. 20, 2001, unless otherwise noted.



                  Subpart A_Freedom of Information Act



Sec.  4.1  General.

    (a) The information in this part is furnished for the guidance of 
the public and in compliance with the requirements of the Freedom of 
Information Act (FOIA), as amended (5 U.S.C. 552). This part sets forth 
the procedures the Department of Commerce (Department) and its 
components follow to make publicly available the materials and indices 
specified in 5 U.S.C. 552(a)(2) and records requested under 5 U.S.C. 
552(a)(3). Information routinely provided to the public as part of a 
regular Department activity (for example, press releases issued by the 
Office of Public Affairs) may be provided to the public without 
following this part.
    (b) As used in this subpart, component means any office, division, 
bureau or other unit of the Department listed in Appendix A to this part 
(except that a regional office of a larger office or other unit does not 
constitute a separate component).



Sec.  4.2  Public reference facilities.

    (a) The Department maintains public reference facilities (listed in 
Appendix A to this part) that contain the records the FOIA requires to 
be made regularly available for public inspection and copying; furnishes 
information; receives and processes requests for records under the FOIA; 
and otherwise assists the public concerning Department operations under 
the FOIA.
    (b) Each component of the Department shall determine which of its 
records are required to be made available for public inspection and 
copying, and make those records available either in its own public 
reference facility or in the Department's Central Reference and Records 
Inspection Facility. Each component shall maintain and make available 
for public inspection and copying a current subject-matter index of its 
public inspection facility records. Each index shall be updated 
regularly, at least quarterly, with respect to newly included records. 
In accordance with 5 U.S.C. 552(a)(2), the Department has determined 
that it is unnecessary and impracticable to publish quarterly or more 
frequently and distribute copies of the index and supplements thereto.
    (c) Each component shall make public inspection facility records 
created on or after November 1, 1996 available electronically through 
the Department's ``FOIA Home Page'' link found at the Department's World 
Wide Web site (http://www.doc.gov). Information available at the site 
shall include:
    (1) Each component's index of its public inspection facility 
records, which indicates which records are available electronically; and
    (2) The general index referred to in paragraph (d)(3) of this 
section.
    (d) The Department shall maintain and make available for public 
inspection and copying:
    (1) A current index providing identifying information for the public 
as to any matter that is issued, adopted, or promulgated after July 4, 
1997, and that is retained as a record and is required to be made 
available or published. Copies of the index are available upon request 
after payment of the direct cost of duplication;
    (2) Copies of records that have been released and that the component 
that maintains them determines, because of their subject matter, have 
become or are likely to become the subject of subsequent requests for 
substantially the same records;
    (3) A general index of the records described in paragraph (d)(2) of 
this section;
    (4) Final opinions and orders, including concurring and dissenting 
opinions made in the adjudication of cases;
    (5) Those statements of policy and interpretations that have been 
adopted by a component and are not published in the Federal Register; 
and
    (6) Administrative staff manuals and instructions to staff that 
affect a member of the public.



Sec.  4.3  Records under the FOIA.

    (a) Records under the FOIA include all Government records, 
regardless of format, medium or physical characteristics, and include 
electronic records and information, audiotapes, videotapes, and 
photographs.

[[Page 31]]

    (b) Under the FOIA, the Department has no obligation to create, 
compile, or obtain from outside the Department a record to satisfy a 
request. In complying with a request for electronic data, whether the 
Department creates or compiles records (as by undertaking significant 
programming work) or merely extracts them from an existing database may 
be unclear. The Department shall in any case undertake reasonable 
efforts to search for the information in electronic format.
    (c) Department officials may, upon request, create and provide new 
records pursuant to user fee statutes, such as the first paragraph of 15 
U.S.C. 1525, or in accordance with authority otherwise provided by law. 
Such creation and provision of records is outside the scope of the FOIA.
    (d) Components shall preserve all correspondence pertaining to the 
requests they receive under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
Title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Components shall not 
dispose of records while they are the subject of a pending request, 
appeal, or lawsuit under the FOIA.



Sec.  4.4  Requirements for making requests.

    (a) A request for records of the Department which are not 
customarily made available to the public as part of the Department's 
regular informational services must be in writing (and may be sent by 
mail, facsimile, or E-mail), and shall be processed under the FOIA, 
regardless whether the FOIA is mentioned in the request. Requests should 
be mailed to the Department component identified in Appendix A to this 
part that maintains those records, or may be sent by facsimile or E-mail 
to the numbers or addresses, respectively, listed at the Department's 
``FOIA Home Page'' link found at the Department's World Wide Web site 
(http://www.doc.gov).\1\ If the proper component cannot be determined, 
the request should be sent to the central facility identified in 
Appendix A to this part. The central facility will forward the request 
to the component(s) it believes most likely to have the requested 
records. For the quickest handling, the request (and envelope, if the 
request is mailed) should be marked ``Freedom of Information Act 
Request.''
---------------------------------------------------------------------------

    \1\ The United States Patent and Trademark Office (USPTO), which is 
established as an agency of the United States within the Department of 
Commerce, operates under its own FOIA regulations at 37 CFR part 102, 
subpart A. Accordingly, requests for USPTO records should be sent 
directly to the USPTO.
---------------------------------------------------------------------------

    (b) For requests for records about oneself, Sec.  4.24 contains 
additional requirements. For requests for records about another 
individual, either a written authorization signed by the individual 
permitting disclosure of his or her records to the requester or proof 
that the individual is deceased (for example, a copy of a death 
certificate or an obituary) facilitates processing the request.
    (c) The records requested must be described in enough detail to 
enable Department personnel to locate them with a reasonable amount of 
effort. If possible, a request should include specific information about 
each record sought, such as the date, title or name, author, recipient, 
and subject matter of the record, and the name and location of the 
office where the record is located. Also, if records about a court case 
are sought, the title of the case, the court in which the case was 
filed, and the nature of the case should be included. If known, any file 
designations or descriptions of the requested records should be 
included. In general, the more specifically the request describes the 
records sought, the greater the likelihood that the Department will be 
able to locate those records. If a component determines that a request 
does not reasonably describe records, it shall inform the requester what 
additional information is needed or how the request is otherwise 
insufficient, to enable the requester to modify the request to meet the 
requirements of this section.

[[Page 32]]



Sec.  4.5  Responsibility for responding to requests.

    (a) In general. Except as stated in paragraph (b) of this section, 
the proper component of the Department to respond to a request for 
records is the component that first receives the request and has 
responsive records, or the component to which the Departmental Freedom 
of Information Officer assigns lead responsibility for responding to the 
request. Records responsive to a request shall include only those 
records within the Department's possession and control as of the date 
the proper component receives the request.
    (b) Consultations and referrals. If a component receives a request 
for a record in its possession in which another Federal agency subject 
to the FOIA has the primary interest, the component shall refer the 
record to that agency for direct response to the requester. Ordinarily, 
the agency that originated a record will be presumed to have the primary 
interest in it. A component shall consult with another Federal agency 
before responding to a requester if the component receives a request for 
a record in which another Federal agency subject to the FOIA has a 
significant interest, but not the primary interest; or another Federal 
agency not subject to the FOIA has the primary interest or a significant 
interest (see Sec.  4.8 for additional information about referrals of 
classified information).
    (c) Notice of referral. Whenever a component refers a document to 
another Federal agency for direct response to the requester, it 
ordinarily shall notify the requester in writing of the referral and 
inform the requester of the name of the agency to which the document was 
referred.
    (d) Timing of responses to consultations and referrals. All 
consultations and referrals shall be handled in chronological order, 
based on when the FOIA request was received by the first Federal agency.
    (e) Agreements regarding consultations and referrals. Components may 
make agreements with other Federal agencies to eliminate the need for 
consultations or referrals for particular types of records.



Sec.  4.6  Time limits and expedited processing.

    (a) In general. Components ordinarily shall respond to requests 
according to their order of receipt.
    (b) Initial response and appeal. Subject to paragraph (c)(1) of this 
section, an initial response shall be made within 20 working days (i.e., 
excluding Saturdays, Sundays, and legal public holidays) of the receipt 
of a request for a record under this part by the proper component 
identified in accordance with Sec.  4.5(a), and an appeal shall be 
decided within 20 working days of its receipt by the Office of the 
General Counsel.
    (c) Unusual circumstances. (1) In unusual circumstances as specified 
in paragraph (c)(2) of this section, an official listed in Appendix B to 
this part may extend the time limits in paragraph (b) of this section by 
notifying the requester in writing as soon as practicable of the unusual 
circumstances and of the date by which processing of the request is 
expected to be completed. If the extension is for more than ten working 
days, the component shall provide the requester an opportunity either to 
modify the request so that it may be processed within the applicable 
time limit, or to arrange an alternative time frame for processing the 
request or a modified request.
    (2) As used in this section, unusual circumstances means, but only 
to the extent reasonably necessary to properly process the particular 
request:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments separate from the office 
processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are the subject 
of a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another component or Federal agency having a 
substantial interest in the determination of the request.
    (3) If a component reasonably believes that multiple requests 
submitted by a requester, or by a group of requesters acting in concert, 
constitute a

[[Page 33]]

single request that would otherwise involve unusual circumstances, and 
the requests involve clearly related matters, the component may 
aggregate them. Multiple requests involving unrelated matters will not 
be aggregated.
    (d) Multitrack processing. (1) A component may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the number of pages involved, or some other measure of 
the amount of work and/or time needed to process the request, and 
whether the request qualifies for expedited processing as described in 
paragraph (e) of this section.
    (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. A component doing so 
shall contact the requester by telephone, E-mail, or letter, whichever 
is most efficient in each case.
    (e) Expedited processing. (1) Requests and appeals shall be taken 
out of order and given expedited treatment whenever it is determined 
that they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) The loss of substantial due process rights;
    (iii) A matter of widespread and exceptional media interest 
involving questions about the Government's integrity which affect public 
confidence; or
    (iv) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person primarily engaged in 
disseminating information.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing should be sent to the 
component listed in Appendix A to this part that maintains the records 
requested.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requester within the category 
described in paragraph (e)(1)(iv) 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 
requester within the category described in paragraph (e)(1)(iv) of this 
section must also 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.
    (4) Within ten calendar days of its receipt of a request for 
expedited processing, the proper component shall decide whether to grant 
it and shall notify the requester of the decision. Solely for purposes 
of calculating the foregoing time limit, any request for expedited 
processing shall always be considered received on the actual date of 
receipt by the proper component. If a request for expedited processing 
is granted, the request shall be given priority and processed as soon as 
practicable, subject to Sec.  4.11(i). If a request for expedited 
processing is denied, any appeal of that decision shall be acted on 
expeditiously.



Sec.  4.7  Responses to requests.

    (a) Grants of requests. If a component makes a determination to 
grant a request in whole or in part, it shall notify the requester in 
writing. The component shall inform the requester in the notice of any 
fee to be charged under Sec.  4.11 and disclose records to the requester 
promptly upon payment of any applicable fee. Records disclosed in part 
shall be marked or annotated to show the applicable FOIA exemption(s) 
and the amount of information deleted, unless doing so would harm an 
interest protected by an applicable exemption. The location of the 
information deleted shall also be indicated on the record, if feasible.
    (b) Adverse determinations of requests. If a component makes an 
adverse determination regarding a request, it shall notify the requester 
of that determination in writing. An adverse determination is a denial 
of a request in any

[[Page 34]]

respect, namely: a determination to withhold any requested record in 
whole or in part; a determination that a requested record does not exist 
or cannot be located; a determination that a record is not readily 
reproducible in the form or format sought by the requester; a 
determination that what has been requested is not a record subject to 
the FOIA (except that a determination under Sec.  4.11(j) that records 
are to be made available under a fee statute other than the FOIA is not 
an adverse determination); a determination against the requester on any 
disputed fee matter, including a denial of a request for a reduction or 
waiver of fees; or a denial of a request for expedited processing. Each 
denial letter shall be signed by an official listed in Appendix B to 
this part, and shall include:
    (1) The name and title or position of the denying official;
    (2) A brief statement of the reason(s) for the denial, including 
applicable FOIA exemption(s);
    (3) An estimate of the volume of records or information withheld, in 
number of pages or some other reasonable form of estimation. This 
estimate need not 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 FOIA 
exemption; and
    (4) A statement that the denial may be appealed, and a list of the 
requirements for filing an appeal under Sec.  4.10(b).



Sec.  4.8  Classified Information.

    In processing a request for information classified under Executive 
Order 12958 or any other executive order concerning the classification 
of records, the information shall be reviewed to determine whether it 
should remain classified. Ordinarily the component or other Federal 
agency that classified the information should conduct the review, except 
that if a record contains information that has been derivatively 
classified by a component because it contains information classified by 
another component or agency, the component shall refer the 
responsibility for responding to the request to the component or agency 
that classified the underlying information. Information determined to no 
longer require classification shall not be withheld on the basis of FOIA 
exemption (b)(1) (5 U.S.C. 552(b)(1)), but should be reviewed to assess 
whether any other FOIA exemptions should be invoked. Appeals involving 
classified information shall be processed in accordance with Sec.  
4.10(c).



Sec.  4.9  Business Information.

    (a) In general. Business information obtained by the Department from 
a submitter will be disclosed under the FOIA only under this section.
    (b) Definitions. For the purposes of this section:
    (1) Business information means commercial or financial information, 
obtained by the Department from a submitter, which may be protected from 
disclosure under FOIA exemption (b)(4) (5 U.S.C. 552(b)(4)).
    (2) Submitter means any person or entity outside the Federal 
Government from which the Department obtains business information, 
directly or indirectly. The term includes corporations; state, local and 
tribal governments; and foreign governments.
    (c) Designation of business information. A submitter of business 
information should designate by appropriate markings, either at the time 
of submission or at a reasonable time thereafter, any portions of its 
submission that it considers protected from disclosure under FOIA 
exemption (b)(4). These designations will expire ten years after the 
date of the submission unless the submitter requests, and provides 
justification for, a longer period.
    (d) Notice to submitters. A component shall provide a submitter with 
prompt written notice of a FOIA request or administrative appeal that 
seeks its business information whenever required under paragraph (e) of 
this section, except as provided in paragraph (h) of this section, in 
order to give the submitter an opportunity under paragraph (f) of this 
section to object to disclosure of any specified portion of that 
information. Such written notice shall be sent via certified mail, 
return receipt requested, or similar means. The notice shall either 
describe the business information requested or include copies of the 
requested records containing the

[[Page 35]]

information. If notification of a large number of submitters is 
required, notification may be made by posting or publishing the notice 
in a place reasonably likely to accomplish notification.
    (e) When notice is required. Notice shall be given to the submitter 
whenever:
    (1) The submitter has designated the information in good faith as 
protected from disclosure under FOIA exemption (b)(4); or
    (2) The component has reason to believe that the information may be 
protected from disclosure under FOIA exemption (b)(4).
    (f) Opportunity to object to disclosure. A component shall allow a 
submitter seven working days (i.e., excluding Saturdays, Sundays, and 
legal public holidays) from the date of receipt of the written notice 
described in paragraph (d) of this section to provide the component with 
a statement of any objection to disclosure. The statement must identify 
any portions of the information the submitter requests to be withheld 
under FOIA exemption (b)(4), and describe how each qualifies for 
protection under the exemption: that is, why the information is a trade 
secret, or commercial or financial information that is privileged or 
confidential. If a submitter fails to respond to the notice within the 
time specified, the submitter will be considered to have no objection to 
disclosure of the information. Information a submitter provides under 
this paragraph may itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. A component shall consider a 
submitter's objections and specific grounds under the FOIA for 
nondisclosure in deciding whether to disclose business information. If a 
component decides to disclose business information over a submitter's 
objection, the component shall give the submitter written notice via 
certified mail, return receipt requested, or similar means, which shall 
include:
    (1) A statement of reason(s) why the submitter's objections to 
disclosure were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A statement that the component intends to disclose the 
information seven working days from the date the submitter receives the 
notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The component determines that the information should not be 
disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other than 
the FOIA) or by a regulation issued in accordance with Executive Order 
12600; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, in which case the component 
shall provide the submitter written notice of any final decision to 
disclose the information seven working days from the date the submitter 
receives the notice.
    (i) Notice to submitter of FOIA lawsuit. Whenever a requester files 
a lawsuit seeking to compel the disclosure of business information, the 
component shall promptly notify the submitter.
    (j) Corresponding notice to requester. Whenever a component provides 
a submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, the component shall also notify the 
requester. Whenever a submitter files a lawsuit seeking to prevent the 
disclosure of business information, the component shall notify the 
requester.



Sec.  4.10  Appeals from initial determinations or untimely delays.

    (a) If a request for records is initially denied in whole or in 
part, or has not been timely determined, or if a requester receives an 
adverse initial determination regarding any other matter under this 
subpart (as described in Sec.  4.7(b)), the requester may file a written 
appeal, which must be received by the Office of General Counsel within 
thirty calendar days of the date of the written denial or, if there has 
been no determination, may be submitted anytime after the due date, 
including the last extension under Sec.  4.6(c), of the determination.

[[Page 36]]

    (b) Appeals shall be decided by the Assistant General Counsel for 
Administration (AGC-Admin), except that appeals from requests initially 
denied by the AGC-Admin shall be decided by the General Counsel. Appeals 
should be addressed to the AGC-Admin, or the General Counsel if the 
records were initially denied by the AGC-Admin. The address of both is: 
U.S. Department of Commerce, Office of General Counsel, Room 5875, 14th 
Street and Constitution Avenue NW, Washington, DC 20230. Both the letter 
and the appeal envelope should be clearly marked ``Freedom of 
Information Appeal''. The appeal must include a copy of the original 
request, the initial denial, if any, and a statement of the reasons why 
the records requested should be made available and why the initial 
denial, if any, was in error. No opportunity for personal appearance, 
oral argument or hearing on appeal is provided.
    (c) Upon receipt of an appeal involving records initially denied on 
the basis of FOIA exemption (b)(1), the records shall be forwarded to 
the Deputy Assistant Secretary for Security (DAS) for a declassification 
review. The DAS may overrule previous classification determinations in 
whole or in part if continued protection in the interest of national 
security is no longer required, or no longer required at the same level. 
The DAS shall advise the AGC-Admin, or the General Counsel, as 
appropriate, of his or her decision.
    (d) If an appeal is granted, the person who filed the appeal shall 
be immediately notified and copies of the releasable documents shall be 
made available promptly thereafter upon receipt of appropriate fees 
determined in accordance with Sec.  4.11.
    (e) If no determination on an appeal has been sent to the requester 
within the twenty working day period specified in Sec.  4.6(b) or the 
last extension thereof, the requester is deemed to have exhausted all 
administrative remedies with respect to the request, giving rise to a 
right of judicial review under 5 U.S.C. 552(a)(6)(C). If the requester 
initiates a court action against the Department based on the provision 
in this paragraph, the administrative appeal process may continue.
    (f) The determination on an appeal shall be in writing and, when it 
denies records in whole or in part, the letter to the requester shall 
include:
    (1) A brief explanation of the basis for the denial, including a 
list of the applicable FOIA exemptions and a description of how they 
apply;
    (2) A statement that the decision is final for the Department;
    (3) Notification that judicial review of the denial is available in 
the district court of the United States in the district in which the 
requester resides, or has his or her principal place of business, or in 
which the agency records are located, or in the District of Columbia; 
and
    (4) The name and title or position of the official responsible for 
denying the appeal.



Sec.  4.11  Fees.

    (a) In general. Components shall charge for processing requests 
under the FOIA in accordance with paragraph (c) of this section, except 
when fees are limited under paragraph (d) of this section or when a 
waiver or reduction of fees is granted under paragraph (k) of this 
section. A component shall collect all applicable fees before sending 
copies of requested records to a requester. Requesters must pay fees by 
check or money order made payable to the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include furthering 
those interests through litigation. Components shall determine, whenever 
reasonably possible, the use to which a requester will put the requested 
records. If it appears that the requester will put the records to a 
commercial use, or if a component has reasonable cause to doubt a 
requester's asserted non-commercial use, the component shall provide the 
requester a reasonable opportunity to submit further clarification.
    (2) Direct costs means those expenses a component incurs in 
providing a particular service. Such expenses would include, for 
example, the labor costs of

[[Page 37]]

the employee performing the service (the basic rate of pay for the 
employee, plus 16 percent of that rate to cover benefits). Not included 
in direct costs are overhead expenses such as the costs of space, 
heating, or lighting of the facility in which the service is performed.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies may take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk), among others. A 
component shall honor a requester's specified preference of form or 
format of disclosure if the component can reproduce the record in the 
requested form or format with reasonable effort.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To be in this category, a 
requester must show that the request is authorized by and is made under 
the auspices of a qualifying institution, and that the records are 
sought to further scholarly research rather than for a commercial use.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is defined in 
paragraph (b)(1) of this section, and that is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry. To be in this 
category, a requester must show that the request is authorized by and is 
made under the auspices of a qualifying institution and that the records 
are sought to further scientific research rather than for a commercial 
use.
    (6) Representative of the news media, or news media requester means 
any person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. The term ``news'' 
means information that is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only if they can qualify as disseminators 
of ``news'') that make their products available for purchase or 
subscription by the general public. For ``freelance'' journalists to be 
regarded as working for a news organization, they must demonstrate a 
solid basis for expecting publication through that organization. A 
publication contract would be the clearest proof, but components shall 
also look to the past publication record of a requester in making this 
determination. To be in this category, a requester must not be seeking 
the requested records for a commercial use. However, a request for 
records supporting the news-dissemination function of the requester 
shall not be considered to be for a commercial use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt from 
disclosure. It also includes processing any record for disclosure, for 
example, redacting it and marking any applicable exemptions. Review 
costs are recoverable even if a record ultimately is not disclosed. 
Review time does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. Components shall ensure 
that searches are done in the most efficient and least expensive manner 
reasonably possible.
    (c) Fees. In responding to FOIA requests, components shall charge 
the fees summarized in chart form in paragraphs (c)(1) and (c)(2) of 
this section and explained in paragraphs (c)(3) through (c)(5) of this 
section, unless a waiver or reduction of fees has been granted under 
paragraph (k) of this section.
    (1) The four categories and chargeable fees are:

[[Page 38]]



------------------------------------------------------------------------
                Category                         Chargeable fees
------------------------------------------------------------------------
(i) Commercial Use Requesters..........  Search, Review, and
                                          Duplication.
(ii) Educational and Non-commercial      Duplication (excluding the cost
 Scientific Institution Requesters.       of the first 100 pages).
(iii) Representatives of the News Media  Duplication (excluding the cost
                                          of the first 100 pages).
(iv) All Other Requesters..............  Search and Duplication
                                          (excluding the cost of the
                                          first 2 hours of search and
                                          100 pages).
------------------------------------------------------------------------

    (2) Uniform fee schedule.

------------------------------------------------------------------------
                Service                                Rate
------------------------------------------------------------------------
(i) Manual search......................  Actual salary rate of employee
                                          involved, plus 16 percent of
                                          salary rate.
(ii) Computerized search...............  Actual direct cost, including
                                          operator time.
(iii) Duplication of records:
    (A) Paper copy reproduction........  $.16 per page
    (B) Other reproduction (e.g.,        Actual direct cost, including
     computer disk or printout,           operator time.
     microfilm, microfiche, or
     microform).
    (iv) Review of records (including    Actual salary rate of employee
     redaction).                          conducting review, plus 16
                                          percent of salary rate.
------------------------------------------------------------------------

    (3) Search. (i) Search fees shall be charged for all requests--other 
than requests made by educational institutions, noncommercial scientific 
institutions, or representatives of the news media--subject to the 
limitations of paragraph (d) of this section. Components shall charge 
for time spent searching even if they do not locate any responsive 
records or if they withhold any records located as entirely exempt from 
disclosure. Search fees shall be the direct costs of conducting the 
search by the involved employees.
    (ii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, although certain requesters 
(as provided in paragraph (d)(1) of this section) will be charged no 
search fee and certain other requesters (as provided in paragraph (d)(3) 
of this section) are entitled to the cost equivalent of two hours of 
manual search time without charge.
    (4) Duplication. Duplication fees shall be charged to all 
requesters, subject to the limitations of paragraph (d) of this section. 
For a paper photocopy of a record (no more than one copy of which need 
be supplied), the fee shall be $.16 cents per page. For copies produced 
by computer, such as tapes or printouts, components shall charge the 
direct costs, including operator time, of producing the copy. For other 
forms of duplication, components shall charge the direct costs of that 
duplication.
    (5) Review. Review fees shall be charged to requesters who make a 
commercial use request. Review fees shall be charged only for the 
initial record review, in which a component determines whether an 
exemption applies to a particular record at the initial request level. 
No charge shall be imposed for review at the administrative appeal level 
for an exemption already applied. However, records withheld under an 
exemption that is subsequently determined not to apply may be reviewed 
again to determine whether any other exemption not previously considered 
applies, and the costs of that review are chargeable. Review fees shall 
be the direct costs of conducting the review by the involved employees.
    (d) Limitations on charging fees.
    (1) No search fee shall be charged for requests from educational 
institutions, noncommercial scientific institutions, or representatives 
of the news media.
    (2) No search fee or review fee shall be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, 
components shall provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); and
    (ii) The first two hours of search (or the cost equivalent).
    (4) If a total fee calculated under paragraph (c) of this section is 
$20.00 or less for any request, no fee shall be

[[Page 39]]

charged. If such total fee is more than $20.00, the full amount of such 
fee shall be charged.
    (5) The provisions of paragraphs (d) (3) and (4) of this section 
work together. This means that for requesters other than those seeking 
records for a commercial use, no fee shall be charged unless the cost of 
search in excess of two hours plus the cost of duplication in excess of 
100 pages totals more than $20.00.
    (e) Notice of anticipated fees over $20.00. If a component 
determines or estimates that the total fee to be charged under this 
section will be more than $20.00, the component shall notify the 
requester of the actual or estimated fee, unless the requester has 
stated in writing a willingness to pay a fee as high as that 
anticipated. If only a portion of the fee can be estimated readily, the 
component shall advise the requester that the estimated fee may be only 
a portion of the total fee. If the component has notified a requester 
that the actual or estimated fee is more than $20.00, the component 
shall not consider the request received for purposes of calculating the 
time limit in Sec.  4.6(b) to respond to a request, or process it 
further, until the requester agrees to pay the anticipated total fee. 
Any agreement to pay should be memorialized in writing. A notice under 
this paragraph shall offer the requester an opportunity to contact 
Departmental personnel to discuss modifying the request to meet the 
requester's needs at a lower cost.
    (f) Charges for other services. Apart from the other provisions of 
this section, if a component decides, as a matter of administrative 
discretion, to comply with a request for special services, the component 
shall charge the direct cost of providing them. Such services could 
include certifying that records are true copies or sending records by 
other than ordinary mail.
    (g) Charging interest. Components shall charge interest on any 
unpaid bill starting on the 31st calendar day following the date of 
billing the requester. Interest charges shall be assessed at the rate 
provided in 31 U.S.C. 3717 and accrue from the date of the billing until 
the component receives payment. Components shall take all steps 
authorized by the Debt Collection Act of 1982, as amended by the Debt 
Collection Improvement Act of 1996, to effect payment, including offset, 
disclosure to consumer reporting agencies, and use of collection 
agencies.
    (h) Aggregating requests. If a component reasonably believes that a 
requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, the component may aggregate those requests and charge accordingly. 
Among the factors a component shall consider in deciding whether to 
aggregate are the closeness in time between the component's receipt of 
the requests, and the relatedness of the matters about which the 
requests are made. A component may generally presume that multiple 
requests that involve related matters made by the same requester or a 
closely related group of requesters within a 30 calendar day period have 
been made in order to avoid fees. If requests are separated by a longer 
period, a component shall aggregate them only if a solid basis exists 
for determining that aggregation is warranted under all the 
circumstances involved. Multiple requests involving unrelated matters 
shall not be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) and (3) of this section, a component shall not require 
the requester to make an advance payment: a payment made before work is 
begun or continued on a request. Payment owed for work already completed 
(i.e., a payment before copies are sent to a requester) is not an 
advance payment.
    (2) If a component determines or estimates that a total fee to be 
charged under this section will be more than $250.00, the component 
shall not consider the request received for purposes of calculating the 
time limit in Sec.  4.6(b) to respond to a request, or process it 
further, until it receives payment from the requester of the entire 
anticipated fee.
    (3) If a requester has previously failed to pay a properly charged 
FOIA fee to any component or other Federal agency within 30 calendar 
days of the date of billing, a component shall require the requester to 
pay the full amount

[[Page 40]]

due, plus any applicable interest, and to make an advance payment of the 
full amount of any anticipated fee, before the component begins to 
process a new request or continues to process a pending request from 
that requester. For purposes of calculating the time limit in Sec.  
4.6(b) to respond to a request, the component shall not consider the 
request received until it receives full payment of all applicable fees 
and interest in this paragraph.
    (4) Upon the completion of processing of a request, if a specific 
fee is determined to be payable and appropriate notice has been given to 
the requester, a component shall make records available to the requester 
only upon receipt of full payment of the fee.
    (j) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute (except 
for the FOIA) that specifically requires an agency to set and collect 
fees for particular types of records. If records responsive to requests 
are maintained for distribution by agencies operating such statutorily 
based fee schedule programs, components shall inform requesters how to 
obtain records from those sources. Provision of such records is not 
handled under the FOIA.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request will be furnished without charge, or at a charge 
reduced below that established under paragraph (c) of this section, if 
the requester asks for such a waiver in writing and the responsible 
component determines, after consideration of information provided by the 
requester, that the requester has demonstrated that:
    (i) Disclosure of the requested 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
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
components shall consider the following factors:
    (i) The subject of the request: whether the subject of the requested 
records concerns the operations or activities of the Government. The 
subject of the requested records must concern identifiable operations or 
activities of the Federal Government, with a connection that is direct 
and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
whether the disclosure is ``likely to contribute'' to an understanding 
of Government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about Government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be 
likely to contribute to such understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: whether disclosure of the 
requested information will contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area and ability and intention to effectively 
convey information to the public shall be considered. It shall be 
presumed that a representative of the news media satisfies this 
consideration. Merely providing information to media sources is 
insufficient to satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
whether the disclosure is likely to contribute ``significantly'' to 
public understanding of Government operations or activities. The 
public's understanding of the subject in question prior to the 
disclosure must be significantly enhanced by the disclosure.
    (3) To determine whether the second fee waiver requirement (i.e., 
that disclosure is not primarily in the commercial interest of the 
requester) is met, components shall consider the following factors:
    (i) The existence and magnitude of a commercial interest: whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. Components shall consider

[[Page 41]]

any commercial interest of the requester (with reference to the 
definition of ``commercial use request'' in paragraph (b)(1) of this 
section), or of any person on whose behalf the requester may be acting, 
that would be furthered by the requested disclosure. Requesters shall be 
given an opportunity to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure: whether any identified 
commercial interest of the requester is sufficiently great, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified if the public interest standard (paragraph 
(k)(1)(i) of this section) is satisfied and the public interest is 
greater than any identified commercial interest in disclosure. 
Components ordinarily shall presume that if a news media requester has 
satisfied the public interest standard, the public interest is the 
primary interest served by disclosure to that requester. Disclosure to 
data brokers or others who merely compile and market Government 
information for direct economic return shall not be presumed to 
primarily serve the public interest.
    (4) If only some of the records to be released satisfy the 
requirements for a fee waiver, a waiver shall be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k)(2) and (3) of this section, insofar as 
they apply to each request.



                          Subpart B_Privacy Act



Sec.  4.21  Purpose and scope.

    (a) This subpart establishes policies and procedures for 
implementing the Privacy Act of 1974, as amended (5 U.S.C. 552a). The 
main objectives of the subpart are to facilitate full exercise of rights 
conferred on individuals under the Act, and to protect the privacy of 
individuals on whom the Department maintains records in systems of 
records under the Act.
    (b) The Department shall act promptly and in accordance with the Act 
upon receipt of any inquiry, request or appeal from a citizen of the 
United States or an alien lawfully admitted for permanent residence into 
the United States, regardless of the individual's age. Further, the 
Department shall maintain only such information on individuals as is 
relevant and necessary to the performance of its lawful functions; 
maintain that information with such accuracy, relevancy, timeliness, and 
completeness as is reasonably necessary to assure fairness in 
determinations made by the Department about the individual; obtain 
information from the individual to the extent practicable; and take 
every reasonable step to protect that information from unwarranted 
disclosure. The Department shall maintain no record describing how an 
individual exercises rights guaranteed by the First Amendment unless 
expressly authorized to do so by statute or by the individual about whom 
the record is maintained, or unless to do so is pertinent to and within 
the scope of an authorized law enforcement activity. An individual's 
name and address shall not be sold or rented by the Department unless 
such action is specifically authorized by law.
    (c) This subpart applies to all components of the Department. 
Components may promulgate supplementary orders and rules not 
inconsistent with this subpart.
    (d) The Assistant Secretary for Administration is delegated 
responsibility for maintaining this subpart, for issuing such orders and 
directives internal to the Department as are necessary for full 
compliance with the Act, and for publishing all required notices 
concerning systems of records.
    (e) Matters outside the scope of this subpart include:
    (1) Requests for records that do not pertain to the requester, or to 
the individual about whom the request is made if the requester is the 
parent or guardian of the individual;
    (2) Requests involving information pertaining to an individual that 
is in a record or file but not within the scope of a system of records 
notice published in the Federal Register;
    (3) Requests to correct a record if a grievance procedure is 
available to the individual either by regulation or

[[Page 42]]

through a provision in a collective bargaining agreement with the 
Department or a component of the Department, and the individual has 
initiated, or expressed in writing the intention of initiating, such a 
grievance procedure; and
    (4) Requests for employee-employer services and counseling that were 
routinely granted prior to enactment of the Act, including, but not 
limited to, test calculations of retirement benefits, explanations of 
health and life insurance programs, and explanations of tax withholding 
options.
    (f) Any request for records that pertains to the requester, or to 
the individual about whom the request is made if the requester is the 
parent or guardian of the individual, shall be processed under the Act 
and this subpart and under the Freedom of Information Act and the 
Department's implementing regulations at subpart A of this part, 
regardless whether the Act or the Freedom of Information Act is 
mentioned in the request.



Sec.  4.22  Definitions.

    (a) All terms used in this subpart which are defined in 5 U.S.C. 
552a shall have the same meaning herein.
    (b) As used in this subpart:
    (1) Act means the ``Privacy Act of 1974, as amended (5 U.S.C. 
552a)''.
    (2) Appeal means a request by an individual to review and reverse an 
initial denial of a request from that individual for correction or 
amendment.
    (3) Component means any office, division, bureau or other unit of 
the Department listed in Appendix A to this part (except that a regional 
office of a larger office or other unit does not constitute a separate 
component).
    (4) Department means the Department of Commerce.
    (5) Inquiry means either a request for general information regarding 
the Act and this subpart or a request from an individual (or that 
individual's parent or guardian) that the Department determine whether 
it has any record in a system of records that pertains to that 
individual.
    (6) Person means any human being and also shall include, but is not 
limited to, corporations, associations, partnerships, trustees, 
receivers, personal representatives, and public or private 
organizations.
    (7) Privacy Officer means those officials, identified in Appendix B 
to this part, who are authorized to receive and act upon inquiries, 
requests for access, and requests for correction or amendment.
    (8) Request for access means a request from an individual or an 
individual's parent or guardian to see a record pertaining to that 
individual in a particular system of records.
    (9) Request for correction or amendment means a request from an 
individual or an individual's parent or guardian that the Department 
change (by correction, amendment, addition or deletion) a particular 
record pertaining to that individual in a system of records.



Sec.  4.23  Procedures for making inquiries.

    (a) Any individual, regardless of age, who is a citizen of the 
United States or an alien lawfully admitted for permanent residence into 
the United States may submit an inquiry to the Department. The inquiry 
should be made either in person or by mail addressed to the appropriate 
component identified in Appendix A to this part or to the official 
identified in the notification procedures paragraph of the systems of 
records notice published in the Federal Register.\2\ If an individual 
believes the Department maintains a record pertaining to him or her but 
does not know which system of records might contain such a record and/or 
which component of the Department maintains the system of records, 
assistance in person or by mail will be provided at the first address 
listed in Appendix A to this part.
---------------------------------------------------------------------------

    \2\ The United States Patent and Trademark Office (USPTO), which is 
established as an agency of the United States within the Department of 
Commerce, operates under its own PA regulations at 37 CFR part 102, 
subpart B. Accordingly, requests concerning records maintained by the 
USPTO should be sent directly to the USPTO.
---------------------------------------------------------------------------

    (b) Inquiries submitted by mail should include the words ``PRIVACY 
ACT INQUIRY'' in capital letters at the top of the letter and on the 
face of the envelope. If the inquiry is for general information 
regarding the Act and

[[Page 43]]

this subpart, no particular information is required. The Department 
reserves the right to require compliance with the identification 
procedures appearing at Sec.  4.24(d). If the inquiry is a request that 
the Department determine whether it has a record pertaining to the 
individual, the following information should be submitted:
    (1) Name of individual whose record is sought;
    (2) Statement that individual whose record is sought is either a 
U.S. citizen or an alien lawfully admitted for permanent residence;
    (3) Identifying data that will help locate the record (for example, 
maiden name, occupational license number, period or place of employment, 
etc.);
    (4) Record sought, by description and by record system name, if 
known;
    (5) Action requested (that is, sending information on how to 
exercise rights under the Act; determining whether requested record 
exists; gaining access to requested record; or obtaining copy of 
requested record);
    (6) Copy of court guardianship order or minor's birth certificate, 
as provided in Sec.  4.24(d)(3), but only if requester is guardian or 
parent of individual whose record is sought;
    (7) Requester's name (printed), signature, address, and (optional) 
telephone number;
    (8) Date; and,
    (9) Certification of request by notary or other official, but only 
if
    (i) Request is for notification that requested record exists, for 
access to requested record, or for copy of requested record;
    (ii) Record is not available to any person under 5 U.S.C. 552; and
    (iii) Requester does not appear before an employee of the Department 
for verification of identity.
    (c) Any inquiry which is not addressed as specified in paragraph (a) 
of this section or which is not marked as specified in paragraph (b) of 
this section will be so addressed and marked by Department personnel and 
forwarded immediately to the responsible Privacy Officer. An inquiry 
which is not properly addressed by the individual will not be deemed to 
have been ``received'' for purposes of measuring the time period for 
response until actual receipt by the Privacy Officer. In each instance 
when an inquiry so forwarded is received, the Privacy Officer shall 
notify the individual that his or her inquiry was improperly addressed 
and the date the inquiry was received at the proper address.
    (d)(1) Each inquiry received shall be acted upon promptly by the 
responsible Privacy Officer. Every effort will be made to respond within 
ten working days (i.e., excluding Saturdays, Sundays and legal public 
holidays) of the date of receipt at the proper address. If a response 
cannot be made within ten working days, the Privacy Officer shall send 
an acknowledgment during that period providing information on the status 
of the inquiry and asking for such further information as may be 
necessary to process the inquiry. The first correspondence sent by the 
Privacy Officer to the requester shall contain the Department's control 
number assigned to the request, as well as a statement that the 
requester should use that number in all future contacts with the 
Department. The Department shall use that control number in all 
subsequent correspondence.
    (2) If the Privacy Officer fails to send an acknowledgment within 
ten working days, as provided in paragraph (d)(1) of this section, the 
requester may ask the Assistant General Counsel for Administration to 
take corrective action. No failure of a Privacy Officer to send an 
acknowledgment shall confer administrative finality for purposes of 
judicial review.
    (e) An individual shall not be required to state a reason for or 
otherwise justify his or her inquiry.
    (f) Special note should be taken that certain agencies are 
responsible for publishing notices of systems of records having 
Government-wide application to other agencies, including the Department. 
The agencies known to be publishing these general notices and the types 
of records covered therein appear in Appendix C to this part. These 
general notices do not identify the Privacy Officers in the Department 
to whom inquiries should be presented or mailed. The provisions of this 
section, and particularly paragraph (a) of this section, should be 
followed in making inquiries with respect to such records.

[[Page 44]]

Such records in the Department are subject to the provisions of this 
part to the extent indicated in Appendix C to this part. The exemptions, 
if any, determined by the agency publishing a general notice shall be 
invoked and applied by the Department after consultation, as necessary, 
with that other agency.



Sec.  4.24  Procedures for making requests for records.

    (a) Any individual, regardless of age, who is a citizen of the 
United States or an alien lawfully admitted for permanent residence into 
the United States may submit a request to the Department for access to 
records. The request should be made either in person or by mail 
addressed to the appropriate office listed in Appendix A to this part.
    (b) Requests submitted by mail should include the words ``PRIVACY 
ACT REQUEST'' in capital letters at the top of the letter and on the 
face of the envelope. Any request which is not addressed as specified in 
paragraph (a) of this section or which is not marked as specified in 
this paragraph will be so addressed and marked by Department personnel 
and forwarded immediately to the responsible Privacy Officer. A request 
which is not properly addressed by the individual will not be deemed to 
have been ``received'' for purposes of measuring time periods for 
response until actual receipt by the Privacy Officer. In each instance 
when a request so forwarded is received, the Privacy Officer shall 
notify the individual that his or her request was improperly addressed 
and the date the request was received at the proper address.
    (c) If the request follows an inquiry under Sec.  4.23 in connection 
with which the individual's identity was established by the Department, 
the individual need only indicate the record to which access is sought, 
provide the Department control number assigned to the request, and sign 
and date the request. If the request is not preceded by an inquiry under 
Sec.  4.23, the procedures of this section should be followed.
    (d) The requirements for identification of individuals seeking 
access to records are:
    (1) In person. Each individual making a request in person shall be 
required to present satisfactory proof of identity. The means of proof, 
in the order of preference and priority, are:
    (i) A document bearing the individual's photograph (for example, 
driver's license, passport or military or civilian identification card);
    (ii) A document, preferably issued for participation in a Federally-
sponsored program, bearing the individual's signature (for example, 
unemployment insurance book, employer's identification card, national 
credit card, and professional, craft or union membership card); and,
    (iii) A document bearing neither the photograph nor the signature of 
the individual, preferably issued for participation in a Federally-
sponsored program (for example, Medicaid card). If the individual can 
provide no suitable documentation of identity, the Department will 
require a signed statement asserting the individual's identity and 
stipulating that the individual understands the penalty provision of 5 
U.S.C. 552a(i)(3) recited in Sec.  4.32(a). In order to avoid any 
unwarranted disclosure of an individual's records, the Department 
reserves the right to determine the adequacy of proof of identity 
offered by any individual, particularly if the request involves a 
sensitive record.
    (2) Not in person. If the individual making a request does not 
appear in person before a Privacy Officer or other employee authorized 
to determine identity, a certification of a notary public or equivalent 
officer empowered to administer oaths must accompany the request under 
the circumstances prescribed in Sec.  4.23(b)(9). The certification in 
or attached to the letter must be substantially in accordance with the 
following text:

City of -------- County of --------.ss (Name of individual), who affixed 
(his) (her) signature below in my presence, came before me, a (title), 
in and for the aforesaid County and State, this ---- day of ------, 20--
, and established (his) (her) identity to my satisfaction.
My commission expires --------.
(Signature)

    (3) Parents of minors and legal guardians. An individual acting as 
the parent of a minor or the legal guardian of the individual to whom a 
record pertains shall establish his or her personal identity in the same 
manner prescribed in

[[Page 45]]

either paragraph (d)(1) or (d)(2) of this section. In addition, such 
other individual shall establish his or her identity in the 
representative capacity of parent or legal guardian. In the case of the 
parent of a minor, the proof of identity shall be a certified or 
authenticated copy of the minor's birth certificate. In the case of a 
legal guardian of an individual who has been declared incompetent due to 
physical or mental incapacity or age by a court of competent 
jurisdiction, the proof of identity shall be a certified or 
authenticated copy of the court's order. For purposes of the Act, a 
parent or legal guardian may represent only a living individual, not a 
decedent. A parent or legal guardian may be accompanied during personal 
access to a record by another individual, provided the provisions of 
Sec.  4.25(f) are satisfied.
    (e) If the provisions of this subpart are alleged to impede an 
individual in exercising his or her right to access, the Department will 
consider, from an individual making a request, alternative suggestions 
regarding proof of identity and access to records.
    (f) An individual shall not be required to state a reason for or 
otherwise justify his or her request for access to a record.



Sec.  4.25  Disclosure of requested records to individuals.

    (a)(1) The responsible Privacy Officer shall act promptly upon each 
request. Every effort will be made to respond within ten working days 
(i.e., excluding Saturdays, Sundays and legal public holidays) of the 
date of receipt. If a response cannot be made within ten working days 
due to unusual circumstances, the Privacy Officer shall send an 
acknowledgment during that period providing information on the status of 
the request and asking for any further information that may be necessary 
to process the request. ``Unusual circumstances'' shall include 
circumstances in which:
    (i) A search for and collection of requested records from inactive 
storage, field facilities or other establishments is required;
    (ii) A voluminous amount of data is involved;
    (iii) Information on other individuals must be separated or expunged 
from the particular record; or
    (iv) Consultations with other agencies having a substantial interest 
in the determination of the request are necessary.
    (2) If the Privacy Officer fails to send an acknowledgment within 
ten working days, as provided in paragraph (a)(1) of this section, the 
requester may ask the Assistant General Counsel for Administration to 
take corrective action. No failure of a Privacy Officer to send an 
acknowledgment shall confer administrative finality for purposes of 
judicial review.
    (b) Grant of access: (1) Notification. An individual shall be 
granted access to a record pertaining to him or her, unless the 
provisions of paragraph (g)(1) of this section apply. The Privacy 
Officer shall notify the individual of a determination to grant access, 
and provide the following information:
    (i) The methods of access, as set forth in paragraph (b)(2) of this 
section;
    (ii) The place at which the record may be inspected;
    (iii) The earliest date on which the record may be inspected and the 
period of time that the records will remain available for inspection. In 
no event shall the earliest date be later than thirty calendar days from 
the date of notification;
    (iv) The estimated date by which a copy of the record will be mailed 
and the fee estimate pursuant to Sec.  4.31. In no event shall the 
estimated date be later than thirty calendar days from the date of 
notification;
    (v) The fact that the individual, if he or she wishes, may be 
accompanied by another individual during personal access, subject to the 
procedures set forth in paragraph (f) of this section; and,
    (vi) Any additional prerequisites for granting access to a specific 
record.
    (2) Methods of access. The following methods of access to records by 
an individual may be available depending on the circumstances of a given 
situation:
    (i) Inspection in person may be had in the office specified by the 
Privacy Officer granting access, during the hours indicated in Appendix 
A to this part;

[[Page 46]]

    (ii) Transfer of records to a Federal facility more convenient to 
the individual may be arranged, but only if the Privacy Officer 
determines that a suitable facility is available, that the individual's 
access can be properly supervised at that facility, and that transmittal 
of the records to that facility will not unduly interfere with 
operations of the Department or involve unreasonable costs, in terms of 
both money and manpower; and,
    (iii) Copies may be mailed at the request of the individual, subject 
to payment of the fees prescribed in Sec.  4.31. The Department, at its 
own initiative, may elect to provide a copy by mail, in which case no 
fee will be charged the individual.
    (c) Access to medical records is governed by the provisions of Sec.  
4.26.
    (d) The Department shall supply such other information and 
assistance at the time of access as to make the record intelligible to 
the individual.
    (e) The Department reserves the right to limit access to copies and 
abstracts of original records, rather than the original records. This 
election would be appropriate, for example, when the record is in an 
automated data medium such as tape or disc, when the record contains 
information on other individuals, and when deletion of information is 
permissible under exemptions (for example, 5 U.S.C. 552a(k)(2)). In no 
event shall original records of the Department be made available to the 
individual except under the immediate supervision of the Privacy Officer 
or his or her designee.
    (f) Any individual who requests access to a record pertaining to 
that individual may be accompanied by another individual of his or her 
choice. ``Accompanied'' includes discussing the record in the presence 
of the other individual. The individual to whom the record pertains 
shall authorize the presence of the other individual in writing. The 
authorization shall include the name of the other individual, a specific 
description of the record to which access is sought, the Department 
control number assigned to the request, the date, and the signature of 
the individual to whom the record pertains. The other individual shall 
sign the authorization in the presence of the Privacy Officer. An 
individual shall not be required to state a reason or otherwise justify 
his or her decision to be accompanied by another individual during 
personal access to a record.
    (g) Initial denial of access: (1) Grounds. Access by an individual 
to a record that pertains to that individual will be denied only upon a 
determination by the Privacy Officer that:
    (i) The record is exempt under Sec.  4.33 or 4.34, or exempt by 
determination of another agency publishing notice of the system of 
records, as described in Sec.  4.23(f);
    (ii) The record is information compiled in reasonable anticipation 
of a civil action or proceeding;
    (iii) The provisions of Sec.  4.26 pertaining to medical records 
temporarily have been invoked; or,
    (iv) The individual unreasonably has failed to comply with the 
procedural requirements of this part.
    (2) Notification. The Privacy Officer shall give notice of denial of 
access to records to the individual in writing, and the notice shall 
include the following information:
    (i) The Privacy Officer's name and title or position;
    (ii) The date of the denial;
    (iii) The reasons for the denial, including citation to the 
appropriate section of the Act and this part;
    (iv) The individual's opportunities, if any, for further 
administrative consideration, including the identity and address of the 
responsible official. If no further administrative consideration within 
the Department is available, the notice shall state that the denial is 
administratively final; and,
    (v) If stated to be administratively final within the Department, 
the individual's right to judicial review provided under 5 
U.S.C.552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
    (3) Administrative review. If a Privacy Officer issues an initial 
denial of a request, the individual's opportunities for further 
consideration shall be as follows:
    (i) As to denial under paragraph (g)(1)(i) of this section, two 
opportunities for further consideration are available in the 
alternative:
    (A) If the individual contests the application of an exemption to 
the

[[Page 47]]

records, the review procedures in Sec.  4.25(g)(3)(ii) shall apply; or,
    (B) If the individual challenges the validity of the exemption 
itself, the individual must file a petition for the issuance, amendment, 
or repeal of a rule under 5 U.S.C. 553(e). If the exemption was 
determined by the Department, such petition shall be filed with the 
Assistant Secretary for Administration. If the exemption was determined 
by another agency (as described in Sec.  4.23(f)), the Department will 
provide the individual with the name and address of the other agency and 
any relief sought by the individual shall be that provided by the 
regulations of the other agency. Within the Department, no such denial 
is administratively final until such a petition has been filed by the 
individual and disposed of on the merits by the Assistant Secretary for 
Administration.
    (ii) As to denial under paragraphs (g)(1)(ii) of this section, 
(g)(1)(iv) of this section or (to the limited extent provided in 
paragraph (g)(3)(i)(A) of this section) paragraph (g)(1)(i) of this 
section, the individual may file for review with the Assistant General 
Counsel for Administration, as indicated in the Privacy Officer's 
initial denial notification. The individual and the Department shall 
follow the procedures in Sec.  4.28 to the maximum extent practicable.
    (iii) As to denial under paragraph (g)(1)(iii) of this section, no 
further administrative consideration within the Department is available 
because the denial is not administratively final until expiration of the 
time period indicated in Sec.  4.26(a).
    (h) If a request is partially granted and partially denied, the 
Privacy Officer shall follow the appropriate procedures of this section 
as to the records within the grant and the records within the denial.



Sec.  4.26  Special procedures: Medical records.

    (a) No response to any request for access to medical records from an 
individual will be issued by the Privacy Officer for a period of seven 
working days (i.e., excluding Saturdays, Sundays and legal public 
holidays) from the date of receipt.
    (b) For every request from an individual for access to medical 
records, the Privacy Officer shall:
    (1) Inform the individual of the waiting period prescribed in 
paragraph (a) of this section;
    (2) Seek from the individual the name and address of the 
individual's physician and/or psychologist;
    (3) Seek from the individual written consent for the Department to 
consult the individual's physician and/or psychologist, if the 
Department believes such consultation is advisable;
    (4) Seek written consent from the individual for the Department to 
provide the medical records to the individual's physician or 
psychologist, if the Department believes access to the record by the 
individual is best effected under the guidance of the individual's 
physician or psychologist; and,
    (5) Forward the individual's medical record to the Department's 
medical officer for review and a determination on whether consultation 
with or transmittal of the medical records to the individual's physician 
or psychologist is warranted. If consultation with or transmittal of 
such records to the individual's physician or psychologist is determined 
to be warranted, the Department's medical officer shall so consult or 
transmit. Whether or not such a consultation or transmittal occurs, the 
Department's medical officer shall provide instruction to the Privacy 
Officer regarding the conditions of access by the individual to his or 
her medical records.
    (c) If an individual refuses in writing to give the names and 
consents set forth in paragraphs (c)(2) through (c)(4) of this section, 
the Department shall give the individual access to said records by means 
of a copy, provided without cost to the requester, sent registered mail, 
return receipt requested.



Sec.  4.27  Procedures for making requests for correction or amendment.

    (a) Any individual, regardless of age, who is a citizen of the 
United States or an alien lawfully admitted for permanent residence into 
the United States may submit a request for correction or amendment to 
the Department. The request should be made either in person

[[Page 48]]

or by mail addressed to the Privacy Officer who processed the 
individual's request for access to the record, and to whom is delegated 
authority to make initial determinations on requests for correction or 
amendment. The offices of Privacy Officers are open to the public 
between the hours of 9 a.m. and 4 p.m. Monday through Friday (excluding 
Saturdays, Sundays, and legal public holidays).
    (b) Requests submitted by mail should include the words ``PRIVACY 
ACT REQUEST'' in capital letters at the top of the letter and on the 
face of the envelope. Any request that is not addressed as specified in 
paragraph (a) of this section or that is not marked as specified in this 
paragraph will be so addressed and marked by Department personnel and 
forwarded immediately to the responsible Privacy Officer. A request that 
is not properly addressed by the individual will not be deemed to have 
been ``received'' for purposes of measuring the time period for response 
until actual receipt by the Privacy Officer. In each instance when a 
request so forwarded is received, the Privacy Officer shall notify the 
individual that his or her request was improperly addressed and the date 
the request was received at the proper address.
    (c) Since the request, in all cases, will follow a request for 
access under Sec.  4.25, the individual's identity will be established 
by his or her signature on the request and use of the Department control 
number assigned to the request.
    (d) A request for correction or amendment should include the 
following:
    (1) Specific identification of the record sought to be corrected or 
amended (for example, description, title, date, paragraph, sentence, 
line and words);
    (2) The specific wording to be deleted, if any;
    (3) The specific wording to be inserted or added, if any, and the 
exact place at which it is to be inserted or added; and,
    (4) A statement of the basis for the requested correction or 
amendment, with all available supporting documents and materials that 
substantiate the statement. The statement should identify the criterion 
of the Act being invoked, that is, whether the information in the record 
is unnecessary, inaccurate, irrelevant, untimely or incomplete.



Sec.  4.28  Agency review of requests for correction or amendment.

    (a)(1)(i) Not later than ten working days (i.e., excluding 
Saturdays, Sundays and legal public holidays) after receipt of a request 
to correct or amend a record, the Privacy Officer shall send an 
acknowledgment providing an estimate of time within which action will be 
taken on the request and asking for such further information as may be 
necessary to process the request. The estimate of time may take into 
account unusual circumstances as described in Sec.  4.25(a). No 
acknowledgment will be sent if the request can be reviewed, processed 
and the individual notified of the results of review (either compliance 
or denial) within the ten working days. Requests filed in person will be 
acknowledged in writing at the time submitted.
    (ii) If the Privacy Officer fails to send the acknowledgment within 
ten working days, as provided in paragraph (a)(1)(i) of this section, 
the requester may ask the Assistant General Counsel for Administration 
to take corrective action. No failure of a Privacy Officer to send an 
acknowledgment shall confer administrative finality for purposes of 
judicial review.
    (2) Promptly after acknowledging receipt of a request, or after 
receiving such further information as might have been requested, or 
after arriving at a decision within the ten working days, the Privacy 
Officer shall either:
    (i) Make the requested correction or amendment and advise the 
individual in writing of such action, providing either a copy of the 
corrected or amended record or, in cases in which a copy cannot be 
provided (for example, erasure of information from a record maintained 
only in magnetically-recorded computer files), a statement as to the 
means by which the correction or amendment was effected; or,
    (ii) Inform the individual in writing that his or her request is 
denied and provide the following information:

[[Page 49]]

    (A) The Privacy Officer's name and title or position;
    (B) The date of the denial;
    (C) The reasons for the denial, including citation to the 
appropriate sections of the Act and this subpart; and,
    (D) The procedures for appeal of the denial as set forth in Sec.  
4.29, including the address of the Assistant General Counsel for 
Administration.
    (3) The term promptly in this section means within thirty working 
days (i.e., excluding Saturdays, Sundays and legal public holidays). If 
the Privacy Officer cannot make the determination within thirty working 
days, the individual will be advised in writing of the reason for the 
delay and of the estimated date by which the determination will be made.
    (b) Whenever an individual's record is corrected or amended pursuant 
to a request from that individual, the Privacy Officer shall notify all 
persons and agencies to which the corrected or amended portion of the 
record had been disclosed prior to its correction or amendment, if an 
accounting of such disclosure required by the Act was made. The 
notification shall require a recipient agency maintaining the record to 
acknowledge receipt of the notification, to correct or amend the record, 
and to apprise any agency or person to which it had disclosed the record 
of the substance of the correction or amendment.
    (c) The following criteria will be considered by the Privacy Officer 
in reviewing a request for correction or amendment:
    (1) The sufficiency of the evidence submitted by the individual;
    (2) The factual accuracy of the information to be corrected or 
amended;
    (3) The relevance and necessity of the information in terms of the 
purpose for which it was collected;
    (4) The timeliness and currency of the information in light of the 
purpose for which it was collected;
    (5) The completeness of the information in terms of the purpose for 
which it was collected;
    (6) The degree of risk that denial of the request could unfairly 
result in determinations adverse to the individual;
    (7) The character of the record sought to be corrected or amended; 
and,
    (8) The propriety and feasibility of complying with the specific 
means of correction or amendment requested by the individual.
    (d) The Department will not undertake to gather evidence for the 
individual, but does reserve the right to verify the evidence the 
individual submits.
    (e) Correction or amendment of a record requested by an individual 
will be denied only upon a determination by the Privacy Officer that:
    (1) The individual has failed to establish, by a preponderance of 
the evidence, the propriety of the correction or amendment in light of 
the criteria set forth in paragraph (c) of this section;
    (2) The record sought to be corrected or amended is part of the 
official record in a terminated judicial, quasi-judicial or quasi-
legislative proceeding to which the individual was a party or 
participant;
    (3) The information in the record sought to be corrected or amended, 
or the record sought to be corrected or amended, is the subject of a 
pending judicial, quasi-judicial or quasi-legislative proceeding to 
which the individual is a party or participant;
    (4) The correction or amendment would violate a duly enacted statute 
or promulgated regulation; or,
    (5) The individual unreasonably has failed to comply with the 
procedural requirements of this part.
    (f) If a request is partially granted and partially denied, the 
Privacy Officer shall follow the appropriate procedures of this section 
as to the records within the grant and the records within the denial.



Sec.  4.29  Appeal of initial adverse agency determination on correction or amendment.

    (a) If a request for correction or amendment is denied initially 
under Sec.  4.28, the individual may submit a written appeal within 
thirty working days (i.e., excluding Saturdays, Sundays and legal public 
holidays) of the date of the initial denial. If an appeal

[[Page 50]]

is submitted by mail, the postmark is conclusive as to timeliness.
    (b) An appeal should be addressed to the Assistant General Counsel 
for Administration, U.S. Department of Commerce, Room 5875, 14th and 
Constitution Avenue, NW., Washington, DC 20230. An appeal should include 
the words ``PRIVACY APPEAL'' in capital letters at the top of the letter 
and on the face of the envelope. An appeal not addressed and marked as 
provided herein will be so marked by Department personnel when it is so 
identified, and will be forwarded immediately to the Assistant General 
Counsel for Administration. An appeal which is not properly addressed by 
the individual will not be deemed to have been ``received'' for purposes 
of measuring the time periods in this section until actual receipt by 
the Assistant General Counsel for Administration. In each instance when 
an appeal so forwarded is received, the Assistant General Counsel for 
Administration shall notify the individual that his or her appeal was 
improperly addressed and the date on which the appeal was received at 
the proper address.
    (c) The individual's appeal shall be signed by the individual, and 
shall include a statement of the reasons why the initial denial is 
believed to be in error, and the Department's control number assigned to 
the request. The Privacy Officer who issued the initial denial shall 
furnish to the Assistant General Counsel for Administration the record 
the individual requests to be corrected or amended, and all 
correspondence between the Privacy Officer and the requester. Although 
the foregoing normally will comprise the entire record on appeal, the 
Assistant General Counsel for Administration may seek any additional 
information necessary to ensure that the final determination is fair and 
equitable and, in such instances, disclose the additional information to 
the individual to the greatest extent possible, and provide an 
opportunity for comment thereon.
    (d) No personal appearance or hearing on appeal will be allowed.
    (e) The Assistant General Counsel for Administration shall act upon 
the appeal and issue a final determination in writing not later than 
thirty working days (i.e., excluding Saturdays, Sundays and legal public 
holidays) from the date on which the appeal is received, except that the 
Assistant General Counsel for Administration may extend the thirty days 
upon deciding that a fair and equitable review cannot be made within 
that period, but only if the individual is advised in writing of the 
reason for the extension and the estimated date by which a final 
determination will issue. The estimated date should not be later than 
the sixtieth working day after receipt of the appeal unless unusual 
circumstances, as described in Sec.  4.25(a), are met.
    (f) If the appeal is determined in favor of the individual, the 
final determination shall include the specific corrections or amendments 
to be made and a copy thereof shall be transmitted promptly to the 
individual and to the Privacy Officer who issued the initial denial. 
Upon receipt of such final determination, the Privacy Officer shall 
promptly take the actions set forth in Sec.  4.28(a)(2)(i) and (b).
    (g) If the appeal is denied, the final determination shall be 
transmitted promptly to the individual and state the reasons for the 
denial. The notice of final determination also shall inform the 
individual that:
    (1) The individual has a right under the Act to file with the 
Assistant General Counsel for Administration a concise statement of 
reasons for disagreeing with the final determination. The statement 
ordinarily should not exceed one page and the Department reserves the 
right to reject an excessively lengthy statement. It should provide the 
Department control number assigned to the request, indicate the date of 
the final determination and be signed by the individual. The Assistant 
General Counsel for Administration shall acknowledge receipt of such 
statement and inform the individual of the date on which it was 
received;
    (2) Any such disagreement statement submitted by the individual 
would be noted in the disputed record, and filed with it;
    (3) The purposes and uses to which the statement would be put are 
those applicable to the record in which it is

[[Page 51]]

noted, and that a copy of the statement would be provided to persons and 
agencies to which the record is disclosed subsequent to the date of 
receipt of such statement;
    (4) The Department would append to any such disagreement statement a 
copy of the final determination or summary thereof, which also would be 
provided to persons and agencies to which the disagreement statement is 
disclosed; and
    (5) The individual has a right to judicial review of the final 
determination under 5 U.S.C. 552a(g)(1)(A), as limited by 5 U.S.C. 
552a(g)(5).
    (h) In making the final determination, the Assistant General Counsel 
for Administration shall employ the criteria set forth in Sec.  4.28(c) 
and shall deny an appeal only on the grounds set forth in Sec.  4.28(e).
    (i) If an appeal is partially granted and partially denied, the 
Assistant General Counsel for Administration shall follow the 
appropriate procedures of this section as to the records within the 
grant and the records within the denial.
    (j) Although a copy of the final determination or a summary thereof 
will be treated as part of the individual's record for purposes of 
disclosure in instances where the individual has filed a disagreement 
statement, it will not be subject to correction or amendment by the 
individual.
    (k) The provisions of paragraphs (g)(1) through (g)(3) of this 
section satisfy the requirements of 5 U.S.C. 552a(e)(3).



Sec.  4.30  Disclosure of record to person other than the individual to 
whom it pertains.

    (a) The Department may disclose a record pertaining to an individual 
to a person other than the individual to whom it pertains only in the 
following instances:
    (1) Upon written request by the individual, including authorization 
under Sec.  4.25(f);
    (2) With the prior written consent of the individual;
    (3) To a parent or legal guardian under 5 U.S.C. 552a(h);
    (4) When required by the Act and not covered explicitly by the 
provisions of 5 U.S.C. 552a(b); and
    (5) When permitted under 5 U.S.C. 552a(b)(1) through (12), as 
follows:\3\
---------------------------------------------------------------------------

    \3\ 5 U.S.C. 552a(b)(4) has no application within the Department.
---------------------------------------------------------------------------

    (i) To those officers and employees of the agency that maintains the 
record who have a need for the record in the performance of their 
duties;
    (ii) Required under 5 U.S.C. 552;
    (iii) For a routine use as defined in 5 U.S.C. 552a(a)(7);
    (iv) 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 of the U.S. Code;
    (v) To a requester who has provided the agency 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;
    (vi) To the National Archives and Records Administration as a record 
that has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Archivist of the United States, or the designee of the Archivist, to 
determine whether the record has such value;
    (vii) 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;
    (viii) 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;

[[Page 52]]

    (ix) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (x) To the Comptroller General, or any of his or her authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office;
    (xi) Pursuant to the order of a court of competent jurisdiction; or
    (xii) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(e).
    (b) The situations referred to in paragraph (a)(4) of this section 
include the following:
    (1) 5 U.S.C. 552a(c)(4) requires dissemination of a corrected or 
amended record or notation of a disagreement statement by the Department 
in certain circumstances;
    (2) 5 U.S.C. 552a(d) requires disclosure of records to the 
individual to whom they pertain, upon request; and
    (3) 5 U.S.C. 552a(g) authorizes civil action by an individual and 
requires disclosure by the Department to the court.
    (c) The Privacy Officer shall make an accounting of each disclosure 
by him of any record contained in a system of records in accordance with 
5 U.S.C. 552a(c)(1) and (2). Except for a disclosure made under 5 U.S.C. 
552a(b)(7), the Privacy Officer shall make such accounting available to 
any individual, insofar as it pertains to that individual, upon any 
request submitted in accordance with Sec.  4.24. The Privacy Officer 
shall make reasonable efforts to notify any individual when any record 
in a system of records is disclosed to any person under compulsory legal 
process, promptly upon being informed that such process has become a 
matter of public record.

[66 FR 65632, Dec. 20, 2001, as amended at 67 FR 60282, Sept. 25, 2002]



Sec.  4.31  Fees.

    (a) The only fee to be charged to an individual under this part is 
for duplication of records at the request of the individual. Components 
shall charge a fee for duplication of records under the Act in the same 
way in which they charge a duplication fee under Sec.  4.11, except as 
provided in this section. Accordingly, no fee shall be charged or 
collected for: search, retrieval, or review of records; copying at the 
initiative of the Department without a request from the individual; 
transportation of records; or first-class postage.
    (b) The Department shall provide an individual one copy of each 
record corrected or amended pursuant to the individual's request without 
charge as evidence of the correction or amendment.
    (c) As required by the United States Office of Personnel Management 
in its published regulations implementing the Act, the Department shall 
charge no fee for a single copy of a personnel record covered by that 
agency's Government-wide published notice of systems of records.



Sec.  4.32  Penalties.

    (a) The Act provides, in pertinent part:

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

    (b) A person who falsely or fraudulently attempts to obtain records 
under the Act also may be subject to prosecution under such other 
criminal statutes as 18 U.S.C. 494, 495 and 1001.



Sec.  4.33  General exemptions.

    (a) Individuals may not have access to records maintained by the 
Department but which were provided by another agency which has 
determined by regulation that such information is subject to general 
exemption under 5 U.S.C. 552a(j). If such exempt records are within a 
request for access, the Department will advise the individual of their 
existence and of the name and address of the source agency. For any 
further information concerning the record and the exemption, the 
individual must contact that source agency.
    (b) The general exemptions determined to be necessary and proper 
with respect to systems of records maintained by the Department, 
including the parts of each system to be exempted, the provisions of the 
Act from

[[Page 53]]

which they are exempted, and the justification for the exemption, are as 
follows:
    (1) Individuals identified in Export Transactions--COMMERCE/ITA-1. 
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to 
be exempt from all provisions of the Act, except 5 U.S.C. 552a(b), 
(c)(1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and 
(11), and (i). These exemptions are necessary to ensure the proper 
functioning of the law enforcement activity, to protect confidential 
sources of information, to fulfill promises of confidentiality, to 
maintain the integrity of the law enforcement process, to avoid 
premature disclosure of the knowledge of criminal activity and the 
evidentiary bases of possible enforcement actions, to prevent 
interference with law enforcement proceedings, to avoid disclosure of 
investigative techniques, and to avoid endangering law enforcement 
personnel. Section 12(c) of the Export Administration Act of 1979, as 
amended, also protects this information from disclosure.
    (2) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-5. Pursuant 
to 5 U.S.C. 552a(j)(2), these records are hereby determined to be exempt 
from all provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and 
(2), (e) (4) (A) through (F), (e) (6), (7), (9), (10), and (11), and 
(i). These exemptions are necessary to ensure the proper functioning of 
the law enforcement activity, to protect confidential sources of 
information, to fulfill promises of confidentiality, to prevent 
interference with law enforcement proceedings, to avoid the disclosure 
of investigative techniques, to avoid the endangering of law enforcement 
personnel, to avoid premature disclosure of the knowledge of criminal 
activity and the evidentiary bases of possible enforcement actions, and 
to maintain the integrity of the law enforcement process.
    (3) Investigative and Inspection Records--COMMERCE/DEPT-12. Pursuant 
to 5 U.S.C. 552a(j)(2), these records are hereby determined to be exempt 
from all provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and 
(2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i). 
These exemptions are necessary to ensure the proper operation of the law 
enforcement activity, to protect confidential sources of information, to 
fulfill promises of confidentiality, to prevent interference with law 
enforcement proceedings, to avoid the disclosure of investigative 
techniques, to avoid the endangering of law enforcement personnel, to 
avoid premature disclosure of the knowledge of criminal activity and the 
evidentiary bases of possible enforcement actions, and to maintain the 
integrity of the law enforcement process.



Sec.  4.34  Specific exemptions.

    (a)(1) Certain systems of records under the Act that are maintained 
by the Department may occasionally contain material subject to 5 U.S.C. 
552a(k)(1), relating to national defense and foreign policy materials. 
The systems of records published in the Federal Register by the 
Department that are within this exemption are:

COMMERCE/ITA-1, COMMERCE/ITA-2, COMMERCE/ITA-3, COMMERCE/NOAA-11, 
    COMMERCE/PAT-TM-4, COMMERCE/DEPT-12, COMMERCE/DEPT-13, and COMMERCE/
    DEPT-14.

    (2) The Department hereby asserts a claim to exemption of such 
materials wherever they might appear in such systems of records, or any 
systems of records, at present or in the future. The materials would be 
exempt from 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), 
and (f), because the materials are required by Executive order to be 
kept secret in the interest of the national defense and foreign policy.
    (b) The specific exemptions determined to be necessary and proper 
with respect to systems of records maintained by the Department, 
including the parts of each system to be exempted, the provisions of the 
Act from which they are exempted, and the justification for the 
exemption, are as follows:
    (1) Exempt under 5 U.S.C. 552a(k)(1). The systems of records exempt 
hereunder appear in paragraph (a) of this section. The claims for 
exemption of COMMERCE/DEPT-12, COMMERCE/ITA-1, and COMMERCE/NOAA-11 
under this paragraph are subject to the condition that the general 
exemption claimed in Sec.  4.33(b)(3) is held to be invalid.

[[Page 54]]

    (2)(i) Exempt under 5 U.S.C. 552a(k)(2). The systems of records 
exempt (some only conditionally), the sections of the Act from which 
exempted, and the reasons therefor are as follows:
    (A) Individuals identified in Export Administration compliance 
proceedings or investigations--COMMERCE/ITA-1, but only on condition 
that the general exemption claimed in Sec.  4.33(b)(1) is held to be 
invalid;
    (B) Individuals involved in export transactions--COMMERCE/ITA-2;
    (C) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-11, but only 
on condition that the general exemption claimed in Sec.  4.33(b)(2) is 
held to be invalid;
    (D) Investigative and Inspection Records--COMMERCE/DEPT-12, but only 
on condition that the general exemption claimed in Sec.  4.33(b)(3) is 
held to be invalid;
    (E) Investigative Records--Persons Within the Investigative 
Jurisdiction of the Department--COMMERCE/DEPT-13;
    (F) Litigation, Claims and Administrative Proceeding Records-- 
COMMERCE/DEPT-14; and
    (ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d), 
(e)(1), (e)(4)(G), (H), and (I), and (f). The reasons for asserting the 
exemption are to prevent subjects of investigation from frustrating the 
investigatory process; to ensure the proper functioning and integrity of 
law enforcement activities; to prevent disclosure of investigative 
techniques; to maintain the ability to obtain necessary information; to 
fulfill commitments made to sources to protect their identities and the 
confidentiality of information; and to avoid endangering these sources 
and law enforcement personnel. Special note is taken that the proviso 
clause in this exemption imports due process and procedural protections 
for the individual. The existence and general character of the 
information exempted shall be made known to the individual to whom it 
pertains.
    (3)(i) Exempt under 5 U.S.C. 552a(k) (4). The systems of records 
exempt, the sections of the Act from which exempted, and the reasons 
therefor are as follows:
    (A) Agriculture Census Records for 1974 and 1978--COMMERCE/CENSUS-1;
    (B) Individual and Household Statistical Surveys and Special Census 
Studies Records-- COMMERCE/CENSUS-3;
    (C) Minority-Owned Business Enterprises Survey Records-- COMMERCE/
CENSUS-4;
    (D) Population and Housing Census Records of the 1960 and Subsequent 
Censuses--COMMERCE/ CENSUS-5;
    (E) Population Census Personal Service Records for 1900 and All 
Subsequent Decennial Censuses--COMMERCE/CENSUS-6; and
    (F) Special Censuses of Population Conducted for State and Local 
Government--COMMERCE/CENSUS-7.
    (G) Statistical Administrative Records System--COMMERCE/CENSUS-8.
    (ii) The foregoing are exempted from 5 U.S.C. 552a(c)(3), (d), 
(e)(1), (e)(4)(G) (H), and (I), and (f). The reasons for asserting the 
exemption are to comply with the prescription of Title 13 of the United 
States Code, especially sections 8 and 9 relating to prohibitions 
against disclosure, and to avoid needless consideration of these records 
whose sole statistical use comports fully with a basic purpose of the 
Act, namely, that no adverse determinations are made from these records 
as to any identifiable individual.
    (4)(i) Exempt under 5 U.S.C. 552a(k)(5). The systems of records 
exempt (some only conditionally), the sections of the Act from which 
exempted, and the reasons therefor are as follows:
    (A) Applications to U.S. Merchant Marine Academy (USMMA)--COMMERCE/
MA-1;
    (B) USMMA Midshipman Medical Files--COMMERCE/MA-17;
    (C) USMMA Midshipman Personnel Files--COMMERCE/MA-18;
    (D) USMMA Non-Appropriated fund Employees--COMMERCE/MA-19;
    (E) Applicants for the NOAA Corps--COMMERCE/NOAA-4;
    (F) Commissioned Officer Official Personnel Folders--COMMERCE/NOAA-
7;
    (G) Conflict of Interest Records, Appointed Officials--COMMERCE/
DEPT-3;

[[Page 55]]

    (H) Investigative and Inspection Records--COMMERCE/DEPT-12, but only 
on condition that the general exemption claimed in Sec.  4.33(b)(3) is 
held to be invalid;
    (I) Investigative Records--Persons Within the Investigative 
Jurisdiction of the Department--COMMERCE/DEPT-13; and
    (J) Litigation, Claims, and Administrative Proceeding Records-- 
COMMERCE/DEPT-14.
    (ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d), 
(e)(1), (e)(4) (G), (H), and (I), and (f). The reasons for asserting the 
exemption are to maintain the ability to obtain candid and necessary 
information, to fulfill commitments made to sources to protect the 
confidentiality of information, to avoid endangering these sources and, 
ultimately, to facilitate proper selection or continuance of the best 
applicants or persons for a given position or contract. Special note is 
made of the limitation on the extent to which this exemption may be 
asserted. The existence and general character of the information 
exempted will be made known to the individual to whom it pertains.
    (c) At the present time, the Department claims no exemption under 5 
U.S.C. 552a(k) (3), (6) and (7).

     Appendix A to Part 4--Freedom of Information Public Inspection 
Facilities, and Addresses for Requests for Records Under the Freedom of 
    Information Act and Privacy Act, and Requests for Correction or 
                     Amendment Under the Privacy Act

    Each address listed below is the respective component's mailing 
address for receipt and processing of requests for records under the 
Freedom of Information Act and Privacy Act, for requests for correction 
or amendment under the Privacy Act and, unless otherwise noted, its 
public inspection facility for records available to the public under the 
Freedom of Information Act. Requests should be addressed to the 
component the requester knows or has reason to believe has possession 
of, control over, or primary concern with the records sought. Otherwise, 
requests should be addressed to the Central Reference and Records 
Inspection Facility. The telephone number for each component is included 
after its address. Public inspection facilities are open to the public 
Monday through Friday (excluding Saturdays, Sundays, and legal public 
holidays) between 9 a.m. and 4 p.m. local time of the facility at issue. 
Certain public inspection facility records of components are also 
available electronically through the Department's ``FOIA Home Page'' 
link found at the Department's World Wide Web site (http://
www.doc.gov)), as described in Sec.  4.2(b). The Departmental Freedom of 
Information Officer is authorized to revise this appendix to reflect 
changes in the information contained in it. Any such revisions shall be 
posted at the Department's ``FOIA Home Page'' link found at the 
Department's World Wide Web site (http://www.doc.gov).
    (1) Department of Commerce Freedom of Information Central Reference 
and Records Inspection Facility, U.S. Department of Commerce, Room 6022, 
14th and Constitution Avenue, NW, Washington, DC 20230; (202) 482-4115. 
This facility serves the Office of the Secretary, all other components 
of the Department not identified below, and those components identified 
below that do not have separate public inspection facilities.
    (2) Bureau of the Census, Policy Office, U.S. Department of 
Commerce, Federal Building 3, Room 2430, Suitland, Maryland 20233; (301) 
457-2520. This agency maintains a separate public inspection facility in 
Room 2455, Federal Building 3, Suitland, Maryland 20233.
    (3) Bureau of Economic Analysis/Economics and Statistics 
Administration, Office of the Under Secretary for Economic Affairs, 
Department of Commerce, Room 4836, 14th and Constitution Avenue, NW, 
Washington, DC 20230; (202) 482-3308. This component does not maintain a 
separate public inspection facility.
    (4) Bureau of Export Administration, Office of Administration, U.S. 
Department of Commerce, Room 6883, 14th and Constitution Avenue, NW, 
Washington, DC 20230; (202) 482-0500. This component does not maintain a 
separate public inspection facility.
    (5) Economic Development Administration, Office of the Chief 
Counsel, U.S. Department of Commerce, Room 7005, 14th and Constitution 
Avenue, NW, Washington, DC 20230; (202) 482-4687. Regional EDA offices 
(none of the following regional EDA offices maintains a separate public 
inspection facility):
    (i) Philadelphia Regional Office, EDA, U.S. Department of Commerce, 
Curtis Center, Suite 140 South, Independence Square West, Philadelphia, 
Pennsylvania 19106; (215) 597-7896.
    (ii) Atlanta Regional Office, EDA, U.S. Department of Commerce, 401 
West Peachtree Street, NW, Suite 1820, Atlanta, GA 30308; (404) 730-
3006.
    (iii) Denver Regional Office, EDA, U.S. Department of Commerce, Room 
670, 1244 Speer Boulevard, Denver, Colorado 80204; (303) 844-4716.

[[Page 56]]

    (iv) Chicago Regional Office, EDA, U.S. Department of Commerce, 111 
North Canal Street, Suite 855, Chicago, IL 60606; (312) 353-8580.
    (v) Seattle Regional Office, EDA, U.S. Department of Commerce, 
Jackson Federal Building, Room 1856, 915 Second Avenue, Seattle WA 
98174; (206) 220-7701.
    (vi) Austin Regional Office, EDA, U.S. Department of Commerce, 327 
Congress Avenue, Suite 200, Austin, Texas 78701; (512) 381-8169.
    (6) International Trade Administration, Office of Organization and 
Management Support, U.S. Department of Commerce, Room 4001, 14th and 
Constitution Avenue, NW, Washington, DC 20230; (202) 482-3032.
    (7) Minority Business Development Agency, Data Resources Division, 
U.S. Department of Commerce, Room 5084, 14th and Constitution Avenue, 
NW, Washington, DC 20230; (202) 482-2025. This agency does not maintain 
a separate public inspection facility.
    (8) National Institute of Standards and Technology, Management and 
Organization Division, Administration Building, Room A525, 100 Bureau 
Drive, Gaithersburg, Maryland 20899; (301) 975-4054. This agency 
maintains a separate public inspection facility in Room E-106, 
Administration Building, Gaithersburg, Maryland.
    (9) National Oceanic and Atmospheric Administration, Public 
Reference Facility (OFAx2) 1315 East West Highway (SSMC3), Room 10730, 
Silver Spring, Maryland 20910; (301) 713-3540.
    (10) National Technical Information Service, Office of 
Administration, 5285 Port Royal Road, Springfield, Virginia 22161; (703) 
605-6449. This agency does not maintain a separate public inspection 
facility.
    (11) National Telecommunications and Information Administration, 
Office of the Chief Counsel, U.S. Department of Commerce, Room 4713, 
14th and Constitution Avenue, NW, Washington, DC 20230; (202) 482-1816. 
This component does not maintain a separate public inspection facility.
    (12) Office of Inspector General, Counsel to the Inspector General, 
U.S. Department of Commerce, Room 7892, 14th and Constitution Avenue, 
NW, Washington, DC 20230; (202) 482-5992. This component does not 
maintain a separate public inspection facility.
    (13) Technology Administration, Office of the Under Secretary, U.S. 
Department of Commerce, Room 4835, 14th and Constitution Avenue, NW, 
Washington, DC 20230; (202) 482-1984. This component does not maintain a 
separate public inspection facility.

Appendix B to Part 4-- Officials Authorized to Deny Requests for Records 
   Under the Freedom of Information Act, and Requests for Records and 
       Requests for Correction or Amendment Under the Privacy Act

    The officials of the Department listed below and their superiors 
have authority, with respect to the records for which each is 
responsible, to deny requests for records under the FOIA,\1\ and 
requests for records and requests for correction or amendment under the 
PA. In addition, the Departmental Freedom of Information Officer and the 
Freedom of Information Officer for the Office of the Secretary have the 
foregoing FOIA and PA denial authority for all records of the 
Department, and the Departmental Freedom of Information officer is 
authorized to assign that authority, on a case-by-case basis only, to 
any of the officials listed below, if the records responsive to a 
request include records for which more than one official listed below is 
responsible. The Departmental Freedom of Information Officer is 
authorized to revise this appendix to reflect changes in designation of 
denial officials. Any such revisions shall be posted at the Department's 
``FOIA Home Page'' link found at the Department's World Wide Web site 
(http://www.doc.gov).
---------------------------------------------------------------------------

    \1\ The foregoing officials have sole authority under Sec.  4.7(b) 
to deny requests for records in any respect, including, for example, 
denying requests for reduction or waiver of fees.
---------------------------------------------------------------------------

                         Office of the Secretary

Office of the Secretary: Executive Secretary; Freedom of Information 
Officer
Office of Business Liaison: Director
Office of Public Affairs: Director; Deputy Director; Press Secretary; 
Deputy Press Secretary
Assistant Secretary for Legislative and Intergovernmental Affairs; 
Deputy Assistant Secretary for Legislative and Intergovernmental Affairs
Office of the Inspector General: Counsel to the Inspector General; 
Deputy Counsel to the Inspector General
Office of the General Counsel: Deputy General Counsel; Assistant General 
Counsel for Administration
Office of Executive Support: Director

                 Assistant Secretary for Administration

Office of Civil Rights: Director
Office of Budget: Director

[[Page 57]]

Office of Management and Organization: Director
Office of Chief Information Officer: Director
Office of Executive Budgeting and Assistance Management: Director
Office of Executive Assistance Management: Director; Grants Officer
Departmental Freedom of Information Officer.
    Office of Financial Management: Director
    Office of Human Resources Management: Director; Deputy Director.
Office of Administrative Services: Director
Office of Security: Director, Deputy Director
Office of Acquisition Management: Director
Office of Acquisition Services: Director
Office of Small and Disadvantaged Business Utilization: Director

                     Bureau of Export Administration

Under Secretary
Deputy Under Secretary
Director, Office of Administration
Director, Office of Planning, Evaluation and Management
Assistant Secretary for Export Administration
Deputy Assistant Secretary for Export Administration
Director, Office of Strategic Industries and Economic Security
Director, Office of Nonproliferation Controls and Treaty Compliance
Director, Office of Strategic Trade and Foreign Policy Controls
Director, Office of Exporter Services
Assistant Secretary for Export Enforcement
Deputy Assistant Secretary for Export Enforcement
Director, Office of Export Enforcement
Director, Office of Enforcement Analysis
Director, Office of Antiboycott Compliance

                 Economics and Statistics Administration

Office of Administration: Director
Bureau of Economic Analysis: Director
Bureau of the Census: Chief, Policy Office

                   Economic Development Administration

Freedom of Information Officer

                   International Trade Administration

Under Secretary for International Trade
Deputy Under Secretary for International Trade
Counselor to the Department
Director, Trade Promotion Coordinating Committee Secretariat
Director, Office of Public Affairs
Director, Office of Legislative and Intergovernmental Affairs

                             Administration

Chief Financial Officer and Director of Administration
Director, Office of Organization and Management Support
Director, Office of Human Resources Management
Director, Office of Information Resources Management
ITA Freedom of Information Officer

                          Import Administration

Assistant Secretary for Import Administration
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Enforcement I
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Enforcement II
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Enforcement III
Director for Policy and Analysis
Director, Office of Policy
Director, Office of Accounting
Director, Central Records Unit
Director, Foreign Trade Zones Staff
Director, Statutory Import Programs Staff
Director, Office of Antidumping Countervailing Duty Enforcement I
Director, Office of Antidumping Countervailing Duty Enforcement II
Director, Office of Antidumping Countervailing Duty Enforcement III
Director, Office of Antidumping Countervailing Duty Enforcement IV
Director, Office of Antidumping Countervailing Duty Enforcement V
Director, Office of Antidumping Countervailing Duty Enforcement VI
Director, Office of Antidumping Countervailing Duty Enforcement VII
Director, Office of Antidumping Countervailing Duty Enforcement VIII
Director, Office of Antidumping Countervailing Duty Enforcement IX

                      Market Access and Compliance

Assistant Secretary for Market Access and Compliance
Deputy Assistant Secretary for Agreements Compliance
Deputy Assistant Secretary for the Middle East and North Africa
Deputy Assistant Secretary for Europe
Deputy Assistant Secretary for the Western Hemisphere
Deputy Assistant Secretary for Asia and the Pacific
Deputy Assistant Secretary for Africa
Director, Office of Policy Coordination
Director, Office of Multilateral Affairs
Director, Trade Compliance Center
Director, Office of the Middle East and North Africa
Director, Office of European Union and Regional Affairs
Director, Office of Eastern Europe, Russia and Independent States
Director, Office of Latin America and the Caribbean

[[Page 58]]

Director, Office of NAFTA and Inter-American Affairs
Director, Office of China Economic Area
Director, Office of the Pacific Basin
Director, Office of South Asia and Oceania
Director, Office of Japan
Director, Office of Africa

                            Trade Development

Assistant Secretary for Trade Development
Deputy Assistant Secretary for Transportation and Technology Industries
Deputy Assistant Secretary for Textiles, Apparel and Consumer Goods 
Industries
Deputy Assistant Secretary for Service Industries and Finance
Deputy Assistant Secretary for Basic Industries
Deputy Assistant Secretary for Information Technology Industries
Deputy Assistant Secretary for Environmental Technologies Industries
Deputy Assistant Secretary for Tourism Industries
Director, Office of Export Promotion Coordination
Director, Trade Information Center
Director, Office of Trade and Economic Analysis
Director, Advocacy Center
Director, Office of Planning, Coordination and Resource Management
Director, Office of Aerospace
Director, Office of Automotive Affairs
Director, Office of Microelectronics, Medical Equipment and 
Instrumentation
Director, Office of Textiles and Apparel
Director, Office of Consumer Goods
Director, Office of Environmental Technologies
Director, Office of Export Trading Company Affairs
Director, Office of Finance
Director, Office of Service Industries
Director, Office of Metals, Materials and Chemicals
Director, Office of Energy, Infrastructure and Machinery
Director, Office of Electronic Commerce
Director, Office of Information Technologies
Director, Office of Telecommunications Technologies

                   U.S. and Foreign Commercial Service

Assistant Secretary and Director General
Deputy Director General
Deputy Assistant Secretary for International Operations
Deputy Assistant Secretary for Export Promotion Services
Deputy Assistant Secretary for Domestic Operations
Director, Office of Information Systems
Director, Office of Planning
Director, Office of Foreign Service Human Resources
Director for Europe
Director for Western Hemisphere
Director for East Asia and the Pacific
Director, Multilateral Development Bank Operations
Director, Office of Public/Private Initiatives
Director, Office of Export Information and Marketing Services
Director, Office of Operations

              Minority Business Development Administration

Freedom of Information Officer

             National Oceanic and Atmospheric Administration

Under Secretary
Assistant Secretary
Director, Office of Public and Constituent Affairs
Director, Office of Marine and Aviation Operations
General Counsel
Assistant Administrator for Ocean Services and Coastal Zone Management
Assistant Administrator for Fisheries
Assistant Administrator for Weather Services
Assistant Administrator for Satellite and Information Services
Assistant Administrator for Oceanic and Atmospheric Research
Office of Finance and Administration: Chief Financial Officer/Chief 
Administrative Officer
Director, Acquisition and Grants Office
Director, Systems Acquisition Office
Director, Human Resources Management Office
Director, Office of Finance
Director, Budget Office
Director, Facilities Office
Director, Information Systems Management Office
Director, Eastern Administrative Support Center
Director, Central Administrative Support Center
Director, Mountain Administrative Support Center
Director, Western Administrative Support Center
Freedom of Information Officer

       National Telecommunications and Information Administration

Deputy Assistant Secretary
Chief Counsel
Deputy Chief Counsel

                        Technology Administration

Under Secretary for Technology
Deputy Under Secretary for Technology
Assistant Secretary for Technology Policy
Chief Counsel
Deputy Chief Counsel

[[Page 59]]

Senior Counsel for Internet Technology
National Institute of Standards and Technology: Director for 
Administration and Chief Financial Officer; Chief, Management and 
Organization Division; NIST Counsel.
National Technical Information Service: Director; Deputy Director; Chief 
Financial Officer/Associate Director for Finance and Administration.

   Appendix C to Part 4--Systems of Records Noticed by Other Federal 
 Agencies and Applicable to Records of the Department and Applicability 
                          of this Part Thereto

------------------------------------------------------------------------
       Category of records                  Other Federal Agency
------------------------------------------------------------------------
Federal Personnel Records........  Office of Personnel Management.\1\
Federal Employee Compensation Act  Department of Labor.\2\
 Program Program.
Equal Employment Opportunity       Equal Employment Opportunity
 Appeal Complaints.                 Commission.\3\
Formal Complaints/Appeals of       Merit Systems Protection Board.\4\
 Adverse Personnel Actions.
------------------------------------------------------------------------
\1\ The provisions of this part do not apply to these records covered by
  notices of systems of records published by the Office of Personnel
  Management for all agencies. The regulations of OPM alone apply.
\2\ The provisions of this part apply only initially to these records
  covered by notices of systems of records published by the U.S.
  Department of Labor for all agencies. The regulations of that
  Department attach at the point of any denial for access or for
  correction or amendment.
\3\ The provisions of this part do not apply to these records covered by
  notices of systems of records published by the Equal Employment
  Opportunity Commission for all agencies. The regulations of the
  Commission alone apply.
\4\ The provisions of this part do not apply to these records covered by
  notices of systems of records published by the Merit Systems
  Protection Board for all agencies. The regulations of the Board alone
  apply.



PART 4a_CLASSIFICATION, DECLASSIFICATION, AND PUBLIC AVAILABILITY OF NATIONAL 
SECURITY INFORMATION--Table of Contents




Sec.
4a.1 General.
4a.2 Deputy Assistant Secretary for Security.
4a.3 Classification levels.
4a.4 Classification authority.
4a.5 Duration of classification.
4a.6 General.
4a.7 Mandatory review for declassification.
4a.8 Access to classified information by individuals outside the 
          Government.

    Authority: E.O. 12958; 47 FR 14874, April 6, 1982; 47 FR 15557, 
April 12, 1982.

    Source: 66 FR 65650, Dec. 20, 2001, unless otherwise noted.



Sec.  4a.1  General.

    Executive Order 12958 provides the only basis for classifying 
information within the Department of Commerce (Department), except as 
provided in the Atomic Energy Act of 1954, as amended. The Department's 
policy is to make information concerning its activities available to the 
public, consistent with the need to protect the national defense and 
foreign relations of the United States. Accordingly, security 
classification shall be applied only to protect the national security.



Sec.  4a.2  Deputy Assistant Secretary for Security.

    The Deputy Assistant Secretary for Security (DAS) is responsible for 
implementing E.O. 12958 and this part.



Sec.  4a.3  Classification levels.

    Information may be classified as national security information by a 
designated original classifier of the Department if it is determined 
that the information concerns one or more of the categories described in 
Sec.  1.5 of E.O. 12958. The levels established by E.O. 12958 (Top 
Secret, Secret, and Confidential) are the only terms that may be applied 
to national security information. Except as provided by statute, no 
other terms shall be used within the Department for the three 
classification levels.



Sec.  4a.4  Classification authority.

    Authority to originally classify information as Secret or 
Confidential may be exercised only by the Secretary of Commerce and by 
officials to whom such authority is specifically delegated. No official 
of the Department is authorized to originally classify information as 
Top Secret.



Sec.  4a.5  Duration of classification.

    (a) Information shall remain classified no longer than ten years 
from the

[[Page 60]]

date of its original classification, except as provided in Sec.  1.6(d) 
of E.O. 12958. Under E.O. 12958, information may be exempted from 
declassification within ten years if the unauthorized disclosure of such 
information could reasonably be expected to cause damage to the national 
security for more than ten years and meets one of the eight criteria 
listed in Sec.  1.6 (d).
    (b) Department of Commerce originally classified information marked 
for an indefinite duration of classification under predecessor orders to 
E.O. 12958 shall be declassified after twenty years. Classified 
information contained in archive records determined to have permanent 
historical value under Title 44 of the United States Code shall be 
automatically declassified no longer than 25 years from the date of its 
original classification, except as provided in Sec.  3.4(d) of E.O. 
12958.



Sec.  4a.6  General.

    National security information over which the Department exercises 
final classification jurisdiction shall be declassified or downgraded as 
soon as national security considerations permit. If information is 
declassified, it may continue to be exempt from public disclosure by the 
Freedom of Information Act (5 U.S.C. 552) or other applicable law.



Sec.  4a.7  Mandatory review for declassification.

    (a) Requests. Classified information under the jurisdiction of the 
Department is subject to review for declassification upon receipt of a 
written request that describes the information with sufficient 
specificity to locate it with a reasonable amount of effort. Requests 
must be submitted to the Deputy Assistant Secretary for Security, U.S. 
Department of Commerce, Room 1069, 14th and Constitution Avenue, NW., 
Washington, DC 20230.
    (b) Exemptions. The following are exempt from mandatory review for 
declassification:
    (1) Information that has been reviewed for declassification within 
the past two years;
    (2) Information that is the subject of pending litigation;
    (3) Information originated by the incumbent President, the incumbent 
President's White House Staff, committees, commissions, or boards 
appointed by the incumbent President, or other entities within the 
Executive Office of the President that solely advise and assist the 
incumbent President; and
    (4) Information specifically exempt from such review by law.
    (c) Processing requirements. (1) The DAS shall acknowledge receipt 
of the request directly to the requester. If a request does not 
adequately describe the information sought in accordance with paragraph 
(a) of this section, the requester shall be notified that unless 
additional information is provided, no further action will be taken. The 
request shall be forwarded to the component that originated the 
information or that has primary interest in the subject matter. The 
component assigned action shall review the information in accordance 
with Sec.  4a.7(c)(2) through (4) within twenty working days.
    (2) The component assigned action shall determine whether, under the 
declassification provisions of the U.S. Department of Commerce Security 
Manual, the entire document or portions thereof may be declassified. 
Declassification of the information shall be accomplished by a 
designated declassification authority. Upon declassification the 
information shall be remarked. If the information is not partially or 
entirely declassified, the reviewing official shall provide the reasons 
for denial by citing the applicable provisions of E.O. 12958. If the 
classification is a derivative decision based on classified source 
material of another Federal agency, the component shall provide the 
information to the originator for review.
    (3) If information is declassified, the component shall also 
determine whether it is releasable under the Freedom of Information Act. 
If the information is not releasable, the component shall advise the DAS 
that the information has been declassified but that it is exempt from 
disclosure, citing the appropriate exemption of the Freedom of 
Information Act.

[[Page 61]]

    (4) If the request for declassification is denied in whole or in 
part, the requester shall be notified of the right to appeal the 
determination within sixty calendar days and of the procedures for such 
an appeal. If declassified information remains exempt from disclosure 
under the Freedom of Information Act, the requester shall be advised of 
the appellate procedures under that law.
    (d) Fees. If the request requires services for which fees are 
chargeable, the component assigned action shall calculate the 
anticipated fees to be charged, and may be required to ascertain the 
requester's willingness to pay the allowable charges as a precondition 
to taking further action on the request, in accordance with Sec.  4.11 
of the Department of Commerce Freedom of Information Act rules and Sec.  
4.31 of the Department's Privacy Act rules.
    (e) Right of appeal. (1) A requester may appeal to the DAS when 
information requested under this section is not completely declassified 
and released after expiration of the applicable time limits. Within 
thirty working days (i.e., excluding Saturdays, Sundays, and legal 
public holidays) of receipt of a written appeal:
    (i) The DAS shall determine whether continued classification of the 
requested information is required in whole or in part;
    (ii) If information is declassified, determine whether it is 
releasable under the Freedom of Information Act; and
    (iii) Notify the requester of his or her determination, making 
available any information determined to be releasable. If continued 
classification is required under the provisions of the Department of 
Commerce National Security Manual, the DAS shall notify the requester of 
his or her determination, including the reasons for denial based on 
applicable provisions of E.O. 12958, and of the right of final appeal to 
the Interagency Security Classification Appeals Panel.
    (2) During the declassification review of information under appeal 
the DAS may overrule previous determinations in whole or in part if 
continued protection in the interest of national security is no longer 
required. If the DAS determines that the information no longer requires 
classification, it shall be declassified and, unless it is otherwise 
exempt from disclosure under the Freedom of Information Act, released to 
the requester. The DAS shall advise the original reviewing component of 
his or her decision.



Sec.  4a.8  Access to classified information by individuals outside the Government.

    (a) Industrial, Educational, and Commercial Entities. Certain 
bidders, contractors, grantees, educational, scientific, or industrial 
organizations may receive classified information under the procedures 
prescribed by the National Industrial Security Program Operating Manual.
    (b) Access by historical researchers and former Presidential 
appointees. An individual engaged in historical research projects or who 
has previously occupied a policy-making position to which he or she was 
appointed by the President may be authorized access to classified 
information for a limited period, provided that the head of the 
component with jurisdiction over the information:
    (1) Determines in writing that:
    (i) Access is consistent with national security;
    (ii) The individual has a compelling need for access; and
    (iii) The Department's best interest is served by providing access;
    (2) Obtains in writing from the individual:
    (i) Consent to a review by the Department of any resultant notes and 
manuscripts for the purpose of determining that no classified 
information is contained in them; and
    (ii) Agreement to safeguard classified information in accordance 
with applicable requirements; and
    (iii) A detailed description of the individual's research;
    (3) Ensures that custody of classified information is maintained at 
a Department facility;
    (4) Limits access granted to former Presidential appointees to items 
that the individual originated, reviewed, signed, or received while 
serving as a Presidential appointee; and
    (5) Receives from the DAS:
    (i) A determination that the individual is trustworthy; and

[[Page 62]]

    (ii) Approval to grant access to the individual.
    (c) An individual seeking access should describe the information 
with sufficient specificity to locate and compile it with a reasonable 
amount of effort. If the access requested by a historical researcher or 
former Presidential appointee requires services for which fees are 
chargeable, the responsible component shall notify the individual in 
advance.
    (d) This section applies only to classified information originated 
by the Department, or to information in the sole custody of the 
Department. Otherwise, the individual shall be referred to the 
classifying agency.



PART 5_OPERATION OF VENDING STANDS--Table of Contents




Sec.
5.1 Purpose.
5.2 Policy.
5.3 Assignment of functions and authorities.
5.4 Permits.
5.5 Vending machines.
5.6 Appeals.
5.7 Reports.
5.8 Approval of regulations.

    Authority: Sec. 4, 68 Stat. 663; 20 U.S.C. 107.

    Source: 28 FR 7772, July 31, 1963, unless otherwise noted.



Sec.  5.1  Purpose.

    This part prescribes regulations to assure the granting of 
preference to blind persons licensed under the provisions of the 
Randolph-Sheppard Vending Stand Act (49 Stat. 1559, as amended by the 
act of August 3, 1954, 68 Stat. 663; 20 U.S.C. 107) for the operation of 
vending stands (which term as used in this order includes vending 
machines).



Sec.  5.2  Policy.

    (a) The Department adopts the Federal policy announced in the 
Randolph-Sheppard Vending Stand Act, as amended, to provide blind 
persons with remunerative employment to enlarge the economic 
opportunities of the blind and to stimulate the blind to greater efforts 
in striving to make themselves self-supporting.
    (b) It shall be the policy of the Department to authorize blind 
persons licensed under the provisions of the Randolph-Sheppard Vending 
Stand Act, as amended to operate vending stands without any charge for 
space or necessary utilities on properties owned and occupied by the 
Department or on which the Department controls maintenance, operation, 
and protection.
    (c) The Department will cooperate with the Department of Education 
and State licensing agencies in making surveys to determine whether and 
where vending stands may be properly and profitably operated by licensed 
blind persons.
    (d) The application of a State licensing agency for a permit may be 
denied or revoked if it is determined that the interests of the United 
States would be adversely affected or the Department would be unduly 
inconvenienced by the issuance of a permit or its continuance.
    (e) Disagreements concerning the denial, revocation, or modification 
of a permit may be appealed by the State licensing agency as set forth 
in Sec.  5.6.

[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  5.3  Assignment of functions and authorities.

    (a) The Director, Office of Administrative Services, shall carry out 
the Department's responsibility to provide, in accordance with 
applicable law and regulation, the maximum opportunity for qualified 
blind persons to operate vending stands.
    (b) Subject to instructions issued by the Director, Office of 
Administrative Services, the head of each primary organization unit 
shall be responsible for implementing this program within his area.
    (c) The Director, Office of Administrative Services for the primary 
organization units located in the main Commerce building and the head of 
each other primary organization unit will make determinations with 
respect to the terms of permits including the location and operation of 
vending stands and machines in their respective areas.
    (d) Unresolved differences and significant violations of the terms 
of permits shall be reported to the State licensing

[[Page 63]]

agency. Where no corrective action is forthcoming, the matter shall be 
referred to the Office of Vocational Rehabilitation, Department of 
Education for consideration prior to further action.

[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  5.4  Permits.

    (a) No permit, lease, or other arrangement for the operation of a 
vending stand on property under control of the Department shall be 
entered into or renewed without first consulting the State licensing 
agency or equivalent authority.
    (b) The permit shall be conditioned upon the vending stand meeting 
specified standards, including standards relating to appearance, safety, 
sanitation, maintenance, and efficiency of operation. Due regard shall 
be given to laws and regulations for the public welfare which are 
applicable, or would be applicable, if the property involved was not 
owned or controlled by the Federal Government.
    (c) The permit shall specify the types of articles specified in 
section 2(a)(4) of the Act as amended (newspapers, periodicals, 
confections, tobacco products, articles dispensed automatically or in 
containers or wrappings in which they are placed before delivery to the 
vending stand). Such other related articles as the State licensing 
agency asks to be included shall be permitted to be sold, unless such 
factors as inadequacy of available facilities, safety, health, public 
welfare, or legal requirements demand otherwise.
    (d) The permit shall contain a provision that alterations made by 
other than the United States shall be approved by and conducted under 
the supervision of an appropriate official of the Department or the 
primary organization unit concerned.
    (e) The permit may contain other reasonable conditions necessary for 
the protection of the Government and prospective patrons of the stand.
    (f) The permit shall describe the location of the stand proper and 
the location of any vending machines which are operated in conjunction 
with it.



Sec.  5.5  Vending machines.

    (a) The income from any vending machines which are located within 
reasonable proximity to and are in direct competition with a vending 
stand for which a permit has been issued under these regulations shall 
be assigned to the operator of such stand.
    (b) If a vending machine vends articles of a type authorized by the 
permit and is so located that it attracts customers who would otherwise 
patronize the vending stand, such machine shall be deemed to be in 
reasonable proximity to and direct competition with the stand.



Sec.  5.6  Appeals.

    (a) In any instance where the Department of Commerce official as 
provided in Sec.  5.3(c) and the State licensing agency fail to reach 
agreement concerning the granting, revocation, or modification of a 
permit, the location, method of operation, assignment of proceeds, or 
other terms of a permit (including articles which may be sold), the 
State licensing agency shall be notified in writing by the Commerce 
official concerned that it has the right to appeal such disagreements, 
within 30 days of the notice, to the Assistant Secretary for 
Administration for investigation and final decision.
    (b) Upon receipt of a timely appeal the Assistant Secretary for 
Administration will cause a full investigation to be made. The State 
licensing agency shall be given an opportunity to present information 
pertinent to the facts and circumstances of the case. The complete 
investigation report including the recommendations of the investigating 
officer shall be submitted to the Assistant Secretary for Administration 
within 60 days from the date of the appeal.
    (c) The Assistant Secretary for Administration will render a final 
decision on the appeal within 90 days of the date of appeal.

[[Page 64]]

    (d) The State licensing agency will be informed of the final 
decision on its appeal. Copies of the decision will be forwarded to the 
Department of Commerce official concerned and the Department of 
Education.

[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]



Sec.  5.7  Reports.

    No later than fifteen days following the end of each fiscal year the 
responsible officials set forth in Sec.  5.3(c) shall forward to the 
Director, Office of Administrative Services a report on activities under 
this order. The report shall include:
    (a) The number of applications, including requests for installations 
initiated by the Department, for vending stands received from State 
licensing agencies;
    (b) The number of such requests accepted or approved;
    (c) The number denied, on which no appeal was made and the number 
denied on which an appeal was made; and
    (d) The number and status of any requests still pending.



Sec.  5.8  Approval of regulations.

    The provisions of this part have been approved by the Director, 
Bureau of the Budget, pursuant to Executive Order 10604, of April 22, 
1955.



PART 6_CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS--Table of Contents




Sec.
6.1 Definitions.
6.2 Purpose and scope.
6.3 Limitation on First Adjustments.
6.4 Adjustments to penalties.
6.5 Effective date of adjustments.
6.6 Subsequent adjustments.

    Authority: Sec. 4, as amended, and sec. 5, Pub. L. 101-410, 104 
Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-134, 110 Stat. 1321, 28 
U.S.C. 2461 note.

    Source: 61 FR 55093, Oct. 24, 1996, unless otherwise noted.



Sec.  6.1  Definitions.

    As used in this part:
    (a) Inflation Adjustment Act means the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-410, October 5, 1990, 104 
Stat. 890, 28 U.S.C. 2461 note).
    (b) Improvement Act means the Debt Collection Improvement Act of 
1996 (Public Law 104-134, April 26, 1996).
    (c) Amended Section Four means section 4 of the Inflation Adjustment 
Act, as amended by the Improvement Act.
    (d) Section Five means section 5 of the Inflation Adjustment Act.
    (e) Department means the Department of Commerce.
    (f) Secretary means the Secretary of the Department of Commerce.
    (g) First Adjustments means the inflation adjustments made by Sec.  
6.4 of this part which, as provided in Sec.  6.5 of this part, are 
effective on October 23, 1996.



Sec.  6.2  Purpose and scope.

    The purpose of this part is to make the inflation adjustment, 
described in Section Five and required by Amended Section Four, of each 
minimum and maximum civil monetary penalty provided by law within the 
jurisdiction of the Department.



Sec.  6.3  Limitation on First Adjustments.

    Each of the First Adjustments may not exceed ten percent (10%) of 
the respective penalty being adjusted.



Sec.  6.4  Adjustments to penalties.

    The civil monetary penalties provided by law within the jurisdiction 
of the respective agencies or bureaus of the Department, as set forth 
below in this section, are hereby adjusted in accordance with the 
inflation adjustment procedures prescribed in Section Five, from the 
amounts of such penalties in effect prior to November 1, 2000, to the 
amounts of such penalties, as thus adjusted.
    (a) Bureau of Export Administration.
    (1) 15 U.S.C. 5408(b)(1), Fastener Quality Act, violation: from 
$25,000 to $27,500.
    (2) 50 U.S.C. 1705(b), International Emergency Economic Powers Act, 
as invoked by E.O. 12924 (August 19, 1994) and E.O. 12938 (November 14, 
1994), Export Administration Regulations violation: from $11,000 to 
$12,000.
    (3) 50 U.S.C. 1707(b), International Emergency Economic Powers Act, 
as invoked by E.O. 12924 (August 19, 1994) and E.O. 12938 (November 14, 
1994),

[[Page 65]]

Chemical Weapons Convention Implementation Act (See E.O. 13128, June 25, 
1999), Chemical Weapons Convention, Import restriction violation: from 
$11,000 to $11,000.
    (4) 22 U.S.C. 7661(a)(1)(A), Chemical Weapons Convention 
Implementation Act, Prohibited acts relating to inspection violation: 
from $25,000 to $25,500.
    (5) 22 U.S.C. 7661(a)(1)(B), Chemical Weapons Convention 
Implementation Act, Record keeping violation: from $5,000 to $5,100.
    (6) 50 U.S.C. app. 2410(c), Export Administration Act, See E.O. 
12851(June 11, 1993), Non-national security violation: from $11,000 to 
$12,000.
    (7) 50 U.S.C. app. 2410(c), Export Administration Act, See E.O. 
12851 (June 11, 1993), and Section 38 Arms Export Control Act, National 
security violation: from $110,000 to $120,000.
    (b) Economic Development Administration.
    (1) 19 U.S.C. 2349, Trade Act of 1974, False statement, etc.: from 
$5,500 to $6,000.
    (2) [Reserved]
    (c) Economics and Statistics Administration (ESA)/Census.
    (1) 13 U.S.C. 304, Delinquency on delayed filing of export 
documentation: from $110 per/day (up to $1,100) to $120 per/day (up to 
$1,200).
    (2) 13 U.S.C. 305, Collection of foreign trade statistics violation: 
from $1,100 to $1,200.
    (d) ESA/Bureau of Economic Analysis.
    (1) 22 U.S.C. 3105(a), International Investment and Trade in 
Services Act, Failure to furnish information: from a minimum of $2,750 
to $3,000, and from a maximum of $27,500 to $30,000.
    (2) [Reserved]
    (e) Import Administration.
    (1) 19 U.S.C. 81s, Foreign Trade Zone violation: from $1,100 to 
$1,200.
    (2) 19 U.S.C. 1677f(f)(4), North American Free Trade Agreement 
Protective Order violation: from $110,000 to $120,000.
    (f) National Oceanic and Atmospheric Administration.
    (1) 15 U.S.C. 5623(a)(3), Land Remote Sensing Policy Act of 1992, 
violation: from $10,900 to $11,900.
    (2) 15 U.S.C. 5658(c), Land Remote Sensing Policy Act of 1992, 
violation: from $10,900 to $11,900.
    (3) 16 U.S.C. 773f(3), Northern Pacific Halibut Act of 1982, 
violation: from $27,500 to $30,000.
    (4) 16 U.S.C. 783, Sponge Act (1914), violation: from $550 to $600.
    (5) 16 U.S.C. 957, Tuna Conventions Act of 1950 (1962):
    (i) Violation/subsection c: from $110,000 to $120,000.
    (ii) Violation/subsection a: from $27,500 to $30,000.
    (iii) Violation/subsection b: from $1,100 to $1,200.
    (iv) Subsequent violation/subsection a: from $55,000 to $60,000
    (v) Subsequent violation/subsection b: from $5,500 to $6,000
    (6) 16 U.S.C. 971e(e)(1), Atlantic Tunas Convention Act of 1975 
(1995), violation: from $100,000 to $109,000.
    (7) 16 U.S.C. 972f(b), Eastern Pacific Tuna Licensing Act of 1984:
    (i) Violation/subsections (a)(1)-(3): from $27,500 to $30,000.
    (ii) Violation/subsections (a)(4)-(5): from $5,500 to $6,000.
    (iii) Subsequent violation/subsections (a)(1)-(3): from $55,000 to 
$60,000.
    (iv) Subsequent violation/subsections (a)(4)-(5): from $5,500 to 
$6,000.
    (v) Violation/subsection (a)(6): from $110,000 to $120,000.
    (8) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988, violation: 
from $275,000 to $300,000.
    (9) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983, violation: 
from $10,000 to $11,000.
    (10) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972, 
violation: from $11,000 to $12,000.
    (11) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information Act 
(1990), violation: from $100,000 to $110,000.
    (12) 16 U.S.C. 1437(c)(1), National Marine Sanctuaries Act (1992), 
violation: from $109,000 to $119,000.
    (13) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
    (i) Knowing violations (1988): from $27,500 to $30,000.
    (ii) Otherwise violations (1978): from $550 to $600.
    (iii) Other knowing violations (1988): from $13,200 to $14,000.

[[Page 66]]

    (14) 16 U.S.C. 1851 Note (Sec. 5)(c)(1), Atlantic Striped Bass 
Conservation Act (1997), violation: from $110,000 to $114,000.
    (15) 16 U.S.C. 1858 (a), Magnuson-Stevens Fishery Conservation and 
Management Act (1990), violation: from $110,000 to $120,000.
    (16) 16 U.S.C. 2437(a)(1), Antarctic Marine Living Resources 
Convention Act of 1984:
    (i) Knowing violation: from $11,000 to $12,000.
    (ii) Violation: from $5,500 to $6,000.
    (17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990:
    (i) Knowing violation: from $10,000 to $11,000.
    (ii) Violation: from $5,000 to $5,500.
    (18)16 U.S.C. 3373(a), Lacey Act Amendments of 1981:
    (i) Other than marking violation: from $11,000 to $12,000.
    (ii) Marking violation: from $275 to $300.
    (iii) Sale and purchase violation (1988): from $11,000 to $12,000.
    (iv) False labeling violation (1988): from $11,000 to $12,000.
    (19) 16 U.S.C. 3606(b), Atlantic Salmon Convention Act of 1982 
(1990), violation: from $110,000 to $120,000.
    (20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985 (1990), 
violation: from $110,000 to $120,000.
    (21) 16 U.S.C. 4016(b)(1)(B) Fish and Seafood Promotion Act of 1986, 
violation: from $500 (up to $5,000) to $550 (up to $5,500).
    (22) 16 U.S.C. 5010(a), North Pacific Anadromous Stocks Act of 1992, 
violation: from $100,000 to $110,000.
    (23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative 
Management Act (1993), violation: from $100,000 to $110,000.
    (24) 16 U.S.C. 5507(a), High Seas Fishing Compliance Act of 1995, 
violation: from $100,000 to $109,000.
    (25) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act 
of 1995, violation: from $100,000 to $109,000.
    (26) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971):
    (i) Violation: from $10,000 to $11,000
    (ii) Subsequent violation: from $25,000 to $27,500.
    (27) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act 
(1980), violation: from $27,500 to $30,000.
    (28) 42 U.S.C. 9152(c)(1), Ocean Thermal Energy Conversion Act of 
1980, violation: from $27,500 to $30,000.

[65 FR 65261, Nov. 1, 2000]



Sec.  6.5  Effective date of adjustments.

    The inflation adjustments made by Sec.  6.4 of this part, of the 
penalties there specified, are effective on November 1, 2000, and said 
penalties, as thus adjusted by the inflation adjustments made by Sec.  
6.4 of this part, shall apply only to violations occurring after 
November 1, 2000, and before the effective date of any future inflation 
adjustment thereto made subsequent to November 1, 2000, as provided in 
Sec.  6.6 of this part.

[65 FR 65262, Nov. 1, 2000]



Sec.  6.6  Subsequent adjustments.

    The Secretary or his or her designee by regulation shall, at least 
once every four years after October 23, 1996, make the inflation 
adjustment, described in Section Five and required by Amended Section 
Four, of each civil monetary penalty provided by law and within the 
jurisdiction of the Department.

                            PART 7 [RESERVED]




PART 8_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF 
COMMERCE_EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of 
Contents




 Subpart A_General Provisions; Prohibitions: Nondiscrimination Clause; 
                        Applicability to Programs

Sec.
8.1 Purpose.
8.2 Application of this part.
8.3 Definitions.
8.4 Discrimination prohibited.
8.5 Nondiscrimination clause.
8.6 Applicability of this part to Department assisted programs.

                      Subpart B_General Compliance

8.7 Cooperation, compliance reports and reviews and access to records.
8.8 Complaints.

[[Page 67]]

8.9 Intimidatory or retaliatory acts prohibited.
8.10 Investigations.
8.11 Procedures for effecting compliance.
8.12 Hearings.
8.13 Decisions and notices.
8.14 Judicial review.
8.15 Effect on other laws; supplementary instructions; coordination.

Appendix A to Part 8--Programs Covered By Title VI

    Authority: Sec. 602, Civil Rights Act of 1964 (42 U.S.C. 2000d-1).

    Source: 38 FR 17938, July 5, 1973, unless otherwise noted.



 Subpart A_General Provisions; Prohibitions: Nondiscrimination Clause; 
                        Applicability to Programs



Sec.  8.1  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 ground 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 receiving Federal financial assistance from the 
Department of Commerce. This part is consistent with achievement of the 
objectives of the statutes authorizing the financial assistance given by 
the Department of Commerce as provided in section 602 of the Act.



Sec.  8.2  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 listed in Appendix A to this 
part and as said Appendix may be amended. It applies to money paid, 
property transferred, or other Federal financial assistance extended 
under any such program after January 9, 1965, pursuant to an application 
approved prior to such effective date.
    (b) 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 
January 9, 1965, except where such assistance was subject to the title 
VI regulations of this Department or of any other 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.  8.4(c). The fact that a program is not listed 
in Appendix A 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 the list by 
notice published in the Federal Register.



Sec.  8.3  Definitions.

    (a) Department means the Department of Commerce, and includes each 
and all of its operating and equivalent other units.
    (b) Secretary means the Secretary of Commerce.
    (c) United States means the States of the United States, the 
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, 
Guam, Wake Island, the Canal Zone, and the territories and possessions 
of the United States, and the term State means anyone of the foregoing.
    (d) Person means an individual in the United States who is or is 
eligible to be a participant in or an ultimate beneficiary of any 
program which receives Federal financial assistance, and includes an 
individual who is an owner or member of a firm, corporation, or other 
business or organization which is or is eligible to be a participant in 
or an ultimate beneficiary of such a program. Where a primary objective 
of the Federal financial assistance to a program is to provide 
employment, ``person'' includes employees or applicants for employment 
of a recipient or other party subject to this part under such program.
    (e) Responsible department official with respect to any program 
receiving Federal financial assistance means the Secretary or other 
official of the Department who by law or by delegation

[[Page 68]]

has the principal authority within the Department for the administration 
of a law extending such assistance. It also means any officials so 
designated by due delegation of authority within the Department to act 
in such capacity with regard to any program under this part.
    (f) Federal financial assistance includes
    (1) Grants, loans, or agreements for participation in loans, of 
Federal funds,
    (2) The grant or donation of Federal property or interests in 
property,
    (3) The sale or lease of, or the permission to use (on other than a 
casual or transient basis), Federal property or any interest in such 
property or in property in which the Federal Government has an interest, 
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 or use by the recipient,
    (4) Waiver of charges which would normally be made for the 
furnishing of Government services,
    (5) The detail of Federal personnel,
    (6) Technical assistance, and
    (7) Any Federal agreement, arrangement, contract, or other 
instrument which has as one of its purposes the provision of assistance.
    (g) Program includes any program, project, or activity for the 
planning or provision of services, financial aid, property, other 
benefits, or facilities for furnishing services, financial aid, 
property, or other benefits, whether provided by the recipient or by 
others through contracts or other arrangements with the recipient, with 
the aid of Federal financial assistance, or with the aid of any non-
Federal funds, property, facilities or other resources which are 
provided to meet the conditions under which Federal financial assistance 
is extended or which utilizes federally assisted property, facilities or 
resources.
    (h) Facility includes all or any portion of structures, equipment, 
vessels, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration, contract for use, or acquisition of 
facilities.
    (i) Recipient means any governmental, public or private agency, 
institution, organization, or other entity, or any individual, who or 
which is an applicant for Federal financial assistance, or to whom 
Federal financial assistance is extended directly or through another 
recipient for or in connection with any program. Recipient further 
includes a subgrantee, an entity which leases or operates a facility for 
or on behalf of a recipient, and any successors, assignees, or 
transferees of any kind of the recipient, but does not include any 
person who is an ultimate beneficiary under any program.
    (j) Primary recipient means any recipient which is authorized or 
required to extend or distribute Federal financial assistance to another 
recipient for the purpose of carrying out a program.
    (k) Applicant means one who submits an application, request, or plan 
required to be approved by a responsible Department official, or by a 
primary recipient, as a condition to eligibility for Federal financial 
assistance, and ``application'' means such an application, request, or 
plan.
    (l) Other parties subject to this part includes any governmental, 
public or private agency, institution, organization, or other entity, or 
any individual, who or which, like a recipient, is not to engage in 
discriminatory acts with respect to applicable persons covered by this 
part, because of his or its direct or substantial participation in any 
program, such as a contractor, subcontractor, provider of employment, or 
user of facilities or services provided under any program.



Sec.  8.4  Discrimination prohibited.

    (a) General. No person in the United States shall, on the ground 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 acts prohibited. (1) A recipient of 
Federal financial assistance, or other party subject to this part under 
any program to which this part applies, shall not participate,

[[Page 69]]

directly or through contractual or other arrangements, in any act or 
course of conduct which, on the ground of race, color, or national 
origin:
    (i) Denies to a person any service, financial aid, or other benefit 
provided under the program;
    (ii) Provides 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) Subjects a person to segregation or separate or other 
discriminatory treatment in any matter related to his receipt (or 
nonreceipt) of any such service, financial aid, property, or other 
benefit under the program.
    (iv) Restricts a person in any way in the enjoyment of services, 
facilities, or any other advantage, privilege, property, or benefit 
provided to others under the programs;
    (v) Treats 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) Denies a person an opportunity to participate in the program 
through the provision of property or services or otherwise, or affords 
him an opportunity to do so which is different from that afforded others 
under the program (including the opportunity to participate in the 
program as an employee but only to the extent set forth in paragraph (c) 
of this section);
    (vii) Denies a person the same opportunity or consideration given 
others to be selected or retained or otherwise to participate as a 
contractor, subcontractor, or subgrantee when a program is applicable 
thereto;
    (viii) Denies a person the opportunity to participate as a member of 
a planning or advisory body which is an integral part of the program.
    (2) A recipient, or other party subject to this part under any 
program, 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 persons 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, shall 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 as respect any persons of a particular race, 
color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or other party subject to this part 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 
part 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 
shall be deemed to include any service, financial aid, or other benefit 
provided or made available in or through or utilizing a facility 
provided with the aid of Federal financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph and paragraph (c) of this section does not limit the 
generality of the prohibition in paragraph (a) of this section.
    (6)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color or national origin.

[[Page 70]]

    (c) Employment practices. (1) Where a primary objective of the 
Federal financial assistance to a program 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 
recipients and other parties subject to this part shall take affirmative 
action to ensure that applicants are employed, and employees are treated 
during employment without regard to their race, color, or national 
origin. Such recipients and other parties subject to this part shall, as 
may be required by supplemental regulations, develop a written 
affirmative action program. The requirements applicable to construction 
employment under any such program shall be in addition to those 
specified in or pursuant to Part III of Executive Order 11246 or any 
Executive order which supersedes it. Federal financial assistance to 
programs under laws funded or administered by the Department which has 
as a primary objective the providing of employment include those set 
forth in Appendix A II of this part.
    (2) Where a primary objective of the Federal financial assistance to 
a program to which this part applies 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 party subject to this 
part, tends, on the grounds of race, color, or national origin, to 
exclude persons from participating in, to deny them the benefits of, or 
to subject them to discrimination under any such program, the provisions 
of paragraph (c)(1) of this section shall apply to the employment 
practices of the recipient or other party subject to this part, to the 
extent necessary to assure equality of opportunity to, and 
nondiscriminatory treatment of such persons.

[38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973]



Sec.  8.5  Nondiscrimination clause.

    (a) Applicability. Every application for, and every grant, loan, or 
contract authorizing approval of, Federal financial assistance to carry 
out a program and to provide a facility subject to this part, and every 
modification or amendment thereof, shall, as a condition to its approval 
and to the extension of any Federal financial assistance pursuant 
thereto, contain or be accompanied by an assurance that the program will 
be conducted in compliance with all requirements imposed by or pursuant 
to this part. The assurances shall be set forth in a nondiscrimination 
clause. The responsible Department official shall specify the form and 
contents of the nondiscrimination clause for each program as 
appropriate.
    (b) Contents. Without limiting its scope or language in any way, a 
nondiscrimination clause shall contain, where determined to be 
appropriate, and in an appropriate form, reference to the following 
assurances, undertakings, and other provisions:
    (1) That the recipient or other party subject to this part will not 
participate directly or indirectly in the discrimination prohibited by 
Sec.  8.4, including employment practices when a program covering such 
is involved.
    (2) That when employment practices are covered, the recipient or 
other party subject to this part will (i) in all solicitations or 
advertisements for employees placed by or for the recipient, state that 
qualified applicants will receive consideration for employment without 
regard to race, color, or national origin; (ii) notify each labor union 
or representative of workers with which it has a collective bargaining 
agreement or other contract or understanding of the recipient's 
commitments under this section; (iii) post the nondiscrimination clause 
and the notice to labor unions in conspicuous places available to 
employees and applicants for employment; and (iv) otherwise comply with 
the requirements of Sec.  8.4(c).

[[Page 71]]

    (3) That in a program involving continuing Federal financial 
assistance, the recipient thereunder (i) will state 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 (ii) will 
provide for such methods of administration for the program as are found 
by the responsible Department official to give reasonable assurance that 
all recipients of Federal financial assistance under such program and 
any other parties connected therewith subject to this part will comply 
with all requirements imposed by or pursuant to this part.
    (4) That the recipient agrees to secure the compliance or to 
cooperate actively with the Department to secure the compliance by 
others with this part and the nondiscrimination clause as may be 
directed under an applicable program. For instance, the recipient may be 
requested by the responsible Department official to undertake and agree 
(i) to obtain or enforce or to assist and cooperate actively with the 
responsible Department official in obtaining or enforcing, the 
compliance of other recipients or of other parties subject to this part 
with the nondiscrimination required by this part; (ii) to insert 
appropriate nondiscrimination clauses in the respective contracts with 
or grants to such parties; (iii) to obtain and to furnish to the 
responsible Department official such information as he may require for 
the supervision or securing of such compliance; (iv) to carry out 
sanctions for noncompliance with the obligations imposed upon recipients 
and other parties subject to this part; and (v) to comply with such 
additional provisions as the responsible Department official deems 
appropriate to establish and protect the interests of the United States 
in the enforcement of these obligations. In the event that the 
cooperating recipient becomes involved in litigation with a noncomplying 
party as a result of such departmental direction, the cooperating 
recipient may request the Department to enter into such litigation to 
protect the interests of the United States.
    (5) In the case of real property, structures or improvements 
thereon, or interests therein, which are acquired for a program 
receiving Federal financial assistance, or in the case where Federal 
financial assistance is provided in the form of a transfer of real 
property 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, or for as long as the recipient retains 
ownership or possession of the property, whichever, is longer. Where no 
transfer of property is involved, but property is improved with Federal 
financial assistance, the recipient shall agree to include such a 
covenant in any subsequent transfer of such property. Where 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 responsible Department official, 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 responsible Department official may agree, upon request of the 
transferee and if necessary to accomplish such financing, and upon such 
conditions as he deems appropriate to forebear the exercise of such 
right to revert title for so long as the lien of such mortgage or other 
encumbrance remains effective.
    (6) In programs 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

[[Page 72]]

of the program receiving such assistance the nondiscrimination 
requirements of this part shall extend to any facility located wholly or 
in part in such space.
    (7) That a recipient shall not take action that is calculated to 
bring about indirectly what this part forbids it to accomplish directly.
    (8) Provisions specifying the extent to which like assurances will 
be required of subgrantees, contractors and subcontractors, lessees, 
transferees, successors in interest, and other participants in the 
program.
    (9) Provisions which give the United States a right to seek judicial 
enforcement of the assurances.
    (10) In the case where any assurances are required from an academic, 
a medical care, detention or correctional, or any other institution or 
facility, insofar as the assurances relate to the institution's 
practices with respect to the admission, care, or other treatment of 
persons by the institution or with respect to the opportunity of persons 
to participate in the receiving or providing of services, treatment, or 
benefits, such assurances shall be applicable to the entire institution 
or facility. That requirement may be waived by the responsible 
Department official if the party furnishing the assurances establishes 
to the satisfaction of the responsible Department official that the 
practices in designated parts or programs of the institution or facility 
will in no way affect its practices in the program of the institution or 
facility for which Federal financial assistance is or is sought to be 
provided, or affect the beneficiaries of or participants in such 
program. If in any such case the assistance is or is sought for the 
construction of a facility or part of a facility, the assurances shall 
in any event extend to the entire facility and to facilities operated in 
connection therewith.
    (11) In the case where the Federal financial assistance is in the 
form of or to aid in the acquisition of personal property, or real 
property or interest therein or structures thereon, the assurance shall 
obligate the recipients, 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 and 
benefits, or for as long as the recipient or transferee retains 
ownership or possession of the property, whichever is longer. In the 
case of any other type or form of assistance, the assurances shall be in 
effect for the duration of the period during which Federal financial 
assistance is extended to the program.

[38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973]



Sec.  8.6  Applicability of this part to Department assisted programs.

    The following examples illustrate the applicability of this part to 
programs which receive or may receive Federal financial assistance 
administered by the Department. The fact that a particular program is 
not listed does not indicate that it is not covered by this part, The 
discrimination referred to is that described in Sec.  8.4 against 
persons on the ground of race, color, or national origin.
    (a) Assistance to support economic development programs. 
Discrimination in which recipients and other parties subject to this 
part shall not engage, directly or indirectly, includes discrimination 
in
    (1) The letting of contracts or other arrangements for the planning, 
designing, engineering, acquisition, construction, rehabilitation, 
conversion, enlargement, installation, occupancy, use, maintenance, 
leasing, subleasing, sales, or other utilization or disposition of 
property or facilities purchased or financed in whole or in part with 
the aid of Federal financial assistance;
    (2) The acquisition of goods or services, or the production, 
preparation, manufacture, marketing, transportation, or distribution of 
goods or services in connection with a program or its operations;
    (3) The onsite operation of the project or facilities;
    (4) Services or accommodations offered to the public in connection 
with the program; and
    (5) In employment practices in connection with or which affect the 
program (as defined in Sec.  8.4(c)); in the following programs:

[[Page 73]]

    (i) Any program receiving Federal financial assistance for the 
purchase or development of land and facilities (including machinery and 
equipment) for industrial or commercial usage.
    (ii) Any program receiving Federal financial assistance in the form 
of loans or direct or supplementary grants for the acquisition or 
development of land and improvements for public works, public service or 
development facility usage, and the acquisition, construction, 
rehabilitation, alteration, expansion, or improvement of such 
facilities, including related machinery and equipment.
    (iii) In any program receiving any form of technical assistance 
designed to alleviate or prevent conditions of excessive employment or 
underemployment.
    (iv) In any program receiving Federal financial assistance in the 
form of administrative expense grants.
    (b) Assistance to support the training of students. A current 
example of such assistance is that received by State maritime academies 
or colleges, by contract, of facilities (vessels), related equipment and 
funds to train merchant marine officers. In this and other student 
training programs, discrimination which is prohibited by recipients and 
other parties subject to this part includes discrimination in the 
selection of persons to be trained and in their treatment by the 
recipients in any aspect of the educational process and discipline 
during their training, or in the availability or use of any academic, 
housing, eating, recreational, or other facilities and services, or in 
financial assistance to students furnished or controlled by the 
recipients or incidental to the program. In any case where selection of 
trainees is made from a predetermined group, such as the students in an 
institution or area, the group must be selected without discrimination.
    (c) Assistance to support mobile or other trade fairs. In programs 
in which operators of mobile trade fairs using U.S. flag vessels and 
aircraft and designed to exhibit and sell U.S. products abroad, or in 
which other trade fairs or exhibitions, receive technical and financial 
assistance, discrimination which is prohibited by recipients and other 
parties subject to this part includes discrimination in the selection or 
retention of any actual or potential exhibitors, or in access to or use 
of the services or accommodations by, or otherwise with respect to 
treatment of, exhibitors or their owners, officers, employees, or 
agents.
    (d) Assistance to support business entities eligible for trade 
adjustment assistance. In programs in which eligible business entities 
receive any measure or kind of technical, financial or tax adjustment 
assistance because of or in connection with the impact of U.S. 
international trade upon such business, discrimination which is 
prohibited by recipients and other parties subject to this part includes 
discrimination in their employment practices as defined in Sec.  8.4(c).
    (e) Assistance to support research and development and related 
activities. In programs in which individuals, educational or other 
institutions, public governmental or business entities receive Federal 
financial assistance in order to encourage or foster research or 
development activities as such, or to obtain, promote, develop, or 
protect thereby technical, scientific, environmental, or other 
information, products, facilities, resources, or services which are to 
be made available to or used by others; but where such programs do not 
constitute Government procurement of property or services, 
discrimination which is prohibited by recipients and other parties 
subject to this part includes discrimination with respect to (1) the 
choice, retention or treatment of contractors, subcontractors, 
subgrantees or of any other person; (2) the provision of services, 
facilities, or financial aid; (3) the participation of any party in the 
research activities; (4) the dissemination to or use by any person of 
the results or benefits of the research or development, whether in the 
form of information, products, services, facilities, resources, or 
otherwise. If research is performed within an educational institution 
under which it is expected that students or others will participate in 
the research as a part of their experience or training, on a compensated 
or uncompensated basis, there shall be no discrimination in admission of 
students to, or in their treatment

[[Page 74]]

by, that part of the school from which such students are drawn or in the 
selection otherwise of trainees or participants. The recipient 
educational institutions will be required to give the assurances 
provided in Sec.  8.5(b)(10).
    (f) Assistance to aid in the operations of vessels engaged in U.S. 
foreign commerce. In programs in which the operators of American-flag 
vessels used to furnish shipping services in the foreign commerce of the 
United States receive Federal financial assistance in the form of 
operating differential subsidies, discrimination which is prohibited by 
recipients and other parties subject to this part includes 
discrimination in soliciting, accepting or serving in any way passengers 
or shippers of cargo entitled to protection in the United States under 
the Act.



                      Subpart B_General Compliance



Sec.  8.7  Cooperation, compliance reports and reviews and access to records.

    (a) Cooperation and assistance. Each responsible Department official 
shall to the fullest extent practicable seek the cooperation of 
recipients and other parties subject to this part in obtaining 
compliance with this part and shall provide assistance and guidance to 
recipients and other parties to help them comply voluntarily with this 
part.
    (b) Compliance reports. Each recipient and other party subject to 
this part shall keep such records and submit to the responsible 
Department official timely, complete, and accurate compliance reports at 
such times and in such form and containing such information as the 
responsible Department official may determine to be necessary to enable 
him to ascertain whether the recipient or such other party has complied 
or is complying with this part. In general, recipients should have 
available for the department racial and ethnic data showing the extent 
to which members of minority groups are beneficiaries of federally 
assisted programs. In the case of any program under which a primary 
recipient extends Federal financial assistance to any other recipient, 
or under which a recipient is obligated to obtain or to cooperate in 
obtaining the compliance of other parties subject to this part, such 
other recipients or other parties shall also submit such compliance 
reports to the primary recipient or recipients as may be necessary to 
enable them to carry out their obligations under this part.
    (c) Access to sources of information. Each recipient or other party 
subject to this part shall permit access by the responsible Department 
official or his designee during normal business 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 or other party is in the 
exclusive possession of another who fails or refuses to furnish this 
information, the recipient or other party 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 or 
other party subject to this part 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 this part and the 
responsible Department official finds necessary to apprise such persons 
of the protections against discrimination assured them by the Act and 
this part.
    (e) Compliance review. The responsible Department official or his 
designee shall from time to time review the practices of recipients and 
other parties subject to this part to determine whether they are 
complying with this part.



Sec.  8.8  Complaints.

    (a) Filing 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 
responsible Department official a written complaint. A complaint shall 
be filed not later than 180 days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible Department official.
    (b) [Reserved]

[[Page 75]]



Sec.  8.9  Intimidatory or retaliatory acts prohibited.

    (a) No recipient or other party subject to this part shall 
intimidate, threaten, coerce, or discriminate against, any person for 
the purpose of interfering with any right or privilege secured by 
section 601 of the Act of this part, or because the person has made a 
complaint, testified, assisted, or participated in any manner in an 
investigation, proceeding, or hearing under this part.
    (b) 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 or 
other proceeding arising thereunder.



Sec.  8.10  Investigations.

    (a) Making the investigation. The responsible Department official or 
his designee 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 shall include, where 
appropriate, a review of the pertinent practices and policies of the 
recipient or other party subject to this part, the circumstances under 
which the possible noncompliance with this part occurred, and other 
factors relevant to a determination as to whether there has been a 
failure to comply with this part.
    (b) Resolution of matters. (1) If an investigation pursuant to 
paragraph (a) of this section indicates a failure to comply with this 
part, the responsible Department official will so inform the recipient 
or other party subject to this part 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.  8.11.
    (2) If an investigation does not warrant action pursuant to 
paragraph (b)(1) of this section, the responsible Department official 
will so inform the recipient or other party subject to this part and the 
complainant, if any, in writing.



Sec.  8.11  Procedures 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 
contractural undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec.  8.5. If a recipient or other party 
subject to this part fails or refuses to furnish an assurance required 
under Sec.  8.5 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 said paragraph except that the Department shall 
continue assistance during the pendency of such proceedings where such 
assistance is due and payable pursuant to an application or contract 
therefor 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 responsible Department official has advised the recipient 
or other party subject to this part 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 such recipient or other party to comply with a 
requirement imposed by or pursuant to this part, (3) the action

[[Page 76]]

has been approved by the Secretary pursuant to Sec.  8.13(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 recipient or other party 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 by 
any other means authorized by law shall be taken until (1) the 
responsible Department official has determined that compliance cannot be 
secured by voluntary means, (2) the recipient or other party 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 party. During this 
period of at least 10 days additional efforts shall be made to persuade 
the recipient or other party to comply with this part and to take such 
corrective action as may be appropriate.



Sec.  8.12  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  8.11(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
recipient or other party subject to this part. This notice shall advise 
the recipient or other party 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 recipient or other party may request of 
the responsible Department official that the matter be scheduled for 
hearing, or (2) advise the recipient or other party 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. A recipient or other party may waive a hearing 
and submit written information and argument for the record. The failure 
of a recipient or other party to request a hearing under this paragraph 
of this section 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.  8.11(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 time fixed by the 
responsible Department official or hearing officer unless he determines 
that the convenience of the recipient or other party or of the 
Department requires that another place be selected. Hearings shall be 
held before the responsible Department official, or at his discretion, 
before a hearing officer.
    (c) Right to counsel. In all proceedings under this section, the 
recipient or other party 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 
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedures Act), 
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 recipient or other party 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 shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the

[[Page 77]]

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 of procedures 
not inconsistent with this part. Final decisions in such cases, insofar 
as this part is concerned, shall be made in accordance with Sec.  8.13.



Sec.  8.13  Decisions and notices.

    (a) Decision by person other than the responsible Department 
official. If the hearing is held by a hearing officer such hearing 
officer shall either make an initial decision, if so authorized, or 
certify the entire record including his recommended findings and 
proposed decision to the responsible Department official for a final 
decision, and a copy of such initial decision or certification shall be 
mailed to the recipient or other party subject to this part. Where the 
initial decision is made by the hearing officer, the recipient or other 
party may within 30 days of the mailing of such notice of initial 
decision file with the responsible Department official his exceptions to 
the initial decision, with his reasons therefor. In the absence of 
exceptions, the responsible Department official may on his own motion 
within 45 days after the initial decision serve on the recipient or 
other party a notice that he will review the decision. Upon the filing 
of such exceptions or of such notice of review, the responsible 
Department official 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 
constitute the final decision of the responsible Department official.
    (b) Decisions on record or review by the responsible Department 
official. Whenever a record is certified to the responsible Department 
official for decision or he reviews the decision of a hearing officer 
pursuant to paragraph (a) of this section, or whenever the responsible 
Department official conducts the hearing, the recipient or other party 
shall be given reasonable opportunity to file with him briefs or other 
written statements of its contentions, and a copy of the final decision 
of the responsible Department official shall be given in writing to the 
recipient or other party and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec.  8.12(a) a decision shall be made by 
the responsible departmental official on the record and a copy of such 
decision shall be given in writing to the recipient or other party, and 
to the complainant, if any.
    (d) Ruling required. Each decision of a hearing officer or 
responsible Department official 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 recipient or other party has failed to 
comply.
    (e) Approval by Secretary. Any final decision of a responsible 
Department official (other than the Secretary) 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 of the Act, shall promptly be transmitted to 
the Secretary, who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.

[[Page 78]]

    (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 program to the 
recipient or other party 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 responsible Department 
official that it will fully comply with this part.
    (g) Posttermination proceedings. (1) Any recipient or other party 
which is 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 recipient or other party adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible Department official to restore fully its 
eligibility to receive Federal financial assistance. Any such request 
shall be supported by information showing that the recipient or other 
party has met the requirements of paragraph (g)(1) of this section. If 
the responsible Department official determines that those requirements 
have been satisfied, he shall restore such eligibility.
    (3) If the responsible Department official denies any such request, 
the recipient or other party may submit a request for a hearing in 
writing, specifying why 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 of procedure issued by the 
responsible Department official. The recipient or other party 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.  8.14  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.  8.15  Effect on other laws; supplementary instructions; coordination.

    (a) Effect on other laws. All regulations, orders, or like 
directions heretofore issued by any officer of the Department which 
impose requirements designed to prohibit any discrimination against 
individuals on the ground of race, color, or national origin under any 
program to which this part applies, and which authorizes the suspension 
or termination of or refusal to grant or to continue Federal financial 
assistance to any recipient or other party subject to this part 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 shall be deemed to relieve any one of any obligations assumed or 
imposed under any such superseded regulation, order, instruction, or 
like direction prior to January 9, 1965. Nothing in this part, however, 
shall be deemed to supersede any of the following (including future 
amendments thereof):
    (1) Executive Order 11246 and regulations issued thereunder, or
    (2) Executive Order 11063 and regulations issued thereunder, or any 
other regulations or instructions, insofar as such order, 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. Each responsible Department official 
shall issue and promptly make available to interested parties forms and 
detailed

[[Page 79]]

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.  8.13), 
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 responsible official of this Department.

           Appendix A to Part 8--Programs Covered by Title VI

 i. federal financial assistance to which title 15, subtitle a, part 8 
                                 applies

                   Economic Development Administration

    1. Loans, grants, technical and other assistance for public works 
and development facilities, for supplementing Federal grants-in-aid, for 
private businesses, and for other purposes, including assistance in 
connection with designated economic development districts and regions 
(Public Works and Economic Development Act of 1965, as amended, 42 
U.S.C. 3121 et seq.).
    2. Financial and technical assistance to firms to aid economic 
adjustment to the effects of increased imports in direct competition 
with firm products (Trade Act of 1974, 19 U.S.C. 2341-2354).
    3. Assistance to communities adversely affected by increased imports 
in direct competition with products manufactured in the community area 
(Trade Act of 1974, 19 U.S.C. 2371-2374).
    4. Assistance to projects involving construction of local and State 
public facilities in order to reduce unemployment and provide State and 
local governments with badly needed public facilities (Local Public 
Works Capital Development and Assistance Act of 1976, 42 U.S.C. 6701-
6710).
    5. Trade adjustment assistance: Loans, dissemination of technical 
information (title II of the Trade Act of 1974, 19 U.S.C. 2341-2374).

                         Maritime Administration

    1. Operating differential subsidy assistance to operators of U.S. 
flag vessels engaged in U.S. foreign commerce (46 U.S.C. 1171 et seq.).
    2. Assistance to operate State maritime academies and colleges to 
train merchant marine officers (46 U.S.C. 1381-1388).
    3. Ship construction differential subsidies, direct payments 
(Merchant Marine Act of 1936, as amended, 46 U.S.C. 1151-1161).

                      National Bureau of Standards

    1. Grants to universities and other research organizations for fire 
research and safety programs (15 U.S.C. 278f).

           National Fire Prevention and Control Administration

    1. Academy planning assistance: To assist States in the development 
of training and education in the fire prevention and control area (15 
U.S.C. 2201-2219).
    2. State fire incident reporting assistance: To assist States in the 
establishment and operation of a statewide fire incident and casualty 
reporting system (15 U.S.C. 2201-2219).
    3. Public education assistance planning: Publications, audiovisual 
presentations and demonstrations, research, testing, and experimentation 
to determine the most effective means for such public education (15 
U.S.C. 2205c).
    4. Policy development assistance: Studies of the operations and 
management aspects of fire services (15 U.S.C. 2207c).

             National Oceanic and Atmospheric Administration

    1. Assistance to States, educational institutions, and the 
commercial fishing industry for the development of tuna and other latent 
fisheries (16 U.S.C. 758e).
    2. Assistance to States for the development and implementation of 
programs to protect and study certain species of marine mammals (16 
U.S.C. 1379b).
    3. Financial assistance to States with agencies which have entered 
into a cooperative agreement to assist in the preservation of threatened 
and endangered species (16 U.S.C. 1535).
    4. Assistance to coastal States for the development of estuarine 
sanctuaries to serve as field laboratories and for acquiring access to 
public beaches (16 U.S.C. 1461).
    5. Assistance to coastal States for the development, implementation, 
and administration of coastal zone management programs (16 U.S.C. 1454-
1455).
    6. Assistance to coastal States to help communities in dealing with 
the economic,

[[Page 80]]

social, and environmental consequences resulting from expanded coastal 
energy activity (16 U.S.C. 1456).
    7. Authority to enter into cooperative agreements with ``colleges 
and universities, with game and fish departments of the several States, 
and with nonprofit organizations relating to cooperative research 
units.'' Assistance limited to assignment of personnel, supplies, and 
incidental expenses (16 U.S.C. 753 a and b).
    8. Grants for education and training of personnel in the field of 
commercial fishing, ``to public and nonprofit private universities and 
colleges * * *'' (16 U.S.C. 760d).
    9. Grants for ``office and any other necessary space'' for the 
Northern Pacific Halibut Commission (16 U.S.C. 772).
    10. The ``Dingell Johnson Act'': Apportionment of dollars to States 
for restoration and management of sport or recreational species (16 
U.S.C. 777-777i; 777k).
    11. Authority to cooperate with and provide assistance to States in 
controlling jellyfish, etc. (16 U.S.C. 1201, 1202).
    12. Authority to cooperate with and provide assistance to certain 
States and territories in the study and control of ``Crown of Thorns'' 
starfish (16 U.S.C. 1211-1213).
    13. Technical assistance to fishing cooperatives regarding catching 
and marketing aquatic products (15 U.S.C. 521-522).
    14. Fish research and experimentation program cooperation with other 
agencies in acquisition of lands, construction of buildings, employment 
of personnel in establishing and maintaining research stations (16 
U.S.C. 778a).
    15. Assistance to upgrade commercial fishing vessels and gear (16 
U.S.C. 742c).
    16. Assistance to State projects designed for the research and 
development of commercial fisheries resources of the nation (16 U.S.C. 
779a-779f).
    17. Assistance to State and other non-Federal interests under 
cooperative agreements to conserve, develop, and enhance anadromous and 
Great Lakes Fisheries (16 U.S.C. 757a et seq.).
    18. Grants and other assistance under the National Sea Grant College 
and Program Act of 1966: To support establishment of major university 
centers for marine research, education, training, and advisory services 
(33 U.S.C. 1121-1124).
    19. Geodetic surveys and services; advisory services; dissemination 
of technical information (33 U.S.C. 883a).
    20. Nautical charts assistance; advisory services; dissemination of 
technical information (33 U.S.C. 883a).
    21. River and flood forecast and warning services; advisory services 
(15 U.S.C. 313).
    22. Weather forecast and warning services (15 U.S.C. 311 and 313, 49 
U.S.C. 1351 and 1463).
    23. Commercial fisheries disaster assistance (16 U.S.C. 779b).
    24. Provision for the Weather Service to assist in joint projects 
``of mutual interest'' (15 U.S.C. 1525).

       National Telecommunications and Information Administration

    1. Grants for the planning and construction of public 
telecommunications facilities for the production and distribution of 
noncommercial educational and cultural radio and television programming 
and related instructional and informational materials. (Public 
Telecommunications Financing Act of 1978, 47 U.S.C. Sections 390-394).

                 Office of Minority Business Enterprise

    1. Assistance to minority business enterprises: Grants, contracts, 
advisory service, technical information (15 U.S.C. 1512; title III of 
the Public Works and Economic Development Act of 1965, as amended, 42 
U.S.C. 3151; Executive Order 11625, Oct. 13, 1971).

                  Regional Action Planning Commissions

    1. Supplemental grants to Federal grant-in-aid programs and 
technical assistance funds for planning, investigations, studies, 
training programs, and demonstration proj[chyph]ects, including 
demonstrations in energy, transportation, health and nutrition, 
education and indigenous arts and crafts (title V of the Public Works 
and Economic Development Act of 1965, as amended, 42 U.S.C. 3181-3196).

                      United States Travel Service

    1. Assistance to strengthen the domestic and foreign commerce of the 
United States, and to promote friendly understanding and appreciation of 
the United States by encouraging foreign residents to visit the United 
States (22 U.S.C. 2121 et seq.).

                             Departmentwide

    1. Authority to make basis scientific research grants (42 U.S.C. 
1891-1893; to be superseded no later than Feb. 3, 1979, by the Federal 
Grant and Cooperative Agreement Act of 1977, Pub. L. 95-224).

 ii. a primary objective of the financial assistance authorized by the 
 following statutes, already listed above in appendix ai, is to provide 
                               employment

    1. Public Works and Economic Development Act of 1965, as amended (42 
U.S.C. 3121 et seq.).
    2. Trade Act of 1974 (19 U.S.C. 2341-2354).
    3. Local Public Works Capital Development and Assistance Act of 1976 
(42 U.S.C. 6701-6710)

[43 FR 49303, Oct. 23, 1978, as amended at 44 FR 12642, Mar. 8, 1979]

[[Page 81]]



PART 8a_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A_Introduction

Sec.
8a.100 Purpose and effective date.
8a.105 Definitions.
8a.110 Remedial and affirmative action and self-evaluation.
8a.115 Assurance required.
8a.120 Transfers of property.
8a.125 Effect of other requirements.
8a.130 Effect of employment opportunities.
8a.135 Designation of responsible employee and adoption of grievance 
          procedures.
8a.140 Dissemination of policy.

                           Subpart B_Coverage

8a.200 Application.
8a.205 Educational institutions and other entities controlled by 
          religious organizations.
8a.210 Military and merchant marine educational institutions.
8a.215 Membership practices of certain organizations.
8a.220 Admissions.
8a.225 Educational institutions eligible to submit transition plans.
8a.230 Transition plans.
8a.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

8a.300 Admission.
8a.305 Preference in admission.
8a.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

8a.400 Education programs or activities.
8a.405 Housing.
8a.410 Comparable facilities.
8a.415 Access to course offerings.
8a.420 Access to schools operated by LEAs.
8a.425 Counseling and use of appraisal and counseling materials.
8a.430 Financial assistance.
8a.435 Employment assistance to students.
8a.440 Health and insurance benefits and services.
8a.445 Marital or parental status.
8a.450 Athletics.
8a.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

8a.500 Employment.
8a.505 Employment criteria.
8a.510 Recruitment.
8a.515 Compensation.
8a.520 Job classification and structure.
8a.525 Fringe benefits.
8a.530 Marital or parental status.
8a.535 Effect of state or local law or other requirements.
8a.540 Advertising.
8a.545 Pre-employment inquiries.
8a.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

8a.600 Notice of covered programs.
8a.605 Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52877, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec.  8a.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec.  8a.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate,

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transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means with respect to any program 
receiving Federal financial assistance, the Secretary or other official 
of the Department who by law or by delegation has the principal 
authority within the Department for the administration of a law 
extending such assistance. Designated agency official also means any 
officials so designated by due delegation of authority within the 
Department to act in such capacity with regard to any program under 
these Title IX regulations.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or

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    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec.  
8a.100 through 8a.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.



Sec.  8a.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.

[[Page 84]]

    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec.  8a.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec.  8a.110(a) 
to eliminate existing discrimination on the basis of sex or to eliminate 
the effects of past discrimination whether occurring prior to or 
subsequent to the submission to the designated agency official of such 
assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec.  8a.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec.  8a.205 through 8a.235(a).



Sec.  8a.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or

[[Page 85]]

local law or other requirement that would render any applicant or 
student ineligible, or limit the eligibility of any applicant or 
student, on the basis of sex, to practice any occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec.  8a.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec.  8a.135  Designation of responsible employee and adoption of grievance 
procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec.  8a.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec.  8a.300 through 8a.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec.  8a.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used

[[Page 86]]

in connection with the recruitment of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B_Coverage



Sec.  8a.200  Application.

    Except as provided in Sec. Sec.  8a.205 through 8a.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec.  8a.205  Educational institutions and other entities controlled by 
religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec.  8a.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec.  8a.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec.  8a.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec.  8a.225 and 8a.230, and Sec. Sec.  8a.300 through 
8a.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec.  8a.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  8a.300 
through 8a.310 apply to each recipient. A recipient to which Sec. Sec.  
8a.300 through 8a.310 apply shall not discriminate on the

[[Page 87]]

basis of sex in admission or recruitment in violation of Sec. Sec.  
8a.300 through 8a.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec.  8a.300 through 8a.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec.  8a.300 through 8a.310 do not apply to any public institution 
of undergraduate higher education that traditionally and continually 
from its establishment has had a policy of admitting students of only 
one sex.



Sec.  8a.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  8a.300 through 8a.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec.  8a.300 through 
8a.310.



Sec.  8a.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  8a.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec.  8a.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec.  8a.300 through 
8a.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec.  8a.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec.  8a.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.

[[Page 88]]

    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.

[[Page 89]]

    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec.  8a.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Sec. Sec.  8a.300 through Sec. Sec.  8a.310 apply, 
except as provided in Sec. Sec.  8a.225 and Sec. Sec.  8a.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec.  8a.300 through 8a.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec.  8a.300 through 8a.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec.  8a.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec.  8a.305  Preference in admission.

    A recipient to which Sec. Sec.  8a.300 through 8a.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec.  8a.300 through 8a.310.



Sec.  8a.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
8a.300 through 8a.310 apply shall not discriminate on the basis of sex 
in the recruitment and admission of students. A recipient may be 
required to undertake additional recruitment efforts for one sex as 
remedial action pursuant to Sec.  8a.110(a), and may choose to undertake 
such efforts

[[Page 90]]

as affirmative action pursuant to Sec.  8a.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  8a.300 through 8a.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec.  8a.300 through 8a.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec.  8a.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
8a.400 through 8a.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Sec. Sec.  8a.300 through 8a.310 do not 
apply, or an entity, not a recipient, to which Sec. Sec.  8a.300 through 
8a.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec.  8a.400 
through 8a.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that

[[Page 91]]

these Title IX regulations would prohibit such recipient from taking; 
and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec.  8a.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec.  8a.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec.  8a.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.

[[Page 92]]



Sec.  8a.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec.  8a.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec.  8a.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and

[[Page 93]]

    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec.  8a.450.



Sec.  8a.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec.  
8a.500 through 8a.550.



Sec.  8a.440  Health and insurance benefits and services.

    Subject to Sec.  8a.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec.  8a.500 through 8a.550 if it were provided to 
employees of the recipient. This section shall not prohibit a recipient 
from providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.



Sec.  8a.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec.  8a.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification

[[Page 94]]

for a leave of absence for as long a period of time as is deemed 
medically necessary by the student's physician, at the conclusion of 
which the student shall be reinstated to the status that she held when 
the leave began.



Sec.  8a.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec.  8a.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec.  8a.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether

[[Page 95]]

full-time or part-time, under any education program or activity operated 
by a recipient that receives Federal financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec.  8a.500 
through 8a.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec.  8a.500 through 8a.550 
apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec.  8a.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 8a.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec. 8a.500 through 8a.550.



Sec. 8a.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:

[[Page 96]]

    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 8a.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 8a.550.



Sec. 8a.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 8a.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 8a.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 8a.235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 8a.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec. 8a.500 through

[[Page 97]]

8a.550 is not obviated or alleviated by the existence of any State or 
local law or other requirement that imposes prohibitions or limits upon 
employment of members of one sex that are not imposed upon members of 
the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 8a.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec. 8a.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 8a.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec. 8a.500 
through 8a.550 provided it is shown that sex is a bona fide occupational 
qualification for that action, such that consideration of sex with 
regard to such action is essential to successful operation of the 
employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F_Procedures



Sec. 8a.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec.  8a.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 15 CFR 8.7 through 8.15, and 13 CFR 
part 317.

[65 FR 52877, Aug. 30, 2000]



PART 8b_PROHIBITION OF DISCRIMINATION AGAINST THE HANDICAPPED IN FEDERALLY 
ASSISTED PROGRAMS OPERATED BY THE DEPARTMENT OF COMMERCE--Table of Contents




                      Subpart A_General Provisions

Sec.
8b.1 Purpose.
8b.2 Application.
8b.3 Definitions.
8b.4 Discrimination prohibited.
8b.5 Assurances required.
8b.6 Remedial action, voluntary action, and self-evaluation.
8b.7 Designation of responsible employee and adoption of grievance 
          procedures.
8b.8 Notice.
8b.9 Administrative requirements for small recipients.
8b.10 Effect of state or local law or other requirements and effect of 
          employment opportunities.

                     Subpart B_Employment Practices

8b.11 Discrimination prohibited.
8b.12 Reasonable accommodation.
8b.13 Employment criteria.

[[Page 98]]

8b.14 Preemployment inquiries.
8b.15 Employment on ships.

                     Subpart C_Program Accessibility

8b.16 Discrimination prohibited.
8b.17 Existing facilities.
8b.18 New construction.

                   Subpart D_Post Secondary Education

8b.19 Application of this subpart.
8b.20 Admission and recruitment.
8b.21 Treatment of students.
8b.22 Academic adjustments.
8b.23 Housing provided by the recipient.
8b.24 Financial and employment assistance to students.
8b.25 Nonacademic services.

                          Subpart E_Procedures

8b.26 Procedures.

    Authority: 29 U.S.C. 794.

    Source: 47 FR 17746, Apr. 23, 1982, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  8b.1  Purpose.

    Section 504 of the Rehabilitation Act of 1973, as amended, prohibits 
discrimination on the basis of handicap in any program or activity 
receiving or benefiting from Federal financial assistance. The purpose 
of this part is to implement section 504 with respect to programs and 
activities receiving or benefiting from Federal financial assistance 
from the Department of Commerce.



Sec.  8b.2  Application.

    This part applies to each recipient of Federal financial assistance 
from the Department of Commerce and to each program receiving or 
benefiting from such assistance. The requirements of this part do not 
apply to the ultimate beneficiaries of Federal financial assistance in 
the program receiving Federal financial assistance.



Sec.  8b.3  Definitions.

    As used in this part, the term:
    (a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as 
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 
and by the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978, Pub. L. 95-602 (codified at 29 U.S.C. 
794 (1976 & Supp. II 1978)).
    (b) Applicant for assistance means one who submits an application, 
request, or plan required to be approved by a Department official or by 
a recipient as a condition to becoming a recipient.
    (c) Department means the Department of Commerce and any of its 
constituent units authorized to provide Federal financial assistance.
    (d) Facility means all or any portion of buildings, ships, 
structures, equipment, roads, walks, parking lots, industrial parks, or 
other real or personal property or interest in such property.
    (e) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guarantee), or any other arrangement by which the Department provides or 
otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) 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.
    (f) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (g) of this section.
    (g) Handicapped person--(1) Handicapped person means any person who:
    (i) Has a physical or mental impairment which substantially limits 
one or more major life activities;
    (ii) Has a record of such an impairment; or
    (iii) Is regarded as having such an impairment.
    (2) For purposes of employment, the term ``handicapped person'' does 
not include any person who is an alcoholic or drug abuser whose current 
use of alcohol or drugs prevents that individual from performing the 
duties of the job in question, or whose employment, because of current 
alcohol or drug abuse,

[[Page 99]]

would constitute a direct threat to property or to the safety of others.
    (3) As used in paragraph (g)(1) of this section, the phrase:
    (i) Physical or mental impairment means:
    (A) 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
    (B) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;
    (C) 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, diabetes, mental retardation, 
emotional illness, drug addiction and alcoholism.
    (ii) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, working, and receiving education or vocational 
training.
    (iii) Has a record of such an impairment means that the individual 
has a history of, or has been misclassified as having, a mental or 
physical impairment that substantially limits one or more major life 
activities.
    (iv) Is regarded as having an impairment means that the individual:
    (A) 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;
    (B) 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
    (C) Has none of the impairments defined in paragraph (g)(3)(i) of 
this section, but is treated by a recipient as having such an 
impairment.
    (h) Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question;
    (2) With respect to post secondary and vocational education 
services, a handicapped person who meets the academic and technical 
standards requisite to admission or participation in the recipient's 
education program or activity;
    (3) With respect to other services, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    (i) Recipient means any State or its political subdivisions, any 
instrumentality of a State or its political subdivisions, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
indirectly through another recipient, or including any successor, 
assignee, or transferee of a recipient, but excluding the ultimate 
beneficiary of the assistance.
    (j) Secretary means the Secretary of Commerce, U.S. Department of 
Commerce.
    (k) Section 504 means section 504 of the Act.
    (l) Small recipient means a recipient who serves fewer than 15 
beneficiaries and who employs fewer than 15 employees at all times 
during a grant year.



Sec.  8b.4  Discrimination prohibited.

    (a) General. No qualified handicapped individual 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 that receives or benefits from Federal financial assistance.
    (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 handicap:
    (i) Deny a qualified handicapped individual the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped individual an opportunity to 
participate

[[Page 100]]

in or benefit from the aid, benefit, or service that is not equal to 
that afforded others;
    (iii) Provide a qualified handicapped individual with any aid, 
benefit, or service that is not as effective as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped individuals or to any class of handicapped individuals, 
unless such action is necessary to provide qualified handicapped 
individuals with aid, benefits, or services that are as effective as 
those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
individual by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of handicap in 
providing any aid, benefit, or service to beneficiaries of the 
recipient's program;
    (vi) Deny a qualified handicapped individual the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped individual in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any aid, benefits, or services.
    (2) For purposes of this part, aid, benefits, and services must 
afford handicapped individuals an equal opportunity to obtain the same 
result, to gain the same benefit, or to reach the same level of 
achievement as afforded to others, in the most integrated setting 
appropriate to the individual's needs. However, aid, benefits and 
services, to be equally effective, need not produce the identical result 
or level of achievement for handicapped and nonhandicapped individuals.
    (3) A recipient may not deny a qualified handicapped individual the 
opportunity to participate in its regular programs or activities, 
despite the existence of separate or different programs or activities 
which are established in accordance with this part.
    (4) A recipient may not, directly or through contractual or other 
arrangements, use criteria or methods of administration:
    (i) That have the effect of subjecting qualified handicapped 
individuals to discrimination on the basis of handicap;
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program 
with respect to handicapped individuals; or
    (iii) That perpetuate the discrimination of another recipient if 
both recipients are subject to common administrative control or are 
agencies of the same state.
    (5) In determining the geographic site or location of a facility, an 
applicant for assistance or a recipient may not make selections:
    (i) That have the effect of excluding handicapped individuals from, 
denying them the benefit 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 individuals.
    (6) As used in this section, the aid, benefit, or service provided 
under a program or activity receiving or benefiting from Federal 
financial assistance includes any aid, benefit, or service provided in 
or through a facility that has been constructed, expanded, altered, 
leased, rented or otherwise acquired, in whole or in part, with Federal 
financial assistance.
    (7)(i) In providing services under programs of Federal financial 
assistance, recipients to which this subpart applies, except small 
recipients, shall ensure that no handicapped participant is denied the 
benefits of, excluded from participation in, or otherwise subjected to 
discrimination under the program or activity operated by the recipient 
because of the absence of auxiliary aids for participants with impaired 
sensory, manual or speaking skills. A recipient shall operate each 
program or activity to which this subpart applies so that, when viewed 
in its entirety, auxiliary aids are readily available. The Secretary may 
require small recipients to provide auxiliary aids in order to ensure 
that no handicapped participant is denied the benefits of, excluded from 
participation in, or otherwise subjected

[[Page 101]]

to discrimination under the program or activity operated by small 
recipients, when this would not significantly impair the ability of the 
small recipient to provide benefits or services.
    (ii) Auxiliary aids may include brailled and taped materials, 
interpreters, telecommunications devices, or other equally effective 
methods of making orally delivered information available to persons with 
hearing impairments, readers for persons with visual impairments, 
equipment adapted for use by persons with manual impairments, and other 
similar devices and actions. Recipients need not provide attendants, 
individually prescribed devices, readers for personal use or study, or 
other devices or services of a personal nature.
    (c) Programs limited by Federal law. The exclusion of non-
handicapped persons from the benefits of a program limited by Federal 
statute or Executive order to handicapped individuals, or the exclusion 
of a specific class of handicapped individuals from a program limited by 
Federal statute or Executive order to a different class of handicapped 
individuals is not prohibited by this part.
    (d) Integrated setting. Recipients shall administer programs and 
activities in the most integrated setting appropriate to the needs of 
qualified handicapped individuals.
    (e) Communications with individuals with impaired vision and 
hearing. Recipients shall ensure that communications with their 
applicants, employees and beneficiaries are available to persons with 
impaired vision or hearing. Appropriate modes of communication may 
include braille, enlarged type, sign language and telecommunications 
devices.



Sec.  8b.5  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance for a 
program or activity to which this part applies shall submit an 
assurance, on a form specified by the Secretary, that the program will 
be operated in compliance with this part. An applicant may incorporate 
these assurances by reference in subsequent applications to the 
Department.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended in the form of real property or structures on the 
property, the assurance will obligate the recipient or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
real property or structures are used for the purpose for which Federal 
financial assistance is extended, or for another purpose involving the 
provision of similar services or benefits.
    (2) In case of Federal financial assistance extended to provide 
personal property, the assurance will obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases, the assurance will obligate the recipient 
for the period during which Federal financial assistance is extended or 
the federally-funded program is operated, whichever is longer.
    (c) Covenants. (1) Where Federal financial assistance is provided in 
the form of real property or interest in the property from the 
Department, the instrument effecting or recording this transfer shall 
contain a covenant running with the land to assure 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.
    (2) Where no transfer or property is involved but property is 
purchased or improved with Federal financial assistance, the recipient 
shall agree to include the covenant described in paragraph (c)(1) of 
this section in the instrument effecting or recording any subsequent 
transferee of the property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Department, the 
covenant shall 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. If a transferee of real property proposed 
to mortgage or otherwise encumber the real property as security to 
finance construction of new, or improvement of existing, facilities on 
the property for the purposes for which the

[[Page 102]]

property was transferred, the Secretary may agree to forbear the 
exercise of such right to revert title for so long as the lien of such 
mortgage or other encumbrance remains effective. Such an agreement by 
the Secretary may be entered into only upon the request of the 
transferee (recipient) if it is necessary to accomplish such financing 
and upon such terms and conditions as the Secretary deems appropriate.
    (d) Interagency agreements. Where funds are granted by the 
Department to another Federal agency to carry out a program under a law 
administered by the Department, and where the grant obligates the 
recipient agency to comply with the rules and regulations of the 
Department applicable to that grant the provisions of this part shall 
apply to programs and activities operated with such funds.



Sec.  8b.6  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Secretary finds that a recipient has 
discriminated against persons on the basis of handicap in violation of 
section 504 or this part, the recipient shall take such remedial action 
as the Secretary deems necessary to overcome the effects of the 
discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the basis of handicap in violation of section 504 or this part and 
where another recipient exercises control over the recipient that has 
discriminated, the Secretary, where appropriate, may require either or 
both recipients to take remedial action.
    (3) The Secretary may, where necessary to overcome the effects of 
discrimination in violation of section 504 or this part, require a 
recipient to take remedial action:
    (i) With respect to handicapped individuals who would have been 
participants in the program had the discrimination not occurred; and
    (ii) With respect to handicapped persons who are no longer 
participants in the recipient's program, but who were participants in 
the program when the discrimination occurred; and
    (iii) with respect to employees and applicants for employment.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped individuals.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this part:
    (i) Evaluate, with the assistance of interested persons, including 
handicapped individuals or organizations representing handicapped 
individuals, its current policies and practices and the effects thereof 
that do not or may not meet the requirements of this part;
    (ii) Modify, after consultation with interested persons, including 
handicapped individuals or organizations representing handicapped 
individuals, any policies and practices that do not meet the 
requirements of this part; and
    (iii) Take, after consultation with interested persons, including 
handicapped individuals or organizations representing handicapped 
individuals, appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient, other than a small recipient, shall for at least 
three years following completion of the evaluation required under 
paragraph (c)(1) of this section, maintain on file, make available for 
public inspection, and provide to the Secretary upon request:
    (i) A list of the interested persons consulted;
    (ii) A description of areas examined and any problems identified; 
and
    (iii) A description of any modifications made and of any remedial 
steps taken.
    (3) The Secretary may, as he or she deems necessary, direct 
recipients to conduct additional self-evaluations, in accordance with 
the requirements of paragraph (c)(1) of this section.

(Approved by the Office of Management and Budget under control number 
0605-0006)

[47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16, 1982]

[[Page 103]]



Sec.  8b.7  Designation of responsible employee and adoption of grievance 
procedures.

    (a) Designation of responsible employee. A recipient, other than a 
small recipient, shall designate at least one person to coordinate its 
efforts to comply with this part.
    (b) Adoption of grievance procedures. A recipient, other than a 
small recipient, shall adopt grievance procedures that incorporate 
appropriate due process standards and that provide for the prompt and 
equitable resolution of complaints alleging any action prohibited by 
this part. Such procedures need not be established with respect to 
complaints from applicants for employment or from applicants for 
admission to post secondary educational institutions.



Sec.  8b.8  Notice.

    (a) A recipient, other than a small 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 handicap in violation of 
Section 504 and of this part. The notification shall state, where 
appropriate, that the recipient does not discriminate in the admission 
or access to, or treatment or employment in, its programs and 
activities. The notification shall also include an identification of the 
responsible employee designated pursuant to Sec.  8b.7(a). A recipient 
shall make the initial notification required by this paragraph within 90 
days of the effective date of this part. Methods of initial and 
continuing notification may include the posting of notices, publications 
in newspapers and magazines, placement of notices in recipient's 
publications, and distribution of memoranda or other written 
communication. A recipient shall take appropriate steps to ensure that 
notice is available to persons with impaired vision or hearing.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information made 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.



Sec.  8b.9  Administrative requirements for small recipients.

    The Secretary may require small recipients to comply with Sec. Sec.  
8b.7 and 8b.8, in whole or in part, when the Secretary finds a violation 
of this part or finds that such compliance will not significantly impair 
the ability of the small recipient to provide benefits or services.



Sec.  8b.10  Effect of state or local law or other requirements and effect 
of employment opportunities.

    (a) The obligation to comply with this part is not obviated or 
alleviated by the existence of any state or local law or other 
requirement that, on the basis of handicap, imposes prohibitions or 
limits upon the eligibility of qualified handicapped individuals to 
receive services, participate in programs, or practice any occupation or 
profession.
    (b) The obligation to comply with this part is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or may be more limited for handicapped individuals than 
for nonhandicapped persons.



                     Subpart B_Employment Practices



Sec.  8b.11  Discrimination prohibited.

    (a) General. (1) No qualified handicapped individual shall, on the 
basis of handicap, be subjected to discrimination in employment under 
any program or activity that receives or benefits from Federal financial 
assistance.
    (2) A recipient shall make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of handicap does not occur and 
may not limit, segregate, or classify applicants

[[Page 104]]

or employees in any way that adversely affects their opportunities or 
status because of handicap.
    (3) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this subparagraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipient, and with organizations providing training and 
apprenticeship programs.
    (b) Specific activities. The prohibition against discrimination in 
employment applies to the following activities:
    (1) Recruitment, advertising and the processing of applicants for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff and rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation; pension or other benefit the applicant or employee 
receives from any other source.



Sec.  8b.12  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or metal limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program.
    (b) Reasonable accommodation may include:
    (1) Making the facilities used by the employees in the area where 
the program is conducted, including common areas used by all employees 
such as hallways, restrooms, cafeterias and lounges, readily accessible 
to and usable by handicapped persons; and
    (2) Job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, the provision of 
readers or interpreters, and other similar actions.
    (c) In determining pursuant to paragraph (a) of this section whether 
an accommodation would impose an undue hardship on the operation of a 
recipient's program, factors to be considered include:
    (1) The overall size of the recipient's program with respect to 
number of employees, number of participants, number and type of 
facilities, and size of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of the recipient's workforce; and
    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
qualified handicapped employee or applicant if the basis for the denial 
is the need to make reasonable accommodation to the physical or mental 
limitations of the employee or applicant.
    (e) Nothing in this paragraph shall relieve a recipient of its 
obligation to make its program accessible as required in subpart C of 
this part, or to provide auxiliary aids, as required by Sec.  
8b.4(b)(7).



Sec.  8b.13  Employment criteria.

    (a) A recipient may not make use of any employment test or other 
selection criterion that screens out or tends to screen out handicapped 
individuals or any class of handicapped individuals unless;
    (1) The test score or other selection criterion, as used by the 
recipient, is shown to be job-related for the position in question; and
    (2) Alternative job-related tests or criteria that do not screen out 
or tend to screen out as many handicapped individuals are not shown by 
the Secretary to be available.
    (b) A recipient shall select and administer tests concerning 
employment so as best to ensure that, when administered to an applicant 
or employee who has a handicap that impairs sensory, manual, or speaking 
skills, the test results accurately to reflect the applicant's or 
employee's job skills aptitude, or whatever factor the test purports to 
measure, rather than reflecting the applicant's or employee's impaired 
sensory, manual, or speaking skills (except where those skills are the 
factors that the test purports to measure).

[[Page 105]]



Sec.  8b.14  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct preemployment inquiry of an applicant for 
employment as to whether the applicant is a handicapped individual, or 
as to the nature or severity of a handicap. A recipient may, however, 
make preemployment inquiry into an applicant's ability to perform job-
related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec.  8b.6(a), when a 
recipient is taking voluntary action to overcome the effects of 
conditions that resulted in limited participation in this federally 
assisted program or activity pursuant to Sec.  8b.6(b), or when a 
recipient is taking affirmative action pursuant to section 503 of the 
Act, the recipient may invite applicants for employment to indicate 
whether and to what extent they are handicapped, Provided, That:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally, if no written questionnaire is 
used, that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary or 
affirmative action efforts; and
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this part.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty, 
Provided, That:
    (1) All employees are subject to such an examination regardless of 
handicap, and
    (2) The results of such an examination are used only in accordance 
with the requirements of this part.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant shall be collected and 
maintained on separate forms that shall be accorded confidentiality as 
medical records, except:
    (1) Employing officials may obtain the information after making a 
conditional decision to make a job offer to the applicant or the 
applicant was placed conditionally in a job pool or placed conditionally 
on an eligibility list;
    (2) Supervisors and managers may be informed regarding restrictions 
on the work or duties of qualified handicapped individuals and regarding 
necessary accommodations;
    (3) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (4) Government officials investigating compliance with the Act shall 
be provided information upon request.



Sec.  8b.15  Employment on ships.

    No qualified handicapped individual possessing an appropriate 
license or certificate obtained from the United States Coast Guard 
pursuant to the requirements of 46 CFR 10.01-1 et seq. and 12.01-1 et 
seq. shall, on the basis of handicap, be subjected to discrimination in 
employment on ships under any program or activity to which this part 
applies.



                     Subpart C_Program Accessibility



Sec.  8b.16  Discrimination prohibited.

    No qualified handicapped individual shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped individuals, 
be denied the benefits of, be excluded from participation in, or 
otherwise be subjected to discrimination under any program or activity 
to which this part applies.



Sec.  8b.17  Existing facilities.

    (a) Program accessibility. A recipient shall operate each program or 
activity to which this part applies so that the program or activity, 
when viewed in its entirety, is readily accessible to qualified 
handicapped individuals. This paragraph does not require a recipient to 
make each of its existing facilities or every part of a facility 
accessible to and usable by qualified handicapped individuals. However, 
if a particular program is available in only one location,

[[Page 106]]

that site must be made accessible or the program must be made available 
at an alternative accessible site or sites. Program accessibility 
requires nonpersonal aids to make the program accessible to mobility 
impaired persons.
    (b) Methods. A recipient may comply with the requirements of 
paragraph (a) of this section through such means as redesign of 
equipment, reassignment of classes or other 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 in conformance with the 
requirement of Sec.  8b.19, or any other method that results in making 
its program or activity accessible to handicapped individuals. A 
recipient is not required to make structural changes in existing 
facilities where other methods are effective in achieving compliance 
with paragraph (a) of this section. In choosing among available methods 
for meeting the requirement of paragraph (a) of this section, a 
recipient shall give priority to those methods that offer programs and 
activities to handicapped individuals in the most integrated setting 
appropriate.
    (c) If a small recipient finds, after consultation with a qualified 
handicapped individual seeking its services, that there is no method of 
complying with paragraph (a) of this section other than making a 
significant alteration in its existing facilities or facility, the small 
recipient may, as an alternative, refer the qualified handicapped 
individual to other providers of those services that are accessible at 
no additional cost to the handicapped.
    (d) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within 60 days of the effective date of 
this part. Where structural changes in facilities are necessary, such 
changes shall be made within three years of the effective date of this 
part, but in any event as expeditiously as possible.
    (e) Transition plan. In the event that structural changes to 
facilities are necessary to meet the requirement of paragraph (a) of 
this section, a recipient 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 plan shall be developed with the 
assistance of interested persons, including handicapped persons or 
organizations representing handicapped persons. 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 recipient's facilities that 
limit the accessibility of its program or activity to qualified 
handicapped individuals;
    (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 
full program accessibility and, if the time period of the transition 
plan is longer than one year, identify the steps that will be taken 
during each year of the transition period; and
    (4) Indicate the person responsible for implementation of the plan.
    (f) Notice. The recipient shall adopt and implement procedures to 
ensure that interested persons, including persons with impaired vision 
or hearing, can obtain information as to the existence and location of 
services, activities and facilities that are accessible to and usable by 
qualified handicapped individuals.

(Approved by the Office of Management and Budget under control number 
0605-0006)

[47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16, 1982]



Sec.  8b.18  New construction.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient shall be 
designed and constructed in such manner that the facility or part of the 
facility is readily accessible to and usable by qualified handicapped 
individuals, if the construction was commenced after the effective date 
of this part.
    (b) Alteration. Each facility or part of a facility which is altered 
by, on behalf of, or for the use of a recipient after the effective date 
of this part of the facility shall, to the maximum extent feasible, be 
altered in such manner that the altered portion of the facility is 
readily accessible to and usable by qualified handicapped individuals.

[[Page 107]]

    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of August 17, 1990, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (UFAS) (Appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[47 FR 17746, Apr. 23, 1982, as amended at 55 FR 29320, Jul. 18, 1990]



                   Subpart D_Post Secondary Education



Sec.  8b.19  Application of this subpart.

    Subpart D applies to post secondary education programs and 
activities, including post secondary vocational education programs and 
activities, that receive or benefit from Federal financial assistance 
for the operation of, such programs or activities.



Sec.  8b.20  Admission and recruitment.

    (a) General. Qualified handicapped may not, on the basis of 
handicap, be denied admission or be subjected to discrimination in 
admission or recruitment by a recipient to which this subpart applies.
    (b) Admissions. In administering its admission policies, a recipient 
to which this subpart applies:
    (1) May not apply limitations upon the number or proportion of 
handicapped individuals who may be admitted; and
    (2) May not make use of any test or criterion for admission that has 
a disproportionate, adverse effect on handicapped individuals or any 
class of handicapped individuals unless:
    (i) The test or criterion, as used by the recipient, has been 
validated as a predictor of success in the education program or activity 
in question; and
    (ii) Alternate tests or criteria that have a less disproportionate, 
adverse effect are not shown by the Secretary to be available.
    (3) Shall assure itself that (i) admissions tests are selected and 
administered so as best to ensure that, when a test is administered to 
an applicant who has a handicap that impairs sensory, manual, or 
speaking skills, the test results accurately reflect the applicant's 
aptitude or achievement level of whatever other factor the test purports 
to measure, rather than reflecting the applicant's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
that the test purports to measure); (ii) admissions tests that are 
designed for persons with impaired sensory, manual, or speaking skills 
are offered as often and in as timely a manner as are other admissions 
tests; and (iii) admissions tests are administered in facilities that, 
on the whole, are accessible to handicapped individuals; and
    (4) Except as provided in paragraph (c) of this section, may not 
make pre-admission inquiry as to whether an applicant for admission is a 
handicapped individual but, after admission, may make inquiries on a 
confidential basis as to handicaps that may require accommodation.
    (c) Pre-admission inquiry exception. When a recipient is taking 
remedial action to correct the effects of past discrimination pursuant 
to Sec.  8b.6(a) or when a recipient is taking voluntary action to 
overcome the effects of conditions that resulted in limited 
participation in its federally assisted program or activity pursuant to 
Sec.  8b.6(b), the recipient may invite applicants for admission to 
indicate whether and to what extent they are handicapped, Provided, 
That:

[[Page 108]]

    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally, if no written questionnaire is 
used, that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary action 
efforts; and
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential, that 
refusal to provide it will not subject the applicant to any adverse 
treatment, and that it will be used only in accordance with this part.
    (d) Validity studies. For the purpose of paragraph (b)(2) of this 
section, a recipient may base prediction equations on first year grades, 
but shall conduct periodic validity studies against the criterion of 
overall success in the education program or activity in question in 
order to monitor the general validity of the test scores.



Sec.  8b.21  Treatment of students.

    (a) General. No qualified handicapped student shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any academic research, 
occupational training, housing, health insurance, counseling, financial 
aid, physical education, athletics, recreation, transportation, other 
extracurricular, or other post secondary education program or activity 
to which this subpart applies.
    (b) A recipient to which this subpart applies that considers 
participation by students in education programs or activities not 
operated wholly by the recipient as part of, or equivalent to, education 
programs or activities operated by the recipient shall assure itself 
that the other education program or activity, as a whole, provides an 
equal opportunity for the participation of qualified handicapped 
persons.
    (c) A recipient to which this subpart applies may not, on the basis 
of handicap exclude any qualified handicapped student from any course or 
study, or other part of its education program or activity.
    (d) A recipient to which this subpart applies shall operate its 
programs and activities in the most integrated setting appropriate.



Sec.  8b.22  Academic adjustments.

    (a) Academic requirements. A recipient to which this subpart applies 
shall make such modifications to its academic requirements as are 
necessary to ensure that such requirements do not discriminate or have 
the effect of discriminating, on the basis of handicap, against a 
qualified handicapped applicant or student. Academic requirements that 
the recipient can demonstrate are essential to the program of 
instruction being pursued by such student or to any directly related 
licensing requirement will not be regarded as discriminatory within the 
meaning of this section. Modifications may include changes in the length 
of time permitted for the completion of degree requirements, 
substitution of specific courses required for the completion of degree 
requirements, and adaptation of the manner in which specific courses are 
conducted.
    (b) Other rules. A recipient to which this subpart applies may not 
impose upon handicapped students other rules, such as the prohibition of 
tape recorders in classrooms or of dog guides in campus buildings, that 
have the effect of limiting the participation of handicapped students in 
the recipient's education program or activity.
    (c) Course examinations. In its course examinations or other 
procedures for evaluating student's academic achievement in its program, 
a recipient to which this subpart applies shall provide such methods for 
evaluating the achievement of students who have a handicap that impairs 
sensory, manual, or speaking skills as will best ensure that the results 
of the evaluation represents the student's achievement in the course, 
rather than reflecting the student's impaired sensory, manual, or 
speaking skills (except where such skills are the factors that the test 
purports to measure).
    (d) Auxiliary aids. (1) A recipient to which this subpart applies 
shall ensure that no handicapped student is denied the benefits of, 
excluded from participation in, or otherwise subjected to discrimination 
under the education program or activity operated by the recipient 
because of the absence of educational auxiliary aids for students with 
impaired sensory, manual, or

[[Page 109]]

speaking skills. A recipient shall operate each program or activity to 
which this subpart applies so that, when viewed in its entirety, 
auxiliary aids are readily available.
    (2) Auxiliary aids may include taped text, interpreters or other 
effective methods of making orally delivered materials available to 
students with hearing impairments, readers in libraries for students 
with visual impairments, classroom equipment adapted for use by students 
with manual impairments, and other similar services and actions. 
Recipients need not provide attendants, individually prescribed devices, 
readers for personal use or study, or other devices or services of a 
personal nature.



Sec.  8b.23  Housing provided by the recipient.

    (a) A recipient that provides housing to its nonhandicapped students 
shall provide comparable, convenient, and accessible housing to 
handicapped students at the same cost as to others. At the end of 
transition period provided for in subpart C, such housing shall be 
available in sufficient quantity and variety so that the scope of 
handicapped students choice of living accommodations is, as a whole, 
comparable to that of nonhandicapped students.
    (b) Other housing. A recipient that assists any agency, 
organization, or person in making housing available to any of its 
students shall take such action as may be necessary to assure itself 
that such housing is, as a whole, made available in a manner that does 
not result in discrimination on the basis of handicap.



Sec.  8b.24  Financial and employment assistance to students.

    (a) Provision of financial assistance. (1) In providing financial 
assistance to qualified handicapped individuals, a recipient to which 
this subpart applies may not (i) on the basis of handicap, provide less 
assistance than is provided to nonhandicapped persons, limit eligibility 
for assistance, or otherwise discriminate or (ii) assist any entity or 
person that provides assistance to any of the recipient's students in a 
manner that discriminates against qualified handicapped individuals on 
the basis of handicap.
    (2) A recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established under wills, trust, bequest, or similar legal instruments 
that require awards to be made on the basis of factors that discriminate 
or have the effect of discriminating on the basis of handicap only if 
the overall effect of the award of scholarships, fellowships, and other 
forms of financial assistance is not discriminatory on the basis of 
handicap.
    (b) Assistance in making available outside employment. A recipient 
that assists any agency, organization, or person in providing employment 
opportunities to any of its students shall assure itself that such 
employment opportunities, as a whole, are made available in a manner 
that would not violate subpart B if they were provided by the recipient.
    (c) Employment of student by recipients. A recipient that employs 
any of its students may not do so in a manner that violates subpart B.



Sec.  8b.25  Nonacademic services.

    (a) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar programs and activities to 
any of its students, a recipient to which this subpart applies may not 
discriminate on the basis of handicap. A recipient that offers physical 
education courses or that operates or sponsors intercollegiate, club, or 
intramural athletics shall provide to qualified handicapped students an 
equal opportunity for participation in these activities.
    (2) A recipient may offer to handicapped students physical education 
and athletic activities that are separate or different only if 
separation of differentiation is consistent with the requirements of 
Sec.  8b.22(d) and only if no qualified handicapped student is denied 
the opportunity to compete for teams or to participate in courses that 
are not separate or different.
    (b) Counseling and placement services. A recipient to which this 
subpart applies that provides personal, academic, or vocational 
counseling guidance, or placement services to its students shall

[[Page 110]]

provide these services without discrimination on the basis of handicap. 
The recipient shall ensure that qualified handicapped students are not 
counseled toward more restrictive career objectives than are 
nonhandicapped students with similar interests and abilities. This 
requirement does not preclude a recipient from providing factual 
information about licensing and certification requirements that may 
present obstacles to handicapped persons in their pursuit of particular 
careers.
    (c) Social organizations. A recipient that provides significant 
assistance to fraternities, sororities, or similar organizations shall 
assure itself that the membership practices of such organizations do not 
permit discrimination otherwise prohibited by this subpart.



                          Subpart E_Procedures



Sec.  8b.26  Procedures.

    The enforcement provisions applicable to Title VI of the Civil 
Rights Act of 1964 found at Sec. Sec.  8.7 through 8.15 of this subtitle 
shall apply to this part.



PART 8c_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS 
OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF COMMERCE--Table of Contents




Sec.
8c.1 Purpose.
8c.2 Application.
8c.3 Definitions.
8c.4-8c.9 [Reserved]
8c.10 Self-evaluation.
8c.11 Notice.
8c.12-8c.29 [Reserved]
8c.30 General prohibitions against discrimination.
8c.31-8c.39 [Reserved]
8c.40 Employment.
8c.41-8c.48 [Reserved]
8c.49 Program accessibility: Discrimination prohibited.
8c.50 Program accessibility: Existing facilities.
8c.51 Program accessibility: New construction and alterations.
8c.52-8c.59 [Reserved]
8c.60 Communications.
8c.61-8c.69 [Reserved]
8c.70 Compliance procedures.

    Authority: 29 U.S.C 794.

    Source: 53 FR 19277, May 27, 1988, unless otherwise noted.



Sec.  8c.1  Purpose.

    This part effectuates 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 or the United States Postal 
Service.



Sec.  8c.2  Application.

    This part applies to all programs or activities conducted by the 
agency except for programs or activities conducted outside the United 
States that do not involve individuals with handicaps in the United 
States.



Sec.  8c.3  Definitions.

    For purposes of this part, the term--
    Agency means the Department of Commerce.
    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 agency. 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 agency's alleged 
discriminatory action in sufficient detail to inform the agency 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

[[Page 111]]

her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    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.
    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'' includes--
    (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; 
genitourinary; 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, diabetes, mental retardation, emotional illness, 
and 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 agency 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 
towards such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Qualified individual with handicaps means--
    (1) With respect to any agency 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 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (2) 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
    (3) ``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.  8c.40.
    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); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988]



Sec. Sec.  8c.4--8c.9  [Reserved]



Sec.  8c.10  Self-evaluation.

    (a) The agency shall, by July 26, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements

[[Page 112]]

of this part, and, to the extent modification of any such policies and 
practices is required, the agency shall proceed to make the necessary 
modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec.  8c.11  Notice.

    The agency 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 agency, and make such 
information available to them in such manner as the Secretary of 
Commerce or the Secretary's designee finds necessary to apprise such 
persons of the protections against discrimination assured them by 
section 504 and this regulation.



Sec. Sec.  8c.12--8c.29  [Reserved]



Sec.  8c.30  General prohibitions 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 agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
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 a planning or advisory board; 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 agency 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.
    (3) The agency 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 handicaps; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency 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 agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives

[[Page 113]]

of a program with respect to individuals with handicaps.
    (5) The agency, 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 agency 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 agency 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 agency are 
not, themselves, covered by this part.
    (c) The exclusion of nonhandicapped persons 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 agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec.  8c.31--8c.39  [Reserved]



Sec.  8c.40  Employment.

    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 agency. 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.



Sec. Sec.  8c.41--8c.48  [Reserved]



Sec.  8c.49  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  8c.50, no qualified individual 
with handicaps shall, because the agency'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 agency.



Sec.  8c.50  Program accessibility: Existing facilities.

    (a) General. The agency 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 agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps; or
    (2) Require the agency 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 agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with section Sec.  8c.50(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 of Commerce or the 
Secretary's designee after considering all agency resources available 
for use in the funding and operation of the conducted 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 agency 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 agency 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,

[[Page 114]]

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 agency is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The agency, 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 agency 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 agency shall comply with the 
obligations established under this section by September 26, 1988, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by July 26, 1991, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by January 26, 1989, 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 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 agency's facilities that 
limit the accessibility of its program 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.  8c.51  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 agency 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 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec.  8c.52--8c.59  [Reserved]



Sec.  8c.60  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency 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 agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applications and 
beneficiaries by telephone, telecommunication devices for deaf persons 
(TDD's) or equally effective telecommunication systems shall be used.
    (b) The agency 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 agency shall provide signs at a primary entrance to each of 
its inaccessible facilities, directing users to a

[[Page 115]]

location at which they can obtain information about 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 agency 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 agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec.  8c.60 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration of burdens must be made by the Secretary of Commerce 
or the Secretary's designee after considering all agency resources 
available for use in the funding and operation of the conducted 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 agency shall take any other action that would not result in such an 
alteration or such burdens but would nevertheless ensure that, to the 
maximum extent possible, individuals with handicaps receive the benefits 
and services of the program or activity.



Sec. Sec.  8c.61--8.69  [Reserved]



Sec.  8c.70  Compliance procedures

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency 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).
    (c) The Chief of the Compliance Divison shall be responsible for 
coordinating implemention of this section. Complaints may be sent to 
Chief, Compliance Division, Office of Civil Rights, Room 6012, Herbert 
C. Hoover Building, 14th and Constitution Avenue, Washington, DC, 20230.
    (d) The agency 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 agency may 
extend this time period for good cause.
    (e) If the agency 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 agency 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 agency 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 agency of the letter required by Sec.  8c.70(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Assistant 
Secretary for Administration.
    (j) The Assistant Secretary for Administration shall notify the 
complainant of the results of the appeal within 60 days of the receipt 
of the request. If the Assistant Secretary for Administration determines 
that additional information is needed from the complainant, he or she 
shall have 60 days from the date of receipt of the additonal information 
to make his or her determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of the section 
may be

[[Page 116]]

extended with the permission of the Assistant Attorney General.
    (l) The agency 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.

[53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988]



PART 9_PROCEDURES FOR A VOLUNTARY LABELING PROGRAM FOR HOUSEHOLD APPLIANCES 
AND EQUIPMENT TO EFFECT ENERGY CONSERVATION--Table of Contents




Sec.
9.0 Purpose.
9.1 Goal of program.
9.2 Definitions.
9.3 Appliances and equipment included in program.
9.4 Development of voluntary energy conservation specifications.
9.5 Participation of manufacturers.
9.6 Termination of participation.
9.7 Department of Commerce energy conservation mark.
9.8 Amendment or revision of voluntary energy conservation 
          specifications.
9.9 Consumer education.
9.10 Coordination with State and local programs.
9.11 Annual report.

    Authority: Sec. 2, 31 Stat. 1449, as amended, sec. 1, 64 Stat. 371; 
15 U.S.C. 272, Reorganization Plan No. 3 of 1946, Part VI; Message from 
the President of the United States Concerning Energy Resources, April 
18, 1973 (119 Cong. Rec. H2886).

    Source: 38 FR 29574, Oct. 26, 1973, unless otherwise noted.



Sec.  9.0  Purpose.

    The purpose of this part is to establish procedures relating to the 
Department's voluntary labeling program for household appliances and 
equipment to promote and effect energy conservation.



Sec.  9.1  Goal of program.

    (a) This program was initiated in response to the direction of 
President Nixon in his 1973 Energy Message that the Department of 
Commerce in cooperation with the Council on Environmental Quality and 
the Environmental Protection Agency develop a voluntary labeling program 
which would apply to energy-consuming home appliances.
    (b) The goal of this program is to encourage manufacturers to 
provide consumers, at the point of sale, with information on the energy 
consumption and energy efficiency of household appliances and equipment. 
Such information, presented in a uniform manner readily understandable 
to consumers, would be displayed on labels attached to or otherwise 
provided with the appliances or equipment. The labels will include a 
system intended to make it possible for consumers to compare by cost or 
otherwise the energy consumption and energy efficiency characteristics 
when purchasing household appliances and equipment and to select those 
that can effect savings in energy consumption.



Sec.  9.2  Definitions.

    (a) The term Secretary means the Secretary of Commerce.
    (b) The term manufacturer means any person engaged in the 
manufacturing or assembling of new appliances or equipment in the United 
States, or in the importing of such products for sale or resale, or any 
person whose brand or trademark appears on such products who owns such 
brand or trademark and has authorized its use on such products, if the 
brand or trademark of the person actually manufacturing or assembling 
the products does not appear on the products.
    (c) The term energy consumption means the energy resources used by 
appliances or equipment under conditions of use approximating actual 
operating conditions insofar as practical as determined through test 
procedures contained or identified in a final Voluntary Energy 
Conservation Specification published under Sec.  9.4(e).
    (d) The term energy efficiency means the energy use of appliances or 
equipment relative to their output of services, as determined through 
test procedures contained or identified in a final Voluntary Energy 
Conservation Specification published under Sec.  9.4(e).
    (e) The term consumer means the first person who purchases a new 
appliance or item of equipment for purposes other than resale.

[[Page 117]]

    (f) The term class of appliance or equipment means a group of 
appliances or equipment whose functions or features are similar, and 
whose functional output covers a range that may be of interest to 
consumers.
    (g) The term Specification means a Voluntary Energy Conservation 
Specification developed under Sec.  9.4.
    (h) The term label means printed matter affixed to or otherwise 
provided with appliances or equipment and meeting all the requirements 
called for in a Voluntary Energy Conservation Specification published 
under Sec.  9.4(e).

[38 FR 29574, Oct. 26, 1973, as amended at 40 FR 33966, Aug. 13, 1975]



Sec.  9.3  Appliances and equipment included in program.

    The appliances and equipment included in this program are room and 
central air conditioners, household refrigerators, home freezers, 
clothes washers, dishwashers, clothes dryers, kitchen ranges and ovens, 
water heaters, comfort heating equipment, and television receivers. 
Additional appliances and equipment may be included in the program by 
the Secretary pursuant to rule making procedures as set out in 5 U.S.C. 
553. Individual units of appliances and equipment manufactured for 
export are not included in this program.

[38 FR 29574, Oct. 26, 1973, as amended at 40 FR 33966, Aug. 13, 1975]



Sec.  9.4  Development of voluntary energy conservation specifications.

    (a) The Secretary in cooperation with appropriate Federal agencies 
and in cooperation with affected manufacturers, distributors, retailers, 
consumers, environmentalists, and other interested parties shall develop 
proposed Specifications for the specific classes of appliances and 
equipment covered under Sec.  9.3.
    (b) Each Specification shall as a minimum include:
    (1) A description of the class of appliance or equipment covered by 
the Specification, listing the distribution of energy efficiencies for 
that class of appliance or equipment.
    (2) Listings or descriptions of test methods to be used in measuring 
the energy consumption and/or energy efficiency characteristics of the 
class of appliance or equipment.
    (3) A prototype Label and directions for displaying the Label on or 
with appliances or equipment of that class. The Label shall be 
prominent, readable, and visible and shall include information that will 
assist the consumer in comparing by cost or otherwise the energy 
consumption and/or energy efficiency characteristics of a particular 
appliance or item of equipment with all others in its class. The Label 
shall also include the Department of Commerce Energy Conservation Mark 
specified in Sec.  9.7.
    (4) Conditions for the participation of manufacturers in the 
program.
    (c) The test methods listed or described in the Specification 
pursuant to Sec.  9.4(b)(2) shall be those described in existing 
nationally-recognized voluntary standards where such methods are 
appropriate. Where appropriate test methods do not so exist, they will 
be developed by the Department of Commerce in cooperation with 
interested parties.
    (d) The Secretary upon development of a proposed Specification shall 
publish in the Federal Register a notice giving the complete text of the 
proposed Specification, and any other pertinent information, and 
inviting any interested person to submit written comments on the 
proposed Specification within 30 days after its publication in the 
Federal Register, unless another time limit is provided by the 
Secretary. Interested persons wanting to express their views in an 
informal hearing may do so if, within 15 days after the proposed 
Specification is published in the Federal Register, they request the 
Secretary to hold a hearing. Such informal hearings shall be held so as 
to give all interested persons opportunity for the oral presentation of 
data, views, or arguments in addition to the opportunity to make written 
submissions. Notice of such hearings shall be published in the Federal 
Register. A transcript shall be kept of any oral presentations.
    (e) The Secretary, after consideration of all written and oral 
comments and other materials received in accordance with paragraph (d) 
of this section, shall

[[Page 118]]

publish in the Federal Register within 30 days after the final date for 
receipt of comments, or as soon as practicable thereafter, a notice 
either:
    (1) Giving the complete text of a final Specification, including 
conditions of use, and stating that any manufacturer of appliances or 
equipment in the class concerned desiring voluntarily to use the Label 
and Energy Conservation Mark with such appliances or equipment must 
advise the Department of Commerce; or
    (2) Stating that the proposed Specification will be further 
developed before final publication; or
    (3) Withdrawing the proposed Specification from further 
consideration.



Sec.  9.5  Participation of manufacturers.

    (a) Manufacturers desiring to participate in this program will so 
notify the Department of Commerce. The notification will identify the 
particular Specification to be used and the manufacturer's model numbers 
for the products to be labeled. The notification will also state that 
the manufacturer will abide by all conditions contained in the 
Specification and will desist from using the Label and Energy 
Conservation Mark if requested by the Department of Commerce under the 
provisions of Sec.  9.6.
    (b) The conditions for participation will be set out in the 
Specification and will include, but not be limited to, the following:
    (1) Prior to the use of a Label the manufacturer will make or have 
made the measurements to obtain the information required for inclusion 
on the Label and, if requested, will forward within 30 days such 
measurement data to the Department of Commerce. Such measurement data 
will be kept on file by the manufacturer or his agent for two years 
after that model of appliance or equipment is no longer manufactured 
unless otherwise provided in the Specification. The use of independent 
test laboratories or national certification programs available to any 
manufacturer is acceptable for the purposes of this program.
    (2) The manufacturer will describe the test results on the Label as 
prescribed in the Specification.
    (3) The manufacturer will display or arrange to display, in 
accordance with the appropriate Specification, the Label on or with each 
individual unit of appliance or equipment within the subject class and 
with the same brand name manufactured by him except for units exported 
from the United States. All models with the same brand name that fall 
within the class must be included in the program unless they are for 
export only.
    (4) The manufacturer agrees at his expense to comply with any 
reasonable request of the Department of Commerce to have appliances or 
equipment manufactured by him tested to determine that testing has been 
done according to the relevant Specification.
    (5) Manufacturers may reproduce the Department of Commerce Labels 
and Energy Conservation Mark in advertising provided that the entire 
Label, complete with all information required to be displayed at the 
point of retail sale, is shown legibly.



Sec.  9.6  Termination of participation.

    (a) The Department of Commerce upon finding that a manufacturer is 
not complying with the conditions of participation set out in these 
procedures or in a Specification may terminate upon 30 days notice the 
manufacturer's participation in the program: Provided, That the 
manufacturer shall first be given an opportunity to show cause why the 
participation should not be terminated. Upon receipt of a notice of 
termination, a manufacturer may request within 30 days a hearing under 
the provisions of 5 U.S.C. 558.
    (b) A manufacturer may at any time terminate his participation and 
responsibilities under this program with regard to a specific class of 
products by giving written notice to the Secretary that he has 
discontinued use of the Label and Energy Conservation Mark for all 
appliances or equipment within that class.



Sec.  9.7  Department of Commerce energy conservation mark.

    The Department of Commerce shall develop an Energy Conservation Mark 
which shall be registered in the U.S. Patent Office under 15 U.S.C. 1054 
for

[[Page 119]]

use on each Label described in a Specification.



Sec.  9.8  Amendment or revision of voluntary energy conservation specifications.

    The Secretary may by order amend or revise any Specification 
published under Sec.  9.4. The procedure applicable to the establishment 
of a Specification under Sec.  9.4 shall be followed in amending or 
revising such Specification. Such amendment or revision shall not apply 
to appliances or equipment manufactured prior to the effective date of 
the amendment or revision.



Sec.  9.9  Consumer education.

    The Department of Commerce, in close cooperation and coordination 
with interested Government agencies, appropriate industry trade 
associations and industry members, and interested consumers and 
environmentalists shall carry out a program to educate consumers 
relative to the significance of the labeling program. Some elements of 
this program shall also be directed toward informing retailers and other 
interested groups about the program.



Sec.  9.10  Coordination with State and local programs.

    The Department of Commerce will establish and maintain an active 
program of communication with appropriate state and local government 
offices and agencies and will furnish and make available information and 
assistance that will promote to the greatest practicable extent 
uniformity in State, local, and Federal programs for the labeling of 
household appliances and equipment to effect energy conservation.



Sec.  9.11  Annual report.

    The Secretary will prepare an annual report of activities under the 
program, including an evaluation of the program and a list of 
participating manufacturers and classes of appliances and equipment.



PART 10_PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS--Table 
of Contents




Sec.
10.0 General.
10.1 Initiating development of a new standard.
10.2 Funding.
10.3 Development of a proposed standard.
10.4 Establishment of the Standard Review Committee.
10.5 Development of a recommended standard.
10.6 Procedures for acceptance of a recommended standard.
10.7 Procedure when a recommended standard is not supported by a 
          consensus.
10.8 Standing Committee.
10.9 Publication of a standard.
10.10 Review of published standards.
10.11 Revision or amendment of a standard.
10.12 Editorial changes.
10.13 Withdrawal of a published standard.
10.14 Appeals.
10.15 Interpretations.
10.16 Effect of procedures.

    Authority: Sec. 2.31 Stat. 1449, as amended, sec. 1, .64 Stat 371; 
15 U.S.C. 272, Reorganization Plan No. 3 of 1946, Part VI (3 CFR 1943-
1948 Comp., p. 1065).

    Source: 51 FR 22497, June 20, 1986, unless otherwise noted.



Sec.  10.0  General.

    (a) Introduction. The Department of Commerce (hereinafter referred 
to as the ``Department'') recognizes the importance, the advantages, and 
the benefits of voluntary standards and standardization activities. Such 
standards may cover, but are not limited to, terms, classes, sizes 
(including quantities of packaged consumer commodities), dimensions, 
capacities, quality levels, performance criteria, inspection 
requirements, marking requirements, testing equipment, test procedures 
and installation procedures. Economic growth is promoted through:
    (1) Reduction of manufacturing costs, inventory costs, and 
distribution costs;
    (2) Better understanding among manufacturers, producers, or 
packagers (hereinafter referred to as producers), distributors, users, 
and consumers; and

[[Page 120]]

    (3) Simplification of the purchase, installation, and use of the 
product being standardized.
    (b) Requirements for Department of Commerce sponsorship. The 
Department may sponsor the development of a voluntary Product Standard 
if, upon receipt of a request, the Department determines that:
    (1) The proposed standard is likely to have substantial public 
impact;
    (2) The proposed standard reflects the broad interest of an industry 
group or an organization concerned with the manufacture, production, 
packaging, distribution, testing, consumption, or use of the product, or 
the interest of a Federal or State agency;
    (3) The proposed standard would not duplicate a standard published 
by, or actively being developed or revised by, a private standards-
writing organization to such an extent that it would contain similar 
requirements and test methods for identical types of products, unless 
such duplication was deemed by the Department to be in the public 
interest;
    (4) Lack of government sponsorship would result in significant 
public disadvantage for legal reasons or reasons of domestic and 
international trade;
    (5) The proposed standard is not appropriate for development and 
maintenance by a private standards-writing organization; and
    (6) The proposed standard will be funded by a proponent organization 
or government agency to cover costs for administrative and technical 
support services provided by the Department.
    (c) Role of the Department. The Department assists in the 
establishment of a Voluntary Product Standard as follows:
    (1) Acts as an unbiased coordinator in the development of the 
standard;
    (2) Provides editorial assistance in the preparation of the 
standard;
    (3) Supplies such assistance and review as is required to assure the 
technical soundness of the standard;
    (4) Seeks satisfactory adjustment of valid points of disagreement;
    (5) Determines the compliance with the criteria established in these 
procedures for such voluntary standards;
    (6) Provides secretarial functions for each committee appointed by 
the Department under these procedures;
    (7) Publishes the standard as a public document;
    (8) Administers the funds for administrative and technical support 
services; and
    (9) Seeks listing for standards developed under these procedures as 
American National Standards through the American National Standards 
Institute, when deemed appropriate by the Department.
    (d) Role of producers, distributors, users, and consumers. 
Producers, distributors, users, consumers, and other interested groups 
may contribute to the development of a Voluntary Product Standard as 
follows:
    (1) Initiate and participate in the development of the standard;
    (2) Provide technical or other relevant counsel, as appropriate, 
relating to the standard;
    (3) Promote the use of, and support for, the standard; and
    (4) Assist in keeping the standard current with respect to advancing 
technology and marketing practices.
    (e) Role of the National Institute of Standards & Technology. The 
National Institute of Standards & Technology (NIST) administers these 
procedures for the Department. Any communications concerning these 
procedures (e.g., questions, clarifications, appeals) should be 
addressed to the Office of Product Standards Policy, National Institute 
of Standards & Technology, Gaithersburg, Maryland 20899.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.1  Initiating development of a new standard.

    (a) Any group or association of producers, distributors, users, or 
consumers, or a testing laboratory, or a State or Federal agency, may 
request the Department to initiate the development and publication of a 
Voluntary Product Standard under these procedures. Requests shall be in 
writing, signed by a representative of the group or agency, and 
forwarded to the Department. The initial request may be accompanied by a 
copy of a draft of the suggested standard.

[[Page 121]]

    (b) The request shall include a commitment to provide sufficient 
funding to cover all costs associated with the development and 
maintenance of the proposed Voluntary Product Standard.
    (c) The Department may require additional information such as 
technical, marketing, or other appropriate data essential to discussion 
and development of the proposed standard, including, but not limited to, 
physical, mechanical, chemical, or performance characteristics, and 
production figures.
    (d) Upon receipt of an appropriate request and after a determination 
by the Department that the development of a Voluntary Product Standard 
is justified, the Department may initiate the development by requesting 
that a draft of the suggested standard be prepared by an appropriate 
committee, provided such a draft has not previously been submitted under 
paragraph (a) of this section.
    (e) The Department may initiate the development of a Voluntary 
Product Standard, if such action is deemed by the Department to be in 
the public interest, notwithstanding the absence of a request from an 
outside source. A voluntary standard initiated by the Department shall 
be processed in accordance with all requirements of these procedures and 
shall be developed in the same manner as a voluntary standard initiated 
by any group referred to in paragraph (a) of this section.
    (f) An agreement regarding funding procedures and receipt of a 
deposit estimated by the Department to be sufficient to cover the first 
year's costs shall occur prior to the initiation of any project.



Sec.  10.2  Funding.

    Groups who represent producers, distributors, consumers or users, or 
others that wish to act or continue to act as proponent organizations 
for the development or maintenance of a Voluntary Product Standard will 
be required to pay for administrative and technical support services 
provided by the National Institute of Standards & Technology and such 
other direct or indirect costs associated with the development or 
maintenance of that standard as may be deemed appropriate by the 
Department, including costs to the Department in connection with the 
operation of the Standard Review Committee and the Standing Committee. 
Funds may also be provided by a government agency at the request of a 
proponent organization or when acting on its own behalf for the 
development or maintenance of a Voluntary Product Standard. Proponents 
of standards that meet sponsorship criteria established in these 
procedures shall furnish an initial deposit of funds sufficient to cover 
the first year's services and other costs. Estimated annual costs will 
be based on an hourly rate for salary and overhead established by the 
Department for the National Institute of Standards & Technology's 
administrative and technical support services plus estimates of direct 
costs to provide funds for such items as the travel of consumer 
representatives unable to otherwise attend committee meetings, travel 
for Department staff, and printing costs. Project funds will be reviewed 
annually. Excess funds may be refunded or applied to the next accounting 
period. Should funds from deposits be inadequate during an accounting 
period, work on the project will continue only if funds are restored to 
a level estimated adequate to complete the 12-month period.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.3  Development of a proposed standard.

    (a) A proposed standard as submitted to the Department:
    (1) Shall be based on adequate technical information, or, in the 
case of size standards (including standards covering the quantities for 
packaged consumer commodities), on adequate marketing information, or 
both, as determined to be appropriate by the Department;
    (2) Shall not be contrary to the public interest;
    (3) Shall be technically appropriate and such that conformance or 
nonconformance with the standard can be determined either during or 
after the manufacturing process by inspection or other procedures which 
may be utilized by either an individual or a testing facility competent 
in the particular field;

[[Page 122]]

    (4) Shall follow the format prescribed by the National Institute of 
Standards & Technology. (Copies of the recommended format may be 
obtained from the Office of Product Standards Policy, National Institute 
of Standards & Technology, Gaithersburg, Maryland 20899.);
    (5) Shall include performance requirements if such are deemed by the 
Department to be technically sound, feasible, and practical, and the 
inclusion of such is deemed to be appropriate;
    (6) May include dimensions, sizes, material specifications, product 
requirements, design stipulations, component requirements, test methods, 
testing equipment descriptions, and installation procedures. The 
appropriateness of the inclusion in a standard of any particular item 
listed in this subparagraph shall be determined by the Department; and
    (7) Shall be accompanied by rational statements pertaining to the 
requirements and test methods contained in the standard, if deemed 
necessary by the Department.
    (b) A proposed standard that is determined by the Department to meet 
the criteria set forth in paragraph (a) of this section may be subjected 
to further review by an appropriate individual, committee, organization, 
or agency (either government or nongovernment, but not associated with 
the proponent group).
    (c) A proposed standard may be circulated by the Department to 
appropriate producers, distributors, users, consumers, and other 
interested groups for consideration and comment as well as to others 
requesting the opportunity to comment.
    (d) The proponent group or appropriate committee which drafted the 
initial proposal under Sec.  10.1(d) shall consider all comments and 
suggestions submitted by the reviewer designated under paragraph (b) of 
this section, and those received by the Department as a result of any 
circulation under paragraph (c) of this section, and may make such 
adjustments in the proposal as are technically sound and as are believed 
to cause the standard to be generally acceptable to producers, 
distributors, users, consumers, and other interested parties. The 
proposal will then be submitted to the Department for further 
processing.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.4  Establishment of the Standard Review Committee.

    (a) The Department shall establish and appoint the members of a 
Standard Review Committee within a reasonable time after receiving a 
proposed standard. The committee shall consist of qualified 
representatives of producers, distributors, and users or consumers of 
product for which a standard is sought or any other appropriate general 
interest groups such as State and Federal agencies. When requested by 
the Standard Review Committee, the Department shall appoint one voting 
member from among the representatives of the Federal agencies, other 
than the Department of Commerce. All other representatives of Federal 
agencies on the Standard Review Committees shall be advisory nonvoting 
members. (Alternates to committee members may be designated by the 
Department.) When deemed appropriate by the Department, project funds 
under Sec.  10.2 may be made available to assure participation by 
consumer interests on the committee at required meetings.
    (b) A Standard Review Committee may remain in existence for a period 
necessary for the final development of the standard, or for 2 years, 
whichever is less.
    (c) The Department shall be responsible for the organization of the 
committee. Any formal operating procedures developed by the committee 
shall be subject to approval by the Department. The committee may 
conduct business either in a meeting or through correspondence, but only 
if a quorum participates. A quorum shall consist of two-thirds of all 
voting members of the committee. A majority of the voting members of the 
committee participating shall be required to approve any actions taken 
by the committee except for the action of recommending a standard to the 
Department, the requirements for which are contained in Sec.  10.5(b).

[[Page 123]]



Sec.  10.5  Development of a recommended standard.

    (a) The Standard Review Committee, with the guidance and assistance 
of the Department and, if appropriate, the reviewer designated under 
Sec.  10.3(b), shall review a proposed standard promptly. If the 
committee finds that the proposal meets the requirements set forth in 
Sec.  10.3(a), it may recommend to the Department that the proposal be 
circulated for acceptance under Sec.  10.6. If, however, the committee 
finds that the proposal being reviewed does not meet the requirements 
set forth in Sec.  10.3(a), the committee shall change the proposal, 
after consulting with the proponent group, so that these requirements 
are met, before recommending such proposal to the Department.
    (b) The recommendation of a standard by the Standard Review 
Committee shall be approved by at least three-quarters, or rejected by 
more than one-quarter, of all of the members of the committee eligible 
to vote. The voting on the recommendation of a standard shall be 
conducted by the Department if conducted by letter ballot. If such 
voting is accomplished at a meeting of the committee, the balloting 
shall be either by roll call or by signed written ballot conducted by 
the Department or the chairman of this committee. If conducted by the 
chairman, a report of the vote shall be made to the Department within 15 
days. If the balloting at the meeting does not result in either approval 
by at least three-quarters of all members (or alternates) eligible to 
vote (whether present or not), or rejection by more than one-quarter of 
the members (or alternates) or the committee eligible to vote, the 
balloting shall be disregarded and the Department shall subsequently 
conduct a letter ballot of all members of the committee.
    (c) Any member of the committee casting a negative ballot shall have 
the right to support an objection by furnishing the chairman of the 
committee and the Department with a written statement setting forth the 
basis for the objection. The written statement of objection shall be 
filed within 15 days after the date of the meeting during which the 
voting on the standard was accomplished, or, in the case of a letter 
ballot, within the time limit established for the return of the ballot.
    (d) At the time a recommended standard is submitted to the 
Department, the Chairman of the Standard Review Committee shall furnish 
a written report in support of the committee's recommendation. Such 
report shall include a statement with respect to compliance with the 
requirements as established by these procedures, a discussion of the 
manner in which any objections were resolved, and a discussion of any 
unresolved objections together with the committee's reasons for 
rejecting such unresolved objections.



Sec.  10.6  Procedures for acceptance of a recommended standard.

    (a) Upon receipt from the Standard Review Committee of a recommended 
standard and report, the Department shall give appropriate public notice 
and distribute the recommended standard for acceptance unless:
    (1) Upon a showing by any member of the committee who has voted to 
oppose the recommended standard on the basis of an unresolved objection, 
the Department determines that if such objection were not resolved, the 
recommended standard:
    (i) Would be contrary to the public interest, if published;
    (ii) Would be technically inadequate; or
    (iii) Would be inconsistent with law or established public policy; 
or
    (2) The Department determines that all criteria and procedures set 
forth herein have not been met satisfactorily or that there is a legal 
impediment to the recommended standard.
    (b) Distribution for acceptance or rejection for the purpose of 
determining general concurrence will be made to a list compiled by the 
Department, which, in the judgment of the Department, shall be 
representative of producers, distributors, and users and consumers.
    (c) Distribution for comment will be made to any party filing a 
written request with the Department, and to such other parties as the 
Department may deem appropriate, including testing laboratories and 
interested State and Federal agencies.

[[Page 124]]

    (d) The Department shall analyze the recommended standard and the 
responses received under paragraphs (b) and (c) of this section. If such 
analysis indicates that the recommended standard is supported by a 
consensus, it shall be published as a Voluntary Product Standard by the 
Department: Provided, That all other requirements listed in these 
procedures have been satisfied.
    (e) The following definitions shall apply to the term used in this 
section:
    (1) ``Consensus'' means general concurrence and, in addition, no 
substantive objection deemed valid by the Department.
    (2) ``General concurrence'' means acceptance among those responding 
to the distribution made under paragraph (b) of this section in 
accordance with the conditions set forth in paragraph (f) of this 
section.
    (3) ``Substantive objection'' means a documented objection based on 
grounds that one or more of the criteria set forth in these procedures 
has not been satisfied.
    (4) ``Average industry acceptance'' means a percentage equal to the 
sum of the percentages of acceptance obtained from responses to 
distribution of the recommended standard in the producer segment, the 
distributor segment, and the user and consumer segment, divided by 
three. No consideration will be given to volume of production or volume 
of distribution in determining average industry acceptance.
    (5) ``Producer segment'' means those persons who manufacture or 
produce the product covered by the standard.
    (6) ``Distributor segment'' means those persons who distribute at 
wholesale or retail the product covered by the standard.
    (7) ``User and consumer segment'' means those persons who use or 
consume the product covered by the standard.
    (8) ``Acceptance by volume of production'' means the weighted 
percentage of acceptance of those responding to the distribution in the 
producer segment. The weighting of each response will be made in 
accordance with the volume of production represented by each respondent.
    (9) ``Acceptance by volume of distribution'' means the weighted 
percentage of acceptance of those responding to the distribution in the 
distributor segment. The weighting of each response will be made in 
accordance with the volume of distribution represented by each 
respondent.
    (f) A recommended standard shall be deemed to be supported by 
general concurrence whenever:
    (1) An analysis of the responses to the distribution under paragraph 
(b) of this section indicates:
    (i) An average industry acceptance of not less than 75 percent;
    (ii) Acceptance of not less than 70 percent by the producer segment, 
the distributor segment, and the user and consumer segment, each segment 
being considered separately; and
    (iii) Acceptance by volume of production and acceptance by volume of 
distribution of not less than 70 percent in each case: Provided, That 
the Department shall disregard acceptance by volume of production or 
acceptance by volume of distribution or both unless, in the judgment of 
the Department, accurate figures for the volume of production or 
distribution are reasonably available and an evaluation of either or 
both of such acceptances is deemed necessary by the Department; or
    (2) The Department determines that publication of the standard is 
appropriate under the procedures set forth in paragraph (g) of this 
section and, in addition, an analysis of the responses to the 
distribution under paragraph (b) of this section indicates:
    (i) An average industry acceptance of not less than 66\2/3\ percent;
    (ii) Acceptance of not less than 60 percent by the producer segment, 
the distributor segment, and the user and consumer segment, each segment 
being considered separately; and
    (iii) Acceptance by volume of production and acceptance by volume of 
distribution of not less than 60 percent in each case: Provided, That 
the Department shall disregard acceptance by volume of production or 
acceptance by volume of distribution or both unless, in the judgment of 
the Department, accurate figures for the volume of production or 
distribution are reasonably available and an evaluation of either or

[[Page 125]]

both of such acceptances is deemed necessary by the Department.
    (g) A recommended standard which fails to achieve the acceptance 
requirements of paragraph (f)(1) of this section, but which satisfies 
the acceptance criteria of paragraph (f)(2) of this section, shall be 
returned to the Standard Review Committee for reconsideration. The 
committee, by the affirmative vote of not less than three-quarters of 
all members eligible to vote, may resubmit the recommended standard 
without change to the Department with a recommendation that the standard 
be published as a Voluntary Product Standard. The Department shall then 
conduct a public rulemaking hearing in accordance with the requirements 
of law as set forth in section 553 of Title 5, United States Code, to 
assist it in determining whether publication of the standard is in the 
public interest. If the Department determines that publication of the 
standard is in the public interest, the standard shall be published as a 
Voluntary Product Standard.



Sec.  10.7  Procedure when a recommended standard is not supported by a consensus.

    If the Department determines that a recommended standard is not 
supported by a consensus, the Department may:
    (a) Return the recommended standard to the Standard Review Committee 
for further action, with or without suggestions;
    (b) Terminate the development of the recommended standard under 
these procedures; or
    (c) Take such other action as it may deem necessary or appropriate 
under the circumstances.



Sec.  10.8  Standing Committee.

    (a) The Department shall establish and appoint the members of a 
Standing Committee prior to the publication of a standard. The committee 
may include members from the Standard Review Committee, and shall 
consist of qualified representatives of producers, distributors, and 
users or consumers of the product covered by the standard, and 
representatives of appropriate general interest groups such as 
municipal, State, and Federal agencies. When requested by the Standing 
Committee, the Department shall appoint one voting member from among the 
representatives of the Federal agencies, other than the Department of 
Commerce. When requested by the Standing Committee for PS 20-70, 
``American Softwood Lumber Standard,'' the Department shall appoint two 
voting members from among the representatives of the Federal agencies, 
other than the Department of Commerce. All other representatives of 
Federal agencies shall be advisory nonvoting members of Standing 
Committees. (Alternates to committee members may be designated by the 
Department.) When deemed appropriate by the Department, project funds 
under Sec.  10.2, may be made available to assure participation by 
consumer interests on the committee at required meetings.
    (b) Appointments to a Standing Committee may not exceed a term of 5 
years. However, the committee may be reconstituted by the Department 
whenever appropriate, and members may be reappointed by the Department 
to succeeding terms. Appointments to the committee will be terminated 
upon the withdrawal of the standard.
    (c) The Department shall be responsible for the organization of the 
committee. Any formal operating procedures developed by the committee 
shall be subject to approval by the Department. The committee may 
conduct business either in a meeting or through correspondence, but only 
if a quorum participates. A quorum shall consist of two-thirds of all 
voting members of the committee. A majority of the voting members of the 
committee participating shall be required to approve any actions taken 
by the committee except for the approval of revisions of the standard 
which shall be governed by the provisions of Sec.  10.5 (b), (c), and 
(d),
    (d) The members of a Standing Committee should be knowledgeable 
about:
    (1) The product or products covered by the standard;
    (2) The standard itself; and
    (3) Industry and trade practices relating to the standard.
    (e) The committee shall:

[[Page 126]]

    (1) Keep itself informed of any advancing technology that might 
affect the standard;
    (2) Provide the Department with interpretations of provisions of the 
standard upon request;
    (3) Make recommendations to the Department concerning the 
desirability or necessity of revising or amending the standard;
    (4) Receive and consider proposals to revise or amend the standard; 
and
    (5) Recommend to the Department the revision or amendment of a 
standard.



Sec.  10.9  Publication of a standard.

    A Voluntary Product Standard published by the department under these 
procedures shall be assigned an appropriate number for purposes of 
identification and reference. Public notice shall be given regarding the 
publication and identification of the standard. A voluntary standard by 
itself has no mandatory or legally binding effect. Any person may choose 
to use or not to use such a standard. Appropriate reference in 
contracts, codes, advertising, invoices, announcements, product labels, 
and the like may be made to a Voluntary Product Standard published under 
these procedures. Such reference shall be in accordance with such 
policies as the Department may establish, but no product may be 
advertised or represented in any manner which would imply or tend to 
imply approval or endorsement of that product by the Department or by 
the Federal Government.



Sec.  10.10  Review of published standards.

    (a) Each standard published under these or previous procedures shall 
be reviewed regularly to determine the feasibility of transferring 
sponsorship to a private standards-writing organization. While the 
Department encourages the development of standards to replace Voluntary 
Product Standards by private standards-writing organizations, withdrawal 
of a Voluntary Product Standard, which meets the requirements of Sec.  
10.0(b), shall not be considered until a replacement standard is 
published.
    (b) Each standard published under these or previous procedures shall 
be reviewed by the Department, with such assistance of the Standing 
Committee or others as may be deemed appropriate by the Department, 
within 5 years after initial issuance or last revision and at least 
every 5 years thereafter. The purpose of this review shall be to 
determine whether the standard has become obsolete, technically 
inadequate, no longer acceptable to or used by the industry, or 
inconsistent with law or established public policy.
    (c) If any of the above conditions is found to exist, the Department 
shall initiate action to amend, revise, or withdraw the standard in 
accordance with Sec.  10.11 or Sec.  10.13. If none is found to exist, 
the standard shall be kept in effect provided adequate funding is 
maintained.



Sec.  10.11  Revision or amendment of a standard.

    (a) A published standard shall be subject to revision or amendment 
when it is determined to be inadequate by its Standing Committee or by 
the Department of one or more of the following reasons or for any other 
appropriate reasons:
    (1) Any portion of the standard is obsolete, technically inadequate, 
or no longer generally acceptable to or used by the industry;
    (2) The standard or any part of it is inconsistent with law or 
established public policy; or
    (3) The standard or any part of it is being used to mislead users or 
consumers or is determined to be against the interest of users, 
consumers, or the public in general.
    (b) A revision of a standard shall be considered by the Department 
to include changes which are comprehensive in nature, which have a 
substantive effect on the standards, which change the level of 
performance or safety or the design characteristics of the product being 
standardized, or which cannot reasonably be injected into a standard 
without disturbing the general applicability of the standard. Each 
suggestion for revision shall be submitted by the Department to the 
Standing Committee for appropriate consideration. The Standing Committee 
shall serve the same functions in the revision of a standard as the

[[Page 127]]

Standard Review Committee serves in the development of a new standard. 
The processing of a revision of a standard shall be dependent upon the 
age of the standard as computed from its effective date and shall be 
accomplished as follows:
    (1) A proposed revision of a standard older than 5 years at the time 
such proposed revision is submitted to the Standing Committee by the 
Department shall be processed as a new standard under these procedures 
and, when approved for publication, the standard shall be republished 
and reidentified to indicate the year in which the revision became 
effective. The revised standard shall supersede the previously published 
standard.
    (2) A proposed revision of a standard less than 5 years at the time 
such proposed revision is submitted to the Standing Committee by the 
Department shall be processed as a new standard except that:
    (i) Distribution for acceptance or rejection shall be made to an 
appropriate list of producers, distributors, and users and consumers 
compiled by the Department;
    (ii) If the revision affects only one subsection of the requirement 
section and/or only one subsection of the test methods section, it may 
be circulated separately for determining consensus and subsequently 
published as an addendum to the standard with appropriate dissemination 
and public notice of the addendum; and
    (iii) If the revision does not change the level of performance or 
safety or the design characteristics of the product being standardized, 
the standard need not be reidentified.
    (c) An amendment to a standard shall be considered by the Department 
to be any non-editorial change which is not comprehensive in nature, 
which has no substantive effect on the standard, which does not change 
the level of performance or safety or the design characteristics of the 
product being standardized, and which reasonably can be injected into a 
standard without disturbing the general applicability of the standard. 
Each suggestion for amendment shall be submitted by the Department to 
the Standing Committee for appropriate consideration. An amendment to a 
standard recommended by not less than 90 percent of the members of the 
committee eligible to vote and found acceptable by the Department, shall 
be published as an addendum (until the standard is republished) and 
distributed to acceptors of record. Public notice of the amendment shall 
be given and copies of the amendment shall be distributed to those 
filing written requests.



Sec.  10.12  Editorial changes.

    The Department may, without prior notice, make such editorial or 
other minor changes as it deems necessary to reduce ambiguity or to 
improve clarity in any proposed, recommended, or published standard, or 
revision or amendment thereof.



Sec.  10.13  Withdrawal of a published standard.

    (a) Standards published under these and previous procedures may be 
withdrawn by the Director of the National Institute of Standards & 
Technology at any time. Such action will be taken if, after consultation 
with the Standing Committee as provided in paragraph (a)(1) of this 
section and after public notice, the Director determines that the 
standard is: Obsolete; technically inadequate; no longer generally 
acceptable to and used by the industry; inconsistent with law or 
established public policy; not in the public interest; or otherwise 
inappropriate; and revision or amendment is not feasible or would serve 
no useful purpose. Additionally, a standard may be withdrawn if it 
cannot be demonstrated that a particular standard has substantial public 
impact, that it does not duplicate a standard published by a private 
standards-writing organization, or that lack of government sponsorship 
would result in significant public disadvantage for legal reasons or for 
reasons of domestic and international trade. The Director may withdraw a 
standard if costs to maintain such a standard are not reimbursed by the 
proponent or other government agencies.
    (1) Before withdrawing a standard published under these procedures, 
the Director will review the relative advantages and disadvantages of 
amendment, revision, development of a new

[[Page 128]]

standard, or withdrawal with the members of the Standing Committee, if 
such committee was appointed or reappointed within the previous five 
years.
    (2) Public notice of intent to withdraw an existing standard 
published under these procedures shall be given and a 30-day period will 
be provided for the filing with the Director or written objections to 
the withdrawal. Such objections will be considered and analyzed by the 
Director before a determination is made to withdraw the standard. If the 
Director determines that a particular standard does not meet the 
criteria set out in Sec.  10.0(b), the standard will be withdrawn.
    (b) The filing under paragraph (a) of this section of a request to 
retain a standard or standards shall operate to stay the withdrawal of 
such standard or standards until the Director's determination has been 
made. If the Director determines that the requested standard or 
standards shall be withdrawn, the stay will remain in effect, if an 
appeal is filed in accordance with the requirements of Sec.  10.14, 
until the decision of the Director is announced in the Federal Register. 
If, however, no appeal is received, the Director shall announce 
withdrawal of the particular standard or standards.
    (c) Notice of the withdrawal action will be published in the Federal 
Register and such withdrawal will take effect 60 days from the date the 
withdrawal notice is published.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.14  Appeals.

    (a) Any person directly affected by a procedural action taken by 
NIST or the Standard Review Committee under Sec. Sec.  10.5, 10.6 or 
10.7 regarding the development of a standard, by NIST or the Standing 
Committee under Sec.  10.10 regarding the review of a published 
standard, or under Sec.  10.11 regarding the revision of a standard, or 
under Sec.  10.13 regarding the withdrawal of a standard, may appeal 
such action.
    (b) Such appeal shall be filed in written form with the body taking 
the action complained of (NIST, the Standard Review Committee, or the 
Standing Committee) within 30 days after the date of announcement of the 
action.
    (c) If appeal is filed with the Standard Review Committee or the 
Standing Committee, the Committee shall attempt to resolve the appeal 
informally. If the appeal is filed with NIST, NIST with the consultation 
and advice of the Standard Review Committee or the Standing Committee, 
whichever is appropriate, shall attempt to resolve the appeal 
informally.
    (d) If the appeal is to the Standard Review Committee or the 
Standing Committee and the Committee is unable to resolve such an appeal 
informally, the Committee shall hold a hearing regarding the appeal. 
Announcement of the hearing shall be made to members of the Standard 
Review Committee or the Standing Committee and all the acceptors of 
record, when appropriate, as well as other known interests. Notice of 
the hearing shall be published in the Federal Register. The hearing will 
be an informal, nonadversary proceeding at which there will be no formal 
pleadings or adverse parties. Written statements will be furnished by 
witnesses prior to the hearing. A record of the hearing will be made. 
Copies of the written statements and the record of the hearing will be 
available at cost.
    (e) Those members of the Committee hearing the appeal will develop a 
recommendation to the Committee concerning the resolution of the appeal. 
NIST will review the recommendation and if found acceptable will subject 
it to a letter ballot of the Committee. Approval by three-fourths of the 
members of the Committee eligible to vote will constitute acceptance by 
the Committee and by NIST. Notice of the Committee decision will be 
published in the Federal Register.
    (f) If the appeal is to NIST and the attempt to resolve the appeal 
informally under paragraph (c) of this section is not successful, the 
Deputy Director of NIST will schedule a hearing with an appeals panel at 
an appropriate location. Announcement of the hearing shall be made to 
members of the Standard Review Committee or Standing Committee and all 
acceptors of record, when appropriate, as well as to other known 
interests. Notice of the hearing

[[Page 129]]

shall be published in the Federal Register.
    (g) The Deputy Director of NIST will name two other persons, who 
have not been directly involved in the matter in dispute and who will 
not be directly or materially affected by any decision made or to be 
made in the dispute, to sit on the panel with the Deputy Director, who 
will act as presiding officer. The presiding officer will have the right 
to exercise such authority as necessary to ensure the equitable and 
efficient conduct of the hearing and to maintain an orderly proceeding.
    (h) The hearing will be an informal, nonadversary proceeding at 
which there will be no formal pleadings or adverse parties. The hearing 
will be open to the public. Witnesses shall submit a written 
presentation for the record seven days prior to the hearing. A record 
will be made of the hearing. Copies of the written statements and the 
record of the hearing will be available at cost.
    (i) The appeals panel will make a recommendation to the Director of 
NIST. The Director's decision on the appeal will be announced within 60 
days following the hearing and will be communicated to the complainant 
and other interested parties by letter. Notice of the Director's 
decision shall be published in the Federal Register.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.15  Interpretations.

    (a) An interpretation of a Voluntary Product Standard may be 
obtained through the submission of a written request. The request shall 
identify the specific section of the standard involved.
    (b) In the case of PS 20-70, the ``American Softwood Lumber 
Standard,'' interpretations shall be made by the American Lumber 
Standards Committee (ALSC) under the procedures developed by the ALSC 
and found acceptable to NIST.
    (c) In the case of the other Voluntary Product Standards, 
interpretations shall be made by the appropriate Standing Committees 
under procedures developed by those committees and found acceptable to 
NIST.

[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  10.16  Effect of procedures.

    Nothing contained in these procedures shall be deemed to apply to 
the development, publication, revision, amendment, or withdrawal of any 
standard which is not identified as a ``Voluntary Product Standard'' by 
the Department. The authority of the Department with respect to 
engineering standards activities generally, including the authority to 
publish appropriate recommendations not identified as ``Voluntary 
Product Standards,'' is not limited in any way by these procedures.



PART 11_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR 
FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents




    Authority: Section 213, Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 
(42 U.S.C. 4601) as amended by the Surface Transportation and Uniform 
Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17, 101 Stat. 
246-256 (42 U.S.C. 4601 note).

    Editorial Note: For additional information, see related documents 
published at 50 FR 8953, Mar. 5, 1985, 52 FR 18768, May 19, 1987, and 52 
FR 45667, Dec. 1, 1987.



Sec.  11.1  Uniform relocation and real property acquisition.

    Regulations and procedures for complying with the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (Title IV 
of Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601 note) are set forth 
in 49 CFR Part 24.

[52 FR 48018, Dec. 17, 1987 and 54 FR 8912, 8913, Mar. 2, 1989]

[[Page 130]]



PART 12_FAIR PACKAGING AND LABELING--Table of Contents




Sec.
12.1 Introduction.
12.2 Undue proliferation.
12.3 Development of voluntary product standards.
12.4 Report to the Congress.

    Authority: Secs. 5(d), 5(e), 80 Stat. 1298, 15 U.S.C. 1454; sec. 3, 
Dept. Order 177 (31 FR 6746), as amended (32 FR 3110).

    Source: 32 FR 11074, July 29, 1967, unless otherwise noted.



Sec.  12.1  Introduction.

    (a) These procedures apply to the discharge of the responsibility 
given to the Secretary of Commerce by sections 5(d) and 5(e) of the Fair 
Packaging and Labeling Act (Pub. L. 89-755, 80 Stat. 1299), hereinafter 
called the ``Act''. The word ``Secretary'', as used hereinafter, shall 
refer to the Secretary of Commerce or his authorized delegate.
    (b) The Secretary does not have the responsibility or the authority 
under the Act to issue any regulations governing the packaging or 
labeling practices of private industry.
    (c) The Secretary does have the responsibility and authority to:
    (1) Determine whether the reasonable ability of consumers to make 
value comparisions with respect to any consumer commodity or reasonably 
comparable consumer commodities is impaired by undue proliferation of 
the weights, measures, or quantities in which such commodity or 
commodities are being distributed in packages for sale at retail.
    (2) Request manufacturers, packers, and distributors, where a 
determination of undue proliferation has been made, to participate in 
the development of a voluntary product standard under the procedures 
governing the Department's voluntary standards program.
    (3) Report to Congress with a recommendation as to whether 
legislation providing regulatory authority should be enacted, when after 
1 year following the date private industry has been requested to 
participate in the development of a voluntary product standard it is 
determined that such a standard will not be published, or when following 
the publication of such a standard it is determined that the standard 
has not been observed.
    (d) The Act does not furnish a detailed, definitive explanation of 
``undue proliferation''. It does, however, point out that the condition 
of ``undue proliferation'' must be one which ``impairs the reasonable 
ability of consumers to make value comparisons'' with respect to 
consumer commodities. Generally, therefore, the Department will 
determine ``undue proliferation'' on a case-by-case basis, and, 
accordingly, is establishing by these procedures an orderly process for 
such determinations.
    (e) As used hereinafter the term ``undue proliferation'' shall refer 
to such undue proliferation--of the weights, measures or quantities in 
which any consumer commodity or reasonably comparable consumer 
commodities are being distributed for sale at retail--as impairs the 
reasonable ability of consumers to make value comparisons with respect 
to such consumer commodity or commodities, as set out in section 5(d) of 
the Act.



Sec.  12.2  Undue proliferation.

    (a) Information as to possible undue proliferation. Any person or 
group, including a State or local governmental entity, is invited to 
communicate information to the Secretary concerning the possible 
existence of undue proliferation. Such communications should be in 
writing and include supporting information and explanations.
    (b) Initiation of inquiry as to undue proliferation. Upon receipt of 
information regarding the possible existence of undue proliferation, the 
Secretary will determine whether there has been a showing of good cause 
warranting an inquiry. If the Secretary determines that good cause 
exists, he shall initiate an inquiry for the purpose of finding facts 
concerning the existence of undue proliferation.
    (c) Procedures for inquiry--(1) Cooperation with State and local 
officials. Any inquiry initiated under paragraph (b) of this section may 
be conducted in cooperation with State and local weights and measures 
officials.
    (2) Participation by interested persons. The Secretary may, during 
the course

[[Page 131]]

of the inquiry, afford interested persons or groups an opportunity to 
submit in writing comments, data, arguments, views, or other information 
relevant to the inquiry.
    (d) Proposed determination as to existence of undue proliferation. 
(1) If, after consideration of all relevant information, the Secretary 
concludes that undue proliferation appears to exist, he shall publish a 
proposed determination to this effect. The proposed determination shall 
identify the particular consumer commodity or commodities involved and 
shall be accompanied by a concise statement of the facts upon which it 
is based.
    (2) Within 60 days after publication of the proposed determination, 
any interested party may submit in writing comments, data, arguments, 
views, or other information relevant to the proposed determination. All 
written submissions shall be made a part of the public record.
    (3) Within 30 days after the proposed determination has been 
published, any interested party may request in writing an oral hearing 
to present his views. The granting of such a hearing shall be at the 
discretion of the Secretary. Any such hearing shall be public and notice 
thereof shall be published at least 15 days in advance. A transcript of 
the hearing shall be made part of the public record.
    (e) Final determination as to undue proliferation. As soon as 
practicable following the conclusion of the proceedings described in 
paragraph (d) of this section, the Secretary shall either publish a 
final determination of undue proliferation, or he shall publish a notice 
withdrawing his proposed determination of undue proliferation. In no 
event shall the withdrawal of a proposed determination operate to 
preclude the initiation of another inquiry regarding the same or similar 
subject matter under paragraph (b) of this section.



Sec.  12.3  Development of voluntary product standards.

    (a) Invitation to participate in the development of a voluntary 
product standard. Whenever the Secretary publishes a final determination 
of undue proliferation under Sec.  12.2(e), he shall invite 
manufacturers, packers, and distributors of the commodity or commodities 
involved to participate in the development of a voluntary product 
standard in accordance with the terms of the Act and the Department's 
published procedures for voluntary product standards. The term 
``Voluntary Product Standard'' as used in this section means a standard 
for weights, measures or quantities in which the commodity or 
commodities are being distributed in packages for sale at retail.
    (b) Determination that voluntary product standard will not be 
published. (1) If a voluntary product standard has not been developed 
within one year from the date on which participation was invited, the 
Secretary may conclude that a voluntary product standard will not likely 
be published. Upon reaching such a conclusion, the Secretary will 
publish a proposed determination that a voluntary product standard will 
not be published.
    (2) Within 60 days after publication of the proposed determination, 
any interested party may submit in writing comments, data, arguments, 
views, or other information relevant to the proposed determination. All 
written submissions shall be made a part of the public record.
    (3) Within 30 days after the proposed determination has been 
published, any interested party may request in writing an oral hearing 
to present his views. The granting of such a hearing shall be at the 
discretion of the Secretary. Any such hearing shall be public and notice 
thereof shall be published at least 15 days in advance. A transcript of 
the hearing shall be made part of the public record.
    (4) As soon as practicable following the conclusion of the 
proceedings described in paragraphs (b)(2) and (3) of this section, the 
Secretary shall either publish a final determination that a voluntary 
product standard will not be published, or he shall publish a notice 
withdrawing his proposed determination under paragraph (b)(1) of this 
section. In no event shall the withdrawal of a proposed determination 
operate to preclude the publication of another proposed determination 
under paragraph (b)(1) of this section with respect to the same or 
similar subject matter.

[[Page 132]]

    (c) Determination that a published voluntary product standard has 
not been observed. (1) Whenever the Secretary has reason to believe that 
a voluntary product standard published under these procedures is not 
being observed he shall initiate an inquiry to determine such fact.
    (2) If, on the basis of the information developed during the 
inquiry, the Secretary concludes that the voluntary product standard is 
not being observed, he shall publish a proposed determination to this 
effect. The proposed determination shall identify the particular 
standard involved and shall be accompanied by a concise statement of the 
facts upon which it is based.
    (3) Within 60 days after publication of the proposed determination, 
any interested party may submit in writing comments, data, arguments, 
views, or other information relevant to the proposed determination. All 
written submissions shall be made a part of the public record.
    (4) Within 30 days after the proposed determination has been 
published, any interested party may request in writing an oral hearing 
to present his views. The granting of such a hearing shall be at the 
discretion of the Secretary. Any such hearing shall be public and notice 
thereof shall be published at least 15 days in advance. A transcript of 
the hearing shall be made part of the public record.
    (5) As soon as practicable following the conclusion of the 
proceedings described in paragraphs (c)(3) and (4) of this section, and 
upon consideration of all relevant information, the Secretary shall 
either publish a final determination that the voluntary product standard 
is not being observed, or he shall publish a notice withdrawing his 
proposed determination under paragraph (c)(2) of this section. In no 
event shall the withdrawal of a proposed determination operate to 
preclude the initiation of another inquiry regarding the same standard 
under paragraph (c)(1) of this section.



Sec.  12.4  Report to the Congress.

    Whenever the Secretary publishes a final determination under Sec.  
12.3(b)(4) or Sec.  12.3(c)(5), he shall promptly report such 
determination to the Congress with a statement of the efforts that have 
been made under the voluntary standards program and his recommendation 
as to whether Congress should enact legislation providing regulatory 
authority to deal with the situation in question.



PART 13_INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF COMMERCE PROGRAMS AND 
ACTIVITIES--Table of Contents




Sec.
13.1 Purpose.
13.2 Definitions.
13.3 Programs and activities of the Department subject to the 
          regulations.
13.4 General responsibilities under the Order.
13.5 Obligations with respect to Federal interagency coordination.
13.6 State selection of programs and activities.
13.7 Communication with state and local officials concerning the 
          Department's programs and activities.
13.8 Opportunity to comment on proposed Federal financial assistance and 
          direct Federal development.
13.9 Receipt of and response to comments.
13.10 Accommodation of intergovernmental concerns.
13.11 Obligations in interstate situations.

    Authority: Executive Order 12372, July 14, 1982, 47 FR 30959, as 
amended April 8, 1983, 48 FR 15587, sec. 401, Intergovernmental 
Cooperation Act of 1968, as amended (31 U.S.C. 6506); sec. 204, 
Demonstration Cities and Metropolitan Development Act of 1966 as amended 
(42 U.S.C. 3334).

    Source: 48 FR 29134, June 24, 1983, unless otherwise noted.

    Editorial Note: For additional information, see related documents 
published at 47 FR 57369, December 23, 1982, 48 FR 17101, April 21, 
1983, and 48 FR 29096, June 24, 1983.



Sec.  13.1  Purpose.

    (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 133]]

    (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.  13.2  Definitions.

    Department means the U.S. Department of Commerce.
    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 Commerce 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.  13.3  Programs and activities of the Department subject to the 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.  13.4  General responsibilities under the Order.

    (a) The Secretary provides opportunities for consultation by elected 
officials of those state and local governments that would provide the 
non-Federal funds for, or that would be directly affected by, proposed 
Federal financial assistance from, or direct Federal development by, the 
Department.
    (b) If a state adopts a process under the Order to review and 
coordinate proposed Federal financial assistance and direct Federal 
development, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine official views of state and 
local elected officials;
    (2) Communicates with state and local elected officials as early in 
a program planning cycle as is reasonably feasible to explain specific 
plans and actions;
    (3) Makes efforts to accommodate state and local elected officials' 
concerns with proposed Federal financial assistance and direct Federal 
development that are communicated through the state process;
    (4) Allows the states to simplify and consolidate existing federally 
required state plan submissions;
    (5) Where state planning and budgeting systems are sufficient and 
where permitted by law, encourages the substitution of state plans for 
federally required state plans;
    (6) Seeks the coordination of views of affected state and local 
elected officials in one state with those of another state when proposed 
Federal financial assistance or direct Federal development has an impact 
on interstate metropolitan urban centers or other interstate areas; and
    (7) Supports state and local governments by discouraging the 
reauthorization or creation of any planning organization which is 
federally-funded, which has a limited purpose, and which is not 
adequately representative of, or accountable to, state or local elected 
officials.



Sec.  13.5  Obligations 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.  13.6  State selection of programs and activities.

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec.  13.3 of this part for 
intergovernmental review

[[Page 134]]

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.  13.7  Communication 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.  13.6, 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. This notice may be made by publication 
in the Federal Register or other appropriate means, which the Department 
in its discretion deems appropriate.



Sec.  13.8  Opportunity to comment on proposed Federal financial assistance 
and direct Federal development.

    (a) Except in unusual circumstances, the Secretary gives state 
processes or directly affected state, areawide, regional and local 
officials and entities at least:
    (1) 30 days from the date established by the Secretary to comment on 
proposed Federal financial assistance in the form of noncompeting 
continuation awards; and
    (2) 60 days from the date established by the Secretary to comment on 
proposed direct Federal development or Federal financial assistance 
other than noncompeting continuation awards.
    (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.  13.9  Receipt of and response to comments.

    (a) The Secretary follows the procedures in Sec.  13.10 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.  13.6.
    (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

[[Page 135]]

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.  13.10 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.  13.10 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.  13.10  Accommodation of 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) 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.  13.11  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.  13.10 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.  13.10 if a state 
process provides a state process recommendation to the Department 
through a single point of contact.




    PART 14_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS 
    WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, OTHER NON-PROFIT, 
    AND COMMERCIAL ORGANIZATIONS--Table of Contents




                            Subpart A_General

Sec.
14.1 Purpose.
14.2 Definitions.
14.3 Effect on other issuances.
14.4 Deviations.
14.5 Subawards.
14.6 Availability of OMB circulars.

                    Subpart B_Pre-Award Requirements

14.10 Purpose.
14.11 Pre-award policies.
14.12 Forms for applying for Federal assistance.
14.13 Debarment and suspension.
14.14 High risk special award conditions.
14.15 Metric system of measurement.
14.16 Resource Conservation and Recovery Act (RCRA).
14.17 Certifications and representations.
14.18 Taxpayer identification number.

[[Page 136]]

                    Subpart C_Post-Award Requirements

                    Financial and Program Management

14.20 Purpose of financial and program management.
14.21 Standards for financial management systems.
14.22 Payment.
14.23 Cost sharing or matching.
14.24 Program income.
14.25 Revision of budget and program plans.
14.26 Non-Federal audits.
14.27 Allowable costs.
14.28 Period of availability of funds.

                           Property Standards

14.30 Purpose of property standards.
14.31 Insurance coverage.
14.32 Real property.
14.33 Federally-owned and exempt property.
14.34 Equipment.
14.35 Supplies and other expendable property.
14.36 Intangible property.
14.37 Property trust relationship.

                          Procurement Standards

14.40 Purpose of procurement standards.
14.41 Recipient responsibilities.
14.42 Codes of conduct.
14.43 Competition.
14.44 Procurement procedures.
14.45 Cost and price analysis.
14.46 Procurement records.
14.47 Contract administration.
14.48 Contract provisions.

                           Reports and Records

14.50 Purpose of reports and records.
14.51 Monitoring and reporting program performance.
14.52 Financial reporting.
14.53 Retention and access requirements for records.

                       Termination and Enforcement

14.60 Purpose of termination and enforcement.
14.61 Termination.
14.62 Enforcement.

                 Subpart D_After-the-Award Requirements

14.70 Purpose.
14.71 Closeout procedures.
14.72 Subsequent adjustments and continuing responsibilities.
14.73 Collection of amounts due.

Appendix A to Part 14--Contract Provisions

    Authority: 5 U.S.C. 301; OMB Circular A-110 (64 FR 54926, October 8, 
1999).

    Source: 63 FR 47156, Sept. 4, 1998, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 14 appear at 66 FR 
49828, Oct. 1, 2001.



                            Subpart A_General



Sec.  14.1  Purpose.

    This part establishes uniform administrative requirements for 
Department of Commerce (DoC) grants and agreements awarded to 
institutions of higher education, hospitals, other non-profit, and 
commercial organizations. The Grants Officer shall incorporate this part 
by reference into financial assistance awards made to organizations to 
which it will be applied. The DoC shall not impose additional or 
inconsistent requirements, except as provided in Sec. Sec.  14.4, and 
14.14 or unless specifically required by Federal statute or executive 
order. This part applies to grants and agreements awarded to foreign 
governments, organizations under the jurisdiction of foreign 
governments, and international organizations unless otherwise determined 
by the Grants Officer after coordination with the appropriate program 
officials. Uniform requirements for State, local, and tribal governments 
are in 15 CFR part 24, Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments. Non-profit 
organizations that implement Federal programs for the States are also 
subject to State requirements.



Sec.  14.2  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 services performed by the 
recipient, and 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.

[[Page 137]]

    (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 electronic funds transfer, 
Treasury check, or other appropriate payment mechanism to a recipient 
upon its request either before outlays are made by the recipient or 
through the use of predetermined payment schedules.
    (e) Assistant Secretary means the DoC Chief Financial Officer and 
Assistant Secretary for Administration who has been delegated by the 
Secretary of Commerce the responsibility for developing and implementing 
policies, standards, and procedures for the administration of financial 
assistance programs of the DoC.
    (f) 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.
    (g) Cash contributions means the recipient's cash outlay, including 
the outlay of money contributed to the recipient by third parties.
    (h) Closeout means the process by which the Grants Officer 
determines that all applicable administrative actions and all required 
work of the award have been completed by the recipient and the DoC.
    (i) Contract means a procurement contract under an award or 
subaward, and a procurement subcontract under a recipient's or 
subrecipient's contract.
    (j) Cost sharing or matching means that portion of project or 
program costs not borne by the Federal Government.
    (k) 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.
    (l) Disallowed costs means those charges to an award that the Grants 
Officer determines to be unallowable, in accordance with the applicable 
Federal cost principles or other terms and conditions contained in the 
award.
    (m) DoC operating unit means an organizational unit of the 
Department that has the authority to fund financial assistance awards.
    (n) 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 $5000 or more per 
unit. However, consistent with recipient policy, lower limits may be 
established.
    (o) Excess property means property under the control of the DoC 
that, as determined by the Grants Officer after coordination with the 
authorized property official, is no longer required for DoC needs or the 
discharge of its responsibilities.
    (p) Exempt property means tangible personal property acquired in 
whole or in part with Federal funds, where the DoC 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.
    (q) Federal awarding agency means the Federal agency that provides 
an award to the recipient.
    (r) Federal funds authorized means the total amount of Federal funds 
obligated by the Federal Government for use by the recipient. This 
amount may

[[Page 138]]

include any authorized carryover of unobligated funds from prior funding 
periods when permitted by agency regulations or agency implementing 
instructions.
    (s) 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.
    (t) Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    (u) Grants Officer means the DoC official with the delegated 
authority to award, amend, administer, closeout, suspend, and/or 
terminate grants and cooperative agreements and make related 
determinations and findings.
    (v) 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.
    (w) Obligations means the amounts of orders placed, contracts and 
grants awarded, services received and similar transactions during a 
given period that require payment by the recipient during the same or a 
future period.
    (x) 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.
    (y) 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.
    (z) Prior approval means written approval by an authorized official 
evidencing prior consent.
    (aa) 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 Sec.  14.24 (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 
DoC 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.
    (bb) 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.
    (cc) Project period means the period established in the award 
document during which Federal sponsorship begins and ends.
    (dd) Property means, unless otherwise stated, real property, 
equipment, intangible property and debt instruments.
    (ee) Real property means land, including land improvements, 
structures and appurtenances thereto, but excludes movable machinery and 
equipment.
    (ff) Recipient means an organization receiving financial assistance 
directly from the DoC 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,

[[Page 139]]

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 DoC. 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.
    (gg) Research and development means all research activities, both 
basic and applied, and all development activities that are supported at 
universities, colleges, other non-profit, and commercial 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 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.
    (hh) Small awards means a grant or cooperative agreement not 
exceeding the simplified acquisition threshold fixed at 41 U.S.C. 
403(11) (currently $100,000).
    (ii) 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 (f) of this section.
    (jj) 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 DoC.
    (kk) 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.''
    (ll) Suspension means an action taken by the Grants Officer after 
coordination with the DoC operating unit that temporarily withdraws 
Federal sponsorship under an award, pending corrective action by the 
recipient or pending a decision to terminate the award by the Grants 
Officer. Suspension of an award is a separate action from suspension 
under DoC regulations at 15 CFR part 26 implementing E.O.s 12549 and 
12689, ``Debarment and Suspension.''
    (mm) Termination means the cancellation by the Grants Officer of 
Federal sponsorship, in whole or in part, under an agreement at any time 
prior to the date of completion.
    (nn) 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.
    (oo) 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.
    (pp) Unobligated balance means the portion of the funds authorized 
by the

[[Page 140]]

DoC that has not been obligated by the recipient and is determined by 
deducting the cumulative obligations from the cumulative funds 
authorized.
    (qq) 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.
    (rr) 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.  14.3  Effect on other issuances.

    For awards subject to this part, all administrative requirements of 
codified program regulations, program manuals, handbooks and other 
nonregulatory materials which are inconsistent with the requirements of 
this part shall be superseded, except to the extent they are required by 
statute, or authorized in accordance with the deviations provision in 
Sec.  14.4.



Sec.  14.4  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. The Assistant 
Secretary may apply more restrictive requirements to a class of 
recipients when approved by OMB. The Assistant Secretary may apply less 
restrictive requirements when awarding small awards, except for those 
requirements which are statutory. Exceptions on a case-by-case basis may 
also be made by the Assistant Secretary. An exception made on a case-by-
case basis will apply to a single award.



Sec.  14.5  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, other non-profit, or commercial 
organizations. This part also applies to subrecipients performing work 
under awards if the subrecipients are foreign governments, organizations 
under the jurisdiction of foreign governments, and international 
organizations unless otherwise determined by the Grants Officer. State 
and local government subrecipients are subject to the provisions of 
regulations implementing the grants management common rule, ``Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
State and Local Governments,'' (15 CFR part 24).



Sec.  14.6  Availability of OMB circulars.

    OMB circulars cited in this part are available from the Office of 
Management and Budget (OMB) by writing to the Executive Office of the 
President, Publications Service, 725 17th Street, NW, Suite 200, 
Washington DC 20503.



                    Subpart B_Pre-Award Requirements



Sec.  14.10  Purpose.

    Sections 14.11 through 14.18 prescribe forms and instructions and 
other pre-award matters to be used in applying for Federal awards.



Sec.  14.11  Pre-award policies.

    (a) Use of grants and cooperative agreements, and contracts. In each 
instance, the Grants Officer after coordination with the DoC operating 
unit 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

[[Page 141]]

services for the direct benefit or use of the Federal Government.
    (b) Public notice and priority setting. The DoC operating units 
shall notify the public of their intended funding priorities for 
discretionary grant programs, unless funding priorities are established 
by Federal statute. At a minimum, public notices shall be published in 
the Federal Register.



Sec.  14.12  Forms for applying for Federal assistance.

    (a) The DoC operating units 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 DoC 
operating units 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 DoC.
    (c) For Federal programs covered by E.O. 12372, ``Intergovernmental 
Review of Federal Programs,'' 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 DoC 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) DoC operating units 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.  14.13  Debarment and suspension.

    The DoC and recipients shall comply with the nonprocurement 
debarment and suspension common rule implementing E.O.s 12549 and 12689, 
``Debarment and Suspension,'' which is implemented by DoC at 15 CFR part 
26. This common 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.  14.14  High risk special award conditions.

    If an applicant or recipient: has a history of poor performance, is 
not financially stable, has a management system that does not meet the 
standards prescribed in this part, has not conformed to the terms and 
conditions of a previous award, or is not otherwise responsible, the 
Grants Officer may impose additional requirements as needed, provided 
that such applicant or recipient is notified in writing as to: the 
nature of the additional requirements, the reason why the additional 
requirements are being imposed, the nature of the corrective action 
needed, the time allowed for completing the corrective actions, and the 
method for requesting reconsideration of the additional requirements 
imposed. Any special conditions shall be promptly removed once the 
conditions that prompted them have been corrected.



Sec.  14.15  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. The DoC shall follow the provisions of E.O. 12770, ``Metric 
Usage in Federal Government Programs.''



Sec.  14.16  Resource Conservation and Recovery Act (RCRA).

    Under RCRA (Pub. L. 94-580, 42 U.S.C. 6962), 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

[[Page 142]]

developed by the Environmental Protection Agency (EPA) (40 CFR parts 
247-254). Accordingly, State and local institutions of higher education, 
hospitals, non-profit, and commercial organizations that receive direct 
Federal awards or other Federal funds shall give preference in their 
procurement programs funded with Federal funds to the purchase of 
recycled products pursuant to the EPA guidelines.



Sec.  14.17  Certifications and representations.

    Unless prohibited by statute or codified regulation, Grants Officers 
may 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. When authorized, annual certifications and representations shall 
be signed by responsible officials with the authority to ensure 
recipients' compliance with the pertinent requirements.



Sec.  14.18  Taxpayer identification number.

    In accordance with the provisions of the Debt Collection Improvement 
Act of 1996 (31 U.S.C. 7701), the taxpayer identifying number will be 
required from applicants for grants and cooperative agreements funded by 
the DoC. This number may be used for purposes of collecting and 
reporting on any delinquent amounts arising from awards made under this 
part.



                    Subpart C_Post-Award Requirements

                    Financial and Program Management



Sec.  14.20  Purpose of financial and program management.

    Sections 14.21 through 14.28 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, conducting audits, 
determining allowability of cost, and establishing fund availability.



Sec.  14.21  Standards for financial management systems.

    (a) The Grants Officer 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.  14.52. If the Grants 
Officer 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.''

[[Page 143]]

    (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 DoC guarantees or insures the repayment of money 
borrowed by the recipient, the Grants Officer 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 Grants Officer may require adequate fidelity bond coverage 
where the recipient lacks sufficient coverage to protect the Federal 
Government's interest.
    (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.  14.22  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. Federal payments to recipients shall be 
made by electronic funds transfer in accordance with the Debt Collection 
Improvement Act of 1996, unless waived in accordance with the provisions 
of this Act.
    (b) Recipients are to be paid in advance, provided they maintain or 
demonstrate the willingness to maintain: written procedures that 
minimize the time elapsing between the transfer of funds and 
disbursement by the recipient, and financial management systems that 
meet the standards for fund control and accountability as established in 
Sec.  14.21. Advances of funds 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 advances of funds 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 may be consolidated to cover 
anticipated cash needs for all awards made by the DoC operating unit to 
the recipient.
    (1) Advance payment mechanisms include, but are not limited to, 
electronic funds transfer and Treasury check when the electronic funds 
transfer requirement is waived.
    (2) Advance payment mechanisms are subject to 31 CFR part 205.
    (3) Recipients may submit requests for advances and reimbursements 
on a monthly basis.
    (d) Requests for 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 advance payments are 
made to the recipient automatically through the use of a predetermined 
payment schedule or if precluded by special DoC instructions for 
electronic funds transfer.
    (e) Reimbursement is the preferred method when the requirements in 
paragraph (b) of this section cannot be met. The Grants Officer 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 DoC shall make 
payment within 30 days after receipt of the billing, unless the billing 
is improper.
    (2) Recipients are 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 Grants Officer after coordination with the operating unit has 
determined that reimbursement is not feasible because

[[Page 144]]

the recipient lacks sufficient working capital, the Grants Officer may 
authorize payment on a working capital advance basis. Under this 
procedure, the Grants Officer shall provide for advancing funds to the 
recipient to cover its estimated disbursement needs for an initial 
period generally geared to the awardee's disbursing cycle. Thereafter, 
payments shall be provided by reimbursing 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, audit recoveries 
and interest earned on such funds before requesting additional payments.
    (h) Unless otherwise required by statute, Grants Officers shall not 
withhold payments for proper charges made by recipients at any time 
during the project period unless paragraph (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 Grants Officer 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, the DoC 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 paragraph (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, Rockville, MD 20852. Interest 
amounts up to $250 per year may be retained by the recipient for 
administrative expense. 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 Grants Officer, 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. Grants Officers shall not require more than an original 
and two copies of these forms.
    (1) SF-270, Request for Advance or Reimbursement. DoC has adopted 
the SF-270 as a standard form for all nonconstruction programs when 
predetermined advance methods are not used.

[[Page 145]]

The Grants Officer, however, may waive the requirement to use the SF-270 
for requesting funds under grants and cooperative agreements. Grants 
Officers 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. DoC has adopted the SF-271 as the standard form 
to be used for requesting reimbursement for construction programs. 
However, the Grants Officer may substitute the SF-270 when the Grants 
Officer determines that the SF-270 provides adequate information to meet 
Federal needs.



Sec.  14.23  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.
    (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 Grants Officer.
    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If DoC 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 paragraph (c) (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 Grants Officer 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 paragraph 
(g) (1) or (2) of this section applies.
    (1) If the purpose of the award is to assist the recipient in the 
acquisition of equipment, buildings or land, the

[[Page 146]]

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, provided that the Grants Officer 
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.



Sec.  14.24  Program income.

    (a) The standards set forth in this section shall apply 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 DoC 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 DoC and recipient 
and used to further eligible project objectives.
    (2) Used to finance the non-Federal share of the project.
    (3) Deducted from the total project 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 DoC does not specify in its regulations or 
the terms and conditions of the award how program income is to be used, 
paragraph (b)(1) of this section shall apply automatically to all 
projects or programs.
    (e) Unless DoC 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.
    (f) 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 
Sec. Sec.  14.30 through 14.37).
    (h) Unless DoC regulations or the terms and conditions 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

[[Page 147]]

made under an experimental, developmental, or research award.



Sec.  14.25  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 
DoC 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 the Grants Officer for one or more of the following 
program or budget related reasons. Approvals will be provided in writing 
by the Grants Officer.
    (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 
DoC.
    (6) The inclusion, unless waived by the DoC, of costs that require 
prior approval in accordance with OMB Circular A-21, ``Cost Principles 
for Educational Institutions,'' OMB Circular A-122, ``Cost Principles 
for Non-Profit Organizations,'' 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 the purchase of supplies, 
material, equipment or general support services.
    (d) For nonconstruction awards, 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, the Grants Officer may 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 Grants Officer 
after coordination with the DoC operating unit. All pre-award costs are 
incurred at the recipient's risk (i.e., the DoC 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 Grants 
Officer 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 DoC provides 
otherwise in the award or in the DoC regulations, the prior approval 
requirements described in paragraph (e) of this section

[[Page 148]]

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 recipient may not transfer 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 Federal and non-Federal funds authorized by the Grants Officer. 
This does not prohibit the recipient from requesting Grants Officer 
approval for revisions to the budget. No transfers are permitted 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 the Grants Officer for budget revisions whenever 
paragraph (h) (1), (2) or (3) apply. Approvals will be provided in 
writing by the Grants Officer.
    (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.  14.27.
    (i) For construction awards, no other prior approval requirements 
for specific items may be imposed unless a deviation has been approved 
by OMB.
    (j) When the DoC makes an award that provides support for both 
construction and nonconstruction work, the Grants Officer may require 
the recipient to request prior approval from the Grants Officer before 
making any fund or budget transfers between the two types of work 
supported. Approvals will be provided in writing by the Grants Officer.
    (k) For both construction and nonconstruction awards, the DoC shall 
require recipients to notify the Grants Officer 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 $5000 or 
five percent of the Federal award, whichever is greater. This 
notification 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 Grants 
Officer indicates a letter of request suffices.
    (m) Within 30 calendar days from the date of receipt of the request 
for budget revisions, DoC shall review the request and the Grants 
Officer shall notify the recipient in writing whether the budget 
revisions have been approved. If the revision is still under 
consideration at the end of 30 calendar days, the Grants Officer shall 
inform the recipient in writing of the date when the recipient may 
expect the decision.

63 FR 47156, Sept. 4, 1998, as amended at 66 FR 49828, Oct. 1, 2001]



Sec.  14.26  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 as 
stipulated in the award document.
    (d) Commercial and other organizations not covered by paragraph (a), 
(b), or (c) of this section shall be subject to the audit requirements 
as stipulated in

[[Page 149]]

the award document or the prime recipient as stipulated in the sub-award 
document.



Sec.  14.27  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, Local and Indian Tribal 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.  14.28  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 Grants 
Officer.

                           Property Standards



Sec.  14.30  Purpose of property standards.

    Sections 14.31 through 14.37 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. The DoC 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 Sec. Sec.  14.31 through 14.37.



Sec.  14.31  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.  14.32  Real property.

    The DoC award 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, provided 
that, in lieu of title, with the approval of the Grants Officer, the 
recipient may hold a leasehold or other interest in the property 
appropriate to the project purpose. The recipient shall not dispose of 
or encumber the property or any interest therein without approval of the 
Grants Officer.
    (b) The recipient shall obtain written approval by the Grants 
Officer 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 DoC.
    (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 DoC or its successor Federal awarding 
agency. The

[[Page 150]]

responsible Federal 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 Grants Officer 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.  14.33  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 DoC operating unit. Upon completion of the award or when 
the property is no longer needed, the recipient shall report the 
property to the DoC operating unit for further Federal agency 
utilization.
    (2) If the DoC operating unit has no further need for the property, 
it shall be declared excess and reported to the General Services 
Administration, unless the DoC 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 National Education Goals.'') Appropriate instructions shall be 
issued to the recipient by the Grants Officer.
    (b) Exempt property. When statutory authority exists, the DoC 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 DoC considers appropriate. Such property is ``exempt 
property.'' Should the DoC not establish conditions, title to exempt 
property upon acquisition shall vest in the recipient without further 
obligation to the Federal Government.



Sec.  14.34  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 DoC. 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 DoC operating unit which funded the 
original project;
    (2) Activities sponsored by other DoC operating units; then
    (3) 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

[[Page 151]]

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 DoC 
operating unit that financed the equipment; second preference shall be 
given to projects or programs sponsored by other DoC operating units, 
and third 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 Grants Officer 
after coordination with the DoC operating unit. 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 Grants Officer after coordination with the DoC operating 
unit.
    (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 DoC for its share.
    (2) Equipment owned by the Federal Government shall be identified to 
indicate Federal ownership.
    (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 Grants Officer.
    (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. Equipment with a current per-unit fair market value of less 
than $5000 may be retained, sold, or otherwise disposed of with no 
further obligation to the awarding agency. For equipment with a current 
per unit fair market value of $5000 or more, the recipient may retain 
the equipment for other uses provided that compensation is made to the 
DoC operating unit 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

[[Page 152]]

the equipment, the recipient shall request disposition instructions from 
the Grants Officer. The Grants Officer 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 Grants 
Officer to determine whether a requirement for the equipment exists in 
other Federal agencies. The Grants Officer 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 DoC 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 DoC for such costs 
incurred in its disposition.
    (h) The DoC reserves 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:
    (1) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (2) The Grants Officer 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 Grants Officer fails to issue written 
disposition instructions within the 120 calendar day period, the 
recipient shall apply the standards of this section, as appropriate.
    (3) When the DoC exercises its right to take title, the equipment 
shall be subject to the provisions for federally-owned equipment.



Sec.  14.35  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 
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.  14.36  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 DoC reserves 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 DoC at 37 CFR part 401, ``Rights to Inventions

[[Page 153]]

Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) The Federal Government has the right to:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award; and
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d)(1) In addition, in response to a Freedom of Information Act 
(FOIA) request for research data relating to published research findings 
produced under an award that were used by the Federal Government in 
developing an agency action that has the force and effect of law, the 
DoC shall request, and the recipient shall provide, within a reasonable 
time, the research data so that they can be made available to the public 
through the procedures established under the FOIA. If the DoC obtains 
the research data solely in response to a FOIA request, the agency may 
charge the requester a reasonable fee equaling the full incremental cost 
of obtaining the research data. This fee should reflect costs incurred 
by the agency, the recipient, and applicable subrecipients. This fee is 
in addition to any fees the agency may assess under the FOIA (5 U.S.C. 
552(a)(4)(A)).
    (2) The following definitions apply for purposes of this paragraph 
(d):
    (i) Research data is defined as the recorded factual material 
commonly accepted in the scientific community as necessary to validate 
research findings, but not any of the following: preliminary analyses, 
drafts of scientific papers, plans for future research, peer reviews, or 
communications with colleagues. This ``recorded'' material excludes 
physical objects (e.g., laboratory samples). Research data also do not 
include:
    (A) Trade secrets, commercial information, materials necessary to be 
held confidential by a researcher until they are published, or similar 
information which is protected under law; and
    (B) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    (ii) Published is defined as either when:
    (A) Research findings are published in a peer-reviewed scientific or 
technical journal; or
    (B) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect of 
law.
    (iii) Used by the Federal Government in developing an agency action 
that has the force and effect of law is defined as when an agency 
publicly and officially cites the research findings in support of an 
agency action that has the force and effect of law.
    (e) 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 written 
approval from the Grants Officer. When no longer needed for the 
originally authorized purpose, disposition of the intangible property 
shall occur in accordance with the provisions of Sec.  14.34(g).

[63 FR 47156, Sept. 4, 1998, as amended at 65 FR 14407, 14409, Mar. 16, 
2000]



Sec.  14.37  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. The Grants 
Officer 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.  14.40  Purpose of procurement standards.

    Sections 14.41 through 14.48 set forth standards for use by 
recipients in establishing procedures for the procurement of supplies 
and other expendable property, equipment, real property and

[[Page 154]]

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 DoC upon recipients, unless 
specifically required by Federal statute or executive order or approved 
by OMB.



Sec.  14.41  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 DoC, 
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.  14.42  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.  14.43  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.  14.44  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide for, at a minimum, that:
    (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; and
    (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.

[[Page 155]]

    (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.
    (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 time frames 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 DoC'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 agencies' implementation of E.O.s 12549 and 12689, 
``Debarment and Suspension,'' as implemented by DoC regulations at 15 
CFR part 26.
    (e) Recipients shall, on request, make available for the Grants 
Officer, 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 simplified acquisition 
threshold fixed at 41 U.S.C. 403 (11) (currently $100,000) 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 simplified 
acquisition threshold, specifies a ``brand name'' product.
    (4) The proposed award over the simplified acquisition 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

[[Page 156]]

than the amount of the simplified acquisition threshold.



Sec.  14.45  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.  14.46  Procurement records.

    Procurement records and files for purchases in excess of the 
simplified acquisition 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.  14.47  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.  14.48  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 simplified acquisition 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 simplified acquisition 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 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 DoC may 
accept the bonding policy and requirements of the recipient, provided 
the Grants Officer 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 in this 
part, the bonds shall be obtained from companies holding certificates of 
authority

[[Page 157]]

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 
simplified acquisition threshold) awarded by recipients shall include a 
provision to the effect that the recipient, the DoC, 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.  14.50  Purpose of reports and records.

    Sections 14.51 through 14.53 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.  14.51  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.  14.26.
    (b) The Grants Officer after coordination with the DoC operating 
unit shall prescribe the frequency with which the performance reports 
shall be submitted. Except as provided in paragraph (f) of this section, 
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 Grants Officer 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.
    (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 DoC operating unit 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) The DoC 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.  14.52  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 DoC award shall require recipients to use the SF-269 or SF-
269A to report the status of funds for all nonconstruction projects or 
programs.

[[Page 158]]

The DoC, however, has 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 DoC shall prescribe whether the report shall be on a cash 
or accrual basis. If the DoC 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 DoC 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 DoC 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 Grants Officer 
upon request of the recipient.
    (2) SF-272, Report of Federal Cash Transactions.
    (i) When funds are advanced to recipients the DoC shall require each 
recipient to submit the SF-272 and, when necessary, its continuation 
sheet, SF-272a. The DoC shall use this report to monitor funds advanced 
to recipients and to obtain disbursement information for each agreement 
with the recipients.
    (ii) The DoC may require forecasts of Federal funds requirements in 
the ``Remarks'' section of the report.
    (iii) When practical and deemed necessary, the DoC may require 
recipients to report in the ``Remarks'' section the amount of advances 
received in excess of three days. 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 Grants Officer may require a monthly report from 
those recipients receiving advances totaling $1 million or more per 
year.
    (v) The Grants Officer 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 Grants Officer'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 DoC needs additional information or more frequent 
reports, the following shall be observed:
    (1) When additional information is needed to comply with legislative 
requirements, the Grants Officer shall issue instructions to require 
recipients to submit such information under the ``Remarks'' section of 
the reports.
    (2) When the DoC determines that a recipient's accounting system 
does not meet the standards in Sec.  14.21, 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 DoC, in obtaining this information, shall comply with 
report clearance requirements of 5 CFR part 1320.
    (3) Grants Officers are encouraged to shade out any line item on any 
report if not necessary.
    (4) The DoC may accept the identical information from the recipients 
in machine readable format or computer printouts or electronic outputs 
in lieu of prescribed formats.
    (5) The DoC may provide computer or electronic outputs to recipients 
when such expedites or contributes to the accuracy of reporting.

[[Page 159]]



Sec.  14.53  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. The DoC 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 DoC. 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 DoC, the 3-
year retention requirement is not applicable to the recipient.
    (4) Indirect cost rate proposals, cost allocations plans, etc. as 
specified in paragraph (g) of this section.
    (c) Copies of original records may be substituted for the original 
records if authorized by the DoC.
    (d) The Grants Officer after coordination with the DoC operating 
unit 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 
DoC operating unit or Grants Officer may make arrangements for 
recipients to retain any records that are continuously needed for joint 
use.
    (e) The DoC, 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 DoC operating unit shall place 
restrictions on recipients that limit public access to the records of 
recipients that are pertinent to an award, except when the DoC operating 
unit 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 DoC 
operating unit.
    (g) 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 the recipient submits to the Federal awarding agency 
responsible for negotiating the recipient's indirect cost rate 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 the recipient is not required to submit to the cognizant 
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.

[[Page 160]]

                       Termination and Enforcement



Sec.  14.60  Purpose of termination and enforcement.

    Sections 14.61 and 14.62 set forth uniform suspension, termination 
and enforcement procedures.



Sec.  14.61  Termination.

    (a) Awards may be terminated in whole or in part only if paragraph 
(a)(1), (2) or (3) apply.
    (1) By the Grants Officer, if a recipient materially fails to comply 
with the terms and conditions of an award.
    (2) By the Grants Officer 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 Grants Officer 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 Grants Officer 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).
    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec.  14.71(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.  14.62  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
the Grants Officer may, in addition to imposing any of the special 
conditions outlined in Sec.  14.14, take one or more of the following 
actions, as appropriate in the circumstances:
    (1) Temporarily withhold payments of funds pending correction of the 
deficiency by the recipient or more severe enforcement action by the 
Grants Officer after coordination with the DoC operating unit.
    (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 paragraphs (c) (1) and (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 the DoC implementing 
regulations (see Sec.  14.13) at 15 CFR part 26.

[[Page 161]]



                 Subpart D_After-the-Award Requirements



Sec.  14.70  Purpose.

    Sections 14.71 through 14.73 contain closeout procedures and other 
procedures for subsequent disallowances and adjustments.



Sec.  14.71  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 Grants 
Officer may approve extensions when requested by the recipient.
    (b) Unless the Grants Officer 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 Grants Officer shall authorize and the DoC 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 
funds that the DoC 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 
Grants Officer 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 Sec. Sec.  14.31 through 14.37.
    (g) In the event a final audit has not been performed prior to the 
closeout of an award, the DoC shall retain the right to recover an 
appropriate amount after fully considering the recommendations on 
disallowed costs resulting from the final audit.



Sec.  14.72  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following:
    (1) The right of the DoC 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.  14.26.
    (4) Property management requirements in Sec. Sec.  14.31 through 
14.37.
    (5) Records retention as required in Sec.  14.53.
    (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 DoC and the recipient, provided the responsibilities of the 
recipient referred to in Sec.  14.73(a), including those for property 
management as applicable, are considered and provisions made for 
continuing responsibilities of the recipient, as appropriate.



Sec.  14.73  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 
Grants Officer may reduce the debt by:
    (1) Making an administrative offset against other requests for 
reimbursements;
    (2) Withholding advance payments otherwise due to the recipient; or
    (3) Taking other action permitted by statute.
    (b) Except as otherwise provided by law, the DoC shall charge 
interest on an overdue debt in accordance with 4 CFR Chapter II, 
``Federal Claims Collection Standards.''

               Appendix A to Part 14--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

[[Page 162]]

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 $2000 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 DoC operating 
unit.
    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 DoC operating unit.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients exceeding 
$100,000 for construction contracts and 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 
DoC operating unit 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 exceeding $100,000 shall file the required 
certification. 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'' as implemented by DoC regulations at 15 CFR part

[[Page 163]]

26. 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 simplified acquisition threshold 
shall provide the required certification regarding its exclusion status 
and that of its principal employees.

[63 FR 47156, Sept. 4, 1998, as amended at 66 FR 49828, Oct. 1, 2001]



PART 15_LEGAL PROCEEDINGS--Table of Contents




                      Subpart A_Service of Process

Sec.
15.1 Scope and purpose.
15.2 Definitions.
15.3 Acceptance of service of process.

  Subpart B_Testimony by Employees and the Production of Documents in 
                            Legal Proceedings

15.11 Scope.
15.12 Definitions.
15.13 Demands for testimony or production of documents: Department 
          policy.
15.14 Demand for testimony or production of documents: Department 
          procedures.
15.15 Procedures when a Department employee receives a subpoena.
15.16 Legal proceedings between private litigants: Expert or opinion 
          testimony.
15.17 Demands or requests in legal proceedings for records protected by 
          confidentiality statutes.
15.18 Testimony of Department employees in proceedings involving the 
          United States.

Subpart C_Involuntary Child and Spousal Support Allotments of NOAA Corps 
                                Officers

15.21 Purpose.
15.22 Applicability and scope.
15.23 Definitions.
15.24 Policy.
15.25 Procedures.

 Subpart D_Statement of Policy and Procedures Regarding Indemnification 
                   of Department of Commerce Employees

15.31 Policy.
15.32 Procedures for the handling of lawsuits against Department 
          employees arising within the scope of their office or 
          employment.

    Authority: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515 and 1518; 
Reorganization Plan No. 5 of 1950; 3 CFR, 1949-1953 Comp., p. 1004; 44 
U.S.C. 3101; subpart C is issued under 37 U.S.C. 101, 706; 15 U.S.C. 
1673; 42 U.S.C. 665.

    Editorial Note: Nomenclature changes to part 15 appear at 62 FR 
19669, Apr. 23, 1997.



                      Subpart A_Service of Process

    Source: 53 FR 41318, Oct. 21, 1988, unless otherwise noted. 
Redesignated at 62 FR 19669, Apr. 23, 1997.



Sec.  15.1  Scope and purpose.

    (a) This subpart sets forth the procedures to be followed when a 
summons or complaint is served on the Department, a component, or the 
Secretary or a Department employee in his or her official capacity.
    (b) This subpart is intended to ensure the orderly execution of the 
affairs of the Department and not to impede any legal proceeding.
    (c) This subpart does not apply to subpoenas. The procedures to be 
followed with respect to subpoenas are set out in subpart B.
    (d) This subpart does not apply to service of process made on a 
Department employee personally on matters not related to official 
business of the Department or to the official responsibilities of the 
Department employee.

[53 FR 41318, Oct. 21, 1988. Redesignated and amended at 62 FR 19669, 
19670, Apr. 23, 1997]



Sec.  15.2  Definitions.

    For the purpose of this subpart:
    (a) General Counsel means the General Counsel of the United States 
Department of Commerce or other Department employee to whom the General 
Counsel has delegated authority to act under this subpart, or the chief 
legal officer (or designee) of the Department of Commerce component 
concerned.
    (b) Component means Office of the Secretary or an operating unit of 
the Department as defined in Department Organization Order 1-1.
    (c) Department means the Department of Commerce.
    (d) Department employee means any officer or employee of the 
Department, including commissioned officers of the National Oceanic and 
Atmospheric Administration.
    (e) Legal proceeding means a proceeding before a tribunal 
constituted

[[Page 164]]

by law, including a court, an administrative body or commission, or an 
administrative law judge or hearing officer.
    (f) Official business means the authorized business of the 
Department.
    (g) Secretary means Secretary of Commerce.



Sec.  15.3  Acceptance of service of process.

    (a) Except as otherwise provided in this subpart, any summons or 
complaint to be served in person or by registered or certified mail or 
as otherwise authorized by law on the Department, a component or the 
Secretary or a Department employee in their official capacity, shall be 
served on the General Counsel of the United States Department of 
Commerce, Washington, DC 20230.
    (b) Any summons or complaint to be served in person or by registered 
or certified mail or as otherwise authorized by law on the Patent and 
Trademark Office or the Commissioner of Patents and Trademarks or an 
employee of the Patent and Trademark Office in his or her official 
capacity, shall be served on the Solicitor for the Patent and Trademark 
Office or a Department employee designated by the Solicitor.
    (c) Except as otherwise provided in this subpart, any component or 
Department employee served with a summons or complaint shall immediately 
notify and deliver the summons or complaint to the office of the General 
Counsel. Any employee of the Patent and Trademark Office served with a 
summons or complaint shall immediately notify and deliver the summons or 
complaint to the office of the Solicitor.
    (d) Any Department employee receiving a summons or complaint shall 
note on the summons or complaint the date, hour, and place of service 
and whether service was by personal delivery or by mail.
    (e) When a legal proceeding is brought to hold a Department employee 
personally liable in connection with an action taken in the conduct of 
official business, rather than liable in an official capacity, the 
Department employee by law is to be served personally with process. 
Service of process in this case is inadequate when made upon the General 
Counsel or the Solicitor or their designees. Except as otherwise 
provided in this subpart, a Department employee sued personally for an 
action taken in the conduct of official business shall immediately 
notify and deliver a copy of the summons or complaint to the office of 
the General Counsel. Any employee of the Patent and Trademark Office 
sued personally for an action taken in the conduct of official business 
shall immediately notify and deliver a copy of the summons or complaint 
to the Office of the Solicitor.
    (f) A Department employee sued personally in connection with 
official business may be represented by the Department of Justice at its 
discretion. See 28 CFR 50.15 and 50.16 (1987).
    (g) The General Counsel or Solicitor or Department employee 
designated by either, when accepting service of process for a Department 
employee in an official capacity, shall endorse on the Marshal's or 
server's return of service form or receipt for registered or certified 
mail the following statement: ``Service accepted in official capacity 
only.'' The statement may be placed on the form or receipt with a rubber 
stamp.
    (h) Upon acceptance of service or receiving notification of service, 
as provided in this section, the General Counsel and Solicitor shall 
take appropriate steps to protect the rights of the Department, 
component, the Secretary or Department employee involved.



  Subpart B_Testimony by Employees and the Production of Documents in 
                            Legal Proceedings

    Source: 60 FR 9291, Feb. 17, 1995, unless otherwise noted. 
Redesignated at 62 FR 19669, Apr. 23, 1997.



Sec.  15.11  Scope.

    (a) This subpart sets forth the policies and procedures of the 
Department of Commerce regarding the testimony of employees, and former 
employees, as witnesses in legal proceedings and the production or 
disclosure of information contained in Department of Commerce documents 
for use in legal proceedings

[[Page 165]]

pursuant to a request, order, or subpoena (collectively referred to in 
this subpart as a ``demand'').
    (b) This subpart does not apply to any legal proceeding in which an 
employee is to testify while on leave status, regarding facts or events 
that are unrelated to the official business of the Department.
    (c) This subpart in no way affects the rights and procedures 
governing public access to records pursuant to the Freedom of 
Information Act, the Privacy Act or the Trade Secrets Act..
    (d) This subpart is not intended to be relied upon to, and does not, 
create any right or benefit, substantive or procedural, enforceable at 
law by any party against the United States.



Sec.  15.12  Definitions.

    For the purpose of this subpart:
    (a) Agency counsel means the chief legal officer (or his/her 
designee) of an agency within the Department of Commerce.
    (b) Component means Office of the Secretary or an operating unit of 
the Department as defined in Department Organization Order 1-1.
    (c) Demand means a request, order, or subpoena for testimony or 
documents for use in a legal proceeding.
    (d) Department means the United States Department of Commerce and 
its constituent agencies.
    (e) Document means any record, paper and other property held by the 
Department, including without limitation, official letters, telegrams, 
memoranda, reports, studies, calendar and diary entries, maps, graphs, 
pamphlets, notes, charts, tabulations, analyses, statistical or 
informational accumulations, any kind of summaries of meetings and 
conversations, film impressions, magnetic tapes and sound or mechanical 
reproductions.
    (f) Employee means all current or former employees or officers of 
the Department, including commissioned officers of the National Oceanic 
and Atmospheric Administration and any other individual who has been 
appointed by, or subject to the supervision, jurisdiction or control of 
the Secretary of the Department of Commerce.
    (g) General Counsel means the General Counsel of the Department or 
other Department employee to whom the General Counsel has delegated 
authority to act under this subpart.
    (h) Legal proceeding means all pretrial, trial and post trial stages 
of all existing or reasonably anticipated judicial or administrative 
actions, hearings, investigations, or similar proceedings before courts, 
commissions, boards or other tribunals, foreign or domestic. This phrase 
includes all phases of discovery as well as responses to formal or 
informal requests by attorneys or others involved in legal proceedings.
    (i) Official business means the authorized business of the 
Department.
    (j) Secretary means the Secretary of the Department of Commerce.
    (k) Solicitor means the Solicitor of the Patent and Trademark 
Office.
    (l) Testimony means a statement in any form, including personal 
appearances before a court or other legal tribunal, interviews, 
depositions, telephonic, televised, or videotaped statements or any 
responses given during discovery or similar proceedings, which response 
would involve more than the production of documents.
    (m) United States means the Federal Government, its departments and 
agencies, and individuals acting on behalf of the Federal Government.



Sec.  15.13  Demand for testimony or production of documents: Department policy.

    No employee shall in response to a demand, produce any documents, or 
provide testimony regarding any information relating to, or based upon 
Department of Commerce documents, or disclose any information or produce 
materials acquired as part of the performance of that employee's 
official duties, or because of that employee's official status without 
the prior authorization of the General Counsel, or the Solicitor, or the 
appropriate agency counsel. The reasons for this policy are as follows:
    (a) To conserve the time of Department employees for conducting 
official business;

[[Page 166]]

    (b) To minimize the possibility of involving the Department in 
controversial issues that are not related to the Department's mission;
    (c) To prevent the possibility that the public will misconstrue 
variances between personal opinions of Department employees and 
Department policy;
    (d) To avoid spending the time and money of the United States for 
private purposes;
    (e) To preserve the integrity of the administrative process; and
    (f) To protect confidential, sensitive information and the 
deliberative process of the Department.



Sec.  15.14  Demand for testimony or production of documents: Department 
procedures.

    (a) Whenever a demand for testimony or for the production of 
documents is made upon an employee, the employee shall immediately 
notify the General Counsel (Room 5890, U. S. Department of Commerce, 
Washington, DC 20230, (202) 482-1067) or appropriate agency counsel. 
When a demand for testimony or for the production of documents is made 
upon an employee of the Patent and Trademark Office, the employee should 
immediately notify the Solicitor, by phone, (703) 305-9035; by mailed 
addressed Solicitor, Box 8, Patent and Trademark Office, Washington, DC 
20231; or in person to 2121 Crystal Drive, Crystal Park 2, Suite 918, 
Arlington, Virginia 22215.
    (b) A Department employee may not give testimony, produce documents, 
or answer inquiries from a person not employed by the Department 
regarding testimony or documents subject to a demand or a potential 
demand under the provisions of this subpart without the approval of the 
General Counsel, or the Solicitor, or the appropriate agency counsel. A 
Department employee shall immediately refer all inquiries and Demands to 
the General Counsel, or the Solicitor, or appropriate agency counsel. 
Where appropriate, the General Counsel, or the Solicitor, or appropriate 
agency counsel, may instruct the Department employee, orally or in 
writing, not to give testimony or produce documents.
    (c)(1) Demand for testimony or documents. A demand for the testimony 
of a Department employee shall be addressed to the General Counsel, Room 
5890, Department of Commerce, Washington, DC 20230 or appropriate agency 
counsel. A demand for testimony of an employee of the Patent and 
Trademark Office shall be mail addressed to the Solicitor, Box 8, Patent 
and Trademark Office, Washington, DC 20231; or in person to 2121 Crystal 
Drive, Crystal Park 2, Suite 918, Arlington, Virginia 22215.
    (2) Subpoenas. A subpoena for testimony by a Department employee or 
a document shall be served in accordance with the Federal Rules of Civil 
or Criminal Procedure or applicable state procedure and a copy of the 
subpoena shall be sent to the General Counsel, or the Solicitor, or 
appropriate agency counsel.
    (3) Affidavit. Except when the United States is a party, every 
demand shall be accompanied by an affidavit or declaration under 28 
U.S.C. 1746 or, if an affidavit is not feasible, a statement setting 
forth the title of the legal proceeding, the forum, the requesting 
party's interest in the legal proceeding, the reason for the demand, a 
showing that the desired testimony or document is not reasonably 
available from any other source, and if testimony is requested, the 
intended use of the testimony, a general summary of the desired 
testimony, and a showing that no document could be provided and used in 
lieu of testimony. The purpose of this requirement is to assist the 
General Counsel, or the Solicitor, or appropriate agency counsel in 
making an informed decision regarding whether testimony or the 
production of a document(s) should be authorized.
    (d) A certified copy of a document for use in a legal proceeding may 
be provided upon written request and payment of applicable fees. Written 
requests for certification shall be addressed to the agency counsel for 
the component having possession, custody, or control of the document. 
Unless governed by another applicable provision of law or component 
regulation, the applicable fee includes charges for certification and 
reproduction as set out in 15 CFR part 4.9. Other reproduction costs

[[Page 167]]

and postage fees, as appropriate, must also be borne by the requester.
    (e) The Secretary retains the authority to authorize and direct 
testimony in those cases where a statute or Presidential order mandates 
a personal decision by the Secretary.
    (f) The General Counsel, or the Solicitor, or appropriate agency 
counsel may consult or negotiate with an attorney for a party or the 
party if not represented by an attorney, to refine or limit a demand so 
that compliance is less burdensome or obtain information necessary to 
make the determination required by paragraph (b) of this section. 
Failure of the attorney to cooperate in good faith to enable the General 
Counsel, or the Solicitor, or the Secretary, or the appropriate agency 
counsel to make an informed determination under this subpart may serve, 
where appropriate, as a basis for a determination not to comply with the 
demand.
    (g) A determination under this subpart to comply or not to comply 
with a demand is not an assertion or waiver of privilege, lack of 
relevance, technical deficiency or any other ground for noncompliance.
    (h) The General Counsel, or the Solicitor, or appropriate agency 
counsel may waive any requirements set forth under this section when 
circumstances warrant.



Sec.  15.15  Procedures when a Department employee receives a subpoena.

    (a) A Department employee who receives a subpoena shall immediately 
forward the subpoena to the General Counsel, or the appropriate agency 
counsel. In the case of an employee of the Patent and Trademark Office, 
the subpoena shall immediately be forwarded to the Solicitor. The 
General Counsel, or the Solicitor, or appropriate agency counsel will 
determine the extent to which a Department employee will comply with the 
subpoena.
    (b) If an employee is served with a subpoena that the General 
Counsel, or the Solicitor, or appropriate agency counsel determines 
should not be complied with, the General Counsel, Solicitor or 
appropriate agency counsel will attempt to have the subpoena withdrawn 
or modified. If this cannot be done, the General Counsel, Solicitor or 
appropriate agency counsel will attempt to obtain Department of Justice 
representation for the employee and move to have the subpoena modified 
or quashed. If, because of time constraints, this is not possible prior 
to the compliance date specified in the subpoena, the employee should 
appear at the time and place set forth in the subpoena. If legal counsel 
cannot appear on behalf of the employee, the employee should produce a 
copy of the Department's regulations and inform the legal tribunal that 
he/she has been advised by counsel not to provide the requested 
testimony and/or produce documents. If the legal tribunal rules that the 
demand in the subpoena must be complied with, the employee shall 
respectfully decline to comply with the demand. United States ex rel. 
Touhy v. Ragen, 340 U. S. 462 (1951).
    (c) Where the Department employee is an employee of the Office of 
the Inspector General, the Inspector General in consultation with the 
General Counsel, will make a determination under paragraphs (a) and (b) 
of this section.



Sec.  15.16  Legal proceedings between private litigants: Expert or opinion 
testimony.

    In addition to the policies and procedures as outlined in Sec. Sec.  
15.11 through 15.16, the following applies to legal proceedings between 
private litigants:
    (a) If a Department employee is authorized to give testimony in a 
legal proceeding not involving the United States, the testimony, if 
otherwise proper, shall be limited to facts within the personal 
knowledge of the Department employee. Employees, with or without 
compensation, shall not provide expert testimony in any legal 
proceedings regarding Department information, subjects or activities 
except on behalf of the United States or a party represented by the 
United States Department of Justice. However, upon a showing by the 
requester that there are exceptional circumstances and that the 
anticipated testimony will not be adverse to the interest of the 
Department or the United States, the General Counsel, or the Solicitor, 
or appropriate agency counsel may, in writing

[[Page 168]]

grant special authorization for the employee to appear and give the 
expert or opinion testimony.
    (b)(1) If, while testifying in any legal proceeding, an employee is 
asked for expert or opinion testimony regarding official DOC 
information, subjects or activities, which testimony has not been 
approved in advance in accordance with the regulations in this subpart, 
the witness shall:
    (i) Respectfully decline to answer on the grounds that such expert 
or opinion testimony is forbidden by the regulations in this subpart;
    (ii) Request an opportunity to consult with the General Counsel, or 
the Solicitor, or appropriate agency counsel before giving such 
testimony; and
    (iii) Explain that upon such consultation, approval for such 
testimony may be provided.
    (2) If the witness is then ordered by the body conducting the 
proceeding to provide expert or opinion testimony regarding official DOC 
information, subjects or activities without the opportunity to consult 
with either the General Counsel, or the Solicitor, or appropriate agency 
counsel, the witness shall respectfully refuse to provide such 
testimony. See United States ex rel. Touhy v. Ragen, 340 U. S. 462 
(1951).
    (c) If an employee is unaware of the regulations in this subpart and 
provides expert or opinion testimony regarding official DOC information, 
subjects or activities in a legal proceeding without the aforementioned 
consultation, the witness shall, as soon after testifying as possible, 
inform the General Counsel, or the Solicitor, or appropriate agency 
counsel that such testimony was given and provide a written summary of 
the expert or opinion testimony provided.

[60 FR 9291, Feb. 17, 1995. Redesignated and amended at 62 FR 19669, 
19670, Apr. 23, 1997]



Sec.  15.17  Demands or requests in legal proceedings for records protected 
by confidentiality statutes.

    Demands in legal proceedings for the production of records, or for 
the testimony of Department employees regarding information protected by 
the Privacy Act, 5 U.S.C. 552a, the Trade Secrets Act, 18 U.S.C. 1905 or 
other confidentiality statutes, must satisfy the requirements for 
disclosure set forth in those statutes before the records may be 
provided or testimony given. The General Counsel, or the Solicitor, or 
appropriate agency counsel should first determine if there is a legal 
basis to provide the testimony or records sought under applicable 
confidentiality statutes before applying Sec. Sec.  15.11 through 15.18. 
Where an applicable confidentiality statute mandates disclosure, 
Sec. Sec.  15.11 through 15.18 will not apply.

[60 FR 9291, Feb. 17, 1995. Redesignated and amended at 62 FR 19669, 
19670, Apr. 23, 1997]



Sec.  15.18  Testimony of Department employees in proceedings involving 
the United States.

    The following applies in legal proceedings in which the United 
States is a party:
    (a) A Department employee may not testify as an expert or opinion 
witness for any other party other than the United States.
    (b) Whenever, in any legal proceeding involving the United States, a 
request is made by an attorney representing or acting under the 
authority of the United States, the General Counsel, or the Solicitor, 
or appropriate agency counsel will make all necessary arrangements for 
the Department employee to give testimony on behalf of the United 
States. Where appropriate, the General Counsel, or the Solicitor, or 
appropriate agency counsel may require reimbursement to the Department 
of the expenses associated with a Department employee giving testimony 
on behalf of the United States.



Subpart C_Involuntary Child and Spousal Support Allotments of NOAA Corps 
                                Officers

    Source: 53 FR 15548, May 2, 1988, unless otherwise noted. 
Redesignated at 62 FR 19669, Apr. 23, 1997.



Sec.  15.21  Purpose.

    This subpart provides implementing policies governing involuntary 
child or child and spousal support allotments for officers of the 
uniformed service of the National Oceanic and Atmospheric

[[Page 169]]

Administration (NOAA), and prescribes applicable procedures.



Sec.  15.22  Applicability and scope.

    This subpart applies to Commissioned Officers of the NOAA Corps on 
active duty.



Sec.  15.23  Definitions.

    (a) Active duty. Full-time duty in the NOAA Corps.
    (b) Authorized person. Any agent or attorney of any state having in 
effect a plan approved under part D of title IV of the Social Security 
Act (42 U.S.C. 651-664), who has the duty or authority to seek recovery 
of any amounts owed as child or child and spousal support (including, 
when authorized under the state plan, any official of a political 
subdivision); and the court that has authority to issue an order against 
a member for the support and maintenance of a child or any agent of such 
court.
    (c) Child support. Periodic payments for the support and maintenance 
of a child or children, subject to and in accordance with state or local 
law. This includes but is not limited to, payments to provide for 
health, education, recreation, and clothing or to meet other specific 
needs of such a child or children.
    (d) Designated official. The official who is designated to receive 
notices of failure to make payments from an authorized person (as 
defined in paragraph (b) of this section). For the Department of 
Commerce this official is the Assistant General Counsel for 
Administration.
    (e) Notice. A court order, letter, or similar documentation issued 
by an authorized person providing notification that a member has failed 
to make periodic support payments under a support order.
    (f) Spousal support. Periodic payments for the support and 
maintenance of a spouse or former spouse, in accordance with state and 
local law. It includes, but is not limited to, separate maintenance, 
alimony while litigation continues, and maintenance. Spousal support 
does not include any payment for transfer of property or its value by an 
individual to his or her spouse or former spouse in compliance with any 
community property settlement, equitable distribution of property, or 
other division of property between spouses or former spouses.
    (g) Support order. Any order for the support of any person issued by 
a court of competent jurisdiction or by administrative procedures 
established under state law that affords substantial due process and is 
subject to judicial review. A court of competent jurisdiction includes: 
(1) Indian tribal courts within any state, territory, or possession of 
the United States and the District of Columbia; and (2) a court in any 
foreign country with which the United States has entered into an 
agreement that requires the United States to honor the notice.



Sec.  15.24  Policy.

    (a) It is the policy of the Department of Commerce to require 
Commissioned Officers of the NOAA Corps on active duty to make 
involuntary allotments from pay and allowances as payment of child, or 
child and spousal, support payments when the officer has failed to make 
periodic payments under a support order in a total amount equal to the 
support payable for two months or longer. Failure to make such payments 
shall be established by notice from an authorized person to the 
designated official. Such notice shall specify the name and address of 
the person to whom the allotment is payable. The amount of the allotment 
shall be the amount necessary to comply with the support order. If 
requested, the allotment may include arrearages as well as amounts for 
current support, except that the amount of the allotment, together with 
any other amounts withheld for support from the officer as a percentage 
of pay, shall not exceed the limits prescribed in section 303 (b) and 
(c) of the Consumer Credit Protection Act (15 U.S.C. 1673). An allotment 
under this subpart shall be adjusted or discontinued upon notice from an 
authorized person.
    (b) Notwithstanding the above, no action shall be taken to require 
an allotment from the pay and allowances of any officer until such 
officer has had a consultation with an attorney from the Office of the 
Assistant General Counsel

[[Page 170]]

for Administration, in person, to discuss the legal and other factors 
involved with respect to the officer's support obligation and his/her 
failure to make payments. Where it has not been possible, despite 
continuing good faith efforts to arrange such a consultation, the 
allotment shall start the first pay period beginning after 30 days have 
elapsed since the notice required in paragraph (d)(1) of Sec.  15.25 is 
given to the affected officer.

[53 FR 15548, May 2, 1988. Redesignated and amended at 62 FR 19669, 
19670, Apr. 23, 1997]



Sec.  15.25  Procedures.

    (a) Service of notice. (1) An authorized person shall send to the 
designated official a signed notice that includes:
    (i) A statement that delinquent support payments equal or exceed the 
amount of support payable for 2 months under a support order, and a 
request that an allotment be initiated pursuant to 42 U.S.C. 665.
    (ii) A certified copy of the support order.
    (iii) The amount of the monthly support payment. Such amount may 
include arrearages, if a support order specifies the payment of such 
arrearages. The notice shall indicate how much of the amount payable 
shall be applied toward liquidation of the arrearages.
    (iv) Sufficient information identifying the officer to enable 
processing by the designated official. The following information is 
requested:
    (A) Full name;
    (B) Social Security Number;
    (C) Date of birth; and
    (D) Duty station location.
    (v) The full name and address of the allottee. The allottee shall be 
an authorized person, the authorized person's designee, or the recipient 
named in the support order.
    (vi) Any limitations on the duration of the support allotment.
    (vii) A certificate that the official sending the notice is an 
authorized person.
    (viii) A statement that delinquent support payments are more than 12 
weeks in arrears, if appropriate.
    (2) The notice shall be accomplished by certified or registered 
mail, return receipt requested, or by personal service, upon the 
appropriate designated official, who shall note the date and time of 
receipt on the notice.
    (3) The notice is effective when it is received in the office of the 
designated official.
    (4) When the information submitted is not sufficient to identify the 
officer, the notice shall be returned directly to the authorized person 
with an explanation of the deficiency. However, prior to returning the 
notice if there is sufficient time, an attempt should be made to inform 
the authorized person who caused the notice to be served, that it will 
not be honored unless adequate information is supplied.
    (5) Upon receipt of effective notice of delinquent support payments, 
together with all required supplementary documents and information, the 
designated official shall identify the officer from whom moneys are due 
and payable. The allotment shall be established in the amount necessary 
to comply with the support order and to liquidate arrearages if provided 
by a support order when the maximum amount to be allotted under this 
provision, together with any other moneys withheld for support from the 
officer, does not exceed:
    (i) 50 percent of the officer's disposable earnings for any month 
where the officer asserts by affidavit or other acceptable evidence, 
that he/she is supporting a spouse and/or dependent child, other than a 
party in the support order. When the officer submits evidence, copies 
shall be sent to the authorized person, together with notification that 
the officer's support claim will be honored.
    If the support claim is contested by the authorized person, that 
authorized person may refer this matter to the appropriate court or 
other authority for resolution.
    (ii) 60 percent of the officer's disposable earnings for any month 
where the officer fails to assert by affidavit or other acceptable 
evidence that he/she is supporting a spouse and/or dependent child.
    (iii) Regardless of the limitations above, an additional 5 percent 
of the officer's disposable earnings shall be withheld when it is stated 
in the notice that the officer is in arrears in an

[[Page 171]]

amount equivalent to 12 or more weeks' support.
    (b) Disposable earnings. The following moneys are subject to 
inclusion in computation of the officer's disposable earnings:
    (1) Basic pay.
    (2) Special pay (including enlistment and reenlistment bonuses).
    (3) Accrued leave payments (basic pay portions only).
    (4) Aviation career incentive pay.
    (5) Incentive pay for Hazardous Duty.
    (6) Readjustment pay.
    (7) Diving pay.
    (8) Sea pay.
    (9) Severance pay (including disability severance pay).
    (10) Retired pay (including disability retired pay).
    (c) Exclusions. In determining the amount of any moneys due from or 
payable by the United States to any individual, there shall be excluded 
amounts which are:
    (1) Owed by the officer to the United States.
    (2) Required by law to be deducted from the remuneration or other 
payment involved, including, but not limited to:
    (i) Amounts withheld from benefits payable under Title II of the 
Social Security Act where the withholding is required by law.
    (ii) Federal employment taxes.
    (3) Properly withheld for federal and state income tax purposes if 
the withholding of the amounts is authorized by law and if amounts 
withheld are not greater than would be the case if the individual 
claimed all dependents to which he/she were entitled. The withholding of 
additional amounts pursuant to section 3402(i) of Title 26 of the United 
States Code may be permitted only when the officer presents evidence of 
a tax obligation which supports the additional withholding.
    (4) Deducted for servicemen's Group Life Insurance coverage.
    (5) Advances of pay that may be due and payable by the officer at 
some future date.
    (d) Officer notification. (1) As soon as possible, but not later 
than 15 calendar days after the date of receipt of notice, the 
designated official shall send to the officer, at his/her duty station 
or last known address, written notice:
    (i) That notice has been received from an authorized person, 
including a copy of the documents submitted;
    (ii) Of the maximum limitations set forth, with a request that the 
officer submit supporting affidavits or other documentation necessary 
for determining the applicable percentage limitation;
    (iii) That the officer may submit supporting affidavits or other 
documentation as evidence that the information contained in the notice 
is in error;
    (iv) That by submitting supporting affidavits or other necessary 
documentation, the officer consents to the disclosure of such 
information to the party requesting the support allotment;
    (v) Of the amount or percentage that will be deducted if the officer 
fails to submit the documentation necessary to enable the designated 
official to respond to the notice within the prescribed time limits;
    (vi) That legal counsel will be provided by the Office of the 
Assistant General Counsel for Administration; and
    (vii) Of the date that the allotment is scheduled to begin.
    (2) The officer shall be provided with the following:
    (i) A consultation in person with an attorney from the Office of the 
Assistant General Counsel for Administration, to discuss the legal and 
other factors involved with the officer's support obligation and his/her 
failures to make payment.
    (ii) Copies of any other documents submitted with the notice.
    (3) The Office of the Assistant General Counsel for Administration 
will make every effort to see that the officer receives a consultation 
concerning the support obligation and the consequences of failure to 
make payments within 30 days of the notice required in paragraph (d)(1). 
In the event such consultation is not possible, despite continuing good 
faith efforts to arrange a consultation, no action shall be taken to 
require an allotment from the pay and allowances of any NOAA Corps 
Officer until 30 days have elapsed after

[[Page 172]]

the notice described in paragraph (d)(1) is given to the affected 
officer.
    (4) If, within 30 days of the date of the notice, the officer has 
furnished the designated official affidavits or other documentation 
showing the information in the notice to be in error, the designated 
official shall consider the officer's response. The designated official 
may return to the authorized person, without action, the notice for a 
statutorily required support allotment together with the member's 
affidavit and other documentation, if the member submits substantial 
proof of error, such as:
    (i) The support payments are not delinquent.
    (ii) The underlying support order in the notice has been amended, 
superseded, or set aside.
    (e) Absence of funds. (1) When notice is served and the identified 
officer is found not to be entitled to moneys due from or payable by 
NOAA, the designated official shall return the notice to the authorized 
person, and advise that no moneys are due from or payable by NOAA to the 
named individual.
    (2) Where it appears that moneys are only temporarily exhausted or 
otherwise unavailable, the authorized person shall be fully advised as 
to why, and for how long, the money will be unavailable.
    (3) In instances where the officer separates from active duty 
service, the authorized person shall be informed by the Office of 
Commissioned Personnel, NOAA Corps that the allotment is discontinued.
    (4) Payment of statutorily required allotments shall be enforced 
over other voluntary deductions and allotments when the gross amount of 
pay and allowances is not sufficient to permit all authorized deductions 
and collections.
    (f) Allotment of funds. (1) The authorized person or allottee shall 
notify the designated official promptly if the operative court order 
upon which the allotment is based is vacated, modified, or set aside. 
The designated official shall also be notified of any events affecting 
the allottee's eligibility to receive the allotment, such as the former 
spouse's remarriage, if a part of the payment is for spousal support, 
and notice of a change in eligibility for child support payments under 
circumstances of death, emancipation, adoption, or attainment of 
majority of a child whose support is provided through the allotment.
    (2) An allotment established under this Directive shall be adjusted 
or discontinued upon notice from the authorized person.
    (3) Neither the Department of Commerce nor any officer or employee 
thereof, shall be liable for any payment made from moneys due from, or 
payable by, the Department of Commerce to any individuals pursuant to 
notice regular on its face, if such payment is made in accordance with 
this subpart. If a designated official receives notice based on support 
which, on its face, appears to conform to the law of the jurisdiction 
from which it was issued, the designated official shall not be required 
to ascertain whether the authority that issued the orde had obtained 
personal jurisdiction over the member.
    (4) Effective date of allotment. The allotment shall start with the 
first pay period beginning after the officer has had a consultation with 
an attorney from the Office of the Assistant General Counsel for 
Administration but not later than the first pay period beginning after 
30 days have elapsed since the notice required in paragraph (d)(1) of 
this section is given to the affected officer. The Department of 
Commerce shall not be required to vary its normal NOAA Corps allotment 
payment cycle to comply with the notice.
    (g) Designated official. Notice should be sent to: The Assistant 
General Counsel for Administration, Office of the General Counsel, U.S. 
Department of Commerce, Washington, DC 20230, (202) 377-5387.



 Subpart D_Statement of Policy and Procedures Regarding Indemnification 
                   of Department of Commerce Employees

    Source: 62 FR 19670, Apr. 23, 1997, unless otherwise noted.

[[Page 173]]



Sec.  15.31  Policy.

    (a) The Department of Commerce may indemnify a present or former 
Department employee who is personally named as a defendant in any civil 
suit in state or federal court, or other legal proceeding seeking 
damages against a present or former Department employee personally, for 
any verdict, judgment or other monetary award which is rendered against 
such employee, provided that the conduct giving rise to the verdict, 
judgment or award was taken within the scope of his/her employment and 
that such indemnification is in the interest of the Department as 
determined by the Secretary or his/her designee.
    (b) The Department may settle or compromise a personal damage claim 
against a present or former employee by the payment of available funds 
at any time provided the alleged conduct giving rise to the personal 
property claim was taken within the employee's scope of employment and 
such settlement is in the interest of the Department as determined by 
the Secretary or his/her designee.
    (c) Absent exceptional circumstances, as determined by the Secretary 
or his/her designee, the Department will not consider a request either 
to indemnify or to settle a personal damage claim before entry of an 
adverse verdict, judgment or award.
    (d) Any payment under this section either to indemnify a present or 
former Department employee or to settle a personal damage claim shall be 
contingent upon the availability of appropriated funds of the Department 
of Commerce.



Sec.  15.32  Procedures for the handling of lawsuits against Department 
employees arising within the scope of their office or employment.

    The following procedures shall be followed in the event that a civil 
action or proceeding is brought, in any court, against a present or 
former employee of the Department (or against his/her estate) for 
personal injury, loss of property or death, resulting from the 
Department employee's activities while acting within the scope of his/
her office or employment:
    (a) After being served with process or pleadings in such an action 
or proceeding, the employee (or the executor(rix) or administrator(rix)) 
of the estate shall within five (5) calendar days of receipt, deliver 
all such process and pleadings or an attested true copy thereof, 
together with a fully detailed report of the circumstances of the 
incident giving rise to the court action or proceeding to the General 
Counsel. Where appropriate, the General Counsel, or his/her designee, 
may request that the Department of Justice provide legal representation 
for the present or former Department employee.
    (b)(1) Only if a present or former employee of the Department has 
satisfied the requirements of paragraph (a) of this section in a timely 
fashion, may the employee subsequently request indemnification to 
satisfy a verdict, judgment, or award entered against that employee.
    (2) No request for indemnification will be considered unless the 
employee has submitted a written request, with appropriate 
documentation, including copies of the verdict, judgment, appeal bond, 
award, or settlement proposal through the employee's supervisory chain 
to the head of the employee's component. The written request will 
include an explanation by the employee of how the employee was working 
within the scope of employment and whether the employee has insurance or 
any other source of indemnification.
    (3) The head of the component or his/her designee will forward the 
employee's request with a recommendation to the General Counsel for 
review. The request for indemnification shall include a detailed 
analysis of the basis for the recommendation. The head of the component 
will also certify to the General Counsel that the component has funds 
available to pay the indemnification.
    (c) The General Counsel or his/her designee will review the 
circumstances of the incident giving rise to the action or proceeding, 
and all data bearing upon the question of whether the employee was 
acting within the scope of his/her employment. Where appropriate, the 
agency shall seek the views of the Department of Justice and/or the

[[Page 174]]

U.S. Attorney for the district embracing the place where the action or 
proceeding is brought.
    (d) The General Counsel shall forward the request, the accompanying 
documentation, and the General Counsel's recommendation to the Secretary 
or his/her designee for decision.



PART 16_PROCEDURES FOR A VOLUNTARY CONSUMER PRODUCT INFORMATION LABELING 
PROGRAM--Table of Contents




Sec.
16.1 Purpose.
16.2 Description and goal of program.
16.3 Definitions.
16.4 Finding of need to establish a specification for labeling a 
          consumer product.
16.5 Development of performance information labeling specifications.
16.6 Establishment of fees and charges.
16.7 Participation in program.
16.8 Termination of participation.
16.9 Rules governing designated agents.
16.10 The Department of Commerce Mark.
16.11 Amendment or revision of a performance information labeling 
          specification.
16.12 Consumer education.
16.13 Coordination with State and local programs.
16.14 Annual report.

    Authority: Sec. 2, 31 Stat. 1449, as amended; sec. 1, 64 Stat. 371, 
(15 U.S.C. 272); Re-organization Plan No. 3 of 1946, Part VI.

    Source: 42 FR 26648, May 25, 1977, unless otherwise noted.



Sec.  16.1  Purpose.

    The purpose of this part is to establish procedures under which a 
voluntary consumer product information labeling program administered by 
the Department of Commerce will function.



Sec.  16.2  Description and goal of program.

    (a) The Department's Voluntary Consumer Product Information Labeling 
Program makes available to consumers, at the point of sale, information 
on consumer product performance in an understandable and useful form so 
as to facilitate accurate consumer purchasing decisions and enhance 
consumer satisfaction. It also educates consumers, distributors and 
retailers in the use of the product performance information displayed 
and provides manufacturers and other persons who participate in the 
program with an opportunity to convey to the public the particular 
advantages of their products. These objectives are accomplished by:
    (1) Selecting or developing standardized test methods by which 
selected product performance characteristics can be measured;
    (2) Developing labeling methods by which information concerning 
product performance can be transmitted in useful form to consumers at 
the point of sale;
    (3) Encouraging manufacturers and other participants in the program 
voluntarily to test and label their products according to the selected 
or developed methods; and
    (4) Encouraging consumers through various informational and 
educational programs to utilize the product performance information 
provided.
    (b) The program involves voluntary labeling by enrolled participants 
of selected categories of consumer products with information concerning 
selected performance characteristics of those products. The performance 
characteristics selected are those that are of demonstrable importance 
to consumers, that consumers cannot evaluate through mere inspection of 
the product, and that can be measured objectively and reported 
understandably to consumers. The consumer products covered include those 
for which incorrect purchase decision can result in financial loss, 
dissatisfaction, or inconvenience. The program seeks to avoid the 
duplication of other Federal programs under which performance 
characteristics are labeled by exempting those performance 
characteristics from this program. However, where the Federal agency 
concerned agrees, the Department of Commerce may include information 
about those performance characteristics in CPILP labels if, by doing so, 
product comparison at the point of sale is simplified for consumers, and 
the complexity of product labeling is reduced for the manufacturers by 
enabling them to comply with the labeling requirements of other Federal 
agencies through participation in CPILP.

[[Page 175]]

    (c) For selected categories of consumer products, the program 
includes advertising guidelines covering situations where quantitative 
performance values are stated in advertising or where qualitative 
comparisons are made of the performance of different products.

[42 FR 26648, May 25, 1977, as amended at 43 FR 8255, Mar. 1, 1978]



Sec.  16.3  Definitions.

    (a) The term Secretary means the Secretary of Commerce or her 
designee.
    (b) The term consumer means the first person who purchases a 
consumer product for purposes other than resale.
    (c) The term participant means a manufacturer, assembler or private 
brand labeler of consumer products or an importer of such products for 
resale and who participates in the program.
    (d) The term consumer product means any article produced or 
distributed for sale to a consumer for the use, consumption, or 
enjoyment of such consumer. The term does not include products 
customarily intended primarily for business, commercial, or industrial 
use.
    (e) The term person means an individual; a manufacturer; 
distributor; retailer; importer; private brand labeler; government 
agency at the Federal (including any agency of the Department of 
Commerce), State and local level; consumer organization; trade 
association; standards writing body; professional society; testing 
laboratory; or educational institution.
    (f) The term performance characteristic means a performance 
characteristic of a consumer product that can be measured in an 
objective manner with respect to a given consumer product.
    (g) The term Specification means a Performance Information Labeling 
Specification developed under Sec.  16.5.
    (h) The term label means printed matter affixed to or otherwise 
provided with a consumer product and containing all of the performance 
characteristics as prescribed by the Specification applicable to that 
product.
    (i) The term designated agent means a person as defined in paragraph 
(e) of this section, who has been designated by the Secretary to carry 
out appropriate operational procedures on behalf of more than one 
participant in this program in accordance with rules set out under Sec.  
16.9.



Sec.  16.4  Finding of need to establish a specification for labeling a 
consumer product.

    (a) Any person may request the Secretary to find that there is a 
need to label a particular consumer product with information concerning 
one or more specific performance characteristics of that product.
    (b) Such a request shall be in writing and will, to the extent 
practicable, include the following information:
    (1) Identification of the consumer product;
    (2) Extent that the product identified in paragraph (b)(1) of this 
section is used by the public and, if known, what the production or 
sales volume is of such product;
    (3) Nature and extent of difficulty experienced by consumers in 
making informed purchase decisions because of a lack of knowledge 
regarding the performance characteristics of the identified consumer 
product;
    (4) Potential or actual loss to consumers as a result of an 
incorrect decision based on an inadequate understanding of the 
performance characteristics of the identified consumer product;
    (5) Extent of incidence of consumer complaints arising from or 
reasonably traceable to lack of knowledge regarding the performance 
characteristics of the identified consumer product;
    (6) If known, whether there currently exist test methods which could 
be used to test the performance characteristics of the identified 
consumer product and an identification of those test methods;
    (7) Reasons why it is felt, in cases where existing test methods are 
identified in responding to paragraph (b)(6) of this section, that such 
test methods are suitable for making objective measurements of the 
performance characteristics of the identified consumer product; and
    (8) Estimated cost to participants to test and label the product.
    (c) The Secretary may ask for more information to support a request 
made under paragraph (a) of this section if she feels it is necessary to 
do so, or, if

[[Page 176]]

she deems it to be in the public interest, may develop such information 
herself as by consultation on a one-time basis with consumers, consumer 
organizations, and others. The Secretary shall act expeditiously on all 
requests and shall notify the requester of her decision in writing. If 
the Secretary determines that there is no need to establish a 
Specification for labeling the requested consumer product performance 
characteristics, or because of a lack of resources, she will decline to 
act further on the request. In those instances where the Secretary 
declines a request, she shall state the reasons for so declining.
    (d) If the Secretary finds that a need exists to establish a 
Specification for labeling a consumer product under this program, she 
shall publish a notice in the Federal Register setting out such finding 
and its basis and stating that she is developing a proposed 
Specification in accordance with Sec.  16.5.



Sec.  16.5  Development of performance information labeling specifications.

    (a) If the Secretary makes a finding of need pursuant to Sec.  16.4, 
she will publish a proposed Performance Information Labeling 
Specification in the Federal Register with a notice giving the complete 
text of the proposed Specification and any other pertinent information. 
The notice will invite any interested person to submit written comments 
on the proposed Specification within 45 days after its publication in 
the Federal Register, unless another time limit is provided by the 
Secretary. Interested persons wanting to express their views in an 
informal hearing may do so, if within 15 days after the proposed 
Specification is published in the Federal Register, they request the 
Secretary to hold a hearing. Such informal hearings shall be held so as 
to give all interested persons an opportunity for the oral presentation 
of data, views, or arguments in addition to the opportunity to make 
written submissions. Notice of such hearings shall be published in the 
Federal Register. A transcript shall be kept of any oral presentations.
    (b) Each Specification shall as a minimum include:
    (1) A description of the performance characteristics of the consumer 
product covered;
    (2) An identification by reference of the test methods to be used in 
measuring the performance characteristics. The test methods, where they 
exist and are deemed appropriate for inclusion in the particular 
Specification involved, shall be those which are described in 
nationally-recognized voluntary standards. Where appropriate test 
methods do not exist, they will be developed by the Department of 
Commerce in cooperation with interested parties and set out in full in 
the Specification;
    (3) A prototype label and directions for displaying the label on or 
with the consumer product concerned. Such directions will not prohibit 
the display of additional information by the participant on space 
adjacent to the marked boundaries of the label; and
    (4) Conditions of participation.
    (c) The Secretary, after consideration of all written and oral 
comments and other materials received in accordance with paragraph (a) 
of this section, shall publish in the Federal Register within 30 days 
after the final date for receipt of comments, or as soon as practicable 
thereafter, a notice either:
    (1) Giving the complete text of a final Specification, including 
conditions of use, and stating that any prospective participant in the 
program desiring voluntarily to use the Department of Commerce Mark 
developed under Sec.  16.10 must advise the Department of Commerce: or
    (2) Stating that the proposed Specification will be further 
developed before final publication; or
    (3) Withdrawing the proposed Specification from further 
consideration.



Sec.  16.6  Establishment of fees and charges.

    (a) The Secretary in conjunction with the use of the Working Capital 
Fund of the National Institute of Standards & Technology, as authorized 
under section 12 of the Act of March 3, 1901, as amended (15 U.S.C. 
278b), for this program, shall establish fees and charges for use of the 
Department of Commerce Label and Mark on each product. Such fees and 
charges shall be

[[Page 177]]

related to the number of units of products labeled, where appropriate. 
The fees and charges established by the Secretary, which may be revised 
by her when she deems it appropriate to do so, shall be in amounts 
calculated to make the operation of this program as self-sufficient as 
reasonable. A separate notice will be published in the Federal Register 
simultaneously with the notice of each proposed Specification referred 
to in Sec.  16.5(a). Such notice will set out a schedule of estimated 
fees and charges the Secretary proposes to establish. The notice would 
be furnished for informational and guidance purposes only in order that 
the public may evaluate the proposed Specification in light of the 
expected fees to be charged.
    (b) At such time as the Secretary publishes the notice announcing 
the final Specification referred to in Sec.  16.5(c)(1), she shall 
simultaneously publish a separate notice in the Federal Register setting 
forth the final schedule of fees that will be charged participants in 
the program. The effective date of such final schedule of fees shall be 
the same as the date on which the final Specification takes effect.
    (c) Revisions, if any, to the fees and charges established by the 
Secretary under paragraph (b) of this section shall be published in 
subsequent Federal Register notices and shall take effect not less than 
thirty (30) days after the date of publication of such notice.
    (d) The establishment of fees and charges under this section may, at 
any time, be suspended by the Secretary for any length of time.

[42 FR 26648, May 25, 1977, as amended at 42 FR 57686, Nov. 4, 1977; 55 
FR 38315, Sept. 18, 1990]



Sec.  16.7  Participation in program.

    (a) Any manufacturer, assembler, or private brand labeler of 
consumer products or importer of such products for resale, desiring to 
participate in this program will so notify the Secretary. The 
notification will identify the particular Specification to be used and 
the prospective participant's identification and model numbers for the 
products to be labeled. The notification must include a statement that 
if accepted as a participant in the program by the Secretary, the 
prospective participant will:
    (1) Abide by all conditions imposed by these procedures:
    (2) Abide by the conditions contained in the Specification, as 
prescribed in paragraph (d) of this section;
    (3) Pay the fees and charges established by the Secretary; and
    (4) Desist from using the Department of Commerce label and Mark if 
his participation is terminated under Sec.  16.8.
    (b) The Secretary shall act expeditiously on all requests to 
participate in the program and shall notify each prospective participant 
of her decision in writing. In those instances where the Secretary 
declines a request, she shall state the reasons for so declining.
    (c) If a prospective participant seeking to participate in the 
program is notified by the Secretary that she proposes to deny that 
prospective participant the right to participate, that prospective 
participant shall have thirty (30) days from the receipt of such 
notification to request a hearing under the provisions of 5 U.S.C. 556. 
The Secretary's proposed denial shall become final through the issuance 
of a written decision to such prospective participant in the event that 
he does not appeal such notification by the end of the thirty (30) day 
period. If however, such prospective participant requests a hearing 
within that thirty (30) day period, the Secretary's proposed denial 
shall be stayed pending the outcome of the hearing held pursuant to 5 
U.S.C. 556.
    (d) The conditions set out in each Specification will include, but 
not be limited to, the following:
    (1) Prior to the use of a Label, the participant will make or have 
made the measurements to obtain the information required for inclusion 
on the Label and, if requested, will forward within 30 days such 
measurement data to the Secretary. Such measurement data will be kept on 
file by the participant or his agent for two years after that product is 
no longer manufactured unless otherwise provided in the Specification.
    (2) The participant will describe the test results on the Label as 
prescribed in the Specification.

[[Page 178]]

    (3) The participant will display or arrange to display, in 
accordance with the appropriate Specification, the Label on or with each 
individual product of the type covered except for units exported from 
the U.S. Participants who utilized more than one brand name may 
participate by labeling some or all of the brand names. All models with 
the same brand name must be included in the program unless they are for 
export only.
    (4) The participant agrees at his expense to comply with any 
reasonable request of the Secretary to have consumer products 
manufactured, assembled, imported, or privately brand labeled by him 
tested to determine that testing has been done according to the relevant 
Specification.
    (5) Participants may reproduce the Department of Commerce Label and 
Mark in advertising: Provided, That the entire Label, complete with all 
information required to be displayed at the point of retail sale, is 
shown legibly and is not combined or associated directly with any other 
mark or logo.



Sec.  16.8  Termination of participation.

    (a) The Secretary upon finding that a participant is not complying 
with the conditions set out in these procedures or in a Specification 
may terminate upon 30 days notice the participant's right to continue 
his participation in the program: Provided, That the participant shall 
first by given an opportunity to show cause why the participation should 
not be terminated.
    (b) Upon receipt of a notice from the Secretary of the proposed 
termination, which notice shall set forth the reasons for such proposed 
termination, the participant shall have thirty (30) days from the date 
of receipt of such notification to request a hearing under the 
provisions of 5 U.S.C. 556. The Secretary's proposed termination shall 
become final through the issuance of a written decision to the 
participant in the event such participant does not appeal the proposed 
termination within the thirty (30) day period. If, however, the 
participant requests a hearing within the thirty (30) day period, the 
Secretary's proposed termination shall be stayed pending the outcome of 
the hearing held pursuant to 5 U.S.C. 556.
    (c) A participant may at any time terminate his participation and 
responsibilities under this program with regard to a specific type of 
product by giving written notice to the Secretary that he has 
discontinued use of the Department of Commerce Label and Mark for all 
consumer products of the type involved.



Sec.  16.9  Rules governing designated agents.

    (a) The following rules, requirements and tasks shall be applicable 
with respect to the seeking of designated agent status and the 
performance of that role after such status has been obtained. Each 
person desiring to be designated as a designated agent under this 
program shall:
    (1) Make written application to the Secretary;
    (2) Provide appropriate information showing his qualifications to 
represent members within a given product area and that more than one 
prospective participant in that product area is agreeable to such 
representation; and
    (3) Agree to service any participant in this program in the agent's 
cognizant product area whether or not such participant is a member of 
the organization or body which that agent represents.
    (b) The Secretary may require a person seeking designated agent 
status to supply further information before granting such status to that 
person. The Secretary will notify each person seeking designated agent 
status, in writing, as expeditiously as possible after evaluating such 
person's application.
    (c) Each person granted designated agent status shall:
    (1) Provide the Secretary with a list of the participants that the 
designated agent services under the program. The Secretary shall also be 
provided an updated list as soon thereafter as may be practicable 
whenever there are any changes in the list;
    (2) Collect fees and charges from the participants serviced under 
this program, consolidate such sums, and transmit those fees and charges 
required under Sec.  16.6 to the Secreatry;
    (3) Distribute Department of Commerce Marks developed under Sec.  
16.10 or

[[Page 179]]

instructions for the printing of such Marks to the participants that the 
designated agent services under this program;
    (4) Gather and consolidate such statistical information as may be 
required by the Secretary from individual participants serviced;
    (5) Provide the Secretary with reports, including the consolidate 
statistical information referred to in paragraph (c)(4) of this section, 
as may be called for by her, relative to the activities of the 
participants the designated agent is servicing; and
    (6) Perform any additional tasks mutually agreed upon by the 
designated agent and the Secretary.
    (d) If a person seeking designated agent status is notified by the 
Secretary that she proposes to deny that person such status, that person 
shall have thirty (30) days from the date of receipt of such 
notification to request a hearing under the provisions of 5 U.S.C. 556. 
The Secretary's proposed denial shall become final through the issuance 
of a written decision to such person in the event that he does not 
appeal such notification by the end of that thirty (30) day period. If, 
however, such person requests a hearing within that thirty (30) day 
period, the Secretary proposed denial shall be stayed pending the 
outcome of the hearing held pursuant to 5 U.S.C. 556.
    (e) If the Secretary finds that a designated agent has violated the 
terms of paragraph (c) of this section, she may, after consultations 
with such designated agent, notify such person that she proposes to 
revoke his status as a designated agent.
    (f) Upon receipt of a notice from the Secretary of the proposed 
revocation, which notice shall set forth the reasons for such proposed 
revocation, the designated agent shall have thirty (30) days from the 
date of receipt of such notification to request a hearing under the 
provisions of U.S.C. 556. The Secretary's proposed revocation shall 
become final through the issuance of a written decision to the 
designated agent in the event such designated agent does not appeal the 
proposed revocation within that thirty (30) day period. If, however, the 
designated agent requires a hearing within that thirty (30) day period, 
the Secretary's proposed revocation shall be stayed pending the outcome 
of the hearing held pursuant to 5 U.S.C. 556.



Sec.  16.10  The Department of Commerce Mark.

    The Department of Commerce shall develop a Mark which shall be 
registered in the U.S. Patent and Trademark Office under 15 U.S.C. 1054 
for use on each Label described in a Specification.



Sec.  16.11  Amendment or revision of a performance information labeling 
specification.

    The Secretary may by order amend or revise any Specification 
published under Sec.  16.5. The procedure applicable to the 
establishment of a Specification under Sec.  16.5 shall be followed in 
amending or revising such Specification. Such amendment or revision 
shall not apply to consumer products manufactured prior to the effective 
date of the amendment or revision.



Sec.  16.12  Consumer education.

    The Secretary, in close cooperation and coordination with interested 
Government agencies, appropriate trade associations and industry 
members, consumer organizations, and other interested persons shall 
carry out a program to educate consumers relative to the significance of 
the labeling program. Some elements of this program shall also be 
directed toward informing retailers and other interested groups about 
the program.



Sec.  16.13  Coordination with State and local programs.

    The Secretary will establish and maintain an active program of 
communication with appropriate State and local government offices and 
agencies and will furnish and make available information and assistance 
that will promote uniformity in State and local programs for the 
labeling of performance characteristics of consumer products.



Sec.  16.14  Annual report.

    The Secretary will prepare an annual report of activities under the 
program, including an evaluation of the program

[[Page 180]]

and a list of participants, designated agents, and types of consumer 
products covered.



PART 17_LICENSING OF GOVERNMENT-OWNED INVENTIONS IN THE CUSTODY OF THE 
DEPARTMENT OF COMMERCE--Table of Contents




      Subpart A_Licensing of Rights in Domestic Patents and Patent 
                              Applications

Sec.
17.1 Licensing rules.

Subpart B--Licensing of Rights in Foreign Patents and Patent Applications 
[Reserved]

Subpart C_Appeal Procedures for Licensing Department of Commerce Patents

17.21 Purpose.
17.22 Definitions.
17.23 Authority to grant licenses.
17.24 Persons who may appeal.
17.25 Procedures.
17.26 Adjudicatory.

    Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c)).

    Editorial Note: 41 CFR Part 101-4 referred to in this part was 
removed at 50 FR 28402, July 12, 1985.



      Subpart A_Licensing of Rights in Domestic Patents and Patent 
                              Applications



Sec.  17.1  Licensing rules.

    (a) The Government-wide rules for the licensing of rights in 
domestic patents and patent applications vested in the United States of 
America, found at 41 CFR 101-4.1, are applicable to all such licensing 
activities of the Department of Commerce, subject to the following minor 
clarifications:
    (1) The term ``Government agency'' as defined at 41 CFR 101-4.102(c) 
means the United States Department of Commerce or a designated operating 
unit within the Department.
    (2) The term ``The head of the Government agency'', as defined at 41 
CFR 101-4.102(d), means the Secretary of Commerce or a designee.
    (b) [Reserved]

[42 FR 54415, Oct. 6, 1977]

Subpart B--Licensing of Rights in Foreign Patents and Patent Applications 
[Reserved]



Subpart C_Appeal Procedures for Licensing Department of Commerce Patents

    Source: 49 FR 7986, Mar. 5, 1984, unless otherwise noted.



Sec.  17.21  Purpose.

    This subpart describes the terms, conditions and procedures under 
which a party may appeal from a decision of the Director of the National 
Technical Information Service concerning the grant, denial, 
interpretation, modification or termination of a license of any patent 
in the custody of the Department of Commerce.



Sec.  17.22  Definitions.

    (a) 41 CFR Part 101-4 shall mean the General Services Administration 
Final Rule concerning ``Patents: Licensing of Federally Owned 
Inventions'' which was originally published in the Federal Register, 
volume 47, number 152, Friday, August 6, 1982 at pages 34148 through 
34151.
    (b) Director shall mean the Director of the National Technical 
Information Service, and operating agency within the U.S. Department of 
Commerce.
    (c) Under Secretary means the Under Secretary for Technology who is 
an officer appointed by the President and confirmed by the Senate and is 
an official to whom the Director reports within the Department of 
Commerce.

[49 FR 7986, Mar. 5, 1984, as amended at 55 FR 38983, Sept. 24, 1990]



Sec.  17.23  Authority to grant licenses.

    The Director has been duly delegated authority to make any decision 
or determination concerning the granting, denial, interpretation, 
modification or termination of any license of any patent in the custody 
and control of the U.S. Department of Commerce. The decision and 
determination of the Director is final and conclusive on behalf of

[[Page 181]]

this Department unless the procedures for appeal set forth below are 
initiated.



Sec.  17.24  Persons who may appeal.

    The following person(s) may appeal to the Under Secretary any 
decision or determination concerning the grant, denial, interpretation, 
modification or termination of a license:
    (a) A person whose application for a license has been denied;
    (b) A licensee whose license has been modified or terminated in 
whole or in part; or
    (c) A person who has timely filed a written objection in response to 
the notice published in the Federal Register as required by 41 CFR 101-
4.104-3(a)(1)(c)(i) or 101-4.104-3(b)(1)(i) and who can demonstrate to 
the satisfaction of the Under Secretary that such person may be damaged 
by the Director's determination.

[49 FR 7986, Mar. 5, 1984, as amended at 55 FR 38983, Sept. 24, 1990]



Sec.  17.25  Procedures.

    (a) Any appellant party(ies) who was denied a license by the 
Director under Sec.  17.24(a) shall not be entitled to an adversary 
hearing. Such party(ies) shall file appropriate documents no later than 
30 days from the receipt of the Director's decision unless the Under 
Secretary grants for good cause an extension of time. The notice, in 
concise and brief terms, should state the grounds for appeal and include 
copies of all pertinent documents. Accompanying the notice should be 
concise arguments as to why the Director's decision should be rejected 
or modified.
    (b) The Under Secretary shall render a written opinion within 30 
days of receiving all required documentation in a non-adversary appeal.
    (c) Judicial review is available as the law permits.

[49 FR 7986, Mar. 5, 1984, as amended at 55 FR 38983, Sept. 24, 1990]



Sec.  17.26  Adjudicatory.

    (a) Any appellant party who seeks review of the Director's decision 
based upon a modification or termination of a license by the Director 
under Sec.  17.24(b), or who has filed a timely objection and can 
demonstrate damages as provided in Sec.  17.24(c), shall be entitled to 
an adversary hearing in accord with the provisions of the Administrative 
Procedures Act (5 U.S.C. 554-557). A party may waive an adversary 
hearing by filing a written waiver with the Under Secretary.
    (b) When an adversary hearing is required under Sec.  17.24 (b) or 
(c) the Under Secretary shall appoint as promptly as possible an 
Administrative Law Judge who shall hold hearings no later than 45 days 
from the date of the appointment. The hearings will be conducted in 
conformity with the objectives of the Administrative Procedure Act. The 
Administrative Law Judge shall submit a written recommendation to the 
Under Secretary no later than 30 days subsequent to the hearing and/or 
the filing of any required written arguments or documentation.
    (c) The Under Secretary shall render a final written decision on 
behalf of the Department based upon the appeal file which shall include 
the hearing record, exhibits, written submissions of the party(ies), and 
the recommendation of the Administrative Law Judge. The Under 
Secretary's decision shall include the reasons which form the basis of 
the determination. The final decision may uphold, overrule, or modify 
the Director's decision or take any action deemed appropriate.
    (d) Judicial review is available as the law permits.

[49 FR 7986, Mar. 5, 1984, as amended at 55 FR 38983, Sept. 24, 1990]



PART 18_ATTORNEY'S FEES AND OTHER EXPENSES--Table of Contents




                           General Provisions

Sec.
18.1 Purpose of these rules.
18.2 Definitions.
18.3 When the Act applies.
18.4 Proceedings covered.
18.5 Eligibility of applicants.
18.6 Standards for awards.
18.7 Allowable fees and expenses.
18.8 Rulemaking on maximum rates for attorney fees.
18.9 Awards against other agencies.
18.10 Delegations of authority.

                  Information Required from Applicants

18.11 Contents of application.
18.12 Net worth exhibit.

[[Page 182]]

18.13 Documentation of fees and expenses.
18.14 When an application may be filed.

                 Procedures for Considering Applications

18.15 Filing and service of documents.
18.16 Answer to application.
18.17 Reply.
18.18 Comments by other parties.
18.19 Settlement.
18.20 Further proceedings.
18.21 Decision.
18.22 Agency review.
18.23 Judical review.
18.24 Payment of award.

    Authority: 5 U.S.C. 504(c)(1).

    Source: 47 FR 13510, Mar. 31, 1982, unless otherwise noted.

                           General Provisions



Sec.  18.1  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 
the Department of Commerce (the word Department includes its component 
agencies). An eligible party may receive an award when it prevails over 
the Department, unless the Department's position in the proceeding was 
substantially justified or special circumstances make an award unjust. 
The rules in this part describe the parties that are eligible for awards 
and the Department's proceedings that are covered by the Act. They also 
explain how to apply for awards, and the procedures and standards that 
the Department will use to make them.



Sec.  18.2  Definitions.

    As used in this part:
    (a) Adversary adjudication means an adjudication under 5 U.S.C. 554 
in which the position of the United States is represented by counsel or 
otherwise, but excludes an adjudication for the purpose of establishing 
or fixing a rate or for the purpose of granting or renewing a license.
    (b) Adjudicative officer means the official, without regard to 
whether the official is designated as an administrative law judge, a 
hearing officer or examiner, or otherwise, who presided at the adversary 
adjudication.



Sec.  18.3  When the Act applies.

    The Act applies to any adversary adjudication pending or commenced 
before the Department on or after August 5, 1985. It also applies to any 
adversary adjudication commenced on or after October 1, 1984, and 
finally disposed of before August 5, 1985, provided that an application 
for fees and expenses, as described in Sec. Sec.  18.11 through 18.14 of 
this part, has been filed with the Department within 30 days after 
August 5, 1985, and to any adversary adjudication pending on or 
commenced on or after October 1, 1981, in which an application for fees 
and other expenses was timely filed and was dismissed for lack of 
jurisdiction.

[53 FR 6798, Mar. 3, 1988]



Sec.  18.4  Proceedings covered.

    (a) The Act applies to adversary adjudications conducted by the 
Department and to appeals of decisions of contracting officers of the 
Department made pursuant to section 6 of the Contract Disputes Act of 
1978 (41 U.S.C. 605) before agency boards of contract appeals as 
provided in section 8 of that Act (41 U.S.C. 607). Adversary 
adjudications conducted by the Department are adjudications under 5 
U.S.C. 554 in which the position of this or any other agency of the 
United States, or any component of an agency, is presented by an 
attorney or other representative who enters an appearance and 
participates in the proceeding. Pursuant to section 8(c) of the Contract 
Disputes Act (41 U.S.C. 607(c)), the Department has arranged for appeals 
from decisions by contracting officers of the Department to be decided 
by the General Services Administration Board of Contract Appeals. This 
Board, in accordance with its own procedures, shall be responsible for 
making determinations on applications pursuant to the Act relating to 
appeals to the Board from decisions of contracting officers of the 
Department. Such determinations are final, subject to appeal under Sec.  
18.23. Any proceeding in which the Department may prescribe 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

[[Page 183]]

covered if they are otherwise ``adversary adjudications.'' The 
Department proceedings covered are:
    (1) Department-wide. (i) Title VI Civil Rights hearings conducted by 
the Department under 42 U.S.C. 2000d-1 and 15 CFR 8.12(d).
    (ii) Handicap discrimination hearings conducted by the Department 
under 29 U.S.C. 794(a) and 15 CFR 8.12(d).
    (2) National Oceanic and Atmospheric Administration (``NOAA'')
    (i) Proceedings concerning suspension, revocation, or modification 
of a permit or license issued by NOAA.
    (ii) Proceedings to assess civil penalties under any of the statutes 
administered by NOAA.
    (3) International Trade Administration. Enforcement proceedings 
under the AntiBoycott provisions of the Export Administration Act of 
1979, 50 U.S.C. app. 2407.
    (4) Patent and Trademark Office. Disbarment proceedings of attorneys 
and agents under 35 U.S.C. 32.
    (b) The Department may also designate a proceeding not listed in 
paragraph (a) of this section as an adversary adjudication for purposes 
of the Act by so stating in an order initiating the proceeding or 
designating the matter for hearing. The Department's failure to 
designate a proceeding as an adversary adjudication shall not preclude 
the filing of an application by a party who believes the proceeding is 
covered by the Act; whether the proceeding is covered will then be an 
issue for resolution in proceedings on the application.
    (c) 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.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6798, Mar. 3, 1988]



Sec.  18.5  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party to the adversary 
adjudication for which it seeks an award. The term ``party'' is defined 
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions 
of eligibility set out in this part.
    (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 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 not more than 500 
employees; and
    (5) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of not more than $7 million 
and not more than 500 employees.
    (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 initiated.
    (d) An applicant who owns an unincorporated business will be 
considered as 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 employees of an applicant include 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 adjudicative officer determines that such treatment 
would be unjust and contrary to the purposes of the Act

[[Page 184]]

in light of the actual relationship between the affiliated entities. In 
addition, the adjudicative officer 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.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6798, Mar. 3, 1988]



Sec.  18.6  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding, or in a significant 
and discrete substantive portion of the proceedings, unless the position 
of the Department over which the applicant has prevailed was 
substantially justified. The position of the Department includes, in 
addition to the position taken by the Department in the adversary 
adjudication, the action or failure to act by the Department upon which 
the adversary adjudication is based. The burden of proof that an award 
should not be made to an eligible prevailing applicant because the 
Department's position was substantially justified is on the agency 
counsel.
    (b) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding or if special circumstances 
make the award sought unjust.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.7  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents and expert 
witnesses, even if the services were made available without charge or at 
a reduced rate to the applicant.
    (b) No award for the fee of an attorney or agent under this rule may 
exceed $75.00 per hour. No award to compensate an expert witness may 
exceed the highest rate at which the Department pays expert witnesses. 
However, an award may also include the reasonable expenses of the 
attorney, agent, or witness as a separate item, if the attorney, agent, 
or witness ordinarily charges clients separately for such expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent, or expert witness, the adjudicative officer 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 proceedings; 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.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.8  Rulemaking on maximum rates for attorney fees.

    (a) If warranted by an increase in the cost of living or by special 
circumstances (such as limited availability of attorneys qualified to 
handle certain types of proceedings), the Department may adopt 
regulations providing that attorney fees may be awarded at a rate higher 
than the ceiling set forth in Sec.  18.7(b) in some or all of the types 
of proceedings covered by this part. The Department will conduct any 
rulemaking proceedings for this purpose under the informal rulemaking 
procedures of the Administrative Procedure Act.
    (b) Any person may file with the Department a petition for 
rulemaking to

[[Page 185]]

increase the maximum rate for attorney fees. The petition should be sent 
to the General Counsel, Department of Commerce, 14th Street and 
Constitution Avenue, Room 5870, Washington, D.C. 20230. The petition 
should identify the rate the petitioner believes the Department should 
establish and the types of proceedings in which the rate should be used. 
It should also explain fully the reasons why higher rate is warranted. 
The Department will respond to the petition within 60 days after it is 
filed, by initiating a rulemaking proceeding, denying the petition, or 
taking other appropriate action.



Sec.  18.9  Awards against other agencies.

    If an applicant is entitled to an award because it prevailed over 
another agency of the United States that participated in a proceeding 
before the Department and took a position that was not substantially 
justified, the award or an appropriate portion of the award shall be 
made against that agency.



Sec.  18.10  Delegations of authority.

    The Secretary delegates to the General Counsel the authority to take 
final action on matters pertaining to the Act.

                  Information Required from Applicants



Sec.  18.11  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 the Department or other agency in the 
proceeding that the applicant alleges was not substantially justified. 
Unless the applicant is an individual, the application shall also state 
the number of employees of the applicant and describe 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 $2 million (if an individual) or 
$7 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
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) and 
includes a copy of its charter or articles of incorporation.
    (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 the adjudicative officer 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.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.12  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 Sec.  18.5(f) of this part) when the proceeding was 
initiated. Unless regulations issued by a component of the Department 
establish particular requirements, 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 
part. The adjudicative officer may require an applicant to file 
additional information to determine its eligibility for an award.

[[Page 186]]

    (b) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the adjudicative officer in a 
sealed envelope labeled ``Confidential Financial Information,'' 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the 
information would adeversely affect the applicant, and why disclosure is 
not required in the public interest. The material in question shall be 
served on counsel representing the agency against which the applicant 
seeks an award, but need not be served on any other party to the 
proceeding. If the adjudicative officer finds that the information 
should not be withheld from disclosure, it shall be placed in the public 
record of the proceeding. Otherwise, any request to inspect or copy the 
exhibit shall be disposed of in accordance with the Department's 
established procedures under the Freedom of Information Act (15 CFR Part 
4).

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.13  Documentation of fees and expenses.

    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. A separate itemized statement shall be submitted for each 
professional firm or individual whose services are covered by the 
application, showing the hours spent in connection with the proceeding 
by each individual, a description of the specific services performed, 
the rate at which each fee has been computed, any expenses for which 
reim[chyph]bursement is sought, the total amount claimed, and the total 
amount paid or payable by the applicant or by any other person or entity 
for the services provided. The adjudicative officer may require the 
applicant to provide vouchers, receipts, or other substantiation for any 
expenses claimed.



Sec.  18.14  When an application may be filed.

    (a) An application may be filed whenever the applicant has prevailed 
in the proceeding or in a significant and discrete substantive portion 
of the proceeding, but in no case later than 30 days after the 
Department's final disposition of the proceeding.
    (b) For purposes of this rule, final disposition means the date on 
which a decision or order disposing of the merits of the proceeding or 
any other complete resolution of the proceeding, such as a settlement or 
voluntary dismissal, becomes final and unappealable, both within the 
agency and to the courts.
    (c) If review or reconsideration is sought or taken of a decision as 
to which an applicant believes it has prevailed, proceedings for the 
award of fees shall be stayed pending final disposition of the 
underlying controversy. When the United States appeals the underlying 
merits of an adversary adjudication to a court, no decision on an 
application for fees and other expenses in connection with that 
adversary adjudication shall be made until a final and unreviewable 
decision is rendered by the court on the appeal or until the underlying 
merits of the case have been finally determined pursuant to the appeal.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]

                 Procedures for Considering Applications



Sec.  18.15  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, 
except as provided in Sec. 18.12(b) for confidential financial 
information.

[[Page 187]]



Sec.  18.16  Answer to application.

    (a) Within 30 calendar days after service of an application, counsel 
representing the agency against which an award is sought may file an 
answer to the application. Unless agency counsel requests an extension 
of time for filing (an extension for an additional 30 days is available 
as a matter of right) or files a statement of intent to negotiate under 
paragraph (b) of this section, failure to file an answer within the 30 
calendar day period may be treated as a consent to the award requested.
    (b) If agency counsel and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement of 
their intent to negotiate a settlement. The filing of this statement 
shall extend the time for filing an answer for an additional 30 days, 
and further extensions may be granted by the adjudicative officer upon 
request by agency counsel and the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the agency 
counsel's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, agency counsel shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec.  18.20.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.17  Reply.

    Within 15 calendar days after service of an answer, the applicant 
may file a reply. If the reply is based on any alleged facts not already 
in the record of the proceeding, the applicant shall include with the 
reply either supporting affidavits or a request for further proceedings 
under Sec.  18.20.



Sec.  18.18  Comments by other parties.

    Any party to a proceeding other than the applicant and the agency 
counsel may file comments on an application within 30 calendar days 
after it is served or on an answer within 15 calendar days after it is 
served. A commenting party may not participate further in proceedings on 
the application unless the adjudicative officer determines that the 
public interest requires such participation in order to permit full 
exploration of matters raised in the comments.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.19  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 
component agency's standard settlement procedure. If a prevailing party 
and 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.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.20  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 adjudicative 
officer may order further proceedings, such as an informal conference, 
oral argument, additional written submissions or, as to issues other 
than substantial justification (such as the applicant's eligibility or 
substantiation of fees and expenses), pertinent discovery 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. Whether or 
not the position of the agency was substantially justified shall be 
determined on the basis of the administrative record, as a whole, which 
is made in the adversary adjudication for which fees and other expenses 
are sought.
    (b) A request that the adjudicative officer order further 
proceedings under this section shall specifically identify the 
information sought or the disputed

[[Page 188]]

issues and shall explain why the additional proceedings are necessary to 
resolve the issues.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.21  Decision.

    The adjudicative officer shall issue an initial decision on the 
application within 30 calendar days after completion of proceedings on 
the application. The initial decision of the adjudicative officer shall 
include written findings and conclusions on the applicant's eligibility 
and status as a prevailing party, and an explanation of the reasons for 
any difference between the amount requested and the amount awarded. 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 of 
any award made among the agencies, and shall explain the reasons for the 
allocation made.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]



Sec.  18.22  Agency review.

    Either the applicant or agency counsel may file a petition for 
review of the initial decision on the fee application, or the Department 
may decide to review the decision on its own initiative. The petition 
must be filed with the General Counsel, Office of the Assistant General 
Counsel for Administration, Rm. 5882, U.S. Department of Commerce, 14th 
Street and Pennsylvania Avenue NW., Washington, DC 20230, not later than 
30 calendar days after the initial decision is issued. For purposes of 
this section, a document will be considered filed with the General 
Counsel as of the date of the postmark (or for government penalty mail, 
as shown by a certificate of mailing), if mailed, or if not mailed, as 
of the date actually delivered to the Office of General Counsel. A 
petition for review must be accompanied by a full written statement in 
support thereof, including a precise statement of why the petitioner 
believes the initial decision should be reversed or modified, and proof 
of service upon all parties. A response to the petition may be filed by 
another party to the proceeding and must be filed with the General 
Counsel at the above address not more than 30 calendar days after the 
date of service of the petition for review. The General Counsel may 
request any further submissions deemed helpful in resolving the petition 
for review. If neither the applicant nor agency counsel seeks review and 
the Department does not take review on its own initiative, the initial 
decision on the application shall become a final decision of the 
Department 30 calendar days after it is issued. Whether to review a 
decision is a matter within the discretion of the General Counsel. If 
review is taken, the General Counsel will issue the Department's final 
decision on the application or remand the application to the 
adjudicative officer for further proceedings. The standard of review 
exercised by the General Counsel shall be that which was required for 
the highest level of Departmental review which could have been exercised 
on the underlying covered proceeding.

[53 FR 6799, Mar. 3, 1988]



Sec.  18.23  Judicial review.

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



Sec.  18.24  Payment of award.

    An applicant seeking payment of an award by the Department shall 
submit a copy of the final decision granting the award, accompanied by a 
certification that the applicant will not seek review of the decision in 
the United States courts to the General Counsel, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Room 5870, 
Washington, D.C. 20230. The Department will pay the amount awarded to 
the applicant within 60 calendar days, unless judicial review of the 
award or of the underlying decision of the adversary adjudication has 
been

[[Page 189]]

sought by the applicant or any other party to the proceeding.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6800, Mar. 3, 1988]



PART 19_REFERRAL OF DEBTS TO THE IRS FOR TAX REFUND OFFSET--Table of Contents




Sec.
19.1 Purpose.
19.2 Applicability and scope.
19.3 Administrative charges.
19.4 Notice requirement before offset.
19.5 Review within the Department.
19.6 Departmental determination.
19.7 Stay of offset.

    Authority: 31 U.S.C. 3720A; Public Law 98-369; 98 Stat. 1153.

    Source: 58 FR 39653, July 26. 1993, unless otherwise noted.



Sec.  19.1  Purpose.

    This part establishes procedures for the Department of Commerce 
(DOC) to refer past-due debts to the Internal Revenue Service (IRS) for 
offset against the income tax refunds of persons owing debts to the DOC. 
It specifies the agency procedures and the rights of the debtor 
applicable to claims for payment of debts owed to the DOC.



Sec.  19.2  Applicability and scope.

    (a) These regulations implement 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 section, a past-due legally enforceable 
debt referable to the IRS is a debt which is owed to the United States 
and:
    (1) 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;
    (2) Cannot be currently collected pursuant to the salary offset 
provisions of 5 U.S.C. 5514(a)(1);
    (3) 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;
    (4) With respect to which, the DOC has given the taxpayer at least 
60 days from the date of notification to present evidence that all or 
part of the debt is not past-due or legally enforceable, the DOC has 
considered evidence presented by such taxpayer, and has determined that 
an amount of such debt is past-due and legally enforceable;
    (5) Has been disclosed by the DOC 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;
    (6) With respect to which, the DOC has notified or has made a 
reasonable attempt to notify the taxpayer that the debt is past-due and, 
unless repaid within 60 days thereafter, will be referred to the IRS for 
offset against any overpayment of taxes;
    (7) Is at least $25.00;
    (8) With respect to which, all other requirements of 31 U.S.C. 3720A 
and the Department of the Treasury regulations codified at 26 CFR 
301.6402-6 relating to the eligibility of a debt for tax refund offset 
have been satisfied.



Sec.  19.3  Administrative charges.

    In accordance with 4 CFR part 102, all administrative charges 
incurred in connection with the referral of a debt to the IRS shall be 
assessed on the debt and thus increase the amount of the offset.



Sec.  19.4  Notice requirement before offset.

    A request for a reduction of an IRS tax refund will be made only 
after the DOC makes a determination that an amount is owed and past-due 
and provides the debtor with sixty (60) days written notice. The DOC's 
notice of intention to collect by IRS tax refund offset (Notice of 
Intent) will include:
    (a) The amount of the debt;
    (b) A statement that unless the debt is repaid within sixty (60) 
days from the date of the DOC's Notice of Intent, DOC intends to collect 
the debt by requesting that the IRS reduce any amounts payable to the 
debtor as refunds of Federal taxes paid by an amount equal to the amount 
of the

[[Page 190]]

debt plus accumulated interest and other charges;
    (c) A statement that the debtor has the right to present evidence 
that all or part of the debt is not pass-due or legally enforceable;
    (d) A mailing address for forwarding any written correspondence and 
a contact name and phone number for any questions.



Sec.  19.5  Review within the Department.

    (a) Notification by debtor. A debtor who receives a Notice of Intent 
has the right to present evidence that all or part of the debt is not 
past-due or not legally enforceable. To exercise this right, the debtor 
must:
    (1) Send a written request for a review of the evidence 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 sixty (60) day period.
    (b) Submission of evidence. The debtor may submit evidence 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 notification and evidence within sixty (60) days 
will result in an automatic referral of the debt to the IRS without 
further action by the DOC.
    (c) Review of the evidence. DOC will consider all available evidence 
related to the debt. Within 30 days of the debtor's complete and timely 
response, if feasible, DOC will notify the debtor whether DOC has 
sustained, amended, or canceled its determination that the debt is past-
due and legally enforceable.



Sec.  19.6  Departmental determination.

    (a) Following review of the evidence, DOC will issue a written 
decision which will include the supporting rationale for the decision.
    (b) If DOC either sustains or amends its determination, it shall 
notify the debtor of its intent to refer the debt to the IRS for offset 
against the debtor's Federal income tax refund. If DOC cancels its 
original determination, the debt will not be referred to the IRS.



Sec.  19.7  Stay of offset.

    If the debtor timely notifies the DOC that he or she is exercising 
the right described in Sec.  19.5(a) and timely submits evidence in 
accordance with Sec.  19.5(b), any notice to the IRS will be stayed 
until the issuance of a written decision which sustains or amends the 
DOC's original determination.



PART 20_NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR ACTIVITIES 
RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                            Subpart A_General

Sec.
20.1 The purpose of DOC's age discrimination regulations.
20.2 Programs to which these regulations apply.
20.3 Definitions.

         Subpart B_Standards for Determining Age Discrimination

20.4 Rules against age discrimination.
20.5 Exceptions to the rules.
20.6 Burden of proof.

              Subpart C_Responsibilities of DOC Recipients

20.7 General responsibilities.
20.8 Notice to subrecipients.
20.9 Information requirements.

    Subpart D_Investigation, Conciliation, and Enforcement Procedures

20.10 Compliance reviews.
20.11 Complaints.
20.12 Mediation.
20.13 Investigation.
20.14 Prohibition against intimidation or retaliation.
20.15 Compliance procedure.
20.16 Hearings, decisions, post-termination proceedings.
20.17 Remedial action by recipients.
20.18 Alternative funds disbursal procedure.
20.19 Private lawsuits after exhaustion of administrative remedies.

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
sec. 6101 et seq. and the government-wide regulations implementing the 
Act, 45 CFR Part 90.

[[Page 191]]


    Source: 51 FR 28926, Aug. 13, 1986, unless otherwise noted.



                            Subpart A_General



Sec.  20.1  The purpose of DOC's age discrimination regulations.

    The purpose of these regulations is to set out DOC's policies and 
procedures under the Age Discrimination Act of 1975 and the general age 
discrimination regulations at 45 CFR Part 90. The Act and the general 
regulations prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act and the 
general regulations permit federally assisted programs and activities, 
and recipients of Federal funds, to continue to use age distinctions and 
factors other than age which meet the requirements of the Act and its 
implementing regulations.



Sec.  20.2  Programs to which these regulations apply.

    (a) The Act and these regulations apply to each DOC recipient and to 
each program or activity operated by the recipient which receives or 
benefits from Federal financial assistance provided by any entity of 
DOC.
    (b) The Act and these regulations do not apply to:
    (1) An age distinction contained in that part of a Federal, State, 
or local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice or any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program, except for any program or activity receiving Federal 
financial assistance for public service employment.



Sec.  20.3  Definitions.

    As used in these regulations, the following terms are defined as 
follows:
    (a) Act means the Age Discrimination Act of 1975, as amended (Title 
III of Pub. L. 94-135).
    (b) Action means any act, activity, policy, rule, standard, or 
method of administration; or the use of any policy, rule, standard, or 
method of administration.
    (c) Age means how old a person is, or the number of years from the 
date of a person's birth.
    (d) Age distinction means any action using age or an age-related 
term.
    (e) Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example: ``children,'' ``adult,'' 
``older persons,'' but not ``student'').
    (f) Agency means a Federal department or agency that is empowered to 
extend financial assistance.
    (g) DOC means the U.S. Department of Commerce.
    (h) Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
the agency provides or otherwise makes available assistance in the form 
of:
    (1) Funds; or
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced considerations; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its fair market value is not returned to the Federal 
Government.
    (i) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (j) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political sub-division, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended, directly or 
through another recipient. Recipient includes any successor, assignee, 
or transferee, but excludes the ultimate beneficiary of the assistance.
    (k) Secretary means the Secretary of Commerce or his or her 
designee.

[[Page 192]]

    (l) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute, or local statute 
or ordinance adopted by an elected, general purpose legislative body.
    (m) Subrecipient means any of the entities in the definition of 
``recipient'' to which a recipient extends or passes on Federal 
financial assistance. A subrecipient is generally regarded as a 
recipient of Federal financial assistance and has all the duties of a 
recipient in these regulations.
    (n) United States means the fifty States, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Canal Zone, the Northern Marianas, and the territories and possessions 
of the United States.



         Subpart B_Standards for Determining Age Discrimination



Sec.  20.4  Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec.  20.5.
    (a) General rule: No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under any program or activity receiving 
Federal financial assistance.
    (b) Specific rules: A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual 
licensing, or other arrangements, use age distinctions or take any other 
actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance, or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (c) The specific forms of age discrimination listed in paragaph (b) 
of this section do not necessarily constitute a complete list.
    (d) If a recipient operating a program provides special benefits to 
the elderly or to children, such use of age distinctions shall be 
presumed to be necessary to the normal operation of the program, 
notwithstanding the provisions of Sec.  20.5.



Sec.  20.5  Exceptions to the rules.

    (a) Normal operations or statutory objective of any program or 
activity. A recipient is permitted to take an action otherwise 
prohibited by Sec.  20.4 if the action reasonably considers age as a 
factor necessary to the normal operation or the achievement of any 
statutory objective of a program or activity. An action meets this 
standard if:
    (1) Age is used as a measure or approximation of one or more other 
characteristics; and
    (2) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective or the program or activity; and
    (3) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (4) The other characteristic(s) are impractical to measure directly 
on an individual bases.
    (b) Reasonable factors other than age. A recipient is permitted to 
take an action otherwise prohibited by Sec.  20.4 which is based on a 
factor other than age, even though that action may have a 
disproportionate effect on persons of different ages. An action may be 
based on a factor other than age only if the factor bears a direct and 
substantial relationship to the normal operation of the program or 
activity or to the achievement of a statutory objective.



Sec.  20.6  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec.  20.5 is on the recipient of 
Federal financial assistance.

[[Page 193]]



              Subpart C_Responsibilities of DOC Recipients



Sec.  20.7  General responsibilities.

    Each DOC recipient has primary responsibility to ensure that its 
programs and activities are in compliance with the Act, the general 
regulations, and these regulations, and shall take steps to eliminate 
violation of the Act.
    (a) Each DOC recipient will provide an assurance that the program 
for which it is receiving Federal financial assistance will be conducted 
in compliance with all requirements for the Act and these and other DOC 
regulations. A recipient also has responsibility to maintain records, 
provide information, and to afford DOC reasonable access to its records 
and facilities to the extent necessary to determine whether it is in 
compliance with the Act and these regulations.
    (b) Recipient assessment of age distinctions. (1) To assess the 
recipient's compliance with the Act, DOC may, as part of a compliance 
review under Sec.  20.10 or a complaint investigation under Sec.  20.11, 
require a recipient employing the equivalent or 15 or more employees, to 
complete, in a manner specified by the responsible Department official, 
a written self-evaluation of any age distinction imposed in its program 
or activity receiving Federal financial assistance from DOC.
    (2) Whenever an assessment indicates a violation of the Act and the 
DOC regulations, the recipient shall take corrective action.



Sec.  20.8  Notice to subrecipients.

    Where a recipient passes on Federal financial assistant from DOC to 
subrecipients, the recipient shall give subrecipients written notice of 
their obligations under the Act and these regulations.



Sec.  20.9  Information requirements.

    Upon DOC's request, each recipient shall provide access and make 
information available for DOC to determine whether the recipient is 
complying with the Act and these regulations.



    Subpart D_Investigation, Conciliation, and Enforcement Procedures



Sec.  20.10  Compliance reviews.

    (a) DOC may conduct compliance reviews and pre-award reviews or use 
other similar procedures that will permit it to investigate and correct 
violations of the Act and these regulations. DOC may conduct such review 
even in the absence of a complaint against a recipient. The review may 
be as comprehensive as necessary to determine whether a violation of the 
Act and these regulations has occurred.
    (b) If a compliance review of pre-award review indicates a violation 
of the Act or these regulations, DOC will attempt to achieve voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, DOC 
will arrange for enforcement as described in Sec.  20.15.



Sec.  20.11  Complaints.

    (a) Any person, individually, or as a member of a class, or on 
behalf of others, may file a complaint with DOC alleging discrimination 
prohibited by the Act or these regulations based on an action occurring 
on or after July 1, 1979. A complainant shall file a complaint within 
180 days from the date the complainant first had knowledge of the 
alleged act of discrimination. However, for good cause shown, DOC may 
extend this time limit.
    (b) DOC will attempt to facilitate the filing of complaints wherever 
possible, including taking the following measures:
    (1) Accepting as a sufficient complaint, any written statement 
which: identifies the parties involved and the date the complainant 
first had knowledge of the alleged violation; describes generally the 
action or practice complained of; and is signed by the complainant;
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint;
    (3) Considering as the filing date, the date on which a complaint is 
sufficient to be processed;

[[Page 194]]

    (4) Notifiying the complainant and the recipient of their rights and 
obligations under the compliant procedure, including the right to have a 
representative at all stages of the process;
    (5) Notifying the complainant and the recipient (or their 
representatives) of their right to contact DOC for information and 
assistance regarding the complaint resolution process.
    (c) DOC will return to the complainant any complaint outside the 
jurisdiction of these regulations, and will state the reason(s) why it 
is outside the jurisdiction of these regulations.



Sec.  20.12  Mediation.

    (a) DOC will refer to a mediation service designated by the 
Secretary all sufficient complaints that:
    (1) Fall within the jurisdiction of the Act and these regulations, 
unless the age distinction complained of is clearly within an exception; 
and
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or to 
make an informed judgment that an agreement is not possible.
    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and the recipient sign it. The mediator shall send a copy of 
the agreement to DOC. DOC will take no further action on the complaint 
unless the complainant or the recipient fails to comply with the 
agreement.
    (d) The mediator is required to protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained, in the course of the 
mediation process without prior approval of the head or the mediation 
service.
    (e) The mediation will proceed for a maximum of 60 days after a 
complaint is filed with DOC. Mediation ends if:
    (1) 60 days elapse from the time DOC receives the complaint; or
    (2) Prior to the end of that 60-day period, an agreement is reached; 
or
    (3) Prior to the end of that 60-day period, the mediator determines 
that an agreement cannot be reached.
    (f) The mediator shall return unresolved complaints to DOC.



Sec.  20.13  Investigation.

    (a) Informal investigation:
    (1) DOC will investigate complaints that are unresolved after 
mediation or are reopended because of a violation of a mediation 
agreement.
    (2) As part of the initial investigation, DOC will use informal 
factfinding methods, including joint or separate discussions with the 
complainant and recipient, to establish the facts and, if possible, 
settle the complaint on terms that are mutually agreeable to the 
parties. DOC may seek the assistance of any involved State program 
agency.
    (3) DOC will put any agreement in writing and have it signed by the 
parties and an authorized offical at DOC.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of DOC, including compliance reviews and 
investigation or other complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation: If DOC cannot resolve the complaint 
through informal investigation, it will begin to develop formal findings 
through further investigation of the complaint. If the investigation 
indicates a violation of these regulations, DOC will attempt to obtain 
voluntary compliance. If DOC cannot obtain voluntary compliance, it will 
begin enforcement as described in Sec.  8a.15.



Sec.  20.14  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or these 
regulations; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of DOC's investigation, conciliation, and enforcement process.

[[Page 195]]



Sec.  20.15  Compliance procedure.

    (a) DOC may enforce the Act and these regulations by:
    (1) Terminating the Federal financial assistance to the recipient 
under the program or activity found to have violated the Act or these 
regulations. The determination of the recipient's violation may be made 
only after a recipient has had an opportunity for a hearing on the 
record before an administrative law judge. If a case is settled during 
mediation, or prior to hearing, Federal financial assistance to the 
program will not be terminated.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or these regulations.
    (ii) Use of any requirement of or referral to any Federal, State, or 
local government agency that will have the effect of correcting a 
violation of the Act or these regulations.
    (b) DOC will limit any termination under this section to the 
particular recipient and particular program or activity or part of such 
program and activity DOC finds in violation of these regulations. DOC 
will not base any part of a termination on a finding with respect to any 
program or activity of the recipient which does not receive Federal 
financial assistance from DOC.
    (c) DOC will take no action under paragraph (a) until:
    (1) The head of the organization providing the financial assistance 
has advised the recipient of its failure to comply with the Act and 
these regulations and has determined that voluntary compliance cannot be 
obtained.
    (2) Thirty days have elapsed after the Secretary has sent a written 
report of the circumstances and grounds of the action to the committees 
of the Congress having legislative jurisdiction over the Federal program 
or activity involved. The Secretary will file a report whenever any 
action is taken under paragraph (a).
    (d) DOC also may defer granting new Federal financial assistance to 
a recipient when a hearing under Sec.  20.16 is initiated.
    (1) New Federal financial assistance from DOC includes all 
assistance for which DOC requires an application or approval, including 
renewal or continuation of existing activities, or authorization of new 
activities, during the deferral period. New Federal financial assistance 
from DOC does not include increases in funding as a result of changed 
computation of formula awards or assistance approved prior to the 
beginning of a hearing under Sec.  20.16.
    (2) DOC will not begin a deferral until the recipient has received a 
notice of an opportunity for a hearing under Sec.  20.16. DOC will not 
continue a deferral for more than 60 days unless a hearing has begun 
within that time, or the time for beginning the hearing has been 
extended by mutual consent of the recipient and the head of the 
organization providing Federal financial assistance. DOC will not 
continue a deferral for more than 30 days after the close of the 
hearing, unless the hearing results in a finding against the recipient.
    (3) DOC will limit any deferral to the particular recipient and 
particular program or activity or part of such program or activity DOC 
finds in violation of these regulations. DOC will not base any part of a 
deferral on a finding with respect to any program or activity of the 
recipient which does not, and would not in connection with the new 
funds, receive Federal financial assistance for DOC.



Sec.  20.16  Hearings, decisions, post-termination proceedings.

    Certain DOC procedural provisions applicable to Title VI of the 
Civil Rights Act of 1964 apply to DOC enforcement of these regulations. 
They are found in 15 CFR Part 8, Sec.  8.12 and Sec.  8.13.



Sec.  20.17  Remedial action by recipients.

    (a) Where DOC finds that a recipient has discriminated on the basis 
of age, the recipient shall take any remedial action that DOC may 
require to overcome the effects of the discrimination. If another 
recipient exercises control over the recipient that has discriminated, 
DOC may require both recipients to take remedial action.

[[Page 196]]

    (b) Even in the absence of a finding of discrimination, a recipient 
may take affirmative action to overcome the effects of conditions that 
resulted in limited participation in the recipient's program or activity 
on the basis of age.



Sec.  20.18  Alternative funds disbursal procedure.

    (a) When, under the provisions of these regulations, DOC terminates 
the funding of a recipient, the Secretary may, using undisbursed funds 
from the terminated award, make a new award to an alternate recipient, 
i.e. any public or non-profit private organization or agency, or State 
or political subdivision of the State.
    (b) The Secretary will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the program or activity.



Sec.  20.19  Private lawsuits after exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and DOC has made no finding with regard to the complaint; or
    (2) DOC issues any finding in favor of the recipient.
    (b) If DOC fails to make a finding within 180 days or issues a 
finding in favor of recipient, DOC shall:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring civil action 
for injunctive relief; and
    (3) Inform the complainant that:
    (i) The complainant may bring a civil action only in a United States 
district court for the district in which the recipient is located or 
transacts business;
    (ii) A complainant prevailing in a civil action has the right to be 
awarded the costs of the action, including reasonable attorney's fees, 
but that the complainant must demand these costs in the complaint;
    (iii) Before commencing the action, the complainant shall give 30 
days notice by registered mail to the Secretary, the Attorney General of 
the United States, and the recipient;
    (iv) The notice shall contain the alleged violation of the Act, the 
relief requested, the court in which the complainant is bringing the 
action, and whether or not attorney's fees are demanded in the event the 
complainant prevails; and
    (v) The complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court of the United States.



PART 21_ADMINISTRATIVE OFFSET--Table of Contents




Sec.
21.1 Definitions.
21.2 Purpose and scope.
21.3 Department responsibilities.
21.4 Notification requirements before offset.
21.5 Exceptions to notification requirements.
21.6 Written agreement to repay debt.
21.7 Review of Department records related to the debt.
21.8 Review within the Department of a determination of indebtedness.
21.9 Types of reviews.
21.10 Review procedures.
21.11 Determination of indebtedness.
21.12 Coordinating administrative offset within the Department and with 
          other Federal agencies.
21.13 Procedures for administrative offset: single debts.
21.14 Procedures for administrative offset: multiple debts.
21.15 Administrative offset against amounts payable from Civil Service 
          Retirement and Disability Fund.
21.16 Collection against a judgment.
21.17 Liquidation of collateral.
21.18 Collection in installments.
21.19 Additional administrative collection action.

    Authority: 31 U.S.C. 3716; 4 CFR Part 102.

    Source: 51 FR 47005, Dec. 30, 1986, unless otherwise noted.



Sec.  21.1  Definitions.

    For purposes of this subpart:
    (a) The term administrative offset means satisfying a debt by 
withholding of money payable by the Department to, or held by the 
Department on behalf of a person, to satisfy a debt owed the Federal 
Government by that person.

[[Page 197]]

    (b) The term person includes individuals, businesses, organizations 
and other entities, but does not include any agency of the United 
States, or any State or local government.
    (c) The terms claim and debt are deemed synonymous and 
interchangeable. They refer to an amount of money or property which has 
been determined by an appropriate agency official to be owed to the 
United States from any person, organization, or entity, except another 
Federal agency, a State or local government, or Indian Tribal 
Government.
    (d) Agency means:
    (1) An Executive department, military department, Government 
corporation, or independent establishment as defined in 5 U.S.C. 101, 
102, 103, or 104, respectively.
    (2) The United States Postal Service; or
    (3) The Postal Rate Commission.
    (e) Debtor means the same as ``person.''
    (f) Department means the Department of Commerce.
    (g) Secretary means the Secretary of the Department of Commerce.
    (h) Assistant Secretary for Administration means the Assistant 
Secretary for Administration of the Department of Commerce.
    (i) United States includes an ``agency'' of the United States.
    (j) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by a person to the United States.
    (k) Departmental unit means an individual operating or 
administrative component within the Department of Commerce.
    (l) Departmental unit head means the head of an individual operating 
or administrative component within the Department of Commerce 
responsible for debt collection.
    (m) Notice of Intent means a demand notice sent by the Department to 
the debtor indicating not only the amount due, but also the Department's 
intent to offset all or some of the amount due from other source(s) of 
Federal payment(s) that may be due the debtor.
    (n) Workout group means Departmental debt collection specialist(s) 
assigned to collection of a delinquent debt when the claim is 30 or more 
days past due.



Sec.  21.2  Purpose and scope.

    (a) The regulations in this subpart establish procedures to 
implement section 10 of the Debt Collection Act of 1982 (Pub. L. 97-
365), 31 U.S.C. 3716. Among other things, this statute authorizes the 
heads of each agency to collect a claim arising under an agency program 
by means of administrative offset, except that no claim may be collected 
by such means if outstanding for more than 10 years after the agency's 
right to collect the debt first accrued, unless facts material to the 
Government's right to collect the debt were not known and could not 
reasonably have been known by the official or officials of the 
Government who were charged with the responsibility to discover and 
collect such debts.
    (b) Unless otherwise provided for by statute, these regulations do 
not apply to an agency of the United States, a State government, or unit 
of general local government. In addition, these procedures do not apply 
to debts arising under the Internal Revenue Code (26 U.S.C. 1-9602), the 
Social Security Act (42 U.S.C. 301-1397f), the tariff laws of the United 
States; or to contracts covered by the Contract Dispute Act of 1978 (41 
U.S.C. 601-613).
    (c) The regulations cover debts owed to the United States from any 
person, organization or entity, including debts owed by current and 
former Department employee, or other Federal employees, while employed 
in one capacity or another by the Department of Commerce.
    (d) Debts or payments which are not subject to administrative offset 
under 31 U.S.C. 3716, unless otherwise provided for by contract or law, 
may be collected by administrative offset under the common law or other 
applicable statutory authority.
    (e) Departmental unit head (and designees) will use administrative 
offset to collect delinquent claims which are certain in amount in every 
instance and which collection is determined to be feasible and not 
prohibited by law.

[[Page 198]]



Sec.  21.3  Department responsibilities.

    (a) Each Departmental unit which has delinquent debts owed under its 
program is responsible for collecting its claims by means of 
administrative offset when appropriate and best suited to further and 
protect all the Government's interests.
    (b) The Departmental unit head (or designee) will determine the 
feasibility and cost effectiveness of collection by administrative 
offset on a case-by-case basis, exercising sound discretion in pursuing 
such offsets, and will consider the following:
    (1) The debtor's financial condition;
    (2) Whether offset would substantially interfere with or defeat the 
purposes of the Federal program authorizing the payments against which 
offset is comtemplated; and
    (3) Whether offset best serves to further and protect all of the 
interests of the United States.
    (c) Before advising the debtor that the delinquent debt will be 
subject to administrative offset, the Departmental unit workout group 
shall review the claim and determine that the debt is valid and overdue. 
In the case where a debt arises under the programs of two or more 
Department of Commerce units, or in such other instances as the 
Assistant Secretary for Administration or his/her designee may deem 
appropriate, the Assistant Secretary, or his or her designee, may 
determine which Departmental unit workout group or official(s) shall 
have responsibility for carrying out the provisions of this subpart.
    (d) Administrative offset shall be considered by Department units 
only after attempting to collect a claim under section 3(a) of the 
Federal Claims Collection Act of 1966, as amended; except that no claim 
under this Act that has been outstanding for more than 10 years after 
the debt first accrued may be collected by means of administrative 
offset, unless facts, material to the right to collect the debt, were 
not known and could not reasonably have been known by the official of 
the Department who was charged with the responsibility to discover and 
collect such debts. When the debt first accrued should be determined 
according to existing laws regarding the accrual of debts, such as under 
28 U.S.C. 2415.



Sec.  21.4  Notification requirements before offset.

    A debt is considered delinquent by the Department if it is not paid 
within 15 days of the due date, or if there is no due date, within 30 
days of the billing date.
    (a) The Departmental unit head (and designees) responsible for 
carrying out the provisions of this subpart with respect to the debt 
shall ensure that appropriate written demands are sent to the debtor in 
terms which inform the debtor of the consequences of failure to 
cooperate in payment of the debt. The first demand letter should be sent 
within ten (10) days after the date the debt becomes delinquent. A total 
of three progressively stronger written demand letters, at not more than 
30 calendar day intervals, will normally be made unless (1) a response 
to the first or second demand indicates that a further demand would be 
futile; (2) the debtor's response does not require any or immediate 
rebuttal; and/or (3) the bureau determines to pursue offset under the 
procedures specified in 4 CFR 102.3, Collection by Administrative 
Offset. In determining the timing of the demand letters, Departmental 
unit heads should give due regard to the need to act promptly; so as a 
general rule, if it is necessary to refer the debt to the Department of 
Justice for action, such referral can be made within one year of the 
final determination of the facts and the amount of the debt. When 
Departmental unit heads (and designees) deem it appropriate to protect 
the Government's interests (for example, to prevent the statute of 
limitations, 28 U.S.C. 2415, from expiring), written demand for payment 
may be preceded by other appropriate collection actions (also see Sec.  
21.10(c)).
    (b) The Department official responsible for collection of the debt 
(generally an accounting or finance officer) shall ensure that an 
initial written demand notice is sent to the debtor, informing such 
debtor of:
    (1) The amount and basis for the indebtedness and whatever rights 
the debtor may have to seek review within the Department;

[[Page 199]]

    (2) The applicable standards for assessing interest, penalties, and 
administrative costs (4 CFR 102.13);
    (3) That the debtor has a right to inspect and copy Department 
records related to the debt, as determined by responsible Departmental 
official(s), and that such request to inspect and copy must be 
postmarked or received by the Department no later than 30 days after the 
date of the (first) demand letter;
    (4) The name, mailing address, and telephone number of the 
Department workout group employee who can provide a full explanation of 
the claim and answer all related questions, as well as explain 
procedures to the debtor for inspecting and copying records related to 
the debt.
    (c) The responsible Department officials shall exercise due care to 
insure that demand letters are mailed or hand delivered on the same day 
that they are actually dated. If evidence suggests that the debtor is no 
longer located at the address of record, reasonable action shall be 
taken by the Departmental unit workout group to obtain a current 
address, including skip-trace assistance from the Internal Revenue 
Service and/or private sector credit reporting bureaus.
    (d) Where applicable, the Departmental unit workout group must 
inform the debtor in a second demand letter, (Notice of Intent) of:
    (1) The nature and amount of the debt;
    (2) That the Department intends to collect the debt by 
administrative offset until the debt and all accumulated interest and 
other charges are paid in full;
    (3) That the debtor has a right to obtain review within the 
Department of the initial determination of indebtedness, and that such 
request to have a review of the basis of indebtedness must be postmarked 
or received by the Department no later than 30 days after the date of 
the second demand letter (Notice of Intent); and
    (4) That the debtor may enter into a written agreement with the 
responsible Department official(s) to repay the debt if such a request 
is made and received by the Department no later than 30 days after the 
date of the second demand letter (Notice of Intent).

If the sum of the proposed offset does not fully cover the amount of the 
debt owed, the Departmental unit workout group shall also include in 
this second demand letter (Notice of Intent) the notice provisions to 
debtors required by the Debt Collection Act of 1982, and other 
regulations of the Department, pertaining to disclosure of the 
delinquent debt to credit reporting agencies, referral to private 
collection agencies, salary offset, possible Internal Revenue Service 
offset of tax refunds, and referral of the debt to the Justice 
Department for action to the extent inclusion of such is appropriate and 
practical.
    (5) That if payment or a request for review is not received within 
the 30-day period, the offset process will be initiated.



Sec.  21.5  Exceptions to notification requirements.

    (a) In cases where the notice specified in Sec.  21.4 has previously 
been provided to the debtor in connection with the same debt under some 
other proceeding, such as a final audit resolution determination, the 
Department is not required to duplicate those requirements before 
effecting administrative offset.
    (b) If the time before payment is to be made to the debtor does not 
reasonably permit the completion of the procedures specified in Sec.  
21.4, and failure to take offset would substantially prejudice the 
Government's ability to collect the debt, then administrative offset 
action will be taken without notification. The offset will be promptly 
followed by the completion of the procedures specified in Sec.  21.4 
(also see Sec.  21.10(c)).



Sec.  21.6  Written agreement to repay debt.

    (a) A debtor will be provided with an opportunity to enter into a 
written agreement with the responsible Departmental official(s) to repay 
the debt owed if the following conditions are met and if specific 
conditions exist that limit his or her ability to immediately repay the 
debt.
    (1) Notification by debtor. The debtor may, in response to the first 
written demand or Notice of Intent, propose a written agreement for 
delayed lump

[[Page 200]]

sum or installment payments to repay the debt as an alternative to 
administrative offset. Any debtor who wishes to do this must submit a 
proposed written agreement signed by the debtor to repay the debt, 
including interest, penalties, and administrative costs determined by 
the Department as due. This proposed written agreement must be received 
by the workout group individual specified in Sec.  21.4(b)(4) within 60 
calendar days of the date of the Department's initial written demand 
letter, or if in response to the Notice of Intent, within 30 calendar 
days of the date of the Department's Notice of Intent.
    (2) Department response. In response to timely notification by the 
debtor as described in paragraph (a)(1) of this section, the 
Departmental unit head (or designee) will notify the debtor within 30 
calendar days whether the debtor's proposed written agreement for 
repayment is acceptable. It is within the discretion of the Departmental 
unit head (or designee) to accept a repayment agreement instead of 
proceeding by offset. However, if the debt is delinquent and the debtor 
has not disputed its existence or amount, the Departmental unit head (or 
designee) should accept a repayment agreement instead of offset only if 
the debtor is able to establish that offset would result in undue 
financial hardship or would be against equity and good conscience. 
Before accepting a repayment agreement, the Departmental unit head (or 
designee) will also consider factors such as the financial statements 
provided by the debtor, the amount of the debt, the length of the 
proposed repayment period (generally not to exceed 3 years), whether the 
debtor is willing to sign a confess-judgment note or give collateral, 
and past dealings with the debtor. In making this determination, the 
Departmental unit head (or designee) will balance the Department's 
interest in collecting the debt against the financial hardship to the 
debtor (see Sec.  21.18). A Departmental unit head (or designee) may 
deem a repayment plan to be abrogated if the debtor should, after the 
repayment plan is signed, fail to comply with the terms of the plan.
    (b) [Reserved]



Sec.  21.7  Review of Department records related to the debt.

    (a) Notification by debtor. A debtor who intends to inspect or copy 
Department records related to the debt must send a letter to the 
Departmental unit workout group employee specified in Sec.  21.4(b)(4) 
stating his or her intentions. The letter must be postmarked or received 
by the Department within 30 calendar days of the date of the 
Department's first demand letter.
    (b) Department response. In response to timely notification by the 
debtor as described in paragraph (a) of this section, the Departmental 
unit workout group will notify the debtor within 10 days of the request 
of the location and time when the debtor may inspect or copy agency 
records related to the debt, as well as provide the debtor with the name 
and telephone number of the contact person who may provide assistance to 
the debtor for ensuring that copies are made of all appropriate 
documents related to the debt. The debtor may also request that such 
records be copied and mailed. The responsible Department official(s) 
will provide access to records within 15 days from the date of the 
debtor's request for access, or mail the records to the debtor within 
such time period. Mailing of records by Departmental official(s) will be 
by certified or registered mail. The debtor will have 25 days from the 
date of access or 30 days from the date the records were mailed, to 
review the records and pay the debt or to petition the Department of a 
review of the determination of indebtedness.



Sec.  21.8  Review within the Department of a determination of indebtedness.

    (a) Notification by debtor. A debtor who receives an initial demand 
for payment under the procedures, or a Notice of Intent (see Sec.  
21.4(d)), has the right to request Department review of the 
determination of indebtedness. To exercises this right, the debtor must 
send a letter requesting review to the Departmental unit workout group 
individual identified in Sec.  21.4(b)(4). The letter must explain why 
the debtor seeks review and must be postmarked within 60 calendar days 
of the date of the first demand letter, (or 30 days from the Notice of 
Intent), or if a request has been

[[Page 201]]

made by the debtor to copy or have relevant records mailed, within the 
calendar-day time period provided in Sec.  21.7(b), above.
    (b) Department response. In response to a timely request for review 
of the initial determination of indebtedness, the Departmental unit head 
(or designee) will notify the debtor whether review will be by (1) oral 
hearing, or (2) by administrative review of the record. The notice to 
the debtor will include the procedures (see Sec.  21.11) used by 
Departmental officials for administrative review of the record, or will 
include information on the date, location and procedures to be used if 
review is by an oral hearing.



Sec.  21.9  Types of reviews.

    The Department will provide the debtor with an opportunity for an 
oral hearing, or an administrative review of the documentation relating 
to the debt, under the following conditions.
    (a) Oral hearing. The Departmental unit head (or designee) will 
provide the debtor with a reasonable opportunity for hearing if:
    (1) An applicable statute authorizes or requires the Department to 
consider waiver of the indebtedness, the debtor requests waiver of the 
indebtedness involved, and the waiver determination turns on credibility 
or veracity; or
    (2) The debtor requests reconsideration of the debt and the 
Departmental unit head (or designee) determines that the question of the 
indebtedness cannot be resolved by review of the documentary evidence.

An oral hearing need not be a formal (evidentiary type) hearing. 
However, hearing officials should carefully document all significant 
matters discussed at the hearing.
    (b) Administrative review of written record. Unless the Departmental 
unit head (or designee) determines that an oral hearing is required (see 
paragraph (a) of this section), the unit head (or designee) will provide 
for a review of the written record(s) (a review of the documentary 
evidence related to the debt, in the form of a ``paper hearing'').



Sec.  21.10  Review procedures.

    (a) The oral hearing will be conducted as follows:
    (1) The hearing official will take necessary steps to ensure that 
the hearing is conducted in a fair and expeditious manner. If necessary, 
the hearing officer may administer oaths of affirmation.
    (2) The hearing official need not use the formal rules of evidence 
with regard to admissibility of evidence or the use of evidence once 
admitted. However, parties may object to clearly irrelevant material.
    (3) The hearing official will record all significant matters 
discussed at the hearing. There will be no ``official'' record or 
transcript provided for these hearings.
    (4) A debtor may represent himself or herself or may be represented 
by an attorney or other person. The Department will be represented by 
the General Counsel or his designee.
    (5) The General Counsel (or designee) will proceed first by 
presenting evidence on the relevant issues. The debtor then presents his 
or her evidence regarding these issues. The General Counsel then may 
offer evidence to rebut or clarify the evidence introduced by the 
debtor.
    (b) Administrative review of the record: The Departmental unit head 
(or designee) will designate an official of the Department as hearing 
official who will review administrative determinations of indebtedness 
which are not reviewable under criteria provided in Sec.  21.9(a) for 
justifying an oral hearing. The hearing official will review all 
material related to the debt which is in the possession of the 
Department. The hearing official will make a determination based upon a 
review of this written record, which may include a request for 
reconsideration of the determination of indebtedness, or such other 
relevant material submitted by the debtor.
    (c) The Department may effect an administrative offset against a 
payment to be made to a debtor prior to the completion of any of the due 
process procedures required by this section, if failure to take the 
offset would substantially prejudice the Department's ability to collect 
the debt. For example, if the time before the payment is to be made to 
the debtor by another Federal department or agency would

[[Page 202]]

not reasonably permit the completion of due process procedures, the 
offset may be accomplished by the Department. Such offset prior to 
completion of due process review hearing will be promptly followed by 
the completion of review and decision by the hearing official on the 
validity of the debt. Amounts recovered by offset in these instances, 
but later found not owed to the agency, will be promptly refunded.



Sec.  21.11  Determination of indebtedness.

    (a) Following the hearing or the review of the record, the hearing 
official will issue a written decision which includes the supporting 
rationale for the decision. The decision of the hearing official is the 
Department unit's final action with regard to the particular 
administrative offset.
    (b) Copies of the hearing official's decision will be distributed to 
the General Counsel (or designee) for the Department, the Director of 
the Department's Office of Finance and Federal Assistance, the 
appropriate Departmental unit accounting/finance officer, the debtor and 
the debtor's attorney or other representative, if applicable.
    (c) If appropriate, this decision shall inform the debtor of the 
scheduled date on or after which administrative offset will begin. The 
decision shall also, if appropriate, indicate any changes in the 
information to the extent such information differs from that provided in 
the initial notification under Sec.  21.4.



Sec.  21.12  Coordinating administrative offset within the Department and 
with other Federal agencies.

    Departmental units will cooperate with other Federal departments and 
agencies in effecting collection by administrative offset. Whenever 
possible, Departmental units should comply with requests from within the 
Department and from other Federal agencies to initiate administrative 
offset procedures to collect debts owed the United States, unless the 
requesting office or agency has not complied with the Federal Claims 
Collections Standards, or the agency's implementing regulations, or the 
request would otherwise be contrary to law or the best interests of the 
United States.
    (a) When the Department is owed the debt. When the Department is 
owed a debt, but another Federal agency is responsible for making the 
payment to the debtor against which administrative offset is sought, the 
other agency will not initiate the requested administrative offset until 
the Department provides responsible officials at that agency with a 
written certification that the debtor owes the Department a debt 
(including the amount and basis for the debt and the due date of the 
payment) and that the Department has complied with the applicable 
provisions of Part 102, ``Standards for the Administrative Collection of 
Claims,'' of the Federal Claims Collection Standards, as well as the 
Department's implementing regulations on administrative offsets.
    (b) When another agency is owed the debt. The Department may 
administratively offset money it owes to a person who is indebted to 
another agency if requested to do so by that agency. Such a request must 
be accompanied by a certification by the requesting agency that the 
person owes the debt (including the amount and basis for the debt) and 
that the creditor agency has complied with the applicable Federal Claims 
Collection Standards, as well as the agency implementing regulations on 
administrative offsets. The request from another Federal agency for 
Department cooperation in the offset should be sent to:

Director, Office of Finance and Federal Assistance, Room 6827, Herbert 
C. Hoover Building, Washington, DC 20230



Sec.  21.13  Procedures for administrative offset: single debts.

    (a) Administrative offset will commence 31 days after the date of 
the Notice of Intent, unless the debtor has requested a hearing (see 
Sec.  21.8) or has entered into a repayment agreement (see Sec.  21.6).
    (b) When there is review of the debt within the Department, 
administrative offset will begin after the hearing officer's 
determination has been issued under Sec.  21.11 and a copy of the 
determination is received by the Departmental unit's accounting or 
finance office, except for the provision provided in Sec.  21.10(c) when 
immediate action is

[[Page 203]]

determined necessary to ensure the Department's position in collection 
of the delinquent debt.



Sec.  21.14  Procedures for administrative offset: multiple debts.

    The Departmental units will follow the procedures identified in 
(Sec.  21.13) for the administrative offset of a single debt. However, 
when collecting multiple debts by administrative offset, responsible 
Departmental officials should apply the recovered amounts to those debts 
in accordance with the best interests of the United States, as 
determined by the facts and circumstances of the particular case, paying 
special attention to applicable statutes of limitations.



Sec.  21.15  Administrative offset against amounts payable from Civil 
Service Retirement and Disability Fund.

    (a) Unless otherwise prohibited by law, the Department may request 
that monies which are due and payable to a debtor from the Civil Service 
Retirement and Disability Fund be administratively offset in reasonable 
amounts in order to collect debts owed to the United States by the 
debtor. Such requests shall be made by the Departmental unit workout 
officials to the appropriate officials of the Office of Personnel 
Management (OPM) in accordance with their regulations and procedures.
    (b) When making a request for administrative offset under paragraph 
(a) of the section, the responsible workout group debt collection 
official shall include a written certification that:
    (1) The debtor owes the United States a debt, including the amount 
and basis for the debt;
    (2) The Department has complied with all applicable statutes, 
regulations, and procedures of the Office of Personnel Management; and
    (3) The Department has complied with the requirements of the 
applicable provisions of the Federal Claims Collection Standards and 
these regulations, including any required hearing or review.
    (c) If a Departmental unit workout group decides to request 
administrative offset under paragraph (a) of this section, the 
responsible debt collection official should make the request as soon as 
practical after completion of the applicable due process procedures so 
the Office of Personnel Management may identify and ``flag'' the 
debtor's account in anticipation of the time when the debtor becomes 
eligible and requests to receive payments from the fund. This will 
satisfy any requirement that offset be initiated prior to expiration of 
the applicable statute of limitations. At such time as the debtor makes 
a claim for payments from the fund, and if at least a year has elapsed 
since the administrative offset request was originally made, the debtor 
should be permitted to offer a satisfactory repayment plan in lieu of 
offset upon establishing to the appropriate Departmental unit head (or 
designee) that changed financial circumstances would render the offset 
unjust.
    (d) If the Department collects part or all of the debt by other 
means before deductions are made or completed under paragraph (a) of 
this section, the Department official responsible for collecting the 
debt will act promptly to modify or terminate the agency's request for 
administrative offset under paragraph (a) of this section.
    (e) In accordance with procedures established by the Office of 
Personnel Management, the Department may request an offset from the 
Civil Service Retirement and Disability Fund prior to completion of due 
process procedures.



Sec.  21.16  Collection against a judgment.

    Collection by administrative offset against a judgment obtained by a 
debtor against the United States shall be accomplished in accordance 
with 31 U.S.C. 3728.



Sec.  21.17  Liquidation of collateral.

    If the Department holds security or collateral which may be 
liquidated through the exercise of a power of sale in the security 
instrument, or a nonjudicial foreclosure, liquidation should be 
accomplished by such procedures if the debtor fails to pay the debt 
within a reasonable time after demand or pursuant to the contract of the 
parties, unless the cost of disposing of the collateral would be 
disproportionate to its value or special circumstances require

[[Page 204]]

judicial foreclosure. The Department collection official should provide 
the debtor with reasonable notice of the sale, an accounting of any 
surplus proceeds, and any other procedures required by contract or law. 
Collection from other sources, including liquidation of security or 
collateral, is not a prerequisite to requiring payment by a surety or 
insurance concern unless such action is expressly required by statute or 
contract.



Sec.  21.18  Collection in installments.

    (a) Whenever feasible, and unless otherwise provided by law, debts 
owed to the United States, together with interest, penalties, and 
administrative costs should be collected in one lump sum. This is true 
whether the debt is being collected by administrative offset or by 
another method, including voluntary payment. However, if the debtor is 
financially unable to pay the indebtedness in one lump sum, the 
responsible Departmental official(s) may accept repayment in regular 
installments (See Sec.  21.6). Prior to approving such repayments, 
financial statements shall be required from the debtor who represents 
that he/she is unable to pay the debt in one lump sum. A responsible 
Departmental official who agrees to accept payment in regular 
installments should obtain a legally enforceable written agreement from 
the debtor which specifies all of the terms of the arrangement and which 
contains a provision accelerating the debt in the event the debtor 
defaults. The size and frequency of installment payments should bear a 
reasonable relationship to the size of the debt and the debtor's ability 
to pay. If possible, the installment payments should be sufficient in 
size and frequency to liquidate the Government's claim in not more than 
three years. Installment payments of less than $50 per month should be 
accepted only if justifiable on the grounds of financial hardship or for 
some other reasonable cause. If the debt is an unsecured claim for 
administrative collection, attempts should be made to obtain an executed 
confess-judgment note, comparable to the Department of Justice Form USA-
70a, from a debtor when the total amount of the deferred installments 
will exceed $750. Such notes may be sought when an unsecured obligation 
of a lesser amount is involved. When attempting to obtain confess-
judgment notes, Departmental units should provide their debtors with 
written explanation of the consequences of signing the note, and should 
maintain documentation sufficient to demonstrate that the debtor has 
signed the note knowingly and voluntarily. Security for deferred 
payments other than a confess-judgment note may be accepted in 
appropriate cases. A Departmental units head (or designee) may accept 
installment payments notwithstanding the refusal of a debtor to execute 
a confess-judgment note or to give other security.
    (b) If the debtor owes more than one debt and designates how a 
voluntary installment payment is to be applied as among those debts, 
that designation must be followed. If the debtor does not designate the 
application of the payment, the Department debt collection official 
should apply payments to the various debts in accordance with the best 
interests of the United States, as determined by the facts and 
circumstances of the particular case, paying special attention to 
applicable statutes of limitations.



Sec.  21.19  Additional administrative collection action.

    Nothing contained in this subpart is intended to preclude the 
utilization of any other administrative remedy which may be available.



PART 22_SALARY OFFSET--Table of Contents




Sec.
22.1 Scope.
22.2 Definitions.
22.3 Pay subject to offset.
22.4 Determination of indebtedness.
22.5 Notice requirements before offset.
22.6 Request for hearing-prehearing submission(s).
22.7 Hearing procedures.
22.8 Written decision following a hearing.
22.9 Standards for determining extreme financial hardship.
22.10 Review of Departmental records related to the debt.
22.11 Coordinating offset with another Federal agency.
22.12 Procedures for salary offset--When deductions may begin.

[[Page 205]]

22.13 Procedures for salary offset--Types of collection.
22.14 Procedures for salary offset--Methods of collection.
22.15 Procedures for salary offset--Imposition of interest, penalties, 
          and administrative costs.
22.16 Non-waiver of rights.
22.17 Refunds.

    Authority: 5 U.S.C. 5514; 5 CFR 550.1104.

    Source: 52 FR 7, Jan. 2, 1987, unless otherwise noted.



Sec.  22.1  Scope.

    (a) These regulations provide Department procedures for collection 
by salary offset of a Federal employee's pay to satisfy certain debts 
owed the Government.
    (b) These regulations apply to collections by the Secretary from:
    (1) Federal employees who owe debts to the Department; and
    (2) Current employees of the Department who owe debts to other 
agencies.
    (c) These regulations do not apply to debts or claims arising under 
the Internal Revenue Code of 1954, as amended (26 U.S.C. 1 et seq.); the 
Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the 
United States; or to any case where collection of a debt by salary 
offset is explicitly provided for or prohibited by another statute 
(e.g., travel advances in 5 U.S.C. 5705 and employee training expenses 
in 5 U.S.C. 4108).
    (d) These regulations do not apply to any adjustment to pay arising 
out of an employee's election of coverage or a change in coverage under 
a Federal benefits program requiring periodic deductions from pay, if 
the amount to be recovered was accumulated over four pay periods or 
less.
    (e) Nothing in these regulations precludes the compromise, 
suspension, or termination of collection actions where appropriate.



Sec.  22.2  Definitions.

    (a) Agency means:
    (1) An Executive department, military department, Government 
corporation, or independent establishment as defined in 5 U.S.C. 101, 
102, 103, and 104, respectively;
    (2) The United States Postal Service;
    (3) The Postal Rate Commission;
    (4) An agency or court of the judicial branch; and
    (5) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives.
    (b) Creditor agency means the agency to which the debt is owed.
    (c) Days means calendar days.
    (d) Debt means:
    (1) An amount of money owed the United States from sources which 
include loans insured or guaranteed by the United States; from fees, 
leases, rents, royalties, services, sales of real or personal property, 
overpayments, penalties, damages, fines and forfeitures (except those 
arising under the Uniform Code of Military Justice);
    (2) An amount owed to the United States by an employee for pecuniary 
losses, including, but not limited to:
    (i) Theft, misuse, or loss of Government funds;
    (ii) False claims for services and travel;
    (iii) Illegal or unauthorized obligations and expenditures of 
Government appropriations;
    (iv) Authorization of the use of Government owned or leased 
equipment, facilities, supplies, and services for other than official or 
approved purposes;
    (v) Vehicle accidents where the employee is determined to be liable 
for the repair or replacement of a Government owned or leased vehicle; 
and
    (vi) Erroneous entries on accounting records or reports for actions 
for which the employee can be held liable.
    (e) Department or DOC means the United States Department of 
Commerce.
    (f) Disposable pay means the amount that remains from an employee's 
Federal pay after required deductions for Federal, State and local 
income taxes; Social Security taxes, including Medicare taxes; Federal 
retirement programs; premiums for basic life and health insurance 
benefits; and such other deductions that are required by law to be 
withheld.
    (g) Employee means:
    (1) A civilian employee as defined in 5 U.S.C. 2105;
    (2) A member of the Armed Forces or Reserves of the United States, 
or of a

[[Page 206]]

uniformed service, including a commissioned officer of the National 
Oceanic and Atmospheric Administration;
    (3) An employee of the United States Postal Service or the Postal 
Rate Commission;
    (4) An employee of an agency or court of the judicial branch; and
    (5) An employee of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives.
    (h) FCCS means the Federal Claims Collection Standards jointly 
published by the Department of Justice and the General Accounting Office 
at 4 CFR 101.1 et seq.
    (i) Offset means a deduction from the disposable pay of an employee 
to satisfy a debt with or without the employee's consent.
    (j) Pay means 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.
    (k) Paying agency means the agency employing the individual and 
authorizing his or her current pay.
    (l) Payroll office means the Departmental or other office providing 
payroll services to the employee.
    (m) Secretary means the Secretary of Commerce, or his/her designee.



Sec.  22.3  Pay subject to offset.

    (a) An offset from an employee's pay may not exceed 15 percent of 
the employee's disposable pay, unless the employee agrees in writing to 
a larger offset amount.
    (b) An offset from pay shall be made at the officially established 
pay intervals from the employee's current pay account.
    (c) If an employee retires, resigns, or is discharged, or if his or 
her employment period or period of active duty otherwise ends, an offset 
may be made from subsequent payment on any amount due to the individual 
from the Federal Government.



Sec.  22.4  Determination of indebtedness.

    In determining that an employee is indebted, the Secretary will 
review the debt to make sure that it is valid and past due.



Sec.  22.5  Notice requirements before offset.

    Except as provided in Sec.  22.1, deductions will not be made unless 
the Secretary provides the employee with a minimum of 30 calendar days 
written notice. This Notice of Intent to offset an employee's salary 
(Notice of Intent) will state:
    (a) That the Secretary has reviewed the records relating to the 
claim and has determined that a debt is owed, the amount of the debt, 
and the facts giving rise to the debt;
    (b) The Secretary's intention to collect the debt by means of 
deduction from the employee's current disposable pay account until the 
debt and all accumulated interest are paid in full;
    (c) The amount, frequency, approximate beginning date, and duration 
of the intended deductions;
    (d) An explanation of the Department's requirements concerning 
interest, penalties and administrative costs unless such payments are 
excused in accordance with Sec.  22.15;
    (e) The employee's right to inspect and to request and receive a 
copy of Department records relating to the debt;
    (f) The right to a hearing conducted by an administrative law judge 
of the Department or a hearing official, not under the control of the 
Secretary, on the Secretary's determination of the debt, the amount of 
the debt, or the repayment schedule (i.e., the percentage of disposable 
pay to be deducted each pay period), so long as a petition is filed by 
the employee as prescribed by the Secretary;
    (g) The method and time period for requesting a hearing;
    (h) That the timely filing of a petition for hearing will stay the 
collection proceedings; (See Sec.  22.6);
    (i) That a final decision on the hearing will be issued at the 
earliest practical date, but not later than 60 days after the filing of 
the petition requesting the hearing, unless the employee requests and 
the hearing official grants a delay in the proceedings;
    (j) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made; and

[[Page 207]]

    (k) That any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (1) Disciplinary procedures appropriate under 5 U.S.C. 7501 et seq., 
5 CFR Part 752, or any other applicable statutes or regulations;
    (2) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or 
any other applicable statutory authority; or
    (3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or 
any other applicable statutory authority.
    (l) Unless there are applicable contractual or statutory provisions 
to the contrary, amounts paid on or deducted for the debt which are 
later waived or found not owed to the United States will be promptly 
refunded to the employee.



Sec.  22.6  Request for hearing-prehearing submission(s).

    (a) An employee must file a petition for a hearing in accordance 
with the instructions in the Notice of Intent. This petition must be 
filed by the time stated in the notice described in Sec.  22.5 if an 
employee wants a hearing concerning:
    (1) The existence or amount of the debt; or
    (2) The Secretary's proposed offset schedule.
    (b) If the employee files his or her required submissions within 5 
days after the deadline date established under Sec.  22.5 and the 
hearing official finds that the employee has shown good cause for 
failure to comply with the deadline date, the hearing official may find 
that an employee has not waived his or her right to a hearing.



Sec.  22.7  Hearing procedures.

    (a) The hearing will be presided over by either:
    (1) A Department administrative law judge; or
    (2) A hearing official not under the control of the Secretary.
    (b) The hearing shall conform to Sec.  102.3(c) of the Federal 
Claims Collection Standards (4 CFR 102.3(c)).
    (c)(1) If the Secretary's determination regarding the existence or 
amount of the debt is contested, the burden is on the employee to 
demonstrate that the Secretary's determination was erroneous.
    (2) If the hearing official finds the Secretary's determination of 
the amount of the debt was erroneous, the hearing official shall 
indicate the amount owed by the employee, if any.
    (d)(1) If the Secretary's offset schedule is contested, the burden 
is on the employee to demonstrate that the payments called for under the 
Secretary's schedule will produce an extreme financial hardship for the 
employee under Sec.  22.9.
    (2) If the hearing official finds that the payments called for under 
the Secretary's offset schedule will produce an extreme financial 
hardship for the employee, the hearing official shall establish an 
offset schedule that will result in the repayment of the debt in the 
shortest period of time without producing an extreme financial hardship 
for the employee.



Sec.  22.8  Written decision following a hearing.

    (a) The hearing official shall issue to the Secretary and the 
employee a written opinion stating his or her decision, with a rationale 
supporting that decision, as soon as practicable after the hearing, but 
not later than 60 days after the employee files the petition requesting 
the hearing as provided in Sec.  22.5(i).
    (b) The written decision following a hearing will include:
    (1) A statement of the facts presented to support the nature and 
origin of the alleged debt;
    (2) The hearing official's analysis, findings, and conclusions, in 
light of the hearing, concerning the employee's or the Department's 
grounds;
    (3) The amount and validity of the alleged debt; and
    (4) The repayment schedule if applicable.
    (c) In determining whether the Secretary's determination of the 
existence or amount of the employee's debt was erroneous, the hearing 
official is governed by the relevant Federal statutes and regulations 
authorizing and implementing the programs giving rise to the debt, and 
by State law, if relevant.

[[Page 208]]



Sec.  22.9  Standards for determining extreme financial hardship.

    (a)(1) An offset produces an extreme financial hardship for an 
employee if the offset prevents the employee from meeting the costs 
necessarily incurred for essential subsistence expenses of the employee 
and his or her spouse and dependents.
    (2) Ordinarily, essential subsistence expenses include only costs 
incurred for food, housing, clothing, transportation, and medical care.
    (b) In determining whether an offset would prevent the employee from 
meeting the essential subsistence expenses described in paragraph (a) of 
this section, the hearing official shall require that the employee 
submit a detailed financial statement showing assets, liabilities, 
income and expenses.



Sec.  22.10  Review of Departmental records related to the debt.

    (a) Notification by employee. An employee who intends to inspect or 
copy Departmental records related to the debt must make arrangements in 
conformance with the instructions in the Notice of Intent.
    (b) Secretary's response. In response to a timely request submitted 
by the debtor, as described in paragraph (a) of this section, the 
Secretary will notify the employee of the location and time when the 
employee may inspect and copy Departmental records related to the debt.



Sec.  22.11  Coordinating offset with another Federal agency.

    (a) When Commerce is owed the debt. When the Department is owed a 
debt by an employee of another agency, the Department will submit a 
written request to the paying agency to begin salary offset. This 
request will include certification as to the debt (including the amount 
and basis of the debt and the due date of the payment) and that the 
Department has complied with these regulations.
    (b) When another agency is owed the debt. The Department will use 
salary offset against one of its employees who is indebted to another 
agency if requested to do so by that agency. Such a request must be 
accompanied by a certification by the requesting agency that the person 
owes the debt (including the amount) and that the procedural 
requirements of 5 U.S.C. 5514 and 5 CFR part 550, subpart K, have been 
met.
    (c) Requests by another Federal Department or agency for Department 
cooperation in offsetting the salary of one of its employees must be 
directed to the Director for Personnel and Civil Rights, Room 5001, U.S. 
Department of Commerce, Herbert C. Hoover Building, 14th and 
Constitution Ave., NW., Washington, DC 20230.



Sec.  22.12  Procedures for salary offset--When deductions may begin.

    (a) Deductions to liquidate an employee's debt will be by the method 
and in the amount stated in the Secretary's Notice of Intent to collect 
from the employee's current pay.
    (b) If the employee filed a timely petition for hearing, deductions 
will begin after the hearing official has provided the employee with a 
hearing, and the final written decision is in favor of the Secretary.
    (c) If an employee retires or resigns before collection of the 
amount of the indebtedness is completed, the remaining indebtedness will 
be collected according to the procedures for administrative offset (15 
CFR 21).



Sec.  22.13  Procedures for salary offset--Types of collection.

    A debt will be collected in a lump-sum or in installments. 
Collection will be by lump-sum collections unless the amount of the debt 
exceeds 15 percent of disposable pay. In these cases, deduction will be 
by installments.



Sec.  22.14  Procedures for salary offset--Methods of collection.

    (a) General. A debt will be collected by deductions at officially 
established pay intervals from an employee's current pay account, unless 
the employee and the Secretary agree to alternative arrangements for 
repayment.
    (b) Installment deductions. Installment deductions will be made over 
a period not greater than the anticipated period of employment. The size 
and frequency of installment deductions will bear a reasonable relation 
to the size of the debt and the employee's ability to pay.

[[Page 209]]

However, the amount deducted for any period will 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. If 
possible, the installment payment will be sufficient in size and 
frequency to liquidate the debt in three years. Installment payments of 
less than $25 per pay period or $50 a month will be accepted only in the 
most unusual circumstances.
    (c) Sources of deductions. The Department will make deductions from 
the employee's pay.



Sec.  22.15  Procedures for salary offset--Imposition of interest, penalties, 
and administrative costs.

    These charges will be made on installment payments in accordance 
with the Office of Personnel Management regulations (5 CFR 550.1104(n)) 
and the requirements contained in the FCCS (4 CFR 102.13).



Sec.  22.16  Non-waiver of rights.

    So long as there are no statutory or contractual provisions to the 
contrary, no employee involuntary payment (of all or a portion of a 
debt) collected under these regulations will be interpreted as a waiver 
of any rights that the employee may have under 5 U.S.C. 5514, these 
implementing regulations, or any other provision of contract or law.



Sec.  22.17  Refunds.

    The Department will refund promptly to the appropriate individual 
amounts offset under these regulations when:
    (a) A debt is waived or otherwise found not owing the United States 
(unless expressly prohibited by statute or regulation); or
    (b) The Department is directed by an administrative or judicial 
order to refund amounts deducted from the employee's current pay.



PART 23_USE OF PENALTY MAIL IN THE LOCATION AND RECOVERY OF MISSING 
CHILDREN--Table of Contents




Sec.
23.1 Purpose.
23.2 Contact person.
23.3 Plan.
23.4 Cost and percentage estimates.
23.5 Report to the Office of Juvenile Justice and Delinquency 
          Prevention.
23.6 Definitions.
23.7 Notice to Department of Commerce organizational units of 
          implementation and procedures.

    Authority: 39 U.S.C. 3220(a)(2); 5 U.S.C. 301.

    Source: 51 FR 46614, Dec. 24, 1986, unless otherwise noted.



Sec.  23.1  Purpose.

    These regulations are intended to comply with 39 U.S.C. 3220(a)(2), 
and the Office of Juvenile Justice and Delinquency Prevention (OJJDP) 
guidelines (50 FR 46622), to assist in the location and recovery of 
missing children through the use of penalty mail.



Sec.  23.2  Contact person.

    Tim Coss, Office of Administrative Services Operations, U.S. 
Department of Commerce (H2063), 14th and Constitution Ave., NW., 
Washington, DC 20230, Telephone (202) 377-2108.



Sec.  23.3  Plan.

    (a) The Department of Commerce will supplement and expand the 
national effort to assist in the location and recovery of missing 
children through the economical use of missing children information in 
domestic penalty mail directed to the public and Federal employees.
    (b) The Department of Commerce may include, on or inside authorized 
types of penalty mail, pictures and biographical data related to missing 
children, provided such use is determined to be cost effective. The 
authorized types of penalty mail include:
    (1) All envelopes; and
    (2) Self-mailer publications (newsletters, bulletins, etc.) with a 
shelf-life of no more than 90 days.
    (c) The manner in which pictures and biographical data may be used 
includes:
    (1) Printing on envelopes at the time they are initially printed 
with the United States Postal Service (USPS) required postal code 
identification;
    (2) Printed inserts that are placed in envelopes along with other 
mailing material;

[[Page 210]]

    (3) Stickers that are printed and placed on envelopes prior to 
mailing; and
    (4) Printing as part of the content of self-mailers such as bureau 
newsletters, bulletins, etc.
    (d) Missing children information will not be placed on letter-size 
envelopes in the areas described as the ``Penalty Indicia Area,'' ``OCR 
Read Area,'' ``Bar Code Read Area,'' and ``Return Address Area'' per 
Appendix A of the OJJDP guidelines.
    (e) The National Center for Missing and Exploited Children (National 
Center) will be the sole source from which the Department of Commerce 
will obtain the camera-ready and other photographic and biographical 
materials for use by organizational units. Photographs which were 
reasonably current as of the time of the child's disappearance shall be 
the only acceptable form of visual media or pictorial likeness used on 
or in penalty mail.
    (f) The Department of Commerce will remove all printed penalty mail 
envelopes and other materials from circulation or other use (i.e., use 
or destroy) within 90 days of notification by the National Center of the 
need to withdraw penalty mail envelopes and other materials related to a 
particular child from circulation. The Department of Commerce will not 
include missing children information on blank pages or covers of items 
such as those to be included in the Superintendent of Documents' Sales 
Program, or to be distributed to Depository Libraries, as such material 
generally could not be withdrawn from use within 90 days of 
notification. The National Center will be responsible for immediately 
notifying the Department Contact Person, in writing, of the need to 
withdraw from circulation penalty mail envelopes and other materials 
related to a particular child.
    (g) The Department of Commerce will give priority:
    (1) To penalty mail that is addressed to the public for receipt in 
the United States, its territories and possessions; and
    (2) To inter- and intra-agency publications and other media that 
will be widely disseminated to and viewed by Federal employees.
    (h) All suggestions and/or recommendations for innovative, cost-
effective techniques should be forwarded to the Department Contact 
Person. The Department Contact Person shall conduct biannual meetings of 
departmental representatives to discuss the current plan and 
recommendations for future plans.
    (i) This shall be the sole regulation implementing this program for 
the Department of Commerce.



Sec.  23.4  Cost and percentage estimates.

    It is estimated that this program will cost the Department of 
Commerce $39,530 in the first year. It is the Department of Commerce's 
estimate that 9% of its penalty mail will transmit missing children 
photographs and information when the program is fully implemented.



Sec.  23.5  Report to the Office of Juvenile Justice and Delinquency Prevention.

    The Department of Commerce will compile and submit a consolidated 
report to OJJDP, by June 30, 1987, on its experience in implementation 
of 39 U.S.C. 3220(a) (2), the OJJDP guidelines, and the Department of 
Commerce's regulation. This report will cover the period from December 
24, 1986 through March 31, 1987, and provide detail on:
    (a) The Department of Commerce's experience in implementation 
(including problems encountered), successful and/or innovative methods 
adopted to use missing children photographs and information on or in 
penalty mail, the estimated number of pieces of penalty mail containing 
such information, and the percentage of total penalty mail directed to 
the public which included missing children information.
    (b) The estimated total cost to implement the program, with 
supporting detail, and
    (c) Recommendations for changes in the program to make it more 
effective.



Sec.  23.6  Definitions.

    (a) Operating units. Bureaus and other organizational entities 
outside the Office of the Secretary charged with carrying out specified 
substantive functions (i.e., programs).

[[Page 211]]

    (b) Organizational units. The organizational units within the 
Department of Commerce are:

Office of the Secretary
Bureau of Economic Analysis
Economic Development Administration
Bureau of the Census
International Trade Administration
Minority Business Development Agency
National Bureau of Standards
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
National Technical Information Service
Patent and Trademark Office
United States Travel and Tourism Administration



Sec.  23.7  Notice to Department of Commerce organizational units of 
implementation and procedures.

    Following are roles and responsibilities for the program within the 
Department of Commerce.
    (a) The Department Contact Person shall:
    (1) Serve as the Department of Commerce's sole representative for 
ordering materials, including camera-ready negatives, from the National 
Center,
    (2) Serve as the Department of Commerce's sole supplier of materials 
to Operating Units,
    (3) Maintain a current list of personnel within each Operating Unit 
who are authorized to order materials,
    (4) Notify Operating Units whenever permission to use information on 
a missing child has been withdrawn,
    (5) Ensure that only current missing children materials are 
distributed to Operating Units, and that only those requests from 
authorized departmental representatives are filled,
    (6) Prepare all required departmental reports on the program,
    (7) Promulgate any departmentwide operating instructions deemed 
appropriate for the program, and
    (8) Chair biannual meetings of departmental representatives to 
discuss the program and identify additional opportunities to use the 
missing children data with penalty mail.
    (b) The Head of each Operating Unit (and for the Office of the 
Secretary, the Director of the Office of Administrative Services 
Operations), or his/her representative, shall:
    (1) Designate a single person to act as the Operating Unit's 
representative to the Department for requesting and controlling missing 
children materials and receiving notification to withdraw materials from 
use (an alternative may be designated to act in the representative's 
absence),
    (2) Provide the Department Contact Person with the name, title, 
telephone number, and room number of the Operating Unit's representative 
for the program (and also for the alternate, if one is designated), and 
notify the Department of changes when they occur,
    (3) Ensure that the shelf-life of printed penalty mail materials 
containing missing children information is limited to a maximum of three 
months,
    (4) Ensure that information on a child is not used once permission 
has been withdrawn and the shelf-life for the material would keep the 
information available for greater than 90 days after the date that 
permission to use it was withdrawn,
    (5) Direct that the Operating Unit representative (or alternate) 
order missing children information, as appropriate, only from the 
Department Contact Person,
    (6) Comply with policies, procedures, and operating instructions 
issued by the Department,
    (7) Maintain necessary information to prepare required reports and 
submit them in accordance with requirements,
    (8) Provide only current camera-ready and other photographic and 
biographical materials to printers, including those at the 
Administrative Support Centers, and
    (9) Otherwise determine and control the use of missing children 
materials and information by the Operating Unit.
    (c) The Director of each Administrative Support Center, or his/her 
representatives, shall:
    (1) Cooperate with serviced Operating Units to promote the use of 
missing children information on penalty mail,
    (2) As directed by an Operating Unit, utilize camera-ready and other 
photographic and biographical material provided by the Operating Unit in 
preparation of material for use with penalty mail, and
    (3) Assure that any printing performed or procured under its 
direction

[[Page 212]]

is in accordance with the type of material and the manner of 
presentation as prescribed in this regulation.



PART 24_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE 
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                            Subpart A_General

Sec.
24.1 Purpose and scope of this part.
24.2 Scope of subpart.
24.3 Definitions.
24.4 Applicability.
24.5 Effect on other issuances.
24.6 Additions and exceptions.

                    Subpart B_Pre-Award Requirements

24.10 Forms for applying for grants.
24.11 State plans.
24.12 Special grant or subgrant conditions for ``high-risk'' grantees.

                    Subpart C_Post-Award Requirements

                        Financial Administration

24.20 Standards for financial management systems.
24.21 Payment.
24.22 Allowable costs.
24.23 Period of availability of funds.
24.24 Matching or cost sharing.
24.25 Program income.
24.26 Non-Federal audit.

                    Changes, Property, and Subawards

24.30 Changes.
24.31 Real property.
24.32 Equipment.
24.33 Supplies.
24.34 Other property.
24.35 Subawards to debarred and suspended parties.
24.36 Procurement.
24.37 Subgrants.

              Reports, Records, Retention, and Enforcement

24.40 Monitoring and reporting program performance.
24.41 Financial reporting.
24.42 Retention and access requirements for records.
24.43 Enforcement.
24.44 Termination for convenience.

                 Subpart D_After-the-Grant Requirements

24.50 Closeout.
24.51 Later disallowances and adjustments.
24.52 Collection of amounts due.

Subpart E--Entitlements [Reserved]

    Authority: 5 U.S.C. 301.

    Source: 53 FR 8048, 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 20178, May 29, 1987, and 
53 FR 8028, March 11, 1988.



                            Subpart A_General



Sec.  24.1  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.  24.2  Scope of subpart.

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



Sec.  24.3  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

[[Page 213]]

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 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.

[[Page 214]]

    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 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,

[[Page 215]]

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.  24.4  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.  24.6, 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 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.

[[Page 216]]

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.  24.4(a) (3) through (8) are subject to subpart E.



Sec.  24.5  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.  24.6.



Sec.  24.6  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.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.



                    Subpart B_Pre-Award Requirements



Sec.  24.10  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.
    (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.



Sec.  24.11  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

[[Page 217]]

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.



Sec.  24.12  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 grantee 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.  24.20  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

[[Page 218]]

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 
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.



Sec.  24.21  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

[[Page 219]]

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 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.  24.43(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.



Sec.  24.22  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.
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.

[[Page 220]]

 
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.
------------------------------------------------------------------------



Sec.  24.23  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.  24.24  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.  24.25, 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.  24.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors 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

[[Page 221]]

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.
    (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 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.
    (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

[[Page 222]]

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.  24.22, 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.



Sec.  24.25  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, 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.  24.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec.  24.31 
and 24.32.
    (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

[[Page 223]]

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



Sec.  24.26  Non-Federal audit.

    (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.  24.36 
shall be followed.

[53 FR 8048, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45940, Aug. 
29, 1997]

                    Changes, Property, and Subawards



Sec.  24.30  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.  24.22) 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,

[[Page 224]]

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 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.  24.36 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.  24.22) 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.  24.31  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.
    (1) The Federal awarding agency may require the placing of 
appropriate notices of record to advise that property has been acquired 
or improved with Federal financial assistance, and that use and 
disposition conditions apply to the property.

[[Page 225]]

    (2) [Reserved]
    (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. 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.

[53 FR 8048, Mar. 11, 1988, as amended at 53 FR 8049, Mar. 11, 1988]



Sec.  24.32  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.  24.25(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

[[Page 226]]

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.
    (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.  24.32(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.  24.33  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.  24.34  Other property.

    (a) 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:
    (1) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and

[[Page 227]]

    (2) Any rights of copyright to which a grantee, subgrantee, or a 
contractor purchases ownership with grant support.
    (b) Intangible property. Title to such property as loans, notes, and 
other debt instruments (whether considered tangible or intangible) 
acquired under a grant or subgrant will vest upon acquisition in the 
grantee or subgrantee respectively. Such property will be used for the 
originally authorized purpose as long as needed for that purpose, and 
the grantee or subgrantee shall not dispose of or encumber its title or 
other interests. When no longer needed for the originally authorized 
purpose, disposition of such property will be made as provided in Sec.  
24.32(e).

[53 FR 8049, Mar. 11, 1988]



Sec.  24.35  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.''



Sec.  24.36  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

[[Page 228]]

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 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.  24.36. 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

[[Page 229]]

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 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.  24.36(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

[[Page 230]]

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 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.

[[Page 231]]

    (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. 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.  24.22). 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

[[Page 232]]

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, 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

[[Page 233]]

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 Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8048, 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19642, Apr. 
19, 1995]



Sec.  24.37  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.  24.42 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 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 24.10;
    (2) Section 24.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR Part 205, cited in Sec.  24.21; and
    (4) Section 24.50.

              Reports, Records, Retention, and Enforcement



Sec.  24.40  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

[[Page 234]]

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.
    (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.
    (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.



Sec.  24.41  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 extend required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in

[[Page 235]]

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.  24.41(e)(2)(iii) of this section.
    (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 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

[[Page 236]]

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.  24.41(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.  24.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec.  24.41(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.  24.41(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.  24.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec.  24.41(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.  24.41(b)(2).



Sec.  24.42  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic 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.  24.36(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

[[Page 237]]

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 end 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 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 rights 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.  24.43  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.

[[Page 238]]

    (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.  24.35).



Sec.  24.44  Termination for convenience.

    Except as provided in Sec.  24.43 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.  24.43 
or paragraph (a) of this section.



                 Subpart D_After-the-Grant Requirements



Sec.  24.50  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines 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.  24.32(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.  24.51  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;

[[Page 239]]

    (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.  24.42;
    (d) Property management requirements in Sec. Sec.  24.31 and 24.32; 
and
    (e) Audit requirements in Sec.  24.26.



Sec.  24.52  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 Chapter 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 25_PROGRAM--Table of Contents




                          Fraud Civil Remedies

Sec.
25.1 Basis and purpose.
25.2 Definitions.
25.3 Basis for civil penalties and assessments.
25.4 Investigation.
25.5 Review by the reviewing official.
25.6 Prerequisites for issuing a complaint.
25.7 Complaint.
25.8 Service of complaint.
25.9 Answer.
25.10 Default upon failure to file an answer.
25.11 Referral of complaint and answer to the ALJ.
25.12 Notice of hearing.
25.13 Parties to the hearing.
25.14 Separation of functions.
25.15 Ex parte contacts.
25.16 Disqualification of reviewing official or ALJ.
25.17 Rights of parties.
25.18 Authority of the ALJ.
25.19 Prehearing conferences.
25.20 Disclosure of documents.
25.21 Discovery.
25.22 Exchange of witness lists, statements, and exhibits.
25.23 Subpoena for attendance at hearing.
25.24 Protective order.
25.25 Fees.
25.26 Form, filing and service of papers.
25.27 Computation of time.
25.28 Motions.
25.29 Sanctions.
25.30 The hearing and burden of proof.
25.31 Determining the amount of penalties and assessments.
25.32 Location of hearing.
25.33 Witnesses.
25.34 Evidence.
25.35 The record.
25.36 Post-hearing briefs.
25.37 Initial decision.
25.38 Reconsideration of initial decision.
25.39 Appeal to authority head.
25.40 Stays ordered by the Department of Justice.
25.41 Stay pending appeal.
25.42 Judicial review.
25.43 Collection of civil penalties and assessments.
25.44 Right to administrative offset.
25.45 Deposit in Treasury of United States.
25.46 Compromise or settlement.
25.47 Limitations.

    Authority: Secs. 6101-6104, Pub. L. 99-509, 100 Stat. 1874 (31 
U.S.C. 3801-3812); Sec. 4, as amended, and sec. 5, Pub. L. 101-410, 104 
Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-134, 110 Stat. 1321, 28 
U.S.C. 2461 note.

    Source: 55 FR 47854, Nov. 16, 1990, unless otherwise noted.

                          Fraud Civil Remedies



Sec.  25.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law 99-509, section 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 authorities or 
to their agents, and (2)

[[Page 240]]

specifies the hearing and appeal rights of persons subject to 
allegations of liability for such penalties and assessments.



Sec.  25.2  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 Commerce.
    Authority head means the Secretary of the Department of Commerce, or 
designee.
    Benefit means, except as the context otherwise requires, anything of 
value, including but not limited to any advantage, preference, 
privilege, license, permit, favorable decision, ruling, status, or loan 
guarantee.
    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 respondent under Sec.  25.7.
    Department means the Department of Commerce.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec. Sec.  25.10 or 25.37, 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 Commerce or an officer or employee of the Office of the 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 deliberative 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 any 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.
    Respondent means any person alleged in a complaint under Sec.  25.7 
to be liable for a civil penalty or assessment under Sec.  25.3.
    Reviewing official means the General Counsel of the Department or 
his or her designee who is 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.
    Statement means any representation, certification, affirmation, 
document,

[[Page 241]]

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 a 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 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.  25.3  Basis for civil penalties and assessments.

    (a) Claims. (1) 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 $5,000 for each such claim made on or before October 23, 
1996, and of not more than $5,500 for each such claim made after October 
23, 1996.
    (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 payment (including transferred 
property or provided services) or 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 the section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) 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 $5,000 for each 
such statement made on or before October 23, 1996, and of not more than 
$5,500 for each such statement made after October 23, 1996.
    (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

[[Page 242]]

under this section, each such person may be held liable for a civil 
penalty.
    (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 provide services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

[55 FR 47854, Nov. 16, 1990, as amended at 61 FR 55094, Oct. 24, 1996]



Sec.  25.4  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--
    (i) The documents sought have been produced;
    (ii) Such documents are not available and the reasons therefore; or
    (iii) 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 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.  25.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec.  25.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec.  25.3, the 
reviewing official shall transmit to the Attorney General a written 
notice of the reviewing official's intention to issue a complaint under 
Sec.  25.7.
    (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.  
25.3 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. Such a statement may be 
based upon information then known or an absence of any information 
indicating that the person may be unable to pay such an amount.



Sec.  25.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec.  25.7 
only if--
    (1) The Department of Justice approved 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.  25.3(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

[[Page 243]]

the value of property or services, demanded or requested in violation of 
Sec.  25.3(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 claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec.  25.7  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 respondent, as provided 
in Sec.  25.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the respondent, 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 
respondent may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the respondent'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.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the respondent with a copy of these regulations.



Sec.  25.8  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.
    (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 making service;
    (2) An acknowledged United States Postal Service return receipt 
card; or
    (3) Written acknowledgment of the respondent or his or her 
representative.



Sec.  25.9  Answer.

    (a) The respondent may request a hearing by filing an answer with 
the reviewing official within 30 days of service of the complaint. An 
answer shall be deemed to be a request for hearing.
    (b) In the answer, the respondent--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the respondent intends to rely;
    (3) May state any reasons why the respondent 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 respondent to act as respondent's 
representative, if any.



Sec.  25.10  Default upon failure to file an answer.

    (a) If the respondent does not file an answer within the time 
prescribed in Sec.  25.9(a), the reviewing official may refer the 
complaint to the ALJ along with the proof of service, as provided in 
Sec.  25.8(b).
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on the respondent in the manner prescribed in Sec.  25.8, a notice that 
an initial decision will be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true and, if such facts establish liability under Sec.  25.3, 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 file 
a timely answer, the respondent waives any

[[Page 244]]

right to further review of the penalties and assessments imposed under 
paragraph (c) of this section, and the initial decision shall become 
final binding upon the parties 30 days after it is issued.
    (e) If, before such an initial decision becomes final, the 
respondent files motion with the ALJ seeking to reopen on the grounds 
that extraordinary circumstances prevented the respondent from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the respondent can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the respondent an 
opportunity to answer the complaint.
    (g) A decision of the ALJ denying a respondent's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec.  25.38.
    (h) The respondent may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head 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 respondent files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the respondent's failure to file a 
timely answer based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the respondent's failure to file a timely answer, the authority 
head shall remand the case of the ALJ with instructions to grant the 
respondent an opportunity to answer.
    (l) If the authority head decides that the respondent's failure to 
file a timely answer 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.  25.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the ALJ.



Sec.  25.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the respondent in the manner 
prescribed by Sec.  25.8. At the same time, the ALJ shall send a copy of 
such notice to the representative for the Government.
    (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 respondent, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec.  25.13  Parties to the hearing.

    (a) The parties to the hearing shall be the respondent and the 
authority.
    (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.  25.14  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.

[[Page 245]]

    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of, the investigating official or the reviewing 
official.
    (c) The reviewing official shall, after consulting with the 
Inspector General, designate the representative for the Government, who 
shall be an attorney with either the Office of General Counsel or the 
Office of the Inspector General. The reviewing official's decision is 
final.



Sec.  25.15  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.  25.16  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 with the ALJ 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) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f)(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.  25.17  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.  25.18  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 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;

[[Page 246]]

    (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.  25.19  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.  25.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the respondent 
may review any relevant and material documents, transcripts, records, 
and other materials that related to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec.  25.4(b) are based, unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the respondent may obtain copies of such 
documents.
    (b) Upon written request to the reviewing official, the respondent 
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.  25.5 is not discoverable under any 
circumstances.
    (d) The respondents may file a motion to compel dosclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec.  25.9.



Sec.  25.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (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 Sec. Sec.  25.22 and 25.23, 
the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and documentary 
evidence. Nothing contained

[[Page 247]]

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 with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within two days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in Sec.  
25.34.
    (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.  25.24.
    (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.  25.8.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (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.  25.22  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.  25.33(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 
or 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.  25.23  Subpoena 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 
therefore not less than 15 days before the date fixed for the hearing 
unless otherwise allowed by the ALJ for good cause shown: Such request 
shall specify any 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

[[Page 248]]

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.  25.8. A subpoena on a party or upon an individual 
under the control of a party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ 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.



Sec.  25.24  Protective order.

    (a) A party of 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 file specified documents or 
information enclosed in sealed envelopes to be opened as direct by the 
ALJ.



Sec.  25.25  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 Department of 
Commerce, a check for witness fees and mileage need not accompany the 
subpoena.



Sec.  25.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original 
and one copy.
    (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 ALJ, 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 number of, the party of the person on whose 
behalf the paper was filed, or his or her representative.
    (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 with the ALJ 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 the complaint or 
notice of hearing shall be made by deliverying or mailing a copy 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.  25.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the

[[Page 249]]

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 mail, an 
additional five days will be added to the time permitted for any 
response.



Sec.  25.28  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 with the ALJ 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 responses 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.



Sec.  25.29  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) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, 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
    (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 imposing 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.  25.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the respondent is liable for a civil penalty or 
assessment under Sec.  25.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove respondent's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The respondent 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.

[[Page 250]]



Sec.  25.31  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 
assessment, in lieu of 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, or 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 respondent'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 program;
    (8) Whether the respondent has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the respondent attempted to conceal the misconduct;
    (10) The degree to which the respondent has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
respondent, the extent to which the respondent's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the respondent cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the respondent assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the respondent's sophistication with respect to it, including the extent 
of the respondent's prior participation in the program or in similar 
transactions;
    (15) Whether the respondent 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
    (16) The need to deter the respondent 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.  25.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
respondent 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 respondent and 
the ALJ.
    (b) Each party shall have the opportunity to present arguments 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.  25.33  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.

[[Page 251]]

    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statements 
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.  
25.22(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 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.  25.34  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 inmaterial 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.
    (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.  25.24.



Sec.  25.35  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 and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec.  25.24.



Sec.  25.36  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, not to exceed 60 days from the date the 
parties receive the transcript of the hearing or, if applicable,

[[Page 252]]

the stipulated record. 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.  25.37  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.  25.3.
    (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.  25.31.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permittted) has expired. The ALJ shall as the same time 
serve all respondents with a statement describing the right of any 
respondent 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 initial 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.  25.38  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 ALJ denies 
the motion, unless the initial decision is timely appealed to the 
authority head in accordance with Sec.  25.39.
    (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.  25.39.



Sec.  25.39  Appeal to authority head.

    (a) Any respondent who has filed 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 with the authority head in accordance with this 
section.
    (b)(1) No notice of appeal may be filed until the time period for 
filing a motion for reconsideration under Sec.  25.38 has expired.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) If no motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ issues the initial 
decision.
    (4) The authority head may extend the initial 30 day period for an 
additional 30 days if the respondent files

[[Page 253]]

with the authority head a request for an extension within the initial 30 
day period and shows good cause.
    (c) If the respondent files a timely notice of appeal with the 
authority head, the ALJ shall forward 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 was 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 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 respondent has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the respondent with a copy of the authority head's decision, a 
determination that a respondent is liable under Sec.  25.3 is final and 
is not subject to judicial review.



Sec.  25.40  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 and it shall be resumed only upon receipt of the written 
authorization of the Attorney General.



Sec.  25.41  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.  25.42  Judicial review.

    Section 3805 of title 31, United States Code, authorized 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.  25.43  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.  25.44  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. Sec.  25.42 and 25.43, 
or any amount agreed upon in a compromise or settlement under Sec.  
25.46, 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 respondent.

[[Page 254]]



Sec.  25.45  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.  25.46  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. If the designated 
representative of the Government is not with the Office of General 
Counsel, the representative shall forward all settlement offers to the 
reviewing official and cannot negotiate a compromise or settlement with 
the respondent except as directed by the reviewing official.
    (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.  25.42 or during the pendency of any action to collect 
penalties and assessments under Sec.  25.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec.  25.42 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.  25.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec.  25.8 within 6 years after the 
date on which such claim or statement is made.
    (b) If the respondent fails to file a timely answer, service of a 
notice under Sec.  25.10(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 26_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND 
GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of Contents




                            Subpart A_General

Sec.
26.100 Purpose.
26.105 Definitions.
26.110 Coverage.
26.115 Policy.

                       Subpart B_Effect of Actions

26.200 Debarment or suspension.
26.205 Ineligible persons.
26.210 Voluntary exclusion.
26.215 Exception provision.
26.220 Continuation of covered transactions.
26.225 Failure to adhere to restrictions.

                           Subpart C_Debarment

26.300 General.
26.305 Causes for debarment.
26.310 Procedures.
26.311 Investigation and referral.
26.312 Notice of proposed debarment.
26.313 Opportunity to contest proposed debarment.
26.314 Debarring official's decision.
26.315 Settlement and voluntary exclusion.
26.320 Period of debarment.
26.325 Scope of debarment.

                          Subpart D_Suspension

26.400 General.
26.405 Causes for suspension.
26.410 Procedures.
26.411 Notice of suspension.
26.412 Opportunity to contest suspension.
26.413 Suspending official's decision.
26.415 Period of suspension.
26.420 Scope of suspension.

       Subpart E_Responsibilities of GSA, Agency and Participants

26.500 GSA responsibilities.
26.505 Department of Commerce responsibilities
26.510 Participants' responsibilities.

[[Page 255]]

           Subpart F_Drug-Free Workplace Requirements (Grants)

26.600 Purpose.
26.605 Definitions.
26.610 Coverage.
26.615 Grounds for suspension of payments, suspension or termination of 
          grants, or suspension or debarment.
26.620 Effect of violation.
26.625 Exception provision.
26.630 Certification requirements and procedures.
26.635 Reporting of and employee sanctions for convictions of criminal 
          drug offenses.

Appendix A to Part 26--Certification Regarding Debarment, Suspension, 
          and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 26--Certification Regarding Debarment, Suspension, 
          Ineligibility and Voluntary Exclusion--Lower Tier Covered 
          Transactions
Appendix C to Part 26--Certification Regarding Drug-Free Workplace 
          Requirements

    Authority: 5 U.S.C. 301; 41 U.S.C. 701 et seq.; Sec. 2455, Pub. L. 
103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549, 3 CFR, 1986 
comp., p. 189; E.O. 12689, 3 CFR, 1989 comp., p. 235.

    Source: 53 FR 19177, 19204, May 26, 1988, unless otherwise noted.

    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.

    Editorial Note: 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.



                            Subpart A_General



Sec.  26.100  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.  26.105), 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, 33044, June 26, 1995]



Sec.  26.105  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.

[[Page 256]]

    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.
    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.
    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.
    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

[[Page 257]]

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.
    (2) [Reserved]
    Proposal. A solicited or unsolicited bid, application, request, 
invitation to 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.
    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.

[53 FR 19177, 19204, May 26, 1988, as amended at 60 FR 33041, 33044, 
June 26, 1995.



Sec.  26.110  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 simplified acquisition

[[Page 258]]

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 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.
    (3) Department of Commerce covered transactions. These Department of 
Commerce regulations apply to the Department's domestic assistance 
covered transactions (whether by a Federal agency, recipient, 
subrecipient, or intermediary) including, except as noted in paragraph 
(a)(2) of this section: grants, cooperative agreements, scholarships, 
fellowships, loans, loan guarantees, subsidies, insurance, payments for 
specified use, and donation agreement subawards, subcontracts and 
transactions at any tier that are charges as direct or indirect costs, 
regardless of type (including subtier awards under awards which are 
statutory entitlement or mandatory awards).
    (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.  26.200, ``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.  26.110(a). Sections 26.325, ``Scope of debarment,'' 
and 26.420, ``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.

[53 FR 19177, 19204, May 26, 1988, as amended at 53 FR 19178, May 26, 
1988, 60 FR 33041, 33044, June 26, 1995]



Sec.  26.115  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.

[[Page 259]]

    (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.



                       Subpart B_Effect of Actions



Sec.  26.200  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 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.  26.215.
    (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.  26.110(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, 33044, June 26, 1995]



Sec.  26.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec.  26.105(i), are 
excluded in accordance with the applicable statutory, executive order, 
or regulatory authority.



Sec.  26.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec.  26.315 are 
excluded in accordance with the terms of their settlements. Department 
of Commerce shall, and participants may, contact the original action 
agency to ascertain the extent of the exclusion.



Sec.  26.215  Exception provision.

    The Department of Commerce 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.  26.200. 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.  
26.505(a).

[60 FR 33041, 33044, June 26, 1995]

[[Page 260]]



Sec.  26.220  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.  
26.215.

[60 FR 33041, 33044, June 26, 1995]



Sec.  26.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec.  26.215 or Sec.  26.220, 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, 33044, June 26, 1995]



                           Subpart C_Debarment



Sec.  26.300  General.

    The debarring official may debar a person for any of the causes in 
Sec.  26.305, using procedures established in Sec. Sec.  26.310 through 
26.314. 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.  26.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of 
Sec. Sec.  26.300 through 26.314 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

[[Page 261]]

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.  26.215 or Sec.  26.220;
    (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;
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec.  26.315 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.  26.615 of this 
part.
    (d) Any other cause of so serious or compelling a nature that it 
affects the present responsibility of a person.

[53 FR 19177, 19204, May 26, 1988, as amended at 54 FR 4950 and 4954, 
Jan. 31, 1989]



Sec.  26.310  Procedures.

    Department of Commerce shall process debarment actions as informally 
as practicable, consistent with the principles of fundamental fairness, 
using the procedures in Sec. Sec.  26.311 through 26.314.



Sec.  22.311  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.  26.312  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.  26.305 for proposing 
debarment;
    (d) Of the provisions of Sec.  26.311 through Sec.  26.314, and any 
other Department of Commerce procedures, if applicable, governing 
debarment decisionmaking; and
    (e) Of the potential effect of a debarment.



Sec.  26.313  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.  26.314  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

[[Page 262]]

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 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.  26.215.
    (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.  26.315  Settlement and voluntary exclusion.

    (a) When in the best interest of the Government, Department of 
Commerce may, at any time, settle a debarment or suspension action.
    (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).



Sec.  26.320  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 Sec.  26.305(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 
Sec. Sec.  26.311 through 26.314 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;

[[Page 263]]

    (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.

[53 FR 19177, 19204, May 26, 1988, as amended at 54 FR 4950 and 4954, 
Jan. 31, 1989]



Sec.  26.325  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.
    (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 Sec. Sec.  26.311 through 
26.314).
    (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.  26.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec.  26.405 using procedures established in Sec. Sec.  26.410 
through 26.413.
    (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.  26.405, 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.  26.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Sec. Sec.  26.400 through 26.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in Sec.  
26.305(a); or
    (2) That a cause for debarment under Sec.  26.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.

[[Page 264]]



Sec.  26.410  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. Department of Commerce shall process 
suspension actions as informally as practicable, consistent with 
principles of fundamental fairness, using the procedures in Sec.  26.411 
through Sec.  26.413.



Sec.  26.411  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.  26.405 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 Sec.  26.411 through Sec.  26.413 and any 
other Department of Commerce procedures, if applicable, governing 
suspension decisionmaking; and
    (g) Of the effect of the suspension.



Sec.  26.412  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.  26.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec.  26.320(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

[[Page 265]]

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.



Sec.  26.415  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.  26.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec.  26.325), except that the procedures of Sec. Sec.  26.410 
through 26.413 shall be used in imposing a suspension.



       Subpart E_Responsibilities of GSA, Agency and Participants



Sec.  26.500  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.  26.505  Department of Commerce 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 Department of Commerce has granted exceptions under Sec.  26.215 
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.  26.500(b) and of 
the exceptions granted under Sec.  26.215 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. ).

[[Page 266]]

    (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.  26.510  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 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.
    (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 Department of Commerce 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.



           Subpart F_Drug-Free Workplace Requirements (Grants)

    Source: 55 FR 21688, 21693, May 25, 1990, unless otherwise noted.



Sec.  26.600  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.  26.605  Definitions.

    (a) Except as amended in this section, the definitions of Sec.  
26.105 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

[[Page 267]]

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;
    (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.  26.610  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.  26.615  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--

[[Page 268]]

    (a) The grantee has made a false certification under Sec.  26.630;
    (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
    (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.  26.620  Effect of violation.

    (a) In the event of a violation of this subpart as provided in Sec.  
26.615, 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.  26.320(a)(2) of this 
part).



Sec.  26.625  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.  26.630  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.
    (1) The Office of Federal Assistance serves as the central location 
for submission of State and State agency certifications. Certifications 
should be sent to: Director, Office of Federal Assistance, HCHB Room 
6204, Washington, DC 20230.
    (2) [Reserved]
    (d)(1) The Governor of a State may exclude certain State agencies 
from the statewide certification and authorize these agencies to submit 
their own

[[Page 269]]

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 ensure that a copy is submitted individually with 
respect to each grant, unless the Federal agency designates a central 
location for submission.
    (i) The Office of Federal Assistance serves as the central location 
for submission of State and State agency certifications. Certifications 
should be sent to: Director, Office of Federal Assistance, HCHB Room 
6204, Washington, DC 20230.
    (ii) [Reserved]
    (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.

[55 FR 21688, 21693, May 25, 1990]



Sec.  26.635  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.
    (i) The Office of Federal Assistance serves as the central location 
for submission of notices of conviction. Notices should be sent to: 
Director, Office of Federal Assistance, HCHB Room 6204, Washington, DC 
20230.
    (ii) [Reserved]
    (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.
    (1) The Office of Federal Assistance serves as the central location 
for submission of notices of conviction. Notices should be sent to: 
Director, Office of Federal Assistance, HCHB Room 6204, Washington, DC 
20230.

[[Page 270]]

    (2) [Reserved]

(Approved by the Office of Management and Budget under control number 
0991-0002)

[55 FR 21688, 21693, May 25, 1990]

 Appendix A to Part 26--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 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

[[Page 271]]

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, 33044, June 26, 1995]

 Appendix B to Part 26--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 
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,

[[Page 272]]

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, 33044, June 26, 1995]

   Appendix C to Part 26--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.
    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

[[Page 273]]

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)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

Check [squ] 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, 21693, May 25, 1990]



PART 27_PROTECTION OF HUMAN SUBJECTS--Table of Contents




Sec.
27.101 To what does this policy apply?
27.102 Definitions.
27.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal Department or Agency.
27.104--27.106 [Reserved]
27.107 IRB membership.
27.108 IRB functions and operations.
27.109 IRB review of research.
27.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
27.111 Criteria for IRB approval of research.
27.112 Review by institution.
27.113 Suspension or termination of IRB approval of research.
27.114 Cooperative research.
27.115 IRB records.
27.116 General requirements for informed consent.
27.117 Documentation of informed consent.
27.118 Applications and proposals lacking definite plans for involvement 
          of human subjects.
27.119 Research undertaken without the intention of involving human 
          subjects.
27.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal Department 
          or Agency.
27.121 [Reserved]
27.122 Use of Federal funds.
27.123 Early termination of research support: Evaluation of applications 
          and proposals.
27.124 Conditions.

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

    Source: 56 FR 28012 and 28019, June 18, 1991, unless otherwise 
noted.



Sec.  27.101  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.

[[Page 274]]

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.  27.102(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.  
27.102(e) must be reviewed and approved, in compliance with Sec.  
27.101, Sec.  27.102, and Sec.  27.107 through Sec.  27.117 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 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

[[Page 275]]

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 part 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 part 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 and 28019, June 18, 1991, 56 FR 29756, June 28, 1991]



Sec.  27.102  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 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.

[[Page 276]]

    (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.  27.103  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 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:

[[Page 277]]

    (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.  27.101 (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.  27.103(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 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.  27.101 (b) or

[[Page 278]]

(i). An institution with an approved assurance shall certify that each 
application or proposal for research covered by the assurance and by 
Sec.  27.103 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.  27.103 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 and 28019, June 18, 1991, 56 FR 29756, June 28, 1991]



Sec. Sec.  27.104-27.106  [Reserved]



Sec.  27.107  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.  27.108  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.  27.103(b)(4) and, to the extent required by, Sec.  27.103(b)(5).
    (b) Except when an expedited review procedure is used (see Sec.  
27.110), 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.

[[Page 279]]



Sec.  27.109  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.  27.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec.  27.116, 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.  27.117.
    (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.  27.110  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.  
27.108(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.



Sec.  27.111  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

[[Page 280]]

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.  27.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec.  27.117.
    (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.  27.112  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.  27.113  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.  27.114  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.



Sec.  27.115  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.

[[Page 281]]

    (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.  
27.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec.  27.103(b)(4) and Sec.  27.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec.  27.116(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.  27.116  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
    (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;

[[Page 282]]

    (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.  27.117  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.  27.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator 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.  27.116 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

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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.  27.118  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 subject's 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.  27.101 (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.  27.119  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.  27.120  Evaluation and disposition of applications and proposals for 
research to be conducted or supported by a Federal Department or Agency.

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



Sec.  27.121  [Reserved]



Sec.  27.122  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.  27.123  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,

[[Page 284]]

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 paragraph (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. 27.124  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 28_NEW RESTRICTIONS ON LOBBYING--Table of Contents




                            Subpart A_General

Sec.
28.100 Conditions on use of funds.
28.105 Definitions.
28.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

28.200 Agency and legislative liaison.
28.205 Professional and technical services.
28.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

28.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

28.400 Penalties.
28.405 Penalty procedures.
28.410 Enforcement.

                          Subpart E_Exemptions

28.500 Secretary of Defense.

                        Subpart F_Agency Reports

28.600 Semi-annual compilation.
28.605 Inspector General report.

Appendix A to Part 28--Certification Regarding Lobbying
Appendix B to Part 28--Disclosure Form to Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352; 5 U.S.C. 301; 
Sec. 4, as amended, and sec. 5, Pub. L. 101-410, 104 Stat. 890 (28 
U.S.C. 2461 note); Pub. L. 104-134, 110 Stat. 1321, 28 U.S.C. 2461 note.

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

    Source: 55 FR 6737, 6748, Feb. 26, 1990, unless otherwise noted.



                            Subpart A_General



Sec.  28.100  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

[[Page 285]]

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.  28.105  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 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.

[[Page 286]]

    (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 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.  28.110  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

[[Page 287]]

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.
    (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.  28.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.  
28.100 (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

[[Page 288]]

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.  28.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
28.100(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 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.  28.210  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.  28.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
28.100 (a), does not apply in the case of any reasonable

[[Page 289]]

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.  28.110 (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.
    (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.  28.400  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 made on or before October 23, 1996, 
and of not less than $11,000 and not more than $110,000 for each such 
expenditure made after October 23, 1996.
    (b) Any person who fails to file or amend the disclosure form (see 
Appendix B of this part) 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 occurring on or before October 
23, 1996, and of not less than $11,000 and not more than $110,000 for 
each such failure occurring after October 23, 1996.
    (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.

[[Page 290]]

    (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 for each such offense committed on or before October 23, 
1996, and $11,000 for each such offense committed after October 23, 
1996. Second and subsequent offenses by persons shall be subject to an 
appropriate civil penalty between $10,000 and $100,000 for each such 
offense committed on or before October 23, 1996, and between $11,000 and 
$110,000 for each such offense committed after October 23, 1996, 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.

[55 FR 6737, 6748, Feb. 26, 1990, as amended at 61 FR 55095, Oct. 24, 
1996]



Sec.  28.405  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.  28.410  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.  28.500  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.  28.600  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.
    (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

[[Page 291]]

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.  28.605  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 28--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 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 occurring on or before October 23, 1996, 
and of not less than $11,000 and not more than

[[Page 292]]

$110,000 for each such failure occurring after October 23, 1996.

            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 occurring on or before October 23, 1996, 
and of not less than $11,000 and not more than $110,000 for each such 
failure occurring after October 23, 1996.

[55 FR 6737, 6748, Feb. 26, 1990, as amended at 61 FR 55095, Oct. 24, 
1996]

[[Page 293]]

        Appendix B to Part 28--Disclosure Form to Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC20SE91.001


[[Page 294]]


[GRAPHIC] [TIFF OMITTED] TC20SE91.002


[[Page 295]]


[GRAPHIC] [TIFF OMITTED] TC20SE91.003


[[Page 297]]

     Subtitle B--Regulations Relating to Commerce and Foreign Trade

[[Page 299]]



         CHAPTER I--BUREAU OF THE CENSUS, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------
Part                                                                Page
30              Foreign trade statistics....................         301
40              Training of foreign participants in census 
                    procedures and general statistics.......         345
50              Special services and studies by the Bureau 
                    of the Census...........................         347
60              Public information..........................         352
70              Cutoff dates for recognition of boundary 
                    changes for the Census 2000.............         352
80              Furnishing personal census data from census 
                    of population schedules.................         352
90              Procedure for challenging certain population 
                    and income estimates....................         354
100             Seal........................................         357
101             Release of decennial census population 
                    information.............................         357
102--199

[Reserved]

[[Page 301]]



PART 30_FOREIGN TRADE STATISTICS--Table of Contents




                Subpart A_General Requirements_Exporters

Sec.
30.1 General statement of requirement for Shipper's Export Declarations.
30.2 Related export control requirements.
30.3 Shipper's Export Declaration forms.
30.4 Preparation and signature of Shipper's Export Declarations (SED).
30.5 Number of copies of Shipper's Export Declaration required.
30.6 Requirements as to separate Shipper's Export Declarations.
30.7 Information required on Shipper's Export Declarations.
30.8 Additional information required on Shipper's Export Declaration for 
          In-Transit Goods (Form 7513).
30.9 Requirements for separation and alignment of items on Shipper's 
          Export Declarations.
30.10 Continuation sheets for Shipper's Export Declaration.
30.11 Authority to require production of documents.
30.12 Time and place Shipper's Export Declarations required to be 
          presented.
30.13-30.14 [Reserved]
30.15 Procedure for presentation of declarations covering shipments from 
          an interior point.
30.16 Corrections to Shipper's Export Declarations.

            Subpart B_General Requirements_Exporting Carriers

30.20 General statement of requirement for the filing of manifests and 
          Shipper's Export Declarations by carriers.
30.21 Requirements for the filing of manifests.
30.22 Requirements for the filing of Shipper's Export Declarations by 
          departing carriers.
30.23 Requirements for the filing of Shipper's Export Declarations by 
          pipeline carriers.
30.24 Clearance or departure of carriers under bond on incomplete 
          manifest or Shipper's Export Declarations.

 Subpart C_Special Provisions Applicable Under Particular Circumstances

30.30 Values for certain types of transactions.
30.31 Identification of certain nonstatistical and other unusual 
          transactions.
30.32 [Reserved]
30.33 Vessels, planes, cargo vans, and other carriers and containers 
          sold foreign.
30.34 Return of exported cargo to the United States prior to reaching 
          its final destination.
30.35-30.36 [Reserved]
30.37 Exceptions from the requirement for reporting complete commodity 
          detail on the Shipper's Export Declaration.
30.38 [Reserved]
30.39 Authorization for reporting statistical information other than by 
          means of individual Shipper's Export Declarations filed for 
          each shipment.
30.40 Single declaration for multiple consignees.
30.41 ``Split shipments'' by air.

 Subpart D_Exemptions from the Requirements for the Filing of Shipper's 
                           Export Declarations

30.50 Procedure for shipments exempt from the requirements for Shipper's 
          Export Declarations.
30.51 Government shipments not generally exempt.
30.52 Special exemptions for shipments to the U.S. armed services.
30.53 Special exemptions for certain shipments to U.S. Government 
          agencies and employees.
30.54 [Reserved]
30.55 Miscellaneous exemptions.
30.56 Conditional exemptions.
30.57 Information on export declarations for shipments of types of goods 
          covered by Sec.  30.56 not conditionally exempt.
30.58 Exemption for shipments from the United States to Canada.

  Subpart E_Electronic Filing Requirements_Shipper's Export Information

30.60 General requirements for filing export and manifest data 
          electronically using the Automated Export System (AES).
30.61 Electronic filing options.
30.62 AES Certification, qualifications, and standards.
30.63 Information required to be reported electronically through AES 
          (data elements).
30.64 Transmitting and correcting AES information.
30.65 Annotating the proper exemption legends for shipments transmitted 
          electronically.
30.66 Recordkeeping and documentation requirements.

                Subpart F_General Requirements_Importers

30.70 Statistical information required on import entries.

[[Page 302]]

Subpart G_Special Provisions for Particular Types of Import Transactions

30.80 Imports from Canada.
30.81 Imports of merchandise into Guam.
30.82 Identification of U.S. merchandise returned for repair and 
          reexport.
30.83 Statistical copy of mail and informal entries.

               Subpart H_General Administrative Provisions

30.90 Confidential information, import entries and withdrawals.
30.91 Confidential information, Shipper's Export Declarations.
30.92 Statistical classification schedules.
30.93 Emergency exceptions.
30.94 Instructions to Customs.
30.95 Penalties for violations.
30.99 OMB control numbers assigned pursuant to the Paperwork Reduction 
          Act.

Appendix A to Part 30--Format for Letter of Intent, Automated Export 
          System (AES)
Appendix B to Part 30--Required Pre-Departure Data Elements for Filing 
          Option 3
Appendix C to Part 30--Electronic (AES) Filing Codes

    Authority: 5 U.S.C. 301; 13 U.S.C. 301-307; Reorganization Plan No. 
5 of 1950 (3 CFR 1949-1953 Comp., p. 1004), Department of Commerce 
Organization Order No. 35-2A, August 4, 1975, 40 FR 42765.

    Source: 41 FR 9134, Mar. 3, 1976, unless otherwise noted.
    Note: The term ``Customs Director'' or ``District Director of 
Customs'' as used in this part 30 means the Regional Commissioner of 
Customs if the transaction is at the port of New York City; the district 
director of customs if at the headquarters port of a customs district 
other than New York City; and the customs officer in charge of the port 
if at a nonheadquarters port.



                Subpart A_General Requirements_Exporters



Sec.  30.1  General statement of requirement for Shipper's Export Declarations.

    (a) Shipper's Export Declarations shall be filed by exporters or 
their agents in accordance with the definitions, specifications, and 
requirements of these regulations for all commodities, gold and silver, 
except as specifically exempted herein, shipped as follows:
    (1) To foreign countries or areas, including Foreign Trade Zones 
located therein, (see Sec.  30.58 for exemptions for shipments from the 
United States to Canada) from any of the following:
    (i) The United States, including the 50 States and the District of 
Columbia.
    (ii) Puerto Rico.
    (iii) Foreign Trade Zones in the United States or Puerto Rico.
    (iv) The Virgin Islands of the United States.
    (2) Between nonforeign areas as specified below then: \1\
---------------------------------------------------------------------------

    \1\ Shipper's Export Declarations are not required for shipments 
from the United States or Puerto Rico to the United States Possessions, 
except to the Virgin Islands of the United States, or from a U.S. 
Possession destined to the United States, Puerto Rico, or another U.S. 
Possession.
---------------------------------------------------------------------------

    (i) To Puerto Rico from the United States.
    (ii) To the United States from Puerto Rico.
    (iii) To the Virgin Islands of the United States from the United 
States or Puerto Rico.
    (b) Shipper's Export Declarations shall be filed for merchandise 
moving as described above regardless of the method of transportation. 
Instructions for the filing of Shipper's Export Declarations for 
vessels, aircraft, railway cars, etc., when sold foreign appear in Sec.  
30.33. Exemptions from these requirements and exceptions to some of the 
provisions of these regulations for particular types of transactions 
will be found in subparts C and D of this part.
    (c) In lieu of filing paper Shipper's Export Declarations as 
provided elsewhere in this section, exporters or their authorized agents 
have the option to file shipper's export information electronically, as 
provided in subpart E of this part. The Electronic filing requirements 
for filing shipper's export declaration information are contained in 
subpart E of this part, Electronic Filing Requirements-Shipper's Export 
Information.
    (d) Electronic transmissions and intangible transfers. Electronic 
transmissions to be received outside the United States and other 
intangible transfers, such as downloaded software, technical data, and 
technology, are not subject

[[Page 303]]

to this part, but may be subject to export control requirements under 
other laws and regulations. See 15 CFR parts 730 through 774 of the EAR.

[41 FR 9134, Mar. 3, 1976, as amended at 41 FR 29374, July 16, 1976; 41 
FR 42645, Sept. 28, 1976; 50 FR 13017, Apr. 2, 1985; 55 FR 49615, Nov. 
30, 1990; 64 FR 40976, July 28, 1999; 65 FR 42561, July 10, 2000]



Sec.  30.2  Related export control requirements.

    (a) Under the provisions of the Export Administration Regulations of 
the Office of Export Administration in the International Trade 
Administration, U.S. Department of Commerce (15 CFR Parts 368-399), \2\ 
Shipper's Export Declarations are also required for shipments of 
Merchandise from U.S. Possessions to foreign countries or areas. In 
these regulations, the term U.S. Possessions includes the Virgin Islands 
of the United States, Guam Island, American Samoa, Wake Island, Midway 
Island, and Canton and Enderbury Islands.
---------------------------------------------------------------------------

    \2\ See also the Export Administration Regulations of the Office of 
Export Administration, which may be purchased from the Government 
Printing Office or Department of Commerce District Offices.
---------------------------------------------------------------------------

    (b) For all shipments to foreign countries or areas, the Shipper's 
Export Declaration is an export control document. In preparing and 
filing export declarations for shipments to foreign countries and areas, 
therefore, the shipper must comply with all pertinent export control 
regulations as well as the requirements of the statistical regulations 
of this part. For convenience, a few provisions of the Export 
Administration Regulations and of the Customs regulations closely 
related to statistical requirements have been incorporated in these 
regulations. Information concerning export control regulations and 
information concerning agencies other than the Department of Commerce 
exercising export control authority for particular types of commodities 
may be obtained from the Office of Export Administration, International 
Trade Administration, Washington, D.C. 20230, or from Department of 
Commerce District Offices.

(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950, 
Department of Commerce Order No. 35-2A, August 4, 1975, 40 FR 42765)

[41 FR 9134, Mar. 3, 1976, as amended at 47 FR 7213, Feb. 18, 1982]



Sec.  30.3  Shipper's Export Declaration forms.

    (a) Official forms, or privately printed forms conforming in every 
respect to the official forms, shall be used in complying with 
requirements for Shipper's Export Declarations as follows:
    (1) Except for shipments for which the Shipper's Export Declaration 
for In transit Goods (Commerce Form 7513) is required as specified 
below, the Shipper's Export Declaration shall be prepared on Commerce 
Form 7525-V or on Commerce Form 7525-V-Alternate (Intermodal). The 
arrangement of Form 7525-V-Alternate (Intermodal) conforms to and is 
designed for simultaneous preparation with various other shipping 
documents commonly used, such as the dock receipt, short form bill of 
lading, etc. Form 7525-V-Alternate (Intermodal) is acceptable in lieu of 
Form 7525-V without limitation.
    (2) For merchandise shipped in transit through the United States, 
Puerto Rico, or the Virgin Islands of the United States from one foreign 
country or area to another, including such merchandise destined from one 
foreign place to another and transshipped in ports of the United States, 
Puerto Rico, or the Virgin Islands of the United States, and for foreign 
merchandise exported from General Order Warehouses, the Shipper's Export 
Declaration for Intransit Goods (Commerce Form 7513) shall be filed. 
Form 7513 shall also be filed for merchandise subject to government 
inspection, examination, or permit arriving from a foreign country which 
is rejected and exported. (Although Form 7513 provides that it is to be 
used for foreign merchandise, it should be used also for U.S. 
merchandise which after having been exported has been returned to or 
through the United States and is again being exported under any of the 
conditions described in this paragraph. Except for rejected merchandise, 
Form

[[Page 304]]

7513 is not to be used for the reexportation of goods for which entry 
has been made on Customs Forms 7501 or 7502.)
    (b) The Shipper's Export Declaration and the Continuation Sheet \3\ 
to the Shipper's Export Declaration (both forms designated Commerce Form 
7525-V), and the Shipper's Export Declaration for In-transit Goods 
(Commerce Form 7513) may be purchased for a nominal price from Customs 
Directors, Department of Commerce District Offices, and the 
Superintendent of Documents, Government Printing Office, Washington, 
D.C. 20402, or they may be privately printed. Supplies of the Alternate 
Intermodal Shipper's Export Declaration and the Continuation Sheet to 
the Alternate Intermodal Shipper's Export Declaration are not available 
from Government sales offices but must be privately printed. Sample 
official Alternate Intermodal Forms and their Continuation Sheets may be 
obtained from the Foreign Trade Division, Bureau of the Census, 
Washington, D.C. 20233. Privately printed Shipper's Export Declaration 
forms must conform strictly to the respective official form in size, 
wording, color, quality (weight of paper stock), and arrangement, 
including the Office of Management and Budget approval number printed in 
the upper-right hand corner of the face of form. The quality (weight) of 
paper stock used in printing the Shipper's Export Declaration form is 
not less than 16 nor more than 20 pounds commercial substance. 
Occasional shippers may obtain copies of Shipper's Export Declarations 
free of charge from local Customs Directors, Post Offices, and 
Department of Commerce District Offices.
---------------------------------------------------------------------------

    \3\ See Sec.  30.10 for instructions as to use of the continuations 
Sheet.

(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950, 
---------------------------------------------------------------------------
Department of Commerce Order No. 35-2A, August 4, 1975, 40 FR 42765)

[41 FR 9134, Mar. 3, 1976, as amended at 47 FR 29829, July 9, 1982; 50 
FR 23402, June 4, 1985]



Sec.  30.4  Preparation and signature of Shipper's Export Declaration (SED).

    (a) General requirements (SED). For purposes of this part, all 
references to preparing and filing the paper SED also pertain to 
preparing and filing the AES electronic record. The SED or AES record is 
a dual purpose document used by the Census Bureau for statistical 
reporting purposes only, and by the Bureau of Export Administration 
(BXA) and other government agencies for export control purposes. For 
purposes of this part, the provisions apply only to statistical 
reporting requirements. The Shipper's Export Declaration (SED) or the 
AES record must be prepared and signed by a principal party in interest 
or by a forwarding or other agent authorized by a principal party in 
interest. The person who signs the SED must be in the United States at 
the time of signing. That person, whether exporter (U.S. principal party 
in interest) or agent, is responsible for the truth, accuracy, and 
completeness of the SED or AES record, except insofar as that person can 
demonstrate that he or she reasonably relied on information furnished by 
others. The Census Bureau recognizes ``routed export transactions'' as a 
subset of export transactions. A routed export transaction is where the 
foreign principal party in interest authorizes a U.S. forwarding or 
other agent to facilitate export of items from the United States. See 
paragraph (c) of this section for responsibilities of parties in a 
routed export transaction.
    (1) Exporter (U.S. principal party in interest). For purposes of 
completing the paper SED or AES record in all export transactions, the 
exporter (U.S. principal party in interest) is listed as the ``U.S. 
principal party in interest'' on the SED or AES record. In all export 
transactions, the person listed in the U.S. principal party in interest 
block on the paper SED or in the U.S. principal party in interest field 
of the AES record is the exporter (U.S. principal party in interest) in 
the transaction. The U.S. principal party in interest is the person in 
the United States that receives the primary benefit, monetary or 
otherwise, of the transaction. Generally that person is the U.S. seller, 
manufacturer, order party, or foreign entity. The foreign entity must be 
listed as the U.S. principal party in interest on the SED or AES record, 
if it is in the United States when the items are purchased or obtained 
for export. The

[[Page 305]]

foreign entity must then follow the provisions for preparing and filing 
the SED or AES record specified in Sec. Sec.  30.4 and 30.7 pertaining 
to the U.S. principal party in interest. In most cases, the forwarding 
or other agent is not a principal party in interest.
    (i) If a U.S. manufacturer sells merchandise directly for export to 
a foreign principal party in interest, the U.S. manufacturer must be 
listed as the U.S. principal party in interest on the SED or AES record.
    (ii) If a U.S. manufacturer sells merchandise, as a domestic sale, 
to a U.S. buyer (wholesaler/distributor) and that U.S. buyer sells the 
merchandise for export to a foreign principal party in interest, the 
U.S. buyer (wholesaler/distributor) must be listed as the U.S. principal 
party in interest on the SED or AES record.
    (iii) If a U.S. order party directly arranges for the sale and 
export of merchandise to a foreign buyer, the U.S. order party must be 
listed as the U.S. principal party in interest on the SED or AES record. 
The order party is that person in the United States who conducted the 
direct negotiations or correspondence with the foreign principal party 
in interest and who, as a result of these negotiations, received the 
order from the foreign principal party in interest.
    (iv) If a foreign entity is in the United States when the items are 
purchased or obtained for export, it is the exporter (U.S. principal 
party in interest) and must be listed as the U.S. principal party in 
interest on the SED or AES record (see Sec.  30.4(a)(1)).

    Note to paragraph (a)(1):
    The EAR defines the ``exporter'' as the person in the United States 
who has the authority of a principal party in interest to determine and 
control the sending of items out of the United States (see 15 CFR Part 
772 of the EAR). For statistical purposes the Foreign Trade Statistics 
Regulations (FTSR) have a different definition of ``exporter'' from the 
Export Administration Regulations (EAR). Under the FTSR the ``exporter'' 
will always be the U.S. principal party in interest. For purposes of 
licensing responsibility under the EAR, the U.S. agent of the foreign 
principal party in interest may be the ``exporter'' or applicant on the 
license, in certain routed export transactions (see 15 CFR 758.3 of the 
EAR).

    (2) Forwarding or other agent. The forwarding or other agent is that 
person in the United States who is authorized by a principal party in 
interest to perform the services required to facilitate the export of 
items from the United States. The forwarding or other agent must be 
authorized by the exporter (U.S. principal party in interest) or, in the 
case of a routed export transaction, the foreign principal party in 
interest to prepare and file the SED or the AES record. In a routed 
export transaction, the forwarding or other agent can be the exporter 
for export control purposes under the EAR. However, the forwarding or 
other agent is never the ``U.S. principal party in interest'' in the 
U.S. principal party in interest block on the paper SED or in the ``U.S. 
principal party in interest'' field of the AES record unless the 
forwarding or other agent acts as an ``order party.'' (See paragraph 
(a)(1)(iii) for definition of order party)
    (3) Principal parties in interest. Those persons in a transaction 
that receive the primary benefit, monetary or otherwise, of the 
transaction. Generally, the principals in a transaction are the seller 
and the buyer. In most cases, a forwarding or other agent is not a 
principal party in interest.
    (b) Responsibilities of parties in export transactions. (1) Exporter 
(U.S. principal party in interest) responsibilities. (i) The exporter 
(U.S. principal party in interest) can prepare and file the SED or AES 
record itself, or it can authorize a forwarding or other agent to 
prepare and file the SED or AES record on its behalf. If the exporter 
(U.S. principal party in interest) prepares the SED or AES record 
itself, the exporter (U.S. principal party in interest) is responsible 
for the accuracy of all the export information reported on the SED or 
AES record, for signing the paper SED, filing the paper SED with U.S. 
Customs, or transmitting the AES record to U.S. Customs.
    (ii) When the exporter (U.S. principal party in interest) authorizes 
a forwarding or other agent to complete the SED or AES record on its 
behalf, the exporter (U.S. principal party in interest) is responsible 
for:

[[Page 306]]

    (A) Providing the forwarding or other agent with the export 
information necessary to complete the SED or AES record;
    (B) Providing the forwarding or other agent with a power of attorney 
or written authorization to complete the SED or AES record, or signing 
the authorization block printed on the paper SED (block 23 on Commerce 
Form 7525-V and block 29 on Commerce Form 7525-V-ALT); and
    (C) Maintaining documentation to support the information provided to 
the forwarding or other agent for completion of the SED or AES record, 
as specified in Sec.  30.11.
    (2) Forwarding or other agent responsibilities. The forwarding or 
other agent, when authorized by an exporter (U.S. principal party in 
interest) to prepare and sign the SED or prepare and file the AES record 
in an export transaction, is responsible for:
    (i) Accurately preparing the SED or AES record based on information 
received from the exporter (U.S. principal party in interest) and other 
parties involved in the transaction;
    (ii) Obtaining a power of attorney or written authorization to 
complete the SED or AES record, or obtaining a paper SED with a signed 
authorization from the exporter (U.S. principal party in interest);
    (iii) Maintaining documentation to support the information reported 
on the SED or AES record, as specified in Sec.  30.11; and
    (iv) Upon request, providing the exporter (U.S. principal party in 
interest) with a copy of the export information filed in the form of a 
completed SED, an electronic facsimile, or in any other manner 
prescribed by the exporter (U.S. principal party in interest).
    (c) Responsibilities of parties in a routed export transaction. (1) 
Exporter (U.S. principal party in interest) responsibilities. In a 
routed export transaction where the foreign principal party in interest 
authorizes a U.S. forwarding or other agent to prepare and file the SED 
or AES record, the exporter (U.S. principal party in interest) must 
maintain documentation to support the information provided to the 
forwarding or other agent for preparing the SED or AES record as 
specified in Sec.  30.11 and provide such forwarding or other agent with 
the following information to assist in preparing the SED or AES record:
    (i) Name and address of the U.S. principal party in interest;
    (ii) U.S. principal party in interest's, IRS, EIN;
    (iii) Point of origin (State or FTZ);
    (iv) Schedule B description of commodities;
    (v) Domestic (D), foreign (F), or FMS (M) code;
    (vi) Schedule B Number;
    (vii) Quantity/unit of measure;
    (viii) Value;
    (ix) Upon request from the foreign principal party in interest or 
its agent, the Export Control Classification Number (ECCN) or sufficient 
technical information to determine the ECCN; and
    (x) Any information that it knows will affect the determination of 
license authority.

    Note to paragraph (c)(1):
    For items in paragraph (c)(1)(ix) and (x) of this section, where the 
foreign principal party in interest has assumed responsibility for 
determining and obtaining license authority, the EAR sets forth the 
information sharing requirements that apply at 15 CFR 758.3(c) of the 
EAR.

    (2) Forwarding or other agent responsibilities. In a routed export 
transaction, the forwarding or other agent is responsible for; obtaining 
a power of attorney or written authorization from the foreign principal 
party in interest to prepare and file the SED or AES record on its 
behalf; preparing, signing, and filing the SED or AES record based on 
information obtained from the exporter (U.S. principal party in 
interest) or other parties involved in the transaction; maintaining 
documentation to support the information reported on the SED or AES 
record, and upon request by the exporter (U.S. principal party in 
interest), provide appropriate documentation to the exporter (U.S. 
principal party in interest) verifying that the information provided by 
the exporter (U.S. principal party in interest) was accurately reported 
on the SED or AES record. The forwarding or other agent must also 
provide the following export information on the SED or AES record:
    (i) Date of exportation;

[[Page 307]]

    (ii) Bill of lading/airway bill number;
    (iii) Ultimate consignee;
    (iv) Intermediate consignee;
    (v) Forwarding or other agent name and address;
    (vi) Country of ultimate destination;
    (vii) Loading pier;
    (viii) Method of transportation;
    (ix) Exporting carrier;
    (x) Port of export;
    (xi) Port of unloading;
    (xii) Containerized;
    (xiii) Weight;
    (xiv) ECCN;
    (xv) License Authority;
    (xvi) Signature in the certification block on the paper SED (block 
24 on Commerce Form 7525-V and block 36 on Commerce Form 7525-V-ALT). In 
a routed export transaction the exporter (U.S. principal party in 
interest) must be listed as U.S. principal party in interest on the SED 
or on the AES record;

    Note to paragraph (c)(2):
    For items in paragraph (c)(2)(xiv) and (xv) of this section, where 
the foreign principal party in interest has assumed responsibility for 
determining and obtaining license authority, the EAR sets forth the 
information sharing requirements that apply at 15 CFR 758.3(c) of the 
EAR.

    (d) Information on the Shipper's Export Declaration (SED) or 
Automated Export System (AES) record. The data provided on the SED or 
AES electronic record shall be complete, correct, and based on personal 
knowledge of the facts stated or on information furnished by the parties 
involved in the export transaction. All parties involved in export 
transactions, including U.S. forwarding or other agents, should be aware 
that invoices and other commercial documents may not necessarily contain 
all the information needed to prepare the SED or AES record. The parties 
must ensure that all the information needed for completing the SED or 
AES record, including correct export licensing information, is provided 
to the forwarding or other agent for the purpose of correctly preparing 
the SED or AES record as stated in this section.
    (e) Authorizing a Forwarding or other agent. In a power of attorney 
or other written authorization, authority is conferred upon an agent to 
perform certain specified acts or kinds of acts on behalf of a principal 
(see 15 CFR 758.1(h) of the EAR). In cases where a forwarding or other 
agent is filing export information on the SED or AES record, the 
forwarding or other agent must obtain a power of attorney or written 
authorization from a principal party in interest to file the information 
on its behalf. A power of attorney or written authorization should 
specify the responsibilities of the parties with particularity, and 
should state that the forwarding or other agent has authority to act on 
behalf of a principal party in interest as its true and lawful agent for 
purposes of the export transaction in accordance with the laws and 
regulations of the United States.
    (f) Format requirements for SEDs: The SED shall be prepared in 
English and shall be typewritten or prepared in ink or other permanent 
medium (except indelible pencil). The use of duplicating processes, as 
well as the overprinting of selected items of information, is 
acceptable.
    (g) Copies of SEDs: All copies of the SEDs must contain all of the 
information called for in the signature space as to name of firm, 
address, name of signer, and capacity of signer. The original SED must 
be signed in ink, but signature on other copies is not required. The use 
of signature stamps is acceptable. A signed legible carbon or other copy 
of the export declaration is acceptable as an ``original'' of the SED.

[65 FR 42561, July 10, 2000]



Sec.  30.5  Number of copies of Shipper's Export Declaration required.

    (a) Except as provided elsewhere in these regulations the Shipper's 
Export Declaration shall be delivered to the carrier or postmasters, as 
specified in Sec. Sec.  30.12 and 30.15, in the following number of 
copies:
    (1) In duplicate for shipments, except by mail, destined to all 
foreign countries except Canada.
    (2) One copy only for shipments to Canada (see Sec.  30.58 for 
exemption for shipments from the United States to Canada) and nonforeign 
areas.
    (3) One copy only for mail shipments to all destinations.
    (b) In addition to the standard requirements set forth in paragraph 
(a) of this section, additional copies of

[[Page 308]]

Shipper's Export Declarations may be required for export control 
purposes by the regulations of the Office of Export Administration or 
other Government agencies or in particular circumstances by the Customs 
Director or by the postmaster.

[41 FR 9134, Mar. 3, 1976, as amended at 55 FR 49615, Nov. 30, 1990]



Sec.  30.6  Requirements as to separate Shipper's Export Declarations.

    Except as specifically provided in subpart C, a separate Shipper's 
Export Declaration (in the required number of copies--see Sec.  30.5) is 
required for each shipment (consisting of one or more kinds of 
merchandise) from one consignor to one consignee on a single carrier. In 
addition, more than one declaration is required for an individual 
shipment as follows:
    (a) For consignments by rail, truck, or other vehicle, requiring 
more than one rail car, truck, or other vehicle, a separate export 
declaration is required for the merchandise carried in each such rail 
car, truck, or other vehicle. However, Customs Directors are authorized 
to waive this requirement where multiple car shipments are made under a 
single bill of lading or other loading document and are cleared 
simultaneously.
    (b) [Reserved]

[41 FR 9134, Mar. 3, 1976, as amended at 55 FR 47049, Nov. 9, 1990]



Sec.  30.7  Information required on Shipper's Export Declarations.

    The following information shall be furnished in the appropriate 
spaces provided on the paper copy of the Shipper's Export Declaration 
and shall conform to the requirements set forth in this section. (See 
Sec.  30.92 for information as to the statistical classification 
Schedules C and D referred to in this section. Also, see Sec.  30.8 for 
information required on Form 7513 in addition to these requirements.) 
For information required to be filed electronically see Sec.  30.63.
    (a) Port of export. The name of the U.S. Customs port of exportation 
shall be entered in terms of Schedule D, Classification of Customs 
Districts and Ports. (See Sec.  30.20(c) for definition of port of 
exportation.) For shipments by mail, the name of the Post Office where 
the package is mailed shall be inserted in the space for U.S. port of 
export.
    (b) Method of transportation. Except on Commerce Form 7513, the 
method of transportation by which the goods are exported (or shipped to 
a nonforeign area where the declaration covers such a shipment) i.e., 
vessel (including ferry), air, or other, shall be indicated by check 
mark in the appropriate space. For shipments by means of transportation 
other than vessel or air the specific method of transportation (rail, 
truck, pipeline, etc.) used should be entered. ``Other'' should be 
checked for exported aircraft being flown away, vessels exported under 
their own power or afloat, or for other vehicles exported other than 
aboard another carrier, and the manner in which exported should be 
specified; e.g., ``flown away,'' ``in tow,'' etc.
    (c) Exporting carrier. Information concerning the specific exporting 
carrier shall be reported as follows:
    (1) For shipments by vessel, the name and flag nationality of the 
ship and the number or name of the pier at which the goods were laden 
shall be shown.
    (2) For shipments by air, the name of the airline shall be reported.
    (3) For shipments by other than vessel or air, the carrier shall be 
identified by name and number or other available designation.

In all cases, the information shall be furnished as to the carrier which 
transports the merchandise to a foreign country or to an ultimate 
destination in a nonforeign area, and not as to a different carrier 
which may have transported the goods to the seaport, airport, or border 
port of export for final shipment.
    (d) Name of the U.S. principal party in interest and U.S. principal 
party in interest's Employer Identification Number (EIN). For purposes 
of completing the paper SED or AES record the exporter (U.S. principal 
party in interest) is the U.S. principal party in interest. The name and 
address (number, street, city, state, ZIP Code) of the U.S. principal 
party in interest and the U.S. principal party in interest's EIN shall 
be entered where requested on the SED or AES electronic record. The EIN 
shall be the

[[Page 309]]

U.S. principal party in interest's own and not another's EIN.
    (1) Name of the U.S. principal party in interest. In all export 
transactions, the person listed in the U.S. principal party in interest 
block on the SED or in the U.S. principal party in interest field on the 
AES record must be the exporter (U.S. principal party in interest) in 
the transaction. The U.S. principal party in interest is the person in 
the United States that receives the primary benefit, monetary or 
otherwise, of the export transaction. Generally that person is the U.S. 
seller, manufacturer, order party, or foreign entity, if in the United 
States when the items are purchased or obtained for export. The foreign 
entity must then follow the provisions for preparing and filing the SED 
or AES record specified in Sec. Sec.  30.4 and 30.7 pertaining to the 
U.S. principal party in interest. (See Sec.  30.4 for details on the 
specific reporting responsibilities of exporter (U.S. principal party in 
interest)).
    (2) U.S. principal party in interest's Employer Identification 
Number (EIN). An exporter (U.S. principal party in interest) shall 
report its own Internal Revenue Service (IRS) EIN in the U.S. principal 
party in interest's (IRS) EIN block/field on the SED. If, and only if, 
no IRS EIN has been assigned to the exporter (U.S. principal party in 
interest), the exporter's (U.S. principal party in interest) own SSN, 
preceded by the symbol ``SS,'' must be reported on the paper SED. On the 
AES record the appropriate SSN symbol must be reported. When a foreign 
entity is in the United States when the items are purchased or obtained 
for export it is the exporter (U.S. principal party in interest). In 
such situations, when the foreign entity does not have an EIN or SSN, a 
border crossing number, passport number, or any number assigned by U.S. 
Customs must be reported on the SED or the AES record. On the paper SED, 
the appropriate number should be preceded by the symbol ``T.'' On the 
AES record, the appropriate AES identifier code as specified in the 
Automated Export System Trade Interface Requirements (AESTIR) must be 
reported. Use of another's EIN or SSN is prohibited.
    (e) Forwarding or other agent. The name and address of the duly 
authorized forwarding or other agent (if any) of a principal party in 
interest must be recorded where required on the SED or AES record. (See 
Sec.  30.4 for details on the specific reporting responsibilities of 
forwarding or other agents).
    (f) Ultimate consignee. The name and address (place, country) of the 
ultimate consignee whether by sale in the United States or abroad or by 
consignment shall be stated on the export declaration. For exports to 
foreign countries, the ultimate consignee shall be the same person so 
designated in the validated export license or authorized to be ultimate 
consignee under the applicable general license in conformity with Export 
Administration Regulations.
    (g) Intermediate consignee. The name and address of the intermediate 
consignee (if any) shall be stated. For exports to foreign countries, 
the intermediate consignee shall be the person named as such in the 
validated export license or authorized to act as such under the 
applicable general license and in conformity with the Export 
Administration Regulations. If there is no intermediate consignee, the 
word ``none'' shall be entered on the Shipper's Export Declaration. (On 
Form 7513 the name and address of the intermediate consignee (if any) in 
a foreign country must be shown below the description of commodities 
across columns 1 through 6.)
    (h) Foreign port of unloading. For shipments by vessel and by air 
the foreign port and country of unloading (i.e., the foreign port and 
country at which the merchandise will be unlad-en from the exporting 
carrier) shall be shown on the Shipper's Export Declaration in addition 
to the country of ultimate destination. The reporting of ``optional'' 
ports of unloading is not permissible except as provided in the Export 
Administration Regulations. \4\ Where optional ports of unloading are 
named on the Shipper's Export Declaration under the permissible 
conditions, a photocopy, carbon, or other legible copy of the originally 
filed

[[Page 310]]

Shipper's Export Declaration indicating the actual port of unloading 
shall be filed by the exporter or his agent with the Customs Director as 
soon as the actual port of unloading is known to the exporter. (See 
Sec.  30.16 of these regulations.) Information as to port of unloading 
is required for shipments by vessel and air only.
---------------------------------------------------------------------------

    \4\ See Export Administration Regulations. (See footnote 2 to Sec.  
30.2)
---------------------------------------------------------------------------

    (i) Country of destination. Country of destination shall be reported 
on the Shipper's Export Declaration in terms of the names designated in 
Schedule C-E, Classification of Country and Territory Designations for 
U.S. Export Statistics, as follows:
    (1) For shipments under validated export licenses, the country of 
ultimate destination shown on the export decaration shall conform to the 
country of ultimate destination as shown on the license.
    (2) For shipments not moving under validated export license, the 
country of ultimate destination as known to the exporter at the time or 
exportation shall be shown on the export declaration. ``Country of 
ultimate destination'' means the country in which the goods are to be 
consumed or further processed or manufactured. The country to which the 
goods are being shipped is not the country of ultimate destination for 
purposes of preparing the Shipper's Export Declaration if the exporter 
has knowledge at the time the goods leave the United States that they 
are intended for reexport or transshipment in their present form to 
another known country. For goods shipped to Canada, Panama, Hong Kong, 
Belgium or The Netherlands for example, special care should be exercised 
before reporting these countries as the ultimate destination, since 
these are countries through which merchandise from the United States is 
frequently transshipped. If the shipper does not know the ultimate 
destination of the goods, the country of destination to be shown on the 
export declaration is the last country, as known to the exporter at the 
time of shipment from the United States, to which the goods are to be 
shipped in their present form. (For instructions as to the reporting of 
country of destination for vessels sold or transferred from the United 
States to foreign ownership, see Sec.  30.33.)
    (j) Marks and numbers. For purposes of identification of the export 
declaration with the merchandise it covers, the marks, numbers, or other 
identification shown on the packages should be inserted. This 
information is not required for shipments by mail inasmuch as the 
declaration is presented to the Postmaster with the packages being 
mailed.
    (k) Number and kind of packages. The number and kind of packages 
(i.e., boxes, barrels, baskets, bales, etc.) shall be stated.
    (l) Description of commodities and Schedule B number. The correct 
commodity number as provided in Schedule B, Statistical Classification 
of Domestic and Foreign Commodities Exported from the United States, 
shall be entered in the space provided on the Shipper's Export 
Declaration form, and a description of the merchandise shall be supplied 
in the ``Description of Commodities'' column in sufficient detail to 
permit the verification of the Schedule B commodity number. The name of 
the commodity, in terms which can be identified or associated with the 
language used in Schedule B (usually the commercial name of the 
commodity), and any and all characteristics of the commodity which 
distinguish it from commodities of the same name covered by other 
Schedule B classifications shall be clearly and fully stated. Careful 
reference to the Schedule B classification scheme for related 
commodities as well as for the commodity being shipped is necessary in 
order to establish which particular characteristics must be stated in 
the description to permit verification of the correct Schedule B 
commodity number and to eliminate any question that some other commodity 
number might apply. A description of commodities in the kind of detail 
specified above is a separate requirement, and the furnishing of the 
correct Schedule B commodity number does not relieve the exporter of 
furnishing, in addition, a complete and accurate commodity description 
in accordance with this requirement. If the shipment is moving under a 
validated license, the description shown on the export declaration shall 
conform with that shown on the validated export license. However, where 
the description

[[Page 311]]

on the license does not state all of the characteristics of the 
commodity which are needed to completely verify the commodity number, as 
described above, the missing characteristics, as well as the description 
shown on the license, shall be stated in the commodity description on 
the Shipper's Export Declaration.
    (m) Export license number and expiration date (or general license 
symbol). For exports to foreign countries the export license number and 
expiration date, or the general license symbol shall be shown below the 
description of the commodity.
    (n) Net quantity. Where a unit of quantity is specified in Schedule 
B for the commodity number in which the item is classified, net quantity 
is required to be reported in the specified unit, and the unit in which 
reported should be indicated on the declaration following the net 
quantity figure. Where the unit of quantity specified in Schedule B is 
``No.'' (number), ``Each'' or the abbreviation ``Ea.'' may be indicated 
on the declaration as the unit of quantity. If no unit of quantity is 
specified in Schedule B for a numbered classification, but a validated 
export license for the item specifies a unit of quantity, the net 
quantity shall be reported on the declaration in terms of the unit of 
quantity specified in the validated license. If neither Schedule B nor 
an applicable validated license specifies a unit of quantity for the 
item, net quantity is not required to be reported, and an ``X'' should 
be entered in the ``net quantity'' column on the Shipper's Export 
Declaration. Where Schedule B calls for two units of quantity, net 
quantity shall be reported in terms of both units. Where the specified 
unit is in terms of weight (ounces, pounds, etc.) the net quantity 
should reflect the net weight, exclusive of the weight of barrels, 
boxes, or other bulky coverings, and exclusive of salt or pickle in the 
case of salted or pickled fish or meats. Note, however, That for a few 
commodities where ``content lb.,'' ``dry weight,'' or some similar 
weight unit is specified in Schedule B, the net quantity to be reported 
on the Shipper's Export Declaration may be less than the net weight. In 
the expression of net quantities, fractions of one-half unit or upward 
will be counted as a whole unit, and fractions of less than one-half 
unit will be ignored, except that where the total net quantity is less 
than one-half of the unit prescribed for the commodity in Schedule B 
``Less than one-half (unit)'' should be reported. (For example, where 
the unit for a given commodity is in terms of ``M board feet,'' a net 
quantity of 8,400 board feet would be reported as ``8 M bd. ft.'' and a 
net quantity of 900 board feet would be reported as ``1 M bd. ft.''; 
however, a total net quantity of 450 board feet should not be ignored 
but should be reported as ``less than one-half M bd. ft.''.)
    (o) Gross (shipping) weight. In addition to specifying the net 
quantity in the units required by Schedule B, the gross shipping weight 
in pounds, including the weight of containers, shall be shown for all 
shipments by vessel and air. However, for containerized cargo in lift 
vans, cargo vans, or similar substantial outer containers, the weight of 
such containers should not be included in the gross weight of the 
commodities. If gross shipping weight information is not available for 
individual Schedule B items for the reason that commodities covered by 
more than one Schedule B number are contained in the same shipping 
container, approximate shipping weights, estimated as accurately as is 
practicable, may be shown on the Shipper's Export Declarations for each 
Schedule B item in the container. The total of the estimated weights 
must equal the actual shipping weight of the entire container or 
containers and contents. Gross shipping weight is not required for 
shipments by mail or for shipments by methods of transportation other 
than vessel or air.
    (p) ``D'' (Domestic) or ``F'' (Foreign). (1) The export declaration 
covering exports to foreign countries shall show foreign goods 
separately from goods of domestic production. Exports of foreign 
merchandise include those commodities which are the growth, produce, or 
manufacture of foreign countries which entered the United States, 
including U.S. Foreign Trade Zones, as imports and which at the time of 
exportation have undergone no

[[Page 312]]

change in form or condition or enhancement in value by further 
manufacture in the United States, including U.S. Foreign Trade Zones, 
Puerto Rico, or U.S. Possessions.
    (2) Exports of domestic merchandise include those commodities which 
are the growth, produce, or manufacture of the United States, including 
U.S. Foreign Trade Zones, Puerto Rico, or U.S. Possessions (including 
commodities incorporating foreign components), and those articles of 
foreign origin which have been enhanced in value or changed from the 
form in which imported by further manufacture or processing in the 
United States, including U.S. Foreign Trade Zones, Puerto Rico, or U.S. 
Possessions.
    (3) The above distinction between domestic and foreign merchandise 
is intended only for use in reporting on the Shipper's Export 
Declaration and is intended for statistical purposes only.
    (4) On the Shipper's Export Declaration in the column headed 
``Specify `D' or `F' '', domestic merchandise shall be identified by the 
designation ``D'' and foreign merchandise shall be identified by the 
designation ``F.'' On the Shipper's Export Declaration for In-Transit 
Goods, Form 7513, one of the following statements, whichever is 
appropriate, shall be shown across the body of the form within columns 1 
through 6:
    (i) For in-transit shipments of domestic (U.S.) merchandise, ``The 
merchandise described herein is of the growth, production or manufacture 
of the United States;'' and
    (ii) For in-transit shipments of foreign merchandise, ``The 
merchandise described herein is of foreign origin.''
    (5) Foreign Military Sales (FMS) indicator. For any export that 
represents the delivery of goods or the repair of military equipment 
under provisions of the FMS program (including those financed under the 
Foreign Military Finance (FMF) Program), an ``M'' indicator code should 
be included in Item (16) on Commerce Form 7525-V and in Item (23) on 
Commerce Form 7525-V-ALT (Intermodal) of the paper SED, with an ``FS'' 
Export Information Code on the Commodity Line Item Description (CL1) 
field of the Automated Export System (AES) record layout, and a ``3'' 
indicator code in field 2 (Type) of the Automated Export Reporting 
Program (AERP) record layout. This indicator code should be used in lieu 
of the domestic (D) or foreign (F) indicator code required in those 
fields on the SED Form, the AES record, and the AERP record. The FMS 
indicator code will serve to identify more accurately that segment of 
U.S. exports that represent FMS deliveries in the U.S. export 
statistics.
    (q) Value. (1) In general, the value to be reported on the Shipper's 
Export Declaration or AES record shall be the value at the U.S. port of 
export (selling price or cost if not sold, including inland freight, 
insurance, and other charges to U.S. port of export) (nearest whole 
dollar; omit cents figures). The ``Selling price'' for goods exported 
pursuant to sale, and the value to be reported on the SED or AES record, 
is the exporter's (U.S. principal party in interest) price to the 
foreign principal party in interest, net any unconditional discounts 
from list price, but without deducting any discounts which are 
conditional upon a particular act or performance on the part of the 
customer. Commissions to be paid by an exporter (U.S. principal party in 
interest) to his agent abroad, or to be deducted from the selling price 
by the agent abroad should be excluded. For goods shipped on consignment 
without a sale actually having been made at the time of export, the 
``selling price'' to be reported on the SED or AES record is the market 
value at the time of export at the United States port from which 
exported.
    (2) The value reported on the Shippers' Export Declaration shall 
exclude: The cost of loading on the exporting vessel, aircraft, car or 
vehicle at the port of exportation; freight, insurance, and any other 
charges or transportation costs beyond the port of export; and any 
duties, taxes, or other assessments imposed by foreign countries. The 
value reported shall include inland or domestic freight or other charges 
to the seaport, airport, or border port of exportation.
    (3) The value to be reported as defined above is (or is equivalent 
to) an f.a.s. (Free alongside ship) value. Therefore, where goods are 
sold f.o.b. a

[[Page 313]]

U.S. point other than the port of exportation, freight, insurance, and 
other costs to the border, sea, or airport of exportation shall be added 
to the selling price (as defined above) for purposes of reporting value 
on the Shipper's Export Declaration. If the actual amount of such 
domestic costs is not available, an estimate of the domestic costs shall 
be added. Where goods are sold at a ``delivered'' price, c.i.f. foreign 
destination, the cost of loading on the exporting carrier at the port of 
exportation, if any, and freight, insurance, and other costs beyond the 
port of exportation should be subtracted from the price for purposes of 
reporting value on the Shipper's Export Declaration. If the actual 
amount of such costs is not available, an estimate of the costs should 
be subtracted. Costs added to or subtracted from the selling price in 
accordance with the above instructions should not be itemized or shown 
separately on the Shipper's Export Declaration, but the value reported 
should be the value after the making of such adjustments, where they are 
required to arrive at ``value at U.S. port of export.'' In the 
expression of values in export declarations, fractions of a dollar less 
than 50 cents should be ignored, and fractions of 50 cents or upward 
should be counted as $1.
    (4) For definitions of the value to be shown on the Shipper's Export 
Declaration for special types of transactions where the commodities are 
not being exported pursuant to commercial sales, or where subsidies, 
government financing or participation, or other unusual conditions are 
involved, see Sec.  30.30.
    (r) Date of exportation. Information as to date of exportation is 
not required to be reported for shipments by vessel or by mail. For 
other shipments, the date of departure (or date of clearance, if date of 
departure is not known) shall be shown on the Shipper's Export 
Declaration as the date of exportation.
    (s) Designation of agent and signature. For information regarding 
the use of the space provided on Form 7525-V and 7525-V-Alternate 
(Intermodal) for authorization of agent, and for requirements as to 
signature, see Sec.  30.4.
    (t) Point (state) of origin or Foreign Trade Zone number. (Not 
required for in-transit merchandise documented on Form 7513.) (1) The 
state in which the merchandise actually begins its movement in 
international trade; that is, the state in which the merchandise 
actually starts its journey to the port of export. For example, a 
Shipper's Export Declaration covering merchandise laden aboard a truck 
at a warehouse in Georgia for transport to Florida for loading onto a 
vessel for export to a foreign country shall show Georgia as the state 
of origin. This may not be the state where the merchandise was produced, 
mined, or grown, or necessarily the state where the exporter is located. 
The state designation to be shown shall be the U.S. Postal Service's 
standard two-letter state abbreviation.
    (2) For shipments of multistate origin, reported on a single SED, 
report state of the commodity of the greatest value or, if such 
information is not known at the time of export, the state in which the 
commodities are consolidated for export.
    (3) For merchandise exported from a U.S. Foreign Trade Zone, the 
letters ``FTZ'' followed by the Foreign Trade Zone number shall be 
reported.
    (u) Containerized. (Not required for in-transit merchandise 
documented on Form 7513.) This information is required to be shown for 
vessel shipments only. A containerized shipment is one transported in 
any size van-type container such as 8[foot]x8[foot]x20[foot] or 
8[foot]x8[foot]x40[foot]. Cargo originally booked as containerized cargo 
as well as that placed in containers at the vessel operator's option 
shall be included.
    (v) Parties to transaction. (Not required for in-transit merchandise 
documented on Form 7513.) An export between related parties is one--
    (1) From a U.S. person (U.S. exporter) to a foreign business 
enterprise (foreign consignee) in which at anytime during the fiscal 
year, the U.S. person owned or controlled, directly or indirectly, 10 
percent or more of the voting securities of the foreign enterprise, if 
an incorporated business enterprise; or an equivalent interest, if an 
unincorporated business enterprise, including a branch; or

[[Page 314]]

    (2) From a U.S. business enterprise (U.S. exporter) to a foreign 
person (foreign consignee) that, at anytime during the fiscal year, 
owned or controlled, directly or indirectly, 10 percent or more of the 
voting securities of the U.S. business enterprise, if an incorporated 
business enterprise; or an equivalent interest if an unincorporated 
business enterprise, including a branch.

(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950; 
Department of Commerce Organization Order No. 35-2 A, Aug. 4, 1975, 40 
FR 42765)

[41 FR 9134, Mar. 3, 1976, as amended at 42 FR 59839, Nov. 22, 1977; 43 
FR 50675, Oct. 31, 1978; 43 FR 56030, Nov. 30, 1978; 44 FR 1971, Jan. 8, 
1979; 45 FR 29567, May 5, 1980; 47 FR 29829, July 9, 1982; 50 FR 23402, 
June 4, 1985; 63 FR 41187, Aug. 3, 1998; 64 FR 40976, July 28, 1999; 65 
FR 42563, July 10, 2000]



Sec.  30.8  Additional information required on Shipper's Export Declaration 
for In-Transit Goods (Form 7513).

    In addition to the information required under Sec.  30.7, the 
following information shall be shown on the Shipper's Export Declaration 
for In-Transit Goods, Form 7513:
    (a) U.S. port of arrival. The U.S. port at which the merchandise 
covered by the declaration arrived from a foreign country shall be 
shown.
    (b) Country from which shipped. The name of the foreign country 
where the goods were loaded on the carrier which transported the 
merchandise to the United States from a foreign country shall be 
indicated.
    (c) Date of arrival. The date on which the merchandise arrived in 
the United States shall be entered.
    (d) Country of origin. The name of the country of origin as defined 
in Sec.  30.70(f) shall be indicated.



Sec.  30.9  Requirements for separation and alignment of items on 
Shipper's Export Declarations.

    For each Schedule B classification (see Sec.  30.7(l)) for which 
merchandise is included in the shipment, a separate item shall be shown 
on the Shipper's Export Declaration and the separate description of 
commodities, shipping weight, ``D'' or ``F'' designation, Schedule B 
commodity number, net quantity and value for the item shall be correctly 
aligned horizontally, and clearly distinguishable from information 
applying to other Schedule B items on the same declaration. However, 
where merchandise covered by a single Schedule B classification is 
moving under more than one general license, under more than one 
validated export license, or under a validated export license which 
shows two or more listings for the same Schedule B number, a separate 
item shall be shown on the Shipper's Export Declaration for each license 
or for each listing on the license. \5\ For merchandise moving under 
validated license, information required by export control regulations as 
to export license number and expiration date, and information as to 
whether the export is a partial or complete shipment against the 
license, shall be shown immediately below the corresponding description 
of commodities on the Shipper's Export Declaration. Where two or more 
items are classified under the same Schedule B number and moving under 
the same general license, or where no license is required, the 
quantities, values and shipping weights of such invoice items, wherever 
practical, should be combined and the information shown on a single 
horizontal line of the Shipper's Export Declaration. Commodities of U.S. 
manufacture incorporating foreign components shall be reported under the 
Schedule B number for the exported commodity, and a separate item shall 
not be shown for the imported components. If the exporter desires to 
record the imported components separately on the export declaration for 
purposes of identification with a temporary import bond, a notation may 
be made in the ``Description of Commodities'' column as to the imported 
components that have been incorporated in the exported commodity. In the 
preparation of the export declaration, shippers shall conform to the 
line spacing on all copies.
---------------------------------------------------------------------------

    \5\ See Sec.  30.6 for prohibition against reporting general license 
commodities on the same Shipper's Export Declaration with commodities 
moving under a validated license.

[41 FDR 9134, Mar. 3, 1976, as amended at 50 FR 23403, June 4, 1985]

[[Page 315]]



Sec.  30.10  Continuation sheets for Shipper's Export Declaration.

    When more horizontal lines than the number provided on the Shipper's 
Export Declaration form are required to list all of the merchandise 
covered by the declaration, Continuation Sheets should be utilized. \6\ 
In lieu of official Continuation Sheets, additional copies of the 
Shipper's Export Declaration form with no portion torn off or removed, 
may be used as continuation sheets. All continuation sheets shall be 
numbered in proper sequence and securely stapled to the first sheet, 
which must be the export declaration itself. Each continuation sheet 
shall show the Customs port of exportation and the country of ultimate 
destination for the shipment. The following statement with the blank 
filled in as appropriate shall be inserted on the last line of the 
description column of the Shipper's Export Declaration itself:
---------------------------------------------------------------------------

    \6\ See Sec.  30.3(b).

    ``This declaration consists of this sheet and No. ------ 
---------------------------------------------------------------------------
continuation sheets.''

[41 FDR 9134, Mar. 3, 1976, as amended at 50 FR 23403, June 4, 1985]



Sec.  30.11  Authority to require production of documents.

    For purposes of verifying the completeness and accuracy of the 
information reported as required under Sec. Sec.  30.7 and 30.8, and for 
other purposes under the regulations in this part, Customs is authorized 
to require the owners and operators of exporting carriers, as well as 
the exporters or their agents, either at the time of exportation or 
within a period of 3 years subsequent thereto, to produce for inspection 
or copying shipping documents, invoices, orders, packing lists, 
correspondence, as well as any other relevant documents and to furnish 
other information bearing upon a particular exportation. The Bureau of 
the Census is similarly authorized to require the production of such 
documents. Customs shall refuse to accept Shipper's Export Declarations 
containing known errors and omissions, and may require their correction, 
but acceptance by the Customs Director shall not be construed as 
evidence that all requirements have been met, and such acceptance shall 
not relieve the exporter of the responsibility to furnish complete and 
correct information at a later time if all requirements have in fact not 
been properly met.



Sec.  30.12  Time and place Shipper's Export Declarations required to be 
presented.

    For shipments by mail, the Shipper's Export Declaration as required 
in Sec.  30.1 shall be presented to the postmaster with the packages at 
the time of mailing. For shipments other than by mail, except as 
otherwise provided, the Shipper's Export Declaration in the number of 
copies required by Sec.  30.5 shall be delivered to the exporting 
carrier prior to exportation. It is the duty of the exporter (or his 
agent) to deliver the required number of copies of the Shipper's Export 
Declaration to the exporting carrier prior to exportation; failure of 
the exporter (or his agent) to do so constitutes a violation of the 
provisions of these regulations, and renders such exporter (or his 
agent) subject to the penalties provided for in Sec.  30.95. For 
shipments by pipeline, the Shipper's Export Declaration is not required 
to be presented prior to exportation, and exportation will be permitted 
upon the understanding that the exporter or his agent, within 4 working 
days after the end of each calendar month, will file with the Customs 
Director having jurisdiction for the pipeline, a Shipper's Export 
Declaration in the number of copies specified in Sec.  30.5 to cover 
exports to each consignee during the calendar month.



Sec. Sec.  30.13-30.14  [Reserved]



Sec.  30.15  Procedure for presentation of declarations covering shipments 
from an interior point.

    For shipments from an interior point, the Shipper's Export 
Declaration in the number of copies required in Sec.  30.5 may be 
prepared and delivered by the exporter or his agent to the inland 
carrier to accompany the merchandise to the exporting carrier at the 
seaport, airport, or border port of exportation, or it may be otherwise 
delivered directly to the exporting carrier. In either case, the 
Shipper's Export Declaration must be in the exporting carrier's 
possession prior to exportation.

[[Page 316]]

(See Sec.  30.6 for requirements for a separate set of Shipper's Export 
Declarations, for each car, truck or other vehicle, covering only the 
merchandise exported in that car, truck, or vehicle.)



Sec.  30.16  Corrections to Shipper's Export Declarations.

    The Exporter (U.S. principal party in interest) (or its agent) must 
report corrections, cancellations, or amendments to information reported 
on Shipper's Export Declarations to the Customs Director at the port of 
exportation (or, in the case of mail shipments directly to the U.S. 
Census Bureau, National Processing Center, Attention: Foreign Trade 
Section, 1201 East 10th Street, Jeffersonville, Indiana 47132) as soon 
as the need to make such correction, cancellation, or amendment is 
determined. Such corrections, cancellations, or amendments may be made 
directly onto the originally filed Shipper's Export Declaration if the 
originally filed declarations have not already been mailed to the Bureau 
of the Census. If the originally filed Shipper's Export Declarations 
have already been mailed to the Bureau of the Census, a photocopy, 
carbon, or other legible copy of the originally filed Shipper's Export 
Declaration, on which the incorrect data are neatly lined out and the 
corrected data entered thereon, shall be promptly filed with the Customs 
Director at the port of exportation (or, in the case of mail shipments, 
with the Postmaster at the post office where the shipment was mailed). 
Such correction copies should have the words ``CORRECTION COPY'' 
conspicuously shown in the upper right portion of the form. The 
provisions of this paragraph relating to the reporting of corrections, 
amendments, or cancellations of information, shall not be construed as a 
relaxation of the requirements of the laws and regulations pertaining to 
the preparation and filing of Shipper's Export Declarations.

[42 FR 56604, Oct. 27, 1977, as amended at 65 FR 42564, July 10, 2000]



            Subpart B_General Requirements_Exporting Carriers



Sec.  30.20  General statement of requirement for the filing of manifests 
and Shipper's Export Declarations by carriers.

    (a) Carriers transporting merchandise from the United States, Puerto 
Rico, or U.S. Possessions to foreign countries; from the United States 
or Puerto Rico to the Virgin Islands of the United States; or between 
Puerto Rico and the United States; shall not be granted clearance, where 
clearance is required, and shall not depart, where clearance is not 
required, until manifests (for vessels, aircraft, and rail carriers) and 
Shipper's Export Declarations have been filed with the Customs Director 
as specified in paragraphs (b) through (d) of this section, except as 
provided in Sec.  30.24. Where for reasons beyond the control of the 
exporting carrier, a given declaration (or declarations) has not been 
received prior to exportation or departure, and the merchandise has been 
laden, such carrier shall not as a result of this circumstance be 
required to off-load the merchandise, or to delay its clearance (where 
clearance is required) or departure (if clearance is not required). 
However, the provisions of Sec.  30.24 remain applicable.
    (b) For carriers transporting merchandise from the United States to 
Puerto Rico, the complete manifest, as required, and all required 
Shipper's Export Declarations shall be filed within one business day 
after arrival, as defined in 19 CFR 4.2(b), with the Customs Director in 
Puerto Rico, except as provided in Sec.  30.24.
    (c) Except as otherwise specifically provided, declarations should 
not be filed at the place where the shipment originates if it is to be 
transshipped within the United States area before being dispatched to a 
foreign country or to its final destination in a nonforeign area. This 
applies to shipments originating in Puerto Rico or the Virgin Islands of 
the United States being forwarded to the United States for transshipment 
to another destination,

[[Page 317]]

and to shipments originating in the United States and being forwarded to 
Puerto Rico or the Virgin Islands of the United States for 
transshipment, as well as to merchandise being transshipped in Customs 
Districts within the States of the United States. In such cases, the 
declarations should be filed only with the Customs Director at the 
actual port of exportation.
    (d) For purposes of these regulations, the port of exportation is 
defined as the Customs port at which or nearest to which the land 
surface carrier transporting the merchandise crosses the border of the 
United States into foreign territory, or, in the case of exportation by 
vessel or air, the Customs port where the merchandise is loaded on the 
vessel or aircraft which is to carry the merchandise to a foreign 
country or to a nonforeign area of ultimate destination.

[41 FR 9134, Mar. 3, 1976, as amended at 41 FR 42645, Sept. 28, 1976; 58 
FR 41424, Aug. 4, 1993]



Sec.  30.21  Requirements for the filing of manifests.

    (a) Vessels. Vessels transporting merchandise as specified in Sec.  
30.20 (except vessels exempted by paragraph (d) of this section) shall 
file a complete Cargo Declaration, Customs Form 1302, or a Cargo 
Declaration Outward With Commercial Forms, Customs Form 1302-A, either 
form with copies of bills of lading or equivalent commercial forms 
relating to all cargo encompassed by the manifest attached thereto. The 
manifest shall be filed with the Customs Director at the respective 
ports where the merchandise is laden (for shipments from the United 
States to Puerto Rico, the manifest shall be filed with the Customs 
Director in the port where the merchandise is unladen in Puerto Rico), 
and shall show the destination of the vessel and list all the cargo so 
laden. For each item of cargo, the manifest shall show a description of 
the articles, contents, quantities, and values; however, a notation on 
the Cargo Declaration that values are as stated on the Shipper's Export 
Declarations, copies of which are attached to such manifest, will be 
accepted. There shall also be shown for each item of cargo the bill of 
lading number on the Shipper's Export Declaration covering the item, 
except that bill of lading numbers are not required on manifests 
covering cargo destined for Canada or a nonforeign area. If an item on a 
Cargo Declaration is one for which a Shipper's Export Declaration is not 
required, a notation shall be inserted on the Cargo Declaration as to 
the basis for the exemption with a reference to the number of the 
section in the regulations where the particular exemption is provided. 
The bills of lading, cargo lists, or other commercial forms must be 
securely attached to the Cargo Declaration in such manner as to 
constitute one document; that they are incorporated by suitable 
reference on the face of the form such as ``Cargo as per bills of lading 
attached,'' or ``Cargo as per commercial forms attached,'' and that 
there is shown on the face of each bill the information required by the 
Cargo Declaration for the cargo covered by that document. The manifest 
of vessels (including vessels taking bunker fuel to be laden aboard 
vessels on the high seas) clearing for foreign countries shall also show 
the quantities and values of bunker fuel taken aboard at that port for 
fueling use of the vessel, apart from such quantities as may have been 
laden on vessels as cargo. The quantity of coal shall be reported in 
metric tons (2240 pounds), and the quantity of fuel oil shall be 
reported in barrels of 158.98 liters (42 gallons). Fuel oil shall be 
described in such manner as to identify diesel oil as distinguished from 
other types of fuel oil.
    (b) Aircraft. Aircraft transporting merchandise as specified in 
Sec.  30.20 shall file a complete manifest on Customs Form 7509. Such 
manifest shall be filed with the Customs Director at the respective 
ports where the merchandise is laden (for shipments from the United 
States to Puerto Rico, the manifests shall be filed with the Customs 
Director in the port where the merchandise is unladen in Puerto Rico) 
aboard the aircraft that is to carry the merchandise to the foreign 
country or to its ultimate destination in a nonforeign area, and shall 
list all the cargo so laden and show, for each item, the air waybill 
number or marks and numbers on packages, the number of packages, and the 
nature of the goods, except as

[[Page 318]]

otherwise provided in this paragraph (b). In addition, for any item for 
which a Shipper's Export Declaration is not required under the 
regulations in this part, a notation as to the basis for the exemption 
with a reference to the number of the section in this part where the 
particular exemption is provided, shall be inserted on the manifest, or 
on the waybill filed in lieu of listing on the manifest. In the case of 
shipments on an air waybill, a copy of each document may be attached to 
the cargo manifest, the numbers of such air waybills listed in the body 
of the manifest, and the statement ``Cargo as per Air Waybills 
Attached'' noted on the manifest. On direct departures only, for 
shipments requiring a Shipper's Export Declaration a copy of each 
declaration may be attached to the cargo manifest. In such case the air 
waybill numbers of such declarations shall be listed on the cargo 
manifest in the column for air waybill numbers, and the statement 
``Cargo as per SEDs Attached'' noted on the manifest. Under this 
alternative procedure, any shipments not requiring a Shipper's Export 
Declaration shall be listed on the manifest, and a notation as to the 
basis for the exemption with a reference to the number of the section in 
this part where the particular exemption is provided, shall be shown. 
For aircraft transporting merchandise between the United States and 
Puerto Rico, the manifest shall consist of full detail for cargo 
requiring Shipper's Export Declarations and summary information for 
cargo exempt for Shipper's Export Declaration requirements. This summary 
information will include, on a single line, the total number of packages 
and the total weight, in kilograms, of such exempt shipments. 
Additionally, the air waybills for all shipments must be available, in 
the port of arrival or departure in Puerto Rico, for inspection by 
Customs and/or the Census Bureau.
    (c) Rail carriers. Rail carriers transporting merchandise as 
specified in Sec.  30.20 shall file a car manifest. Such manifest shall 
be filed with the Customs Director at the border port of exportation, 
giving the marks and numbers, the name of the shipper or consignor, 
description of goods and the destination thereof. The manifest may be a 
waybill, or a copy thereof, or a copy of the manifest prepared for 
foreign customs. For any item for which a Shipper's Export Declaration 
is not required by these regulations, a notation on the manifest, or an 
oral declaration to the Customs Director, shall be made by the carrier 
as to the basis for the exemption.
    (d) Carriers not required to file manifests. These regulations do 
not require the filing of manifests by carriers other than vessels, 
aircraft and rail carriers, nor by vessels under 5 net tons engaged in 
trade with a foreign country otherwise than by sea, nor by vessels 
specifically exempted from entry by section 441, Tariff Act of 1930, as 
amended.

(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950, 
Department of Commerce Order No. 35-2A, August 4, 1975, 40 FR 42765)

[41 FR 9134, Mar. 3, 1976, as amended at 58 FR 41424, Aug. 4, 1993]



Sec.  30.22  Requirements for the filing of Shipper's Export Declarations 
by departing carriers.

    (a) To meet the requirements of Sec.  30.20 for the filing of 
Shipper's Export Declarations, every departing carrier transporting 
merchandise as specified in Sec.  30.20, including vessels, aircraft, 
rail carriers, trucks and other vehicles, ferries, and every other 
carrier shall deliver to the Customs Director at the port of exportation 
(for shipments from the United States to Puerto Rico, at the port of 
arrival in Puerto Rico), with the manifest of the carrier, if a manifest 
is required by the regulations in this part, Shipper's Export 
Declarations prepared and signed by the exporters, or their agents, 
covering all the cargo for which such Shipper's Export Declarations are 
required by the regulations in this part.
    (b) The exporting carrier shall be responsible for the accuracy of 
the following items of information (where required) on the declaration: 
Name of carrier (including flag if vessel carrier), U.S. Customs port of 
exportation, method of transportation from the United States, foreign 
port of unloading, the bill of lading or air waybill number, and whether 
or not containerized. For shipments to Canada exempt

[[Page 319]]

from Shipper's Export Declaration filing requirements (See Sec.  30.58), 
the exporting carrier shall enter the U.S. Customs port of exportation 
and method of transportation from the United States on the bill of 
lading, air waybill, or other documents that they prepare.
    (c) Except as provided in paragraph (d) of this section, when a 
transportation company finds, prior to the filing of declarations and 
manifest as provided in paragraph (a) of this section, that due to 
circumstances beyond the control of the transportation company or to 
inadvertence, a portion of the merchandise covered by an individual 
Shipper's Export Declaration has not been exported on the intended 
carrier, the transportation company shall correct the descriptions and 
the quantity, value and shipping weight (if any) amounts shown on the 
declaration to reflect the amount actually exported on the carrier named 
in the Shipper's Export Declaration. If a short shipment of this type is 
discovered by the carrier after the Shipper's Export Declaration in 
question has been delivered to the District Director of Customs, the 
transportation company will immediately notify the District Director of 
Customs so that a correction can be made by the Director on all copies 
of the declaration if it is still in his possession. If the statistical 
copy of the declaration has been transmitted by the Director to the 
Bureau of the Census at the time of such notification, the Director will 
require the exporter (or his agent) to file a ``Correction Copy'' of the 
originally filed Shipper's Export Declaration as described in Sec.  
30.16 of these regulations. If the balance of the short-shipped 
merchandise is subsequently exported, a new Shipper's Export 
Declaration, complete in all detail, will be required. If the short-
shipped merchandise is exported on a carrier of the transportation 
company named in the original declaration, and if such exportation is 
made within a reasonable period, the District Director of Customs may 
accept a declaration executed by such transportation company; otherwise 
the new declaration shall be executed by the exporter or his agent. In 
any event, the new declaration shall contain the following statement:

    These commodities or technical data were included, but not shipped, 
on a Shipper's Export Declaration filed at ---------- (Port) on --------
-- (Date).

    (d) When a shipment by air covered by a single Shipper's Export 
Declaration is divided by the transportation company and exported in 
more than one aircraft of the transportation company, the ``split 
shipment'' procedure provided in Sec.  30.41 shall be followed by the 
transportation company in delivering manifests and Shipper's Export 
Declarations to the District Director of Customs.
    (e) Exporting carriers are authorized to amend incorrect shipping 
weights reported on Shipper's Export Declarations, and to prorate total 
shipping weights among the individual commodities, where such carriers 
are able to do so based upon information in their possession.

(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950; 
Department of Commerce Organization Order No. 35-2A, Aug. 4, 1975, 40 FR 
42765)

[41 FR 9134, Mar. 3, 1976, as amended at 43 FR 56030, Nov. 30, 1978; 44 
FR 1971, Jan. 8, 1979; 55 FR 49615, Nov. 30, 1990; 58 FR 41424, Aug. 4, 
1993]



Sec.  30.23  Requirements for the filing of Shipper's Export Declarations 
by pipeline carriers.

    The operator of a pipeline may transport merchandise to a foreign 
country without prior filing of Shipper's Export Declarations, on the 
condition that within 4 days following the end of each calendar month 
the pipeline operator will deliver to the Customs Director Shipper's 
Export Declarations prepared by the exporter or his agent covering all 
exportations through the pipeline to each consignee during the month.



Sec.  30.24  Clearance or departure of carriers under bond on incomplete 
manifest or Shipper's Export Declarations.

    (a) For purposes of the regulations in this part, except when 
carriers are transporting merchandise from the United States to Puerto 
Rico, clearance (where clearance is required) or permission to depart 
(where clearance is not required) may be granted to any carrier by the 
Customs Director prior

[[Page 320]]

to the filing of a complete manifest as required under the regulations 
in this part, or prior to the filing by the carrier of all required 
Shipper's Export Declarations, provided that a bond as specified in 
paragraph (b) of this section is filed with the Customs Director. The 
condition of the bond shall be that a complete manifest, where a 
manifest is required by the regulations in this part and all required 
Shipper's Export Declarations, shall be filed by the carrier not later 
than the fourth business day after clearance (where clearance is 
required) or departure (where clearance is not required) of the carrier 
except as otherwise specifically provided in paragraphs (a) (1) and (2) 
of this section. For carriers transporting merchandise from the United 
States to Puerto Rico, if the complete manifest, as required, and all 
required Shipper's Export Declarations are not available for filing with 
the Customs Director in Puerto Rico within one business day after 
arrival, a bond, as specified in paragraph (b) of this section shall be 
filed with the Customs Director in Puerto Rico.
    (1) For shipments aboard a U.S. flag carrier between the United 
States and Puerto Rico, or from the United States or Puerto Rico to the 
Virgin Islands of the United States, the condition of the bond shall be 
that a complete manifest (where a manifest is required) and all required 
Shipper's Export Declarations shall be filed by the carrier not later 
than the seventh business day after departure or in the case of 
shipments from the United States to Puerto Rico, the seventh business 
day after arrival.
    (2) For rail carriers to Canada, the condition of the bond shall be 
that the manifest and all required Shipper's Export Declarations shall 
be filed not later than the 15th business day after departure.

In the event that any required manifest and all required Shipper's 
Export Declarations are not filed by the carrier within the period 
provided by the bond, then a penalty of $50 shall be exacted for each 
day's delinquency beyond the allowed period of 4 days, 7 days, or 15 
days, as appropriate; and if the completed manifest, where required, and 
all required Shipper's Export Declarations are not filed within 3 days 
following the period of 4 days, 7 days, or 15 days, allowed under the 
bond, then for each succeeding day of delinquency a penalty of $100 
shall be exacted, but no penalty shall exceed $1,000 in total. Remission 
or mitigation of the penalties provided herein may be granted in those 
cases where, in the judgment of the administering authority provided in 
paragraph (b) of this section, the penalties were incurred without 
willful negligence or fraud, or other circumstances justify a remission 
or mitigation.
    (b) Bonds filed in accordance with the provisions of this Sec.  
30.24 may take the form of a single entry bond on Customs Form 7567 in 
the amount of $1,000 or of a term or blanket bond on Customs Form 7569 
in the amount of $10,000 or such larger amount as the Secretary of the 
Treasury may prescribe, or in other approved form. Except as provided 
below in this paragraph, there shall be shown on the bond, or on a 
separate listing which refers to and is made a part of the bond, a pro 
forma list of shipments on board the departing carrier for which 
Shipper's Export Declarations have not been filed with the Customs 
Director. The list shall show for each such shipment the name of the 
shipper, the country to which exported, marks and numbers of the 
packages, the number and kind of packages, a description of the goods 
and the value (or estimated value). However, where such waiver will not 
interfere with the ability of the Customs Director to check on 
performance under the bond, or with the identification of the shipment 
for purposes of obtaining statistical information in the event of 
failure of performance under the bond, the Customs Director may waive 
the requirement for the pro forma list of shipments for which 
declarations are missing, or may accept a list containing less than the 
items of information enumerated above. Approval of bonds and 
administration of the provisions of the regulations in this part 
relating to performance by carriers under such bonds, including 
remission and mitigation of penalties incurred by the carriers, are 
hereby delegated to the Commissioner of Customs or his delegate to be 
carried out in accordance with the provisions of section 623 of the 
Tariff Act of 1930, as amended, and the regulations of the

[[Page 321]]

U.S. Customs Service issued pursuant thereto.

[41 FR 9134, Mar. 3, 1976, as amended at 58 FR 41425, Aug. 4, 1993]



 Subpart C_Special Provisions Applicable Under Particular Circumstances



Sec.  30.30  Values for certain types of transactions.

    The following special arrangements govern the values to be reported 
for shipments of the following unusual types:
    (a) Subsidized exports of agricultural products. Where provision is 
made for the payment of an export subsidy to the exporter for the 
exportation of agricultural commodities under a program of the 
Department of Agriculture, the value required to be shown on the export 
declaration is the f.a.s. value as defined in Sec.  30.7(q), based on 
the selling price paid by the foreign importer, excluding the amount of 
the subsidy.
    (b) GSA exports of excess personal property. For exports of General 
Services Administration excess personal property, the value to be shown 
on the Shipper's Export Declaration will be the total of the estimated 
``fair value,'' if any, at which the property was transferred to GSA by 
the holding agency, plus charges, when applicable, to the port of 
export, such as packing, rehabilitation, inland freight or drayage. The 
estimated ``fair value'' may be zero, or it may be a percentage of the 
original or estimated acquisition costs. (Export Declarations for such 
shipments will bear the notation ``Excess Personal Property, GSA 
Regulations 1-III, 303.03.'')



Sec.  30.31  Identification of certain nonstatistical and other unusual 
transactions.

    In order to enable the Bureau of the Census to make a judgment as to 
the statistical or other status of certain export transactions, 
Shipper's Export Declarations covering the following types of 
transactions should carry a statement beneath the commodity description 
clearly identifying the transactions as such:
    (a) Merchandise exported for repair only, and other temporary 
exports to be returned to the United States which are not sold and do 
not enter the trade of the country to which shipped, e.g., merchandise 
for exhibition (not for exhibition and possible sale), horses or other 
animals for breeding or grazing, etc.
    (b) The return of merchandise previously imported for repair only 
and other returns to the foreign shipper of temporarily imported 
merchandise (declared as such on importation) on which no alteration or 
processing has been performed; e.g., foreign merchandise being returned 
to the country of origin after importation into the United States for 
exhibition only.
    (c) Shipments of material in connection with construction, 
maintenance, and related work being done on projects for the U.S. Armed 
Forces. Equipment and other material shipped for temporary use on such 
projects and intended for return to the United States should be 
identified separately from construction material or other goods which 
will become a part of or which will be consumed in the construction or 
maintenance work.



Sec.  30.32  [Reserved]



Sec.  30.33  Vessels, planes, cargo vans, and other carriers and containers 
sold foreign.

    (a) Vessels, locomotives, rail cars, ferries, trucks, other 
vehicles, trailers, pallets, cargo vans, lift vans, or similar shipping 
containers are not considered ``shipped'' in terms of these regulations 
in this part when they are moving, either loaded or empty, without 
transfer of ownership or title, in their capacity as carriers of 
merchandise or as instruments of such carriers, and Shipper's Export 
Declarations are not required therefor when so moving.
    (b) However, Shipper's Export Declarations shall be filed for such 
items, when moving as merchandise pursuant to sale or other transfer 
from ownership in the United States to ownership abroad. When a new 
vessel built in the United States for foreign account clears under a 
certificate of record (Commerce Form 1316) a Shipper's Export 
Declaration must be furnished by the agents or prepared by Customs for

[[Page 322]]

statistical purposes. If a vessel, car, vehicle, or container, whether 
in service or newly built or manufactured, is sold or transferred to 
foreign ownership while in the Customs area of the United States or at a 
port in such area, Shipper's Export Declarations shall be filed in 
accordance with the general requirements of the regulations in this 
part, at the port through or from which the vessel, car, vehicle, or 
container first leaves the United States after sale or transfer. If the 
vessel, car, vehicle, or shipping container is outside the Customs area 
of the United States at the time of sale or transfer to foreign 
ownership, Shipper's Export Declarations shall be filed at the last port 
of clearance or departure from the United States prior to sale or 
transfer. The country of destination to be shown on the Shipper's Export 
Declaration for vessels sold foreign is the country of new ownership. 
The country for which the vessel clears, or the country of registry of 
the vessel, should not be reported as the country of destination on the 
Shipper's Export Declaration unless such country is the country of new 
ownership.



Sec.  30.34  Return of exported cargo to the United States prior to reaching 
its final destination.

    (a) When a vessel carrying cargo which cleared from a port in the 
U.S. Customs area returns to the U.S. Customs area before it reaches its 
destination and discharges any or all of its cargo in the United States, 
the Customs Director at the port of unlading shall notify the Foreign 
Trade Division, Bureau of the Census, of this fact. The letter of 
notification shall contain the following information: Name of the 
carrier, dates of clearance, manifest numbers assigned at the various 
Customs ports at which cargo was laden and the final disposition of all 
cargo. If the vessel returns to the port at which the cargo was 
originally laden, the letter of notification shall also include the bill 
of lading numbers shown on each export declaration filed at the time of 
clearance.
    (b) For shipments by air where the Shipper's Export Declarations are 
filed at the port of lading, if it becomes necessary because of an 
emergency to unload part or all of the cargo at another port in the U.S. 
Customs area (other than the port in Puerto Rico or U.S. Possession 
which is its final destination), the Shipper's Export Declarations filed 
at the port of lading need not be cancelled if the merchandise is 
reladen on another plane at the second port within a reasonable time and 
proceeds to its country of destination. If there is unreasonable delay 
in reloading, the originally filed declarations should be cancelled and 
new declarations should be filed at the second port of lading. If for 
any reason, the merchandise remains permanently in the United States, 
the Customs Director at the first port of lading must be notified to 
cancel the Shipper's Export Declarations which have been filed. This 
provision is not intended as an exception from the requirements of Sec.  
30.12 as to the place at which Shipper's Export Declarations are 
required to be filed; it is intended only for cases where an emergency 
requires an unintended unloading after the requirements of Sec.  30.12 
have been met.



Sec. Sec.  30.35-30.36  [Reserved]



Sec.  30.37  Exceptions from the requirement for reporting complete commodity 
detail on the Shipper's Export Declaration.

    (a) Where it can be determined that particular types of U.S. 
Government shipments, or shipments for Government projects, are of such 
nature that they should not be included in the export statistics, and 
further, where no detriment to the export control program would be 
involved, special arrangements can sometimes be made to waive compliance 
with specific portions of the requirements of Sec.  30.7 with respect to 
the reporting of detailed information on the Shipper's. Export 
Declaration. Such exceptions will be made only upon application by the 
exporter and specific authorization to the Customs Director and the 
exporter for the particular project or shipment, approved by both the 
Bureau of the Census and the Office of Export Administration, and will 
be conditioned upon a prescribed identification which must appear upon 
the declarations. The particular types of shipments for which

[[Page 323]]

such exceptions may be possible are as follows:
    (1) Shipments to a contractor under a Department of Defense or other 
armed service contract for the construction of facilities for the use of 
the U.S. armed services.
    (2) Temporary exports by or to U.S. Government agencies.
    (3) Shipments of supplies and material to contractors in the Panama 
Canal Zone for the construction and/or maintenance of the Panama Canal 
Zone and its facilities.
    (b) Special exemptions to specific portions of the requirements of 
Sec.  30.7 with respect to the reporting of detailed information on the 
Shipper's Export Declaration may also be granted by the Bureau of the 
Census with the concurrence of the Office of Export Administration for 
certain Department of Defense shipments, or shipments made on behalf of 
the Department of Defense, to foreign governments under the cash 
reimbursable provisions of the Mutual Defense Assistance Program 
(military sales), if and when arrangements have been made for the Bureau 
of the Census to obtain the desired statistical information other than 
through the reporting of complete commodity detail on the Shipper's 
Export Declaration.



Sec.  30.38  [Reserved]



Sec.  30.39  Authorization for reporting statistical information other than 
by means of individual Shipper's Export Declarations filed for each shipment.

    (a) The Census Bureau, with the concurrence of appropriate 
government agencies, may authorize exemptions from the requirement of 
Sec.  30.6 that a separate Shipper's Export Declaration be filed for 
each shipment.
    (b) Application for certification and approval to file shipper's 
export data electronically using the Automated Export System (AES) can 
be made directly to the Census Bureau in accordance with the provisions 
specified in Sec.  30.60. Certification and approval procedures and 
qualification standards for filing shipper's export data electronically 
are contained in Sec.  30.62.
    (c) Authorization for other alternative methods of filing shipper's 
export information will be issued only when, in the judgment of the 
Census Bureau, complete and accurate information will be available on a 
prescribed basis from the records of the applicant and where the 
alternate filing method for shipments represents a reduction of 
reporting cost or burden. Where export control is a consideration, such 
authorizations will be granted only when, in the judgment of the 
appropriate controlling government agency, the applicant has 
demonstrated that it has established adequate internal operating 
procedures and has taken other satisfactory safeguards to assure 
compliance with export control regulations of the appropriate government 
agency or agencies.

[64 FR 40976, July 28, 1999]



Sec.  30.40  Single declaration for multiple consignees.

    As a further exception to the requirements of Sec.  30.6, shipper's 
are authorized, subject to the approval of the Customs Director, to file 
one Shipper's Export Declaration (in duplicate) for all shipments, other 
than those made to U.S. Government agencies, offices, establishments, or 
representatives of any of these which are laden on one vessel or 
aircraft and destined to go to one port in Puerto Rico, the Virgin 
Islands of the United States, or the Canal Zone. For such shipments no 
consignee information needs to be furnished whether such shipments are 
made to one or several consignees.

[41 FR 42645, Sept. 28, 1976]



Sec.  30.41  ``Split shipments'' by air.

    When a shipment by air covered by a single Shipper's Export 
Declaration is divided by the exporting transportation company at the 
port where the declaration is filed, and part of the shipment is 
exported on one aircraft and part on another aircraft of the same 
transportation company, the following procedure shall apply:
    (a) The carrier will deliver the manifest copy of the declaration to 
the District Director of Customs with the manifest covering the flight 
on which the first part of the split shipment is exported, and will make 
no changes on the declaration. However, the manifest

[[Page 324]]

will show in the ``number of packages'' column the actual portion of the 
declared total quantity being carried and will carry a notation to 
indicate ``Split Shipment.''
    (b) On each subsequent manifest covering a flight on which any part 
of a split shipment is exported, a prominent notation ``SPLIT SHIPMENT'' 
will be made adjacent to the item on the manifest for ready 
identification. For the last shipment the notation will read ``SPLIT 
SHIPMENT, FINAL.''

Each subsequent manifest covering a part of a split shipment shall also 
show in the ``number of packages'' column only the merchandise carried 
on that particular flight and a reference to the total amount originally 
declared for export, e.g., 5 of 11, or 5/11; and immediately following 
the line showing the portion of the split shipment carried on that 
flight, a notation will be made showing the air waybill number shown on 
the original Shipper's Export Declaration and the portions of the 
originally declared total carried on each previous flight together with 
the number and date of each such previous flight, e.g., original 
Shipper's Export Declaration AWB 123; 2 of 11 flight 36A, June 6; 4 of 
11, flight 40X, June 10.
    (c) Export declarations will not be required for these subsequent 
shipments.



 Subpart D_Exemptions from the Requirements for the Filing of Shipper's 
                           Export Declarations



Sec.  30.50  Procedure for shipments exempt from the requirements for Shipper's 
Export Declarations.

    Except as provided below, where an exemption from the requirement 
for the filing of a Shipper's Export Declaration is provided in this 
subpart, a notation describing the basis for the exemption shall be made 
on the bill of lading, air waybill, or other loading document for 
carrier use, with a reference to the number of the section in this part 
where the particular exemption is provided so that the carrier at the 
time of lading, and the Customs Director at the time of exportation, may 
verify that no declaration is required. If none of the above named 
documents is used, the person transporting the merchandise must be 
prepared to identify to the Customs Director at the port of exportation, 
at the time of exportation but prior to departure, any merchandise which 
is exempt from the requirement for the filing of a Shippers' Export 
Declaration and explain to the Customs Director the basis for the 
exemption. Where shipments are exempt from the requirement for Shipper's 
Export Declarations on the basis of value and destination, the 
appearance of the value and destination on the bill of lading, air 
waybill, or other loading document for carrier use, shall be acceptable 
as evidence of the exemption, and no reference need be made to the 
particular section of these regulations where the exemption is provided.



Sec.  30.51  Government shipments not generally exempt.

    Except as provided below in this subpart, Shipper's Export 
Declarations are required for exports by or to U.S. Government agencies, 
whether or not shipped on a Government bill of lading. No general 
exemption is provided for Government shipments, as such.



Sec.  30.52  Special exemptions for shipments to the U.S. armed services.

    Shipper's Export Declarations are not required for the following 
types of shipments to the U.S. armed services:
    (a) All commodities, whether shipped commercially or through 
government channels, consigned to the U.S. armed services for their 
exclusive use, including shipments to armed services exchange systems. 
(This exemption does not apply to shipments which are for the ultimate 
use of the U.S. armed services but which are not consigned to the U.S. 
armed services. However, special exceptions to the requirements of these 
regulations which may in some circumstances apply to shipments for the 
ultimate use of the U.S. armed services but not so consigned are 
provided in Sec.  30.37.)
    (b) Department of Defense Military Assistance Program Grant-Aid 
shipments being transported as Department of Defense cargo under the 
provisions of Customs Circular Letters VES-5-MA, March 8, 1954, (MC 
133), VES-5-MA, June 17, 1954 (MC 133 S.1), VES-5-MA, May 24, 1956 (MC 
133 S.2) and RES-20-MC, January 25, 1960 (CC 76). Under

[[Page 325]]

arrangements with the Department of Defense, information on these 
shipments for inclusion in U.S. export statistics will be furnished 
directly to the Bureau of the Census by the Department of Defense. This 
exception from the filing of Shipper's Export Declarations does not 
apply to Military Assistance Program Grant-Aid shipments to which a 
foreign government has taken title before exportation or to any Grant-
Aid Military-Aid Program shipment moving in any manner other than as 
Department of Defense cargo. (See Sec.  30.37 for possible exceptions to 
the full reporting requirements of Sec.  30.7 for certain military sales 
shipments not exempt from the requirement for the Shipper's Export 
Declaration.)



Sec.  30.53  Special exemptions for certain shipments to U.S. Government 
agencies and employees.

    Shipper's Export Declarations are not required for the following 
types of shipments to U.S. Government agencies and employees:
    (a) Office furniture, office equipment, and office supplies shipped 
to and for the exclusive use of U.S. Government offices.
    (b) Household goods and personal property shipped to and for the 
exclusive and personal use of U.S. Government employees.
    (c) Food, medicines, and related items and other commissary supplies 
shipped to U.S. Government offices or employees for the exclusive use of 
such employees, or to U.S. Government employee cooperative or other 
associations for subsequent sale or other distribution to such 
employees.
    (d) Books, maps, charts, pamphlets, and similar articles shipped by 
U.S. Government offices to U.S. or foreign libraries, government 
establishments or similar institutions.
    (e) All commodities shipped to and for the exclusive use of the 
Panama Canal Zone Government or the Panama Canal Company.



Sec.  30.54  [Reserved]



Sec.  30.55  Miscellaneous exemptions.

    Shipper's Export Declarations are not required for the following 
kinds of shipments:
    (a) Diplomatic pouches and their contents.
    (b) Human remains and accompanying appropriate receptacles and 
flowers.
    (c) Shipments from one point in the United States to another thereof 
by routes passing through Mexico.
    (d) Shipments from one point in Mexico to another point thereof by 
routes through the United States.
    (e) Shipments, other than by vessel, or merchandise for which no 
validated export licenses are required, transported in bond through the 
United States, and exported from another U.S. port, or transshipped and 
exported directly from the port of arrival.
    (f) Shipments to foreign libraries, government establishments, or 
similar institutions, as provided in Sec.  30.53(d).
    (g) Shipments of single gift parcels as authorized by the Bureau of 
Export Administration under License Exception GFT, see 15 CFR 740.12 of 
the EAR.
    (h) Except as noted in paragraph (h)(2) of this section exports of 
commodities where the value of the commodities, shipped from one 
exporter to one consignee on a single exporting carrier, classified 
under an individual Schedule B number, is $2,500 or less.
    (1) This exemption applies to individual Schedule B commodity 
numbers regardless of the total shipment value. In instances where a 
shipment contains a mixture of individual Schedule B commodity numbers 
valued $2,500 or less and individual Schedule B commodity numbers valued 
over $2,500, only those commodity numbers valued $2,500 or more need be 
reported on a Shipper's Export Declaration or AES record.
    (2) This exemption does not apply to exports:
    (i) Destined for Cuba, Iran, Iraq, Libya, North Korea, Serbia 
(excluding Kosovo), Sudan and Syria.
    (ii) Requiring a Department of Commerce license (15 CFR Parts 730 
through 774 of the EAR).
    (iii) Requiring a Department of State, Office of Defense Trade 
Controls export license under the International Traffic In Arms 
Regulations (ITAR) (22 CFR Parts 120 through 130).
    (iv) Subject to the ITAR but exempt from license requirements.

[[Page 326]]

    (v) Requiring a Department of Justice, Drug Enforcement 
Administration export permit (21 CFR Part 1312). This exemption shall be 
conditioned upon the filing of such reports as the Bureau of the Census 
shall periodically require to compile statistics on $2,500 and under 
shipments.
    (i) Shipments of interplant correspondence, executed invoices and 
other documents, and other shipments of company business records from a 
U.S. firm to its subsidiary or affiliate.
    (j) Shipments of pets as baggage, accompanied or unaccompanied, of 
persons leaving the United States, including members of crews on vessels 
and aircraft.
    (k) Shipments for use in connection with NASA tracking systems under 
Office of Export Administration Project License DL-5355-S.
    (l) Shipments of aircraft parts and equipment, and food, saloon, 
slop chest, and related stores, provisions, and supplies for use on 
aircraft, by a U.S. airline to its own installations, aircraft, and 
agents abroad, under Department of Commerce, Office of Export 
Administration General License RCS.
    (m) Shipments for use in connection with NOAA operations under the 
Office of Export Administration General License G-NOAA.
    (n) Exports of technology and software as defined in 15 CFR Part 772 
of the EAR that do not require an export license, except that an SED or 
AES record is required for mass market software. For purposes of the 
FTSR, mass market software is defined as software that is generally 
available to the public by being sold at retail selling points, or 
directly from the software developer or supplier, by means of over the 
counter transactions, mail order transactions, telephone transactions, 
or electronic mail order transactions, and designed for installation by 
the user without further substantial technical support by the developer 
or supplier.
    (o) Intangible exports of software and technology, such as 
downloaded software and technical data, including technology and 
software that requires an export license and mass market software 
exported electronically.

[41 FR 9134, Mar. 3, 1976, as amended at 47 FR 7214, Feb. 18, 1982; 55 
FR 21187, May 23, 1990; 55 FR 49615, Nov. 30, 1990; 63 FR 45697, Aug. 
27, 1998; 65 FR 42564, July 10, 2000]



Sec.  30.56  Conditional exemptions.

    Shipper's Export Declarations are not required for the following 
classes of commodities when they are not shipped as cargo under a bill 
of lading or an air waybill and do not require a validated export 
license, but the exporter should be prepared to make oral declaration to 
the Customs Director, if required:
    (a) Baggage and personal effects, accompanied or unaccompanied, of 
persons leaving the United States, including members of crews on vessels 
and aircraft, such as:
    (1) Usual and reasonable kinds and quantities of wearing apparel, 
articles of personal adornment, toilet articles, medicinal supplies, 
food, souvenirs, games, and similar personal effects and their 
containers.
    (2) Usual and reasonable kinds and quantities of furniture, 
household effects, household furnishings, and their containers.
    (3) Usual and reasonable kinds and quantities of vehicles, such as 
passenger cars, station wagons, trucks, trailers, motorcycles, bicycles, 
tricycles, perambulators, and their containers.

Provided, That the above-indicated baggage and personal effects (i) 
shall include only such articles as are owned by such person or members 
of his immediate family; (ii) shall be in his possession at the time of 
or prior to his departure from the United States for the foreign 
country; (iii) are necessary and appropriate for the use of such person 
or his immediate family; (iv) are intended for his use or the use of his 
immediate family; and (v) are not intended for sale.
    (b) Tools of trade are usual and reasonable kinds and quantities of 
commodities and software, and their containers, that are intended for 
use by individual exporters or by employees or representatives of the 
exporting company in furthering the enterprises and undertakings of the 
exporter abroad. Commodities and software eligible for

[[Page 327]]

this exemption are those that do not normally require an export license 
or that are exported without a license as specified in 15 CFR 740.9 of 
the EAR (15 CFR chapter VII, subchapter C) and are subject to the 
following provisions:
    (1) Are owned by the individual exporter or exporting company;
    (2) Accompany the individual exporter, employee or representative of 
the exporting company;
    (3) Are necessary and appropriate and intended for the personal and/
or business use of the individual exporter, employee or representative 
of the company or business;
    (4) Are not for sale; and
    (5) Are returned to the United States no later than one year from 
the date of export.
    (c) Carriers' stores (including merchandise carried in ships aboard 
carriers for sale to passengers), supplies, and equipment for departing 
vessels, planes, or other carriers, including usual and reasonable kinds 
and quantities of bunker fuel, deck engine and steward department 
stores, provisions and supplies, medicinal and surgical supplies, food 
stores, slop chest articles, and saloon stores or supplies for use or 
consumption on board and not intended for unlading in a foreign country, 
and including usual and reasonable kinds and quantities of equipment and 
spare parts for permanent use on the carrier when necessary for proper 
operation of such carrier and not intended for unlading in a foreign 
country. Hay, straw, feed, and other appurtenances necessary to the care 
and feeding of livestock while enroute to a foreign destination are 
considered part of carriers' stores of carrying vessels, trains, planes, 
etc.
    (d) Dunnage of usual and reasonable kinds and quantities necessary 
and appropriate to stow or secure cargo on the outgoing or any immediate 
return voyage of an exporting carrier, when exported solely for use as 
dunnage and not intended for unlading in a foreign country.

[41 FR 9134, Mar. 3, 1976, as amended at 62 FR 49437, Sept. 22, 1997]



Sec.  30.57  Information on export declarations for shipments of types of 
goods covered by Sec.  30.56 not conditionally exempt.

    (a) In those cases where Shipper's Export Declarations are required 
for articles enumerated in Sec.  30.56 (a) through (d) only by virtue of 
their being shipped under a bill of lading or an air waybill (no 
validated license is required) the export declaration should clearly 
show in the column for commodity description, in lieu of the complete 
commodity description a statement that the shipment consists of baggage, 
personal effects, household effects, ship's stores, crew's effects, or 
as appropriate. In such cases, Schedule B commodity numbers should not 
be shown on the declarations.
    (b) In those cases where the articles enumerated in Sec.  30.56 (a) 
through (d) require a validated export license (whether or not shipped 
under a bill of lading or an air waybill) the Shipper's Export 
Declaration must identify the shipment as baggage, personal effects, 
etc., and must contain all the information normally required for any 
exportation made under a validated export license, i.e. complete 
commodity description, license number, Schedule B number, quantity, 
value, etc.



Sec.  30.58  Exemption for shipments from the United States to Canada.

    (a) Except as noted in paragraph (c) of this section, shipments 
originating in the United States where the country of ultimate 
destination (see Sec.  30.7(i)) is Canada are exempt from the Shipper's 
Export Declaration requirements of this part. This exemption also 
applies to shipments from one point in the United States or Canada to 
another point thereof by routes passing through the other country.
    (b) The Harbor Maintenance Fee applies to shipments by vessel exempt 
from Shipper's Export Declaration requirements by virtue of being 
destined to Canada.
    (c) This exemption does not apply to the following shipments: (The 
Bureau of the Census also reserves the right to reinstate the Shipper's 
Export Declaration requirements of this part in specific instances for 
the purpose of ensuring statistical accuracy.)

[[Page 328]]

    (1) Requiring a Department of Commerce license.
    (2) Requiring a Department of State, Office of Defense Trade 
Controls, export license under the International Traffic in Arms 
Regulations (ITAR-22 CFR parts 121-130).
    (3) Subject to the ITAR but exempt from license requirements.
    (4) Requiring a Department of Justice, Drug Enforcement 
Administration, export declaration (21 CFR part 1313).
    (5) For storage in Canada but ultimately destined for third 
countries, the specific country of destination being unknown at the time 
of export to Canada (see Sec.  30.39 for reporting requirements).
    (6) For all exports of items subject to the EAR (15 CFR Parts 730 
through 799) that will be transhipped through Canada to a third 
destination, that would require an SED, AES record, or Commerce license 
if shipped directly to the final destination from the United States (see 
Sec.  30.55(h)(2), including exports of items subject to the EAR that 
will be transhipped through Canada to Cuba, Iran, Iraq, Libya, North 
Korea, Serbia (excluding Kosovo), Sudan, and Syria.

[55 FR 49615, Nov. 30, 1990, as amended at 65 FR 42564, July 10, 2000]



  Subpart E_Electronic Filing Requirements_Shipper's Export Information

    Source: 64 FR 40977, July 28, 1999, unless otherwise noted.



Sec.  30.60  General requirements for filing export and manifest data 
electronically using the Automated Export System (AES).

    The Automated Export System (AES) transmissions by exporters or 
their authorized filing agents that meet the requirements of this 
subpart constitute the Shipper's Export Declaration (SED) for purposes 
of this part. This section outlines the general requirements for 
participating in the AES. Several filing options are available for 
transmitting shipper's export data. The first option is the standard 
paper filing of the SED. The AES also provides AES participants with 
three electronic filing options for submission of shipper's export data.
    (a) Participation. Participation in the AES is voluntary and is 
designed to use technology available to both large and small businesses. 
Companies that are not automated can submit data through a service 
center or port authority that provides the capability to communicate 
with the Customs Data Center in the same way as automated companies. 
Companies may also buy a software package designed by an AES certified 
software vendor. Certified trade participants (filing agents) can 
transmit to and receive data from the AES pertaining to merchandise 
being exported from the United States. Participants in the AES process, 
who may apply for AES certification, include exporters or their 
authorized forwarding agents, carriers, non-vessel operating common 
carriers (NVOCC), consolidators, port authorities, software vendors, or 
service centers. Once becoming certified, an AES filer (filing agent) 
must agree to stay in complete compliance with all export rules and 
regulations.
    (b) Letter of Intent. The first requirement for all participation in 
AES, including approval for Option 4 filing privileges, is to submit a 
complete and accurate Letter of Intent to the Census Bureau. The Letter 
of Intent is a written statement of a company's desire to participate in 
AES. It must set forth a commitment to develop, maintain, and adhere to 
Customs and Census Bureau performance requirements and operations 
standards. Once the Letter of Intent is received, a U.S. Customs Client 
Representative and a Census Bureau Client Representative will be 
assigned to work with the company. The Census Bureau will forward 
additional information to prepare the company for filing export data 
using the AES. The format and content for preparing the Letter of Intent 
is provided in Appendix A of this part.
    (c) General filing and transmission requirements. The data elements 
required for filing shipper's export data electronically are contained 
in Sec.  30.63. For AES, the difference is that the certified filer must 
transmit the shipper's export information electronically using the AES, 
rather than delivering the

[[Page 329]]

paper SED to the carrier. When transmitting export information 
electronically, the AES filers must comply with the data transmission 
procedures determined by Customs and the Census Bureau (See Sec.  30.62 
for AES certification, qualifications, and standards).
    (d) General responsibilities of exporters, filing agents, and sea 
carriers--(1) Exporter and authorized filing agent responsibilities. The 
exporter and/or their authorized agents, certified for AES filing, are 
responsible for:
    (i) Transmitting complete and accurate information to the AES (see 
Sec.  30.4 (a) and Sec.  30.7 (d)(1), (2), and (e) for a delineation of 
responsibilities of exporters and authorized forwarding agents);
    (ii) Transmitting information to the AES in a timely manner in 
accordance with the provisions and requirements contained in this 
subpart;
    (iii) Responding to messages identified as fatal error, warning, 
verify, or reminder generated by AES in accordance with the provisions 
contained in this subpart;
    (iv) Providing the exporting carrier with the required exemption 
statements or citations when an item or shipment is exempt from SED 
filing requirements in accordance with provisions contained in this 
subpart;
    (v) Transmitting corrections or cancellations to information 
transmitted to the AES as soon as the need for such changes is 
determined in accordance with provisions contained in this subpart; and
    (vi) Maintaining all necessary and proper documentation related to 
the AES export transaction in accordance with provisions contained in 
this subpart.
    (2) Sea carrier responsibilities. The exporting sea carrier also is 
responsible for transmitting timely, accurate, and complete manifests 
and bills of lading information to AES for all cargo being shipped. The 
exporting sea carrier is also responsible for transmitting booking, 
receipt of booking, departure, and manifest messages to AES. Customs and 
Census Bureau officials, with written agreement of the exporting sea 
carrier, can provide for alternative methods of filing manifest and SED 
information to that found in this Subpart. For exporting carrier 
responsibilities, see Subpart B, of this part, General Requirements--
Exporting Carriers. For electronic filing of manifest information using 
the AES, see 19 CFR 4.76, Procedures and responsibilities for electronic 
filing of sea manifests through AES.



Sec.  30.61  Electronic filing options.

    As an alternative to filing paper Shipper's Export Declaration forms 
(Option 1), three electronic filing options for transmitting shipper's 
export information are available to exporters or their authorized filing 
agents. Two of the electronic filing options (Options 3 and 4) take into 
account that complete information concerning export shipments is not 
always available at the time of shipment. The available AES electronic 
filing options are as follows:
    (a) AES with full information transmitted prior to exportation 
(Option 2). Option 2 provides for the electronic filing of all 
information required for exports to AES prior to exportation (see Sec.  
30.63 for information required to be reported electronically). Full 
predeparture information is always required to be transmitted to AES for 
the following specific types of shipments:
    (1) Used self-propelled vehicles (except those shipped between the 
United States and Puerto Rico) as defined in 19 CFR 192.1
    (2) Essential and precursor chemicals requiring a permit from the 
Drug Enforcement Administration;
    (3) Shipments defined as ``sensitive'' by Executive Order; and
    (4) Shipments where full export information is required prior to 
exportation by a federal government agency.
    (b) AES with partial information transmitted prior to exportation 
(Option 3). Option 3 provides for the electronic filing of specified 
data elements to the AES prior to exportation (see Appendix B of this 
part for a list of specified data elements). Filing Option 3 is 
available for all methods of transportation. Used self-propelled 
vehicles shipped between the United States and Puerto Rico may be 
shipped using filing Option 3. Option 3 is designed for those shipments 
for which full data are not available prior to exportation. No prior 
approval from

[[Page 330]]

the Census Bureau or Customs is required for certified AES filers to use 
Option 3. However, full predeparture information must be transmitted to 
the AES for certain specified transactions (as specified in Option 2). 
For shipments that require an export license, the exporter must file 
using Option 2 or 3, unless the licensing agency specifically approves 
the exporter for Option 4 filing for the licensed shipment under its 
jurisdiction. Where partial information is provided under Option 3, 
complete export information must be transmitted as soon as it is known, 
but no later than five (5) working days from the date of exportation. 
The exporter or their authorized filing agent must provide the exporting 
carrier with a unique shipment reference number prior to exportation.
    (c) AES with no information transmitted prior to exportation (Option 
4). Option 4 is only available for approved exporters and requires no 
export information to be transmitted electronically using AES prior to 
exportation. For approved Option 4 filers, all shipments (other than 
those requiring an export license, unless specifically approved by the 
licensing agency for Option 4 filing, and those specifically required 
under electronic filing Options 2 or 3) by all methods of transportation 
may be exported with no information transmitted prior to exportation. 
Used self-propelled vehicles, shipped between the United States and 
Puerto Rico, by an Option 4 approved exporter, may be shipped using 
filing Option 4. Certified AES authorized filing agents or service 
centers may transmit information post departure on behalf of approved 
Option 4 exporters. All exporters filing a Letter of Intent for Option 4 
filing privileges will be cleared through a formal review process by 
Customs, the Census Bureau, and other federal government agencies 
participating in the AES (partnership agencies) in accordance with 
provisions contained in Sec.  30.62. Where exportation is made with no 
prior AES filing, complete export information should be transmitted as 
soon as it is known, but no later than ten (10) working days from the 
date of exportation. The exporter or their authorized agent must provide 
the exporting carrier with the exporter's Option 4 AES identification 
number prior to exportation.



Sec.  30.62  AES Certification, qualifications, and standards.

    (a) AES certification process. Certification for AES filing will 
apply to any exporter, authorized forwarding agent, carrier, non-vessel 
operating common carriers (NVOCC), consolidator, port authority, 
software vendor, or service center transmitting export information 
electronically using the AES. Applicants interested in AES filing must 
submit a Letter of Intent to the Census Bureau in accordance with the 
provisions contained in Sec.  30.60. Customs and the Census Bureau will 
assign client representatives to work with the applicant to prepare them 
for AES certification. The AES applicant must perform an initial two-
part communication test to ascertain whether the applicant's system is 
capable of both transmitting data to and receiving data from the AES. 
The applicant must demonstrate specific system application capabilities. 
The capability to correctly handle these system applications is the 
prerequisite to certification for participation in the AES. The 
applicant must successfully transmit the AES certification test. 
Assistance is provided by the Customs' and Census Bureau's client 
representatives during certification testing. These representatives make 
the sole determination as to whether or not the applicant qualifies for 
certification. Upon successful completion of certification testing, the 
applicant's status is moved from testing mode to operational mode. Upon 
certification, the filer will be required to maintain an acceptable 
level of performance in AES filings. The certified AES filer may be 
required to repeat the certification testing process at any time to 
ensure that operational standards for quality and volume of data are 
maintained.
    (1) Filing agent certification. Once an authorized filing agent has 
successfully completed the certification process, the exporter(s) using 
that agent need no further AES certification of their own. The certified 
filing agent must have a properly executed power of attorney, a written 
authorization from the exporter, or a SED signed by the

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exporter to transmit the exporter's data electronically using the AES. 
The exporter or authorized agent that utilizes a service center or port 
authority must complete certification testing, unless the service center 
or port authority has a formal power of attorney or written 
authorization from the exporter to submit the export information on 
behalf of the exporter.
    (2) AES certification letter. The Census Bureau will provide the 
certified AES filer with a certification letter after the applicant has 
been approved for operational status. The certification letter will 
include:
    (i) The date that filers may begin transmitting ``live'' data 
electronically using AES;
    (ii) Reporting instructions; and
    (iii) Examples of the required AES exemption legends.
    (3) AES filing standards. The certified AES filer's data will be 
monitored and reviewed for quality, timeliness, and coverage. The Census 
Bureau will notify the AES filer in writing if they fail to maintain an 
acceptable level of quality, timeliness, and coverage in the 
transmission of export data or fail to maintain compliance with Census 
Bureau regulations contained in this chapter. The Census Bureau will 
direct that appropriate action to correct the specific situation(s) be 
taken.
    (b) Criteria for denial of applications requesting Option 4 filing 
status; appeal procedure. Approval for Option 4 filing privileges will 
apply only to exporters. However, forwarding agents may apply for Option 
4 filing privileges on behalf of an individual exporter. Option 4 
applicants must submit a Letter of Intent to the Census Bureau in 
accordance with the provisions contained in Sec.  30.60.
    (1) Option 4 approval process. The Census Bureau will distribute the 
Letters of Intent for Option 4 filing privileges to Customs and the 
other partnership agencies participating in the AES Option 4 approval 
process. Failure to meet the standards of the Census Bureau, Customs, or 
one of the partnership agencies is reason for nonselection or denial of 
the application for Option 4 filing privileges. Each partnership agency 
will develop its own internal Option 4 acceptance standards, and each 
agency will notify the Census Bureau of the applicant's failure to meet 
that agency's acceptance standards. If the Census Bureau does not 
receive either notification of denial, or a request for extension from 
the partnership agency within thirty (30) calendar days after the date 
of referral of the Letter of Intent to the partnership agency, the 
applicant is deemed to be approved by that agency. The Census Bureau 
will provide the Option 4 applicant with an approval or denial letter. 
If a denial letter is issued, the Census Bureau will indicate the 
partnership agency that denied the application. The applicant must 
contact the denying partnership agency for the specific reason(s) for 
denial.
    (2) Grounds for denial of Option 4 filing status. The Census Bureau 
may deny an exporter's application for Option 4 filing privileges for 
any of the following reasons:
    (i) Applicant is not an established exporter, as defined in this 
chapter, with regular operations;
    (ii) Applicant has failed to submit SEDs to the Census Bureau for 
processing in a timely and accurate manner;
    (iii) Applicant has a history of noncompliance with Census Bureau 
export laws and regulations contained in this chapter;
    (iv) Applicant has been indicted, convicted, or is currently under 
investigation for a felony involving a violation of federal export laws 
or regulations and the Census Bureau has evidence of probable cause 
supporting such violation, or the applicant is in violation of Census 
Bureau laws or regulations contained in this chapter; and
    (v) Applicant has made or caused to be made in the Letter of Intent 
a false or misleading statement or omission with respect to any material 
fact.
    (3) Notice of nonselection and appeal procedures for Option 4 
filing. The Census Bureau will notify applicants in writing of the 
decision to either deny or approve the applicant for Option 4 filing 
privileges within thirty (30) days of receipt of the Letter of Intent by 
the Census Bureau, or if a decision cannot be reached at that time, the 
applicant will be notified of an expected date for a final decision as 
soon as possible

[[Page 332]]

after the thirty (30) calendar days. Applicants for Option 4 filing 
privileges denied Option 4 status by other partnership agencies must 
contact those agencies regarding the specific reason(s) for nonselection 
and for their appeal procedures. Applicants denied Option 4 status by 
the Census Bureau will be provided with a specific reason for 
nonselection and a Census Bureau point of contact in the notification 
letter. Option 4 applicants may appeal the Census Bureau's nonselection 
decision by following the appeal procedure and reapplication restriction 
provided in paragraph (b) (5) of this section.
    (4) Revocation of Option 4 filing privileges. The Census Bureau may 
revoke Option 4 filing privileges of approved Option 4 exporters for the 
following reasons:
    (i) The exporter has made or caused to be made in the Letter of 
Intent a false or misleading statement or omission with respect to 
material fact;
    (ii) The exporter submitting the Letter of Intent is indicted, 
convicted, or is currently under investigation for a felony involving a 
violation of federal export laws or regulations and the Census Bureau 
has evidence of probable cause supporting such violation, or the 
applicant is in violation of Census Bureau laws or regulations contained 
in this chapter;
    (iii) The exporter has failed to substantially comply with existing 
Census Bureau or other agency export regulations; or
    (iv) The Census Bureau determines that continued participation in 
Option 4 by an exporter would pose a significant threat to national 
security interests such that their continued participation in Option 4 
should be terminated.
    (5) Notice of revocation; appeal procedure. Approved Option 4 filers 
whose Option 4 filing privileges have been revoked by other agencies 
must contact those agencies for their specific revocation and appeal 
procedures. When the Census Bureau makes a determination to revoke an 
approved Option 4 filer's AES Option 4 filing privileges, the exporter 
will be notified in writing of the reason(s) for the decision. The 
exporter may challenge the Census Bureau's decision by filing an appeal 
within thirty (30) calendar days of receipt of the notice of decision. 
In most cases, the revocation shall become effective when the exporter 
has either exhausted all appeal proceedings, or thirty (30) calendar 
days after receipt of the notice of revocation, if no appeal is filed. 
However, in cases when required by national security interests, 
revocations will become effective immediately upon notification. Appeals 
should be addressed to the Chief, Foreign Trade Division, Bureau of the 
Census, Washington, DC 20233. The Census Bureau will issue a written 
decision to the exporter within thirty (30) calendar days from the date 
of receipt of the appeal by the Census Bureau. If a written decision is 
not issued within thirty (30) calendar days, a notice of extension will 
be forwarded within that time period. The exporter will be provided with 
the reasons for the extension of this time period and an expected date 
of decision. Approved Option 4 exporters who have had their Option 4 
filing status revoked may not reapply for this status for one year 
following written notification of the revocation. Such applications will 
not be considered before the one-year time period.



Sec.  30.63  Information required to be reported electronically through 
AES (data elements).

    The information (data elements) listed in this section is required 
for shipments transmitted electronically through AES. The data elements 
as they pertain to electronic reporting are defined as paragraphs (a), 
(b), and (c) of this section. Those data elements that are defined in 
more detail in other sections of the FTSR are so noted. The data 
elements identified as ``mandatory'' must be reported for each 
transmission. The data elements identified as ``conditional'' must be 
reported if they are required for or apply to the specific shipment. The 
data elements identified as ``optional'' may be reported at the 
discretion of the exporter.
    (a) Mandatory data elements are as follows:
    (1) Exporter/exporter identification--(i) Name and address of the 
exporter. For details on the reporting responsibilities

[[Page 333]]

of exporters, see Sec.  30.4 and Sec.  30.7 (d)(1), (2), and (e).
    (ii) Exporter's profile. The exporter's Employer Identification 
Number (EIN) or Social Security Number (SSN) and exporter name, address, 
contact, and telephone number must be reported with the initial 
shipment. Subsequent shipments may be identified by either EIN, SSN, or 
DUNS (Dunn and Bradstreet) number. If no EIN, SSN, or DUNS number is 
available for the exporter, as in the case of a foreign entity being 
shown as exporter as defined in Sec.  30.7(d), the border crossing 
number, passport number, or any other number assigned by Customs is 
required to be reported. (See Sec.  30.7(d)(2) for a detailed 
description of the EIN.)
    (2) Date of exportation/date of arrival. The exporter or the 
authorized forwarding or other agent in the export transaction must 
report the date the merchandise is scheduled to leave the United States 
for all modes of transportation. If the actual date is not known, report 
the best estimate of departure. The estimated date of arrival must be 
reported for shipments to Puerto Rico. (See Sec.  30.7(r) for additional 
information.)
    (3) Ultimate consignee. The ultimate consignee is the person, party, 
or designee on the export license who is located abroad and actually 
receives the export shipment. The ultimate consignee known at the time 
of export must be reported. For goods sold en route, report ``SOLD EN 
ROUTE'' and report corrected information as soon as it is known. (See 
Sec.  30.7(f) for more information.)
    (4) U.S. state of origin. Report the 2-character postal abbreviation 
for the state in which the merchandise begins its journey to the port of 
export. (See Sec.  30.7(t)(1) and (2) for more information.)
    (5) Country of ultimate destination. Report the 2-character 
International Standards Organization (ISO) code for the country of 
ultimate destination. The country of ultimate destination, as shown on 
the export license, or the country as known to the exporter or principal 
party in interest in the export transaction at the time of export is the 
country in which the merchandise is to be consumed or further processed 
or manufactured. For goods sold en route, report the country of the 
first port of call and then report corrected information as soon as it 
is known. (See Sec.  30.7(i) for more information.)
    (6) Method of transportation. The method of transportation is 
defined as that by which the goods are exported or shipped. Report one 
of the codes listed in Part I of Appendix C of this part. (See Sec.  
30.7(b) for detailed information on method of transportation.)
    (7) Conveyance name. The name of the carrier (sea--vessel name; 
others--carrier name) must be reported by the exporter or the exporter's 
agent as known at the time of shipment for all shipments leaving the 
country by sea, air, truck, or rail. Terms such as ``airplane,'' 
``train,'' ``truck,'' or ``international footbridge'' are not acceptable 
and will generate an error message. (See Sec.  30.7(c) for more 
information.)
    (8) Carrier identification. Report the 4-character Standard Carrier 
Alpha Code (SCAC) for vessel, rail, and truck shipments and the 2-or 3-
character International Air Transport Association (IATA) Code for air 
shipments to identify the carrier actually transporting the merchandise 
out of the United States.
    (9) Port of export. Report the code of the Customs port of export in 
terms of Schedule D, ``Classification of Customs Districts and Ports.'' 
(See Sec. Sec.  30.7(a) and 30.20(c) and (d) for more information on 
port of export.)
    (10) Related/nonrelated indicator. Indicate if the shipment is 
between related parties. Report the information as defined in Sec.  
30.7(v).
    (11) Domestic or foreign indicator. Indicate if the commodities are 
of domestic or foreign production. Report the information as defined in 
Sec.  30.7(p).
    (12) Commodity classification number. Report the 10-digit commodity 
classification number as provided in Schedule B, ``Statistical 
Classification of Domestic and Foreign Commodities Exported from the 
United States'' (Schedule B). The 10-digit commodity classification 
number provided in the Harmonized Tariff Schedule (HTS) may be reported 
in lieu of the Schedule B Commodity classification number except as 
noted in the headnotes of the HTS. (See Sec.  30.7(l) for detailed 
information.)

[[Page 334]]

    (13) Commodity description. Report the commercial description in 
sufficient detail to permit the verification of the commodity 
classification number. (See Sec.  30.7(l) for more information regarding 
reporting the description.)
    (14) First net quantity/unit of measure. Report the primary net 
quantity in the specified unit of measure and the unit of measure as 
prescribed in the Schedule B or HTS or as specified on the export 
license.
    (15) Gross shipping weight. Report the gross shipping weight in 
kilograms for vessel, air, truck, and rail shipments. Include the weight 
of containers, but exclude the weight of carrier equipment. (See Sec.  
30.7(o) for more information.)
    (16) Value. The value shall be the selling price or cost if not 
sold, including inland freight, insurance, and other charges to the U.S. 
port of export. Report the value in U.S. currency. (See Sec.  30.7(q) 
for more information.)
    (17) Export information code. Report the appropriate 2-character 
export information code as provided in Part II of Appendix C of this 
part.
    (18) Shipment reference number. The filer of the export shipment 
provides a unique shipment reference number that allows for the 
identification of the shipment in their system. This shipment reference 
number must be unique for five years.
    (19) Line item number. Report a line number for each commodity for a 
unique identification of the commodity.
    (20) Hazardous material indicator. This is a ``Yes'' or ``No'' 
indicator identifying the shipment as hazardous as defined by the 
Department of Transportation.
    (21) In-bond code. Report one of the 2-character in-bond codes 
listed in Part IV of Appendix C of this part to indicate the type of In-
Bond or Not In-Bond shipment.
    (22) License code. Report the 3-character code listed in Part III of 
Appendix C of this part to indicate the type of license, permit, license 
exemption, or no license required.
    (b) Conditional data elements are as follows:
    (1) Forwarding agent/forwarding agent identification--(i) Name and 
address of the forwarding agent. The forwarding agent is any person in 
the United States or under jurisdiction of the United States who is 
authorized by the exporter to perform the services required to 
facilitate the export of merchandise out of the United States or the 
person named in the validated export license. (See Sec. Sec.  30.4(a) 
and 30.7(e) for details on responsibilities of forwarding agents).
    (ii) Forwarding agent's profile. The forwarding agent's 
identification number, EIN, DUNS, or SSN and name and address must be 
reported with the initial shipment. Subsequent shipments may be 
identified by the identification number.
    (2) Intermediate consignee. The intermediate consignee is the 
intermediary (if any) who acts in a foreign country as an agent for the 
exporter or the principal party in interest or the ultimate consignee 
for the purpose of effecting delivery of the export shipment to the 
ultimate consignee or the person named on the export license. (See Sec.  
30.7(g) for more information.)
    (3) Foreign Trade Zone number. Report the unique 5-character code 
assigned by the Foreign Trade Board that identifies the Foreign Trade 
Zone from which merchandise is withdrawn for export. (See Sec.  
30.7(t)(3) for more information.)
    (4) Foreign port of unloading. For sea shipments only, the code of 
the foreign port of unloading should be reported in terms of the 5-digit 
codes designated in Schedule K, ``Classification of Foreign Ports by 
Geographic Trade Area and Country.'' For air shipments from the United 
States to Puerto Rico, report the Puerto Rico port of unloading. For air 
shipments from Puerto Rico to the United States, report the United 
States port of unloading. Report the code of the port of unloading in 
terms of Schedule D, ``Classification of Customs Districts and Ports.'' 
(See Sec.  30.7(h) for more information on port of unloading.)
    (5) License number/Code of Federal Regulations (CFR) citation. For 
licensable commodities, report the license number of the license issued 
for the merchandise. If no license is required, report the regulatory 
citation exempting the merchandise from licensing or the

[[Page 335]]

conditions under which the merchandise is being shipped that make it 
exempt from licensing.
    (6) Export Control Classification Number. Report the Export Control 
Classification Number for merchandise as required by the Bureau of 
Export Administration (BXA) Regulations (15 CFR Parts 730 through 774).
    (7) Second net quantity/unit of measure. When Schedule B requires 
two units of quantity to be reported, report the second net quantity in 
the specified unit of measure and the unit of measure as prescribed in 
the Schedule B or HTS. (See Sec.  30.7(n) for more information.)
    (8) Used self-propelled vehicles. Report the following items of 
information for used self-propelled vehicles as defined in 19 CFR 192.1:
    (i) Vehicle Identification Number. Report the unique Vehicle 
Identification Number (VIN) in the proper format;
    (ii) Product Identification Number. Report the Product 
Identification Number (PIN) for those used self-propelled vehicles for 
which there are no VINs;
    (iii) Vehicle title number. Report the unique title number issued by 
the Motor Vehicle Administration; and
    (iv) Vehicle title state. Report the 2-character postal abbreviation 
for the state or territory of the vehicle title.
    (9) Entry number. Report the Import Entry Number when the export 
transaction is to be used as proof of export for import transactions 
such as In-Bond, Temporary Import Bond, Drawback, and so forth.
    (10) Wavier of prior notice. This is a ``Yes'' or ``No'' indicator 
to determine if the person claiming drawback received a waiver of prior 
notice for the exported merchandise.
    (11) Transportation reference number. Report the booking number for 
all sea shipments. The booking number is the reservation number assigned 
by the carrier to hold space on the vessel for the cargo being exported.
    (12) Equipment number. Report the container number for containerized 
shipments. This number may be reported in conjunction with the booking 
number.
    (13) Filing option indicator. Report the 1-character filing option 
that indicates Option 3 or Option 4 filing, or the AES-Post Departure 
Authorized Special Status (PASS) standard or expanded IOU's, if 
applicable.
    (c) Optional data elements are as follows:
    (1) Marks and numbers. The exporter or the authorized forwarding 
agent in the export transaction may opt to report any special marks or 
numbers that appear on the physical merchandise or its packaging that 
can identify the shipment or a portion thereof. (See Sec.  30.7(j) for 
more information.)
    (2) Seal number. Report the security seal number of the seal placed 
on the equipment.



Sec.  30.64  Transmitting and correcting AES information.

    (a) The exporter or their authorized filing agent is responsible for 
electronically transmitting corrections, cancellations, or amendments to 
shipment information previously transmitted using the AES. Corrections, 
cancellations, or amendments should be made as soon as possible after 
exportation when the error or omission is discovered.
    (b) For shipments where the exporter or their authorized filing 
agent has received an error message from AES, the corrections must take 
place as required. A fatal error message will cause the shipment to be 
rejected. This error must be corrected prior to exportation of the 
merchandise. For shipments where a warning message is received, the 
correction must be made within four (4) working days of receipt of the 
transmission, otherwise AES will generate a reminder message to the 
filer. For shipments with a verify message, corrections when warranted, 
should be made as soon as possible after notification of the error by 
the AES.



Sec.  30.65  Annotating the proper exemption legends for shipments transmitted electronically.

    The exporter or their authorized forwarding agent is responsible for 
annotating the proper exemption legend on the bill of lading, airway 
bill, or other commercial loading document for presentation to the 
carrier, either on paper or electronically prior to export. The 
exemption legend will identify that the shipment information has been 
transmitted electronically using the AES.

[[Page 336]]

The exemption legend will include the statement ``NO SED REQUIRED--AES'' 
followed by the filer's identification number and a unique shipment 
reference number or the returned confirmation number. For exporters who 
have been approved to participate in Filing Option 4, the exemption 
statement, ``NO SED REQUIRED--AES,'' should include the exporter's 
identification number and the filer's identification number if other 
than the exporter. The exemption legend must appear on the first page of 
the bill of lading, airway bill, or other commercial loading document 
and must be clearly visible.



Sec.  30.66  Recordkeeping and documentation requirements.

    All parties to the export transaction (owners and operators of the 
exporting carriers and exporters and their authorized agents) must 
retain documents or records verifying the shipment for five (5) years 
from the date of export. Customs, the Census Bureau, and other 
participating agencies may require that these documents be produced at 
any time within the 5-year time period for inspection or copying. These 
records may be retained in an elected format including electronic or 
hard copy as provided in the applicable agency's regulations. Acceptance 
of the documents by Customs or the Census Bureau does not relieve the 
exporter or their authorized agent from providing complete and accurate 
information after the fact.



                Subpart F_General Requirements_Importers

    Source: 41 FR 9134, Mar. 3, 1976, unless otherwise noted. 
Redesignated at 64 FR 40977, July 28, 1999.



Sec.  30.70  Statistical information required on import entries.

    Information for statistics on merchandise entering the United States 
from foreign countries, U.S. Foreign Trade Zones, and from the Virgin 
Islands of the United States, and other nonforeign areas (except Puerto 
Rico), is required to be reported by importers on the following Customs 
entry and withdrawal forms respectively required by U.S. Customs 
regulations for individual transactions: Custom Forms 7500, 7501, 7502, 
7505, 7506, 7519, 7521, and 7535, and on Customs Form 7512 when used as 
an intransit entry to document immediate exportation or transportation 
and exportation. Upon request, the importer or import broker must 
provide the Census Bureau with information or documentation necessary to 
verify the accuracy or resolve problems regarding the reported import 
transaction received by the Census Bureau. The following items of 
information for statistics shall be reported on the respective forms: 
\7\
---------------------------------------------------------------------------

    \7\ The information required for statistical purposes is in most 
cases also required by Customs regulations for other purposes. (See 
Sec.  30.80 for special reporting instructions for merchandise entering 
United States Customs Territory from United States Foreign Trade Zones.)
---------------------------------------------------------------------------

    (a) District and port code. (All forms.) The Customs district code 
number and the port code number (as shown in Schedule D, Classification 
of Customs Districts and Ports) for the Customs port of entry or filing 
shall be supplied. (Where Customs does not require that the District and 
Port codes be inserted by importers, the codes will be filled in by 
Customs so that all entries and withdrawals received by the Bureau of 
the Census will bear these codes.)
    (b) Importing vessel or carrier. (Not required for merchandise 
entering U.S. Customs territory from U.S. Foreign Trade Zones.) (1) 
(Customs Forms 7501, 7502, 7512, and 7521.) Information is required as 
to the carrier or means of transportation by which the merchandise was 
transported from a foreign country to the first port of unloading in the 
United States. If the merchandise has been further transported in bond 
between ports in the United States after having been unladen from the 
carrier on which it arrived in the United States, the name of the 
domestic carrier shall not be substituted, and the information furnished 
shall reflect the name of the carrier or means of transportation by 
which the merchandise arrived in the first U.S. port of unlading.
    (2) For merchandise arriving in the United States by vessel, the 
name of the importing vessel is required. The

[[Page 337]]

importing vessel is the vessel which transported the merchandise from 
the foreign port of lading to the first U.S. port of unlading.
    (3) For merchandise arriving in the United States by air, the name 
and nationality of the importing airline is required. The importing 
airline is the airline which carried the merchandise from the foreign 
port of lading to the first U.S. port of unlading, and not a domestic 
airline carrying the merchandise after the initial unlading in the 
United States.
    (4) For merchandise arriving in the United States by means of 
transportation other than vessel or air, the means of transportation 
from the foreign country is required, in such terms as ``parcel post,'' 
``registered mail,'' ``railroad,'' ``trucks,'' ``pipeline,'' etc.
    (c) Foreign port of lading. (1) (Customs Forms 7501, 7502, 7512 and 
7521.) For merchandise arriving in the United States by vessel or air, 
the name and country of the foreign port at which the merchandise was 
actually loaded on the vessel or aircraft that carried the merchandise 
to the United States is required. This information is not required for 
merchandise entering the U.S. Customs territory from a U.S. Foreign 
Trade Zone. For shipments originating in either Canada or Mexico by 
rail, truck, pipeline, or other nonvessel/nonair mode of transportation, 
supply the name of the province (Canada) or state (Mexico) where the 
merchandise was first loaded for exportation to the United States.
    (2) For merchandise transshipped overseas in the course of shipment 
to the United States, whether or not covered by a through bill of 
lading, the information furnished shall reflect only the foreign port at 
which the merchandise was loaded on the vessel, aircraft, or other 
carrier which transported it to the first U.S. port of unlading. Neither 
the foreign port of original lading nor any port of lading other than 
the last foreign port of lading shall be substituted. When a single 
Customs form covers merchandise loaded at more than one foreign port, 
the foreign port of lading shall be indicated separately in the ``Marks 
and numbers and Country of origin'' column immediately below the Country 
of origin designation and on the same line as the merchandise laden at 
each foreign port.
    (3) For merchandise entering the U.S. Customs territory from a U.S. 
Foreign Trade Zone, the number of the Foreign Trade Zone, preceded by 
the letters ``FTZ'' shall be shown in this space.
    (d) U.S. port of unlading. (Not required for merchandise entering 
U.S. Customs territory from U.S. Foreign Trade Zones.) (1) (Customs 
Forms 7501, 7502, 7512, and 7521.) For merchandise arriving in the 
United States by vessel or air, the U.S. port (as listed in Schedule D) 
at which the merchandise was unloaded from the importing vessel or 
aircraft is required, whether or not such port is a Customs port of 
entry. (For example, if entry is filed at the Port of Los Angeles for 
merchandise unloaded from the importing vessel at Long Beach, 
California, the entry should show Long Beach as the port of unlading.)
    (2) When merchandise is transported in bond from the U.S. port where 
unladen from the importing vessel or carrier to another U.S. port or 
ports to be entered for consumption or warehouse, the port of unlading 
required to be shown on the consumption or warehouse entry is the port 
or point where the merchandise was unladen from the importing vessel or 
carrier before transportation in bond.
    (e) Date of importation. (All forms.) For merchandise arriving in 
the United States by vessel, the month, day, and year on which the 
importing vessel transporting the merchandise from the foreign country 
arrived within the limits of the U.S. port at which the merchandise was 
or is to be unladen is required. The date of importation to be reported 
for merchandise arriving in the United States other than by vessel is 
the date on which the merchandise arrives within the limits of the 
United States.
    (f) Country of origin. (1) (All forms.) Country of origin shall be 
reported in the ``marks and numbers and country of origin'' column on 
entry and withdrawal forms (in the ``marks and numbers'' column on Forms 
7512 and 7500), the ``country of origin'' space on the Special Customs 
Invoice form, and in a conspicuous place on commercial invoices supplied 
to Customs where the

[[Page 338]]

Special Customs Invoice form is not required. On multipage entries, 
country of origin should be shown on each page.
    (2) Country of origin shall be reported in terms of the names 
designated in Schedule C-I, ``Classification of Country and Territory 
Designations for U.S. Import Statistics,'' unless a more specific 
geographic area is required to be shown for other purposes. The country 
of origin is defined as the country in which the product was mined, 
grown or manufactured. Further labor, work or material added to an 
article in another foreign country or the Virgin Islands of the United 
States must effect a substantial transformation in order to render such 
other country the ``country of origin.'' Such substantial 
transformations include smelting of ores, refining of crude products, 
and the like. The country of origin is not changed when the merchandise 
is subjected in another country merely to minor manipulations, such as 
sorting, grading, and the like. When the merchandise is invoiced in or 
exported from a country other than that in which it originated, the 
actual country of origin shall be specified rather than the country of 
invoice or exportation. The country of origin for imports of scrap and 
waste is the country in which the merchandise was reduced to scrap or 
waste. In the case of such commodities as industrial diamonds or 
antiques, if the origin of the merchandise is not known or cannot be 
ascertained with reasonable effort, the country from which the 
merchandise has been shipped shall be shown and shall be indicated as 
the ``Country of Shipment.''
    (3) Except as provided below, the country of origin shown on import 
entries and withdrawals should be based on information furnished by the 
foreign supplier on import invoices. The importer should inform his 
foreign supplier of the requirements and definitions of this section and 
instruct the foreign supplier to furnish information on the invoice as 
to country of origin in accordance with the above definition. If an 
invoice from the foreign supplier is not available at the time of entry, 
the importer shall enter the correct country of origin according to his 
best knowledge. In any case where the importer has reliable knowledge 
that the country of origin shown on the invoice is incorrect, he shall 
enter on the form the correct country of origin according to his best 
knowledge, indicating that it is a correction.
    (4) When a single Customs form covers merchandise from more than one 
country of origin, the country of origin shall be indicated separately 
against each item (or group of items).
    (g) Description of merchandise. (All forms.) Except on Customs Form 
7512 when used as an Immediate Exportation or Transportation and 
Exportation entry, the description of merchandise shall be in terms of 
the Tariff Act in accordance with the Tariff Schedules of the United 
States Annotated for Statistical Reporting (TSUSA) and in sufficient 
detail to permit the identification of the TSUSA statistical reporting 
number to which each commodity properly belongs. The name of the 
commodity and any and all characteristics of the commodity which 
distinguish it from commodities of the same name covered by other TSUSA 
statistical reporting numbers shall be clearly and fully stated. For 
merchandise classified in TSUSA classifications for which the 
instruction ``specify by name'' is shown in TSUSA the specific name of 
the commodity or a further identifying description in addition to the 
description in the more general terms of the commodity classification 
definition is required. When Customs Form 7512 is used as an Immediate 
Exportation or Transportation and Exportation entry importers need only 
report in terms of the first five digits of TSUSA (i.e., in terms of 
TSUS).
    (h) Gross weight in pounds. (Customs Forms 7501, 7502, 7512, and 
7521, for merchandise transported to the United States by vessel or air 
only.) Gross shipping weight in pounds shall be reported in column (2a) 
immediately below the description of merchandise (in ``Gross Weight in 
Pounds'' column on Form 7512 on the same horizontal line with value). 
Separate gross weight information is required for the merchandise 
covered by each reporting number, but if gross weight is not available 
for each reporting number included in one or more packages, approximate 
shipping weight for each

[[Page 339]]

item shall be estimated and reported. The total of these estimated 
weights should equal the actual gross shipping weight of the entire 
package or packages. However, for containerized cargo carried in lift 
vans, cargo vans, or similar substantial outer containers, the weight of 
such containers should not be included in the gross shipping weight of 
the merchandise covered by each reporting number.
    (i) Net quantity. (All forms except 7535.) When a unit of quantity 
is specified in TSUSA for the reporting number under which the item is 
reported, net quantity shall be reported in the specified unit, and 
(except where the unit is ``No.'' (number)) the unit in which reported 
shall also be shown on the entry following the net quantity figure. In 
cases where two units of quantity are shown for the commodity in TSUSA, 
net quantity shall be reported on the import entry in each of the 
specified units with the unit indicated in each case. The quantity in 
terms of the unit marked with a superior ``v'' in TSUSA should be shown 
on the entry on the same horizontal line with the value. The quantity in 
terms of any other units specified in TSUSA should be shown below the 
first quantity and should be enclosed in parentheses. If no unit of 
quantity is specified in TSUSA for the reporting number under which the 
item is reported, net quantity is not required to be reported on the 
import entry, and an ``X'' shall be entered in the ``net quantity'' 
column. Where the unit of quantity specified in TSUSA is ``tons,'' long 
tons of 2,240 pounds shall be reported unless short tons of 2,000 pounds 
are specified in TSUSA. Quantities shall be shown in whole units unless 
fractions of units are required for Customs purposes.
    (j) Value. (All forms.) Except on Customs Form 7512 when used as an 
Immediate Exportation or Transportation and Exportation entry, the 
dollar value shall be reported on the forms in accordance with the 
definitions set forth in the Tariff Schedules of the United States 
Annotated (TSUSA) and sections 402 and 402a of the Tariff Act of 1930, 
as amended. Moreover, the value shall be reported in accordance with the 
format prescribed in the U.S. Customs Regulations. (On Customs Form 7512 
when used as an Immediate Exportation entry, only the Customs value in 
accordance with sections 402 and 402a of the Tariff Act of 1930, as 
amended, need be reported.)
    (k) TSUSA reporting number. (All forms.) Except on Customs Form 7512 
when used as an in-transit entry, the reporting number according to the 
current edition of the Tariff Schedules of the United States Annotated 
shall be shown in the column provided on the form. The reporting number 
assigned shall reflect the correct TSUSA classification of the 
merchandise and be consistent with the rate of duty applicable to the 
commodity. Where correct reporting as indicated in TSUSA requires the 
use of more than one TSUSA commodity number, all required reporting 
numbers will be shown for an item on the Customs form. On Customs Form 
7512 when used as an Immediate Exportation or Transportation and 
Exportation entry, the reporting number, in terms of the first five 
digits of TSUSA (TSUS), is required to be shown in the column provided 
on the form for ``Description and Quantity of Merchandise.'' This code 
should appear to the right of that column, on the same line as the 
reported gross weight and value.

[41 FR 9134, Mar. 3, 1976, as amended at 42 FR 59839, Nov. 22, 1977; 47 
FR 29829, July 9, 1982; 65 FR 42565, July 10, 2000]



Subpart G_Special Provisions for Particular Types of Import Transactions

    Source: 41 FR 9134, Mar. 3, 1976, unless otherwise noted. 
Redesignated at 64 FR 40977, July 28, 1999.



Sec.  30.80  Imports from Canada.

    (a) When certain softwood lumber products described under Harmonized 
Tariff Schedule of the United States (HTSUS) subheadings 4407.1000, 
4409.1010, 4409.1090, and 4409.1020 are imported from Canada, import 
entry records are required to show a valid Canadian Province of 
Manufacture Code. The Canadian Province of Manufacture is determined on 
a first mill basis (the point at which the item was first manufactured 
into a covered lumber product). For purposes of determination,

[[Page 340]]

Province of Manufacture is the first province where the subject 
merchandise underwent a change in tariff classification to the tariff 
classes cited in this paragraph (a). The Province of Manufacture Code 
should replace the Country of Origin code on the CF 7501, Entry Summary 
form. For electronic Automated Broker Interface (ABI) entry summaries, 
the Canadian Province Code should be transmitted in positions 6-7 of the 
A40 records. These requirements apply only for imports of certain 
softwood lumber products for which the Country of Origin is Canada.
    (b) All other imports from Canada, including certain softwood lumber 
products not covered in paragraph (a) of this section, will require the 
two-letter designation of the Canadian Province of Origin to be reported 
on U.S. entry summary records. This information is required only for 
United States imports that under applicable Customs rules of origin are 
determined to originate in Canada. For nonmanufactured goods determined 
to be of Canadian origin, the Province of Origin is defined as the 
Province where the exported goods were originally grown, mined, or 
otherwise produced. For goods of Canadian origin that are manufactured 
or assembled in Canada, with the exception of the certain softwood 
lumber products described in paragraph (a) of this section, the Province 
of Origin is that in which the final manufacture or assembly is 
performed prior to exporting that good to the United States. In cases 
where the province in which the merchandise was manufactured or 
assembled or grown, mined, or otherwise produced is unknown, the 
province in which the Canadian vendor is located can be reported. For 
those reporting on paper forms the Province of Origin code replaces the 
country of origin code on the CF 7501, Entry Summary form.
    (c) All electronic Automated Broker Interface (ABI) entry summaries 
for imports originating in Canada also require the new Canadian Province 
of Origin code to be transmitted for each entry summary line item in the 
A40 record positions 6-7.
    (d) The Province of Origin code replaces the Country of Origin code 
only for imports that have been determined, under applicable Customs 
rules, to originate in Canada. Valid Canadian Province/Territory codes 
are:

XA--Alberta
XB--New Brunswick
XC--British Columbia
XM--Manitoba
XN--Nova Scotia
XO--Ontario
XP--Prince Edward Island
XQ--Quebec
XS--Saskatchewan
XT--Northwest Territories
XV--Nunavut
XW--Newfoundland
XY--Yukon

[61 FR 60532, Nov. 29, 1996; 61 FR 65319, Dec. 12, 1996, as amended at 
64 FR 24943, May 10, 1999]



Sec.  30.81  Imports of merchandise into Guam.

    (a) Carriers of merchandise to Guam shall not be permitted to unload 
cargo in Guam until the master or other person in charge of the carrier 
shall deliver to the Government of Guam at the place of unloading a 
manifest, cargo list, freight list or equivalent document showing a 
detailed account of merchandise destined for Guam on board such carrier, 
with the numbers and description of the packages according to their 
usual name or designation.
    (b) For each shipment imported into Guam except as listed in 
paragraph (d) of this section, the importer in Guam shall furnish to the 
Government of Guam at the port of entry of the merchandise at the time 
of or prior to taking possession of such merchandise, the commercial 
invoice covering the shipment attached to a copy of the bill of lading 
or air waybill signed by the carrier. (Where the shipment is one for 
which no bill of lading (or air waybill) is utilized only a copy of the 
commercial invoice need be furnished.) In individual cases, where 
warranted in the opinion of the Government of Guam, the Government of 
Guam may release merchandise to the consignee prior to receipt of the 
commercial invoice and/or bill of lading or air waybill in the case of 
perishable articles or other merchandise, the immediate delivery of 
which is necessary.

[[Page 341]]

    (c) Information concerning individual transactions furnished to the 
Government of Guam pursuant to these regulations may not be disclosed by 
those having possession of or access to any copies of such information 
for official purposes, to anyone other than the exporter or importer 
except as specifically directed by the Bureau of the Census.
    (d) The following kinds of shipments are not to be included in the 
statistics on shipments from the United States to Guam and the 
documentation prescribed in paragraphs (a) and (b) of this section shall 
not be required for statistical purposes:
    (1) Shipments to the U.S. Armed Forces;
    (2) Shipments of office furniture, office equipment, and office 
supplies, to and for the exclusive use of U.S. Government offices;
    (3) Baggage and personal effects, accompanied or unaccompanied, of 
persons leaving the U.S., and tools of trade, as described in Sec.  
30.56(a) and (b).



Sec.  30.82  Identification of U.S. merchandise returned for repair and reexport.

    Import entries covering U.S. merchandise imported temporarily for 
repair or alteration and reexport are required to show the following 
statement: ``Imported for Repair and Reexport.''



Sec.  30.83  Statistical copy of mail and informal entries.

    A legible copy of all mail and informal entries is required for 
statistical purposes. In addition to the information required to be 
shown for customs purposes, the value is also required to be shown for 
all merchandise including that not subject to duty.



               Subpart H_General Administrative Provisions

    Source: 41 FR 9134, Mar. 3, 1976, unless otherwise noted. 
Redesignated at 64 FR 40977, July 28, 1999.



Sec.  30.90  Confidential information, import entries and withdrawals.

    The contents of the statistical copies of import entries and 
withdrawals on file with the Bureau of the Census are treated as 
confidential and will not be released without authorization by the U.S. 
Customs Service, in accordance with the policy set forth in 19 CFR 103.4 
(Customs Regulations) relating to the copies on file in Customs offices.



Sec.  30.91  Confidential information, Shipper's Export Declarations.

    (a) Confidential status. The Shipper's Export Declaration is an 
official Department of Commerce form, prescribed jointly by the Bureau 
of the Census and the Bureau of Export Administration. Information 
required thereon is confidential, whether filed electronically or in any 
other approved format, for use solely for official purposes authorized 
by the Secretary of Commerce. Use for unauthorized purposes is not 
permitted. Information required on the Shipper's Export Declarations may 
not be disclosed to anyone except the exporter or his agent by those 
having possession of or access to any copy for official purposes, except 
as provided in paragraph (e) of this section.
    (b) Copying of information to manifests not permitted. Since certain 
types of information from the outward manifests of ocean carriers can be 
made public under the provisions of the Customs Regulations, carriers 
are not permitted to copy information to manifests (or to bills of 
lading used in lieu of a listing of cargo on a manifest) from Shipper's 
Export Declarations in their possession for official purposes, except 
for (1) the bill of lading number on the declaration, (2) information on 
the declaration which is identical with bills of lading or other sources 
of information available to the carrier, and (3) items of information 
which are required by Export Administration Regulations to be identical 
or consistent on both documents.
    (c) Supplying of copies by exporters for unofficial purposes not 
permitted. The regulations in this part spell out precise definitions to 
be followed in reporting information on Shipper's Export Declarations. 
Strict adherence to these definitions is necessary if the official 
purposes for which the forms are required are to be effectively 
accomplished. Because of the possibility that

[[Page 342]]

for other purposes different definitions would be appropriate, the 
supplying by exporters of any copies (or of the information from copies) 
for any unofficial purpose is considered detrimental to official 
objectives and is not permitted.
    (d) Limitations on issuance and reproduction of copies. Consistent 
with the policy stated in paragraph (c) of this section, and with the 
confidential status of the document generally, the following limitations 
are placed upon the issuance of copies to exporters or their agents:
    (1) A copy of a Shipper's Export Declaration may be supplied to 
exporters or their agents only when such a copy is needed by the 
exporter to comply with: (i) Official requirements for presentation of a 
copy to the exporting carrier as authorization for export, (ii) export 
control requirements, or (iii) U.S. Department of Agriculture 
requirements for proof of export in connection with subsidy payments. 
Copies issued to exporters or their agents under paragraph (d)(1) (ii) 
or (iii) of this section will be stamped as follows by the Customs 
Director:

    Certified pursuant to the Export Administration Regulations or to 
fulfill the requirements of a Federal Agency and not for any other 
purpose. May not be reproduced in any form.

    (2) Use of copies of the Shipper's Export Declaration in connection 
with claims for exemption from internal revenue taxes or state taxes is 
not permitted.
    (e) Determination by the Secretary of Commerce. When the Secretary 
of Commerce or delegate determines that the withholding of information 
provided by an individual Shipper's Export Declaration is contrary to 
the national interest, the Secretary or delegate may make such 
information available, taking such safeguards and precautions to limit 
dissemination as deemed appropriate under the circumstances. In 
recommendations regarding such actions, the Bureau of the Census will, 
in general, consider that it is not contrary to the national interest to 
withhold information on Shipper's Export Declarations from private 
individuals or businesses (except the exporter or the agent of the 
exporter) or from state or local government agencies or officials, 
regardless of the purposes for which the information may be requested. 
In recommendations regarding any other requests for access to official 
copies, a judgment in the light of circumstances will be made as to 
whether it is contrary to the national interest to apply the exemption, 
keeping in view that the maintenance of confidentiality has in itself an 
important element of national interest.

(13 U.S.C.302; and 5 U.S.C. 301; Reorg. Plan No. 5 of 1950, Department 
of Commerce Organization Order No. 35-2A, August 4, 1975, 40 FR 42765)

[41 FR 9134, Mar. 3, 1976, as amended at 47 FR 7213, Feb. 18, 1982; 48 
FR 52701, Nov. 22, 1983; 64 FR 40981, July 28, 1999]



Sec.  30.92  Statistical classification schedules.

    The following statistical classification schedules referred to in 
the regulations in this part are hereby incorporated by reference. 
Information as to where copies may be obtained is indicated. Copies are 
available for public inspection at the offices of local Customs 
Directors and Department of Commerce District Offices.

    TSUSA--Tariff Schedules of the United States Annotated for 
Statistical Reporting, as currently revised, shows the 7-digit 
statistical reporting number to be used in preparing import entries and 
withdrawal forms. TSUSA may be purchased from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, D.C. 20402, 
local Customs Directors, or Department of Commerce District Offices 
located in principal cities. Purchase price includes the basic schedule 
plus revisions as currently issued for an indefinite period.
    Schedule B--Statistical Classification of Domestic and Foreign 
Commodities Exported from the United States, as currently revised, shows 
the detailed commodity classification requirements and 7-digit 
statistical reporting numbers to be used in preparing Shipper's Export 
Declarations, as required by these regulations. Schedule B may be 
purchased from the Superintendent of Documents, U.S. Government Printing 
Office, Washington, D.C. 20402, local Customs Directors, or Department 
of Commerce District Offices located in principal cities. Purchase price 
includes the basic schedules and supplements issued irregularly, 
covering revision in the schedule for an indefinite period.

[[Page 343]]

    Schedule C-E--Classification of Country and Territory Designations 
for U.S. Export Statistics. Free from the Bureau of the Census, 
Washington, D.C. 20233.
    Schedule C-I--Classification of Country and Territory Designations 
for U.S. Import Statistics. Free from the Bureau of the Census, 
Washington, D.C. 20233.
    Schedule D--Classification of Customs Districts and Ports. Free from 
the Bureau of the Census, Washington, D.C. 20233.

(13 U.S.C. 302; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950; 
Department of Commerce Organization Order No. 35-2A, Aug. 4, 1975, 40 FR 
42765)

[41 FR 9134, Mar. 3, 1976, as amended at 42 FR 59840, Nov. 22, 1977; 43 
FR 56031, Nov. 30, 1978; 44 FR 1971, Jan. 9, 1979]



Sec.  30.93  Emergency exceptions.

    In individual cases of emergency, where strict enforcement of the 
regulations in this part would create undue hardship, the Foreign Trade 
Division of the Bureau of the Census, with the concurrence of the Office 
of Export Administration in cases where export control requirements are 
also involved, may authorize such postponements of or exceptions to the 
requirements of the regulation in this part as are warranted by the 
circumstances and not inconsistent with the aims of this chapter.



Sec.  30.94  Instructions to Customs.

    Instructions of a continuing nature to Customs with respect to the 
forwarding of statistical copies of forms and the preparation of special 
statistical reports not involving requirements upon the public will not 
be included in the regulations in this part, but will, instead be 
transmitted to Customs through appropriate administrative channels.



Sec.  30.95  Penalties for violations.

    Any person who violates any provisions of this part, except for 
violations of the provisions relating to delayed filing of documents 
under bond as provided by Sec.  30.24, shall be liable to the United 
States in civil penalty not exceeding $1,000 for each violation, as 
authorized by section 305 of Chapter 9 of Title 13 of the United States 
Code.



Sec.  30.99  OMB control numbers assigned pursuant to the Paperwork Reduction Act.

    (a) Purpose. This subpart will comply with the requirements of 
section 3507(f) of the Paperwork Reduction Act (PRA) which requires that 
agencies display a current control number assigned by the Director of 
OMB for each agency information collection requirement.
    (b) Display.

------------------------------------------------------------------------
    15 CFR section where identified and
                 described                     Current OMB control no.
------------------------------------------------------------------------
30.1 through 30.7.........................  0607-0001, -0018, -0150, -
                                             0152
30.8......................................  0607-0001
30.9 through 30.11........................  0607-0001, -0018, -0152
30.12 and 30.15...........................  0607-0001, -0018, -0152
30.16.....................................  0607-0001, -0018, -0150, -
                                             0152
30.20 through 30.24.......................  0607-0001, -0018, -0150, -
                                             0152
30.30 through 30.31.......................  0607-0018, -0150, -0152
30.33 through 30.35 and 30.37.............  0607-0001, -0018, -0150, -
                                             0152
30.39.....................................  0607-0018, -0150, -0152
30.40, 30.41, and 30.50 through 30.53.....  0607-0001, -0018, -0150, -
                                             0152
30.54.....................................  0607-0018
30.55 through 30.57.......................  0607-0001, -0018, -0150, -
                                             0152
30.82.....................................  0607-0018, -0152
30.91 through 30.95.......................  0607-0001, -0018, -0150, -
                                             0152
------------------------------------------------------------------------


[48 FR 56744, Dec. 23, 1983]

  Appendix A to Part 30--Format for Letter of Intent, Automated Export 
                              System (AES)

    A. Letters of Intent should be on company letterhead and must 
include:

1. Company Name, Address (no P.O. Boxes), City, State, Postal Code
2. Company Contact Person, Phone Number, Fax Number, E-mail Address
3. Technical Contact Person, Phone Number, Fax Number, E-mail Address
4. Corporate Office Address, City, State, Postal Code
5. Computer Site Location Address, City, State, Postal Code
6. Type of Business--Exporter, Freight Forwarder/Broker, Carrier, NVOCC, 
          Port Authority, Software Vendor, Service Center, etc. 
          (Indicate all that apply.)
    (i) Are you currently an AERP Participant? What is the AERP symbol?
    (ii) Freight Forwarder/Brokers indicate the number of exporters for 
whom you file export information (AERP and SEDs).
    (iii) Exporters indicate whether you are applying for AES, Option 4 
filing, or both.
7. U.S. Ports of Export Currently Utilized
8. Average Monthly Volume of Export Shipments (Monthly SED volume)
9. Average Monthly Value of Export Shipments (Monthly SED volume)

[[Page 344]]

10. Filer Code--EIN, DUNS, SSN, or SCAC (Indicate all that apply.)
11. Software Vendor Name, Contact, and Phone Number (if using vendor 
          provided software)
12. Look-a-Like Remote to Copy (as provided by vendor)
13. Modes of Transportation used for export shipments (Air, Vessel, 
          Truck, Rail, etc.)
14. Types of Merchandise exported
15. Types of Licenses or Permits
16. Anticipated Implementation Date

    B. The following self-certification statement, signed by an officer 
of the company, must be included in your letter of intent: ``I hereby 
certify that Company Name is, and will continue to be, in compliance 
with all applicable laws and regulations.''
    C. Send AES Letter of Intent to: Chief, Foreign Trade Division, U.S. 
Census Bureau, Washington, DC 20233. Or, the copy can be faxed to: 301-
457-1159.

[64 FR 40981, July 28, 1999]

 Appendix B to Part 30--Required Pre-Departure Data Elements for Filing 
                                Option 3

(1) Identifier of Exporter--EIN, etc.
(2) Forwarding Agent I.D.--EIN, etc.
(3) Carrier I.D. (SCAC or IATA).
(4) Country of Ultimate Destination--ISO code.
(5) Name of Ultimate Consignee.
(6) (a) Commodity description or (b) Optional--Schedule B No. or HTS 
          code
(7) Shipment reference number (17 characters or less). The filer of the 
export shipment provides a unique shipment reference number that allows 
for the identification of the shipment in their system. This shipment 
reference number must be unique for five years.
(8) Intended U.S. Port of Export
(9) Estimated Date of Export
(10) Transportation Reference Number, e.g., vessel booking number
(11) Method of Transportation (MOT) code
(12) HAZMAT--Y/N
(13) License code
(14) Export License Number

[64 FR 40981, July 28, 1999]

          Appendix C to Part 30--Electronic (AES) Filing Codes

                 Part I--Method of Transportation Codes

10 Sea
11 Sea Containerized
12 Sea (Barge)
20 Rail
21 Rail Containerized
30 Truck
31 Truck Containerized
32 Auto
33 Pedestrian
34 Road, Other
40 Air
41 Air Containerized
50 Mail
60 Passenger, Hand Carried
70 Fixed Transport (Pipeline and Powerhouse)

                    Part II--Export Information Codes

LC Shipments valued $2,500 or less per classification number that are 
          required to be reported
TP Temporary exports of domestic merchandise
IP Shipments of merchandise imported under a Temporary Import Bond for 
          further manufacturing or processing
IR Shipments of merchandise imported under a Temporary Import Bond for 
          repair
DB Drawback
CH Shipments of goods donated for charity
FS Foreign Military Sales
OS All other exports
HV Shipments of personally owned vehicles
HH Household and personal effects
SR Ship's stores
TE Temporary exports to be returned to the United States
TL Merchandise leased for less than a year
IS Shipments of merchandise imported under a Temporary Import Bond for 
          return in the same condition
CR Shipments moving under a carnet
GP U.S. government shipments
LV Shipments valued $2,500 or less that are not required to be reported
SS Carriers' stores for use on the carrier
MS Shipments consigned to the U.S. Armed Forces
GS Shipments to U.S. government agencies for their use
DP Diplomatic pouches
HR Human remains
UG Gift parcels under Bureau of Export Administration License Exception 
          GFT
IC Interplant correspondence
SC Instruments of international trade
DD Other exemptions:
    Currency
    Airline tickets
    Bank notes
    Internal revenue stamps
    State liquor stamps
    Advertising literature
    Shipments of temporary imports by foreign entities for their use
RJ Inadmissible merchandise

(For Manifest Use Only by AES Carriers)

RP Shipment information filed through Census Bureau's AERP
AE Shipment information filed through AES

(See Sec. Sec.  30.50 through 30.58 for information on filing 
exemptions.)

[[Page 345]]

                         Part III--License Codes

 Department of Commerce, Bureau of Export Administration (BXA) Licenses

C30 BXA Licenses
C31 SCL
C32 NLR (CCL/NS Column 2)
C33 NLR (All Others)
C34 Future Use
C35 LVS
C36 GBS
C37 CIV
C38 TSR
C39 CTP
C40 TMP
C41 RPL
C42 GOV
C43 GFT
C44 TSU
C45 BAG
C46 AVS
C47 APR
C48 KMI
C49 TAPS
C50 ENC

                Nuclear Regulatory Commission (NRC) Codes

N01 NRC Form 250/250A
N02 NRC General License

   Department of State, Office of Defense Trade Controls (ODTC) Codes

SAG Agreements
S00 License Exemption Citation
S05 DSP-5
S61 DSP-61
S73 DSP-73
S85 DSP-85

  Department of Treasury, Office of Foreign Assets Control (OFAC) Codes

T10 OFAC Specific License
T11 OFAC General License

                           Other License Types

OPA Other Partnership Agency Licenses not listed above

                         Part IV--In-Bond Codes

70 Not-In-Bond
36 Warehouse Withdrawal for Immediate Exportation
37 Warehouse Withdrawal for Transportation and Exportation
62 Transportation and Exportation
63 Immediate Exportation
67 Immediate Exportation from a Foreign Trade Zone
68 Transportation and Exportation from a Foreign Trade Zone

[64 FR 40982, July 28, 1999]



PART 40_TRAINING OF FOREIGN PARTICIPANTS IN CENSUS PROCEDURES AND GENERAL 
STATISTICS--Table of Contents




Sec.
40.1 Type of grant.
40.2 Qualifications.
40.3 Cooperation with bilateral technical assistance programs of the 
          United States.
40.4 Administrative provisions on selection of participants and funding 
          of costs.
40.5 Other cooperative arrangements.

    Authority: 5 U.S.C. 301; 22 U.S.C. 1456; 31 U.S.C. 686. Memorandum 
of Agreement between the Department of Commerce and the Foreign 
Operations Administration Concerning Foreign Technical Assistance Work, 
signed June 10, 1954.

    Source: 28 FR 119, Jan. 4, 1963, unless otherwise noted.



Sec.  40.1  Type of grant.

    Training grants will be awarded by the Agency for International 
Development (AID), in its capacity as the bilateral technical assistance 
agency for the United States Government, to foreign participants for 
training, observation, and research in the fields of censuses and 
statistics at the Bureau of the Census. In compliance with the needs of 
the participants and consistent with resources of the Bureau, training 
programs will be developed along the lines of a combined interne-
training and/or training-in research types, and may include any or all 
of the following:
    (a) Conference courses designed to provide the trainee with adequate 
background information on (1) organization and administration of the 
United States Bureau of the Census, (2) subject-matter areas for which 
the Bureau of the Census collects and compiles statistical information, 
(3) nature and scope of the major statistical programs maintained by 
other federal government agencies, (4) techniques and scope of the 
periodic censuses and statistical surveys, and statistical compilations 
undertaken by the Bureau of the Census, and (5) relation of censuses to 
other statistical data collected and analyzed by U.S. agencies.
    (b) Seminars laboratory exercises and observation of work in the 
Census Bureau and other agencies with specific

[[Page 346]]

applicability to the participant such as (1) development of census and 
survey questionnaires, (2) methods of field and mail enumeration, (3) 
procedures for editing and coding statistical forms, (4) use of office 
machines, electromechanical tabulation equipment, and automatic data 
processing systems for mass processing of statistical data, (5) 
definitions and scope of the subject matters involved in the censuses 
and statistical programs of the Bureau of the Census, (6) classification 
of industrial and business establishments, (7) classification of imports 
and exports, (8) techniques of making intercensal estimates of 
population, (9) sampling techniques and quality control procedures, (10) 
analyses and publication of data, and development of certain indexes; 
and (11) other topics, particularly in the development of new 
statistical programs and techniques.
    (c) Formal courses at a college or university to supplement the 
seminars, conference-courses, and individual statistical projects 
developed, presented, or assigned by the Bureau; or enrolled on a full-
time basis in a college or university to obtain the appropriate academic 
background for further work in the field of statistics in accordance 
with needs of participants and/or the program requirements of their 
countries.
    (d) Observation trips to various academic institutions with 
recognized statistical activities, to private marketing and research 
agencies, to regional field offices of the Bureau, to the government 
statistical agencies of Canada, and to such activities that will 
supplement or illustrate the application and end use of statistical 
data.
    (e) Case study workshops on selected census and statistical 
activities presented at the Bureau, in other locations in the United 
States, or outside the continental limits of the United States.
    (f) Such field training, special research, or university program as 
appears advisable to the Director of the Bureau of the Census in 
accordance with the technical needs of the participants.



Sec.  40.2  Qualifications.

    (a) To be eligible for a training grant at the Bureau of the Census 
the applicant must be:
    (1) A bona-fide citizen of a country with whom the United States has 
proper diplomatic arrangements for such training programs.
    (2) Able to speak, read, write, and understand the English language.
    (3) Sponsored by his government either directly with the United 
States or through a public international agency.
    (4) Physically able to undertake the activities incident to the 
course of training and free from communicable diseases.
    (b) [Reserved]



Sec.  40.3  Cooperation with bilateral technical assistance programs of 
the United States.

    In compliance with the provisions contained in the Memorandum of 
Agreement executed between the Department of Commerce and the Foreign 
Operations Administration (now AID) on June 10, 1954, the Bureau of the 
Census is authorized within its areas of competence and available 
resources to continue its training of foreign nationals under the 
general guidance of the Department of Commerce and in cooperation with 
the bilateral technical assistance programs of the United States 
Government.



Sec.  40.4  Administrative provisions on selection of participants and 
funding of costs.

    (a) Within the framework of the aforementioned Memorandum of 
Agreement, the Bureau of the Census will arrange at the request and 
expense of the Agency for International Development, a program for 
technical training of foreign participants in censuses and statistics. 
The Bureau of the Census will be furnished biographic materials, 
information about the training objecttives including, where appropriate, 
each participant's education and experience, type of training desired, 
present and future positions with descriptions of duties, and the terms 
of the training project for each participant or group as far in advance 
of his arrival in the United States as possible.

[[Page 347]]

    (b) The Bureau reserves the right to accept, based on biographical 
information to be furnished in advance, only those participants whom it 
finds qualified to make satisfactory use of its training facilities and 
resources. The Bureau would prefer to develop programs for foreign 
participants with substantive experience in the statistical activities 
of their home country.
    (c) Arrangements for security clearances, insurance, orientation, 
international travel, housing, and other administrative responsibilities 
will be the responsibility of AID under the provisions of the Memorandum 
of Agreement (Reference: Appendix II, Training of Foreign Nationals).



Sec.  40.5  Other cooperative arrangements.

    The Bureau of the Census also undertakes the training of foreign 
nationals proposed through the Department of State under the 
International Exchange Service (IES) or under the sponsorship of public 
international agencies.



PART 50_SPECIAL SERVICES AND STUDIES BY THE BUREAU OF THE CENSUS--Table 
of Contents




Sec.
50.1 General.
50.5 Fee structure for age search and citizenship information.
50.10 Fee structure for special population censuses.
50.30 Fee structure for foreign trade and shipping statistics.
50.40 Fee structure for statistics for city blocks in the 1980 Census of 
          Population and Housing.
50.50 Request for certification.
50.60 Request for certification.

    Authority: Sec. 3, 49 Stat. 293, as amended; 15 U.S.C. 192a. 
Interprets or applies sec. 1, 40 Stat. 1256, as amended, sec. 1, 49 
Stat. 292, sec. 8, 60 Stat. 1013, as amended, 15 U.S.C. 192, 189a, 13 
U.S.C. 8.

    Effective Date Note: At 67 FR 72096, Dec. 4, 2002, the authority for 
part 50 was revised, effective Jan. 3, 2003. For the convenience of the 
user, the revised text is set forth as follows:
    Authority: 15 U.S.C. 1525-1527; and 13 U.S.C. 3 and 8.



Sec.  50.1  General.

    (a) Fee structure for age search and citizenship service, special 
population censuses, and for foreign trade and shipping statistics.
    (b) In accordance with the provisions of the acts authorizing the 
Department of Commerce to make special statistical surveys and studies, 
and to perform other specified services upon the payment of the cost 
thereof, the following fee structure is hereby established. No 
transcript of any record will be furnished under authority of these acts 
which would violate existing or future acts requiring that information 
furnished be held confidential.
    (c) Requests for age search and citizenship service should be 
addressed to the Personal Census Search Unit, Data Preparation Division, 
Bureau of the Census, P.O. Box 1545, Jeffersonville, Indiana 47131. 
Application forms may be obtained at Department of Commerce field 
offices or Social Security offices or by writing to the Jeffersonville, 
Indiana office.
    (d) If a search is unsuccessful and additional information for a 
further search is requested by the Bureau, such information must be 
received within 120 days of the request or the case will be considered 
closed. Additional information received after 120 days must be 
accompanied by a new fee and will be considered as a new request.

(15 U.S.C. 1526 and 13 U.S.C. 8)

[36 FR 905, Jan. 20, 1971, as amended at 49 FR 3980, Feb. 1, 1984; 56 FR 
35815, July 29, 1991]



Sec.  50.5  Fee structure for age search and citizenship information.

------------------------------------------------------------------------
                        Type of service                            Fee
------------------------------------------------------------------------
Searches of one census for one person and one transcript.......   $40.00
Each additional copy of census transcript......................     2.00
Each full schedule requested...................................    10.00
------------------------------------------------------------------------

    Note.-- The $10.00 for each full schedule requested is in addition 
to the fee increase to $40.00

[58 FR 4078, Jan. 13, 1993]

[[Page 348]]



Sec.  50.10  Fee structure for special population censuses.

    The Bureau of the Census is authorized to conduct special population 
censuses at the request of and at the expense of the community 
concerned. To obtain a special population census, an authorized official 
of the community should write a letter to the Associate Director for 
Demographic Fields, Bureau of the Census, Washington, D.C. 20233, 
requesting detailed information and stating the approximate present 
population. The Associate Director will reply giving an estimate of the 
cost and other pertinent information. Title 13, United State Code, 
section 196, Special Censuses, requires payment to the Bureau of the 
actual or estimated cost of each such special census.

[47 FR 18, Jan. 4, 1982]



Sec.  50.30  Fee structure for foreign trade and shipping statistics.

    (a) The Bureau of the Census is willing to furnish on a cost basis 
foreign trade and shipping statistics provided there is no serious 
interruption of the Bureau's regular work program.
    (b) In instances where information requested is not shown separately 
or not summarized in the form desired, it is necessary to conduct a 
prelimary investigation at the requestor's expense to determine whether 
the information can be compiled from the basic records and what the 
total cost will be. The preliminary investigation normally costs $250 
but may be more depending on the circumstances. The total cost of the 
final report generally ranges from $500 to several thousand dollars for 
data covering a 12-month period.
    (c) Upon receipt of a request, information will be furnished as to 
whether the statistics are available and if so, the cost; or that a 
preliminary investigation must be conducted. When an investigation is 
completed, information will be furnished as to the cost of preparing the 
material, or as to the reason if the statistics cannot be compiled from 
our basic records.

(15 U.S.C. 1526 and 13 U.S.C. 8)

[28 FR 120, Jan. 4, 1963, as amended at 49 FR 3980, Feb. 1, 1984]



Sec.  50.40  Fee structure for statistics for city blocks in the 1980 Census 
of Population and Housing.

    (a) As part of the regular program of the 1980 census, the Census 
Bureau will publish printed reports containing certain summary 
population and housing statistics for each city block, drawn from the 
subjects which are being covered on a 100-percent basis. For these 
subjects, a substantial amount of additional data by block will be 
available on computer tape.
    (b) The 1980 block data under the regular program will be prepared 
for:
    (1) Each urbanized area in the United States. An urbanized area is 
delineated by the Census Bureau in each standard metropolitan 
statistical area and generally consists of a city or group of contiguous 
cities with a 1970 population of 50,000 or more, together with adjacent 
densely populated land (i.e., land having a population density of at 
least 1,000 persons per square mile).
    (2) And, outside urbanized areas, for each incorporated place (such 
as a city or village) that was reported as having 10,000 or more 
inhabitants in:
    (i) The 1970 census, or
    (ii) The 1973, 1975, or 1976 official population estimates published 
by the Bureau, or
    (iii) A special census conducted by the Bureau on or before December 
31, 1977.
    (c) Outside the above-mentioned urbanized areas and places, State 
and local government authorities will be able to contract with the 
Bureau of the Census to produce block data for their areas. In 
undertaking this contract, the requesting authority will be required to 
pay a fee, supply certain maps, and meet certain time deadlines as 
follows:
    (1) Fee: (i) Population size:

------------------------------------------------------------------------
                                                                Fee per
                                                                  area
------------------------------------------------------------------------
Under 2,500..................................................       $500
2,500 to 4,999...............................................        600
5,000 to 9,999...............................................        700
------------------------------------------------------------------------

    (ii) The final fee will be based upon the 1980 census population 
counts. A refund or additional charge will be made if the contracting 
area is in a different population size group as a result of the census.

[[Page 349]]

    (iii) The cost for an area with a population of 10,000 or more will 
be determined on an individual basis.
    (iv) Multiple area contracts may be negotiated at a savings.
    (v) The fee is based on estimated 1980 costs. If the 1980 cost 
exceeds the estimated cost, an additional fee may be requested from the 
contracting area. If actual costs are less than the estimated cost, a 
refund may be made.
    (vi) Any incorporated place which contracts for block statistics and 
which reaches a population of 10,000 or more in the 1980 census will 
have the fee completely refunded, as the place will then be considered 
to be part of the regular block statistics program.
    (vii) If the area submits maps which are not adequate for the 
Bureau's purposes (see Maps, below) and therefore have to be redrafted 
by the Bureau, a surcharge of $300 per map sheet requiring revision will 
be applied to the fee for the particular area.
    (2) Maps: (i) In order for the Bureau to provide data on a block-by-
block basis, it must have a map which clearly delineates each block. The 
contracting government authority must supply such maps. A copy of the 
specifications for preparing the block maps will be provided upon 
request and, in any event, will accompany the copy of the contract which 
is sent to the government authority for signature.
    (ii) The maps must be furnished to the Census Bureau within 30 
calendar days after the government authority signs the contract.
    (iii) The Bureau will review the maps and, if revision is necessary, 
return them within 30 calendar days to the government authority.
    (iv) Within 30 calendar days thereafter, the revised maps must be 
transmitted to the Bureau and, if they are still inadequate and must 
therefore be redrafted by the Bureau, the above-mentioned surcharge of 
$300 per map sheet requiring revision will be imposed.
    (3) Timing: (i) The contract must be signed, and a downpayment of 
$250 per area made, by April 1, 1978. A check or money order should be 
made payable to ``Commerce--Census.''
    (ii) If an area decides to withdraw after signing a contract and 
making a downpayment, the cost of work performed to date will be 
deducted from the refund.
    (iii) The balance of the fee must be mailed to the Bureau by January 
1, 1980.
    (d) In consideration of the fees paid and maps supplied, the Bureau 
will:
    (1) Identify the individual blocks in its records and tabulations.
    (2) Make available the block data for the particular area in the 
same manner as for areas in the regular block statistics program (i.e., 
both in terms of printed reports and computer summary tapes). Two copies 
of the printed report (including the printed maps) which contain the 
block statistics for the particular area will be furnished to the 
contracting government authority.
    (e) Requests for participation in the contract block statistics 
program or for further information should be addressed to the Director, 
Bureau of the Census, Washington, DC 20233.

[43 FR 3903, Jan. 30, 1978; 43 FR 59835, Dec. 22, 1978]



Sec.  50.50  Request for certification.

    (a) Upon request, the Census Bureau certifies certain statistical 
materials (such as the population and housing unit counts of government 
entities, published tabulations, maps, and other documents). The Census 
Bureau charges customers a preset fee for this service according to the 
kind of certification requested (either an impressed document or an 
attestation) and the level of difficulty involved in compiling it (easy, 
moderate, or difficult, determined according to the resources expended) 
as well as the set cost of the data product (e.g., report or map) to be 
certified. Certification prices are shown in the following table:

                     Price by Type of Certification
------------------------------------------------------------------------
                                                               Estimated
                                                   Estimated    time to
                     Product                         price     complete
                                                              (in hours)
------------------------------------------------------------------------
Impress-easy.....................................     $70.00         1.5
Impress-medium...................................     110.00         3
Impress-difficult................................     150.00         4.5
Attestation-easy.................................     160.00         3
Attestation-medium...............................     200.00         4.5
Attestation-difficult............................     240.00         6
------------------------------------------------------------------------


[[Page 350]]

    (b) There are two forms of certification available: Impressed 
Documents and Attestation.
    (1) Impressed Documents. An impressed document is one that is 
certified by impressing the Census Bureau seal on the document itself. 
The Census Bureau act, Title 13, United States Code, Section 3, provides 
that the seal of the Census Bureau shall be affixed to all documents 
authenticated by the Census Bureau and that judicial notice shall be 
taken of the seal. This process attests that the document on which the 
seal is impressed is a true and accurate copy of a Census Bureau record.
    (2) Attestation. Attestation is a more formal process of 
certification. It consists of a signed statement by a Census Bureau 
official that the document is authentic and produced or published by the 
agency, followed by a signed statement of another Census Bureau official 
witnessing the authority of the first.
    (c) Requests for certification should be submitted on Form BC-
1868(EF), Request for Official Certification, to the Census Bureau by 
fax, (301) 457-4714 or by e-mail, [email protected]. Form BC-1868(EF) 
is available on the Census Bureau's Web site at: http://www.census.gov/
mso/www/certification/. A letter request--without Form BC-1868(EF)--will 
be accepted only if it contains the information necessary to complete a 
Form BC-1868(EF). No certification request will be processed without 
payment of the required fee.

[67 FR 54951, Aug. 27, 2002]



Sec.  50.60  Request for Certification.

    (a) Certification Process. Upon request, the Census Bureau certifies 
population and housing counts of standard governmental units to reflect 
boundary updates, including new incorporations, annexations, mergers, 
and so forth. The Census Bureau will produce a certificate, that is, a 
signed statement by a Census Bureau official attesting to the 
authenticity of the certified Census 2000 population and housing counts 
to reflect updates to the legal boundaries of governmental units after 
those in effect for Census 2000. This service will be a permanent 
process, but one that will be temporarily suspended during future 
decennial censuses. Typically, the Census Bureau will suspend this 
service, and direct its resources to the decennial census, for a total 
of five years--the two years preceding the decennial census, the 
decennial census year, and the two years following it. The Census Bureau 
will issue notices in the Federal Register announcing when it suspends 
and, in turn, resumes, the service.
    (1) The Census Bureau charges customers a preset fee for this 
service according to the amount of work involved in compiling the 
population and housing counts, as determined by the resources expended 
to meet customer requirements and the set cost of the product (one 
certificate). Certification fees may increase somewhat if the customer 
requests additional original certificates. Each additional certificate 
costs $35.00. Certification prices are shown in the following table:

                      Description and Estimated Fee
------------------------------------------------------------------------
      Standard  governmental units                Estimated fee
------------------------------------------------------------------------
Annual Certification...................  $693 to $1,799.
Expedited Certification................  1,530 to 9,075.
------------------------------------------------------------------------

    (2) [Reserved]
    (b) Description of Certification Types. The Census Bureau will 
process requests for population certificates for standard governmental 
units, in accordance with the Census Bureau's annual certification 
schedule or under an expedited certification arrangement. The boundaries 
for standard governmental units are regularly and customarily updated 
between decennial censuses by the Census Bureau's geographic support 
system. These governmental units include a variety of legally defined 
general- and special-purpose governmental units, including counties and 
statistically equivalent entities, minor civil divisions, incorporated 
places, consolidated cities, federally recognized American Indian 
reservations, and school districts. A complete list of entities is 
defined in paragraph (c) of this section.
    (1) Annual Certification. Annual population and housing 
certification is available around October 1 of each calendar year to new 
or existing governmental units that report legal boundary updates in the 
Census Bureau's annual Boundary and Annexation Survey.

[[Page 351]]

In accordance with reporting requirements of this survey, the legally 
effective dates of the boundary updates may not be later than January 1 
of the calendar year. These certifications are available through 
September of the following year.
    (i) The annual certification service also is available to standard 
governmental units that are not in the Boundary and Annexation Survey of 
that year. Governmental units electing participation in this service 
must draft the legal boundary updates upon Census Bureau-supplied maps. 
The legally effective dates of the boundaries may not be later than 
January 1 of the calendar year. The Census Bureau must receive the 
census maps annotated with the legally certified boundaries and 
associated address ranges by April 1 of the same calendar year. The 
Census Bureau will determine that the legal boundary updates are 
acceptable by verifying that the information is complete, legible, and 
usable, and that the legal boundaries on the maps have been attested by 
the governmental unit as submitted in accordance with state law or 
tribal authority.
    (ii) [Reserved]
    (2) Expedited Certification. (i) Expedited certification will be 
available where the customer requests any of the following:
    (A) Certification of boundary updates legally effective after 
January 1 of the current calendar year; or
    (B) Certification of boundary updates reported to the Census Bureau 
after April 1 of the current calendar year; or
    (C) Certification of boundary updates by the Census Bureau before 
October 1 of the current calendar year.
    (ii) Governmental units electing participation in this service must 
draft the legal boundary updates upon Census Bureau-supplied maps. To 
allow sufficient processing time, the Census Bureau must receive 
acceptable census maps annotated with the legally certified boundaries 
and associated address ranges no later than three months before the date 
requested by the customer to receive the population certificate. The 
Census Bureau will determine that the legal boundary updates are 
acceptable by verifying that the information is complete, legible, and 
usable and that the legal boundaries on the maps have been attested as 
submitted in accordance with state law or tribal authority.
    (c) List of Standard Governmental Units. The following is a list of 
the standard governmental units eligible for the Geographically Updated 
Population Certification Program:
    (1) Federally recognized American Indian reservations and off-
reservation trust land entities [tribal government]; this includes a 
reservation designated as a colony, community, Indian community, Indian 
village, pueblo, rancheria, reservation, reserve, and village.
    (2) Counties and statistically equivalent entities, including the 
following: counties in 48 states; boroughs, municipalities, and census 
areas in Alaska [state official]; parishes in Louisiana; and municipios 
in Puerto Rico.
    (3) Minor civil divisions as recognized in Census 2000 in the 
following 28 states: Arkansas, Connecticut, Illinois, Indiana, Iowa, 
Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, 
Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, 
North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South 
Dakota, Vermont, Virginia, West Virginia, and Wisconsin.
    (4) Incorporated places, including the following: boroughs in 
Connecticut, New Jersey, and Pennsylvania; cities in 49 states and the 
District of Columbia; cities, boroughs, and municipalities in Alaska; 
towns in 30 states (excluding towns in New England, New York, and 
Wisconsin, which are minor civil divisions); and villages in 20 states.
    (5) Consolidated cities.
    (6) School districts.
    (d) Non-Standard Certifications. Certifications for population and 
housing counts of non-standard geographic areas or of individual census 
blocks are not currently available under this program but will be 
announced under a separate notice at a later date.
    (e) Submitting Certification Requests. Submit requests for 
certifications on Form BC-1869(EF), Request for Geographically Updated 
Official Population Certification, to the Census Bureau by fax, (301) 
457-4714, or by e-mail,

[[Page 352]]

[email protected]. Form BC-1869(EF) will be available on the Census 
Bureau's Web site at: http.//www.census.gov/mso/www/certification/. A 
letter or e-mail communication requesting the service without Form BC-
1869(EF) will be accepted only if it contains the information necessary 
to complete a Form BC-1869(EF).

[67 FR 72096, Dec. 4, 2002]

    Effective Date Note: At 67 FR 72096, Dec. 4, 2002, Sec.  50.60 was 
added, effective Jan. 3, 2003.



PART 60_PUBLIC INFORMATION--Table of Contents




    Authority: 5 U.S.C. 301, 552, 553, Reorganization Plan No. 5 of 
1950; 31 U.S.C. 3717.



Sec.  60.1  Public information.

    The rules and procedures regarding public access to the records of 
the Bureau of the Census are found at 15 CFR part 4.

[57 FR 40841, Sept. 8, 1992]



PART 70_CUTOFF DATES FOR RECOGNITION OF BOUNDARY CHANGES FOR THE CENSUS 
2000--Table of Contents




Sec.
70.1 Cutoff dates and effect on enumeration and data tabulation.
70.2 ``Municipality'' and ``county subdivision'' defined for census 
          purposes.
70.3 Effect of boundary changes occurring or reported after the cutoff 
          dates.

    Authority: 13 U.S.C. 4 and Department of Commerce Organization Order 
35-2A (40 FR 42765).

    Source: 51 FR 24653, July 8, 1986, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 70 appear at 63 FR 
10303, Mar. 3, 1998.



Sec.  70.1  Cutoff dates and effect on enumeration and data tabulation.

    For the tabulation and publication of data from the Census 2000 of 
Population and Housing, the Bureau of the Census will recognize only 
those boundaries legally in effect on January 1, 2000 that have been 
reported officially to the Bureau of the Census no later than March 1, 
2000. The Bureau of the Census enumerates respondents on the date of the 
decennial census as residing within the legal limits of municipalities, 
county subdivisions, counties, States, and equivalent areas as those 
limits exist on January 1, 2000.



Sec.  70.2  ``Municipality'' and ``county subdivision'' defined for 
census purposes.

    For the purposes of this part, the Bureau of the Census defines 
``municipalities'' and ``county subdivisions'' to include the areas 
identified as incorporated places (such as cities and villages) and 
minor civil divisions (such as townships and magisterial districts). A 
more complete description appears on pages A-6 and A-11 of 1990 Census 
of Population, Volume 1, General Population Characteristics, 1990 CP-1-
1, Appendix A.

[51 FR 24653, July 8, 1986, as amended at 63 FR 10303, Mar. 3, 1998]



Sec.  70.3  Effect of boundary changes occurring or reported after the 
cutoff dates.

    The Bureau of the Census will not recognize changes in boundaries 
that become effective after January 1, 2000 in taking the 2000 Decennial 
Census; the Bureau of the Census will enumerate the residents of any 
area that are transferred to another jurisdiction after that date and 
report them for the Census 2000 as residents of the area in which they 
resided on January 1, 2000. The Bureau of the Census will not recognize 
in the data tabulations prepared for the 2000 census changes occurring 
on or before January 1, 2000, but not submitted officially to the Bureau 
of the Census until after March 1, 2000 except as necessary to conduct 
decennial census operations.



PART 80_FURNISHING PERSONAL CENSUS DATA FROM CENSUS OF POPULATION 
SCHEDULES--Table of Contents




Sec.
80.1 General requirements.
80.2 Rules pertaining to records of the living.
80.3 Rules applicable to deceased persons and estates.
80.4 Signature of persons unable to sign their name.
80.5 Detrimental use of information.
80.6 False statements.


[[Page 353]]


    Authority: Sec. 1, Pub. L. 83-1158, 68 Stat. 1013 (13 U.S.C. 8).



Sec.  80.1  General requirements.

    (a) Data from records of decennial census of population 
questionnaires pertaining to an individual will be released only in 
accordance with these rules.
    (b) Census information contains only the responses recorded by the 
Census enumerator; no changes of any of these entries have been or can 
be made.
    (c) Requests for information from decennial census of population 
records (herein ``Census information'') should be made on Form BC-600, 
which is available from offices of the Bureau of the Census at Suitland, 
Maryland 20233 and Pittsburg, Kansas 66762, all county courthouses, 
Social Security field offices, and Immigration and Naturalization 
Service offices. A letter request--without Form BC-600--will be accepted 
only if it contains the information necessary to complete a Form BC-600. 
No application will be processed without payment of the required fee as 
set forth in 15 CFR 50.5.
    (d) The Bureau may require verification of the identity of the 
applicant requesting Census information and it may require the applicant 
to submit the following notarized statement:

    I, -------------------- (Printed name), do hereby certify that I am 
the individual to whom the requested record pertains or that I am within 
the class of persons authorized to act on his behalf in accordance with 
15 CFR, Part 80.
 (Signature)____________________________________________________________

                                              (Date)--------------------
In the County of________________________________________________________
State of________________________________________________________________
On this ------ day of --------, 19----, -------------------- (Name of 
individual) who is personally known to me, did appear before me and sign 
the above certificate.
 (Signature)____________________________________________________________

                                              (Date)--------------------
(S) My commission expires_______________________________________________

    (e) Except as otherwise provided, Census information will be 
provided only to the individual to whom the record pertains. It will 
include the names of the subject and the head of the household, the 
relationship of the subject to the head of the household, and the 
subject's age and birthplace.
    (f) Similar Census information pertaining to other members of a 
household will be furnished only upon written authorization of the 
individual whose record is requested, except as provided in Sec.  80.3.
    (g) Census information may be provided to others only upon signed 
request by an individual entitled to receive the information which 
indicates the person and address to which the information is to be sent.

(Approved by the Office of Management and Budget under control number 
0607-0117)

[40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23, 1983]



Sec.  80.2  Rules pertaining to records of the living.

    (a) An individual who has attained age 18 may request his or her own 
Census information.
    (b) A parent may request Census information for and in behalf of a 
child who has not reached age 18. The request must be signed by one of 
the parents.
    (c) A legal guardian may obtain Census information relating to a 
ward by submitting a certified copy of the order of guardianship 
appointment.

(Approved by the Office of Management and Budget under control number 
0607-0117)

[40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23, 1983]



Sec.  80.3  Rules applicable to deceased persons and estates.

    (a) Census information relating to a deceased person may be released 
only to a parent, child, grandchild, brother, sister, spouse, insurance 
beneficiary, or the executor or administrator of a deceased person's 
estate. The request must be signed by a person entitled to receive the 
information as provided herein, state the relationship of the applicant 
to the deceased, and include a certified copy of the death certificate 
or other adequate proof of death. The request of an executor or 
administrator must be accompanied by a certified copy of the court order 
of appointment.
    (b) Except for a spouse, a person related to the deceased person 
through

[[Page 354]]

marriage, such as an in-law relationship, is not eligible to request 
Census information on the deceased, whether or not the applicant was a 
member of the household of the deceased.

(Approved by the Office of Management and Budget under control number 
0607-0117)

[40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23, 1983]



Sec.  80.4  Signature of persons unable to sign their name.

    A person requesting Census information who is unable to sign his or 
her name shall make an ``X'' mark where signature is required, and the 
mark must be witnessed by two persons who know the applicant. They must 
also sign the application certifying the applicant's identity. In the 
case of such persons who are unable to make an ``X'' mark, Census 
information can be released upon receipt of a physician's sworn 
statement verifying the disability and the written request of a parent, 
brother, sister, child or a spouse.

(Approved by the Office of Management and Budget under control number 
0607-0117)

[40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23, 1983]



Sec.  80.5  Detrimental use of information.

    Section 8 of Title 13, United States Code requires that,

In no case shall information furnished under the authority of this 
section be used to the detriment of the persons to whom such information 
relates.

[40 FR 53232, Nov. 17, 1975]



Sec.  80.6  False statements.

    Any false statement or forgery on the application or supporting 
papers required to obtain Census information is punishable by a fine 
and/or imprisonment pursuant to section 1001 of Title 18 of the United 
States Code.

(Approved by the Office of Management and Budget under control number 
0607-0117)

[40 FR 53232, Nov. 17, 1975, as amended at 48 FR 56744, Dec. 23, 1983]



PART 90_PROCEDURE FOR CHALLENGING CERTAIN POPULATION AND INCOME ESTIMATES--Table 
of Contents




Sec.
90.1 Scope and applicability.
90.2 Policy of the Bureau of the Census.
90.3 Definitions.
90.4 General.
90.5 When an informal challenge may be filed.
90.6 Where to file challenge.
90.7 Evidence required.
90.8 Review of challenge.
90.9 When formal procedure may be invoked.
90.10 Form of formal challenge and time limit for filing.
90.11 Appointment of hearing officer.
90.12 Qualifications of hearing officer.
90.13 Offer of hearing.
90.14 Hearing.
90.15 Decision by Director.
90.16 Notification of adjustment.
90.17 Timing for hearing and decision.
90.18 Representation.

    Authority: 13 U.S.C. 4 and 181.

    Source: 44 FR 20647, Apr. 6, 1979, unless otherwise noted.



Sec.  90.1  Scope and applicability.

    These rules prescribe the administrative procedure available to 
States and units of local government to challenge the current estimates 
of population or per capita income developed by the Bureau of the 
Census.



Sec.  90.2  Policy of the Bureau of the Census.

    It is the policy of the Bureau of the Census to provide the most 
accurate population and per capita income estimates possible given the 
constraints of time, money, and available statistical techniques. It is 
also the policy of the Bureau to provide States and units of local 
government the opportunity to challenge these estimates and to present 
probative evidence relating to the accuracy of the estimates.



Sec.  90.3  Definitions.

    As used in this part (except where the context clearly indicates 
otherwise) the following definitions shall apply:
    (a) Bureau means the Bureau of the Census, Department of Commerce.
    (b) Challenge means, in accordance with this part, the process of 
objecting

[[Page 355]]

to or calling into question the Bureau's population or per capita income 
estimates of a State or unit of local government by that State or unit 
of local government. A demand for adjustment to the General Revenue 
Sharing Act, Pub. L. 92-512, section 102(b), as amended (31 U.S.C. 
1222(b)) does not constitute a challenge within the meaning of this 
part.
    (c) Director means Director of the Bureau of the Census, or an 
individual designated by the Director to perform under this part.
    (d) Estimate means a statistically derived intercensal population or 
per capita income figure prepared to update earlier census figures.
    (e) State includes the District of Columbia.
    (f) Unit of local government means the government of a county, 
municipality, township, place, or other minor civil division, which is a 
unit of general government below the State.



Sec.  90.4  General.

    This part provides a procedure for a State or unit of local 
government to challenge the population or per capita income estimates of 
the Bureau. The Bureau shall receive these challenges and attempt to 
resolve them informally with the locality. If the challenge is not 
resolved informally, the challenging State or unit of local government 
may then, at its option, proceed formally.



Sec.  90.5  When an informal challenge may be filed.

    An informal challenge to the population or per capita income 
estimates may be filed any time up to 180 days after the release of the 
estimates by the Bureau of the Census. Publication by the Bureau of the 
Census and simultaneous publication of a release notification in the 
Federal Register shall constitute release. A challenge to any estimate 
may also be filed any time up to 180 days from the date the Census 
Bureau, on its own initiative, revises that estimate.


If, however, a State or unit of local government has sufficiently 
meritorious reason for not filing in a timely manner, the Census Bureau 
has the discretion to accept the challenge.

[50 FR 28768, July 16, 1985]



Sec.  90.6  Where to file challenge.

    A challenge must be prepared in writing by the unit of government 
and is to be filed with the Chief, Population Division, Bureau of the 
Census, Room 2011, Federal Building 3, Washington, D.C. 20233.



Sec.  90.7  Evidence required.

    The challenging State or unit of local government shall provide 
whatever evidence it has relative to the challenge at the time the 
challenge is filed. The Bureau may request further evidence.



Sec.  90.8  Review of challenge.

    The Chief, Population Division, Bureau of the Census, or the Chief's 
designee shall review the challenge and the evidence supporting the 
challenge and shall attempt to resolve the challenge.



Sec.  90.9  When formal procedure may be invoked.

    In the event the Chief, Population Division, is unable to resolve 
the challenge to the satisfaction of the challenging State or unit of 
local government, the challenging State or unit of local government 
shall be informed in writing of the reasons for the outcome and of its 
right to proceed formally.



Sec.  90.10  Form of formal challenge and time limit for filing.

    The formal challenge shall be in writing and may be mailed or hand 
delivered to the Director, Bureau of the Census, Washington, D.C. 20233. 
The formal challenge shall include a list indicating the material 
submitted to the Chief, Population Division, during the informal stage, 
and shall include any additional relevant material it chooses to submit. 
The formal challenge shall be filed within 30 days of the date the State 
or unit of local government receives notification by certified mail 
(return receipt requested) of its right to proceed formally. If, 
however, a State or unit of local government has a sufficiently 
meritorious reason for not filing in a timely manner, the Bureau

[[Page 356]]

has the discretion to accept the formal challenge.



Sec.  90.11  Appointment of hearing officer.

    Upon receipt of a formal challenge filed in accordance with this 
part, the Director will appoint a hearing officer to receive written and 
oral evidence.



Sec.  90.12  Qualifications of hearing officer.

    The hearing officer, a person not involved in the preparation of the 
estimates being challenged, shall be appointed by the Director from a 
roster of employees of the Bureau of the Census who have been approved 
in advance by the Assistant Secretary for Administration, Department of 
Commerce.



Sec.  90.13  Offer of hearing.

    The hearing officer shall receive the formal challenge and shall 
notify the State or unit of local government in writing of (a) its right 
to a hearing prior to the development of a recommended decision for the 
consideration of the Director; and (b) its right to the development of a 
recommended decision for the consideration of the Director without a 
hearing. If the State or unit of local government requests that a 
hearing be conducted, the hearing officer shall establish the date, 
time, and meeting place for the hearing, in accordance with Sec.  
19.14a.



Sec.  90.14  Hearing.

    (a) The hearing shall be conducted by the same hearing officer who 
collected the documentary evidence, if possible, and shall be held at 
Bureau of the Census headquarters in Suitland, Md., unless the hearing 
officer determines that the hearing should be held elsewhere.
    (b) The hearing shall be conducted in a manner so as to bring out 
the pertinent facts relating to the challenge.
    (c) The rule of evidence will not be strictly enforced but 
irrelevant and unduly repetitious testimony shall be excluded.
    (d) Cross-examination of all witnesses is permitted and all 
testimony shall be received under oath or affirmation.
    (e) The hearing officer shall have the authority to: (1) Administer 
oaths or affirmations, (2) rule on the admissibility of evidence, (3) 
limit the number of witnesses, (4) exclude any person from the hearing 
room for contumacious conduct or misbehavior that obstructs the hearing, 
(5) perform other such acts as are necessary or appropriate to the 
efficient conduct of any proceeding, and (6) make initial findings, 
analyses, and recommendations.
    (f) The hearing shall be recorded but no written record will be 
prepared unless the Bureau so orders or unless the challenging locality 
desires one in whole or part and pays the costs of such a written 
record, or the apportioned costs should the Bureau also desire a written 
record.
    (g) The hearing officer shall prepare findings, analyses, and 
recommendations and shall transmit them along with all documentary 
evidence received and the tape or written record (if any) of the hearing 
to the Director.

[44 FR 20647, Apr. 6, 1979, as amended at 50 FR 18990, May 6, 1985]



Sec.  90.15  Decision by Director.

    Upon receiving the material specified in Sec.  90.14(g), the 
Director shall (a) review the findings and recommendations of the 
hearing officer, and (b) prepare and transmit a letter to the 
challenging State or unit of local government stating the decision and 
the reasons therefor. A copy of the hearing officer's findings, 
analyses, and recommendations shall also be transmitted to the 
challenging State or unit of local government, and is otherwise publicly 
available. This decision is final for the Department of Commerce.



Sec.  90.16  Notification of adjustment.

    In the event that the Director finds that the population or per 
capita income estimate should be adjusted, the Bureau shall promptly 
inform the appropriate governmental agencies of the revision.



Sec.  90.17  Timing for hearing and decision.

    A maximum period of 120 days, unless additional time is required for 
sufficiently meritorious reason, shall be provided beyond the closing 
date for the filing of informal challenges to allow for (a) resolution 
of informal challenges, (b) appointment of the

[[Page 357]]

hearing officer, and (c) the completion of formal hearings. A maximum of 
30 additional days shall be allowed for deliberations by the hearing 
officer and staff. A maximum of an additional 30 days shall also be 
provided beyond this during which the Census Bureau Director must rule 
on all cases. Neither the timing nor the general provisions contained in 
these regulations shall affect the rights of communities to a review 
through the data improvement program of the Office of Revenue Sharing 
under the provisions of Pub. L. 92-512, section 102(b), as amended (31 
U.S.C. 1222(b)). Localities challenging only through the Office of 
Revenue Sharing may not have access to a formal hearing as provided in 
these regulations.



Sec.  90.18  Representation.

    A challenging unit of government may be represented by its chief 
executive officer or by counsel, or other duly authorized representative 
as designated by the chief executive officer in writing to the Bureau.



PART 100_SEAL--Table of Contents




Sec.
100.1 Authority.
100.2 Description.
100.3 Custody.

    Authority: R.S. 161, as amended, sec. 3, 68 Stat. 1012, as amended 
(5 U.S.C. 301, 13 U.S.C. 3).

    Source: 25 FR 2163, Mar. 16, 1960, unless otherwise noted. 
Redesignated at 50 FR 23947, June 7, 1985.



Sec.  100.1  Authority.

    Pursuant to section 3 of Title 13, United States Code, the Bureau of 
the Census official seal and design thereof, which accompanies and is 
made a part of this document, is hereby approved.



Sec.  100.2  Description.

    Seal: On a shield an open book beneath which is a lamp of knowledge 
emitting rays above in base two crossed quills. Around the whole a 
wreath of single leaves, surrounded by an outer band bearing between two 
stars the words ``U.S. Department of Commerce'' in the upper portion and 
``Bureau of the Census'' in the lower portion, the lettering concentric 
with an inner beaded rim and an outer dentilated rim.



Sec.  100.3  Custody.

    The seal shall remain in the custody of the Director, Bureau of the 
Census or such officer or employee of the Bureau as he designates and 
shall be affixed to all certificates and attestations that may be 
required from the Bureau.
[GRAPHIC] [TIFF OMITTED] TC20SE91.004



PART 101_RELEASE OF DECENNIAL CENSUS POPULATION INFORMATION--Table of Contents




    Authority: 5 U.S.C. 301; 13 U.S.C. 4, 141, 195; 15 U.S.C. 1512.



Sec.  101.1  Report of tabulations of population to states and localities 
pursuant to 13 U.S.C. 141(c).

    (a)(1) The Secretary of Commerce shall make the final determination 
regarding the methodology to be used in calculating the tabulations of 
population reported to States and localities pursuant to 13 U.S.C. 
141(c). The determination of the Secretary will be published in the 
Federal Register.
    (2) The Secretary shall not make the determination specified in 
paragraph (a)(1) of this section until after he or she receives the 
recommendation of the Director of the Census, together with the report 
of the Executive Steering Committee for A.C.E. Policy, in accordance 
with paragraph (b)(1) of this section.

[[Page 358]]

    (b)(1) The Executive Steering Committee for A.C.E. Policy shall 
prepare a written report to the Director of the Census analyzing the 
methodologies that may be used in making the tabulations of population 
reported to States and localities pursuant to 13 U.S.C. 141(c), and the 
factors relevant to the possible choices of methodology. The Director of 
the Census will forward the Executive Steering Committee for A.C.E. 
Policy report and his or her recommendation on methodology, if any, to 
the Secretary of Commerce.
    (2) The recommendation of the Director of the Census, together with 
report of the Executive Steering Committee for A.C.E. Policy described 
in paragraph (b)(1) of this section, shall be released to the public at 
the same time it is delivered to the Secretary. This release to the 
public shall include, but is not limited to, posting of the report on 
the Bureau of the Census website and publication of the report in the 
Federal Register.
    (3) The Executive Steering Committee for A.C.E. Policy is composed 
of the following employees of the Bureau of the Census:
    (i) Deputy Director and Chief Operating Officer;
    (ii) Principal Associate Director and Chief Financial Officer;
    (iii) Principal Associate Director for Programs;
    (iv) Associate Director for Decennial Census (Chair);
    (v) Assistant Director for Decennial Census;
    (vi) Associate Director for Demographic Programs;
    (vii) Associate Director for Methodology and Standards;
    (viii) Chief; Planning, Research, and Evaluation Division;
    (ix) Chief; Decennial Management Division;
    (x) Chief; Decennial Statistical Studies Division;
    (xi) Chief; Population Division; and
    (xii) Senior Mathematical Statistician.

[66 FR 11232, Feb. 23, 2001]

                        PARTS 102-199 [RESERVED]

[[Page 359]]



 CHAPTER II--NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY, DEPARTMENT 
                               OF COMMERCE




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

                   SUBCHAPTER A--MEASUREMENT SERVICES
Part                                                                Page
200             Policies, services, procedures, and fees....         361
               SUBCHAPTER B--STANDARD REFERENCE MATERIALS
230             Standard reference materials................         370
              SUBCHAPTER C--TRANSCRIPT SERVICES [RESERVED]
                   SUBCHAPTER D--STANDARDS FOR BARRELS
240             Barrels and other containers for lime.......         372
241             Barrels for fruits, vegetables and other dry 
                    commodities, and for cranberries........         374
            SUBCHAPTER E--FELLOWSHIPS AND RESEARCH ASSOCIATES
255             Fellowships in laboratory standardization 
                    and testing for qualified citizens of 
                    other American Republics................         379
256             Research Associate Program..................         380
         SUBCHAPTER F--REGULATIONS GOVERNING TRAFFIC AND CONDUCT
265             Regulations governing traffic and conduct on 
                    the grounds of the National Institute of 
                    Standards & Technology, Gaithersburg, 
                    Maryland, and Boulder and Fort Collins, 
                    Colorado................................         382
        SUBCHAPTER G--INVENTION EVALUATION PROCEDURES [RESERVED]
                       SUBCHAPTERS H-I [RESERVED]
           SUBCHAPTER J--ACCREDITATION AND ASSESSMENT PROGRAMS
280             Fastener quality............................         387

[[Page 360]]

285             National Voluntary Laboratory Accreditation 
                    Program.................................         402
286             National Volutary Conformity Assessment 
                    System Evaluation (NVCASE) Program......         406
287             Guidance on Federal conformity assessment...         409
          SUBCHAPTER K--ADVANCED TECHNOLOGY PROGRAM PROCEDURES
290             Regional Centers for the Transfer of 
                    Manufacturing Technology................         414
291             Manufacturing extension partnership; 
                    environmental projects..................         419
292             Manufacturing extension partnership; 
                    infrastructure development projects.....         428
295             Advanced Technology Program.................         435
296-299

[Reserved]

[[Page 361]]



                    SUBCHAPTER A_MEASUREMENT SERVICES





PART 200_POLICIES, SERVICES, PROCEDURES, AND FEES--Table of Contents




Sec.
200.100 Statutory functions.
200.101 Measurement research.
200.102 Types of calibration and test services.
200.103 Consulting and advisory services.
200.104 Standard reference materials.
200.105 Standard reference data.
200.106 Publications.
200.107 WWV-WWVH-WWVB broadcasts.
200.108 Request procedure.
200.109 Shipping, insurance, and risk of loss.
200.110 Priorities and time of completion.
200.111 Witnessing of operations.
200.112 Reports.
200.113 Use of results or reports.
200.114 Fees and bills.
200.115 Description of services and list of fees, incorporation by 
          reference.

    Authority: Sec. 9, 31 Stat. 1450, as amended; 15 U.S.C. 277. 
Interprets or applies sec. 7, 31 Stat. 1450; 15 U.S.C. 275a.

    Source: 45 FR 55166, Aug. 19, 1980, unless otherwise noted.



Sec.  200.100  Statutory functions.

    (a) The National Institute of Standards & Technology (NIST) has been 
assigned the following functions (15 U.S.C. 271 et seq.):
    (1) The custody, maintenance, and development of the national 
standards of measurement, and the provision of means and methods for 
making measurements consistent with those standards, including the 
comparison of standards used in scientific investigations, engineering, 
manufacturing, commerce, and educational institutions with the standards 
adopted or recognized by the Government.
    (2) The determination of physical constants and properties of 
materials when such data are of great importance to scientific or 
manufacturing interests and are not to be obtained with sufficient 
accuracy elsewhere.
    (3) The development of methods for testing materials, mechanisms, 
and structures, and the testing of materials, supplies, and equipment, 
including items purchased for use of Government departments and 
independent establishments.
    (4) Cooperation with other governmental agencies and with private 
organizations in the establishment of standard practices, incorporated 
in codes and specifications.
    (5) Advisory service to Government agencies on scientific and 
technical problems.
    (6) Invention and development of devices to serve special needs of 
the Government.
    (b) The calibration and testing activities of NIST stem from the 
functions in paragraphs (a) (1) and (3) of this section. NIST provides 
the central basis within the United States for a complete and consistent 
system of measurement; coordinates that system, and the measurement 
systems of other nations; and furnishes essential services leading to 
accurate and uniform physical measurements throughout this Nation's 
scientific community, industry, and commerce.
    (c) The provision of standard reference materials for sale to the 
public is assigned to the Office of Standard Reference Materials of the 
National Measurement Laboratory, NIST. That Office evaluates the 
requirements of science and industry for carefully characterized 
reference materials, stimulates efforts of NIST to develop methods for 
production of needed reference materials and directs their production 
and distribution. For further information on standard reference 
materials see Subchapter B, Chapter II, Part 230, of this title.



Sec.  200.101  Measurement research.

    (a) The NIST staff continually reviews the advances in science and 
the trends in technology, examines the measurement potentialities of 
newly discovered physical phenomena, and uses these to devise and 
improve standards, measuring devices, and measurement techniques. As new 
requirements appear, there are continual shifts of program emphasis to 
meet the most urgent needs for the measurement of additional quantities, 
extended ranges, or improved accuracies.
    (b) The basic research and development activities of NIST are 
primarily

[[Page 362]]

funded by direct appropriations, and are aimed at meeting broad general 
needs. NIST may also undertake investigations or developments to meet 
some specialized physical measurement problem of another Government 
agency, industrial group, or manufacturing firm, using funds supplied by 
the requesting organization.



Sec.  200.102  Types of calibration and test services.

    (a) NIST has developed instrumentation and techniques for realizing 
standards for the seven base units of the International System of Units, 
as agreed upon by the General Conference of Weights and Measures. 
Reference standards have been established not only for these seven base 
units, but also for many derived quantities and their multiples and 
submultiples. Such reference standards, or equivalent working standards, 
are used to calibrate laboratory and plant standards for other 
organizations. Accuracy is maintained by stability checks, by comparison 
with the standards of other national and international laboratories, and 
by the exploration of alternative techniques as a means of reducing 
possible systematic error.
    (b) Calibrations for many types of instruments and ranges of 
physical quantities are described in the NIST Special Publication 250 
(SP 250). (See Sec.  200.115 for details relating to the description of 
service items and listing of fees.)
    (c) In recent years NIST has offered to the public new measurement 
services called measurement assurance programs. These programs are 
designed for laboratories whose measurement process involves the 
calibration of other standards. A measurement assurance program is a 
measurement quality control process. By use of carefully designed 
redundant measurements and measurements made on NIST transport standards 
a total uncertainty of the laboratories measurement process can be 
determined by NIST. The results of these tests are then reported to the 
customer as uncertainties of the customer's measurements relative to 
national standards.
    (d) Special measurements not listed in SP 250 may be made upon 
request. These might involve unusual physical quantities, upper or lower 
extremes of range, higher levels of accuracy, fast response speeds, 
short durations, broader ranges of associated parameters, or special 
environmental conditions. Such inquiries should describe clearly the 
measurement desired. Indication of the scientific or economic basis for 
the requirements to be satisfied will be helpful in determining future 
NIST programs. Fees for work accepted will be based upon actual costs 
incurred.
    (e) The principal emphasis of NIST is on those calibrations and 
other tests requiring such accuracy as can be obtained only by direct 
comparison with its standards.
    (f) Other services which may be obtained include:
    (1) Tests of measuring instruments to determine compliance with 
specifications or claims, when the evaluation is critical in national 
scientific or technical operations, and when suitable facilities are not 
available elsewhere; and
    (2) Referee tests in important cases when clients are unable to 
agree upon the method of measurement, the results of tests, or the 
interpretation of these results, but have agreed in advance in writing 
to accept and abide by the findings of NIST.
    (g) NIST reserves the right to decline any request for services if 
the work would interfere with other activities deemed by the Director to 
be of greater importance. In general, measurement services are not 
provided when available from commercial laboratories.
    (h) Suggestions will be offered on measurement techniques and on 
other sources of assistance on calibration or measurement problems when 
the equipment and personnel of NIST are unable to undertake the work. 
The National Conference of Standards Laboratories issues a Directory of 
Standards Laboratories in the United States which perform calibration 
work (obtainable from NCSL Secretariat, [chyph]c/o National Institute of 
Standards & Technology, Boulder, CO 80303). Those laboratories which 
perform testing are listed in the ASTM Directory of Testing 
Laboratories, Commercial and Institutional. (Directory available from 
the Amercian Society for Testing and

[[Page 363]]

Materials, 1916 Race Street, Philadelphia, PA 19103.) Similar listings 
appear in buyer's guides for commercial products and in technical 
journals concerned with physical measurement.



Sec.  200.103  Consulting and advisory services.

    (a) In areas of its special competence, NIST offers consulting and 
advisory services on various problems related to measurement, e.g., 
details of design and construction, operational aspects, unusual or 
extreme conditions, methods of statistical control of the measurement 
process, automated acquisition of laboratory data, and data reduction 
and analysis by computer. Brief consultation may be obtained at no 
charge; the fee for extended effort will be based upon actual costs 
incurred. The services outlined in this paragraph do not include 
services in connection with legal proceedings not involving the United 
States as a named party, nor to testimony or the production of data, 
information, or records in such legal proceedings which is governed by 
the policies and procedures set forth in Subchapter H, Chapter II, Part 
275, of this title.
    (b) To enhance the competence of standards laboratory personnel, 
NIST conducts at irregular intervals several group seminars on the 
precision measurement of specific types of physical quantities, offering 
the opportunity of laboratory observation and informal discussion. A 
brochure describing the current series of seminars can be obtained by 
writing the Office of Measurement Services, National Institute of 
Standards & Technology, Washington, DC 20234.



Sec.  200.104  Standard reference materials.

    Often the performance of a device or structure can be evaluated at 
the user's laboratory by comparing its response to unknown materials 
with its response to a stable, homogeneous reference specimen which has 
been well-characterized with regard to the physical or chemical property 
being measured. For information regarding carefully characterized 
materials see Subchapter B, Chapter II, Part 230, of this title. The 
Office of Standard Reference Materials in the NIST National Measurement 
Laboratory administers a program to provide many types of well-
characterized materials that are needed to calibrate a measurement 
system or to produce scientific data that can be readily referred to a 
common base. NIST SP 260 is a catalog of Standard Reference Materials 
available from NIST.



Sec.  200.105  Standard reference data.

    Data on the physical and chemical properties of the large variety of 
substances used in science and technology need to be compiled and 
evaluated for application in research, development, engineering design, 
and commerce. The Office of Standard Reference Data (OSRD) in the NIST 
National Measurement Laboratory provides coordination of and access to a 
number of governmental and nongovernmental data centers throughout this 
country and the world which are responsive to user needs for data. The 
OSRD's present program is assembled under a series of tasks which 
include data for application in energy, environment and health, 
industrial process design, materials durability, and resource recovery. 
The subject data are disseminated as hard-copy information in the 
Journal of Physical and Chemical Reference Data, published jointly with 
the American Chemical Society and the American Institute of Physics, in 
the National Standard Reference Data System reports as the NSRDS-NIST 
series, and as NIST special reports. Magnetic tapes of data on selected 
topics are also issued through the OSRD and the National Technical 
Information Service. A newsletter, ``Reference Data Report,'' is issued 
bimonthly describing current activities. Information concerning the 
above is available upon request from the OSRD.



Sec.  200.106  Publications.

    Publications provide the primary means of communicating the results 
of the NIST programs and services to its varied technical audiences, as 
well as to the general public. NIST issues some fifteen categories of 
publications including three periodicals, ten non-periodicals series, 
interagency reports, and

[[Page 364]]

papers in the journals and books of professional organizations, 
technological associations, and commercial publications. The calibration 
services, standard reference materials and related measurement services 
along with changes and fees are published in two Special Publications 
(SP's) and their supplements. These are SP 250 ``Calibration and Related 
Measurement Services of the National Institute of Standards & 
Technology'' \1\ and SP 260 ``NIST Standard Reference Materials 
Catalog.'' \1\ A complete catalog of all publications by NIST authors is 
issued annually as a supplement to SP 305 ``Publications of the National 
Institute of Standards & Technology.'' Announcements and listings of 
recent NIST publications and services are published in each issue of the 
bimonthly ``NIST Journal of Research'' \2\ and the NIST monthly 
magazine, ``Dimensions/NIST'' \2\. Complete citations to NIST 
publications, along with information on availability are published 
bimonthly in the ``NIST Publications Newsletter'', available free from 
the Technical Information and Publications Division, National Institute 
of Standards & Technology, Washington, DC 20234. NIST publications are 
also announced (with abstracts) in ``Government Reports Announcements 
and Index'' published every two weeks by the National Technical 
Information Service (NTIS), Springfield, Virginia 22161 \3\. NTIS also 
sells microfiche copies of all NIST GPO-published documents, as well as 
paper copy and microfiche versions of NIST Interagency Reports.
---------------------------------------------------------------------------

    \1\ Single copies available free from the National Institute of 
Standards & Technology, Washington, DC 20234.
    \2\ For sale by the Superintendent of Documents, U.S. Government 
Printing Office, Washington, DC 20402, for a subscription price. The 
annual subscription price for the NIST Journal of Research on the date 
of the publication of these regulations is $13.00 and for Dimensions/
NIST it is $11.00. Prices, however, for these publications are subject 
to change without notice.
    \3\ The annual subscription rate at the date of the publication of 
these regulations for this service is $275.00, North American Continent, 
$375.00 all others.
---------------------------------------------------------------------------



Sec.  200.107  WWV-WWVH-WWVB broadcasts.

    (a) Technical services. The NIST radio stations WWV at Fort Collins, 
Colorado, and WWVH on the island of Kauai, Hawaii, broadcast a number of 
technical services continuously night and day. These services are:
    (1) Standard radio frequencies, 2.5, 5, 10, 15, and 20, MHz (WWV) 
and 2.5, 5, 10, and 15 MHz (WWVH); (2) standard time signals; (3) time 
intervals; (4) UTI corrections; (5) standard audio frequencies; (6) 
standard musical pitch; (7) a slow time code; (8) Omega Navigation 
System status reports; (9) geophysical alerts; and (10) marine storm 
warnings. NIST also broadcasts time and frequency signals from its low 
frequency station, WWVB, also located at Fort Collins, Colorado.
    (2) [Reserved]
    (b) Time announcements. Once per minute voice announcements are made 
from WWV and WWVH. The two stations are distinguished by a female voice 
from WWVH and a male voice from WWV. The WWVH announcement occurs first, 
at 15 seconds before the minute, while the WWV announcement occurs at 
7\1/2\ seconds before the minute. Coordinated Universal Time (UTC) is 
used in these announcements.
    (c) Time corrections. The UTC time scale operates on atomic 
frequency, but by means of step adjustments is made to approximate the 
astronomical UTI scale. It may disagree from UTI by as much as 0.9 
second before step adjustments of exactly 1 second are made. These 
adjustments, or leap seconds are required about once per year and will 
usually be made on December 31 or June 30. For those who need 
astronomical time more accurately than 0.9 second, a correction to UTC 
is encoded by the use of double ticks after the start of each minute. 
The first through the eighth seconds ticks will indicate a ``plus'' 
correction, and from the ninth through the 16th a ``minus'' correction. 
The correction is determined by counting the number of double ticks. For 
example, if the first, second, and third ticks are doubled, the 
correction is ``plus'' 0.3 second. If the ninth, 10th, 11th, and 12th 
ticks are doubled, the correction is ``minus'' 0.4 second.

[[Page 365]]

    (d) Standard time intervals. An audio pulse (5 cycles of 1000 Hz on 
WWV and 6 cycles of 1200 Hz on WWVH), resembling the ticking of a clock, 
occurs each second of the minute except on the 29th and 59th seconds. 
Each of these 5-millisecond second pulses occur within a 40-millisecond 
period, wherein all other modulation (voice or tone) is removed from the 
carrier. These pulses begin 10 milliseconds after the modulation 
interruption. A long pulse (0.8 second) marks the beginning of each 
minute.
    (e) Standard frequencies. All carrier and audio frequencies occur at 
their nominal values according to the International System of Units 
(SI). For periods of 45-second duration, either 500-Hz or 600-Hz audio 
tones are broadcast in alternate minutes during most of each hour. A 
440-Hz tone, the musical pitch A above middle C, is broadcast once per 
hour near the beginning of the hour.
    (f) Accuracy and stability. The time and frequency broadcasts are 
controlled by the NIST atomic frequency standards, which realize the 
internationally defined cesium resonance frequency with an accuracy of 1 
part in 10 \13\. The frequencies transmitted by WWV and WWVH are held 
stable to better than +-2 parts in 10 \11\ at all times. Deviations at 
WWV are normally less than 1 part in 10 \12\ from day to day. 
Incremental frequency adjustments not exceeding 1 part in 10 \12\ are 
made at WWV and WWVH as necessary. Changes in the propagation medium 
(causing Doppler effect, diurnal shifts, etc.) result in fluctuations in 
the carrier frequencies as received which may be very much greater than 
the uncertainties described above.
    (g) Slow time code. A modified IRIG H time code occurs continuously 
on a 100-Hz subcarrier. The format is 1 pulse per second with a 1-minute 
time frame. It gives day of the year, hours, and minutes in binary coded 
decimal form.
    (h) Omega announcements. Omega Navigation System status reports are 
broadcast in voice from WWV at 16 minutes after the hour and from WWVH 
at 47 minutes after the hour. The international Omega Navigation System 
is a very low frequency (VLF) radio navigation aid operating in the 10 
to 14 kHz frequency band. Eight stations are in operation around the 
world. Omega, like other radio navigation systems, is subject to signal 
degradation caused by ionospheric disturbances at high latitudes. The 
Omega announcements on WWV and WWVH are given to provide users with 
immediate notification of such events and other information on the 
status of the Omega system.
    (i) Geophysical alerts. These occur in voice at the 18th minute of 
each hour from WWV. They point out outstanding events which are in 
process, followed by a summary of selected solar and geophysical events 
in the past 24 hours and a forecast for the next 24 hours. They are 
provided by the Space Environment Laboratory, National Oceanic and 
Atmospheric Administration, Boulder, CO 80303.
    (j) Marine storm information. Weather information about major storms 
in the Atlantic and eastern North Pacific are broadcast in voice from 
WWV at 8, 9, and 10 minutes after each hour. Similar storm warnings 
covering the eastern and central North Pacific are given from WWVH at 
48, 49, and 50 minutes after each hour. An additional segment (at 11 
minutes after the hour on WWV and at 51 minutes on WWVH) may be used 
when there are unusually widespread storm conditions. The brief messages 
are designed to tell mariners of storm threats in their areas. If there 
are no warnings in the designated areas, the broadcasts will so 
indicate. The ocean areas involved are those for which the U.S. has 
warning responsibility under international agreement. The regular times 
of issue by the National Weather Service are 0500, 1100, 1700, and 2300 
UTC for WWV and 0000, 0600, 1200, and 1800 UTC for WWVH. These 
broadcasts are updated effective with the next scheduled announcement 
following the time of issue.
    (k) ``Silent'' periods. These are periods with no tone modulation 
during which the carrier, seconds ticks, minute time announcements, and 
100 Hz modified IRIG H time code continue. They occur during the 16th 
through the 20th minute on WWVH and the 46th through the 51st minute on 
WWV.
    (l) WWVB. This station (antenna coordinates 40[deg]40[min]28.3[sec] 
N., 105[deg]02[min]39.5[sec] W.; radiated power 12 kw.) broadcasts on 60

[[Page 366]]

kHz. Its time scale is the same as for WWV and WWVH, and its frequency 
accuracy and stability are the same. Its entire format consists of a 1 
pulse per second special binary time code giving minutes, hours, days, 
and the correction between its UTC time scale and UTI astronomical time. 
Identification of WWVB is made by its unique time code and a 45[deg] 
carrier phase shift which occurs for the period between 10 minutes and 
15 minutes after each hour. The useful coverage area of WWVB is within 
the continental United States. Propagation fluctuations are much less 
with WWVB than with high-frequency reception, permitting frequency 
comparisons to be made to a few parts in 10 \11\ per day.
    (m) Special Publication 432. This publication describes in detail 
the standard frequency and time service of NIST. Single copies may be 
obtained at no charge upon request from the National Institute of 
Standards & Technology, Time & Frequency Services Group, 524.06, 
Boulder, CO 80303. Quantities may be obtained from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, DC 20402, at a 
nominal charge per copy.



Sec.  200.108  Request procedure.

    (a) A formal purchase order for the calibration or test should be 
sent before or at the time the instrument or standard is shipped. The 
purchase order should provide clear identification of the apparatus 
being submitted, and give separate instructions for return shipment, 
mailing of report, and billing. If a customer wishes to minimize the 
time during which the equipment is out of service, the customer can 
usually arrange to be notified of the scheduled test date to allow 
timely shipment. (See Sec.  200.110.) Requests from Federal agencies, or 
from State agencies, for calibrations or tests on material to be used on 
private or Federal contract work should be accompanied either by 
purchase order or by letter or document authorizing the cost of the work 
to be billed to the agency.
    (b) The submission of a purchase order for measurement services 
under this subchapter shall be understood as constituting an agreement 
on the part of the customer to be bound by the restrictions on the use 
of results as set forth in Sec.  200.113 of this part. Acceptance of 
purchase orders does not imply acceptance of any provisions set forth in 
the order contrary to the policy, practice, or regulations of NIST or 
the U.S. Government. (A statement to the effect that NIST is an agency 
of the U.S. Government should satisfy other Government agencies with 
regard to compliance with Government regulations and Executive orders.)
    (c) A test number will be assigned by NIST to each instrument or 
group of similar instruments or standards when the order is accepted. 
This test number should be referred to in all subsequent communications. 
Also, each instrument in a group must be uniquely identified, usually by 
the manufacturer's name and instrument serial number. When the serial 
number is lacking, an alternative identifying mark should be provided. 
If none is found, NIST will mark the piece with an NIST identification 
number. If the apparatus submitted has been previously calibrated by 
NIST, the serial number or identifying mark should be given on the new 
order, so that a continuing record of stability history can be 
established.
    (d) Inquiries for measurement services should be directed to the 
NIST address listed in the various sections of the Appendix to SP 250.



Sec.  200.109  Shipping, insurance, and risk of loss.

    (a) Shipment of apparatus to NIST for calibration or other test 
should be made only after the customer has accepted the estimate of cost 
and the tentative scheduling. Repairs and adjustments on apparatus 
submitted should be attended to by the owner, since NIST will not 
undertake them except by special arrangement. Apparatus not in good 
condition will not be calibrated. If defects are found after calibration 
has begun, the effort may be terminated, a report issued summarizing 
such information as has been found, and a fee charged in accordance with 
the amount of work done.
    (b) The customer should pack apparatus sent to NIST so as to 
minimize the likelihood of damage in shipment and handling. Suggestions 
on packing and shipping are made in some sections

[[Page 367]]

of SP 250. In every case, the sender should consider the nature of the 
apparatus, pack it accordingly, and clearly label shipments containing 
fragile instruments or materials, such as glass and the like.
    (c) To minimize damage during shipment resulting from inadequate 
packing, the use of strong reusable containers is recommended. As an aid 
in preventing loss of such containers, the customer's name should be 
legibly and permanently marked on the outside. In order to prolong the 
container's use the notation ``REUSABLE CONTAINER, DO NOT DESTROY'' 
should be marked on the outside.
    (d) Shipping and insurance coverage instructions should be clearly 
and legibly shown on the purchase order for the calibration or test. The 
customer must pay shipping charges to and from NIST; shipments from NIST 
will be made collect. The method of return transportation should be 
stated, and it is recommeded that return shipments be insured, since 
NIST will not assume liability for their loss or damage. For long-
distance shipping it is found that air express and air freight provide 
an advantage in reduction of time in transit. If return shipment by 
parcel post is requested or is a suitable mode of transportation, 
shipments will be prepaid by NIST, but without covering insurance. When 
no shipping or insurance instructions are furnished, return shipment 
will be made by common carrier collect, but uninsured.
    (e) NIST will not be responsible for the risk of loss or damage to 
any item during shipment to or from NIST. Any arrangements for insurance 
covering this risk must be made by the customer. Return shipment will be 
made by NIST as indicated in paragraph (d) of this section. The purchase 
order should always show the value of the equipment, and if transit 
insurance is carried by the customer, this fact should be stated.
    (f) The risk of loss or damage in handling or testing of any item by 
NIST must be assumed by the customer, except when it is determined by 
NIST that such loss or damage was occasioned solely by the negligence of 
NIST personnel.
    (g) When a test number has been assigned prior to shipment to NIST, 
this number should be clearly marked on the shipping container. When a 
test number has not been assigned, an invoice, copy of the purchase 
order, or letter should be enclosed in the shipment to insure proper 
identification. The original purchase order should be forwarded as 
appropriate to:

    Office of Measurement Services, National Institute of Standards & 
Technology, Washington, DC 20234; or to Measurement Services Clerk, 
National Institute of Standards & Technology, Boulder, CO 80303.

    (h) The calibrations listed in SP 250 are performed at Boulder, 
Colorado and Gaithersburg, Maryland.



Sec.  200.110  Priorities and time of completion.

    Schedule work assignments for calibrations and other tests will 
generally be made in the order in which confirmed requests are received. 
However, Government work may be given priority. On the regular services, 
the workload is usually such that the turn-around interval, between the 
date a customer's apparatus is received and the date it is prepared for 
return shipment, will be not more than 45 days. Some types of 
instruments may require considerably longer, particularly if their 
abnormal behavior requires reruns to check reliability. The customer who 
can spare the instrument for only a short time can usually arrange by 
letter or telephone call for shipping it to NIST just as the assigned 
starting date approaches. A notice will be sent acknowledging receipt of 
the customer's standard and/or purchase order. If both a confirmed 
purchase order (or equivalent) and the apparatus have been received, 
estimates of the completion date and the calibration fee will be sent 
upon request.



Sec.  200.111  Witnessing of operations.

    NIST welcomes scientists and engineers who may wish to visit its 
laboratories and discuss its methods. Ordinarily visitors will not be 
permitted to witness the actual carrying out of highly precise 
measurements because their presence introduces distraction that may lead 
to errors or delays. This policy may be waived in those cases

[[Page 368]]

where NIST determines that the visitor can be of service in setting up 
apparatus of a new or unusual nature, in the case of referee tests, or 
in other cases in which the legal validity of the result may require the 
presence of duly authorized witnesses.



Sec.  200.112  Reports.

    (a) Results of calibrations and other tests are issued to the 
customer as formal reports entitled, ``National Institute of Standards & 
Technology Report of Calibration,'' ``National Institute of Standards & 
Technology Report of Test,'' or ``National Institute of Standards & 
Technology Report of Analysis,'' as appropriate. Copies are not supplied 
to other parties except under applicable Federal law. Whenever formal 
certification is required by law, or to meet special conditions adjudged 
by NIST to warrant it, a letter will be provided certifying that the 
particular item was received and calibrated or tested, and identifying 
the report containing the results.
    (b) NIST reports of calibration generally include in sentence form a 
statement of the uncertainty attached to the numerical values reported. 
Limits of uncertainty usually comprise an estimate of systematic error 
plus a value of imprecision. Details on how these estimates are arrived 
at are in many cases included in the calibration report. Additional 
information may be found in SP 250.
    (c) The NIST practice is to express data given in calibration or 
test reports in the SI or International System of Units. The 
International System of Units (SI) was defined and given official status 
by the 11th General Conference of Weights and Measures, 1960. A complete 
listing of SI units is presented in detail in NIST SP 330. The NIST will 
express data in SI units unless this makes communication excessively 
complicated. For example, commercial gage designations, commonly used 
items identified by nominal dimensions, or other commercial 
nomenclatures or devices (such as drill sizes, or commercial standards 
for weights and measures) expressed in customary units are an exception 
from this practice. However, even in such instances, when practical and 
meaningful, SI and customary units may be given in parallel. Users of 
NIST calibration services may specify the units to be used in the 
calibration, especially for commercial devices and standards using 
customary units or units having some legal definition.



Sec.  200.113  Use of results or reports.

    (a) As the national standards laboratory of the United States, NIST 
maintains and establishes the primary standards from which measurements 
in science and industry ultimately derive. It is therefore sometimes 
desirable for manufacturers or users of measurement standards to make 
appropriate reference to the relationship of their calibrations to NIST 
calibrations. The following considerations must be borne in mind, and 
shall be understood as constituting an agreement on the part of the NIST 
customer to be bound thereby in making reference to NIST calibration and 
test reports.
    (b) The results of calibrations and tests performed by NIST are 
intended solely for the use of the organization requesting them, and 
apply only to a particular device or specimen at the time of its test. 
The results shall not be used to indicate or imply that they are 
applicable to other similar items. In addition, such results must not be 
used to indicate or imply that NIST approves, recommends, or endorses 
the manufacturer, the supplier, or the user of such devices or 
specimens, or that NIST in any way ``guarantees'' the later performance 
of items after calibration or test.
    (c) NIST declares it to be in the national interest that it maintain 
an impartial position with respect to any commercial product. 
Advertising the findings on a single instrument could be misinterpreted 
as an indication of performance of other instruments of identical or 
similar type. There will be no objection, however, to a statement that 
the manufacturer's primary standards have been periodically calibrated 
by NIST, if this is actually the case, or that the customer might 
arrange to have NIST calibrate the item purchased from the manufacturer.
    (d) NIST does not approve, recommend, or endorse any proprietary 
product or proprietary material. No

[[Page 369]]

reference shall be made to NIST, or to reports or results furnished by 
NIST in any advertising or sales promotion which would indicate or imply 
that NIST approves, recommends, or endorses any proprietary product or 
proprietary material, or which has as its purpose an intent to cause 
directly or indirectly the advertised product to be used or purchased 
because of NIST test reports or results.

In its own activities as a scientific institution, NIST uses many 
different materials, products, types of equipment, and services. This 
use does not imply that NIST has given them a preferential position or a 
formal endorsement. Therefore, NIST discourages references, either in 
advertising or in the scientific literature, which identify it as a user 
of any proprietary product, material, or service. Occasionally, 
effective communication of results by NIST to the scientific community 
requires that a proprietary instrument, product, or material be 
identified in an NIST publication. Reference in an NIST publication, 
report, or other document to a proprietary item does not constitute 
endorsement or approval of that item and such reference should not be 
used in any way apart from the context of the NIST publication, report, 
or document without the advance express written consent of NIST.



Sec.  200.114  Fees and bills.

    (a) In accordance with 15 U.S.C. 271 et seq., fees are charged for 
all measurement services performed by NIST, unless waived by the 
Director, or the Director's designee, when deemed to be in the interest 
of the Government. The above-mentioned statutes authorize the issuance 
from time to time of appropriate regulations regarding the payment of 
fees, the limits of tolerance on standards submitted for verification, 
and related matters.
    (b) The minimum fee for any service request accepted by NIST is $10, 
unless otherwise indicated in SP 250. If apparatus is returned without 
testing, a minimum charge of $10 may be made to cover handling. Charges 
commensurate with the work performed will be assessed for calibrations 
which cannot be completed because of faulty operation of the customer's 
device. Fees for calibrations or tests include the cost of preparation 
of an NIST report. Remittances should be made payable to the National 
Institute of Standards & Technology.



Sec.  200.115  Description of services and list of fees, incorporation by 
reference.

    (a) NIST Special Publication 250, ``Calibration and Related 
Measurement Services of the National Institute of Standards & 
Technology'' is hereby incorporated by reference, pursuant to 5 U.S.C. 
552(a)(1) and 1 CFR Part 51. SP 250 states the authority under which 
NIST performs various types of measurement services including 
calibrations and tests and charges fees therefor, states the general 
conditions under which the public may secure such services, decribes 
these services in considerable detail, and lists the fees to be charged, 
and sets out the instructions for requesting them in an appendix which 
is reviewed, revised and reissued semi-annually (December and June). The 
Director, Office of the Federal Register, approved the incorporation by 
reference on December 28, 1967.
    (b) SP 250 is available at the following places:
    (1) Superintendent of Documents, Government Printing Office, 
Washington, DC 20402.
    (2) Technical Information and Publications Division, National 
Institute of Standards & Technology, Washington, DC 20234.
    (3) District Offices of the U.S. Department of Commerce.
    (4) Federal Depository Libraries.
    (c) Revisions of SP 250 will be issued from time to time by the 
National Institute of Standards & Technology, Washington, DC 20234.
    (d) Further information concerning policies, procedures, services, 
and fees may be obtained by writing the Office of Measurement Services, 
National Institute of Standards & Technology, Washington, DC 20234.

[[Page 370]]



                SUBCHAPTER B_STANDARD REFERENCE MATERIALS





PART 230_STANDARD REFERENCE MATERIALS--Table of Contents




                      Subpart A_General Information

Sec.
230.1 Introduction.
230.2 Identification of Standard Reference Materials.
230.3 New Standard Reference Materials.

                      Subpart B_Purchase Procedure

230.4 Ordering.
230.5 Terms and shipping.
230.6 Standard Reference Materials out of stock.

           Subpart C_Description of Services and List of Fees

230.7 Description of services and list of fees, incorporation by 
          reference.

    Authority: Sec. 9, 31 Stat. 1450, as amended; 15 U.S.C. 277. 
Interprets and applies sec. 7, 70 Stat. 959; 15 U.S.C. 275a.

    Source: 41 FR 8472, Feb. 27, 1976, unless otherwise noted.



                      Subpart A_General Information



Sec.  230.1  Introduction.

    This part states the procedure for ordering Standard Reference 
Materials (SRM's) issued by the National Institute of Standards & 
Technology. SRM's are used to calibrate measurement systems, evaluate 
measurement methods, or produce scientific data that can be referred to 
a common base. NIST Special Publication 260, ``Catalog of NIST Standard 
Reference Materials,'' lists and describes the SRM's issued by NIST. SP 
260 is periodically revised to include new SRM's and eliminate those 
that have been discontinued. Between editions of SP 260, supplements are 
issued that list new or renewal SRM's not listed in SP 260. In addition, 
these supplements list the fees charged for available SRM's.

[41 FR 8472, Feb. 27, 1976, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  230.2  Identification of Standard Reference Materials.

    The SRM's are listed by category in SP 260 and by sequential number 
in the supplements. The number uniquely identifies a particular SRM. 
Renewals are indicated by the addition of a letter to the original 
number. Thus, 11a is the first, 11b the second, and 11c the third 
renewal of SRM 11, Basic Open-Hearth Steel, 0.2 percent carbon. In this 
way, a particular number or number and letter always represent a 
material of fixed or approximately fixed composition.



Sec.  230.3  New Standard Reference Materials.

    When new SRM's or renewals of old ones are issued, announcements are 
made in SP 260, its supplement, and in scientific and trade journals.



                      Subpart B_Purchase Procedure



Sec.  230.4  Ordering.

    Orders should be addressed to the Office of Standard Reference 
Materials, National Institute of Standards & Technology, Washington, DC 
20234. Orders should give the amount (number of units), catalog number 
and name of the standard requested. For example: 1 each, SRM 11h, Basic 
Open-Hearth Steel, 0.2 percent C. These materials are distributed only 
in the units listed.

[41 FR 8472, Feb. 27, 1976, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  230.5  Terms and shipping.

    (a) Prices are given in the SP 260 supplement. These prices are 
subject to revision and orders will be billed for prices in effect at 
the time of shipment. No discounts are given on purchases of SRM's.
    (b) Payment need not accompany a purchase order. Payment is due 
within 30 days of receipt of an invoice.
    (c) SRM's are shipped in the most expeditious manner that complies 
with transportation and postal laws and regulations.

[[Page 371]]



Sec.  230.6  Standard Reference Materials out of stock.

    Orders for out-of-stock SRM's will be returned with information as 
to future availability.



           Subpart C_Description of Services and List of Fees



Sec.  230.7  Description of services and list of fees, incorporation by reference.

    (a) The text of NIST Special Publication 260, ``Catalog of NIST 
Standard Reference Materials,'' and its supplement are hereby 
incorporated by reference pursuant to 5 U.S.C. 552(a)(1) and 1 CFR Part 
51.
    (b) SP 260 describes the SRM's that are available and states the 
procedure for ordering the materials. SP 260 is available at the 
following places:

Superintendent of Documents, Government Printing Office, Washington, DC 
20402.

Office of Standard Reference Materials, National Institute of Standards 
& Technology, Washington, DC 20234.

    (c) Supplements are issued when needed to reflect additions, 
deletions, and corrections to SP 260, and to list fees charged for the 
SRM's. Supplements are available from the Office of Standard Reference 
Materials, National Institute of Standards & Technology, Washington, DC 
20234.

[41 FR 8472, Feb. 27, 1976, as amended at 55 FR 38315, Sept. 11, 1990]



               SUBCHAPTER C_TRANSCRIPT SERVICES [RESERVED]



[[Page 372]]



                   SUBCHAPTER D_STANDARDS FOR BARRELS





PART 240_BARRELS AND OTHER CONTAINERS FOR LIME--Table of Contents




Sec.
240.1 Title of act.
240.2 Application.
240.3 Permissible sizes.
240.4 Definitions.
240.5 Required marking.
240.6 Tolerances.

    Authority: Sec. 4, 39 Stat. 531; 15 U.S.C. 240.

    Source: 13 FR 8372, Dec. 28, 1948, unless otherwise noted.



Sec.  240.1  Title of act.

    The act, ``Pub. L. 228, 64th Congress,'' approved August 23, 1916 
(39 Stat. 530; 15 U.S.C. 237-242), entitled ``An Act to standardize lime 
barrels,'' shall be known and referred to as the ``Standard Lime-Barrel 
Act.''



Sec.  240.2  Application.

    The rules and regulations in this part are to be understood and 
construed to apply to lime in barrels, or other containers packed, sold, 
or offered for sale for shipment from any State or Territory or the 
District of Columbia to any other State or Territory or the District of 
Columbia; and to lime in containers of less capacity than the standard 
small barrel sold in interstate or foreign commerce; and to lime 
imported in barrels from a foreign country and sold or offered for sale; 
also to lime not in barrels or containers of less capacity than the 
standard small barrel, sold, charged for, or purported to be delivered 
as a large or small barrel or a fractional part of said small barrel of 
lime, from any State or Territory or the District of Columbia to any 
other State or Territory or the District of Columbia.



Sec.  240.3  Permissible sizes.

    Lime in barrels shall be packed only in barrels containing 280 
pounds or 180 pounds, net weight. For the purposes of this section the 
word ``barrel'' is defined as a cylindrical or approximately cylindrical 
vessel, cask or drum.

(Sec. 2, 39 Stat. 530; 15 U.S.C. 238)



Sec.  240.4  Definitions.

    (a) The term container of less capacity than the standard small 
barrel, as mentioned in section 3 of the law and as used in the rules 
and regulations in this part, is defined as any container not in barrel 
form containing therein a net weight of lime of less than 180 pounds.
    (b) The term label as used in the rules and regulations in this part 
is defined as any printed, pictorial, or other matter upon the surface 
of a barrel or other container of lime subject to the provisions of this 
act, or upon cloth or paper or the like which is permanently affixed to 
it by pasting or in a similar manner.
    (c) The term tag is defined as a tough and strong strip of cloth or 
paper or the like, bearing any printed, pictorial, or other matter, 
which is loose at one end and which is secured to a container of lime 
subject to the provisions of the act.

(Sec. 3, 39 Stat. 530; 15 U.S.C. 239)



Sec.  240.5  Required marking.

    (a) The lettering required upon barrels of lime by section 2 of the 
law shall be as follows: The statement of net weight shall be in 
boldface capital letters and figures at least 1 inch in height and not 
expanded or condensed; it shall be clear, legible, and permanent, and so 
placed with reference to the other lettering that it is conspicuous. The 
name of the manufacturer of the lime and where manufactured, and, if 
imported, the name of the country from which it is imported, shall be in 
boldface letters at least one-half inch in height and not expanded or 
condensed, and shall be clear, legible, conspicuous, and permanent. None 
of these letters and figures shall be superimposed upon each other, nor 
shall any other characters be superimposed upon the required lettering 
or otherwise obscure it. All the above statements shall form parts of 
the principal label.
    (b) The information required upon containers of lime of less 
capacity than the standard small barrel by section 3 of the law shall be 
included in a label:

[[Page 373]]

Provided, however, That in order to allow the utilization of second-hand 
or returnable bags made of cloth, burlap, or the like, such information 
may be upon a tag firmly attached to the container in a prominent and 
conspicuous position. In case a tag is used to give the required 
information there must not be any label or another tag upon the 
container which bears any statement having reference to lime, or any 
statement of weight whatever, which is not identical with the 
information upon the tag mentioned above; if a container is to be 
utilized which bears any such inaccurate information upon a label, such 
container shall be turned inside out or such information shall be 
obliterated in so far as it is inaccurate by blotting out the letters or 
figures; or if such inaccurate information is upon a tag, by removing 
such tag.
    (c) If the required lettering is upon a label, the statement of net 
weight shall be in bold-face capital letters and figures at least three-
fourths inch in height and not expanded or condensed; it shall be clear, 
legible, and permanent, and so placed with reference to the other 
lettering that it is conspicuous. The word ``net'' shall form part of 
the statement of weight. The name of the manufacturer of the lime and 
the name of the brand, if any, under which it is sold, and, if imported, 
the name of the country from which it is imported, shall be in bold face 
letters at least one-half inch in height and not expanded or condensed, 
and shall be clear, legible, conspicuous, and permanent. None of these 
letters and figures shall be superimposed upon each other, nor shall any 
other characters be superimposed upon the required lettering or 
otherwise obscure it. All the above statements shall form parts of the 
principal label.
    (d) If the required lettering is upon a tag, the statement of net 
weight shall be in bold-face capital letters and figures not less than 
one-half the height of the largest letters or figures used upon such 
tag: Provided, however, That in every case they shall be not less than 
one-eighth inch in height (12-point capitals), and not expanded or 
condensed. The word ``net'' shall form part of the statement of weight. 
The statement shall be clear, legible, and permanent, and so placed with 
reference to the other lettering that it is conspicuous. The name of the 
manufacturer of the lime, and the name of the brand, if any, under which 
it sold, and, if imported, the name of the country from which it is 
imported, shall be in bold-face letters and figures not less than one-
eighth inch in height (12-point capitals), and not expanded or 
condensed, and shall be clear, legible, conspicuous, and permanent. None 
of these letters and figures shall be superimposed upon each other nor 
shall any other characters be superimposed upon the required lettering 
or otherwise obscure it. All the above statements shall be included upon 
the same side of the tag.
    (e) In case the lime is actually packed in barrels or in containers 
of less capacity than the standard small barrel by some person other 
than the manufacturer of the lime, the information mentioned above must 
be given in the manner there described, and in addition there must be a 
statement to this effect: ``Packed by ---------- ----------'' (giving 
the name and address of the packer). This statement shall be in letters 
not smaller than is specified for the general statement required in the 
case of barrels and containers of less capacity than the standard small 
barrel, respectively (see paragraphs (a) and (b) of this section); it 
shall not be obscured and shall form part of the principal label or be 
upon the same side of the tag as in those cases provided.
    (f) In the case of all lime sold in barrels, the actual place of 
manufacture of the lime shall be stated on the barrel. In general, this 
will be the name of the post office nearest or most accessible to the 
plant. However, when the actual place of manufacture of the lime and the 
offices of the company are separated but are within the boundaries of 
the same county of a State, or when, though not within the boundaries of 
the same county they are so close together that the post-office address 
of the offices represents substantially and to all intents and purposes 
the actual place of manufacture of the lime, then the post-office 
address of the offices of the company will be sufficient: Provided, 
however, That the address given

[[Page 374]]

shall always correctly show the State in which the lime is actually 
manufactured.
    (g) More than one place of manufacture of a manufacturer shall not 
be shown on the same barrel unless the one at which the particular lime 
in question is manufactured is pointed out.
    (h) If the location of the home offices is stated and this is not 
the place of manufacture within the meaning of the above definition, an 
additional statement must be included to this effect: ``Manufactured at 
----------'' (giving the location of the plant).

(Secs. 2, 3, 39 Stat. 530; 15 U.S.C. 238, 239)



Sec.  240.6  Tolerances.

    (a) When lime is packed in barrels the tolerance to be allowed on 
the large barrel or the small barrel of lime shall be 5 pounds in excess 
or in deficiency on any individual barrel: Provided, however, That the 
average error on 10 barrels of the same nominal weight and packed by the 
same manufacturer shall in no case be greater than 2 pounds in excess or 
in deficiency. In case all the barrels available are not weighed, those 
which are weighed shall be selected at random.
    (b) When lime is packed in containers of less capacity than the 
standard small barrel, the tolerance to be allowed in excess or in 
deficiency on individual containers of various weights, shall be the 
values given in the column headed ``Tolerance on individual package,'' 
of the following table: Provided, however, That the average error on 10 
containers of the same nominal weight and packed by the same 
manufacturer shall in no case be greater than the values given in the 
column headed ``Tolerance on average weight,'' of the following table. 
In case all the containers available are not weighed, those which are 
weighed shall be selected at random.

------------------------------------------------------------------------
                                                   Tolerance
                                                      on       Tolerance
               Weight of packaged                 individual  on average
                                                    package     weight
                                                   (pounds)    (pounds)
------------------------------------------------------------------------
Not greater than 50 lbs.........................      1\1/2\       \5/8\
More than 50 lb. and not greater than 100 lbs...           2       \3/4\
More than 100 lb. and not greater than 150 lb...           3      1\1/4\
More than 150 lb. and less than 180 lb..........           4      1\1/2\
------------------------------------------------------------------------

    (c) When lime in bulk is sold, charged for, or purported to be 
delivered as a definite number of large or small barrels, the tolerance 
to be allowed in excess or in deficiency on such amounts of lime shall 
be 15 pounds per 1,800 pounds (10 small barrels), or 25 pounds per 2,800 
pounds (10 large barrels).



PART 241_BARRELS FOR FRUITS, VEGETABLES AND OTHER DRY COMMODITIES, AND FOR 
CRANBERRIES--Table of Contents




Sec.
241.1 Capacities.
241.2 Legal standard barrels.
241.3 Application of tolerance for ``distance between heads.''
241.4 Application of tolerance for ``diameter of head.''
241.5 Standard dimensions.
241.6 Classes of barrels for tolerance application.
241.7 Tolerances to be allowed.

    Authority: Sec. 3, 38 Stat. 1187; 15 U.S.C. 236.

    Source: 13 FR 8373, Dec. 28, 1948, unless otherwise noted.
    Note: The rules and regulations in this part refer entirely to 
individual barrels, and no separate tolerance has been placed on the 
average content of a number of barrels taken at random from a shipment. 
It is not believed that barrels can be so made as to take advantage of 
the tolerances, and, of course, no attempt should be made to do this. It 
is, therefore, expected that as many barrels will be above as below the 
standard capacity.



Sec.  241.1  Capacities.

    (a) The capacities of the standard barrel for fruits, vegetables, 
and other dry commodities, other than cranberries, and its subdivisions, 
are as follows:

------------------------------------------------------------------------
                                            Cubic    Bushels     Quarts
                  Size                     inches      \1\        \1\
------------------------------------------------------------------------
Barrel..................................     7,056      3.281        105
\3/4\ barrel............................     5,292       2.46    78\3/4\
\1/2\ barrel............................     3,528      1.641    52\1/2\
\1/3\ barrel............................     2,352      1.094        35
------------------------------------------------------------------------
\1\ Struck measure.


[[Page 375]]

    (b) The capacities of the standard cranberry barrel and its 
subdivisions are as follows:

------------------------------------------------------------------------
                                            Cubic    Bushels     Quarts
                  Size                     inches      \1\        \1\
------------------------------------------------------------------------
Cranberry barrel........................     5,826      2.709  86\45/64\
\3/4\ cranberry barrel..................   4,369.5      2.032   65\1/64\
\1/2\ cranberry barrel..................     2,913      1.355  43\11/32\
\1/3\ cranberry barrel..................     1,942       .903  28\29/32\
------------------------------------------------------------------------
\1\ Struck measure.


(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)



Sec.  241.2  Legal standard barrels.

    (a) Any barrel having the dimensions specified for a standard barrel 
for fruits, vegetables, and other dry commodities, other than 
cranberries, in section 1 of the standard-barrel law, or any barrel or a 
subdivision thereof having the contents specified in section 1 of the 
standard-barrel law and in Sec.  241.1(a) regardless of its form or 
dimensions, is a legal standard barrel for fruits, vegetables, or other 
dry commodities other than cranberries, or a legal subdivision thereof. 
No other barrel or subdivision in barrel form is a legal container for 
fruits, vegetables, or other dry commodities other than cranberries.
    (b) Any barrel having the dimensions specified for a standard barrel 
for cranberries in section 1 of the standard-barrel law, or any 
subdivision thereof having the contents specified in Sec.  241.1(b), 
regardless of its form or dimensions, is a legal standard barrel for 
cranberries or a legal subdivision thereof. No other barrel or 
subdivision in barrel form is a legal container for cranberries.

(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)



Sec.  241.3  Application of tolerance for ``distance between heads.''

    The tolerance established in this part for the dimension specified 
as ``distance between heads'' shall be applied as follows on the various 
types of barrels in use:
    (a) When a barrel or subdivision thereof has two heads, the 
tolerance shall be applied to the distance between the inside surfaces 
of the heads and perpendicular to them.
    (b) When a barrel or subdivision thereof has but one head and a 
croze ring or other means for the insertion of a head, such as an inside 
hoop, etc., at the opposite end, the tolerance shall be applied to the 
distance from the inside surface of the bottom head and perpendicular to 
it to the inside edge of the croze ring, or to a point where the inside 
surface of a head would come were such head inserted in the barrel.
    (c) When a barrel or subdivision thereof has but one head and no 
croze ring or other means for the insertion of a head, such as an inside 
hoop, etc., at the opposite end, the tolerance shall be applied to the 
distance from the inside surface of the bottom head and perpendicular to 
it to a point 1\1/8\ inches from the opposite end of the staves in the 
case of a barrel or a \3/4\ barrel, and to a point 1 inch or \7/8\ inch 
from the opposite end of the staves in the case of the \1/2\ barrel and 
\1/3\ barrel, respectively. When a barrel or subdivision thereof has 
been manufactured with but one head and no croze ring or other means for 
the insertion of a head at the opposite end, and it is desired to insert 
a second head, the croze ring shall be so cut that the inside edge shall 
not be more than 1\1/8\ inches from the end of the staves in the case of 
a barrel or \3/4\ barrel or not more than 1 inch or \7/8\ inch from the 
end of the staves in the case of the \1/2\ barrel and \1/3\ barrel, 
respectively, or the other means shall be so adjusted that the inside 
surface of the head when inserted shall not exceed these distances from 
the end of the staves.



Sec.  241.4  Application of tolerance for ``diameter of head.''

    (a) The tolerance established in this part for the dimension 
specified as ``diameter of head'' shall be applied to the diameter of 
the head over all, including the part which fits into the croze ring of 
the completed barrel.
    (b) The tolerance established in this part for the dimension 
specified as ``effective diameter of head'' shall be applied as follows 
on the various types of barrels and subdivisions in use;
    (1) When a barrel or subdivision thereof has two heads, the 
tolerance shall be applied to the mean of the average diameters from 
inside to inside of staves at the inner edges of the heads.
    (2) When a barrel or subdivision thereof has but one head and a 
croze

[[Page 376]]

ring or other means for the insertion of a head at the opposite end, the 
tolerance shall be applied to the mean of the average diameters, one 
taken from inside to inside of staves at the inner edge of the head, the 
other from inside to inside of staves at the inner edge of the croze 
ring, or from inside to inside of staves at a point where the inside 
surface of a head would come were such head inserted in the barrel.
    (3) When a barrel or subdivision thereof has but one head and no 
croze ring or other means for the insertion of a head at the opposite 
end, the tolerance shall be applied to the mean of the average 
diameters, one taken from inside to inside of staves at the inner edge 
of the head, the other taken from inside to inside of staves at a point 
1\1/8\ inches from the end of the staves in the case of a barrel or \3/
4\ barrel, or at a point 1 inch or \7/8\ inch from the end of the staves 
in the case of a \1/2\ barrel or \1/3\ barrel, respectively.
    (c) The standard allowance for depth of croze ring shall be \3/16\ 
inch. Therefore, the standard ``effective diameter of head'' in the case 
of the standard barrel is 16\3/4\ inches and in the case of the standard 
cranberry barrel is 15\7/8\ inches.



Sec.  241.5  Standard dimensions.

    Whenever in the rules and regulations in this part the error on a 
dimension is mentioned, this error shall be determined by taking the 
difference between the actual measured dimension and the standard 
dimension. The error is an error in excess and is to be preceded by a 
plus sign when the measured dimension is greater than the standard 
dimension. The error is an error in deficiency and is to be preceded by 
a minus sign when the measured dimension is less than the standard 
dimension.
    (a) The standard dimensions of a barrel for fruits, vegetables, and 
other dry commodities other than cranberries, and of a barrel for 
cranberries, with which the actual measured dimensions are to be 
compared, are as follows:

------------------------------------------------------------------------
                                               Barrel for
                                                 fruits,
                                               vegetables,
                                              and other dry   Barrel for
                 Dimensions                    commodities   cranberries
                                               other than      (inches)
                                               cranberries
                                                (inches)
------------------------------------------------------------------------
Diameter of head...........................         17\1/8\     16\1/4\
Effective diameter of head (see Sec.                16\3/4\     15\7/8\
 241.4)....................................
Distance between heads.....................              26     25\1/4\
Circumference of bulge, outside measurement              64     58\1/2\
Length of stave............................         28\1/2\     28\1/2\
------------------------------------------------------------------------

    (b) In the case of all subdivisions of the barrel for fruits, 
vegetables, and other dry commodities other than cranberries, and all 
subdivisions of the barrel for cranberries, the following dimensions are 
hereby standardized for the purpose of the application of tolerances, 
and the actual measured dimensions are to be compared with these:

Subdivisions of Barrel for Fruits, Vegetables, and Other Dry Commodities
                         Other Than Cranberries
------------------------------------------------------------------------
                                           \3/4\      \1/2\      \1/3\
               Dimensions                  barrel     barrel     barrel
                                          (inches)   (inches)   (inches)
------------------------------------------------------------------------
Effective diameter of head (see Sec.       15\1/4\    13\3/8\    11\5/8\
 241.4)................................
Distance between heads.................    23\1/2\    20\1/2\         18
Circumference of bulge, outside            58\1/2\    51\1/2\    45\1/4\
 measurement...........................
 
------------------------------------------------------------------------
                 Subdivisions of Barrel for Cranberries
 
------------------------------------------------------------------------
Effective diameter of head (see Sec.       14\3/8\    12\5/8\         11
 241.4)................................
Distance between heads.................         23         20    17\1/2\
Circumference of bulge, outside            53\3/8\         47    41\3/8\
 measurement...........................
------------------------------------------------------------------------


(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)



Sec.  241.6  Classes of barrels for tolerance application.

    For the purpose of the application of tolerances, barrels for 
fruits, vegetables, and other dry commodities other than cranberries, 
are hereby divided into two classes as follows:
    (a) Class 1 shall include (1) all barrels no dimension of which is 
in error by more than the following amounts, and (2) all barrels one or 
more of the dimensions of which are in error by more than the following 
amounts, and which in addition have no dimension in error in the 
opposite direction:

[[Page 377]]



------------------------------------------------------------------------
                                                                Error,
                                                                inches
------------------------------------------------------------------------
Effective diameter of head..................................       \1/4\
Distance between heads......................................       \1/4\
Circumference of bulge, outside measurement.................      1\1/2\
------------------------------------------------------------------------

    (b) Class 2 shall include all barrels at least one dimension of 
which is in error by more than the amounts given above, but which in 
addition have at least one dimension in error in the opposite direction. 
(This class includes all barrels mentioned in section 1 of the law in 
the proviso reading: ``Provided, That any barrel of a different form 
having a capacity of seven thousand and fifty-six cubic inches shall be 
a standard barrel.'')

(Sec. 1, 38 Stat. 1186; 15 U.S.C. 234)



Sec.  241.7  Tolerances to be allowed.

    (a) The tolerances to be allowed in excess or in deficiency on the 
dimensions of all barrels of Class 1 shall be as follows:

------------------------------------------------------------------------
                                                               Tolerance
                                                                inches
------------------------------------------------------------------------
Diameter of head............................................       \1/4\
Effective diameter of head..................................       \1/4\
Distance between heads......................................       \1/4\
Circumference of bulge, outside measurement.................      1\1/2\
Length of stave.............................................       \1/2\
------------------------------------------------------------------------

    (1) If no dimension of a barrel of Class 1 is in error by more than 
the tolerance given above, then the barrel is within the tolerance 
allowed.
    (2) If one or more of the dimensions of a barrel of Class 1 is in 
error by more than the tolerance given above, then the barrel is not 
within the tolerance allowed.
    (b) The tolerance to be allowed in excess or in deficiency on all 
barrels of Class 2 shall be 1\1/2\ inches (1.5) inches, and this 
tolerance is to be applied to the result obtained by the application of 
the following rule:
    (1) Having determined the errors of each dimension and given to each 
its proper sign (see Sec.  241.4), add the errors on the effective 
diameter of head and the distance between heads algebraically and 
multiply the result by 1.67 (or \5/3\). Then add this result to the 
error on the circumference of bulge algebraically. If the result 
obtained is not greater than the tolerance given above, then the barrel 
is within the tolerance allowed; if the result is greater than this 
tolerance, then the barrel is not within the tolerance allowed.

    Note: To find the algebraic sum of a number of quantities having 
different signs, first add all those having one sign; then add all those 
having the opposite sign; then subtract the smaller sum from the larger, 
giving this result the sign of the larger quantity.

    (2) [Reserved]
    (c) The tolerance to be allowed in excess or in deficiency on the 
dimensions of all barrels for cranberries shall be as follows:

------------------------------------------------------------------------
                                                              Tolerance,
                                                                inches
------------------------------------------------------------------------
Diameter of head............................................       \1/4\
Effective diameter of head..................................       \1/4\
Distance between heads......................................       \1/4\
Circumference of bulge, outside measurement.................      1\3/8\
Length of stave.............................................       \1/2\
------------------------------------------------------------------------

    (1) If no dimension of a barrel for cranberries is in error by more 
than the tolerance given above, then the barrel is within the tolerance 
allowed.
    (2) If one or more of the dimensions of a barrel for cranberries is 
in error by more than the tolerance given above, then the barrel is not 
within the tolerance allowed.
    (d) The tolerances to be allowed in excess or in deficiency on all 
subdivisions of the standard barrel for fruits, vegetables, and other 
dry commodities other than cranberries, and on all subdivisions of the 
standard barrel for cranberries, shall be the values given in the 
following table, and these tolerances are to be applied to the result 
obtained by the application of the following rule:
    (1) Having determined the errors on each dimension and given to each 
its proper sign (see Sec.  241.5), add the errors on the effective 
diameter of head and the distance between heads algebraically and 
multiply the result by 1.67 (or \5/3\). Then add this result to the 
error on the circumference of bulge algebraically. If the result 
obtained is not greater than the tolerance given in the following table 
for the proper subdivision, then the barrel is within the tolerance 
allowed; if the result is greater than this tolerance, then the barrel 
is not within the tolerance allowed.

[[Page 378]]



------------------------------------------------------------------------
                                                     Tolerance
                                         -------------------------------
                                            For fruits,
           Size of subdivision              vegetables,         For
                                           and other dry    cranberries
                                            commodities      (inches)
                                             (inches)
------------------------------------------------------------------------
\3/4\ barrel............................  1\3/8\ (1.375)   1\1/4\ (1.25)
\1/2\ barrel............................   1\1/4\ (1.25)  1\1/8\ (1.125)
\1/3\ barrel............................  1\1/8\ (1.125)        1 (1.00)
------------------------------------------------------------------------
 


[[Page 379]]



            SUBCHAPTER E_FELLOWSHIPS AND RESEARCH ASSOCIATES





PART 255_FELLOWSHIPS IN LABORATORY STANDARDIZATION AND TESTING FOR QUALIFIED 
CITIZENS OF OTHER AMERICAN REPUBLICS--Table of Contents




Sec.
255.1 Type of fellowships.
255.2 Qualifications.
255.3 Award of fellowships.
255.4 Allowances and expenses.
255.5 Progress reports.
255.6 Duration of fellowships.
255.7 Official notification.

    Authority: R.S. 161; sec. 1, 53 Stat. 1290; 22 U.S.C. 501.

    Source: 13 FR 8374, Dec. 28, 1948, unless otherwise noted.



Sec.  255.1  Type of fellowships.

    Fellowships shall be of the combined intern-training and training-
in-research type, and may include any or all of the following courses:
    (a) Orientation courses consisting of lectures and conferences at 
the National Institute of Standards & Technology pertaining to 
laboratory standardization and testing.
    (b) Practical laboratory training in various branches of physics, 
chemistry, and engineering research, under the direction of the National 
Institute of Standards & Technology, which will include the usual 
subdivisions of physics (weights and measures, heat, optics, mechanics, 
atomic physics, electrical measurements and radio) and also technologic 
applications in research and testing on metals, rubber, leather, paper, 
textiles, plastics, and clay and silicate products.
    (c) Observation and study in such other laboratories within the 
continental United States as may be selected by the Director of the 
National Institute of Standards & Technology.
    (d) Courses of instruction or research assignments supplementing the 
practical laboratory training, in universities or colleges selected by 
the Director of the National Institute of Standards & Technology.

[13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  255.2  Qualifications.

    Each applicant selected for a fellowship shall be:
    (a) A citizen of an American republic other than the United States;
    (b) In possession of a certificate of medical examination issued by 
a licensed physician within 60 days of the date of application, 
describing the applicant's physical condition and stating that he is 
free from any communicable disease, physical deformity or disability 
that would interfere with the proper pursuit of training, research, or 
any other activity or work incident to the fellowship;
    (c) Able to speak, read, write and understand the English language;
    (d) Of good moral character and possessing intellectual ability and 
suitable personal qualities; and
    (e) In possession of acceptable evidence that he has successfully 
completed the equivalent of a four-year university course in a 
recognized university, college or other institution of learning, with 
some training or experience in the field of activity which he desires to 
pursue. Equivalent experience may be substituted for the university 
training in the case of candidates who are otherwise specially well 
qualified.



Sec.  255.3  Award of fellowships.

    Fellowships shall be awarded by the Director of the National 
Institute of Standards & Technology, with the approval of the Secretary 
of Commerce and the Secretary of State, or the duly authorized 
representative of the Secretary of State. Applications shall be 
transmitted to the Secretary of State by the government of the American 
republic of which the applicant is a citizen through the American 
diplomatic mission accredited to that government.

[13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38315, Sept. 18, 1990]



Sec.  255.4  Allowances and expenses.

    Allowances and expenses shall be as provided in State Department 
regulations given in 22 CFR Part 61, and as

[[Page 380]]

provided in Department of Commerce Administrative Order No. 202-3. \1\
---------------------------------------------------------------------------

    \1\ Not filed with the Office of the Federal Register.
---------------------------------------------------------------------------



Sec.  255.5  Progress reports.

    Applicants awarded fellowships under the regulations in this part 
shall submit written reports of progress in training and research at 
such intervals as the Director of the National Institute of Standards & 
Technology may determine.

[13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38316, Sept. 18, 1990]



Sec.  255.6  Duration of fellowships.

    Fellowships may be awarded for periods of varying length, not 
exceeding one 12-month period of actual training and research and may be 
extended for not exceeding the same periods in the manner prescribed 
under Sec.  255.3 and subject to the availability of appropriations. 
Fellowships may be cancelled for cause by the Director of the National 
Institute of Standards & Technology, with the approval of the Secretary 
of Commerce and the Secretary of State, or the duly authorized 
representative of the Secretary of State.

[13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38316, Sept. 18, 1990]



Sec.  255.7  Official notification.

    Each applicant selected by the Director of the National Institute of 
Standards & Technology and approved by the Secretary of Commerce and the 
Secretary of State, or the duly authorized representative of the 
Secretary of State, shall be notified of his award through diplomatic 
channels. The notification shall state the duration and type of 
fellowship, outline the program of training and research, and state the 
allowances authorized: Provided, however, That the Director of the 
National Institute of Standards & Technology may subsequently amend the 
program and duration of the fellowship if in his opinion such action 
would be in the interest of obtaining training and research better 
suited to the needs and capabilities of the fellow than those prescribed 
in the notification. The amount originally authorized for monthly 
allowances and other expenses may also be amended, if necessary, with 
the approval of the Secretary of Commerce and the Secretary of State, or 
the duly authorized representative of the Secretary of State.

[13 FR 8374, Dec. 28, 1948, as amended at 55 FR 38316, Sept. 18, 1990]



PART 256_RESEARCH ASSOCIATE PROGRAM--Table of Contents




Sec.
256.1 Introduction.
256.2 The Research Associate Program.
256.3 Procedure.
256.4 Qualifications.
256.5 Duration of projects.
256.6 Information concerning the Research Associate Program.

    Authority: 27 Stat. 395, 31 Stat. 1039; 20 U.S.C. 91.

    Source: 32 FR 10252, July 12, 1967, unless otherwise noted.



Sec.  256.1  Introduction.

    This part states policies and procedures concerning the Research 
Associate Program at the National Institute of Standards & Technology. 
In the exercise of its functions as a major scientific agency of the 
Federal Government, the National Institute of Standards & Technology may 
make its facilities available to persons other than Bureau employees to 
work with scientists and engineers in collaborative research aimed at 
furthering the Nation's scientific, industrial, and economic growth. 
Such cooperative programs may be sponsored by professional, technical, 
or industrial organizations or associations. Such participants, when so 
sponsored, are designated ``Research Associates''.



Sec.  256.2  The Research Associate Program.

    The Bureau provides its facilities, scientific competence, and 
technical supervision for defined scientific or technical research by a 
Research Associate when such research is complementary to and compatible 
with scientific or technical research being performed or to be 
undertaken by NIST under its statutory mission and authority. The 
Sponsors pay the salaries

[[Page 381]]

of their Research Associates and Sponsor-furnished technical assistants 
and secretaries of the Research Associates, if any, their travel costs, 
and other related expenses. Additionally, Sponsors reimburse NIST for 
the cost of research equipment, services, or materials obtained for the 
Research Associate.

[32 FR 10252, July 12, 1967, as amended at 40 FR 50707, Oct. 31, 1975]



Sec.  256.3  Procedure.

    Arrangements for collaborative research by NIST with a Research 
Associate generally begin through discussions or correspondence between 
NIST scientists and representatives of potential sponsoring companies, 
trade associations or professional organizations. These preliminary 
steps are followed by the consummation of a Memorandum of Agreement 
which is signed by NIST, the sponsoring organization and the Research 
Associate. The agreement sets out the respective responsibilities and 
obligations of all parties.



Sec.  256.4  Qualifications.

    Each candidate selected to serve as a Research Associate must be 
determined to be scientifically qualified by the Sponsor and by the 
NIST, and found by NIST to be of good moral character and to possess 
suitable personal qualities.



Sec.  256.5  Duration of projects.

    The work of a Research Associate is generally conducted on a full-
time basis. Typically, Research Associates are in residence at NIST for 
6 to 18 months; longer-term programs may be carried on by a succession 
of Research Associates. Agreements provide for cancellation by any of 
the parties.



Sec.  256.6  Information concerning the Research Associate Program.

    Information concerning the Research Associate Program may be 
obtained from the Industrial Liaison Officer, National Institute of 
Standards & Technology, Washington, DC 20234.

[40 FR 50707, Oct. 31, 1975]

[[Page 382]]



         SUBCHAPTER F_REGULATIONS GOVERNING TRAFFIC AND CONDUCT






 PART 265_REGULATIONS GOVERNING TRAFFIC AND CONDUCT ON THE GROUNDS OF THE 
 NATIONAL INSTITUTE OF STANDARDS & TECHNOLOGY, GAITHERSBURG, MARYLAND, AND 
 BOULDER AND FORT COLLINS, COLORADO--Table of Contents




                            Subpart A_General

Sec.
265.1 Definitions.
265.2 Applicability.
265.3 Compliance with directions.
265.4 Making or giving of false reports.
265.5 Laws of Maryland and Colorado applicable.

               Subpart B_Traffic and Vehicular Regulations

265.11 Inspection of license and registration.
265.12 Speeding or reckless driving.
265.13 Emergency vehicles.
265.14 Signs.
265.15 Right-of-way in crosswalks.
265.16 Parking.
265.17 Parking permits.
265.18 Prohibited servicing of vehicles.
265.19 Unattended vehicles.
265.20 Towing of improperly parked vehicles.
265.21 Improper use of roads as thoroughfares.
265.22 Bicycle traffic.

                     Subpart C_Buildings and Grounds

265.31 Closing the site.
265.32 Trespassing.
265.33 Preservation of property.
265.34 Conformity with posted signs.
265.35 Nuisances.
265.36 Intoxicating beverages.
265.37 Narcotics and other drugs.
265.38 Intoxication or other impairment of function.
265.39 Weapons and explosives.
265.40 Nondiscrimination.
265.41 Gambling.
265.42 Photography for advertising or commercial purposes; advertising 
          and soliciting.
265.43 Pets and other animals.

                           Subpart D_Penalties

265.51 Penalties--other laws.

    Authority: Sec. 9, 31 Stat. 1450, as amended (15 U.S.C. 277). 
Applies sec. 1, 72 Stat 1711, as amended, (15 U.S.C. 278e(b)).

    Source: 39 FR 41170, Nov. 25, 1974, unless otherwise noted.



                            Subpart A_General



Sec.  265.1  Definitions.

    As used in this part:
    (a) Site means those grounds and facilities of the National 
Institute of Standards & Technology, Department of Commerce located in 
Montgomery County, Maryland, and in Boulder and Larimer Counties, 
Colorado, over which the Federal Government has acquired concurrent 
jurisdiction in accordance with appropriate authority.
    (b) Uniformed guard means a designated employee appointed by the 
Director for purposes of carrying out the authority of a U.S. Special 
Policeman, as provided by 40 U.S.C. 318.
    (c) Director means the Director of the National Institute of 
Standards & Technology.

[39 FR 41170, Nov. 25, 1974, as amended at 41 FR 51787, Nov. 24, 1976; 
55 FR 38316, Sept. 18, 1990]



Sec.  265.2  Applicability.

    The regulations in this part establish rules with respect to the 
parking and operation of motor vehicles and other activities and conduct 
on the site. These regulations are intended to supplement the rules and 
regulations regarding conduct in Part O of Subtitle A of this title and 
in other officially issued orders and regulations of the Department of 
Commerce and the National Institute of Standards & Technology

[39 FR 41170, Nov. 25, 1974, as amended at 55 FR 38316, Sept. 18, 1990]



Sec.  265.3  Compliance with directions.

    No person shall fail or refuse to comply with any lawful order or 
direction of a uniformed guard in connection with the control or 
regulation of traffic and parking or other conduct on the site.

[[Page 383]]



Sec.  265.4  Making or giving of false reports.

    No person shall knowingly give any false or fictitious report or 
information to any authorized person investigating an accident or 
apparent violation of law or these regulations. Nothing in this section 
shall affect the applicability of 18 U.S.C. 1001 regarding false, 
fictitious or fraudulent statements or entries.



Sec.  265.5  Laws of Maryland and Colorado applicable.

    Unless otherwise specifically provided herein, the laws of the State 
of Maryland and of the State of Colorado shall be applicable to the site 
located within those respective States. The applicability of State laws 
shall not, however, affect or abrogate any other Federal law or 
regulation applicable under the circumstances.



               Subpart B_Traffic and Vehicular Regulations



Sec.  265.11  Inspection of license and registration.

    No person may operate any motor vehicle on the site unless he holds 
a current operator's license, nor may he, if operating a motor vehicle 
on the site, refuse to exhibit for inspection, upon request of a 
uniformed guard, his operator's license or proof of registration of the 
vehicle under his control at time of operation.



Sec.  265.12  Speeding or reckless driving.

    (a) No person shall drive a motor vehicle on the site at a speed 
greater than or in a manner other than is reasonable and prudent for the 
particular location, given the conditions of traffic, weather, and road 
surface and having regard to the actual and potential hazards existing.
    (b) Except when a special hazard exists that requires lower speed 
for compliance with paragraph (a) of this section, the speed limit on 
the site is 25 m.p.h., unless another speed limit has been duly posted, 
and no person shall drive a motor vehicle on the site in excess of the 
speed limit.



Sec.  265.13  Emergency vehicles.

    No person shall fail or refuse to yield the right-of-way to an 
emergency vehicle when operating with siren or flashing lights.



Sec.  265.14  Signs.

    Every driver shall comply with all posted traffic and parking signs.



Sec.  265.15  Right-of-way in crosswalks.

    No person shall fail or refuse to yield the right-of-way to a 
pedestrian or bicyclist crossing a street in a marked crosswalk.



Sec.  265.16  Parking.

    No person, unless otherwise authorized by a posted traffic sign or 
directed by a uniformed guard, shall stand or park a motor vehicle:
    (a) On a sidewalk;
    (b) Within an intersection or within a crosswalk;
    (c) Within 15 feet of a fire hydrant, 5 feet of a driveway or 30 
feet of a stop sign or traffic control device;
    (d) At any place which would result in the vehicle being double 
parked;
    (e) At curbs painted yellow;
    (f) In a direction facing on-coming traffic;
    (g) In a manner which would obstruct traffic;
    (h) In a parking space marked as not intended for his use;
    (i) Where directed not to do so by a uniformed guard;
    (j) Except in an area specifically designated for parking or 
standing;
    (k) Except within a single space marked for such purposes, when 
parking or standing in an area with marked spaces;
    (l) At any place in violation of any posted sign; or
    (m) In excess of 24 hours, unless permission has been granted by the 
Physical Security office.



Sec.  265.17  Parking permits.

    No person, except visitors, shall park a motor vehicle on the site 
without having a valid parking permit displayed on such motor vehicle in 
compliance with instructions of the issuing

[[Page 384]]

authority. Such permits may be revoked by the issuing authority for 
violation of any of the provisions of this part.



Sec.  265.18  Prohibited servicing of vehicles.

    No person shall make nonemergency repairs on privately owned 
vehicles on the site.



Sec.  265.19  Unattended vehicles.

    No person shall leave a motor vehicle unattended on the site with 
the engine running or a key in the ignition switch or the vehicle not 
effectively braked.



Sec.  265.20  Towing of improperly parked vehicles.

    Any motor vehicle that is parked in violation of these regulations 
may be towed away or otherwise moved if a determination is made by a 
uniformed guard that it is a nuisance or hazard. A reasonable amount for 
the moving service and for the storage of the vehicle, if any, may be 
charged, and the vehicle is subject to a lien for that charge.



Sec.  265.21  Improper use of roads as thoroughfares.

    Except as otherwise provided herein, no person shall drive a motor 
vehicle or bicycle onto the site for the sole purpose of using the roads 
of the site as a thoroughfare between roads bordering the site. This 
section shall not apply to bicyclists using officially approved bike 
paths on the site.



Sec.  265.22  Bicycle traffic.

    No person shall ride a bicycle other than in a manner exercising due 
caution for pedestrian and other traffic. No person shall ride a bicycle 
on sidewalks or inside any building, nor shall any person park a bicycle 
on sidewalks or inside any building nor in a roadway or parking lot, 
provided, however, that these parking restrictions shall not apply to 
bicycles parked at bicycle racks located in these areas.



                     Subpart C_Buildings and Grounds



Sec.  265.31  Closing the site.

    As determined by the Director (Director, NIST Boulder Laboratories, 
for sites in Colorado), the site may be closed to the public in 
emergency situations and at such other times as may be necessary for the 
orderly conduct of the Government's business. At such times no person 
shall enter the site except authorized individuals, who may be required 
to sign a register and display identification when requested by a 
uniformed guard.

[39 FR 41170, Nov. 25, 1974, as amended at 56 FR 66969, Dec. 27, 1991]



Sec.  265.32  Trespassing.

    No person shall come onto the site other than in pursuance of 
official government business or other properly authorized activities.



Sec.  265.33  Preservation of property.

    No person shall, without authorization, willfully destroy, damage, 
or deface any building, sign, equipment, marker, or structure, tree, 
flower, lawn, or other public property on the site.



Sec.  265.34  Conformity with posted signs.

    No person shall fail or refuse to comply with officially posted 
signs of a prohibitory nature or with directions of a uniformed guard.



Sec.  265.35  Nuisances.

    (a) No person shall willfully disrupt the conduct of official 
business on the site, or engage in disorderly conduct; nor shall any 
person unreasonably obstruct the usual use of entrances, foyers, 
lobbies, corridors, offices, elevators, stairways, parking lots, 
sidewalks, or roads.
    (b) No person shall litter or dispose of rubbish except in a 
receptacle provided for that purpose; nor shall any person throw 
articles of any kind from a building or from a motor vehicle or bicycle.



Sec.  265.36  Intoxicating beverages.

    Except as expressly authorized by the Director, the consumption or 
use on the site of intoxicating beverages is prohibited.



Sec.  265.37  Narcotics and other drugs.

    The possession, sale, consumption, or use on the site of narcotic or 
other

[[Page 385]]

drugs illegal under the laws of the State in which the particular site 
is situated is prohibited. The provisions of this section are not 
intended to preclude the applicability of any State or local laws and 
regulations with respect to the possession, sale, consumption, or use of 
narcotic or other drugs.



Sec.  265.38  Intoxication or other impairment of function.

    No person shall enter or remain on the site while noticeably 
impaired by the use of intoxicating beverages or narcotics or other 
drugs, and any such person found on the site in such a state of 
impairment may be removed from the site.



Sec.  265.39  Weapons and explosives.

    Except in connection with the conduct of official business on the 
site, no person other than uniformed guards specifically authorized, or 
other Federal, State, or local law enforcement officials so authorized, 
shall carry, transport, or otherwise possess on the site, firearms 
whether loaded or not, other dangerous or deadly weapons or materials, 
or explosives, either openly or concealed, without the written 
permission of the Director or his designee.



Sec.  265.40  Nondiscrimination.

    No person shall discriminate against any other person because of 
race, creed, color, sex, or national origin, in furnishing, or by 
refusing to furnish to such person the use of any facility of a public 
nature, including all services, privileges, accommodations, and 
activities provided thereby on the site.



Sec.  265.41  Gambling.

    No person shall participate on the site in games for money or other 
property, or in the operation of gambling devices, the conduct of 
lotteries or pools, or in the selling or purchasing of numbers tickets, 
or the taking or placing of bets.



Sec.  265.42  Photography for advertising or commercial purposes; advertising 
and soliciting.

    (a) Except as otherwise provided herein or where security 
regulations would preclude, photographs may be taken in entrances, 
lobbies, foyers, corridors, and auditoriums without prior approval. 
Photography for advertising and commercial purposes may be conducted 
only with the written permission of the Chief, Public Affairs Division 
of the National Institute of Standards and Technology (Public Affairs 
Officer for Boulder for sites in Colorado,) provided, however, that this 
shall not apply to photography for purposes of civic promotion.
    (b) Commercial advertisements and other material which are not 
directly pertinent or applicable to NIST employees but which 
nevertheless may be of interest or benefit to them may, with the 
approval of the Director of Administration (Executive Office, Boulder, 
for sites in Colorado), be placed in an appropriate location and made 
available to employees who visit that area. Except with approval as 
provided herein, no person shall distribute commercial advertising 
literature or engage in commercial soliciting on the site.

[39 FR 41170, Nov. 25, 1974, as amended at 55 FR 38316, Sept. 18, 1990; 
56 FR 66969, Dec. 27, 1991]



Sec.  265.43  Pets and other animals.

    Except in connection with the conduct of official business on the 
site or with the approval of the Associate Director for Administration 
(Executive Officer, IBS/Boulder, for sites in Colorado), no person shall 
bring upon the site any cat, dog, or other animal, provided, however, 
that blind persons may have the use of seeing eye dogs.



                           Subpart D_Penalties



Sec.  265.51  Penalties--other laws.

    Except with respect to the laws of the State of Maryland and the 
State of Colorado assimilated by Sec.  265.5 or otherwise, whoever shall 
be found guilty of violating these regulations is subject to a fine of 
not more than $50 or imprisonment of not more than 30 days, or both (40 
U.S.C. 318c). Except as expressly provided in this part, nothing 
contained in these regulations shall be construed to abrogate any other 
Federal laws or regulations, or any State and local laws and regulations 
applicable to the area in which the site is situated.

[[Page 386]]



         SUBCHAPTER G_INVENTION EVALUATION PROCEDURES [RESERVED]





                       SUBCHAPTERS H-I [RESERVED]



[[Page 387]]



           SUBCHAPTER J_ACCREDITATION AND ASSESSMENT PROGRAMS





PART 280_FASTENER QUALITY--Table of Contents




                            Subpart A_General

Sec.
280.1 Description of rule/Delegation of authority.
280.2 Definitions used in this subpart.

     Subpart B_Petitions, Affirmations, and Laboratory Accreditation

280.101 Petitions for approval of documents.
280.102 Affirmations.
280.103 Laboratory accreditation.

                          Subpart C_Enforcement

280.200 Scope.
280.201 Violations.
280.202 Penalties, remedies, and sanctions.
280.203 Administrative enforcement proceedings.
280.204 Institution of administrative enforcement proceedings.
280.205 Representation.
280.206 Filing and service of papers other than charging letter.
280.207 Answer and demand for hearing.
280.208 Default.
280.209 Summary decision.
280.210 Discovery.
280.211 Subpoenas.
280.212 Matter protected against disclosure.
280.213 Prehearing conference.
280.214 Hearings.
280.215 Interlocutory review of rulings.
280.216 Proceeding without a hearing.
280.217 Procedural stipulations; extension of time.
280.218 Decision of the administrative law judge.
280.219 Settlement.
280.220 Reopening.
280.221 Record for decision and availability of documents.
280.222 Appeals.

                     Subpart D_Recordal of Insignia

280.300 Recorded insignia required prior to offer for sale.

                         The Written Application

280.310 Application for insignia.
280.311 Review of the application.
280.312 Certificate of recordal.
280.313 Recordal of additional insignia.

                        Post-Recordal Maintenance

280.320 Maintenance of the certificate of recordal.
280.321 Notification of changes of address.
280.322 Transfer or amendment of the certificate of recordal.
280.323 Transfer or assignment of the trademark registration or recorded 
          insignia.
280.324 Change in status of trademark registration or amendment of the 
          trademark.
280.325 Cumulative listing of recordal information.
280.326 Records and files of the United States Patent and Trademark 
          Office.

    Authority: 15 U.S.C. 5401 et seq.; Pub. L. 101-592, 104 Stat. 2943, 
as amended by Pub. L. 104-113, 110 Stat. 775; Pub. L. 105-234, 112 Stat. 
1536; and Pub. L. 106-34, 113 Stat. 118.

    Source: 61 FR 50558, Sept. 26, 1996, unless otherwise noted.



                            Subpart A_General



Sec.  280.1  Description of rule/Delegation of authority.

    (a) Description of rule. The Fastener Quality Act (the Act) (15 
U.S.C. 5401 et seq., as amended by Public Law 104-113, Public Law 105-
234, and Public Law 106-34):
    (1) Protects against the sale of mismarked, misrepresented, and 
counterfeit fasteners; and
    (2) Eliminates unnecessary requirements.
    (b) Delegations of authority. The Director, National Institute of 
Standards and Technology has authority to promulgate regulations in this 
part regarding certification and accreditation. The Secretary of 
Commerce has delegated concurrent authority to amend the regulations 
regarding enforcement of the Act, as contained in subpart C of this 
part, to the Under Secretary for Export Administration. The Secretary of 
Commerce has also delegated concurrent authority to amend the 
regulations regarding record of insignia, as contained in subpart D of 
this part, to the Under Secretary for Intellectual Property and Director 
of the United States Patent and Trademark Office.

[65 FR 39801, June 28, 2000]

[[Page 388]]



Sec.  280.2  Definitions used in this subpart.

    In addition to the definitions provided in 15 U.S.C. 5402, the 
following definitions are applicable to this part:
    Abandonment of the Application. The application for registration of 
a trademark on the Principal Register is no longer pending at the United 
States Patent and Trademark Office.
    Act. The Fastener Quality Act (15 U.S.C. 5401 et seq., as amended by 
Pub. L. 104-113, Pub. L. 105-234, and Public Law 106-34).
    Administrative law judge (ALJ). The person authorized to conduct 
hearings in administrative enforcement proceedings brought under the 
Act.
    Assistant Secretary. The Assistant Secretary for Export Enforcement, 
Bureau of Export Administration.
    Department. The United States Department of Commerce, specifically, 
the Bureau of Export Administration, NIST and the Patent and Trademark 
Office.
    Director, NIST. The Director of the National Institute of Standards 
and Technology.
    Director, USPTO. The Under Secretary for Intellectual Property and 
Director of the United States Patent and Trademark Office.
    Fastener Insignia Register. The register of recorded fastener 
insignias maintained by the Director.
    Final decision. A decision or order assessing a civil penalty or 
otherwise disposing of or dismissing a case, which is not subject to 
further review under this part, but which is subject to collection 
proceedings or judicial review in an appropriate Federal district court 
as authorized by law.
    Initial decision. A decision of the administrative law judge which 
is subject to review by the Under Secretary for Export Administration, 
but which becomes the final decision of the Department in the absence of 
such an appeal.
    Party. The Department and any person named as a respondent under 
this part.
    Principal Register. The register of trademarks established under 15 
U.S.C. 1051.
    Respondent. Any person named as the subject of a charging letter, 
proposed charging letter, or other order proposed or issued under this 
part.
    Revisions includes changes made to existing ISO/IEC Guides or other 
documents, and redesignations of those Guides or documents.
    Under Secretary. The Under Secretary for Export Administration, 
United States Department of Commerce.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39801, 
June 28, 2000]



     Subpart B_Petitions, Affirmations, and Laboratory Accreditation

    Source: 65 FR 39801, June 28, 2000, unless otherwise noted.



Sec.  280.101  Petitions for approval of documents.

    (a) Certification. (1) A person publishing a document setting forth 
guidance or requirements for the certification of manufacturing systems 
as fastener quality assurance systems by an accredited third party may 
petition the Director, NIST, to approve such document for use as 
described in section 3(7)(B)(iii)(I) of the Act (15 U.S.C. 
5402(7)(B)(iii)(I)).
    (2) Petitions should be submitted to: FQA Document Certification, 
NIST, 100 Bureau Drive, Gaithersburg, MD 20899.
    (3) The Director, NIST, shall approve such petition if the document 
provides equal or greater rigor and reliability as compared to ISO/IEC 
Guide 62, including revisions from time to time. A petition shall 
contain sufficient information to allow the Director, NIST, to make this 
determination.
    (b) Accreditation. (1) A person publishing a document setting forth 
guidance or requirements for the approval of accreditation bodies to 
accredit third parties described in paragraph (a) of this section may 
petition the Director, NIST, to approve such document for use as 
described in section 3(7)(B)(iii)(I) of the Act (15 U.S.C. 
5402(7)(B)(iii)(I)).
    (2) Petitions should be submitted to: FQA Document Certifications, 
NIST, 100 Bureau Drive, Gaithersburg, MD 20899.
    (3) The Director, NIST, shall approve such petition if the document 
provides equal or greater rigor and reliability as

[[Page 389]]

compared to ISO/IEC Guide 61, including revisions from time to time. A 
petition shall contain sufficient information to allow the Director, 
NIST, to make this determination.
    (c) Laboratory Accreditation. (1) A person publishing a document 
setting forth guidance or requirements for the accreditation of 
laboratories may petition the Director, NIST, to approve such document 
for use as described in section 3(1)(A) of the Act (15 U.S.C. 
5402(1)(A)).
    (2) Petitions should be submitted to: FQA Document Certifications, 
NIST, 100 Bureau Drive, Gaithersburg, MD 20899.
    (3) The Director, NIST, shall approve such petition if the document 
provides equal or greater rigor and reliability as compared to ISO/IEC 
Guide 25, including revisions from time to time. A petition shall 
contain sufficient information to allow the Director, NIST, to make this 
determination.
    (d) Approval of Accreditation Bodies. (1) A person publishing a 
document setting forth guidance or requirements for the approval of 
accreditation bodies to accredit laboratories may petition the Director, 
NIST, to approve such document for use as described in section 3(1)(B) 
of the Act (15 U.S.C. 5402(1)(B)).
    (2) Petitions should be submitted to: FQA Document Certifications, 
NIST, 100 Bureau Drive, Gaithersburg, MD 20899.
    (3) The Director, NIST, shall approve such petition if the document 
provides equal or greater rigor and reliability as compared to ISO/IEC 
Guide 58, including revisions from time to time. A petition shall 
contain sufficient information to allow the Director, NIST, to make this 
determination.
    (e) Electronic copies of ISO/IEC Guides may be purchased through the 
American National Standards Institute (ANSI), Internet: http://
www.ansi.org. Copies of the relevant ISO/IEC Guides are available for 
inspection in the U.S. Department of Commerce Reading Room, 14th Street 
and Constitution Avenue, NW, Washington, DC 20230, Room B-399.



Sec.  280.102  Affirmations.

    (a)(1) An accreditation body accrediting third parties who certify 
manufacturing systems as fastener quality assurance systems as described 
in section 3(7)(B)(iii)(I) of the Act (15 U.S.C. 5402(7)(B)(iii)(I)) 
shall affirm to the Director, NIST, that it meets the requirements of 
ISO/IEC Guide 61 (or another document approved by the Director, NIST, 
under section 10(b) of the Act (15 U.S.C. 5411a(b)) and Sec.  280.101(a) 
of this part), including revisions from time to time.
    (2) An accreditation body accrediting laboratories as described in 
section 3(1)(B) of the Act (15 U.S.C. 5402(1)(B)) shall affirm to the 
Director, NIST, that it meets the requirements of ISO/IEC Guide 58 (or 
another document approved by the Director, NIST, under section 10(d) of 
the Act (15 U.S.C. 5411a(d)) and Sec.  280.101(d) of this part), 
including revisions from time to time.
    (b) An affirmation required under paragraph (a)(1) or (a)(2) of this 
section shall take the form of a self-declaration that the accreditation 
body meets the requirements of the applicable Guide, signed by an 
authorized representative of the accreditation body. No supporting 
documentation is required.
    (c) Affirmations should be submitted to: FQA Document 
Certifications, NIST, 100 Bureau Drive, Gaithersburg, MD 20899.
    (d) Any affirmation submitted in accordance with this section shall 
be considered to be a continuous affirmation that the accreditation body 
meets the requirements of the applicable Guide, unless and until the 
affirmation is withdrawn by the accreditation body.



Sec.  280.103  Laboratory accreditation.

    A laboratory may be accredited by any laboratory accreditation 
program that may be established by any entity or entities, which have 
affirmed to the Director, NIST, under Sec.  280.102 of this subpart, or 
by the National Voluntary Laboratory Accreditation Program for 
fasteners, established by the Director, NIST, under part 285 of this 
chapter.



                          Subpart C_Enforcement

    Source: 61 FR 50558, Sept. 26, 1996. Redesignated at 65 FR 39802, 
June 28, 2000.

[[Page 390]]



Sec.  280.200  Scope.

    Section 280.201 of this part specifies that failure to take any 
action required by or taking any action prohibited by this part 
constitutes a violation of this part. Section 280.202 describes the 
penalties that may be imposed for violations of this part. Sections 
280.204 through 280.222 establish the procedures for imposing 
administrative penalties for violations of this part.

[65 FR 39802, June 28, 2000]



Sec.  280.201  Violations.

    (a) Engaging in prohibited conduct. No person may engage in any 
conduct prohibited by or contrary to, or refrain from engaging in any 
action required by the Act, this part, or any order issued thereunder.
    (b) Sale of fasteners. It shall be unlawful for a manufacturer or 
distributor, in conjunction with the sale or offer for sale of fasteners 
from a single lot, to knowingly misrepresent or falsify--
    (1) The record of conformance for the lot of fasteners;
    (2) The identification, characteristics, properties, mechanical or 
performance marks, chemistry, or strength of the lot of fasteners; or
    (3) The manufacturers' insignia.
    (c) Manufacturers' insignia. Unless the specifications provide 
otherwise, fasteners that are required by the applicable consensus 
standard or standards to bear an insignia identifying their manufacturer 
shall not be offered for sale or sold in commerce unless
    (1) The fasteners bear such insignia; and
    (2) The manufacturer has complied with the insignia recordation 
requirements established under 15 U.S.C. 5407(b).

[61 FR 50558, Sept. 26, 1996, as amended at 63 FR 18275, Apr. 14, 1998; 
63 FR 34965, June 26, 1998; 63 FR 51526, Sept. 28, 1998. Redesignated 
and amended at 65 FR 39802, June 28, 2000]



Sec.  280.202  Penalties, remedies, and sanctions.

    (a) Civil remedies. The Attorney General may bring an action in an 
appropriate United States district court for declaratory and injunctive 
relief against any person who violates the Act or any regulation issued 
thereunder. Such action may not be brought more than 10 years after the 
cause of action accrues.
    (b) Civil penalties. Any person who is determined, after notice and 
opportunity for a hearing, to have violated the Act or any regulation 
issued thereunder shall be liable to the United States for a civil 
penalty of not more than $25,000 for each violation.
    (c) Criminal penalties. (1) Whoever knowingly certifies, marks, 
offers for sale, or sells a fastener in violation of the Act or a 
regulation issued thereunder shall be fined under title 18, United 
States Code, or imprisoned not more than 5 years, or both.
    (2) Whoever intentionally fails to maintain records relating to a 
fastener in violation of the Act or a regulation issued thereunder shall 
be fined under title 18, United States Code, or imprisoned not more than 
five years or both.
    (3) Whoever negligently fails to maintain records relating to a 
fastener in violation of the Act or a regulation issued thereunder shall 
be fined under title 18, United States Code, or imprisoned not more than 
two years or both.



Sec.  280.203  Administrative enforcement proceedings.

    Sections 280.204 through 280.222 set forth the procedures for 
imposing administrative penalties for violations of the Act and this 
part.

[65 FR 39802, June 28, 2000]



Sec.  280.204  Institution of administrative enforcement proceedings.

    (a) Charging letters. The Director of the Office of Export 
Enforcement (OEE) may begin administrative enforcement proceedings under 
this part by issuing a charging letter. The charging letter shall 
constitute the formal complaint and will state that there is reason to 
believe that a violation of this part has occurred. It will set forth 
the essential facts about each alleged violation, refer to the specific 
regulatory or other provisions involved, and give notice of the 
sanctions available under the Act and this part. The charging letter 
will inform the respondent that failure to answer the charges as 
provided in Sec.  280.207 of this

[[Page 391]]

part will be treated as a default under Sec.  280.208 of this part, that 
the respondent is entitled to a hearing if a written demand for one is 
requested with the answer, and that the respondent may be represented by 
counsel, or by other authorized representative. A copy of the charging 
letter shall be filed with the administrative law judge, which filing 
shall toll the running of the applicable statute of limitations. 
Charging letters may be amended or supplemented at any time before an 
answer is filed, or, with permission of the administrative law judge, 
afterwards. The Department may unilaterally withdraw charging letters at 
any time, by notifying the respondent and the administrative law judge.
    (b) Notice of issuance of charging letter instituting administrative 
enforcement proceeding. A respondent shall be notified of the issuance 
of a charging letter, or any amendment or supplement thereto:
    (1) By mailing a copy by registered or certified mail addressed to 
the respondent at the respondent's last known address;
    (2) By leaving a copy with the respondent or with an officer, a 
managing or general agent, or any other agent authorized by appointment 
or by law to receive service of process for the respondent; or
    (3) By leaving a copy with a person of suitable age and discretion 
who resides at the respondent's last known dwelling.
    (4) Delivery of a copy of the charging letter, if made in the manner 
described in paragraph (b)(2) or (3) of this section, shall be evidenced 
by a certificate of service signed by the person making such service, 
stating the method of service and the identity of the person with whom 
the charging letter was left. The certificate of service shall be filed 
with the administrative law judge.
    (c) Date. The date of service of notice of the issuance of a 
charging letter instituting an administrative enforcement proceeding, or 
service of notice of the issuance of a supplement or amendment to a 
charging letter, is the date of its delivery, or of its attempted 
delivery if delivery is refused.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



Sec.  280.205  Representation.

    A respondent individual may appear and participate in person, a 
corporation by a duly authorized officer or employee, and a partnership 
by a partner. If a respondent is represented by counsel, counsel shall 
be a member in good standing of the bar of any State, Commonwealth or 
Territory of the United States, or of the District of Columbia, or be 
licensed to practice law in the country in which counsel resides if not 
the United States. A respondent personally, or through counsel or other 
representative who has the power of attorney to represent the 
respondent, shall file a notice of appearance with the administrative 
law judge. The Department will be represented by the Office of Chief 
Counsel for Export Administration, U.S. Department of Commerce.



Sec.  280.206  Filing and service of papers other than charging letter.

    (a) Filing. All papers to be filed shall be addressed to ``FQA 
Administrative Enforcement Proceedings,'' at the address set forth in 
the charging letter, or such other place as the administrative law judge 
may designate. Filing by United States mail, first class postage 
prepaid, by express or equivalent parcel delivery service, or by hand 
delivery, is acceptable. Filing by mail from a foreign country shall be 
by airmail. In addition, the administrative law judge may authorize 
filing of papers by facsimile or other electronic means, provided that a 
hard copy of any such paper is subsequently filed. A copy of each paper 
filed shall be simultaneously served on each party.
    (b) Service. Service shall be made by personal delivery or by 
mailing one copy of each paper to each party in the proceeding. Service 
by delivery service or facsimile, in the manner set forth in paragraph 
(a) of this section, is acceptable. Service on the Department shall be 
addressed to the Chief Counsel for Export Administration, Room H-3839, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW.,

[[Page 392]]

Washington, DC 20230. Service on a respondent shall be to the address to 
which the charging letter was sent or to such other address as 
respondent may provide. When a party has appeared by counsel or other 
representative, service on counsel or other representative shall 
constitute service on that party.
    (c) Date. The date of filing or service is the day when the papers 
are deposited in the mail or are delivered in person, by delivery 
service, or by facsimile.
    (d) Certificate of service. A certificate of service signed by the 
party making service, stating the date and manner of service, shall 
accompany every paper, other than the charging letter, filed and served 
on parties.
    (e) Computing period of time. In computing any period of time 
prescribed or allowed by this part or by order of the administrative law 
judge or the Under Secretary, the day of the act, event, or default from 
which the designated period of time begins to run is not to be included. 
The last day of the period so computed is to be included unless it is a 
Saturday, a Sunday, or a legal holiday (as defined in Rule 6(a) of the 
Federal Rules of Civil Procedure), in which case the period runs until 
the end of the next day which is neither a Saturday, a Sunday, nor a 
legal holiday. Intermediate Saturdays, Sundays, and legal holidays are 
excluded from the computation when the period of time prescribed or 
allowed is seven days or less.



Sec.  280.207  Answer and demand for hearing.

    (a) When to answer. The respondent must answer the charging letter 
within 30 days after being served with notice of the issuance of a 
charging letter instituting an administrative enforcement proceeding, or 
within 30 days of notice of any supplement or amendment to a charging 
letter, unless time is extended under Sec.  280.217 of this part.
    (b) Contents of answer. The answer must be responsive to the 
charging letter and must fully set forth the nature of the respondent's 
defense or defenses. The answer must admit or deny specifically each 
separate allegation of the charging letter; if the respondent is without 
knowledge, the answer must so state and will operate as a denial. 
Failure to deny or controvert a particular allegation will be deemed an 
admission of that allegation. The answer must also set forth any 
additional or new matter the respondent believes supports a defense or 
claim of mitigation. Any defense or partial defense not specifically set 
forth in the answer shall be deemed waived, and evidence thereon may be 
refused, except for good cause shown.
    (c) Demand for hearing. If the respondent desires a hearing, a 
written demand for one must be submitted with the answer. Any demand by 
the Department for a hearing must be filed with the administrative law 
judge within 30 days after service of the answer. Failure to make a 
timely written demand for a hearing shall be deemed a waiver of the 
party's right to a hearing, except for good cause shown. If no party 
demands a hearing, the matter will go forward in accordance with the 
procedures set forth in Sec.  280.216 of this part.
    (d) English language required. The answer, all other papers, and all 
documentary evidence must be submitted in English, or translations into 
English must be filed and served at the same time.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



Sec.  280.208  Default.

    (a) General. Failure of the respondent to file an answer within the 
time provided constitutes a waiver of the respondent's right to appear 
and contest the allegations in the charging letter. In such event, the 
administrative law judge, on the Department's motion and without further 
notice to the respondent, shall find the facts to be as alleged in the 
charging letter and render an initial decision containing findings of 
fact and appropriate conclusions of law and issue an initial decision 
and order imposing appropriate sanctions. The decision and order may be 
appealed to the Under Secretary in accordance with the applicable 
procedures set forth in Sec.  280.222 of this part.
    (b) Petition to set aside default--(1) Procedure. Upon petition 
filed by a respondent against whom a default order

[[Page 393]]

has been issued, which petition is accompanied by an answer meeting the 
requirements of 280.207(b) of this part, the Under Secretary may, after 
giving all parties an opportunity to comment, and for good cause shown, 
set aside the default and vacate the order entered thereon and remand 
the matter to the administrative law judge for further proceedings.
    (2) Time limits. A petition under this section must be made within 
one year of the date of entry of the order which the petition seeks to 
have vacated.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
39803, June 28, 2000]



Sec.  280.209  Summary decision.

    At any time after a proceeding has been initiated, a party may move 
for a summary decision disposing of some or all of the issues. The 
administrative law judge may render an initial decision and issue an 
order if the entire record shows, as to the issue(s) under 
consideration:
    (a) That there is no genuine issue as to any material fact; and
    (b) That the moving party is entitled to a summary decision as a 
matter of law.



Sec.  280.210  Discovery.

    (a) General. The parties are encouraged to engage in voluntary 
discovery regarding any matter, not privileged, which is relevant to the 
subject matter of the pending proceeding. The provisions of the Federal 
Rules of Civil Procedure relating to discovery apply to the extent 
consistent with this part and except as otherwise provided by the 
administrative law judge or by waiver or agreement of the parties. The 
administrative law judge may make any order which justice requires to 
protect a party or person from annoyance, embarrassment, oppression, or 
undue burden or expense. These orders may include limitations on the 
scope, method, time and place of discovery, and provisions for 
protecting the confidentiality of classified or otherwise sensitive 
information.
    (b) Interrogatories and requests for admission or production of 
documents. A party may serve on any party interrogatories, requests for 
admission, or requests for production of documents for inspection and 
copying, and a party concerned may apply to the administrative law judge 
for such enforcement or protective order as that party deems warranted 
with respect to such discovery. The service of a discovery request shall 
be made at least 20 days before the scheduled date of the hearing unless 
the administrative law judge specifies a shorter time period. Copies of 
interrogatories, requests for admission and requests for production of 
documents and responses thereto shall be served on all parties, and a 
copy of the certificate of service shall be filed with the 
administrative law judge. Matters of fact or law of which admission is 
requested shall be deemed admitted unless, within a period designated in 
the request (at least 10 days after service, or within such additional 
time as the administrative law judge may allow), the party to whom the 
request is directed serves upon the requesting party a sworn statement 
either denying specifically the matters of which admission is requested 
or setting forth in detail the reasons why the party to whom the request 
is directed cannot truthfully either admit or deny such matters.
    (c) Depositions. Upon application of a party and for good cause 
shown, the administrative law judge may order the taking of the 
testimony of any person by deposition and the production of specified 
documents or materials by the person at the deposition. The application 
shall state the purpose of the deposition and set forth the facts sought 
to be established through the deposition.
    (d) Enforcement. The administrative law judge may order a party to 
answer designated questions, to produce specified documents or things or 
to take any other action in response to a proper discovery request. If a 
party does not comply with such an order, the administrative law judge 
may make a determination or enter any order in the proceeding as the ALJ 
deems reasonable and appropriate. The ALJ may strike related charges or 
defenses in whole or in part or may take particular facts relating to 
the discovery request to which the party failed or refused to respond as 
being established for purposes of the proceeding in accordance

[[Page 394]]

with the contentions of the party seeking discovery. In addition, 
enforcement by a district court of the United States may be sought under 
15 U.S.C. 5408(b)(6).

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



Sec.  280.211  Subpoenas.

    (a) Issuance. Upon the application of any party, supported by a 
satisfactory showing that there is substantial reason to believe that 
the evidence would not otherwise be available, the administrative law 
judge may issue subpoenas requiring the attendance and testimony of 
witnesses and the production of such books, records or other documentary 
or physical evidence for the purpose of the hearing, as the ALJ deems 
relevant and material to the proceedings, and reasonable in scope. 
Witnesses summoned shall be paid the same fees and mileage that are paid 
to witnesses in the courts of the United States. In case of contempt or 
refusal to obey a subpoena served upon any person pursuant to this 
paragraph, the district court of the United States for any district in 
which such person is found, resides, or transacts business, upon 
application by the United States and after notice to such person, shall 
have jurisdiction to issue an order requiring such person to appear and 
give testimony before the administrative law judge or to appear and 
produce documents before the administrative law judge, or both, and any 
failure to obey such order of the court may be punished by such court as 
contempt thereof.
    (b) Service. Subpoenas issued by the administrative law judge may be 
served in any of the methods set forth in Sec.  280.206(b) of this part.
    (c) Timing. Applications for subpoenas must be submitted at least 10 
days before the scheduled hearing or deposition, unless the 
administrative law judge determines, for good cause shown, that 
extraordinary circumstances warrant a shorter time.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



Sec.  280.212  Matter protected against disclosure.

    (a) Protective measures. The administrative law judge may limit 
discovery or introduction of evidence or issue such protective or other 
orders as in the ALJ's judgment may be needed to prevent undue 
disclosure of classified or sensitive documents or information. Where 
the administrative law judge determines that documents containing the 
classified or sensitive matter need to be made available to a party to 
avoid prejudice, the ALJ may direct that an unclassified and/or 
nonsensitive summary or extract of the documents be prepared. The 
administrative law judge may compare the extract or summary with the 
original to ensure that it is supported by the source document and that 
it omits only so much as must remain undisclosed. The summary or extract 
may be admitted as evidence in the record.
    (b) Arrangements for access. If the administrative law judge 
determines that this procedure is unsatisfactory and that classified or 
otherwise sensitive matter must form part of the record in order to 
avoid prejudice to a party, the administrative law judge may provide the 
parties an opportunity to make arrangements that permit a party or a 
representative to have access to such matter without compromising 
sensitive information. Such arrangements may include obtaining security 
clearances or giving counsel for a party access to sensitive information 
and documents subject to assurances against further disclosure, 
including a protective order, if necessary.



Sec.  280.213  Prehearing conference.

    (a) The administrative law judge, on his or her own motion or on 
request of a party, may direct the parties to participate in a 
prehearing conference, either in person or by telephone, to consider:
    (1) Simplification of issues;
    (2) The necessity or desirability of amendments to pleadings;
    (3) Obtaining stipulations of fact and of documents to avoid 
unnecessary proof; or
    (4) Such other matters as may expedite the disposition of the 
proceedings.

[[Page 395]]

    (b) The administrative law judge may order the conference 
proceedings to be recorded electronically or taken by a reporter, 
transcribed and filed with the ALJ.
    (c) If a prehearing conference is impracticable, the administrative 
law judge may direct the parties to correspond with the ALJ to achieve 
the purposes of such a conference.
    (d) The administrative law judge will prepare a summary of any 
actions agreed on or taken pursuant to this section. The summary will 
include any written stipulations or agreements made by the parties.



Sec.  280.214  Hearings.

    (a) Scheduling. The administrative law judge, by agreement with the 
parties or upon notice to all parties of not less than 30 days, will 
schedule a hearing. All hearings will be held in Washington, DC., unless 
the administrative law judge determines, for good cause shown, that 
another location would better serve the interests of justice.
    (b) Hearing procedure. Hearings will be conducted in a fair and 
impartial manner by the administrative law judge, who may limit 
attendance at any hearing or portion thereof to the parties, their 
representatives and witnesses if the administrative law judge deems this 
necessary or advisable in order to protect sensitive matter (see Sec.  
280.212 of this part) from improper disclosure. The rules of evidence 
prevailing in courts of law do not apply, and all evidentiary material 
deemed by the administrative law judge to be relevant and material to 
the proceeding and not unduly repetitious will be received and given 
appropriate weight.
    (c) Testimony and record. Witnesses will testify under oath or 
affirmation. A verbatim record of the hearing and of any other oral 
proceedings will be taken by reporter or by electronic recording, 
transcribed and filed with the administrative law judge. A respondent 
may examine the transcript and may obtain a copy by paying any 
applicable costs. Upon such terms as the administrative law judge deems 
just, the ALJ may direct that the testimony of any person be taken by 
deposition and may admit an affidavit or declaration as evidence, 
provided that any affidavits or declarations have been filed and served 
on the parties sufficiently in advance of the hearing to permit a party 
to file and serve an objection thereto on the grounds that it is 
necessary that the affiant or declarant testify at the hearing and be 
subject to cross-examination.
    (d) Failure to appear. If a party fails to appear in person or by 
counsel at a scheduled hearing, the hearing may nevertheless proceed, 
and that party's failure to appear will not affect the validity of the 
hearing or any proceedings or action taken thereafter.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



Sec.  280.215  Interlocutory review of rulings.

    (a) At the request of a party, or on the administrative law judge's 
own initiative, the administrative law judge may certify to the Under 
Secretary for review a ruling that does not finally dispose of a 
proceeding, if the administrative law judge determines that immediate 
review may hasten or facilitate the final disposition of the matter.
    (b) Upon certification to the Under Secretary of the interlocutory 
ruling for review, the parties will have 10 days to file and serve 
briefs stating their positions, and five days to file and serve replies, 
following which the Under Secretary will decide the matter promptly.



Sec.  280.216  Proceeding without a hearing.

    If the parties have waived a hearing, the case will be decided on 
the record by the administrative law judge. Proceeding without a hearing 
does not relieve the parties from the necessity of proving the facts 
supporting their charges or defenses. Affidavits or declarations, 
depositions, admissions, answers to interrogatories and stipulations may 
supplement other documentary evidence in the record. The administrative 
law judge will give each party reasonable opportunity to file rebuttal 
evidence.



Sec.  280.217  Procedural stipulations; extension of time.

    (a) Procedural stipulations. Unless otherwise ordered, a written 
stipulation agreed to by all parties and filed with

[[Page 396]]

the administrative law judge will modify any procedures established by 
this part.
    (b) Extension of time. (1) The parties may extend any applicable 
time limitation, by stipulation filed with the administrative law judge 
before the time limitation expires.
    (2) The administrative law judge may, on the judge's own initiative 
or upon application by any party, either before or after the expiration 
of any applicable time limitation, extend the time within which to file 
and serve an answer to a charging letter or do any other act required by 
this part.



Sec.  280.218  Decision of the administrative law judge.

    (a) Predecisional matters. Except for default proceedings under 
Sec.  280.208 of this part, the administrative law judge will give the 
parties reasonable opportunity to submit the following, which will be 
made a part of the record:
    (1) Exceptions to any ruling by the judge or to the admissibility of 
evidence proffered at the hearing;
    (2) Proposed findings of fact and conclusions of law;
    (3) Supporting legal arguments for the exceptions and proposed 
findings and conclusions submitted; and
    (4) A proposed order.
    (b) Decision and order. After considering the entire record in the 
proceeding, the administrative law judge will issue a written initial 
decision. The decision will include findings of fact, conclusions of 
law, and findings as to whether there has been a violation of the Act, 
this part, or any order issued thereunder. If the administrative law 
judge finds that the evidence of record is insufficient to sustain a 
finding that a violation has occurred with respect to one or more 
charges, the ALJ shall order dismissal of the charges in whole or in 
part, as appropriate. If the administrative law judge finds that one or 
more violations have been committed, the ALJ may issue an order imposing 
administrative sanctions, as provided in this part. The decision and 
order shall be served on each party, and shall become effective as the 
final decision of the Department 30 days after service, unless an appeal 
is filed in accordance with Sec.  280.222 of this part. In determining 
the amount of any civil penalty the ALJ shall consider the nature, 
circumstances and gravity of the violation and, with respect to the 
person found to have committed the violation, the degree of culpability, 
any history of prior violations, the effect on ability to continue to do 
business, any good faith attempt to achieve compliance, ability to pay 
the penalty, and such other matters as justice may require.
    (c) Suspension of sanctions. Any order imposing administrative 
sanctions may provide for the suspension of the sanction imposed, in 
whole or in part and on such terms of probation or other conditions as 
the administrative law judge or the Under Secretary may specify. Any 
suspension order may be modified or revoked by the signing official upon 
application by the Department showing a violation of the probationary 
terms or other conditions, after service on the respondent of notice of 
the application in accordance with the service provisions of Sec.  
280.206 of this part, and with such opportunity for response as the 
responsible signing official in his/her discretion may allow. A copy of 
any order modifying or revoking the suspension shall also be served on 
the respondent in accordance with the provisions of Sec.  280.607 of 
this part.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
39803, June 28, 2000]



Sec.  280.219  Settlement.

    (a) Cases may be settled before service of a charging letter. In 
cases in which settlement is reached before service of a charging 
letter, a proposed charging letter will be prepared, and a settlement 
proposal consisting of a settlement agreement and order will be 
submitted to the Assistant Secretary for approval and signature. If the 
Assistant Secretary does not approve the proposal, he/she will notify 
the parties and the case will proceed as though no settlement proposal 
had been made. If the Assistant Secretary approves the proposal, he/she 
will issue an appropriate order, and no action will be required by the 
administrative law judge.
    (b) Cases may also be settled after service of a charging letter. 
(1) If the case is pending before the administrative law

[[Page 397]]

judge, the ALJ shall stay the proceedings for a reasonable period of 
time, usually not to exceed 30 days, upon notification by the parties 
that they have entered into good faith settlement negotiations. The 
administrative law judge may, in his/her discretion, grant additional 
stays. If settlement is reached, a proposal will be submitted to the 
Assistant Secretary for approval and signature. If the Assistant 
Secretary approves the proposal, he/she will issue an appropriate order, 
and notify the administrative law judge that the case is withdrawn from 
adjudication. If the Assistant Secretary does not approve the proposal, 
he/she will notify the parties and the case will proceed to adjudication 
by the administrative law judge as though no settlement proposal had 
been made.
    (2) If the case is pending before the Under Secretary under Sec.  
280.222 of this part, the parties may submit a settlement proposal to 
the Under Secretary for approval and signature. If the Under Secretary 
approves the proposal, he/she will issue an appropriate order. If the 
Under Secretary does not approve the proposal, the case will proceed to 
final decision in accordance with Section 280.623 of this part, as 
appropriate.
    (c) Any order disposing of a case by settlement may suspend the 
administrative sanction imposed, in whole or in part, on such terms of 
probation or other conditions as the signing official may specify. Any 
such suspension may be modified or revoked by the signing official, in 
accordance with the procedures set forth in Sec.  280.218(c) of this 
part.
    (d) Any respondent who agrees to an order imposing any 
administrative sanction does so solely for the purpose of resolving the 
claims in the administrative enforcement proceeding brought under this 
part. This reflects the fact that the Department has neither the 
authority nor the responsibility for instituting, conducting, settling, 
or otherwise disposing of criminal proceedings. That authority and 
responsibility is vested in the Attorney General and the Department of 
Justice.
    (e) Cases that are settled may not be reopened or appealed.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
39803, June 28, 2000]



Sec.  280.220  Reopening.

    The respondent may petition the administrative law judge within one 
year of the date of the final decision, except where the decision arises 
from a default judgment or from a settlement, to reopen an 
administrative enforcement proceeding to receive any relevant and 
material evidence which was unknown or unobtainable at the time the 
proceeding was held. The petition must include a summary of such 
evidence, the reasons why it is deemed relevant and material, and the 
reasons why it could not have been presented at the time the proceedings 
were held. The administrative law judge will grant or deny the petition 
after providing other parties reasonable opportunity to comment. If the 
proceeding is reopened, the administrative law judge may make such 
arrangements as the ALJ deems appropriate for receiving the new evidence 
and completing the record. The administrative law judge will then issue 
a new initial decision and order, and the case will proceed to final 
decision and order in accordance with Sec.  280.222 of this part.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
39803, June 28, 2000]



Sec.  280.221  Record for decision and availability of documents.

    (a) General. The transcript of hearings, exhibits, rulings, orders, 
all papers and requests filed in the proceedings and, for purposes of 
any appeal under Sec.  280.222 of this part, the decision of the 
administrative law judge and such submissions as are provided for by 
Sec.  280.623 of this part, will constitute the record and the exclusive 
basis for decision. When a case is settled after the service of a 
charging letter, the record will consist of any and all of the 
foregoing, as well as the settlement agreement and the order. When a 
case is settled before service of a charging letter, the record will 
consist of the proposed charging letter, the settlement agreement and 
the order.

[[Page 398]]

    (b) Restricted access. On the administrative law judge's own motion, 
or on the motion of any party, the administrative law judge may direct 
that there be a restricted access portion of the record for any material 
in the record to which public access is restricted by law or by the 
terms of a protective order entered in the proceedings. A party seeking 
to restrict access to any portion of the record is responsible for 
submitting, at the time specified in paragraph (c)(2) of this section, a 
version of the document proposed for public availability that reflects 
the requested deletion. The restricted access portion of the record will 
be placed in a separate file and the file will be clearly marked to 
avoid improper disclosure and to identify it as a portion of the 
official record in the proceedings. The administrative law judge may act 
at any time to permit material that becomes declassified or unrestricted 
through passage of time to be transferred to the unrestricted access 
portion of the record.
    (c) Availability of documents--(1) Scope. All charging letters, 
answers, initial decisions, and orders disposing of a case will be made 
available for public inspection in the BXA Freedom of Information 
Records Inspection Facility, U.S. Department of Commerce, Room H-6624, 
14th Street and Pennsylvania Avenue, NW, Washington, DC 20230. The 
complete record for decision, as defined in paragraphs (a) and (b) of 
this section will be made available on request.
    (2) Timing. Documents are available immediately upon filing, except 
for any portion of the record for which a request for segregation is 
made. Parties that seek to restrict access to any portion of the record 
under paragraph (b) of this section must make such a request, together 
with the reasons supporting the claim of confidentiality, simultaneously 
with the submission of material for the record.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
39803, June 28, 2000]



Sec.  280.222  Appeals.

    (a) Grounds. A party may appeal to the Under Secretary from an order 
disposing of a proceeding or an order denying a petition to set aside a 
default or a petition for reopening, on the grounds:
    (1) That a necessary finding of fact is omitted, erroneous or 
unsupported by substantial evidence of record;
    (2) That a necessary legal conclusion or finding is contrary to law;
    (3) That prejudicial procedural error occurred; or
    (4) That the decision or the extent of sanctions is arbitrary, 
capricious or an abuse of discretion. The appeal must specify the 
grounds on which the appeal is based and the provisions of the order 
from which the appeal is taken.
    (b) Filing of appeal. An appeal from an order must be filed with the 
Office of the Under Secretary for Export Administration, Bureau of 
Export Administration, U.S. Department of Commerce, Room H-3898, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230, within 30 
days after service of the order appealed from. If the Under Secretary 
cannot act on an appeal for any reason, the Under Secretary will 
designate another Department of Commerce official to receive and act on 
the appeal.
    (c) Effect of appeal. The filing of an appeal shall not stay the 
operation of any order, unless the order by its express terms so 
provides or unless the Under Secretary, upon application by a party and 
with opportunity for response, grants a stay.
    (d) Appeal procedure. The Under Secretary normally will not hold 
hearings or entertain oral argument on appeals. A full written statement 
in support of the appeal must be filed with the appeal and be 
simultaneously served on all parties, who shall have 30 days from 
service to file a reply. At his/her discretion, the Under Secretary may 
accept new submissions, but will not ordinarily accept those submissions 
filed more than 30 days after the filing of the reply to the appellant's 
first submission.
    (e) Decisions. The decision will be in writing and will be 
accompanied by an order signed by the Under Secretary giving effect to 
the decision. The order may either dispose of the case by affirming, 
modifying or reversing the order of the administrative law judge

[[Page 399]]

or may refer the case back to the administrative law judge for further 
proceedings.
    (f) Delivery. The final decision and implementing order shall be 
served on the parties and will be publicly available in accordance with 
Sec.  280.221 of this part.
    (g) Judicial review. The charged party may appeal the Under 
Secretary's written order within 30 days to the appropriate United 
States District Court pursuant to section 9(b)(3) of the Act (15 U.S.C. 
5408(b)(3)) by filing a notice of appeal in such court within 30 days 
from the date of such order and by simultaneously sending a copy of such 
notice by certified mail to the Chief Counsel for Export Administration, 
Room H-3839, U.S. Department of Commerce, 14th Street and Constitution 
Avenue, NW., Washington, DC 20230. The findings and order of the Under 
Secretary shall be set aside by such court if they are found to be 
unsupported by substantial evidence, as provided in section 706(2) of 
title 5 United States Code.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39802, 
June 28, 2000]



                     Subpart D_Recordal of Insignia



Sec.  280.300  Recorded insignia required prior to offer for sale.

    Unless the specifications provide otherwise, if a fastener is 
required by the applicable consensus standard(s) to bear an insignia 
identifying its manufacturer, the manufacturer must:
    (a) Record the insignia with the U.S. Patent and Trademark Office 
prior to any sale or offer for sale of the fastener; and
    (b) Apply the insignia to any fastener that is sold or offered for 
sale. The insignia must be readable, and must be applied using the 
method for applying a permanent insignia that is provided for in the 
applicable consensus standard(s), or, if the applicable consensus 
standard(s) do(es) not specify a method for applying a permanent 
insignia, through any means of imprinting a permanent impression.

[65 FR 39803, June 28, 2000]

                         The Written Application



Sec.  280.310  Application for insignia.

    (a) Each manufacturer must submit a written application for recordal 
of an insignia on the Fastener Insignia Register along with the 
prescribed fee. The application must be in a form prescribed by the 
Director, USPTO.
    (b) The written application must be in the English language and must 
include the following:
    (1) The name of the manufacturer;
    (2) The address of the manufacturer;
    (3) The entity, domicile, and state of incorporation, if applicable, 
of the manufacturer;
    (4) Either:
    (i) A request for recordal and issuance of a unique alphanumeric 
designation by the Director, USPTO, or
    (ii) A request for recordal of a trademark, which is the subject of 
either a duly filed application or a registration for fasteners in the 
name of the manufacturer in the U.S. Patent and Trademark Office on the 
Principal Register, indicating the application serial number or 
registration number and accompanied by a copy of the drawing that was 
included with the application for trademark registration, or a copy of 
the registration;
    (5) A statement that the manufacturer will comply with the 
applicable provisions of the Fastener Quality Act;
    (6) A statement that the applicant for recordal is a 
``manufacturer'' as that term is defined in 15 U.S.C. 5402;
    (7) A statement that the person signing the application on behalf of 
the manufacturer has personal knowledge of the facts relevant to the 
application and that the person possesses the authority to act on behalf 
of the manufacturer;
    (8) A verification stating that the person signing declares under 
penalty of perjury under the laws of the United States of America that 
the information and statements included in the application are true and 
correct; and
    (9) The application fee.
    (c) A manufacturer may designate only one trademark for recordal on 
the Fastener Insignia Register in a single application. The trademark 
application or registration that forms the basis for the fastener 
recordal must be in active

[[Page 400]]

status, that is, a pending application or a registration which is not 
expired, or canceled, at the time of the application for recordal.
    (d) Applications and other documents should be addressed to: Box 
Fastener, Director, United States Patent and Trademark Office, 
Washington, DC 20231.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
June 28, 2000]



Sec.  280.311  Review of the application.

    The Director, USPTO, will review the application for compliance with 
Sec.  280.310. If the application does not contain one or more of the 
elements required by Sec.  280.310, the Director, USPTO, will not issue 
a certificate of recordal, and will return the papers and fees. The 
Director, USPTO, will notify the applicant for recordal of any defect in 
the application. Applications for recordal of an insignia may be re-
submitted to the Director, USPTO, at any time.

[65 FR 39803, June 28, 2000]



Sec.  280.312  Certificate of recordal.

    (a) If the application complies with the requirements of Sec.  
280.310, the Director, USPTO, shall accept the application and issue a 
certificate of recordal. Such certificate shall be issued in the name of 
the United States of America, under the seal of the United States Patent 
and Trademark Office, and a record shall be kept in the United States 
Patent and Trademark Office. The certificate of recordal shall display 
the recorded insignia of the manufacturer, and state the name, address, 
legal entity and domicile of the manufacturer, as well as the date of 
issuance of such certificate.
    (b) Certificates that were issued prior to June 8, 1999, shall 
remain in active status and may be maintained in accordance with the 
provisions of Sec.  280.320 of this subpart, but only if:
    (1) The certificate is held by a manufacturer, and
    (2) The fasteners associated with the certificate are fasteners that 
must bear an insignia pursuant to 15 U.S.C. 5407.

[65 FR 39803, June 28, 2000]



Sec.  280.313  Recordal of additional insignia.

    (a) A manufacturer to whom the Director, USPTO, has issued an 
alphanumeric designation may apply for recordal of its trademark for 
fasteners if the trademark is the subject of a duly filed application or 
is registered in the United States Patent and Trademark Office on the 
Principal Register. Upon recordal, either the alphanumeric designation 
or the trademark, or both, may be used as recorded insignias.
    (b) A manufacturer for whom the Director, USPTO, has recorded a 
trademark as its fastener insignia may apply for issuance and recordal 
of an alphanumeric designation as a fastener insignia. Upon recordal, 
either the alphanumeric designation or the trademark, or both, may be 
used as recorded insignias.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
June 28, 2000]

                        Post-Recordal Maintenance



Sec.  280.320  Maintenance of the certificate of recordal.

    (a) Certificates of recordal remain in an active status for five 
years and may be maintained in an active status for subsequent five-year 
periods running consecutively from the date of issuance of the 
certificate of recordal upon compliance with the requirements of 
paragraph (c) of this section.
    (b) Maintenance applications shall be required only if the holder of 
the certificate of recordal is a manufacturer at the time the 
maintenance application is required.
    (c) Certificates of recordal will be designated as inactive unless, 
within six months prior to the expiration of each five-year period 
running consecutively from the date of issuance, the certificate holder 
files the prescribed maintenance fee and the maintenance application. 
The maintenance application must be in the English language and must 
include the following:
    (1) The name of the manufacturer;
    (2) The address of the manufacturer;
    (3) The entity, domicile, and state of incorporation, if applicable, 
of the manufacturer;
    (4) A copy of manufacturer's certificate of recordal;

[[Page 401]]

    (5) A statement that the manufacturer will comply with the 
applicable provisions of the Fastener Quality Act;
    (6) A statement that the applicant for recordal is a 
``manufacturer'' as that term is defined in 15 U.S.C. 5402;
    (7) A statement that the person signing the application on behalf of 
the manufacturer has knowledge of the facts relevant to the application 
and that the person possesses the authority to act on behalf of the 
manufacturer;
    (8) A verification stating that the person signing declares under 
penalty of perjury under the laws of the United States of America that 
the information and statements included in the application are true and 
correct; and
    (9) The maintenance application fee.
    (d) Where no maintenance application is timely filed, a certificate 
of recordal will be designated inactive. However, such certificate may 
be designated active if the certificate holder files the prescribed 
maintenance fee and application and the additional surcharge within six 
months following the expiration of the certificate of recordal.
    (e) After the six-month period following the expiration of the 
certificate of recordal, the certificate of recordal shall be deemed 
active only if the certificate holder files a new application for 
recordal with the prescribed fee for obtaining a fastener insignia and 
attaches a copy of the expired certificate of recordal.
    (f) A separate maintenance application and fee must be filed and 
paid for each recorded insignia.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
39804, June 28, 2000]



Sec.  280.321  Notification of changes of address.

    The applicant for recordal or the holder of a certificate of 
recordal shall notify the Director, USPTO, of any change of address or 
change of name no later than six months after the change. The holder 
must do so whether the certificate of recordal is in an active or 
inactive status.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
39804, June 28, 2000]



Sec.  280.322  Transfer or amendment of the certificate of recordal.

    (a) The certificate of recordal cannot be transferred or assigned.
    (b) The certificate of recordal may be amended only to show a change 
of name or change of address.

[61 FR 50558, Sept. 26, 1996. Redesignated at 65 FR 39803, June 28, 
2000]



Sec.  280.323  Transfer or assignment of the trademark registration or recorded insignia.

    (a) A trademark application or registration which forms the basis of 
a fastener recordal may be transferred or assigned. Any transfer or 
assignment of such an application or registration must be recorded in 
the United States Patent and Trademark Office within three months of the 
transfer or assignment. A copy of such transfer or assignment must also 
be sent to: Box Fastener, Director, United States Patent and Trademark 
Office, Washington, DC 20231.
    (b) Upon transfer or assignment of a trademark application or 
registration which forms the basis of a certificate of recordal, the 
Director, USPTO, shall designate the certificate of recordal as 
inactive. The certificate of recordal shall be deemed inactive as of the 
effective date of the transfer or assignment. Certificates of recordal 
designated inactive due to transfer or assignment of a trademark 
application or registration cannot be reactivated.
    (c) An assigned trademark application or registration may form the 
basis for a new application for recordal of a fastener insignia.
    (d) A fastener insignia consisting of an alphanumeric designation 
issued by the Director, USPTO, can be transferred or assigned.
    (e) Upon transfer or assignment of an alphanumeric designation, the 
Director, USPTO, shall designate such alphanumeric designation as 
inactive. The alphanumeric designation shall be deemed inactive as of 
the effective date of the transfer or assignment. Alphanumeric 
designations which are designated inactive due to transfer or assignment 
may be reactivated upon application by the assignee of such alphanumeric 
designation. Such application must meet all the requirements of

[[Page 402]]

Sec.  280.310 and must include a copy of the pertinent portions of the 
document assigning rights in the alphanumeric designation. Such 
application must be filed within six months of the date of assignment.
    (f) An alphanumeric designation that is reactivated after it has 
been transferred or assigned shall remain in active status until the 
expiration of the five year period that began upon the issuance of the 
alphanumeric designation to its original owner.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
39804, June 28, 2000]



Sec.  280.324  Change in status of trademark registration or amendment of 
the trademark.

    (a) The Director, USPTO, shall designate the certificate of recordal 
as inactive, upon:
    (1) Issuance of a final decision on appeal which refuses 
registration of the application which formed the basis for the 
certificate of recordal;
    (2) Abandonment of the application which formed the basis for the 
certificate of recordal;
    (3) Cancellation or expiration of the trademark registration which 
formed the basis of the certificate of recordal; or
    (4) An amendment of the mark in a trademark application or 
registration that forms the basis for a certificate of recordal. The 
certificate of recordal shall become inactive as of the date the 
amendment is filed. A new application for recordal of the amended 
trademark application or registration may be submitted to the 
Commissioner at any time.
    (b) Certificates of recordal designated inactive due to 
cancellation, expiration, or amendment of the trademark registration, or 
abandonment or amendment of the trademark application, cannot be 
reactivated.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
39804, June 28, 2000]



Sec.  280.325  Cumulative listing of recordal information.

    The Director, USPTO, shall maintain a record of the names, current 
addresses, and legal entities of all recorded manufacturers and their 
recorded insignia.

[65 FR 39804, June 28, 2000]



Sec.  280.326  Records and files of the United States Patent and Trademark 
Office.

    The records relating to fastener insignia shall be open to public 
inspection. Copies of any such records may be obtained upon request and 
payment of the fee set by the Director, USPTO.

[61 FR 50558, Sept. 26, 1996. Redesignated and amended at 65 FR 39803, 
39804, June 28, 2000]



PART 285_NATIONAL VOLUNTARY LABORATORY ACCREDITATION PROGRAM--Table of Contents




Sec.
285.1 Purpose.
285.2 Confidentiality.
285.3 Referencing NVLAP accreditation.
285.4 Establishment of laboratory accreditation programs (LAPs) within 
          NVLAP.
285.5 Termination of a LAP.
285.6 Application for accreditation.
285.7 Assessment.
285.8 Proficiency testing.
285.9 Granting accreditation.
285.10 Renewal of accreditation.
285.11 Changes to scopes of accreditation.
285.12 Monitoring visits.
285.13 Denial, suspension, revocation or termination of accreditation.
285.14 Criteria for accreditation.
285.15 Obtaining documents.

    Authority: 15 U.S.C. 272 et seq.

    Source: 66 FR 29221, May 30, 2001, unless otherwise noted.



Sec.  285.1  Purpose.

    The purpose of part 285 is to set out procedures and general 
requirements under which the National Voluntary Laboratory Accreditation 
Program (NVLAP) operates as an unbiased third party to accredit both 
testing and calibration laboratories. Supplementary technical and 
administrative requirements are provided in supporting handbooks and 
documents as needed, depending on the criteria established for specific 
Laboratory Accreditation Programs (LAPs)

[[Page 403]]



Sec.  285.2  Confidentiality.

    To the extent permitted by applicable laws, NVLAP will protect the 
confidentiality of all information obtained relating to the application, 
on-site assessment, proficiency testing, evaluation, and accreditation 
of laboratories.



Sec.  285.3  Referencing NVLAP accreditation.

    The term NVLAP (represented by the NVLAP logo) is a federally 
registered certification mark of the National Institute of Standards and 
Technology and the federal government, who retain exclusive rights to 
control the use thereof. Permission to use the term and/or logo is 
granted to NVLAP-accredited laboratories for the limited purposes of 
announcing their accredited status, and for use on reports that describe 
only testing and calibration within the scope of accreditation. NIST 
reserves the right to control the quality of the use of the term NVLAP 
and of the logo itself.



Sec.  285.4  Establishment of laboratory accreditation programs (LAPs) within NVLAP.

    NVLAP establishes LAPs in response to legislative actions or to 
requests from private sector entities and government agencies. For 
legislatively mandated LAPs, NVLAP shall establish the LAP. For requests 
from private sector entities and government agencies, the Chief of NVLAP 
shall analyze each request, and after consultation with interested 
parties through public workshops and other means shall establish the 
requested LAP if the Chief of NVLAP determines there is need for the 
requested LAP.



Sec.  285.5  Termination of a LAP.

    (a) The Chief of NVLAP may terminate a LAP when he/she determines 
that a need no longer exists to accredit laboratories for the services 
covered under the scope of the LAP. In the event that the Chief of NVLAP 
proposes to terminate a LAP, a notice will be published in the Federal 
Register setting forth the basis for that determination.
    (b) When a LAP is terminated, NVLAP will no longer grant or renew 
accreditations following the effective date of termination. 
Accreditations previously granted shall remain effective until their 
expiration date unless terminated voluntarily by the laboratory or 
revoked by NVLAP. Technical expertise will be maintained by NVLAP while 
any accreditation remains effective.



Sec.  285.6  Application for accreditation.

    A laboratory may apply for accreditation in any of the established 
LAPs. The applicant laboratory shall provide a completed application to 
NVLAP, pay all required fees and agree to certain conditions as set 
forth in the NVLAP Application for Accreditation, and provide a quality 
manual to NVLAP (or a designated NVLAP assessor) prior to the assessment 
process.



Sec.  285.7  Assessment.

    (a) Frequency and scheduling. Before initial accreditation, during 
the first renewal year, and every two years thereafter, an on-site 
assessment of each laboratory is conducted to determine compliance with 
the NVLAP criteria.
    (b) Assessors. NVLAP shall select qualified assessors to evaluate 
all information collected from an applicant laboratory pursuant to Sec.  
285.6 of this part and to conduct the assessment on its behalf at the 
laboratory and any other sites where activities to be covered by the 
accreditation are performed.
    (c) Conduct of assessment. (1) Assessors use checklists provided by 
NVLAP so that each laboratory receives an assessment comparable to that 
received by others.
    (2) During the assessment, the assessor meets with management and 
laboratory personnel, examines the quality system, reviews staff 
information, examines equipment and facilities, observes demonstrations 
of testing or calibrations, and examines tests or calibration reports.
    (3) The assessor reviews laboratory records including resumes, job 
descriptions of key personnel, training, and competency evaluations for 
all staff members who routinely perform, or affect the quality of the 
testing or calibration for which accreditation is sought. The assessor 
need not be given

[[Page 404]]

information which violates individual privacy, such as salary, medical 
information, or performance reviews outside the scope of the 
accreditation program. The staff information may be kept in the 
laboratory's official personnel folders or separate folders that contain 
only the information that the NVLAP assessor needs to review.
    (4) At the conclusion of the assessment, the assessor conducts an 
exit briefing to discuss observations and any deficiencies with the 
authorized representative who signed the NVLAP application and other 
responsible laboratory staff.
    (d) Assessment report. At the exit briefing, the assessor submits a 
written report on the compliance of the laboratory with the 
accreditation requirements, together with the completed checklists, 
where appropriate.
    (e) Deficiency notification and resolution. (1) Laboratories are 
informed of deficiencies during the on-site assessment, and deficiencies 
are documented in the assessment report (see paragraph (d) of this 
section).
    (2) A laboratory shall, within thirty days of the date of the 
assessment report, provide documentation that the specified deficiencies 
have either been corrected and/or a plan of corrective actions as 
described in the NVLAP handbooks.
    (3) If substantial deficiencies have been cited, NVLAP may require 
an additional on-site assessment, at additional cost to the laboratory, 
prior to granting accreditation. All deficiencies and resolutions will 
be subject to thorough review and evaluation prior to an accreditation 
decision.
    (4) After the assessor submits their final report, NVLAP reviews the 
report and the laboratory's response to determine if the laboratory has 
met all of the on-site assessment requirements.



Sec.  285.8  Proficiency testing.

    (a) NVLAP proficiency testing is consistent with the provisions 
contained in ISO/IEC Guide 43 (Parts 1 and 2), Proficiency testing by 
interlaboratory comparisons, where applicable, including revisions from 
time to time. Proficiency testing may be organized by NVLAP itself or a 
NVLAP-approved provider of services. Laboratories must participate in 
proficiency testing as specified for each LAP in the NVLAP program 
handbooks.
    (b) Analysis and reporting. Proficiency testing data are analyzed by 
NVLAP and reports of the results are made known to the participants. 
Summary results are available upon request to other interested parties; 
e.g., professional societies and standards writing bodies. The identity 
and performance of individual laboratories are kept confidential.
    (c) Proficiency testing deficiencies. (1) Unsatisfactory 
participation in any NVLAP proficiency testing program is a technical 
deficiency which must be resolved in order to obtain initial 
accreditation or maintain accreditation.
    (2) Proficiency testing deficiencies are defined as, but not limited 
to, one or more of the following:
    (i) Failure to meet specified proficiency testing performance 
requirements prescribed by NVLAP;
    (ii) Failure to participate in a regularly scheduled ``round'' of 
proficiency testing for which the laboratory has received instructions 
and/or materials;
    (iii) Failure to submit laboratory control data as required; and
    (iv) Failure to produce acceptable test or calibration results when 
using NIST Standard Reference Materials or special artifacts whose 
properties are well-characterized and known to NIST/NVLAP.
    (3) NVLAP will notify the laboratory of proficiency testing 
deficiencies and actions to be taken to resolve the deficiencies. Denial 
or suspension of accreditation will result from failure to resolve 
deficiencies.



Sec.  285.9  Granting accreditation.

    (a) The Chief of NVLAP is responsible for all NVLAP accreditation 
actions, including granting, denying, renewing, suspending, and revoking 
any NVLAP accreditation.
    (b) Initial accreditation is granted when a laboratory has met all 
NVLAP requirements. One of four accreditation renewal dates (January 1, 
April 1, July 1, or October 1) is assigned to the laboratory and is 
usually retained as long as the laboratory remains in the program. 
Initial accreditation is granted for a period of one year; accreditation

[[Page 405]]

expires and is renewable on the assigned date.
    (c) Renewal dates may be reassigned to provide benefits to the 
laboratory and/or NVLAP. If a renewal date is changed, the laboratory 
will be notified in writing of the change and any related adjustment in 
fees.
    (d) When accreditation is granted, NVLAP shall provide to the 
laboratory a Certificate of Accreditation and a Scope of Accreditation,



Sec.  285.10  Renewal of accreditation.

    (a) An accredited laboratory must submit both its application for 
renewal and fees to NVLAP prior to expiration of the laboratory's 
current accreditation to avoid a lapse in accreditation.
    (b) On-site assessments of currently accredited laboratories are 
performed in accordance with the procedures in Sec.  285.7. If 
deficiencies are found during the assessment of an accredited 
laboratory, the laboratory must follow the procedures set forth in Sec.  
285.7(e)(2) or face possible suspension or revocation of accreditation.



Sec.  285.11  Changes to scope of accreditation.

    A laboratory may request in writing changes to its Scope of 
Accreditation. If the laboratory requests additions to its Scope, it 
must meet all NVLAP criteria for the additional tests or calibrations, 
types of tests or calibrations, or standards. The need for an additional 
on-site assessment and/or proficiency testing will be determined on a 
case-by-case basis.



Sec.  285.12  Monitoring visits.

    (a) In addition to regularly scheduled assessments, monitoring 
visits may be conducted by NVLAP at any time during the accreditation 
period. They may occur for cause or an a random selection basis. While 
most monitoring visits will be scheduled in advance with the laboratory, 
NVLAP may conduct unannounced monitoring visits.
    (b) The scope of a monitoring visit may range from checking a few 
designated items to a complete review. The assessors may review 
deficiency resolutions, verify reported changes in the laboratory's 
personnel, facilities, or operations, or administer proficiency testing, 
when appropriate.



Sec.  285.13  Denial, suspension, revocation, or termination of accreditation.

    (a) A laboratory may at any time voluntarily terminate its 
participation and responsibilities as an accredited laboratory by 
advising NVLAP in writing of its desire to do so.
    (b) If NVLAP finds that an accredited laboratory does not meet all 
NVLAP requirements, has violated the terms of its accreditation, or does 
not continue to comply with the provisions of these procedures, NVLAP 
may suspend the laboratory's accreditation, or advise of NVLAP's intent 
to revoke accreditation.
    (1) If a laboratory's accreditation is suspended, NVLAP shall notify 
the laboratory of that action stating the reasons for and conditions of 
the suspension and specifying the action(s) the laboratory must take to 
have its accreditation reinstated. Conditions of suspension will include 
prohibiting the laboratory from using the NVLAP logo on its test or 
calibration reports, correspondence, or advertising during the 
suspension period in the area(s) affected by the suspension.
    (2) NVLAP will not require a suspended laboratory to return its 
Certificate and Scope of Accreditation, but the laboratory must refrain 
from using the NVLAP logo in the area(s) affected until such time as the 
problem(s) leading to the suspension has been resolved. When 
accreditation is reinstated, NVLAP will authorize the laboratory to 
resume testing or calibration activities in the previously suspended 
area(s) as an accredited laboratory.
    (c) If NVLAP proposes to deny or revoke accreditation of a 
laboratory, NVLAP shall inform the laboratory of the reasons for the 
proposed denial or revocation and the procedure for appealing such a 
decision.
    (1) The laboratory will have thirty days from the date of receipt of 
the proposed denial or revocation letter to appeal the decision to the 
Director of NIST. If the laboratory appeals the decision to the Director 
of NIST, the proposed denial or revocation will be

[[Page 406]]

stayed pending the outcome of the appeal. The proposed denial or 
revocation will become final through the issuance of a written decision 
to the laboratory in the event that the laboratory does not appeal the 
proposed denial or revocation within the thirty-day period.
    (2) If accreditation is revoked, the laboratory may be given the 
option of voluntarily terminating the accreditation.
    (3) A laboratory whose accreditation has been revoked must cease use 
of the NVLAP logo on any of its reports, correspondence, or advertising 
related to the area(s) affected by the revocation. If the revocation is 
total, NVLAP will instruct the laboratory to return its Certificate and 
Scope of Accreditation and to remove the NVLAP logo from all test or 
calibration reports, correspondence, or advertising. If the revocation 
affects only some, but not all of the items listed on a laboratory's 
Scope of Accreditation, NVLAP will issue a revised Scope that excludes 
the revoked area(s) in order that the laboratory might continue 
operations in accredited areas.
    (d) A laboratory whose accreditation has been voluntarily 
terminated, denied or revoked, may reapply and be accredited if the 
laboratory:
    (1) Completes the assessment and evaluation process; and
    (2) Meets the NVLAP conditions and criteria for accreditation.



Sec.  285.14  Criteria for accreditation.

    The requirements for laboratories to be recognized by the National 
Voluntary Laboratory Accreditation Program as competent to carry out 
tests and/or calibrations are contained in clauses 4 and 5 of ISO/IEC 
17025, General requirements for the competence of testing and 
calibration laboratories, including revisions from time to time.



Sec.  285.15  Obtaining documents.

    (a) Application forms, NVLAP handbooks, and other NVLAP documents 
and information may be obtained by contacting the NVLAP, National 
Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 2140, 
Gaithersburg, Maryland 20899-2140; phone: 301-975-4016; fax: 301-926-
2884; e-mail: [email protected].
    (b) Copies of all ISO/IEC documents are available from the American 
National Standards Institute, 11 West 42nd Street, 13th Floor, New York, 
New York 10036; phone: 212-642-4900; fax: 212-398-0023; web site: 
www.ansi.org. You may inspect copies of all applicable ISO/IEC documents 
at the National Voluntary Laboratory Accreditation Program, National 
Institute of Standards and Technology, 820 West Diamond Avenue, Room 
297, Gaithersburg, MD.



PART 286_NATIONAL VOLUNTARY CONFORMITY ASSESSMENT SYSTEM EVALUATION 
(NVCASE) PROGRAM--Table of Contents




Sec.
286.1 Purpose.
286.2 Scope.
286.3 Objective.
286.4 Implementation.
286.5 Program requirements.
286.6 Public consultation.
286.7 Evaluation process.
286.8 Confidentiality of information.
286.9 Maintaining recognized status.
286.10 Appeal.
286.11 Listings.
286.12 Terminations.

    Authority: 15 U.S.C. 272 et seq.

    Source: 59 FR 19131, Apr. 22, 1994, unless otherwise noted.



Sec.  286.1  Purpose.

    The purpose of this program is to enable U.S. industry to satisfy 
mandated foreign technical requirements using the results of U.S.-based 
conformity assessment programs that perform technical evaluations 
comparable in their rigor to practices in the receiving country. Under 
this program, the Department of Commerce, acting through the National 
Institute of Standards and Technology, evaluates U.S.-based conformity 
assessment bodies in order to be able to give assurances to a foreign 
government that qualifying bodies meet that government's requirements 
and can provide results that are acceptable to that government. The 
program is intended to provide a technically-based U.S. approval process 
for U.S. industry to gain foreign market access; the acceptability of 
conformity

[[Page 407]]

assessment results to the relevant foreign government will be a matter 
for agreement between the two governments.



Sec.  286.2  Scope.

    (a) For purposes of this program, conformity assessment consists of 
product sample testing, product certification, and quality system 
registration. Associated activities can be classified by level:
    (1) Conformity level: This level encompasses comparing a product, 
process, service, or system with a standard or specification. As 
appropriate, the evaluating body can be a testing laboratory, product 
certifier or certification body, or quality system registrar.
    (2) Accreditation level: This level encompasses the evaluation of a 
testing laboratory, a certification body, or a quality system registrar 
by an independent body--an accreditation body--based on requirements for 
the acceptance of these bodies, and the granting of accreditation to 
those which meet the established requirements.
    (3) Recognition level: This level encompasses the evaluation of an 
accreditation body based on requirements for its acceptance, and the 
recognition by the evaluating body of the accreditation body which 
satisfies the established requirements.
    (b) NIST operates the NVCASE program as follows:
    (1) Conformity level: Under this program NIST accepts requests for 
evaluations of U.S. bodies involved in activities related to conformity 
assessment. NIST does not perform conformity assessments as part of the 
program and therefore does not accept requests for such evaluations.
    (2) Accreditation level: NIST accepts requests for accreditation of 
conformity assessment bodies only when (i) directed by U.S. law; (ii) 
requested by another U.S. government agency; or (iii) requested to 
respond to a specific U.S. industrial or technical need, relative to a 
mandatory foreign technical requirement, if it has been determined after 
public consultation that (A) there is no satisfactory accreditation 
alternative available and the private sector has declined to make 
acceptable accreditation available, and (B) there is evidence that 
significant public disadvantage would result from the absence of any 
alternative.
    (3) Recognition level: NIST accepts requests for recognition of 
bodies that accredit testing laboratories, certification bodies, and 
quality system registrars when (i) directed by U.S. law; (ii) requested 
by another U.S. government agency; or (iii) requested to respond to a 
specific U.S. industrial or technical need relative to a mandatory 
foreign technical requirement if it has been determined after public 
consultation that (A) there is no suitable alternative available and (B) 
there is evidence that significant public disadvantage would result from 
the absence of any alternative.



Sec.  286.3  Objective.

    The objective of the program is to identify the activities of 
requesting U.S.-based conformity assessment bodies that have been 
evaluated as meeting requirements established for their acceptance by 
foreign governments. The evaluations may be provided by NIST or by 
bodies recognized by NIST for this purpose under the scope of this 
program.



Sec.  286.4  Implementation.

    The program is operated on a cost reimbursable basis. It is open for 
voluntary participation by any U.S.-based body that conducts activities 
related to conformity assessment falling within the program's scope. A 
common procedural approach is followed in responding to a request to 
participate. (See Sec.  286.7 Evaluation process.) All evaluation 
activities rely on the use of generic program requirements based on 
standards and guides for the operation and acceptance of activities 
related to conformity assessment. Specific criteria for use in each 
evaluation are derived from the program requirements, as appropriate, 
for the mandated foreign technical requirements specified in the request 
to participate. A request involving a foreign technical requirement not 
previously addressed by NVCASE will result in an announcement of NIST's 
intent to develop evaluation criteria specific to the relevant 
requirements. NIST will contact all

[[Page 408]]

cognizant and interested federal agencies to coordinate appropriate 
actions and procedures.



Sec.  286.5  Program requirements.

    NIST provides and maintains documented generic requirements to be 
applied in evaluations related to accreditation and recognition within 
the scope of the program. Available documentation is provided on request 
to prospective program participants and other interested parties. 
Generic requirements are developed with public input and are based on 
guides for the acceptance of conformity assessment activities issued by 
such international organizations as the International Organization for 
Standardization and the International Electrotechnical Commission. NIST 
also provides and maintains documented criteria provided in response to 
requests for evaluations specific to mandated foreign technical 
requirements. Criteria are developed with public input derived from the 
application and interpretation of generic program requirements in 
relation to specified mandated requirements. Both documented generic 
requirements and specific criteria are developed and maintained with 
input from the public.



Sec.  286.6  Public consultation.

    NIST relies on substantial advice and technical assistance from all 
parties interested in program requirements and related specific 
criteria. Interested U.S. government agencies are routinely to be 
informed of prospective NVCASE actions, and advice is sought from those 
agencies on any actions of mutual interest. In preparing program 
documentation, input is also sought from workshops announced in the 
Federal Register and open tothe general public and other public means to 
identify appropriate standards and guides and to develop and maintain 
generic requirements, based on the identified standards and guides. 
Where relevant Federal advisory committees are available, their advice 
may also be sought. Similar procedures will be followed with respect to 
each request for evaluation which necessitates the development of 
criteria, derived from the generic requirements, specific to mandated 
foreign technical requirements.



Sec.  286.7  Evaluation process.

    (a) Each applicant requesting to be evaluated under NVCASE is 
expected to initiate the process and assume designated responsibilities 
as NIST proceeds with its evaluation:
    (1) Application. The applicant completes and submit a request to be 
evaluated.
    (2) Fee. The applicant submits a partial payment with the 
application and agrees to submit the remaining balance based on 
evaluation costs as a condition for satisfactory completion of the 
process.
    (3) Documentation. The applicant operates a system and procedures 
that meet the applicable generic requirements and specific criteria. 
Relevant documentation submitted with the application is reviewed by 
NIST.
    (4) On-site assessment. The applicant and NIST cooperate in the 
scheduling and conduct of all necessary on-site evaluations, including 
the resolution of any deficiencies cited.
    (5) Final review. The applicant provides any supplementary materials 
requested by NIST, then NIST completes the review and decides on 
appropriate action.
    (b) NIST may take one of the following actions with regard to an 
applicant:
    (1) Certificate. If an applicant fully demonstrates conformity with 
all program requirements and specific criteria, NIST issues a 
certificate documenting this finding. Each certificate is accompanied by 
a document describing the specific scope of the accreditation or 
recognition.
    (2) Denial. If an applicant cannot demonstrate conformity with all 
program requirements and specific criteria, NIST may deny award of the 
certificate. An applicant who has failed to complete the evaluation 
satisfactorily may reapply when prepared to demonstrate full conformance 
with program requirements.



Sec.  286.8  Confidentiality of information.

    All information collected relative to an applicant during an 
evaluation is maintained as confidential. Information is released only 
as required under the terms of the Freedom of Information Act or other 
legal requirement,

[[Page 409]]

subject to the rules of the Department of Commerce for such disclosure 
as found in 15 CFR part 4.



Sec.  286.9  Maintaining recognized status.

    Each program participant remaining in the program shall continuously 
meet all program requirements and cooperate with NIST in the conduct of 
all surveillance and reassessment activities. Participants shall 
reimburse NIST for expenses incurred for these purposes.



Sec.  286.10  Appeal.

    Any applicant or other affected party may appeal to the NIST 
Director any action taken under the program. When appropriate, the 
Director may seek an independent review by the Deputy Chief Counsel.



Sec.  286.11  Listings.

    (a) NIST maintains lists of all bodies holding current NIST program 
certificates, together with the assessment areas for which they are 
issued.
    (b) NIST also maintains lists of those qualified conformity 
assessment bodies that are currently accredited by bodies recognized by 
NIST, along with the activities of the assessment bodies within the 
scope of the NIST recognition program.
    (c) The lists are made available to the public through various 
media, e.g., printed directories, electronic bulletin boards, or other 
means to ensure accessibility by all potential users.
    (d) With respect to the lists specified in paragraph (a) and (b) of 
this section, NIST may delist any body if it determines the action to be 
in the public interest.



Sec.  286.12  Terminations.

    (a) Voluntary termination. Any participant may voluntarily terminate 
participation at any time by written notification to NIST.
    (b) Involuntary termination. If a participant does not continue to 
meet all program requirements, or if NIST determines it to be necessary 
in the public interest, NIST may withdraw that participant's 
certificate. A body that has had its status as a certificate holder 
terminated may reapply when prepared to demonstrate full conformance 
with program requirements.



PART 287_GUIDANCE ON FEDERAL CONFORMITY ASSESSMENT--Table of Contents




Sec.
287.1 Purpose and scope of this guidance.
287.2 Definitions.
287.3 Responsibilities of the National Institute of Standards and 
          Technology.
287.4 Responsibilities of Federal agencies.
287.5 Responsibilities of an Agency Standards Executive.

    Authority: Sec. 12, Pub. L. 104-113, 110 Stat. 782 (15 U.S.C. 272).

    Source: 65 FR 48900, Aug. 10, 2000, unless otherwise noted.



Sec.  287.1  Purpose and scope of this guidance.

    (a) This part provides guidance for each Federal agency to use in 
evaluating the efficacy and efficiency of its conformity assessment 
activities. Each agency should coordinate its conformity assessment 
activities with those of other appropriate government agencies and with 
those of the private sector to reduce unnecessary duplication. This 
guidance is intended to help Federal agencies improve the management and 
coordination of their own conformity assessment activities with respect 
to other government entities and the private sector. This will help 
ensure more productive use of the increasingly limited Federal resources 
available to conduct conformity assessment activities. This will also 
support the role of the U.S. Government in pursuing international trade 
and other related negotiations and agreements with foreign countries and 
U.S. industry in pursuing agreements with foreign national and 
international private sector organizations.
    (b) This guidance applies to all agencies, which set policy for, 
manage, operate, or use conformity assessment activities and results, 
both domestic and international, except for activities carried out 
pursuant to treaties.
    (c) This guidance does not preempt the agencies' authority and 
responsibility to make regulatory or procurement decisions authorized by 
statute

[[Page 410]]

or required to meet programmatic objectives and requirements. These 
decision-making activities include: determining the level of acceptable 
regulatory or procurement risk; setting the level of protection; 
balancing risk, cost and availability of technology (where statutes 
permit) in establishing regulatory and procurement objectives; and 
determining or implementing procurement or regulatory requirements 
necessary to meet programmatic or regulatory objectives. Each agency 
retains broad discretion in its selection and use of regulatory and 
procurement conformity assessment practices and may elect not to use or 
recognize alternative conformity assessment practices if the agency 
deems them to be inappropriate, inadequate, or inconsistent with 
statutory criteria or programmatic objectives and requirements. Nothing 
contained herein shall give any party any claim or cause of action 
against the Federal government or any agency thereof. Each agency 
remains responsible for representation of the agency's views on 
conformity assessment in matters under its jurisdiction. Each agency 
also remains the primary point of contact for information on the 
agency's regulatory and procurement conformity assessment actions.



Sec.  287.2  Definitions.\1\
---------------------------------------------------------------------------

    \1\ Definitions of accreditation, certification, conformity 
assessment, inspection, supplier's declaration of conformity, 
registration and testing are based on the International Organization for 
Standardization (ISO)/International Electrotechnical Commission (IEC), 
Guide 2 (1996). In certain industrial sectors, it is recognized that 
organizations other than ISO or IEC may issue definitions relevant to 
conformity assessment, such as the Codex Alimentarius Commission with 
respect to the food industry sector.
---------------------------------------------------------------------------

    Accreditation means a procedure used to provide formal notice that a 
body or person is competent to carry out specific tasks. These tasks 
include: sampling and testing; inspection; certification; and 
registration.\2\
---------------------------------------------------------------------------

    \2\ For some agencies, accreditation may mean that a body or person 
meets requirements defined in a specific section(s) of the CFR. The 
referenced section(s) may include only limited requirements for 
demonstration of technical competency.
---------------------------------------------------------------------------

    Agency means any Executive Branch Department, independent 
commission, board, bureau, office, agency, government-owned or 
controlled corporation, or other establishment of the Federal 
government. It also includes any regulatory commission or board, except 
for independent regulatory commission subject to separate statutory 
requirements regarding policy setting, management, operation, and use of 
conformity assessment activities. It does not include the legislative or 
judicial branches of the Federal government.
    Agency Standards Executive means an official designated by an agency 
as its representative on the Interagency Committee for Standards Policy 
(ICSP) and delegated the responsibility for agency implementation of OMB 
Circular A-119 and the guidance in this part.
    Certification means a procedure used to provide written assurance 
that a product, process, service, or person's qualifications conforms to 
specified requirements.
    Conformity assessment means any activity concerned with determining 
directly or indirectly that requirements are fulfilled. Requirements for 
products, services, systems, and organizations are those defined by law 
or regulation or by an agency in a procurement action. Conformity 
assessment includes: sampling and testing; inspection; supplier's 
declaration of conformity; certification; and quality and environmental 
management system assessment and registration. It also includes 
accreditation and recognition. Conformity assessment does not include 
mandatory administrative procedures (such as registration notification) 
for granting permission for a good or service to be produced, marketed, 
or used for a stated purpose or under stated conditions. Conformity 
assessment activities may be conducted by the supplier (first party) or 
by the buyer (second party) either directly or by another party on the 
supplier's or buyer's behalf, or by a body not under the control or 
influence of either the buyer or the seller (third party).

[[Page 411]]

    Inspection is defines ad the evaluation by observation and judgment 
accompanied as appropriate by measurement, testing or gauging of the 
conformity of a product, process or service to specified requirements.
    NIST means the National Institute of Standards and Technology, an 
agency within the United States Department of Commerce.
    Recognition means a procedure used to provide formal notice that an 
accreditation body is competent to carry out specific tasks. These tasks 
include: the accreditation of testing laboratories and inspection, 
certification, and registration bodies. A governmental recognition 
system is a set of one or more procedures used by a Federal agency to 
provide recognition.
    Registration means a procedure used to give written assurance that a 
system conforms to specified requirements. Such systems include those 
established for the management of product, process or service quality 
and environmental performance.
    Sampling means the selection of one or more specimens of a product, 
process, or service for the purpose of evaluating the conformity of the 
product, process or service to specified requirements.
    Supplier's declaration of conformity means a procedure by which a 
supplier gives written assurance that a product, process, service or 
organization conforms to specified requirements.
    Testing means the action of carrying out one or more technical 
operations (tests) that determine one or more characteristics or 
performance of a given product, material, equipment, organism, person's 
qualifications, physical phenomenon, process, or service according to a 
specified technical procedure (test method).



Sec.  287.3  Responsibilities of the National Institute of Standards and Technology.

    (a) Work with agencies through the Interagency Committee on 
Standards Policy (ICSP) to coordinate Federal, state and local 
conformity assessment activities with private sector conformity 
assessment activities. NIST chairs the ICSP; assists the ICSP in 
developing and publishing policies and guidance on conformity assessment 
related issues; collects and disseminates information on Federal, state 
and private sector conformity assessment activities; and increases 
public awareness of the importance of conformity assessment and nature 
and extent of national and international conformity assessment 
activities.
    (b) Encourage participation in the ICSP by all affected agencies and 
ensure that all agency views on conformity assessment are considered.
    (c) To the extent that resources are available, develop information 
on state conformity assessment practices; and, upon request by a state 
government agency, work with that state agency to reduce duplication and 
complexity in state conformity assessment activities.
    (d) Review within three years from August 10, 2000, the 
effectiveness of the final guidance and recommend modifications to the 
Secretary as needed.



Sec.  287.4  Responsibilities of Federal agencies.

    Each agency should:
    (a) Implement the policies contained in the guidance in this part.
    (b) Provide a rationale for its use of specified conformity 
assessment procedures and processes in rulemaking and procurement 
actions to the extent feasible. Further, when notice and comment 
rulemaking is otherwise required, each agency should provide the 
opportunity for public comment on the rationale for the agency's 
conformity assessment decision.
    (c) Use the results of other governmental agency and private sector 
organization conformity assessment activities to enhance the safety and 
efficacy of proposed new conformity assessment requirements and 
measures. An example of this would be to collect and review information 
on similar activities conducted by other Federal, state and 
international organizations and agencies and private sector 
organizations to determine if the results of these activities can be 
used to improve the effectiveness of a proposed Federal agency 
conformity assessment activity.
    (d) Use relevant guides or standards for conformity assessment 
practices

[[Page 412]]

published by domestic and international standardizing bodies as 
appropriate in meeting regulatory and procurement objectives. Guides and 
standards for sampling, testing, inspection, certification, quality and 
environmental management systems, management system registration and 
accreditation are issued by organizations which include, but are not 
limited to, the American National Standards Institute, the International 
Organization for Standardization (ISO), the International 
Electrotechnical Commission (IEC), the International Telecommunications 
Union (ITU) and the Organization for Economic Cooperation and 
Development (OECD), the World Health Organization (WHO), and the Codex 
Alimentarius Commission. Each agency retains responsibility for 
determining which, if any, of these documents are relevant to its needs.
    (e) Identify appropriate private sector conformity assessment 
practices and programs and consider the results of such practices and/or 
programs as appropriate in existing regulatory and procurement actions. 
Responsibility for the determination of appropriateness rests with each 
agency. Examples: an agency could use the results of private sector or 
other governmental conformity assessment activities to schedule 
procurement type audits more effectively. This could allow agencies to 
reduce the number and extent of audits conducted at companies which are 
performing in accordance with contract specifications and which are 
under review by a third party or another agency and to concentrate 
agency audit efforts on companies which have shown problems in 
conforming to contract specifications. Another example is the Federal 
Communications Commission's (FCC) Telecommunication Certification Body 
(TCB) program, which allows designated private entities to issue 
telecommunications equipment approvals for specified regulatory 
requirements. In addition, under Part 15, FCC premarketing approval 
requirements for certain types of equipment have been replaced with 
suppliers declaration of conformity to the regulations, provided test 
results supporting the declaration are obtained from an accredited 
testing lab.
    (f) Consider using the results of other agencies' conformity 
assessment procedures. Example: An agency could use the results of 
another agency's inspection/audit of a supplier to eliminate or reduce 
the scope of its own inspection/audit of that supplier.
    (g) Participate in efforts designed to improve coordination among 
governmental and private sector conformity assessment activities. These 
efforts include, but are not limited to, the National Cooperation for 
Laboratory Accreditation (NACLA) organization, the National 
Environmental Laboratory Accreditation (NELAC), the International 
Organizations for Standardization's (ISO) Committee on Conformity 
Assessment (CASCO), conformity assessment related activities of the 
American National Standards Institute (ANSI), and ICSP working groups 
dealing with conformity assessment issues.
    (h) Work with other agencies to avoid unnecessary duplication and 
complexity in Federal conformity assessment activities. Examples: An 
agency can participate in another agency's conformity assessment 
activities by conducting joint procurement audits/inspections of 
suppliers that sell to both agencies. An agency can share conformity 
assessment information with other agencies. An agency can use conformity 
assessment information provided by other agencies to the extent 
appropriate to improve the effectiveness and efficiency in its own 
conformity assessment activities. Conformity assessment information may 
include: Conformity assessment procedures and results, technical data on 
the operation of conformity assessment programs, processing methods and 
requirements for applications, fees, facility site data, complaint 
review procedures, and confidentiality procedures.
    (i) Encourage domestic and international recognition of U.S. 
conformity assessment results by supporting the work of the U.S. 
Government in international trade and related negotiations with foreign 
countries and U.S. industry in pursuing agreements with foreign national 
and international private sector organizations and any

[[Page 413]]

resulting activities/requirements resulting from those negotiations/
agreements.
    (j) Participate in the development of private sector conformity 
assessment standards to ensure that Federal viewpoints are represented.
    (k) Work with other agencies to harmonize Federal requirements for 
quality and environmental management systems for use in procurement and 
regulation, including provisions which will allow the use of one quality 
or environmental management system per supplier facility in the Federal 
procurement process and the sharing and usage of audit results and 
related information as appropriate.
    (l) Work with other ICSP members, NIST, and the private sector to 
develop national infrastructures for coordinating and harmonizing U.S. 
conformity assessment needs, practices and requirements in support of 
the efforts of the U.S. Government and U.S. industry to increase 
international market access for U.S. products.
    (m) Work with other ICSP members, NIST, and the private sector as 
necessary and appropriate to establish criteria for the development and 
implementation of governmental recognition systems to meet government 
recognition requirements imposed by other nations and regional groups to 
support the efforts of the U.S. Government to facilitate international 
market access for U.S. products.
    (n) Assign an Agency Standard Executive responsibility for 
coordinating the agency-wide implementation of the guidance in this 
part.



Sec.  287.5  Responsibilities of an Agency Standards Executive.

    In addition to carrying out the duties described in OMB Circular A-
119 related to standards activities, an Agency Standards Executive 
should:
    (a) Promote the following goals:
    (1) Effective use of agency conformity assessment related resources 
and participation in conformity assessment related activities of agency 
interest.
    (2) Development and dissemination of agency technical and policy 
positions.
    (3) Development of agency positions on conformity assessment related 
issues that are in the public interest.
    (b) Ensure that agency participation in conformity assessment 
related activities is consistent with agency missions, authorities, 
priorities, and budget.
    (c) Cooperate with NIST in carrying out agency responsibilities 
under the guidance in this part.
    (d) Consult with NIST, as necessary, in the development and issuance 
of internal agency procedures and guidance implementing the policies in 
this part.
    (e) Establish an ongoing process for reviewing his/her agency's 
existing conformity assessment activities and identifying areas where 
efficiencies can be achieved through coordination with other agency and 
private sector conformity assessment activities.
    (f) Work with other parts of his/her agency to develop and implement 
improvements in agency conformity assessment related activities.
    (g) Report to NIST, on a voluntary basis, on agency conformity 
assessment activities for inclusion in the annual report to the Office 
of Management and Budget (OMB) on the agency's implementation of OMB 
Circular A-119.

[[Page 414]]



           SUBCHAPTER K_ADVANCED TECHNOLOGY PROGRAM PROCEDURES





PART 290_REGIONAL CENTERS FOR THE TRANSFER OF MANUFACTURING TECHNOLOGY--Table 
of Contents




Sec.
290.1 Purpose.
290.2 Definitions.
290.3 Program description.
290.4 Terms and schedule of financial assistance.
290.5 Basic proposal qualifications.
290.6 Proposal evaluation and selection criteria.
290.7 Proposal selection process.
290.8 Reviews of centers.
290.9 Intellectual property rights.

    Authority: 15 U.S.C. 278k.

    Source: 55 FR 38275, Sept. 17, 1990, unless otherwise noted.



Sec.  290.1  Purpose.

    This rule provides policy for a program to establish Regional 
Centers for the Transfer of Manufacturing Technology as well as the 
prescribed policies and procedures to insure the fair, equitable and 
uniform treatment of proposals for assistance. In addition, the rule 
provides general guidelines for the management of the program by the 
National Institute of Standards and Technology, as well as criteria for 
the evaluation of the Centers, throughout the lifecycle of financial 
assistance to the Centers by the National Institute of Standards and 
Technology.



Sec.  290.2  Definitions.

    (a) The phrase advanced manufacturing technology refers to new 
technologies which have recently been developed, or are currently under 
development, for use in product or part design, fabrication, assembly, 
quality control, or improving production efficiency.
    (b) The term Center or Regional Center means a NIST-established 
Regional Center for the Transfer of Manufacturing Technology described 
under these procedures.
    (c) The term operating award means a cooperative agreement which 
provides funding and technical assistance to a Center for purposes set 
forth in Sec.  290.3 of these procedures.
    (d) The term Director means the Director of the National Institute 
of Standards and Technology.
    (e) The term NIST means the National Institute of Standards and 
Technology, U.S. Department of Commerce.
    (f) The term Program or Centers Program means the NIST program for 
establishment of, support for, and cooperative interaction with Regional 
Centers for the Transfer of Manufacturing Technology.
    (g) The term qualified proposal means a proposal submitted by a 
nonprofit organization which meets the basic requirements set forth in 
Sec.  290.5 of these procedures.
    (h) The term Secretary means the Secretary of Commerce.
    (i) The term target firm means those firms best able to absorb 
advanced manufacturing technologies and techniques, especially those 
developed at NIST, and which are already well prepared in an 
operational, management and financial sensse to improve the levels of 
technology they employ.



Sec.  290.3  Program description.

    (a) The Secretary, acting through the Director, shall provide 
technical and financial assistance for the creation and support of 
Regional Centers for the Transfer of Manufacturing Technology. Each 
Center shall be affiliated with a U.S.-based nonprofit institution or 
organization which has submitted a qualified proposal for a Center 
Operating Award under these procedures. Support may be provided for a 
period not to exceed six years. The Centers work with industry, 
universities, nonprofit economic development organizations and state 
governments to transfer advanced manufacturing technologies, processes, 
and methods as defined in Sec.  290.2 to small and medium sized firms. 
These technology transfer efforts focus on the continuous and 
incremental improvement of the target firms. The advanced manufacturing 
technology which is the focus of the

[[Page 415]]

Centers is the subject of research in NIST's Automated Manufacturing 
Research Facility (AMRF). The core of AMRF research has principally been 
applied in discrete part manufacturing, including electronics, 
composites, plastics, and metal parts fabrication and assembly. Centers 
will be afforded the opportunity for interaction with the AMRF and will 
be given access to reasearch projects and results to strengthen their 
technology transfer. Where elements of a solution are available from an 
existing source, they should be employed. Where private-sector 
consultants who can meet the needs of a small- or medium-sized 
manufacturer are available, they should handle the task. Each Center 
should bring to bear the technology expertise described in Sec.  
290.3(d) to assist small- and medium-sized manufacturing firms in 
adopting advanced manufacturing technology.
    (b) Program objective. The objective of the NIST Manufacturing 
Technology Centers is to enhance productivity and technological 
performance in United States manufacturing. This will be accomplished 
through:
    (1) The transfer of manufacturing technology and techniques 
developed at NIST to Centers and, through them, to manufacturing 
companies throughout the United States;
    (2) The participation of individuals from industry, universities, 
State governments, other Federal agencies, and, when appropriate, NIST 
in cooperative technology transfer activities;
    (3) Efforts to make new manufacturing technology and processes 
usable by United States-based small- and medium-sized companies;
    (4) The active dissemination of scientific, engineering, technical, 
and management information about manufacturing to industrial firms, 
including small- and medium-sized manufacturing companies; and
    (5) The utilization, when appropriate, of the expertise and 
capability that exists in Federal laboratories other than NIST.
    (c) Center activities. The activities of the Centers shall include:
    (1) The establishment of automated manufacturing systems and other 
advanced production technologies based on research by NIST and other 
Federal laboratories for the purpose of demonstrations and technology 
transfer;
    (2) The active transfer and dissemination of research findings and 
Center expertise to a wide range of companies and enterprises, 
particularly small- and medium-sized manufacturers; and
    (3) Loans, on a selective, short-term basis, of items of advanced 
manufacturing equipment to small manufacturing firms with less than 100 
employees.
    (d) Center organization and operation. Each Center will be organized 
to transfer advanced manufacturing technology to small and medium sized 
manufacturers located in its service region. Regional Centers will be 
established and operated via cooperative agreements between NIST and the 
award-receiving organizations. Individual awards shall be decided on the 
basis of merit review, geographical diversity, and the availability of 
funding.
    (e) Leverage. The Centers program must concentrate on approaches 
which can be applied to other companies, in other regions, or by other 
organizations. The lessons learned in assisting a particular target firm 
should be documented in order to facilitate the use of those lessons by 
other target firms. A Center should build on unique solutions developed 
for a single company to develop techniques of broad applicability. It 
should seek wide implementation with well-developed mechanisms for 
distribution of results. Leverage is the principle of developing less 
resource-intensive methods of delivering technologies (as when a Center 
staff person has the same impact on ten firms as was formerly obtained 
with the resources used for one, or when a project once done by the 
Center can be carried out for dozens of companies by the private sector 
or a state or local organization.) Leverage does not imply a larger non-
federal funding match (that is, greater expenditure of non-federal 
dollars for each federal dollar) but rather a greater impact per dollar.
    (f) Regional impact. A new Center should not begin by spreading its 
resources too thinly over too large a geographic area. It should 
concentrate

[[Page 416]]

first on establishing its structure, operating style, and client base 
within a manageable service area.



Sec.  290.4  Terms and schedule of financial assistance.

    (a) NIST may provide financial support to any Center for a period 
not to exceed six years, subject to the availability of funding and 
continued satisfactory performance. Awards under this program shall be 
subject to all Federal and Departmental regulations, policies, and 
procedures applicable to Federal assistance awards. NIST may not provide 
more than 50 percent of the capital and annual operating and maintenance 
required to create and maintain such Center. Allowable capital costs may 
be treated as an expense in the year expended or obligated.
    (b) NIST contribution. The funds provided by NIST may be used for 
capital and operating and maintenance expenses. Each Center will operate 
on one-year, annually renewable cooperative agreements, contingent upon 
successful completion of informal annual reviews. Funding can not be 
provided after the sixth year of support. A formal review of each Center 
will be conducted during its third year of operation by an independent 
Merit Review Panel in accordance with Sec.  290.8 of these procedures. 
Centers will be required to demonstrate that they will be self-
sufficient by the end of six years of operation. The amount of NIST 
investment in each Center will depend upon the particular requirements, 
plans, and performance of the Center, as well as the availability of 
NIST funds. NIST may support the budget of each Center on a matching-
funds basis not to exceed the Schedule of Financial Assistance outlined 
in Table 1. The remaining portion of the Center's funding shall be 
provided by the host organization.

                Table 1--Schedule of NIST Matching Funds
------------------------------------------------------------------------
                                                           Maximum NIST
                Year of center operation                       share
------------------------------------------------------------------------
1-3.....................................................           \1/2\
4.......................................................           \2/5\
5-6.....................................................           \1/3\
------------------------------------------------------------------------

    (c) Host contribution. The host organization may count as part of 
its share:
    (1) Dollar contributions from state, county, city, industrial, or 
other sources;
    (2) Revenue from licensing and royalties;
    (3) Fees for services performed,
    (4) In-kind contributions of full-time personnel,
    (5) In-kind contribution of part-time personnel, equipment, 
software, rental value of centrally located space (office and 
laboratory) and other related contributions up to a maximum of one-half 
of the host's annual share. Allowable capital expenditures may be 
applied in the award year expended or in subsequent award years.

[55 FR 38275, Sept. 17, 1990, as amended at 59 FR 22505, May 2, 1994]



Sec.  290.5  Basic proposal qualifications.

    (a) NIST shall designate each proposal which satisfies the 
qualifications criteria below as ``qualified proposal'' and subject the 
qualified proposals to a merit review. Applications which do not meet 
the requirements of this section will not receive further consideration.
    (1) Qualified organizations. Any nonprofit institution, or group 
thereof, or consortium of nonprofit institutions, including entities 
which already exist or may be incorporated specifically to manage the 
Center.
    (2) Proposal format. Proposals for Center Operating Awards shall:
    (i) Be submitted with a Standard Form 424 to the above address;
    (ii) Not exceed 25 typewritten pages in length for the basic 
proposal document (which must include the information requirements of 
paragraph (a)(3) of this section); it may be accompanied by additional 
appendices of relevant supplementary attachments and tabular material. 
Basic proposal documents which exceed 25 pages in length will not be 
qualified for further review.
    (3) Proposal requirements. In order to be considered for a Center 
Operating Award, proposals must contain:
    (i) A plan for the allocation of intellectual property rights 
associated with any invention or copyright which may result from the 
involvement in the

[[Page 417]]

Center's technology transfer or research activities consistent with the 
conditions of Sec.  290.9;
    (ii) A statement which provides adequate assurances that the host 
organization will contribute 50 percent or more of the proposed Center's 
capital and annual operating and maintenance costs for the first three 
years and an increasing share for each of the following three additional 
years. Applicants should provide evidence that the proposed Center will 
be self-supporting after six years.
    (iii) A statement describing linkages to industry, government, and 
educational organizations within its service region.
    (iv) A statement defining the initial service region including a 
statement of the constituency to be served and the level of service to 
be provided, as well as outyear plans.
    (v) A statement agreeing to focus the mission of the Center on 
technology transfer activities and not to exclude companies based on 
state boundaries.
    (vi) A proposed plan for the annual evaluation of the success of the 
Center by the Program, including appropriate criteria for consideration, 
and weighting of those criteria.
    (vii) A plan to focus the Center's technology emphasis on areas 
consistent with NIST technology research programs and organizational 
expertise.
    (viii) A description of the planned Center sufficient to permit NIST 
to evaluate the proposal in accordance with Sec.  290.6 of these 
procedures.
    (b) [Reserved]



Sec.  290.6  Proposal evaluation and selection criteria.

    (a) In making a decision whether to provide financial support, NIST 
shall review and evaluate all qualified proposals in accordance with the 
following criteria, assigning equal weight to each of the four 
categories.
    (1) Identification of target firms in proposed region. Does the 
proposal define an appropriate service region with a large enough 
population of target firms of small- and medium-sized manufacturers 
which the applicant understands and can serve, and which is not 
presently served by an existing Center?
    (i) Market analysis. Demonstrated understanding of the service 
region's manufacturing base, including business size, industry types, 
product mix, and technology requirements.
    (ii) Geographical location. Physical size, concentration of 
industry, and economic significance of the service region's 
manufacturing base. Geographical diversity of Centers will be a factor 
in evaluation of proposals; a proposal for a Center located near an 
existing Center may be considered only if the proposal is unusually 
strong and the population of manufacturers and the technology to be 
addressed justify it.
    (2) Technology resources. Does the proposal assure strength in 
technical personnel and programmatic resources, full-time staff, 
facilities, equipment, and linkages to external sources of technology to 
develop and transfer technologies related to NIST research results and 
expertise in the technical areas noted in these procedures?
    (3) Technology delivery mechanisms. Does the proposal clearly and 
sharply define an effective methodology for delivering advanced 
manufacturing technology to small- and medium-sized manufacturers?
    (i) Linkages. Development of effective partnerships or linkages to 
third parties such as industry, universities, nonprofit economic 
organizations, and state governments who will amplify the Center's 
technology delivery to reach a large number of clients in its service 
region.
    (ii) Program leverage. Provision of an effective strategy to amplify 
the Center's technology delivery approaches to achieve the proposed 
objectives as described in Sec.  290.3(e).
    (4) Management and financial plan. Does the proposal define a 
management structure and assure management personnel to carry out 
development and operation of an effective Center?
    (i) Organizational structure. Completeness and appropriateness of 
the organizational structure, and its focus on the mission of the 
Center. Assurance of full-time top management of the Center.
    (ii) Program management. Effectiveness of the planned methodology of 
program management.

[[Page 418]]

    (iii) Internal evaluation. Effectiveness of the planned continuous 
internal evaluation of program activities.
    (iv) Plans for financial matching. Demonstrated stability and 
duration of the applicant's funding commitments as well as the 
percentage of operating and capital costs guaranteed by the applicant. 
Identification of matching fund sources and the general terms of the 
funding commitments. Evidence of the applicant's ability to become self-
sustaining in six years.
    (v) Budget. Suitability and focus of the applicant's detailed one-
year budget and six-year budget outline.



Sec.  290.7  Proposal selection process.

    Upon the availability of funding to establish Regional Centers, the 
Director shall publish a notice in the Federal Register requesting 
submission of proposals from interested organizations. Appliclants will 
be given an established time frame, not less than 60 days from the 
publication date of the notice, to prepare and submit a proposal. The 
proposal evaluation and selection process will consist of four principal 
phases: Proposal qualification; Proposal review and selection of 
finalists; Finalist site visits; and, Award determination. Further 
descriptions of these phases are provided in the following:
    (a) Proposal qualification. All proposals will be reviewed by NIST 
to assure compliance with Sec.  290.5 of these procedures. Proposals 
which satisfy these requirements will be designated qualified proposals; 
all others will be disqualified at this phase of the evaluation and 
selection process.
    (b) Proposal review and selection of finalists. The Director of NIST 
will appoint an evaluation panel to review and evaluate all qualified 
proposals in accordance with the criteria set forth in section 290.6 of 
these procedures, assigning equal weight to each of the four categories. 
From the qualified proposals, a group of finalists will be selected 
based on this review.
    (c) Finalist site visits. NIST representatives will visit each 
finalist organization. Finalists will be reviewed and assigned numeric 
scores using the criteria set forth in Sec.  290.6 of these procedures 
assigning equal weight to each of the four categories. NIST may enter 
into negotiations with the finalists concerning any aspect of their 
proposal.
    (d) Award determination. The Director of NIST or his designee shall 
select awardees for Center Operating Awards based upon the rank order of 
applicants, the need to assure appropriate regional distribution, and 
the availability of funds. Upon the final award decision, a notification 
will be made to each of the proposing organizations.



Sec.  290.8  Reviews of centers.

    (a) Overview. Each Center will be reviewed at least annually, and at 
the end of its third year of operation according to the procedures and 
criteria set out below. There will be regular management interaction 
with NIST and the other Centers for the purpose of evaluation and 
program shaping. Centers are encouraged to try new approaches, must 
evaluate their effectiveness, and abandon or adjust those which do not 
have the desired impact.
    (b) Annual reviews of centers. Centers will be reviewed annually as 
part of the funding renewal process using the criteria set out in Sec.  
290.8(d). The funding level at which a Center is renewed is contingent 
upon a positive program evaluation and will depend upon the availability 
of federal funds and on the Center's ability to obtain suitable match, 
as well as on the budgetary requirements of its proposed program. 
Centers must continue to demonstrate that they will be self-supporting 
after six years.
    (c) Third year review of centers. Each host receiving a Center 
Operating Award under these procedures shall be evaluated during its 
third year of operation by a Merit Review Panel appointed by the 
Secretary of Commerce. Each such Merit Review Panel shall be composed of 
private experts, none of whom shall be connected with the involved 
Center, and Federal officials. An official of NIST shall chair the 
panel. Each Merit Review Panel shall measure the involved Center's 
performance against the criteria set out in Sec.  290.8(d). The 
Secretary shall not provide funding for the fourth through the sixth 
years of such Center's operation unless the evaluation is positive on 
all

[[Page 419]]

grounds. As a condition of receiving continuing funding, the Center must 
show evidence at the third year review that they are making substantial 
progress toward self-sufficiency. If the evaluation is positive and 
funds are available, the Secretary of Commerce may provide continued 
funding through the sixth year at declining levels, which are designed 
to insure that the Center no longer needs financial support from NIST by 
the seventh year. In no event shall funding for a Center be provided by 
the NIST Manufacturing Technology Centers Program after the sixth year 
of support.
    (d) Criteria for annual and third year reviews. Centers will be 
evaluated under the following criteria in each of the annual reviews, as 
well as the third year review:
    (1) The program objectives specified in Sec.  290.3(b) of these 
procedures;
    (2) Funds-matching performance;
    (3) The extent to which the target firms have successfully 
implemented recently developed or currently developed advanced 
manufacturing technology and techniques transferred by the Center;
    (4) The extent to which successes are properly documented and there 
has been further leveraging or use of a particular advanced 
manufacturing technology or process;
    (5) The degree to which there is successful operation of a network, 
or technology delivery mechanism, involving the sharing or dissemination 
of information related to manufacturing technologies among industry, 
universities, nonprofit economic development organizations and state 
governments.
    (6) The extent to which the Center can increasingly develop 
continuing resources--both technological and financial--such that the 
Centers are finally financially self-sufficient.



Sec.  290.9  Intellectual property rights.

    (a) Awards under the Program will follow the policies and procedures 
on ownership to inventions made under grants and cooperative agreements 
that are set out in Public Law 96-517 (35 U.S.C. chapter 18), the 
Presidential Memorandum on Government Patent Policy to the Heads of 
Executive Departments and Agencies Dated February 18, 1983, and part 401 
of title 37 of the Code of Federal Regulations, as appropriate. These 
policies and procedures generally require the Government to grant to 
Centers selected for funding the right to elect to obtain title to any 
invention made in the course of the conduct of research under an award, 
subject to the reservation of a Government license.
    (b) Except as otherwise specifically provided for in an Award, 
Centers selected for funding under the Program may establish claim to 
copyright subsisting in any data first produced in the performance of 
the award. When claim is made to copyright, the funding recipient shall 
affix the applicable copyright notice of 17 U.S.C. 401 or 402 and 
acknowledgment of Government sponsorship to the data when and if the 
data are delivered to the Government, are published, or are deposited 
for registration as a published work in the U.S. Copyright Office. For 
data other than computer software, the funding recipient shall grant to 
the Government, and others acting on its behalf, a paid up, 
nonexclusive, irrevocable, worldwide license for all such data to 
reproduce, prepare derivative works, distribute copies to the public, 
and perform publicly and display publicly, by or on behalf of the 
Government. For computer software, the funding recipient shall grant to 
the Government, and others acting on its behalf, a paid up, 
nonexclusive, irrevocable, worldwide license for all such computer 
software to reproduce, prepare derivative works, distribute copies to 
the public, and perform publicly and display publicly, by or on behalf 
of the Government.



PART 291_MANUFACTURING EXTENSION PARTNERSHIP; ENVIRONMENTAL PROJECTS--Table 
of Contents




Sec.
291.1 Program description.
291.2 Environmental integration projects.
291.3 Environmental tools and techniques projects.
291.4 National industry-specific pollution prevention and environmental 
          compliance resource centers.
291.5 Proposal selection process.
291.6 Additional requirements; Federal policies and procedures.


[[Page 420]]


    Authority: 15 U.S.C. Sec.  272(b)(1) and (c)(3) and Sec.  2781.

    Source: 60 FR 4082, Jan. 20, 1995, unless otherwise noted.



Sec.  291.1  Program description.

    (a) In accordance with the provisions of the National Institute of 
Standards and Technology Act (15 U.S.C. Sec.  272(b)(1) and (c)(3) and 
Sec.  2781), as amended, NIST will provide financial assistance to 
integrate environmentally-related services and resources into the 
national manufacturing extension system. This assistance will be 
provided by NIST often in cooperation with the EPA. Under the NIST 
Manufacturing Extension Partnership (MEP), NIST will periodically make 
merit-based awards to existing MEP manufacturing extension affiliates 
for integration of environmental services into extension centers and to 
non-profit organizations for development of environmentally-related 
tools and techniques. In addition, NIST will initiate pilot centers 
providing environmental information for specific industrial sectors to 
be specified in solicitations. MEP assumes a broad definition of 
manufacturing, and recognizes a wide range of technology and concepts, 
including durable goods production; chemical, biotechnology, and other 
materials processing; electronic component and system fabrication; and 
engineering services associated with manufacturing, as lying within the 
definition of manufacturing.
    (b) Announcements of solicitations. Announcements of solicitations 
will be made in the Commerce Business Daily. Specific information on the 
level of funding available and the deadline for proposals will be 
contained in that announcement. In addition, any specific industry 
sectors or types of tools and techniques to be focused on will be 
specified in the announcement.
    (c) Proposal workshops. Prior to an announcement of solicitation, 
NIST may announce opportunities for potential applicants to learn about 
these projects through workshops. The time and place of the workshop(s) 
will be contained in a Commerce Business Daily announcement.
    (d) Indirect costs. The total dollar amount of the indirect costs 
proposed in an application under this program must not exceed the 
indirect cost rate negotiated and approved by a cognizant Federal agency 
prior to the proposed effective date of the award or 100 percent of the 
total proposed direct costs dollar amount in the application, whichever 
is less.
    (e) Proposal format. The Proposal must not exceed 20 typewritten 
pages in length for integration proposals. Proposals for tools and 
techniques projects and national information centers must not exceed 30 
pages in length. The proposal must contain both technical and cost 
information. The Proposal page count shall include every page, including 
pages that contain words, table of contents, executive summary, 
management information and qualifications, resumes, figures, tables, and 
pictures. All proposals shall be printed such that pages are single-
sided, with no more than fifty-five (55) lines per page. Use 21.6x27.9 
cm (8\1/2\''x11'') paper or A4 metric paper. Use an easy-to-read font of 
not more than about 5 characters per cm (fixed pitch font of 12 or fewer 
characters per inch or proportional font of point size 10 or larger). 
Smaller type may be used in figures and tables, but must be clearly 
legible. Margins on all sides (top, bottom, left and right) must be at 
least 2.5 cm. (1''). The applicant may submit a separately bound 
document of appendices, containing letters of support for the Basic 
Proposal. The basic proposal should be self-contained and not rely on 
the appendices for meeting criteria. Excess pages in the Proposal will 
not be considered in the evaluation. Applicants must submit one signed 
original plus six copies of the proposal along with Standard Form 424, 
424A (Rev 4/92) and Form CD-511.
    (f) Content of basic proposal. The Basic Proposal must, at a 
minimum, include the following:
    (1) An executive summary summarizing the planned project consistent 
with the Evaluation Criteria stated in this notice.
    (2) A description of the planned project sufficient to permit 
evaluation of the proposal in accordance with the proposal Evaluation 
Criteria stated in this notice.

[[Page 421]]

    (3) A budget for the project which identifies all sources of funds 
and which breaks out planned expenditures by both activity and object 
class (e.g., personnel, travel, etc.).
    (4) A description of the qualifications of key personnel who will be 
assigned to work on the proposed project.
    (5) A statement of work that discusses the specific tasks to be 
carried out, including a schedule of measurable events and milestones.
    (6) A Standard Form 424, 424A (Rev 4-92) prescribed by the 
applicable OMB circular and Form CD-511, Certification Regarding 
Debarment, Suspension and Other Responsibility Matters; Drug-Free 
Workplace Requirements and Lobbying. SF-424, 424A (Rev 4-92) and Form 
CD-511 will not be considered part of the page count of the Basic 
Proposal.
    (7) The application requirements and the standard form requirements 
have been approved by OMB (OMB Control Number 0693-0010, 0348-0043 and 
0348-0044).
    (g) Applicable federal and departmental guidance. This includes: 
Administrative Requirements, Cost Principles, and Audits. [Dependent 
upon type of Recipient organization: nonprofit, for-profit, state/local 
government, or educational institution]
    (1) Nonprofit organizations.
    (i) OMB Circular A-110--Uniform Administrative Requirements of 
Grants and Agreements with Institutions of Higher Education, Hospitals, 
and Other Nonprofit Organizations.
    (ii) OMB Circular A-122--Cost Principles for Nonprofit 
Organizations.
    (iii) 15 CFR part 29b--Audit Requirements for Institutions of Higher 
Education and Other Nonprofit Organizations [implements OMB Circular A-
133--Audits for Institutions of Higher Education and Other Nonprofit 
Organizations].
    (2) State/local governments.
    (i) 15 CFR part 24--Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments.
    (ii) OMB Circular A-87--Cost Principles for State and Local 
Governments.
    (iii) 15 CFR part 29a--Audit Requirements for State and Local 
Governments [implements OMB Circular A-128--Audit of State and Local 
Governments].
    (3) Educational institutions.
    (i) OMB Circular A-110--Administrative Requirements for Grants and 
Agreements with Institutions of Higher Education, Hospitals, and Other 
Nonprofit Organizations.
    (ii) OMB Circular A-21--Cost Principles for Educational 
Institutions.
    (iii) 15 CFR part 29b--Audit Requirements for Institutions of Higher 
Education and Other Nonprofit Organizations [implements OMB Circular A-
133--Audits for Institutions of Higher Education and Other Nonprofit 
Organizations].



Sec.  291.2  Environmental integration projects.

    (a) Eligibility criteria. Eligible applicants for these projects are 
manufacturing extension centers or state technology extension programs 
which at the time of solicitation have grants, cooperative agreements or 
contracts with the NIST Manufacturing Extension Partnership. Only one 
proposal per organization per solicitation is permitted in this 
category.
    (b) Project objective. The purpose of these projects is to support 
the integration of environmentally-focused technical assistance, and 
especially pollution prevention assistance, for smaller manufacturers 
into the broader services provided by existing MEP manufacturing 
extension centers. Proposers are free to structure their project in 
whatever way will be most effective and efficient in increasing the 
ability of the center to deliver high quality environmental and 
pollution prevention technical assistance (either directly or in 
partnership with other organizations). Following are some examples of 
purposes for which these funds could be used. This list is by no means 
meant to be all inclusive. A center might propose a set of actions 
encompassing several of these examples as well as others.
    (1) Environmental needs assessment. Detailed assessment of the 
environmentally-related technical assistance needs of manufacturers 
within the state or region of the manufacturing extension center. This 
would be done as

[[Page 422]]

part of a broader plan to incorporate environmentally related services 
into the services of the manufacturing extension center. The center 
might propose to document its process and findings so that other centers 
may learn from its work.
    (2) Partnership with another organization. The center might propose 
to partner with an existing organization which is providing 
environmentally-focused technical assistance to manufacturers. The 
partnership would lead to greater integration of service delivery 
through joint technical assistance projects and joint training.
    (3) Accessing private-sector environmental resources. The center 
might propose to increase it's ability to access environmental technical 
services for smaller manufacturers from environmental consultants or 
environmental firms.
    (4) Training of field engineers/agents in environmental topics. 
Funding for training which empowers the field engineer/agent with the 
knowledge needed to recognize potential environmental, and especially 
pollution prevention, problems and opportunities. In addition, training 
might be funded which empowers the field engineer/agent with the 
knowledge needed to make appropriate recommendations for solutions or 
appropriate referrals to other sources of information or expertise. The 
over-arching goal is for the field engineer/agent to enable the 
manufacturer to be both environmentally clean and competitive.
    (5) Access to environmentally related information or expertise. A 
center might propose to fund access to databases or other sources of 
environmentally-related information or expertise which might be 
necessary to augment the environmentally focused activities of the 
manufacturing extension center.
    (6) Addition of environmentally focused staff. It may be necessary 
for manufacturing extension centers to have an environmental program 
manager or lead field engineer/agent with environmental training and 
experience. Funds could be requested to hire this person. However, the 
proposer would have to demonstrate a clear and reasonable plan for 
providing for the support of this person after the funds provided under 
this project are exhausted since no commitment is being made to on-going 
funding.
    (c) Award period. Projects initiated under this category may be 
carried out over multiple years. The proposer should include optional 
second and third years in their proposal. Proposals selected for award 
may receive one, two or three years of funding from currently available 
funds at the discretion of DOC. If an application is selected for 
funding, DOC has no obligation to provide any additional future funding 
in connection with that award. A separate cooperative agreement will be 
written with winning applicants. Renewal of an award to increase funding 
or extend the period of performance is at the total discretion of DOC. 
It is anticipated that successful projects will be given the opportunity 
to roll the funding for these efforts into the base funding for the 
extension center. Such a roll-over will be based on a performance review 
and the availability of funds.
    (d) Matching requirements. No matching funds are required for these 
proposals. However, the presence of matching funds (cash and in-kind) 
will be considered in the evaluation under the Financial Plan criteria.
    (e) Environmental integration projects evaluation criteria. In most 
solicitations, preference will be given to projects which are focused on 
a single industry sector. This is desired to build on the expertise and 
resources which are being built in tools and resources projects in these 
industry sectors. Industry focus will be specified in the solicitation 
announcement. However, actual services need not be limited exclusively 
to this sector. In addition preference may be given to extension centers 
which do not have extensive environmentally-related services already in 
place. In addition to these preferences, the criteria for selection of 
awards will be as follows in descending order of importance:
    (1) Demonstrated commitment to incorporating environmentally related 
services. The extension center must demonstrate its commitment to 
incorporate environmentally-related technical services into its overall 
manufacturing extension services even after

[[Page 423]]

funding for this project is exhausted. It is not the objective of this 
effort to establish completely autonomous environmentally focused 
extension centers. Rather, the goal is to ensure that such services are 
integrated directly with general manufacturing extension services 
focused on competitiveness. The center must demonstrate that such 
integration will take place. Factors that may be considered include: The 
amount of matching funds devoted to the efforts proposed as 
demonstration of the center's commitment to the activity; indication 
that environmental services are a significant aspect of the 
organization's long range planning; strength of commitment and plans for 
continuing service beyond funding which might be awarded through this 
project; the degree to which environmental services will become an 
integral part of each field engineers' portfolio of services; the level 
of current or planned education and training of staff on relevant 
environmental issues; and the extent of environmentally related 
information and expert resources which will be easily accessible by 
field engineers.
    (2) Demonstrated understanding of the environmentally related 
technical assistance needs of manufacturers in the target population. 
Target population must be clearly defined. The manufacturing center must 
demonstrate that it understands the populations environmentally related 
needs or include a coherent methodology for identifying those needs. The 
proposal should show that the efforts being proposed will enable the 
center to better meet those needs. Factors that may be considered 
include: A clear definition of the target population, its size and 
demographic characteristics; demonstrated understanding of the target 
population's environmental technical assistance needs or a plan to 
develop this understanding; and appropriateness of the size of the 
target population and the anticipated impact for the proposed 
expenditure.
    (3) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are providing high quality environmentally-related 
services to manufacturers in the same target population or which have 
relevant resources which can be of assistance in the proposed effort. If 
no such organizations exist, the proposal should build the case that 
there are no such organizations. Applicants will need to describe how 
they will coordinate to allow for increased economies of scale and to 
avoid duplication of services in providing assistance to small and 
medium-sized manufacturers. Factors that may be considered include: 
Demonstrated understanding of existing organizations and resources 
relevant for providing technology assistance related services to the 
target population; adequate linkages and partnerships with existing 
organizations and clear definition of those organizations' roles in the 
proposed activities; and that the proposed activity does not duplicate 
existing services or resources.
    (4) Program evaluation: The applicant should specify plans for 
evaluation of the effectiveness of the proposed program and for ensuring 
continuous improvement of program activities. Factors that may be 
considered include: Thoroughness of evaluation plans, including internal 
evaluation for management control, external evaluation for assessing 
outcomes of the activity, and ``customer satisfaction'' measures of 
performance.
    (5) Management experience and plans. Applicants should specify plans 
for proper organization, staffing, and management of the implementation 
process. Factors that may be considered include: Appropriateness and 
authority of the governing or managing organization to conduct the 
proposed activities; qualifications of the project team and its 
leadership to conduct the proposed activity; soundness of any staffing 
plans, including recruitment, selection, training, and continuing 
professional development; appropriateness of the organizational approach 
for carrying out the proposed activity; evidence of involvement and 
support by private industry.
    (6) Financial plan: Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and a plan to maintain the program after the

[[Page 424]]

cooperative agreement has expired. Factors that may be considered 
include: Reasonableness of the budget both in income and expenses; 
strength of commitment and amount of the proposer's cost share, if any; 
effectiveness of management plans for control of budget; appropriateness 
of matching contributions; and plans for maintaining the program after 
the cooperative agreement has expired.



Sec.  291.3  Environmental tools and techniques projects.

    (a) Eligibility criteria. Eligible applicants for these projects 
include all nonprofit organizations including universities, community 
colleges, state governments, state technology programs and independent 
nonprofit organizations. Organizations may submit multiple proposals 
under this category in each solicitation for unique projects.
    (b) Project objective. The purpose of these projects is to support 
the initial development and implementation of tools or techniques which 
will aide manufacturing extension organizations in providing 
environmentally-related services to smaller manufacturers and which may 
also be of direct use by the smaller manufacturers themselves. Specific 
industry sectors to be addressed and sub-categories of tools and 
techniques may be specified in solicitations. These sectors or sub-
categories will be specified in the solicitation announcement. Examples 
of tools and techniques include, but are not limited to, manufacturing 
assessment tools, environmental benchmarking tools, training delivery 
programs, electronically accessible environmental information resources, 
environmental demonstration facilities, software tools, etc. Projects 
must be completed within the scope of the effort proposed and should not 
require on-going federal support.
    (c) Award period. Projects initiated under this category may be 
carried out over up to three years. Proposals selected for award will 
receive all funding from currently available funds. If an application is 
selected for funding, DOC has no obligation to provide any additional 
future funding in connection with that award. Renewal of an award to 
increase funding or extend the period of performance is at the total 
discretion of DOC.
    (d) Matching requirements. No matching funds are required for these 
proposals. However, the presence of matching funds (cash and in-kind) 
will be considered in the evaluation under the Financial Plan criteria.
    (e) Environmental tools and techniques projects evaluation criteria. 
Proposals from applicants will be evaluated and rated on the basis of 
the following criteria listed in descending order of importance:
    (1) Demonstrated understanding of the environmentally-related 
technical assistance needs of manufacturers and technical assistance 
providers in the target population. Target population must be clearly 
defined. The proposal must demonstrate that it understands the 
population's environmentally related tool or technique needs. The 
proposal should show that the efforts being proposed meet the needs 
identified. Factors that may be considered include: A clear definition 
of the target population, size and demographic distribution; 
demonstrated understanding of the target population's environmental 
tools or techniques needs; and appropriateness of the size of the target 
population and the anticipated impact for the proposed expenditure.
    (2) Technology and information sources. The proposal must delineate 
the sources of technology and/or information which will be used to 
create the tool or resource. Sources may include those internal to the 
center (including staff expertise) or from other organizations. Factors 
that may be considered include: Strength of core competency in the 
proposed area of activity; and demonstrated access to relevant technical 
or information sources external to the organization.
    (3) Degree of integration with the manufacturing extension 
partnership. The proposal must demonstrate that the tool or resource 
will be integrated into and will be of service to the NIST Manufacturing 
Extension Centers. Factors that may be considered include: Ability to 
access the tool or resource especially for MEP extension centers; 
methodology for disseminating or promoting use of the tool or technique 
especially within the MEP system; and

[[Page 425]]

demonstrated interest in using the tool or technique especially by MEP 
extension centers.
    (4) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are developing or have expertise on similar tools or 
techniques. If no such organizations exist, the proposal should show 
that this the case. Applicants will need to describe how they will 
coordinate to allow for increased economies of scale and to avoid 
duplication. Factors that may be considered include: Demonstrated 
understanding of existing organizations and resources relevant to the 
proposed project; Adequate linkages and partnerships with existing 
organizations and clear definition of those organizations' roles in the 
proposed activities; and that the proposed activity does not duplicate 
existing services or resources.
    (5) Program evaluation. The applicant should specify plans for 
evaluation of the effectiveness of the proposed tool or technique and 
for ensuring continuous improvement of the tool. Factors that may be 
considered include: Thoroughness of evaluation plans, including internal 
evaluation for management control, external evaluation for assessing 
outcomes of the activity, and ``customer satisfaction'' measures of 
performance.
    (6) Management experience and plans. Applicants should specify plans 
for proper organization, staffing, and management of the implementation 
process. Factors that may be considered include: Appropriateness and 
authority of the governing or managing organization to conduct the 
proposed activities; qualifications of the project team and its 
leadership to conduct the proposed activity; soundness of any staffing 
plans, including recruitment, selection, training, and continuing 
professional development; and appropriateness of the organizational 
approach for carrying out the proposed activity.
    (7) Financial plan: Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and a plan to maintain the program after the 
cooperative agreement has expired. Factors that may be considerable 
include: Reasonableness of the budget, both in income and expenses; 
strength of commitment and amount of the proposers's cost share, if any; 
effectiveness of management plans for control of budget appropriateness 
of matching contributions; and plan for maintaining the program after 
the cooperative agreement has expired.



Sec.  291.4  National industry-specific pollution prevention and environmental 
compliance resource centers.

    (a) Eligibility criteria. Eligible applicants for these projects 
include all nonprofit organizations including universities, community 
colleges, state governments, state technology programs and independent 
nonprofit organizations. Only one proposal per organization is permitted 
in this category.
    (b) Project objective. These centers will provide easy access to 
relevant, current, reliable and comprehensive information on pollution 
prevention opportunities, regulatory compliance and technologies and 
techniques for reducing pollution in the most competitive manner for a 
specific industry sector or industrial process. The sector or industrial 
process to be addressed will be specified in the solicitation. The 
center will enhance the ability of small businesses to implement risk 
based pollution prevention alternatives to increase competitiveness and 
reduce adverse environmental impacts. The center should use existing 
resources, information and expertise and will avoid duplication of 
existing efforts. The information provided by the center will create 
links between relevant EPA Pollution Prevention programs, EPA and other 
technical information, NIST manufacturing extension efforts, EPA 
regulation and guidance, and state requirements. The center will 
emphasize pollution prevention methods as the principal means to both 
comply with government regulations and enhance competitiveness.
    (c) Project goal. To improve the environmental and competitive 
performance of smaller manufacturers by:
    (1) Enhancing the national capability to provide pollution 
prevention and

[[Page 426]]

regulatory requirements information (federal, state and local) to 
specific industries.
    (2) Providing easy access to relevant and reliable information and 
tools on pollution prevention technologies and techniques that achieve 
manufacturing efficiency and enhanced competitiveness with reduced 
environmental impact.
    (3) Providing easy access to relevant and reliable information and 
tools to enable specific industries to achieve the continued 
environmental improvement to meet or exceed compliance requirements.
    (d) Project customers. (1) The customers for this center will be the 
businesses in the industrial sector or businesses which use the 
industrial process specified as the focus for the solicitation. In 
addition, consultants providing services to those businesses, the NIST 
Manufacturing Extension Centers, and federal state and local programs 
providing technical, pollution prevention and compliance assistance.
    (2) The center should assist the customer in choosing the most cost- 
effective, environmentally sound options or practices that enhance the 
company's competitiveness. Assistance must be accessible to all 
interested customers. The center, wherever feasible, shall use existing 
materials and information to enhance and develop the services to its 
customers. The centers should rarely, if ever, perform research, but 
should find and assimilate data and information produced by other 
sources. The center should not duplicate any existing distribution 
system. The center should distribute and provide information, but should 
not directly provide on-site assistance to customers. Rather, referrals 
to local technical assistance organizations should be given when 
appropriate. Information would likely be available through multiple 
avenues such as phone, fax, electronically accessible data bases, 
printed material, networks of technical experts, etc.
    (e) Award period. The pilot initiated under this category may be 
carried out over multiple years. The proposers should include optional 
second and third years in their proposal. Proposals selected for award 
may receive one, two or three years of funding from currently available 
finds at the discretion of DOC. If an application is selected for 
funding, DOC has no obligation to provide any additional future funding 
in connection with that award. Renewal of an award to increase funding 
or extend the period of performance is at the total discretion of DOC. 
Successful centers may be given an opportunity to receive continuing 
funding as a NIST manufacturing center after the expiration of their 
initial cooperative agreement. Such a roll-over will be based upon the 
performance of the center and availability of funding.
    (f) Matching requirements. A matching contribution from each 
applicant will be required. NIST may provide financial support up to 50% 
of the total budget for the project. The applicant's share of the budget 
may include dollar contributions from state, county, industrial or other 
non-federal sources and non-federal in-kind contributions necessary and 
reasonable for proper accomplishment of project objectives.
    (g) Resource center evaluation criteria. Proposals from applicants 
will be evaluated and rated on the basis of the following criteria 
listed in descending order of importance:
    (1) Demonstrated understanding of the environmentally-related 
information needs of manufacturers and technical assistance providers in 
the target population. Understanding the environmentally-related needs 
of the target population (i.e., customers) is absolutely critical to the 
success of such a resource center. Factors that may be considered 
include: A clear definition of the target population, size and 
demographic distribution; demonstrated understanding of the target 
population's environmentally-related information needs or a clear plan 
for identifying those customer needs; and methodologies for continually 
improving the understanding of the target population's environmentally-
related information needs.
    (2) Delivery mechanisms. The proposal must set forth clearly 
defined, effective mechanisms for delivery of services to target 
population. Factors that may be considered include: Potential 
effectiveness and efficiency of proposed delivery systems; and 
demonstrated capacity to

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form the effective linkages and partnerships necessary for success of 
the proposed activity.
    (3) Technology and information sources. The proposal must delineate 
the sources of information which will be used to create the 
informational foundation of the resource center. Sources may include 
those internal to the Center (including staff expertise), but it is 
expected that many sources will be external. Factors that may be 
considered include: Strength of core competency in the proposed area of 
activity; demonstrated access to relevant technical or information 
sources external to the organization.
    (4) Degree of integration with the manufacturing extension 
partnership and other technical assistance providers. The proposal must 
demonstrate that the source center will be integrated into the system of 
services provided by the NIST Manufacturing Extension Partnership and 
other technical assistance providers. Factors that may be considered 
include: Ability of the target population including MEP Extension 
Centers to access the resource center; and methodology for disseminating 
or promoting use of the resource center especially within the MEP 
system.
    (5) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are developing or have expertise on similar tools or 
techniques. If no such organizations exist, the proposal should show 
that this is the case. Applicants will need to describe how they will 
coordinate to allow for increased economies of scale and to avoid 
duplication. Factors that may be considered include: Demonstrated 
understanding of existing organizations and resources relevant to the 
proposed project; and adequate linkages and partnerships with existing 
organizations and clear definition of those organizations' roles in the 
proposed activities.
    (6) Program evaluation. The applicant should specify plans for 
evaluation of the effectiveness of the proposed resource center and for 
ensuring continuous improvement. Factors that may be considered include: 
Thoroughness of evaluation plans, including internal evaluation for 
management control, external evaluation for assessing outcomes of the 
activity, and ``customer satisfaction'' measures of performance; and the 
proposer's plan must include documentation, analysis of the results, and 
must show how the results can be used in improving the resource center.
    (7) Management experience and Plans. Applicants should specify Plans 
for proper organization, staffing, and management of the implementation 
process. Factors that may be considered include: Appropriateness and 
authority of the governing or managing organization to conduct the 
proposed activities; qualifications and experience of the project team 
and its leadership to conduct the proposed activity; soundness of any 
staffing plans, including recruitment, selection, training, and 
continuing professional development; and appropriateness of the 
organizational approach for carrying out the proposed activity.
    (8) Financial plan. Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and a plan to maintain the program after the 
cooperative agreement has expired. Factors that may be considered 
include: Reasonableness of the budget, both in income and expenses; 
strength of commitment and amount of the proposer's cost share; 
effectiveness of management plans for control of the budget; and 
appropriateness of matching contributions.



Sec.  291.5  Proposal selection process.

    The proposal evaluation and selection process will consist of three 
principal phases: Proposal qualification; proposal review and selection 
of finalists; and award determination.
    (a) Proposal qualification. All proposals will be reviewed by NIST 
to assure compliance with the proposal content and other basic 
provisions of this notice. Proposals which satisfy these requirements 
will be designated qualified proposals; all others will be disqualified 
at this phase of the evaluation and selection process.
    (b) Proposal review and selection of finalists. NIST will appoint an 
evaluation panel composed of NIST and in some

[[Page 428]]

cases other federal employees to review and evaluate all qualified 
proposals in accordance with the evaluation criteria and values set 
forth in this notice. A site visit may be required to make full 
evaluation of a proposal. From the qualified proposals, a group of 
finalists will be numerically ranked and recommended for award based on 
this review.
    (c) Award determination. The Director of the NIST, or her/his 
designee, shall select awardees based on total evaluation scores, 
geographic distribution, and the availability of funds. All three 
factors will be considered in making an award. Upon the final award 
decision, a notification will be made to each of the proposing 
organizations.



Sec.  291.6  Additional requirements; Federal policies and procedures.

    Recipients and subrecipients are subject to all Federal laws and 
Federal and Department of Commerce policies, regulations, and procedures 
applicable to Federal financial assistance awards.



PART 292_MANUFACTURING EXTENSION PARTNERSHIP; INFRASTRUCTURE DEVELOPMENT 
PROJECTS--Table of Contents




Sec.
292.1 Program description.
292.2 Training development and deployment projects.
292.3 Technical tools, techniques, practices, and analyses projects.
292.4 Information infrastructure projects.
292.5 Proposal selection process.
292.6 Additional requirements.

    Authority: 15 U.S.C. 272 (b)(1) and (c)(3) and 278l.

    Source: 60 FR 44751, Aug. 29, 1995, unless otherwise noted.



Sec.  292.1  Program description.

    (a) Purpose. In accordance with the provisions of the National 
Institute of Standards and Technology Act (15 U.S.C. 272 (b)(1) and 
(c)(3) and 278l), as amended, NIST will provide financial assistance to 
develop the infrastructure of the national manufacturing extension 
system. Under the NIST Manufacturing Extension Partnership (MEP), NIST 
will periodically make merit-based awards to develop and deploy training 
capability and technical tools, techniques, practices, and analyses. In 
addition, NIST will develop and implement information infrastructure 
services and pilots. MEP assumes a broad definition of manufacturing, 
and recognizes a wide range of technology and concepts, including 
durable goods production; chemical, biotechnology, and other materials 
processing; electronic component and system fabrication; and engineering 
services associated with manufacturing, as lying within the definition 
of manufacturing.
    (b) Announcements of solicitations. Announcements of solicitations 
will be made in the Commerce Business Daily. Specific information on the 
level of funding available and the deadline for proposals will be 
contained in that announcement. In addition, any specific industry 
sectors or types of tools and techniques to be focused on will be 
specified in the announcement, as well as any further definition of the 
selection criteria.
    (c) Proposal workshops. Prior to an announcement of solicitation, 
NIST may announce opportunities for potential applicants to learn about 
these projects through workshops. The time and place of the workshop(s) 
will be contained in a Commerce Business Daily announcement.
    (d) Indirect costs. The total dollar amount of the indirect costs 
proposed in an application under this program must not exceed the 
indirect cost rate negotiated and approved by a cognizant Federal agency 
prior to the proposed effective date of the award or 100 percent of the 
total proposed direct costs dollar amount in the application, whichever 
is less.
    (e) Proposal format. The proposal must contain both technical and 
cost information. The proposal page count shall include every page, 
including pages that contain words, table of contents, executive 
summary, management information and qualifications, resumes, figures, 
tables, and pictures. All proposals shall be printed such that pages are 
single-sided, with no more than fifty-five (55) lines per page. Use 
21.6x27.9 cm (8\1/2\''x11'') paper or A4 metric paper. Use an easy-to-
read font of not more than about 5 characters per

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cm (fixed pitch font of 12 or fewer characters per inch or proportional 
font of point size 10 or larger). Smaller type may be used in figures 
and tables, but must be clearly legible. Margins on all sides (top, 
bottom, left and right) must be at lease 2.5 cm. (1''). Length 
limitations for proposals will be specified in solicitations. The 
applicant may submit a separately bound document of appendices, 
containing letters of support for the proposal. The proposal should be 
self-contained and not rely on the appendices for meeting criteria. 
Excess pages in the proposal will not be considered in the evaluation. 
Applicants must submit one signed original plus six copies of the 
proposal and Standard Form 424, 424A, and 424B (Rev 4/92), Standard Form 
LLL, and Form CD-511. Applicants for whom the submission of six copies 
presents financial hardship may submit one original and two copies of 
the application.
    (f) Content of proposal. (1) The proposal must, at a minimum, 
include the following:
    (i) An executive summary summarizing the planned project consistent 
with the Evaluation Criteria stated in this part.
    (ii) A description of the planned project sufficient to permit 
evaluation of the proposal in accordance with the proposal Evaluation 
Criteria stated in this part.
    (iii) A budget for the project which identifies all sources of funds 
and which breaks out planned expenditures by both activity and object 
class (e.g., personnel, travel, etc.).
    (iv) A description of the qualifications of key personnel who will 
be assigned to work on the proposed project.
    (v) A statement of work that discusses the specific tasks to be 
carried out, including a schedule of measurable events and milestones.
    (vi) A completed Standard Form 424, 424A, and 424B (Rev 4-92) 
prescribed by the applicable OMB circular, Standard Form LLL, and Form 
CD-511, Certification Regarding Debarment, Suspension and Other 
Responsibility Matters; Drug-Free Workplace Requirements and Lobbying. 
SF-424, 424A, 424B (Rev 4-92), SF-LLL, and Form CD-511 will not be 
considered part of the page count of the proposal.
    (2) The application requirements and the standard form requirements 
have been approved by OMB (OMB Control Number 0693-0005, 0348-0043 and 
0348-0044).
    (g) Applicable federal and departmental guidance. The Administrative 
Requirements, Cost Principles, and Audits are dependent upon type of 
Recipient organization as follows:
    (1) Nonprofit organizations. (i) OMB Circular A-110--Uniform 
Administrative Requirements for Grants and Agreements with Institutions 
of Higher Education, Hospitals, and Other Nonprofit Organizations.
    (ii) OMB Circular A-122--Cost Principles for Nonprofit 
Organizations.
    (iii) 15 CFR Part 29b--Audit Requirements for Institutions of Higher 
Education and Other Nonprofit Organizations (implements OMB Circular A-
133--Audits for Institutions of Higher Education and Other Nonprofit 
Organizations).
    (2) State/local governments. (i) 15 CFR Part 24--Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
State and Local Governments.
    (ii) OMB Circular A-87--Cost Principles for State and Local 
Governments.
    (iii) 15 CFR Part 29a--Audit Requirements for State and Local 
Governments (implements OMB Circular A-128--Audit of State and Local 
Governments).
    (3) Educational institutions. (i) OMB Circular A-110--Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, and Other Nonprofit Organizations.
    (ii) OMB Circular A-21--Cost Principles for Educational 
Institutions.
    (iii) 15 CFR Part 29b--Audit Requirements for Institutions of Higher 
Education and Other Nonprofit Organizations (implements OMB Circular A-
133--Audits for Institutions of Higher Education and Other Nonprofit 
Organizations).
    (4) For-profit organizations. (i) OMB Circular A-110--Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, and Other Nonprofit Organizations.

[[Page 430]]

    (ii) 48 CFR Part 31--Federal Acquisition Regulation, Contract Cost 
Principles and Procedures.
    (iii) 15 CFR Part 29b--Audit Requirements for Institutions of Higher 
Education and Other Nonprofit Organizations (implements OMB Circular A-
133).
    (h) Availability of forms and circulars. (1) Copies of forms 
referenced in this part may be obtained from the Manufacturing Extension 
Partnership, National Institute of Standards and Technology, Room C121, 
Building 301, Gaithersburg, MD 20899.
    (2) Copies of OMB Circulars may be obtained from the Office of 
Administration, Publications Office, 725 17th St., NW, Room 2200, New 
Executive Office Building, Washington, DC 20503.



Sec.  292.2  Training development and deployment projects.

    (a) Eligibility criteria. In general, eligible applicants for these 
projects include all for-profit and nonprofit organizations including 
universities, community colleges, state governments, state technology 
programs and independent nonprofit organizations. However, specific 
limitations on eligibility may be specified in solicitations. 
Organizations may submit multiple proposals under this category in each 
solicitation for unique projects.
    (b) Project objective. The purpose of these projects is to support 
the development and deployment of training programs which will aid 
manufacturing extension organizations in providing services to smaller 
manufacturers. While primarily directed toward the field agents/
engineers of the extension organizations, the training may also be of 
direct use by the smaller manufacturers themselves. Specific industry 
sectors to be addressed and sub-categories of training may be specified 
in solicitations. Examples of training topic areas include, but are not 
limited to, manufacturing assessment functions, business systems 
management, quality assurance assistance, and financial management 
activities. Examples of training program deployment include, but are not 
limited to, organization and conduct of training courses, development 
and conduct of train-the-trainer courses, preparations and delivery of 
distance learning activities, and preparation of self-learning and 
technical-guideline materials. Projects must be completed within the 
scope of the effort proposed and should not require on-going federal 
support.
    (c) Award period. Projects initiated under this category may be 
carried out over a period of up to three years. If an application is 
selected for funding, DOC has no obligation to provide any additional 
future funding in connection with that award. Renewal of an award to 
increase funding or extend the period of performance is at the total 
discretion of DOC.
    (d) Matching requirements. Matching fund requirements for these 
proposals will be specified in solicitations including the breakdown of 
cash and in-kind requirements. For those projects not requiring matching 
funds, the presence of match will be considered in the evaluation under 
the Financial Plan criteria.
    (e) Training development and deployment projects evaluation 
criteria. Proposals will be evaluated and rated on the basis of the 
following criteria listed in descending order of importance:
    (1) Demonstration that the proposed project will meet the training 
needs of technical assistance providers and manufacturers in the target 
population. The target population must be clearly defined and the 
proposal must demonstrate that it understands the population's training 
needs within the proposed project area. The proposal should show that 
the efforts being proposed meet the needs identified. Factors that may 
be considered include: A clear definition of the target population, size 
and demographic distribution; demonstrated understanding of the target 
population's training needs; and appropriateness of the size of the 
target population and the anticipated impact for the proposed 
expenditure.
    (2) Development/deployment methodology and use of appropriate 
technology and information sources. The proposal must describe the 
technical plan for the development or deployment of the training, 
including the project activities to be used in the training development/
deployment and the sources of technology and/or information which will 
be used to create or deploy the

[[Page 431]]

training activity. Sources may include those internal to the proposer or 
from other organizations. Factors that may be considered include: 
Adequacy of the proposed technical plan; strength of core competency in 
the proposed area of activity; and demonstrated access to relevant 
technical or information sources external to the organization.
    (3) Delivery and implementation mechanisms. The proposal must set 
forth clearly defined, effective mechanisms for delivery and/or 
implementation of proposed services to the target population. The 
proposal also must demonstrate that training activities will be 
integrated into and will be of service to the NIST Manufacturing 
Extension Centers. Factors that may be considered include: Ease of 
access to the training activity especially for MEP extension centers; 
methodology for disseminating or promoting involvement in the training 
especially within the MEP system; and demonstrated interest in the 
training activity especially by MEP extension centers.
    (4) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are developing or have expertise with similar 
training. If no such organizations exist, the proposal should show that 
this is the case. Applicants will need to describe how they will 
coordinate to allow for increased economies of scale and to avoid 
duplication. Factors that may be considered include: Demonstrated 
understanding of existing organizations and resources relevant to the 
proposed project; adequate linkages and partnerships with existing 
organizations and clear definition of those organizations' roles in the 
proposed activities; and that the proposed activity does not duplicate 
existing services or resources.
    (5) Program evaluation. The applicant should specify plans for 
evaluation of the effectiveness of the proposed training activity and 
for ensuring continuous improvement of the training. Factors that may be 
considered include: Thoroughness of evaluation plans, including internal 
evaluation for management control, external evaluation for assessing 
outcomes of the activity, and ``customer satisfaction'' measures of 
performance.
    (6) Management and organizational experience and plans. Applicants 
should specify plans for proper organization, staffing, and management 
of the implementation process. Factors that may be considered include: 
Appropriateness and authority of the governing or managing organization 
to conduct the proposed activities; qualifications of the project team 
and its leadership to conduct the proposed activity; soundness of any 
staffing plans, including recruitment, selection, training, and 
continuing professional development; and appropriateness of the 
organizational approach for carrying out the proposed activity.
    (7) Financial plan. Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and a plan to maintain the program after the 
cooperative agreement has expired. Factors that may be considered 
include: Reasonableness of the budget, both in income and expenses; 
strength of commitment and amount of the proposer's cost share, if any; 
effectiveness of management plans for control of budget; appropriateness 
of matching contributions; and plan for maintaining the program after 
the cooperative agreement has expired.



Sec.  292.3  Technical tools, techniques, practices, and analyses projects.

    (a) Eligibility criteria. In general, eligible applicants for these 
projects include all for profit and nonprofit organizations including 
universities, community colleges, state governments, state technology 
programs and independent nonprofit organizations. However, specific 
limitations on eligibility may be specified in solicitations. 
Organizations may submit multiple proposals under this category in each 
solicitation for unique projects.
    (b) Project objective. The purpose of these projects is to support 
the initial development, implementation, and analysis of tools, 
techniques, and practices which will aid manufacturing extension 
organizations in providing services to smaller manufacturers and

[[Page 432]]

which may also be of direct use by the smaller manufacturers themselves. 
Specific industry sectors to be addressed and sub-categories of tools, 
techniques, practices, and analyses may be specified in solicitations. 
Examples of tools, techniques, and practices include, but are not 
limited to, manufacturing assessment tools, benchmarking tools, business 
systems management tools, quality assurance assistance tools, financial 
management tools, software tools, practices for partnering, techniques 
for urban or rural firms, and comparative analysis of assessment 
methods. Projects must be completed within the scope of the effort 
proposed and should not require on-going federal support.
    (c) Award period. Projects initiated under this category may be 
carried out over a period of up to three years. If an application is 
selected for funding, DOC has no obligation to provide any additional 
future funding in connection with that award. Renewal of an award to 
increase funding or extend the period of performance is at the total 
discretion of DOC.
    (d) Matching requirements. Matching fund requirements for these 
proposals will be specified in solicitations including the breakdown of 
cash and in-kind requirements. For those projects not requiring matching 
funds, the presence of match will be considered in the evaluation under 
the Financial Plan criteria.
    (e) Tools, techniques, practices, and analyses projects evaluation 
criteria. Proposals from applicants will be evaluated and rated on the 
basis of the following criteria listed in descending order of 
importance:
    (1) Demonstration that the proposed project will meet the technical 
assistance needs of technical assistance providers and manufacturers in 
the target population. Target population must be clearly defined. The 
proposal must demonstrate that it understands the population's tool or 
technique needs within the proposed project area. The proposal should 
show that the efforts being proposed meet the needs identified. Factors 
that may be considered include: A clear definition of the target 
population, size and demographic distribution; demonstrated 
understanding of the target population's tools or technique needs; and 
appropriateness of the size of the target population and the anticipated 
impact for the proposed expenditure.
    (2) Development methodology and use of appropriate technology and 
information sources. The proposal must describe the technical plan for 
the development of the tool or resource, including the project 
activities to be used in the tool/resource development and the sources 
of technology and/or information which will be used to create the tool 
or resource. Sources may include those internal to the proposer or from 
other organizations. Factors that may be considered include: Adequacy of 
the proposed technical plan; strength of core competency in the proposed 
area of activity; and demonstrated access to relevant technical or 
information sources external to the organization.
    (3) Degree of integration with the manufacturing extension 
partnership. The proposal must demonstrate that the tool or resource 
will be integrated into and will be of service to the NIST Manufacturing 
Extension Centers. Factors that may be considered include: Ability to 
access the tool or resource especially for MEP extension centers; 
methodology for disseminating or promoting use of the tool or technique 
especially within the MEP system; and demonstrated interest in using the 
tool or technique especially by MEP extension centers.
    (4) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are developing or have expertise on similar tools, 
techniques, practices, or analyses. If no such organizations exist, the 
proposal should show that this is the case. Applicants will need to 
describe how they will coordinate to allow for increased economies of 
scale and to avoid duplication. Factors that may be considered include: 
Demonstrated understanding of existing organizations and resources 
relevant to the proposed project; adequate linkages and partnerships 
with existing organizations and clear definition of those organizations' 
roles in the proposed activities; and that the proposed activity does 
not duplicate existing services or resources.

[[Page 433]]

    (5) Program evaluation. The applicant should specify plans for 
evaluation of the effectiveness of the proposed tool or technique and 
for ensuring continuous improvement of the tool. Factors that may be 
considered include: Thoroughness of evaluation plans, including internal 
evaluation for management control, external evaluation for assessing 
outcomes of the activity, and ``customer satisfaction'' measures of 
performance.
    (6) Management experience and plans. Applicants should specify plans 
for proper organization, staffing, and management of the implementation 
process. Factors that may be considered include: Appropriateness and 
authority of the governing or managing organization to conduct the 
proposed activities; qualifications of the project team and its 
leadership to conduct the proposed activity; soundness of any staffing 
plans, including recruitment, selection, training, and continuing 
professional development; and appropriateness of the organizational 
approach for carrying out the proposed activity.
    (7) Financial plan. Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and a plan to maintain the program after the 
cooperative agreement has expired. Factors that may be considered 
include: Reasonableness of the budget, both in income and expenses; 
strength of commitment and amount of the proposer's cost share, if any; 
effectiveness of management plans for control of budget; appropriateness 
of matching contributions; and plan for maintaining the program after 
the cooperative agreement has expired.



Sec.  292.4  Information infrastructure projects.

    (a) Eligibility criteria. In general, eligible applicants for these 
projects include all for profit and nonprofit organizations including 
universities, community colleges, state governments, state technology 
programs and independent nonprofit organizations. However, specific 
limitations on eligibility may be specified in solicitations. 
Organizations may submit multiple proposals under this category in each 
solicitation for unique projects.
    (b) Project objective. The purpose of these projects is to support 
and act as a catalyst for the development and implementation of 
information infrastructure services and pilots. These projects will aid 
manufacturing extension organizations and smaller manufacturers in 
accessing the technical information they need or will accelerate the 
rate of adoption of electronic commerce. Specific industry sectors to be 
addressed or subcategories of information infrastructure projects 
include, but are not limited to, pilot demonstration of electronic data 
interchange in a supplier chain, implementation of an electronic 
information service for field engineers at MEP extension centers, and 
industry specific electronic information services for MEP centers and 
smaller manufacturers.
    (c) Award period. Projects initiated under this category may be 
carried out over a period of up to three years. If an application is 
selected for funding, DOC has no obligation to provide any additional 
future funding in connection with that award. Renewal of an award to 
increase funding or extend the period of performance is at the total 
discretion of DOC.
    (d) Matching requirements. Matching fund requirements for these 
proposals will be specified in solicitations including the breakdown of 
cash and in-kind requirements. For those projects not requiring matching 
funds, the presence of match will be considered in the evaluation under 
the Financial Plan criteria.
    (e) Information infrastructure projects evaluation criteria. 
Proposals from applicants will be evaluated and rated on the basis of 
the following criteria listed in descending order of importance:
    (1) Demonstration that the proposed project will meet the need of 
the target customer base. The target customer base must be clearly 
defined and, in general, will be technical assistance providers and/or 
smaller manufacturers. The proposal should demonstrate a clear 
understanding of the customer base's needs within the proposed project 
area. The proposal should also show that the efforts being proposed meet 
the needs

[[Page 434]]

identified. Factors that may be considered include: A clear definition 
of the customer base, size and demographic distribution; demonstrated 
understanding of the customer base's needs within the project area; and 
appropriateness of the size of the customer base and the anticipated 
impact for the proposed expenditure.
    (2) Development plans and delivery/implementation mechanisms. The 
proposal must set forth clearly defined, effective plans for the 
development, delivery and/or implementation of proposed services to the 
customer base. The proposal must delineate the sources of information 
which will be used to implement the project. Sources may include those 
internal to the center (including staff expertise) or from other 
organizations. Factors that may be considered include: Adequacy of 
plans; potential effectiveness and efficiency of proposed delivery and 
implementation systems; demonstrated capacity to form effective 
linkages; partnerships necessary for success of the proposed activity; 
strength of core competency in the proposed area of activity; and 
demonstrated access to relevant technical or information sources 
external to the organization.
    (3) Coordination with other relevant organizations. Wherever 
possible the project should be coordinated with and leverage other 
organizations which are developing or have expertise within the project 
area. In addition, the project should demonstrate that it does not 
duplicate efforts which already are being performed by the private 
sector without government support. Applicants will need to describe how 
they will coordinate to allow for increased economies of scale and to 
avoid duplication. If the proposer will not be partnering with any other 
organizations, then the proposal should clearly explain why the project 
will be more successful if implemented as proposed. A proposal which 
makes a credible case for why there are no, or very limited, 
partnerships will not be penalized in evaluation. Factors that may be 
considered include: Demonstrated understanding of existing organizations 
and resources relevant to the proposed project; Adequate linkages and 
partnerships with relevant existing organizations; clear definition of 
the roles of partnering organizations in the proposed activities; and 
that the proposed activity does not duplicate existing services or 
resources.
    (4) Management and organizational experience and plans. Applicants 
should specify plans for proper organization, staffing, and management 
of the project. Factors that may be considered include: Appropriateness 
and authority of the governing or managing organization to conduct the 
proposed activities; qualifications of the project team and its 
leadership to conduct the proposed activity; soundness of any staffing 
plans, including recruitment, selection, training, and continuing 
professional development; and appropriateness of the organizational 
approach for carrying out the proposed activity.
    (5) Financial plan. Applicants should show the relevance and cost 
effectiveness of the financial plan for meeting the objectives of the 
project; the firmness and level of the applicant's total financial 
support for the project; and the ability of the project to continue 
after the cooperative agreement has expired without federal support. 
While projects that appear to require on-going public support will be 
considered, in general, they will be evaluated lower than those which 
show a strong ability to become self-sufficient. Factors that may be 
considered include: Reasonableness of the budget, both in income and 
expenses; strength of commitment and amount of the proposer's cost 
share, if any; effectiveness of management plans for control of budget; 
appropriateness of matching contributions; and plan for maintaining the 
program after the cooperative agreement has expired.
    (6) Evaluation. The applicant should specify plans for evaluation of 
the effectiveness of the proposed project and for ensuring continuous 
improvement. Factors that may be considered include: Thoroughness of 
evaluation plans, including internal evaluation for management control, 
external evaluation for assessing outcomes of the activity, and 
``customer satisfaction'' measures of performance.

[[Page 435]]



Sec.  292.5  Proposal selection process.

    The proposal evaluation and selection process will consist of three 
principal phases: Proposal qualifications; proposal review and selection 
of finalists; and award determination as follows:
    (a) Proposal qualification. All proposals will be reviewed by NIST 
to assure compliance with the proposal content and other basic 
provisions of this part. Proposals which satisfy these requirements will 
be designated qualified proposals; all others will be disqualified at 
this phase of the evaluation and selection process.
    (b) Proposal review and selection of finalists. NIST will appoint an 
evaluation panel to review and evaluate all qualified proposals in 
accordance with the evaluation criteria and values set forth in this 
part. Evaluation panels will consist of NIST employees and in some cases 
other federal employees or non-federal experts who sign non-disclosure 
agreements. A site visit may be required to make full evaluation of a 
proposal. From the qualified proposals, a group of finalists will be 
numerically ranked and recommended for award based on this review.
    (c) Award determination. The Director of the NIST, or her/his 
designee, shall select awardees based on total evaluation scores, 
geographic distribution, and the availability of funds. All three 
factors will be considered in making an award. Upon the final award 
decision, a notification will be made to each of the proposing 
organizations.



Sec.  292.6  Additional requirements.

    Federal policies and procedures. Recipients and subrecipients are 
subject to all Federal laws and Federal and Department of Commerce 
policies, regulations, and procedures applicable to Federal financial 
assistance awards.



PART 295_ADVANCED TECHNOLOGY PROGRAM--Table of Contents




                            Subpart A_General

Sec.
295.1 Purpose.
295.2 Definitions.
295.3 Eligibility of United States- and foreign-owned businesses.
295.4 The selection process.
295.5 Use of pre-proposals in the selection process.
295.6 Criteria for selection.
295.7 Notice of availability of funds.
295.8 Intellectual property rights; publication of research results.
295.9 Protection of confidential information.
295.10 Special reporting and auditing requirements.
295.11 Technical and educational services for ATP recipients.

 Subpart B_Assistance to United States Industry-Led Joint Research and 
                          Development Ventures

295.20 Types of assistance available.
295.21 Qualifications of proposers.
295.22 Limitations on assistance.
295.23 Dissolution of joint research and development ventures.
295.24 Registration.
295.25 Special rule for the valuation of transfers between separately-
          owned joint venture members.

         Subpart C_Assistance to Single-Proposer U.S. Businesses

295.30 Types of assistance available.
295.31 Qualification of proposers.
295.32 Limitations on assistance.

    Authority: 15 U.S.C. 278n.

    Source: 55 FR 30145, July 24, 1990, unless otherwise noted.



                            Subpart A_General



Sec.  295.1  Purpose.

    (a) The purpose of the Advanced Technology Program (ATP) is to 
assisted United States businesses to carry out research and development 
on high risk, high pay-off, emerging and enabling technologies. These 
technologies are:
    (1) High risk, because the technical challenges make success 
uncertain;
    (2) High pay-off, because when applied they offer significant 
benefits to the U.S. economy; and
    (3) Emerging and enabling, because they offer wide breadth of 
potential application and form an important technical basis for future 
commercial applications.
    (b) The rules in this part prescribe policies and procedures for the 
award of cooperative agreements under the Advanced Technology Program in

[[Page 436]]

order to ensure the fair treatment of all proposals. While the Advanced 
Technology Program is authorized to enter into grants, cooperative 
agreements, and contracts to carry out its mission, the rules in this 
part address only the award of cooperative agreements. The Program 
employs cooperative agreements rather than grants because such 
agreements allow ATP to exercise appropriate management oversight of 
projects and also to link ATP-funded projects to ongoing R&D at the 
National Institute of Standards and Technology wherever such linkage 
would increase the likelihood of success of the project.
    (c) In carrying out the rules in this part, the Program endeavors to 
put more emphasis on joint ventures and consortia with a broad range of 
participants, including large companies, and less emphasis on support of 
individual large companies.

[62 FR 64684, Dec. 9, 1997]



Sec.  295.2  Definitions.

    (a) For the purposes of the ATP, the term award means Federal 
financial assistance made under a grant or cooperative agreement.
    (b) The term company means a for-profit organization, including sole 
proprietors, partnerships, limited liability companies (LLCs), or 
corporations.
    (c) The term cooperative agreement refers to a Federal assistance 
instrument used whenever the principal purpose of the relationship 
between the Federal Government and the recipient is the transfer of 
money, property, or services, or anything of value to the recipient to 
accomplish a public purpose of support or stimulation authorized by 
Federal statute, rather than acquisition by purchase, lease, or barter, 
of property or services for the direct benefit or use of the Federal 
Government; and substantial involvement is anticipated between the 
executive agency, acting for the Federal Government, and the recipient 
during performance of the contemplated activity.
    (d) The term direct costs means costs that can be identified readily 
with activities carried out in support of a particular final objective. 
A cost may not be allocated to an award as a direct cost if any other 
cost incurred for the same purpose in like circumstances has been 
assigned to an award as an indirect cost. Because of the diverse 
characteristics and accounting practices of different organizations, it 
is not possible to specify the types of costs which may be classified as 
direct costs in all situations. However, typical direct costs could 
include salaries of personnel working on the ATP project and associated 
reasonable fringe benefits such as medical insurance. Direct costs might 
also include supplies and materials, special equipment required 
specifically for the ATP project, and travel associated with the ATP 
project. ATP shall determine the allowability of direct costs in 
accordance with applicable Federal cost principles.
    (e) The term foreign-owned company means a company other than a 
United States-owned company as defined in Sec.  295.2(q).
    (f) The term grant means a Federal assistance instrument used 
whenever the principal purpose of the relationship between the Federal 
Government and the recipient is the transfer of money, property, 
services, or anything of value to the recipient in order to accomplish a 
public purpose of support or stimulation authorized by Federal statute, 
rather than acquisition by purchase, lease, or barter, of property or 
services for the direct benefit or use of the Federal Government; and no 
substantial involvement is anticipated between the executive agency, 
acting for the Federal Government, and the recipient during performance 
of the contemplated activity.
    (g) The term independent research organization (IRO) means a 
nonprofit research and development corporation or association organized 
under the laws of any state for the purpose of carrying out research and 
development on behalf of other organizations.
    (h) The term indirect costs means those costs incurred for common or 
joint objectives that cannot be readily identified with activities 
carried out in support of a particular final objective. A cost may not 
be allocated to an award as an indirect cost if any other cost incurred 
for the same purpose in like circumstances has been assigned to an award 
as a direct cost. Because of diverse characteristics and accounting

[[Page 437]]

practices it is not possible to specify the types of costs which may be 
classified as indirect costs in all situations. However, typical 
examples of indirect costs include general administration expenses, such 
as the salaries and expenses of executive officers, personnel 
administration, maintenance, library expenses, and accounting. ATP shall 
determine the allowability of indirect costs in accordance with 
applicable Federal cost principles.
    (i) The term industry-led joint research and development venture or 
joint venture means a business arrangement that consists of two or more 
separately-owned, for-profit companies that perform research and 
development in the project; control the joint venture's membership, 
research directions, and funding priorities; and share total project 
costs with the Federal government. The joint venture may include 
additional companies, independent research organizations, universities, 
and/or governmental laboratories (other than NIST) which may or may not 
contribute funds (other than Federal funds) to the project and perform 
research and development. A for-profit company or an independent 
research organization may serve as an Administrator and perform 
administrative tasks on behalf of a joint venture, such as handling 
receipts and disbursements of funds and making antitrust filings. The 
following activities are not permissible for ATP funded joint ventures:
    (1) Exchanging information among competitors relating to costs, 
sales, profitability, prices, marketing, or distribution of any product, 
process, or service that is not reasonably required to conduct the 
research and development that is the purpose of such venture;
    (2) Entering into any agreement or engaging in any other conduct 
restricting, requiring, or otherwise involving the production or 
marketing by any person who is a party to such joint venture of any 
product, process, or service, other than the production or marketing of 
proprietary information developed through such venture, such as patents 
and trade secrets; and
    (3) Entering into any agreement or engaging in any other conduct:
    (i) To restrict or require the sale, licensing, or sharing of 
inventions or developments not developed through such venture, or
    (ii) To restrict or require participation by such party in other 
research and development activities, that is not reasonably required to 
prevent misappropriation of proprietary information contributed by any 
person who is a party to such venture or of the results of such venture.
    (j) The term intellectual property means an invention patentable 
under title 35, United States Code, or any patent on such an invention.
    (k) The term large business for a particular ATP competition means 
any business, including any parent company plus related subsidiaries, 
having annual revenues in excess of the amount published by ATP in the 
relevant annual notice of availability of funds required by Sec.  
295.7(a). In establishing this amount, ATP may consider the dollar value 
of the total revenues of the 500th company in Fortune Magazine's Fortune 
500 listing.
    (l) The term matching funds or cost sharing means that portion of 
project costs not borne by the Federal government. Sources of revenue to 
satisfy the required cost share include cash and in-kind contributions. 
Cash contributions can be from recipient, state, county, city, or other 
non-federal sources. In-kind contributions can be made by recipients or 
non-federal third parties (except subcontractors working on an ATP 
project) and include but are not limited to equipment, research tools, 
software, and supplies. Except as specified at Sec.  295.25, the value 
of in-kind contributions shall be determined in accordance with OMB 
Circular A-110, Subpart C, Section 23. The value of in-kind 
contributions will be prorated according to the share of total use 
dedicated to the ATP program. ATP restricts the total value of in-kind 
contributions that can be used to satisfy the cost share by requiring 
that such contributions not exceed 30 percent of the non-federal share 
of the total project costs. ATP shall determine the allowability of 
matching share costs in accordance with applicable federal cost 
principles.

[[Page 438]]

    (m) The term person shall be deemed to include corporations and 
associations existing under or authorized by the laws of either the 
United States, the laws of any of the Territories, the laws of any 
State, or the laws of any foreign country.
    (n) The term Program means the Advanced Technology Program.
    (o) The term Secretary means the Secretary of Commerce or the 
Secretary's designee.
    (p) The term small business means a business that is independently 
owned and operated, is organized for profit, and is not dominant in the 
field of operation in which it is proposing, and meets the other 
requirements found in 13 CFR part 121.
    (q) The term United States-owned company means a for-profit 
organization, including sole proprietors, partnerships, or corporations, 
that has a majority ownership or control by individuals who are citizens 
of the United States.

[55 FR 30145, July 24, 1990, as amended at 59 FR 666, 667, Jan. 6, 1994; 
62 FR 64684, 64685, Dec. 9, 1997; 63 FR 64413, Nov. 20, 1998]



Sec.  295.3  Eligibility of United States- and foreign-owned businesses.

    (a) A company shall be eligible to receive an award from the Program 
only if:
    (1) The Program finds that the company's participation in the 
Program would be in the economic interest of the United States, as 
evidenced by investments in the United States in research, development, 
and manufacturing (including, for example, the manufacture of major 
components or subassemblies in the United States); significant 
contributions to employment in the United States; and agreement with 
respect to any technology arising from assistance provided by the 
Program to promote the manufacture within the United States of products 
resulting from that technology (taking into account the goals of 
promoting the competitiveness of United States industry), and to procure 
parts and materials from competitive suppliers; and
    (2) Either the company is a United States-owned company, or the 
Program finds that the company is incorporated in the United States and 
has a parent company which is incorporated in a country which affords to 
United States-owned companies opportunities, comparable to those 
afforded to any other company, to participate in any joint venture 
similar to those authorized under the Program; affords the United 
States-owned companies local investment opportunities comparable to 
those afforded to any other company; and affords adequate and effective 
protection for the intellectual property rights of United States-owned 
companies.
    (b) The Program may, within 30 days after notice to Congress, 
suspend a company or joint venture from continued assistance under the 
Program if the Program determines that the company, the country of 
incorporation of the company or a parent company, or the joint venture 
has failed to satisfy any of the criteria contained in paragraph (a) of 
this section, and that it is in the national interest of the United 
States to do so.
    (c) Companies owned by legal residents (green card holders) may 
apply to the Program, but before an award can be given, the owner(s) 
must either become a citizen or ownership must be transferred to a U.S. 
citizen(s).

[59 FR 667, Jan. 6, 1994, as amended at 62 FR 64685, Dec. 9, 1997]



Sec.  295.4  The selection process.

    (a) The selection process for awards is a multi-step process based 
on the criteria listed in Sec.  295.6. Source evaluation boards (SEB) 
are established to ensure that all proposals receive careful 
consideration. In the first step, called ``preliminary screening,'' 
proposals may be eliminated by the SEB that do not meet the requirements 
of this Part of the annual Federal Register Program announcement. 
Typical but not exclusive of the reasons for eliminating a proposal at 
this stage are that the proposal: is deemed to have serious deficiencies 
in either the technical or business plan; involves product development 
rather than high-risk R&D is not industry-led; is significantly 
overpriced or underpriced given the scope of the work; does not meet the 
requirements set out in the notice of availability of funds issued 
pursuant to

[[Page 439]]

Sec.  295.7; or does not meet the cost-sharing requirement. NIST will 
also examine proposals that have been submitted to a previous 
competition to determine whether substantive revisions have been made to 
the earlier proposal, and, if not, may reject the proposal.
    (b) In the second step, referred to as the ``technical and business 
review,'' proposals are evaluated under the criteria found in Sec.  
295.6. Proposals judged by the SEB after considering the technical and 
business evaluations to have the highest merit based on the selection 
criteria receive further consideration and are referred to as 
``semifinalists.''
    (c) In the third step, referred to as ``selection of finalists,'' 
the SEB prepares a final ranking of semifinalist proposals by a majority 
vote, based on the evaluation criteria in Sec.  295.6. During this step, 
the semifinalist proposers will be invited to an oral review of their 
proposals with NIST, and in some cases site visits may be required. 
Subject to the provisions of Sec.  295.6, a list of ranked finalists is 
submitted to the Selecting Official.
    (d) In the final step, referred to as ``selection of recipients,'' 
the Selecting Official selects funding recipients from among the 
finalists, based upon: the SEB rank order of the proposals on the basis 
of all selection criteria (Sec.  295.6); assuring an appropriate 
distribution of funds among technologies and their applications; the 
availability of funds; and adherence to the Program selection criteria. 
The Program reserves the right to deny awards in any case where 
information is uncovered which raises a reasonable doubt as to the 
responsibility of the proposer. The decision of the Selecting Official 
is final.
    (e) NIST reserves the right to negotiate the cost and scope of the 
proposed work with the proposers that have been selected to receive 
awards. For example, NIST may request that the proposer delete from the 
scope of work a particular task that is deemed by NIST to be product 
development or otherwise inappropriate for ATP support.

[63 FR 64413, Nov. 20, 1998]



Sec.  295.5  Use of pre-proposals in the selection process.

    To reduce proposal preparation costs incurred by proposers and to 
make the selection process more efficient, NIST may use mandatory or 
optional preliminary qualification processes based on pre-proposals. In 
such cases, announcements requesting pre-proposals will be published as 
indicated in Sec.  295.7, and will seek abbreviated proposals (pre-
proposals) that address both of the selection criteria, but in 
considerably less detail than full proposals. The Program will review 
the pre-proposals in accordance with the selection criteria and provide 
written feedback to the proposers to determine whether the proposed 
projects appear sufficiently promising to warrant further development 
into full proposals. Proposals are neither ``accepted'' or ``rejected'' 
at the pre-proposal stage. When the full proposals are received in 
response to the notice of availability of funds described in Sec.  
295.7, the review and selection process will occur as described in Sec.  
295.4.

[63 FR 64414, Nov. 20, 1998]



Sec.  295.6  Criteria for selection.

    The evaluation criteria to be used in selecting any proposal for 
funding under this program, and their respective weights, are listed in 
this section. No proposal will be funded unless the Program determines 
that it has scientific and technological merit and that the proposed 
technology has strong potential for broad-based economic benefits to the 
nation. Additionally, no proposal will be funded that does not require 
Federal support, that is product development rather than high risk R&D, 
that does not display an appropriate level of commitment from the 
proposer, or does not have an adequate technical and commercialization 
plan.
    (a) Scientific and technological merit (50%). The proposed 
technology must be highly innovative. The research must be challenging, 
with high technical risk. It must be aimed at overcoming an important 
problem(s) or exploiting a promising opportunity. The technical leverage 
of the technology must be adequately explained. The research must have a 
strong potential for

[[Page 440]]

advancing the state of the art and contributing significantly to the 
U.S. scientific and technical knowledge base. The technical plan must be 
clear and concise, and must clearly identify the core innovation, the 
technical approach, major technical hurdles, the attendant risks, and 
clearly establish feasibility through adequately detailed plans linked 
to major technical barriers. The plan must address the questions of 
``what, how, where, when, why, and by whom'' in substantial detail. The 
Program will assess the proposing team's relevant experience for 
pursuing the technical plan. The team carrying out the work must 
demonstrate a high level of scientific/technical expertise to conduct 
the R&D and have access to the necessary research facilities.
    (b) Potential for broad-based economic benefits (50%). The proposed 
technology must have a strong potential to generate substantial benefits 
to the nation that extend significantly beyond the direct returns to the 
proposing organization(s). The proposal must explain why ATP support is 
needed and what difference ATP funding is expected to make in terms of 
what will be accomplished with the ATP funding versus without it. The 
pathways to economic benefit must be described, including the proposer's 
plan for getting the technology into commercial use, as well as 
additional routes that might be taken to achieve broader diffusion of 
the technology. The proposal should identify the expected returns that 
the proposer expects to gain, as well as returns that are expected to 
accrue to others, i.e., spillover effects. The Program will assess the 
proposer's relevant experience and level of commitment to the project 
and project's organizational structure and management plan, including 
the extent to which participation by small businesses is encouraged and 
is a key component in a joint venture proposal, and for large company 
single proposers, the extent to which subcontractor/subrecipient teaming 
arrangements are featured and are a key component of the proposal.

[63 FR 64414, Nov. 20, 1998]



Sec.  295.7  Notice of availability of funds.

    The Program shall publish at least annually a Federal Register 
notice inviting interested parties to submit proposals, and may more 
frequently publish invitations for proposals in the Commerce Business 
Daily, based upon the annual notice. Proposals must be submitted in 
accordance with the guidelines in the ATP Proposal Preparation Kit as 
identified in the published notice. Proposals will only be considered 
for funding when submitted in response to an invitation published in the 
Federal Register, or a related announcement in the Commerce Business 
Daily.

[63 FR 64414, Nov. 20, 1998]



Sec.  295.8  Intellectual property rights; publication of research results.

    (a)(1) Patent rights. Title to inventions arising from assistance 
provided by the Program must vest in a company or companies incorporated 
in the United States. Joint ventures shall provide to NIST a copy of 
their written agreement which defines the disposition of ownership 
rights among the members of the joint venture, and their contractors and 
subcontractors as appropriate, that complies with the first sentence of 
this paragraph. The United States will reserve a nonexclusive, 
nontransferable, irrevocable, paid-up license to practice or have 
practiced for or on behalf of the United States any such intellectual 
property, but shall not, in the exercise of such license, publicly 
disclose proprietary information related to the license. Title to any 
such intellectual property shall not be transferred or passed, except to 
a company incorporated in the United States, until the expiration of the 
first patent obtained in connection with such intellectual property. 
Nothing in this paragraph shall be construed to prohibit the licensing 
to any company of intellectual property rights arising from assistance 
provided under this section.
    (2) Patent procedures. Each award by the Program shall include 
provisions assuring the retention of a governmental use license in each 
disclosed invention, and the government's retention of march-in rights. 
In addition, each award by the Program will contain procedures regarding 
reporting of subject inventions by the funding Recipient to the Program, 
including the

[[Page 441]]

subject inventions of members of the joint venture (if applicable) in 
which the funding Recipient is a participant, contractors and 
subcontractors of the funding Recipient. The funding Recipient shall 
disclose such subject inventions to the Program within two months after 
the inventor discloses it in writing to the Recipient's designated 
representative responsible for patent matters. The disclosure shall 
consist of a detailed, written report which provides the Program with 
the following: the title of the present invention; the names of all 
inventors; the name and address of the assignee (if any); an 
acknowledgment that the United States has rights in the subject 
invention; the filing date of the present invention, or, in the 
alternative, a statement identifying that the Recipient determined that 
filing was not feasible; an abstract of the disclosure; a description or 
summary of the present invention; the background of the present 
invention or the prior art; a description of the preferred embodiments; 
and what matter is claimed. Upon issuance of the patent, the funding 
Recipient or Recipients must notify the Program accordingly, providing 
it with the Serial Number of the patent as issued, the date of issuance, 
a copy of the disclosure as issued, and if appropriate, the name, 
address, and telephone number(s) of an assignee.
    (b) Copyrights: Except as otherwise specifically provided for in an 
Award, funding recipients under the Program may establish claim to 
copyright subsisting in any data first produced in the performance of 
the award. When claim is made to copyright, the funding recipient shall 
affix the applicable copyright notice of 17 U.S.C. 401 or 402 and 
acknowledgment of Government sponsorship to the data when and if the 
data are delivered to the Government, are published, or are deposited 
for registration as a published work in the U.S. Copyright Office. The 
funding recipient shall grant to the Government, and others acting on 
its behalf, a paid up, nonexclusive, irrevocable, worldwide license for 
all such data to reproduce, prepare derivative works, perform publicly 
and display publicly, and for data other than computer software to 
distribute to the public by or on behalf of the Government.
    (c) Publication of research results: The decision on whether or not 
to publish research results will be made by the funding recipient(s). 
Unpublished intellectual property owned and developed by any business or 
joint research and development venture receiving funding or by any 
member of such a joint venture may not be disclosed by any officer or 
employee of the Federal Government except in accordance with a written 
agreement between the owner or developer and the Program. The licenses 
granted to the Government under Sec.  295.8(b) shall not be considered a 
waiver of this requirement.

[55 FR 30145, July 24, 1990. Redesignated and amended at 59 FR 667, 669, 
Jan. 6, 1994; 63 FR 64414, Nov. 20, 1998]



Sec.  295.9  Protection of confidential information.

    As required by section 278n(d)(5) of title 15 of the United States 
Code, the following information obtained by the Secretary on a 
confidential basis in connection with the activities of any business or 
joint research and development venture receiving funding under the 
program shall be exempt from disclosure under the Freedom of Information 
Act--
    (1) Information on the business operation of any member of the 
business or joint venture;
    (2) Trade secrets possessed by any business or any member of the 
joint venture.

[55 FR 30145, July 24, 1990. Redesignated at 59 FR 667, Jan. 6, 1994]



Sec.  295.10  Special reporting and auditing requirements.

    Each award by the Program shall contain procedures regarding 
technical, business, and financial reporting and auditing requirements 
to ensure that awards are being used in accordance with the Program's 
objectives and applicable Federal cost principles. The purpose of the 
technical reporting is to monitor ``best effort'' progress toward 
overall project goals. The purpose of the business reporting system is 
to monitor project performance against the Program's mission as required 
by

[[Page 442]]

the Government Performance and Results Act (GPRA) mandate for program 
evaluation. The audit standards to be applied to ATP awards are the 
``Government Auditing Standards'' (GAS) issued by the Comptroller 
General of the United States (also known as yellow book standards) and 
the ATP program-specified audit guidelines. The ATP program-specific 
audit guidelines include guidance on the number of audits required under 
an award. In the interest of efficiency, the recipients are encouraged 
to retain their own independent CPA firm to perform these audits. The 
Department of Commerce's Office of Inspector General (OIG) reserves the 
right to conduct audits as deemed necessary and appropriate.

[62 FR 64686, Dec. 9, 1997. Redesignated at 63 FR 64415, Nov. 20, 1998]



Sec.  295.11  Technical and educational services for ATP recipients.

    (a) Under the Federal Technology Transfer Act of 1986, the National 
Institute of Standards and Technology of the Technology Administration 
has the authority to enter into cooperative research and development 
agreements with non-Federal parties to provide personnel, services, 
facilities, equipment, or other resources except funds toward the 
conduct of specified research or development efforts which are 
consistent with the missions of the laboratory. In turn, the National 
Institute of Standards and Technology has the authority to accept funds, 
personnel, services, facilities, equipment and other resources from the 
non-Federal party or parties for the joint research effort. Cooperative 
research and development agreements do not include procurement contracts 
or cooperative agreements as those terms are used in sections 6303, 
6304, and 6305 of title 31, United States Code.
    (b) In no event will the National Institute of Standards and 
Technology enter into a cooperative research and development agreement 
with a recipient of awards under the Program which provides for the 
payment of Program funds from the award recipient to the National 
Institute of Standards and Technology.
    (c) From time to time, ATP may conduct public workshops and 
undertake other educational activities to foster the collaboration of 
funding Recipients with other funding resources for purposes of further 
development and commercialization of ATP-related technologies. In no 
event will ATP provide recommendations, endorsements, or approvals of 
any ATP funding Recipients to any outside party.

[55 FR 30145, July 24, 1990. Redesignated at 59 FR 667, Jan. 6, 1994. 
Redesignated and amended at 63 FR 64415, Nov. 20, 1998]



 Subpart B_Assistance to United States Industry-Led Joint Research and 
                          Development Ventures



Sec.  295.20  Types of assistance available.

    This subpart describes the types of assistance that may be provided 
under the authority of 15 U.S.C. 278n(b)(1). Such assistance includes 
but is not limited to:
    (a) Partial start-up funding for joint research and development 
ventures.
    (b) A minority share of the cost of joint research and development 
ventures for up to five years.
    (c) Equipment, facilities and personnel for joint research and 
development ventures.



Sec.  295.21  Qualifications of proposers.

    Subject to the limitations set out in Sec.  295.3, assistance under 
this subpart is available only to industry-led joint research and 
development ventures. These ventures may include universities, 
independent research organizations, and governmental entities. Proposals 
for funding under this Subpart may be submitted on behalf of a joint 
venture by a for-profit company or an independent research organization 
that is a member of the joint venture. Proposals should include letters 
of commitment or excerpts of such letters from all proposed members of 
the joint venture, verifying the availability of cost-sharing funds, and 
authorizing the party submitting the proposal to act on behalf of the 
venture with the Program on all matters pertaining to the proposal. No 
costs shall be incurred under an ATP project by the joint venture 
members until such time as a

[[Page 443]]

joint venture agreement has been executed by all of the joint venture 
members and approved by NIST. NIST will withhold approval until it 
determines that a sufficient number of members have signed the joint 
venture agreement. Costs will only be allowed after the execution of the 
joint venture agreement and approval by NIST.

[63 FR 64415, Nov. 20, 1998]



Sec.  295.22  Limitations on assistance.

    (a) An award will be made under this subpart only if the award will 
facilitate the formation of a joint venture or the initiation of a new 
research and development project by an existing joint venture.
    (b) The total value of any in-kind contributions used to satisfy the 
cost sharing requirement may not exceed 30 percent of the non-federal 
share of the total project costs.

[62 FR 64687, Dec. 9, 1997]



Sec.  295.23  Dissolution of joint research and development ventures.

    Upon dissolution of any joint research and development venture 
receiving funds under these procedures or at a time otherwise agreed 
upon, the Federal Government shall be entitled to a share of the 
residual assets of the joint venture proportional to the Federal share 
of the costs of the joint venture as determined by independent audit.



Sec.  295.24  Registration.

    Joint ventures selected for funding under the Program must notify 
the Department of Justice and the Federal Trade Commission under the 
National Cooperative Research Act of 1984. No funds will be released 
prior to receipt by the Program of copies of such notification.

[63 FR 64415, Nov. 20, 1998]



Sec.  295.25  Special rule for the valuation of transfers between 
separately-owned joint venture members.

    (a) Applicability. This section applies to transfers of goods, 
including computer software, and services provided by the transferor 
related to the maintenance of those goods, when those goods or services 
are transferred from one joint venture member to other separately-owned 
joint venture members.
    (b) Rule. The greater amount of the actual cost of the transferred 
goods and services as determined in accordance with applicable Federal 
cost principles, or 75 percent of the best customer price of the 
transferred goods and services, shall be deemed to be allowable costs; 
provided, however, that in no event shall the aggregate of these 
allowable costs exceed 30 percent of the non-Federal share of the total 
cost of the joint research and development program.
    (c) Definition. The term ``best customer price'' shall mean the GSA 
schedule price, or if such price is unavailable, the lowest price at 
which a sale was made during the last twelve months prior to the 
transfer of the particular good or service.

[62 FR 64687, Dec. 9, 1997]



         Subpart C_Assistance to Single-Proposer U.S. Businesses



Sec.  295.30  Types of assistance available.

    This subpart describes the types of assistance that may be provided 
under the authority of 15 U.S.C. 278n(b)(2). Such assistance includes 
but is not limited to entering into cooperative agreements with United 
States businesses, especially small businesses.

[59 FR 670, Jan. 6, 1994]



Sec.  295.31  Qualification of proposers.

    Awards under this subpart will be available to all businesses, 
subject to the limitations set out in Sec. Sec.  295.3 and 295.32.

[62 FR 64687, Dec. 9, 1997]



Sec.  295.32  Limitations on assistance.

    (a) The Program will not directly provide funding under this subpart 
to any governmental entity, academic institution or independent research 
organization.
    (b) For proposals submitted to ATP after December 31, 1997, awards 
to large businesses made under this subpart shall not exceed 40 percent 
of the total project costs of those awards in any year of the award.

[[Page 444]]

    (c) Awards under this subpart may not exceed $2,000,000, or be for 
more than three years, unless the Secretary provides a written 
explanation to the authorizing committees of both Houses of Congress and 
then, only after thirty days during which both Houses of Congress are in 
session. No funding for indirect costs, profits, or management fees 
shall be available for awards made under this subpart.
    (d) The total value of any in-kind contributions used to satisfy a 
cost sharing requirement may not exceed 30 percent of the non-federal 
share of the total project costs.

[62 FR 64687, Dec. 9, 1997]



PARTS 296-299 [RESERVED]--Table of Contents




[[Page 445]]



                              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.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 447]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 2003)

                      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)

                   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)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      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)
      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)

[[Page 448]]

    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)
    LXXIII  Department of Agriculture (Part 8301)
     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
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)

[[Page 449]]

        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)
       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)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      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  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)

[[Page 450]]

     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--599)

                 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, 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)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      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 451]]

        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  Department of the Treasury (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)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    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)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 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)

[[Page 452]]

        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        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)

[[Page 453]]

                     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)
        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 (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (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)
       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 454]]

                          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 Housing and 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, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         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 455]]

                           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 (Parts 1000--1199)
       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--899)

           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)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            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)

[[Page 456]]

        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)
       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)
       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)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

[[Page 457]]

                      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)
       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)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       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)

               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)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

[[Page 458]]

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             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)
        XV  Oklahoma City National Memorial Trust (Part 1501)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States 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)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)

[[Page 459]]

       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          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)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, 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)
       102  Federal Management Regulation (Parts 102-1--102-299)
       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 (Part 303-70)
       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  Centers for Medicare & Medicaid Services, 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)

[[Page 460]]

                   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)
        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)

[[Page 461]]

     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)
       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  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)

[[Page 462]]

        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)
        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 Motor Carrier Safety 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)

[[Page 463]]

        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Transportation (Parts 1500--1599)

                   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)
        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 465]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 2003)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
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                            5, LXXIII
  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
  Procurement and Property Management, Office of  7, XXXII
  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
Arctic Research Commission                        45, XXIII

[[Page 466]]

Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
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
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
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
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
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  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, United States      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
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII

[[Page 467]]

  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
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
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
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
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, IV, VII
  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                5, III, LXXVII; 14, VI; 
                                                  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-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II

[[Page 468]]

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
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
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
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 Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
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
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulation          41, 101
  Federal Travel Regulation System                41, Subtitle F

[[Page 469]]

  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
  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
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  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
  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
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
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  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
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
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
Industry and Security, Bureau of                  15, VII
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
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

[[Page 470]]

  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
  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 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, XI; 40, 
                                                  IV
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  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 Service,      41, 61; 20, IX
       Office of 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
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II

[[Page 471]]

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
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
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 and Community Service, Corporation for   45, XII, XXV
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 Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
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, VI
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 Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
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
Oklahoma City National Memorial Trust             36, XV
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, United States        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
[[Page 472]]

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
  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 Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
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; 28, XI
  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 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

[[Page 473]]

  Federal Motor Carrier Safety Administration     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
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Security Administration          49, XII
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  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 Service,        41, 61; 20, IX
     Office of the 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 475]]



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, 
2001, 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, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

15 CFR
                                                                   66 FR
                                                                    Page
Subtitle A
4 Revised..........................................................65632
4a Revised.........................................................65650
4b Removed.........................................................65651
14 Nomenclature change.............................................49828
14.25 (f) revised..................................................49828
14 Appendix A amended..............................................49828
Chapter I
101.1 Revised......................................................11232
101.2 Removed......................................................11233
Chapter II
285 Revised........................................................29221

                                  2002

15 CFR
                                                                   67 FR
                                                                    Page
Subtitle A
4a Technical correction.............................................2135
4.30 Corrected.....................................................60282
Chapter I
50 Authority revised...............................................72096
50.50 Added........................................................54951
50.60 Added; eff. 1-3-03...........................................72096


                                  [all]