[Title 45 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2004 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          45


          Parts 500 to 1199

                         Revised as of October 1, 2004


          Public Welfare
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2004
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]






                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2004



  For sale by the Superintendent of Documents, U.S. Government Printing 
                                  Office
  Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area 
                              (202) 512-1800
      Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001

[[Page iii]]




                            Table of Contents



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

  Title 45:
    Subtitle B--Regulations Relating to Public Welfare 
      (Continued)
          Chapter V--Foreign Claims Settlement Commission of 
          the United States, Department of Justice                   5
          Chapter VI--National Science Foundation                   37
          Chapter VII--Commission on Civil Rights                  267
          Chapter VIII--Office of Personnel Management             315
          Chapter X--Office of Community Services, 
          Administration for Children and Families, Department 
          of Health and Human Services                             341
          Chapter XI--National Foundation on the Arts and the 
          Humanities                                               349
  Finding Aids:
      Material Approved for Incorporation by Reference........     669
      Table of CFR Titles and Chapters........................     671
      Alphabetical List of Agencies Appearing in the CFR......     689
      List of CFR Sections Affected...........................     699

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 45 CFR 500.1 refers 
                       to title 45, part 500, 
                       section 1.

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2004), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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

OMB CONTROL NUMBERS

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

[[Page vi]]

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

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 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.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 741-6010.

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.

[[Page vii]]


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].

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll free, 
866-512-1800 or DC area, 202-512-1800, M-F, 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2250, 24 hours a day. For payment by check, 
write to the Superintendent of Documents, Attn: New Orders, P.O. Box 
371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-
512-1803.

ELECTRONIC SERVICES

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

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

October 1, 2004.

[[Page ix]]



                               THIS TITLE

    Title 45--Public Welfare is composed of four volumes. The parts in 
these volumes are arranged in the following order: Parts 1-199, 200-499, 
500-1199, and 1200 to end. Volume one (parts 1-199) contains all current 
regulations issued under subtitle A--Department of Health and Human 
Services. Volume two (parts 200-499) contains all current regulations 
issued under subtitle B--Regulations Relating to Public Welfare, chapter 
II--Office of Family Assistance (Assistance Programs), Administration 
for Children and Families, Department of Health and Human Services, 
chapter III--Office of Child Support Enforcement (Child Support 
Enforcement Program), Administration for Children and Families, 
Department of Health and Human Services, and chapter IV--Office of 
Refugee Resettlement, Administration for Children and Families, 
Department of Health and Human Services. Volume three (parts 500-1199) 
contains all current regulations issued under chapter V--Foreign Claims 
Settlement Commission of the United States, Department of Justice, 
chapter VI--National Science Foundation, chapter VII--Commission on 
Civil Rights, chapter VIII--Office of Personnel Management, chapter X--
Office of Community Services, Administration for Children and Families, 
Department of Health and Human Services, and chapter XI--National 
Foundation on the Arts and the Humanities. Volume four (part 1200 to 
end) contains all current regulations issued under chapter XII--
Corporation for National and Community Service, chapter XIII--Office of 
Human Development Services, Department of Health and Human Services, 
chapter XVI--Legal Services Corporation, chapter XVII--National 
Commission on Libraries and Information Science, chapter XVIII--Harry S 
Truman Scholarship Foundation, chapter XXI--Commission of Fine Arts, 
chapter XXIII--Artic Research Commission, chapter XXIV--James Madison 
Memorial Fellowship Foundation, and chapter XXV--Corporation for 
National and Community Service. The contents of these volumes represent 
all of the current regulations codified under this title of the CFR as 
of October 1, 2004.

    Amendments to part 801--Voting Rights Program, Appendixes A, B, and 
D, which apply to Texas also appear in Spanish following Appendix D.

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

[[Page x]]




[[Page 1]]



                        TITLE 45--PUBLIC WELFARE




                 (This book contains parts 500 to 1199)

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

     SUBTITLE B--Regulations Relating to Public Welfare (Continued)

                                                                    Part

chapter v--Foreign Claims Settlement Commission of the 
  United States, Department of Justice......................         500

chapter vi--National Science Foundation.....................         601

chapter vii--Commission on Civil Rights.....................         701

chapter viii--Office of Personnel Management................         801

chapter x--Office of Community Services, Administration for 
  Children and Families, Department of Health and Human 
  Services..................................................        1080

chapter xi--National Foundation on the Arts and the 
  Humanities................................................        1100

[[Page 3]]

     SUBTITLE B--Regulations Relating to Public Welfare (Continued)

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


[[Page 5]]



 CHAPTER V--FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES, 
                          DEPARTMENT OF JUSTICE




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

                     SUBCHAPTER A--RULES OF PRACTICE
Part                                                                Page
500             Appearance and practice.....................           7
501             Subpoenas, depositions, and oaths...........           8
502             Public information-Freedom of Information 
                    Act.....................................          11
503             Privacy Act and Government in the Sunshine 
                    Regulations.............................          17

SUBCHAPTER B--RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER TITLE 
               I OF THE WAR CLAIMS ACT OF 1948, AS AMENDED
504             Filing of claims and procedures therefor....          25
505             Provisions of general application...........          26
506             Eligibility requirements for compensation...          27
507             Payment.....................................          30
508             Hearings....................................          30

 SUBCHAPTER C--RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE 
  INTERNATIONAL CLAIMS SETTLEMENT ACT OF 1949, AS AMENDED, AND RELATED 
                                  ACTS
509             Filing of claims and procedures therefor....          33

[[Page 7]]



                     SUBCHAPTER A_RULES OF PRACTICE





PART 500_APPEARANCE AND PRACTICE--Table of Contents




Sec.
500.1 Appearance and representation.
500.2 Notice of entry or withdrawal of counsel in claims.
500.3 Fees.
500.4 Suspension of attorneys.
500.5 Standards of Conduct.
500.6 Disqualification of former employees.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., 62 Stat. 1240, as 
amended (50 U.S.C. App. 2001); sec. 3, Pub. L. 455, 81st Cong., 64 Stat. 
12, as amended (22 U.S.C. 1622); 18 U.S.C. 207.

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 500.1  Appearance and representation.

    (a) An individual may appear in his or her own behalf, or may be 
represented by an attorney at law admitted to practice in any State or 
Territory of the United States, or the District of Columbia.
    (b) A member of a partnership may represent the partnership.
    (c) A bona fide officer of a corporation, trust or association may 
represent the corporation, trust or association.
    (d) An officer or employee of the United States Department of 
Justice, when designated by the Attorney General of the United States, 
may represent the United States in a claim proceeding.
    (e) In cases falling within the purview of subchapter B of this 
chapter, persons designated by veterans', service, and other 
organizations to appear before the Commission in a representative 
capacity on behalf of claimants will be deemed duly authorized to 
practice before the Commission if the designating organization has 
received a letter of accreditation from the Commission. Petitions for 
accreditation must be in writing, executed by duly authorized officer or 
officers, and addressed to the Foreign Claims Settlement Commission of 
the United States, Washington, DC 20579. Upon receipt of a petition 
setting forth pertinent facts as to the organization's history, purpose, 
number of posts or chapters and their locations, approximate number of 
paid-up memberships, statements that the organization will not charge 
any fee for services rendered by its designees in behalf of claimants 
and that it will not refuse on the grounds of non-membership to 
represent any claimant who applies for representation if the claimant 
has an apparently valid claim, accompanied by a copy of the 
organization's constitution, or charter, by-laws, and its latest 
financial statement, the Commission in its discretion will consider and 
in appropriate cases issue or deny letters of accreditation.
    (f) A claimant may not be represented before the Commission except 
as authorized in paragraphs (a) through (e) of this section.



Sec. 500.2  Notice of entry or withdrawal of counsel in claims.

    (a) Counsel entering an appearance in a claim originally filed by a 
claimant in the claimant's own behalf, or upon request for a 
substitution of attorneys, will be required to file an authorization 
signed by the claimant.
    (b) When counsel seeks to withdraw from the prosecution of a claim, 
he or she will be required to demonstrate that the client (claimant) has 
been duly notified.
    (c) When a claimant advises the Commission that counsel no longer 
represents that claimant, a copy of the Commission's acknowledgment will 
be forwarded to that counsel.



Sec. 500.3  Fees.

    (a) The amount of attorney's fees that may be charged in connection 
with claims falling within the purview of title I of the International 
Claims Settlement Act of 1949, as amended (22 U.S.C. Sec. 1621-1627), 
is governed by the provisions of 22 U.S.C.1623(f).
    (b) The amount of attorney's fees that may be charged in connection 
with claims falling within the purview of subchapter B of this chapter 
is governed by the provisions of section 10 of the War Claims Act of 
1948, as amended (50 U.S.C. App. 2009).

[[Page 8]]



Sec. 500.4  Suspension of attorneys.

    (a) The Commission may disqualify, or deny, temporarily or 
permanently, the privilege of appearing or practicing before it in any 
way to any person who is found after a hearing in the matter--
    (1) Not to possess the requisite qualifications to represent others 
before the Commission; or
    (2) To be lacking in character or integrity or to have engaged in 
unethical or improper professional conduct; or
    (3) To have violated sections 10 and 214 of the War Claims Act of 
1948, as amended, or section 4(f) of the International Claims Settlement 
Act of 1949, as amended.
    (b) Contemptuous or contumacious conduct at any hearing will be 
ground for exclusion from that hearing and for summary suspension 
without a hearing for the duration of the hearing.



Sec. 500.5  Standards of Conduct.

    The conduct of the members, officers and employees of the 
Commission, including its special Government employees, is governed by 
the Standards of Ethical Conduct for Employees of the Executive Branch 
set forth in 5 CFR part 2635 and the Supplemental Standards of Conduct 
for Employees of the Department of Justice set forth in 5 CFR part 3801.



Sec. 500.6  Disqualification of former employees.

    The provisions of 18 U.S.C. 207 shall govern the post-employment 
appearance of former Commission members, officers, and employees, 
including special Government employees, in the capacity of agent, 
attorney or representative on behalf of claimants before the Commission.



PART 501_SUBPOENAS, DEPOSITIONS, AND OATHS--Table of Contents




Sec.
501.1 Extent of authority.
501.2 Subpoenas.
501.3 Service of process.
501.4 Witnesses.
501.5 Depositions.
501.6 Documentary evidence.
501.7 Time.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., 62 Stat. 1240, as 
amended (50 U.S.C. App. 2001); sec. 3, Pub. L. 455, 81st Cong., 64 Stat. 
12, as amended (22 U.S.C. 1622).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 501.1  Extent of authority.

    (a) Subpoenas, oaths and affirmations. The issuance of subpoenas, 
the administration of oaths and affirmations, the taking of affidavits, 
the conduct of investigations, and the examination of witnesses by the 
Commission and its members, officers and employees is governed by the 
provisions of 22 U.S.C. 1623(c) and 50 U.S.C. App. 2001(c).
    (b) Certification. The Commission or any member thereof may, for the 
purpose of a hearing, examination, or investigation, certify the 
correctness of any papers, documents, and other matters pertaining to 
the administration of any laws relating to the functions of the 
Commission.



Sec. 501.2  Subpoenas.

    (a) Issuance. A member of the Commission or a designated employee 
may, on the member or employee's own volition or upon written 
application by any party and upon a showing of general relevance and 
reasonable scope of the evidence sought, issue subpoenas requiring 
persons to appear and testify or to appear and produce documents. 
Applications for issuance of subpoenas for production of documents shall 
specify the books, records, correspondence, or other documents sought. 
The subpoena will show on its face the name and address of the party at 
whose request the subpoena was issued.
    (b) Deposit for costs. The Commission or designated employee, before 
issuing any subpoena in response to any application by an interested 
party, may require a deposit in an amount adequate to cover fees and 
mileage involved.
    (c) Motion to quash. If any person subpoenaed does not intend to 
comply with the subpoena, that person must, within 15 days after the 
date of service of the subpoena, petition in writing to quash the 
subpoena. The basis for the motion must be stated in detail. Any party 
desiring to file an answer to a motion to quash must file the answer not 
later than 15 days after the filing of the motion. The Commission will

[[Page 9]]

rule on the motion to quash, duly recognizing any answer thereto filed. 
The motion, answer, and any ruling thereon will become part of the 
official record.
    (d) Appeal from interlocutory order. An appeal may be taken to the 
Commission by the interested parties from the denial of a motion to 
quash or from the refusal to issue a subpoena for the production of 
documentary evidence.
    (e) Order of court upon failure to comply. Upon the failure or 
refusal of any person to comply with a subpoena, the Commission may 
invoke the aid of the United States District Court within the 
jurisdiction of which the hearing, examination or investigation is being 
conducted, or wherein that person resides or transacts business, as 
provided in 22 U.S.C. 1623(c).



Sec. 501.3  Service of process.

    (a) By whom served. The Commission will serve all orders, notices 
and other papers issued by it, together with any other papers which it 
is required by law to serve.
    (b) Kinds of service. Subpoenas, orders, rulings, and other 
processes of the Commission may be served by delivering in person, by 
registered or certified mail, by overnight express delivery service, by 
first class mail, by telegraph, or by publication.
    (c) Personal service. Service by delivering in person may be 
accomplished by:
    (1) Delivering a copy of the document to the person to be served, to 
a member of the partnership to be served, to an executive officer or a 
director of the corporation to be served, or to a person competent to 
accept service; or
    (2) By leaving a copy thereof at the residence, principal office or 
place of business of the person, partnership, or corporation.
    (3) Proof of service. The return receipt for the order, other 
process or supporting papers, or the verification by the person serving, 
setting forth the manner of service, will be proof of the service of the 
document.
    (4) Service upon attorney or agent. When any party has appeared by 
an authorized attorney or agent, service upon the party's attorney or 
agent will be deemed service upon the party.
    (d) Service by registered mail or certified mail. Service by 
registered mail or certified mail will be regarded as complete on the 
date the return post office receipt for the orders, notices and other 
papers is received by the Commission.
    (e) Service by overnight express delivery service or by first class 
mail. Service by overnight express delivery service or first class mail 
will be regarded as complete upon deposit, respectively, in the delivery 
service's package receptacle or in the United States mail properly 
stamped and addressed.
    (f) Service by telegraph. Service by telegraph will be regarded as 
complete when deposited with a telegraph company properly addressed and 
with charges prepaid.
    (g) Service by publication. Service by publication is completed when 
due notice has been given in the publication for the time and in the 
manner provided by law or rule.
    (h) Date of service. The date of service is the day upon which the 
document is deposited in the United States mail or delivered in person, 
as the case may be.
    (i) Filing with Commission. Papers required to be filed with the 
Commission will be deemed filed upon actual receipt by the Commission 
accompanied by proof of service upon parties required to be served. Upon 
the actual receipt, the filing will be deemed complete as of the date of 
deposit in the mail or with the telegraph company as provided in 
paragraphs (e) and (f) of this section.



Sec. 501.4  Witnesses.

    (a) Examination of witnesses. Witnesses must appear in person and be 
examined orally under oath, except that for good cause shown, testimony 
may be taken by deposition.
    (b) Witness fees and mileage. Witnesses summoned by the Commission 
on its own behalf or on behalf of a claimant or interested party will be 
paid the same fees and mileage that are allowed and paid witnesses in 
the District Courts of the United States. Witness fees and mileage will 
be paid by the Commission or by the party at whose request the witness 
appears.
    (c) Transcript of testimony. Every person required to attend and 
testify will be entitled, upon payment of prescribed

[[Page 10]]

costs, to receive a copy of the recording of the testimony or a 
transcript of the recording. Every person required to submit documents 
or other evidence will be entitled to retain a copy thereof.



Sec. 501.5  Depositions.

    (a) Application to take. (1) An application to take a deposition 
must be in writing setting forth the reason why the deposition should be 
taken, the name and address of the witness, the matters concerning which 
it is expected the witness will testify, and the time and place proposed 
for the taking of the deposition, together with the name and address of 
the person before whom it is desired that the deposition be taken. If 
the deposition is being offered in connection with a hearing or 
examination, the application for deposition must be made to the 
Commission at least 15 days prior to the proposed date of such hearing 
or examination.
    (2) Application to take a deposition may be made during a hearing or 
examination, or subsequent to a hearing or examination, only where it is 
shown for good cause that the facts as set forth in the application to 
take the deposition were not within the knowledge of the person signing 
the application prior to the time of the hearing or examination.
    (3) The Commission or its representative will, upon receipt of the 
application and a showing of good cause, make and cause to be served 
upon the parties an order which will specify the name of the witness 
whose deposition is to be taken, the time, the place, and where 
practicable the designation of the officer before whom the witness is to 
testify. The officer may or may not be the one specified in the 
application. The order will be served upon all parties at least 10 days 
prior to the date of the taking of the deposition.
    (b) Who may take. The deposition may be taken before the designated 
officer or, if none is designated, before any officer authorized to 
administer oaths by the laws of the United States. If the examination is 
held in a foreign country, it may be taken before a secretary of an 
embassy or legation, consul-general, consul, vice consul, or consular 
agent of the United States.
    (c) Examination and certification of testimony. At the time and 
place specified in the Commission's order, the officer taking the 
deposition will permit the witness to be examined and cross-examined 
under oath by all parties appearing, and the testimony will be reduced 
to writing by, or under the direction of, the presiding officer. All 
objections to questions or evidence will be deemed waived unless made in 
accordance with paragraph (d) of this section. The officer will not have 
power to rule upon any objections but will note them upon the 
deposition. The testimony must be subscribed by the witness in the 
presence of the officer who will attach a certificate stating that the 
witness was duly sworn, that the deposition is a true record of the 
testimony and exhibits given by the witness and that the officer is not 
counsel or attorney to any of the interested parties. The officer will 
immediately seal and deliver an original and two copies of the 
transcript, together with the officer's certificate, by registered mail 
to the Foreign Claims Settlement Commission, Washington, DC 20579 or, if 
applicable, to the designated Commission field office.
    (d) Admissibility in evidence. The deposition will be admissible in 
evidence, subject to such objections to the questions and answers as 
were noted at the time of taking the deposition, or within ten (10) days 
after the return thereof, and would be valid were the witness personally 
present at the hearing.
    (e) Errors and irregularities. All errors or irregularities 
occurring will be deemed waived unless a motion to suppress the 
deposition or some part thereof is made with reasonable promptness after 
the defect is, or with due diligence might have been, ascertained.
    (f) Scope of use. The deposition of a witness, if relevant, may be 
used if the Commission finds:
    (1) That the witness has died since the deposition was taken; or
    (2) That the witness is at a distance greater than 100 miles radius 
of Washington, DC, the designated field office or the designated place 
of the hearing; or

[[Page 11]]

    (3) That the witness is unable to attend because of other good cause 
shown.
    (g) Interrogatories and cross-interrogatories. Depositions may also 
be taken and submitted on written interrogatories in substantially the 
same manner as depositions taken by oral examination. When a deposition 
is taken upon interrogatories and cross-interrogatories, none of the 
parties may be present or represented, and no person, other than the 
witness, the person's representative or attorney, a stenographic 
reporter and the presiding officer, may be present at the examination of 
the witness, which fact will be certified by the officer, who will read 
the interrogatories and cross-interrogatories to the witness in their 
order and reduce the testimony to writing in the witness's own words.
    (h) Fees. A witness whose deposition is taken pursuant to the 
regulations in this part, and the officer taking the deposition, will be 
entitled to the same fees and mileage allowed and paid for like service 
in the United States District Court for the district in which the 
deposition is taken. Such fees will be paid by the Commission or by the 
party at whose request the deposition is being taken.



Sec. 501.6  Documentary evidence.

    Documentary evidence may consist of books, records, correspondence 
or other documents pertinent to any hearing, examination, or 
investigation within the jurisdiction of the Commission. The application 
for the issuance of subpoenas for production of documents must specify 
the books, records, correspondence or other documents sought. The 
production of documentary evidence will not be required at any place 
other than the witness's place of business. The production of such 
documents will not be required at any place if, prior to the return date 
specified in the subpoena, the person either has furnished the issuer of 
the subpoena with a properly certified copy of the documents or has 
entered into a stipulation as to the information contained in the 
documents.



Sec. 501.7  Time.

    (a) Computation. In computing any period of time prescribed or 
allowed by the regulations, by order of the Commission, or by any 
applicable statute, the day of the act, event, or default after 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, Sunday or legal holiday, in which event the period runs until 
the end of the next day that is neither a Saturday, Sunday nor a 
holiday. When the period of time prescribed or allowed is less than 7 
days, intermediate Saturdays, Sundays and holidays will be excluded in 
the computation.
    (b) Enlargement. When by the regulations in this chapter, or by a 
notice given thereunder or by order of the Commission, an act is 
required or allowed to be done at or within a specific time, the 
Commission for good cause shown may, at any time in its discretion:
    (1) With or without motion, notice, or previous order or
    (2) Upon motion, permit the act to be done after the expiration of 
the specified period.



PART 502_PUBLIC INFORMATION-FREEDOM OF INFORMATION ACT--Table of Contents




Sec.
502.1 Organization and authority--Foreign Claims Settlement Commission.
502.2 Material to be published in the Federal Register pursuant to the 
          Freedom of Information Act.
502.3 Effect of nonpublication.
502.4 Incorporation by reference.
502.5 Records generally available.
502.6 Current index.
502.7 Additional documents and records generally available for 
          inspection and copying.
502.8 Documents on-line.
502.9 Effect of noncompliance.
502.10 Availability of records.
502.11 Actions on requests.
502.12 Appeals.
502.13 Exemptions.
502.14 Fees for services.

    Authority: 5 U.S.C. 552.

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.

[[Page 12]]



Sec. 502.1  Organization and authority--Foreign Claims Settlement Commission.

    (a) The Foreign Claims Settlement Commission of the United States 
(``the Commission'') is an independent agency of the Federal Government 
created by Reorganization Plan No. 1 of 1954 (68 Stat. 1279) effective 
July 1, 1954. The Commission was transferred to the Department of 
Justice as an independent agency within that department as of October 1, 
1980, under the terms of Public Law 96-209, approved March 14, 1980 (94 
Stat. 96, 22 U.S.C. 1622a). Its duties and authority are defined in the 
International Claims Settlement Act of 1949, as amended (64 Stat. 12, 22 
U.S.C. 1621-1645o) and the War Claims Act of 1948 (62 Stat. 1240, 50 
U.S.C. App. 2001-2017p).
    (b) The Commission has jurisdiction to determine the validity and 
amount of claims of United States nationals against foreign governments 
for compensation for losses and injuries sustained by those nationals, 
pursuant to programs authorized under either of the cited Acts. Funds 
for payment of claims are derived from international settlement 
agreements or through liquidation of foreign assets in the United States 
by the Department of Justice or Treasury, or from public funds when 
provided by the Congress.
    (c) The Chair and the two part-time members of the Commission are 
appointed by the President with the advice and consent of the Senate to 
serve for 3-year terms of office as provided in 22 U.S.C. 1622c(c).
    (d) All functions of the Commission are vested in the Chair with 
respect to the internal management of the affairs of the Commission, 
including but not limited to:
    (1) The appointment of Commission employees;
    (2) The direction of Commission employees and the supervision of 
their official duties;
    (3) The distribution of business among employees and organizational 
units within the Commission;
    (4) The preparation of budget estimates; and
    (5) The use and expenditures of Commission funds appropriated for 
expenses of administration.
    (e) Requests for records must be made in writing by mail or 
presented in person to the Administrative Officer, Foreign Claims 
Settlement Commission, Washington, DC 20579.
    (f) The offices of the Commission are located at 600 E Street NW 
(Bicentennial Building), Room 6002, Washington, DC.



Sec. 502.2  Material to be published in the Federal Register pursuant 
to the Freedom of Information Act.

    The Commission will separately state and concurrently publish the 
following materials in the Federal Register for the guidance of the 
public:
    (a) Descriptions of its central and field organization and the 
established places at which, the officers from whom, and the methods 
whereby, the public may secure information, make submittals or requests, 
or obtain decisions.
    (b) Statements of the general course and method by which its 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available.
    (c) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations.
    (d) Substantive rules of general applicability adopted as authorized 
by law, and statements of general policy or interpretations of general 
applicability formulated and adopted by the agency.
    (e) Every amendment, revision, or repeal of the foregoing.



Sec. 502.3  Effect of nonpublication.

    Except to the extent that a person has actual and timely notice of 
the terms thereof, no person will in any manner be required to resort 
to, or be adversely affected by, any matter required to be published in 
the Federal Register and not so published.



Sec. 502.4  Incorporation by reference.

    For purposes of this part, matter which is reasonably available to 
the class of persons affected thereby will be deemed published in the 
Federal

[[Page 13]]

Register when incorporated by reference therein with the approval of the 
Director of the Federal Register.



Sec. 502.5  Records generally available.

    The Commission will make promptly available to any member of the 
public the following documents:
    (a) Proposed and Final Decisions (including dissenting opinions) and 
all orders made with respect thereto, except when exempted from public 
disclosure by statute;
    (b) Statements of policy and interpretations which have been adopted 
by the Commission which have not been published in the Federal Register; 
and
    (c) A current index, which will be updated at least quarterly, 
covering the foregoing material adopted, issued or promulgated after 
July 4, 1967. Publication of an index is deemed both unnecessary and 
impractical. However, copies of the index are available upon request for 
a fee of the direct cost of duplication.



Sec. 502.6  Current index.

    The Commission will maintain and make available for public 
inspection and copying, current indexes providing identifying 
information for the public as to any matter issued, adopted, or 
promulgated after July 4, 1967, as required by 5 U.S.C. 552(a)(2).



Sec. 502.7  Additional documents and records generally available for 
inspection and copying.

    The following types of documents are also available for inspection 
and copying in the offices of the Commission:
    (a) Rules of practice and procedure.
    (b) Annual report of the Commission to the Congress of the United 
States.
    (c) Bound volumes of Commission decisions.
    (d) International Claims Settlement Act of 1949, with amendments; 
the War Claims Act of 1948, with amendments; and related Acts.
    (e) Claims agreements with foreign governments effecting the 
settlement of claims under the jurisdiction of the Commission.
    (f) Press releases and other miscellaneous material concerning 
Commission operations.
    (g) Indexes of claims filed in the various claims programs 
administered by the Commission.



Sec. 502.8  Documents on-line.

    Commission documents available in electronic format may be accessed 
via the Commission's World Wide Web site, the address of which is http:/
/www.usdoj.gov/fcsc.



Sec. 502.9  Effect of non-compliance.

    No decision, statement of policy, interpretation, or staff manual or 
instruction that affects any member of the public will be relied upon, 
used, or cited as precedent by the Commission against any private party 
unless it has been indexed and either made available or published as 
provided by this part, or unless that private party has actual and 
timely notice of the terms thereof.



Sec. 502.10  Availability of records.

    (a) Each person desiring access to a record covered by this part 
must comply with the following provisions:
    (1) A written request must be made for the record.
    (2) Such request must indicate that it is being made under the 
Freedom of Information Act.
    (3) The envelope in which the request is sent must be prominently 
marked with the letters ``FOIA.''
    (4) The request must be addressed to the appropriate official or 
employee of the Commission as set forth in paragraph (c) of this 
section.
    (5) The foregoing requirements must be complied with whether the 
request is mailed or hand-delivered to the Commission.
    (b) If the requirements of paragraph (a) of this section are not 
met, the twenty-day time limit described in Sec. 502.10(a) will not 
begin to run until the request has been identified by an official or 
employee of the Commission as a request under the Freedom of Information 
Act and has been received by the appropriate official or employee of the 
Commission.
    (c) Each person desiring access to a record covered in this part 
that is located in the Commission, or to obtain a copy of such a record, 
must make a written request to the Administrative Officer, Foreign 
Claims Settlement

[[Page 14]]

Commission, 600 E Street NW, Room 6002, Washington, DC 20579.
    (d) Each request should reasonably describe the particular record 
requested. The request should specify the subject matter, the date when 
it was made and the person or office that made it. If the description is 
insufficient, the official or employee handling the request may notify 
the person making the request and, to the extent possible, indicate the 
additional data required.
    (e) Each record made available under this section is available for 
inspection and copying during regular working hours. Original documents 
may be copied but may not be released from custody.
    (f) Authority to administer this part in connection with Commission 
records is delegated to the Administrative Officer or the Commission 
employee acting in that official's capacity.



Sec. 502.11  Actions on requests.

    (a) The Administrative Officer or any employee acting in that 
official's capacity will determine within twenty days (excepting 
Saturdays, Sundays, and legal public holidays) after the receipt of any 
a request whether to comply with the request. Upon receipt of a request 
for a Commission record which is available, the Administrative Officer 
or other employee will notify the requester as to the time the record is 
available, and will promptly make the record available after advising 
the requester of the applicable fees under Sec. 502.13. The person 
making the request will be notified immediately after any adverse 
determination, the reasons for making the adverse determination and the 
right of the person to appeal.
    (b) Any denial of a request for a record will be written and signed 
by the Administrative Officer or other employee, including a statement 
of the reason for denial. That statement will contain, as applicable:
    (1) A reference to the specific exemption under the Freedom of 
Information Act authorizing the withholding of a record, and to the 
extent consistent with the purpose of the exemption, an explanation of 
how the exemption applies to the record withheld.
    (2) If a record requested does not exist, or has been legally 
disposed of, the requester will be so notified.
    (c) In unusual circumstances, the time limit prescribed in paragraph 
(a) of this section may be extended by written notice to the person 
making the request setting forth the reasons for the extension and the 
date on which a determination is expected to be dispatched. No extension 
notice will specify a date that would result in an extension for more 
than twenty working days. As used in this paragraph, ``unusual 
circumstances'' means, but only to the extent reasonably necessary to 
the proper processing of the particular request--
    (1) The need to search for and collect the requested records from 
other establishments that are separate from the office processing the 
request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (3) The need for consultation, which will be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.



Sec. 502.12  Appeals.

    (a) Any person to whom a record has not been made available within 
the time limits established by paragraph (b) of Sec. 502.11, and any 
person who has been given an adverse determination pursuant to paragraph 
(b) of Sec. 503.10 of this chapter, that a requested record will not be 
disclosed, may apply to the Office of Information and Privacy, U.S. 
Department of Justice, Washington, DC 20530, for reconsideration of the 
request. The person making such a request will also be notified of the 
provisions for judicial review provided in 5 U.S.C. 552(a)(4).
    (b) Each application for reconsideration must be made in writing 
within sixty days from the date of receipt of the original denial and 
must include all information and arguments relied upon by the person 
making the request. The application must indicate that it is an

[[Page 15]]

appeal from a denial of a request made under the Freedom of Information 
Act. The envelope in which the application is sent must be prominently 
marked with the letters ``FOIA.'' If these requirements are not met, the 
twenty day limit described in Sec. 502.10 will not begin to run until 
the application has been identified as an application under the Freedom 
of Information Act and has been received by the Office of Information 
and Privacy of the Department of Justice.
    (c) Whenever it is to be determined necessary, the person making the 
request may be required to furnish additional information, or proof of 
factual allegations and other proceedings appropriate in the 
circumstances may be ordered.
    (d) The decision not to disclose a record under this part is 
considered to be a withholding for the purposes of 5 U.S.C. 552(a)(3).



Sec. 502.13  Exemptions.

    In the event any document or record requested hereunder should 
contain material which is exempt from disclosure under this section, any 
reasonably segregable portion of the record will, notwithstanding that 
fact, and to the extent feasible, be provided to any person requesting 
it, after deletion of the portions which are exempt under this section. 
Documents or records determined to be exempt from disclosure hereunder 
may nonetheless be provided upon request in the event it is determined 
that the provision of the document would not violate the public interest 
or the right of any person to whom the information may pertain, and the 
disclosure is not prohibited by law or Executive Order. The following 
categories of records are exempt from disclosure under the provisions of 
5 U.S.C. 552(b):
    (a) Records which are specifically required by Executive Order to be 
kept secret in the interest of national defense or foreign policy and 
are in fact properly classified pursuant to such Executive Order. This 
exception may apply to records in the custody of the Commission which 
have been transmitted to the Commission by another agency which has 
designated the record as nonpublic under Executive Order.
    (b) Records related solely to the internal personnel rules and 
practices of the Commission.
    (c) Records specifically exempted from disclosure by statute.
    (d) Information given in confidence. This includes information 
obtained by or given to the Commission which constitutes confidential 
commercial or financial information, privileged information, or other 
information which was given to the Commission in confidence or would not 
customarily be released by the person from whom it was obtained.
    (e) Inter-agency or intra-agency memoranda or letters which would 
not be available by law to a private party in litigation with the 
Commission. Such communications include inter-agency memoranda, drafts, 
staff memoranda transmitted to the Commission, written communications 
between the Commission and its staff regarding the preparation of 
Commission decisions, other documents received or generated in the 
process of issuing a decision or regulation, and reports and other work 
papers of staff attorneys, accountants, and investigators.
    (f) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy.
    (g) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings;
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (4) Could reasonably be expected to disclose the identity of a 
confidential source, including a state, local or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency

[[Page 16]]

conducting a lawful security intelligence investigation, information 
furnished by a confidential source;
    (5) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions if such disclosure could reasonably be 
expected to risk circumvention of the law; or
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual.



Sec. 502.14  Fees for services.

    The following provisions shall apply in the assessment and 
collection of fees for services rendered in processing requests for 
disclosure of Commission records under this part.
    (a) Fee for duplication of records: $0.15 per page.
    (b) Search and review fees:
    (1) Searches for records by clerical personnel--$3.00 per quarter 
hour, including time spent searching for and copying any record.
    (2) Search for and review of records by professional and supervisory 
personnel--$6.00 per quarter hour spent searching for any record or 
reviewing a record to determine whether it may be disclosed, including 
time spent in copying any record.
    (c) Certification and validation fee: $1.00 for each certification, 
validation or authentication of a copy of any record.
    (d) Imposition of fees:
    (1) Commercial use requests--Where a request appears to seek 
disclosure of records for a commercial use, the requester shall be 
charged for the time spent by Commission personnel in searching for the 
requested record and in reviewing the record to determine whether it 
should be disclosed, and for the cost of each page of duplication. 
Commercial use is defined as a use or purpose that furthers the 
commercial, trade or profit interests of the requester or the person on 
whose behalf the request is made. The request also must reasonably 
identify the records sought.
    (2) Requests from representatives of news media--Where a request 
seeks disclosure of records to a representative of the news media, the 
requester shall be charged only for the actual duplication cost of the 
records and only to the extent that the number of duplications exceeds 
100 pages; provided, however, that the request must reasonably describe 
the records sought, and it must appear that the records are for use by 
the requester in such person's capacity as a news media representative. 
``Representative of the news media'' refers to 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. 
A ``freelance'' journalist not actually employed by a news organization 
shall be eligible for inclusion under this category if the person can 
demonstrate a solid basis for expecting publication by a news 
organization.
    (3) Requests from educational and non-commercial scientific 
institutions--Where a request seeks disclosure of records to an 
educational or non-commercial scientific institution, the requester 
shall be charged only for the actual duplication cost of the records and 
only to the extent that the number of duplications exceeds 100 pages; 
provided, however, that the request must reasonably describe the records 
sought and it must appear that the records are to be used by the 
requester in furtherance of its educational or non-commercial scientific 
research programs. ``Educational institution'' refers to a preschool, a 
public or private elementary or secondary school, or an institution of 
undergraduate, graduate, professional or vocational education, which 
operates a program or programs of scholarly research. ``Non-commercial 
scientific institution'' refers to an institution that is not operated 
on a ``commercial'' basis, within the meaning of paragraph (d)(1) of 
this section and which is operated solely for the purpose of conducting 
scientific research, the results of which are not intended to promote 
any particular product or industry.
    (4) All other requests--Where a request seeks disclosure of records 
to a person or entity other than one coming within paragraphs (d) (1), 
(2) and (3) of this section, the requester shall be charged the full 
cost of search and duplication. However, the first two hours of search 
time and the first 100 pages of

[[Page 17]]

duplication shall be furnished without charge.
    (e) Aggregating of requests. If there exists a solid basis for 
concluding that a requester or group of requesters has submitted a 
series of partial requests for disclosure of records in an attempt to 
evade assessment of fees, the requests may be aggregated so as to 
constitute a single request, with fees charged accordingly.
    (f) Unsuccessful searches. Except as provided in paragraph (d) of 
this section, the cost of searching for a requested record shall be 
charged even if the search fails to locate the record or it is 
determined that the record is exempt from disclosure.
    (g) Interest. In the event a requester fails to remit payment of 
fees charged for processing a request under this part within 30 days 
from the date those fees were billed, interest on the fees may be 
assessed beginning on the 31st day after the billing date, to be 
calculated at the rate prescribed in 31 U.S.C. 3717.
    (h) Advance payments.
    (1) If, but only if, it is estimated or determined that processing 
of a request for disclosure of records will result in a charge of fees 
of more than $250.00, the requester may be required to pay the fees in 
advance in order to obtain completion of the processing.
    (2) If a requester has previously failed to make timely payment 
(i.e., within 30 days of billing date) of fees charged under this part, 
the requester may be required to pay those fees and interest accrued 
thereon, and to make an advance payment of the full amount of estimated 
fees chargeable in connection with any pending or new request, in order 
to obtain processing of the pending or new request.
    (3) With regard to any request coming within paragraphs (h) (1) and 
(2) of this section, the administrative time limits set forth in 
Sec. Sec. 502.11 and 502.12 of this part will begin to run only after 
the requisite fee payments have been received.
    (i) Non-payment. In the event of non-payment of billed charges for 
disclosure of records, the provisions of the Debt Collection Act of 1982 
(Pub. L. 97-365), including disclosure to consumer credit reporting 
agencies and referral to collection agencies, may be utilized to obtain 
payment.
    (j) Waiver or reduction of charges. Fees otherwise chargeable in 
connection with a request for disclosure of a record shall be waived or 
reduced where--
    (1) It is determined that disclosure is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government and is not primarily 
in the commercial interest of the requester; or
    (2) It is determined that the cost of collection would be equal to 
or exceed the amount of those fees. No charges shall be assessed if the 
fees amount to $8.00 or less.



PART 503_PRIVACY ACT AND GOVERNMENT IN THE SUNSHINE REGULATIONS--Table 
of Contents




                    Subpart A_Privacy Act Regulations

Sec.
503.1 Definitions--Privacy Act.
503.2 General policies--Privacy Act.
503.3 Conditions of disclosure.
503.4 Accounting of certain disclosures.
503.5 Access to records or information.
503.6 Determination of requests for access to records.
503.7 Amendment of a record.
503.8 Appeals from denial of requests for amendment to records.
503.9 Fees.
503.10 Exemptions.
503.11 Reports.
503.12 Notices.

            Subpart B_Government in the Sunshine Regulations

503.20 Definitions.
503.21 Notice of public observation.
503.22 Scope of application.
503.23 Open meetings.
503.24 Grounds for closing a meeting.
503.25 Announcement of meetings.
503.26 Procedures for closing of meetings.
503.27 Reconsideration of opening or closing, or rescheduling a meeting.
503.28 Record of closed meetings, or closed portion of a meeting.
503.29 Requests for information.



                    Subpart A_Privacy Act Regulations

    Authority: 5 U.S.C. 552a(f).

[[Page 18]]


    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



                    Subpart A_Privacy Act Regulations



Sec. 503.1  Definitions--Privacy Act.

    For the purpose of this part:
    Agency includes any executive department, military department, 
government corporation, government controlled corporation, or other 
establishment in the executive branch of the government (including the 
Executive Office of the President) or any independent regulatory agency. 
The Foreign Claims Settlement Commission (``Commission'') is an agency 
within the meaning of the term.
    Individual means a citizen of the United States or an alien lawfully 
admitted for permanent residence.
    Maintain includes maintain, collect, use or disseminate.
    Record means any item, collection, or grouping of information about 
an individual that is maintained by an agency, including, but not 
limited to, an individual's education, financial transactions, medical 
history, and criminal or employment history, and that contains an 
individual's name, or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a finger or 
voice print or a photograph.
    Routine use means, with respect to the disclosure of a record, the 
use of that record for a purpose which is compatible with the purpose 
for which it was collected.
    Statistical record means a record in a system of records maintained 
for statistical research or reporting purposes only and not used in 
whole or in part in making any determination about an identifiable 
individual except as provided by section 13 U.S.C. 8.
    System of records means a group of any records under the control of 
any agency from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual.



Sec. 503.2  General policies--Privacy Act.

    The Commission will protect the privacy of an individual identified 
in any information or record systems which it maintains. Accordingly, 
its officials and employees, except as otherwise provided by law or 
regulation, will:
    (a) Permit an individual to determine what records pertaining to 
that individual are collected, maintained, used or disseminated by the 
Commission.
    (b) Permit an individual to prevent a record pertaining to that 
individual obtained by the Commission for a particular purpose from 
being used or made available for another purpose without the 
individual's consent.
    (c) Permit an individual to gain access to information pertaining to 
that individual in Commission records, to have a copy made of all or any 
portion thereof, and to correct or amend those records.
    (d) Collect, maintain, use, or disseminate any record of 
identifiable personal information in a manner that assures that the 
Commission's action is for a necessary and lawful purpose, that the 
information is current and accurate for its intended use, and that 
adequate safeguards are provided to prevent misuse of the information.
    (e) Permit exemptions from record requirements provided under the 
Privacy Act only where an important public policy use for the exemption 
has been determined in accordance with specific statutory authority.



Sec. 503.3  Conditions of disclosure.

    The Commission will not disclose any record contained in a system of 
records by any means of communication to any person or any other agency 
except by written request of or prior written consent of the individual 
to whom the record pertains unless the disclosure is:
    (a) To those officers and employees of the Commission who have a 
need for the record in the performance of their duties;
    (b) Required under the Freedom of Information Act, 5 U.S.C. 552;
    (c) For a routine use;
    (d) To the Bureau of Census for purposes of planning or carrying out 
a census or survey or related activity under the provisions of Title 13, 
United States Code;
    (e) To a recipient who has provided the Commission with adequate 
advance assurance that the record will be used

[[Page 19]]

solely as a statistical research or reporting record, and the record is 
to be transferred in a form that is not individually identifiable;
    (f) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States Government or for evaluation to 
determine whether the record has that value;
    (g) To another agency or to an instrumentality of any government 
jurisdiction within or under control of the United States for a civil or 
criminal law enforcement activity authorized by law, provided the head 
of the agency or instrumentality has made a prior written request to the 
Commission, specifying the particular record and the law enforcement 
activity for which it is sought;
    (h) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if, upon disclosure, 
notification is transmitted to the last known address of the individual;
    (i) 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 the joint committee;
    (j) To the Comptroller General, or any of that official's authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office; or
    (k) Pursuant to the order of a court of competent jurisdiction.



Sec. 503.4  Accounting of certain disclosures.

    (a) Except for disclosures under Sec. 503.3(a) and (b) of this 
part, the Administrative Officer will keep an accurate accounting of 
each disclosure of a record to any person or to another agency made 
under Sec. 503.3(c), (d), (e), (f), (g), (h), (i), (j), and (k) of this 
part.
    (b) Except for a disclosure made to another agency or to an 
instrumentality of any governmental jurisdiction under Sec. 503.3(g) of 
this part, the Administrative Officer will make the accounting as 
required under paragraph (a) of this section available to any individual 
upon written request made in accordance with Sec. 503.5.
    (c) The Administrative Officer will inform any person or other 
agency about any correction or notation of dispute made in accordance 
with Sec. 503.7 of this part of any record that has been disclosed to 
the person or agency if an accounting of the disclosure was made.
    (d) An accounting of disclosures of records within this section will 
consist of the date, nature, the purpose of each disclosure of a record 
to any person or to another agency, and the name and address of the 
person or agency to whom the disclosure is made.
    (e) This accounting shall be retained for 5 years or the life of the 
record, whichever is longer, after the disclosure for which the 
accounting is made.



Sec. 503.5  Access to records or information.

    (a) Upon request in person or by mail, any individual will be 
informed whether or not a system of records maintained by the Commission 
contains a record or information pertaining to that individual.
    (b) Any individual requesting access to a record or information in 
person must appear in person at the offices of the Foreign Claims 
Settlement Commission, 600 E Street, NW., Room 6002, Washington, DC, 
between the hours of 9 a.m. and 5:30 p.m., Monday through Friday, and
    (1) Provide information sufficient to identify the record, e.g., the 
individual's own name, claim and decision number, date and place of 
birth, etc.;
    (2) Provide identification sufficient to verify the individual's 
identity, e.g., driver's license, identification or Medicare card; and
    (3) Any individual requesting access to records or information 
pertaining to himself or herself may be accompanied by a person of the 
individual's own choosing while reviewing the records or information. If 
an individual elects to be so accompanied, advance notification of the 
election will be required along with a written statement authorizing 
disclosure and discussion of the record in the presence of the 
accompanying person at any time, including the time access is granted.

[[Page 20]]

    (c) Any individual making a request for access to records or 
information pertaining to himself or herself by mail must address the 
request to the Administrative Officer (Privacy Officer), Foreign Claims 
Settlement Commission, 600 E Street, NW., Room 6002, Washington, DC 
20579, and must provide information acceptable to the Administrative 
Officer to verify the individual's identity.
    (d) Responses to requests under this section normally will be made 
within ten (10) days of receipt (excluding Saturdays, Sundays, and legal 
holidays). If it is not possible to respond to requests within that 
period, an acknowledgment will be sent to the individual within ten (10) 
days of receipt of the request (excluding Saturdays, Sundays, and legal 
holidays).



Sec. 503.6  Determination of requests for access to records.

    (a) Upon request made in accordance with Sec. 503.5, the 
Administrative Officer will:
    (1) Determine whether or not the request will be granted;
    (2) Make that determination and provide notification within a 
reasonable period of time after receipt of the request.
    (b) If access to a record is denied because information has been 
compiled by the Commission in reasonable anticipation of a civil or 
criminal action or proceeding, the Administrative Officer will notify 
the individual of that determination and the reason therefor.
    (c) If access to the record is granted, the individual making the 
request must notify the Administrative Officer whether the record 
requested is to be copied and mailed to the individual.
    (d) If a record is to be made available for personal inspection, the 
individual must arrange with the Administrative Officer a mutually 
agreeable time and place for inspection of the record.



Sec. 503.7  Amendment of a record.

    (a) Any individual may request amendment of a record pertaining to 
himself or herself according to the procedure in paragraph (b) of this 
section, except in the case of records described under paragraph (d) of 
this section.
    (b) After inspection by an individual of a record pertaining to 
himself or herself, the individual may file a written request, presented 
in person or by mail, with the Administrative Officer, for an amendment 
to a record. The request must specify the particular portions of the 
record to be amended, the desired amendments and the reasons therefor.
    (c) Not later than ten (10) days (excluding Saturdays, Sundays, and 
legal holidays) after the receipt of a request made in accordance with 
this section to amend a record in whole or in part, the Administrative 
Officer will:
    (1) Make any correction of any portion of the record which the 
individual believes is not accurate, relevant, timely or complete and 
thereafter inform the individual of such correction; or
    (2) Inform the individual, by certified mail return receipt 
requested, of the refusal to amend the record, setting forth the reasons 
therefor, and notify the individual of the right to appeal that 
determination as provided under Sec. 503.8 of this part.
    (d) The provisions for amending records do not apply to evidence 
presented in the course of Commission proceedings in the adjudication of 
claims, nor do they permit collateral attack upon what has already been 
subject to final agency action in the adjudication of claims in programs 
previously completed by the Commission pursuant to statutory time 
limitations.



Sec. 503.8  Appeals from denial of requests for amendment to records.

    (a) An individual whose request for amendment of a record pertaining 
to the individual is denied may request a review of that determination. 
The request must be addressed to the Chair of the Commission, and must 
specify the reasons for which the refusal to amend is challenged.
    (b) If on appeal the refusal to amend the record is upheld, the 
Commission will permit the individual to file a statement setting forth 
the reasons for disagreement with the determination. The statement must 
also be submitted within 30 days of receipt of the denial. The statement 
will be included in the

[[Page 21]]

system of records in which the disputed record is maintained and will be 
marked so as to indicate:
    (1) That a statement of disagreement has been filed, and
    (2) Where in the system of records the statement may be found.



Sec. 503.9  Fees.

    Fees to be charged, if any, to any individual for making copies of 
that individual's record excluding the cost of any search for and review 
of the record will be as follows:
    (a) Photocopy reproductions: each copy $0.15.
    (b) Where the Commission undertakes to perform for a requester, or 
any other person, services which are clearly not required to be 
performed under the Privacy Act, either voluntarily or because those 
services are required by some other law, the question of charging fees 
for those services will be determined by the official or designee 
authorized to release the information, under the Federal user charge 
statute, 31 U.S.C. 583a, any other applicable law, and the provisions of 
Sec. 502.13 of part 502 of this chapter.



Sec. 503.10  Exemptions.

    No system of records maintained by the Foreign Claims Settlement 
Commission is exempt from the provisions of 5 U.S.C. 552a as permitted 
under certain conditions by 5 U.S.C. 552a(j) and (k). However, the Chair 
of the Commission reserves the right to promulgate rules in accordance 
with the requirements of 5 U.S.C. 553(b)(1), (2) and (3), and 5 U.S.C. 
553(c) and (e) to exempt any system of records maintained by the 
Commission in accordance with the provisions of 5 U.S.C. 552a(k).



Sec. 503.11  Reports.

    (a) The Administrative Officer or designee will provide adequate 
advance notice to Congress and the Office of Management and Budget of 
any proposal to establish or alter any Commission system of records, as 
required by 5 U.S.C. 552a(o).
    (b) If at any time a system of records maintained by the Commission 
is determined to be exempt from the application of 5 U.S.C. 552a in 
accordance with the provisions of 5 U.S.C. 552a(j) and (k), the number 
of records contained in such system will be separately listed and 
reported to the Office of Management and Budget.



Sec. 503.12  Notices.

    The Commission will publish in the Federal Register at least 
annually a notice of the existence and character of the systems of 
records which it maintains. Such notice will include:
    (a) The name and location of each system;
    (b) The categories of individuals on whom the records are maintained 
in each system;
    (c) The categories of records maintained in each system;
    (d) Each routine use of the records contained in each system 
including the categories of users and the purpose of each use;
    (e) The policies and practices of the Commission regarding storage, 
retrievability, access controls, retention, and disposal of the records;
    (f) The title and business address of the agency official who is 
responsible for each system of records;
    (g) Commission procedures whereby an individual can be notified if a 
system of records contains a record pertaining to that individual;
    (h) Commission procedures whereby an individual can be notified how 
to gain access to any record pertaining to that individual contained in 
a system of records, and how to contest its content, and
    (i) The categories of sources of records in each system.



            Subpart B_Government in the Sunshine Regulations

    Authority: 5 U.S.C. 552b.



Sec. 503.20  Definitions.

    For purposes of this part: Closed meeting and closed portion of a 
meeting mean, respectively, a meeting or that part of a meeting 
designated as provided in Sec. 503.27 as closed to the public by reason 
of one or more of the closure provisions listed in Sec. 503.24.
    Commission means the Foreign Claims Settlement Commission, which is 
a collegial body that functions as a unit composed of three individual 
members,

[[Page 22]]

appointed by the President with the advice and consent of the Senate.
    Meeting means the deliberations of at least two (quorum) members of 
the Commission where such deliberations determine or result in joint 
conduct or disposition of official Commission business.
    Member means any one of the three members of the Commission.
    Open meeting means a meeting or portion of a meeting which is not a 
closed meeting or a closed portion of a meeting.
    Public observation means the right of any member of the public to 
attend and observe, but not participate or interfere in any way, in an 
open meeting of the Commission within the limits of reasonable and 
comfortable accommodations made available for such purpose by the 
Commission.



Sec. 503.21  Notice of public observation.

    (a) A member of the public is not required to give advance notice of 
an intention to exercise the right of public observation of an open 
meeting of the Commission. However, in order to permit the Commission to 
determine the amount of space and number of seats which must be made 
available to accommodate individuals who desire to exercise the right of 
public observation, those individuals are requested to give notice to 
the Commission at least two business days before the start of the open 
meeting of the intention to exercise that right.
    (b) Notice of intention to exercise the right of public observation 
may be given in writing, in person, or by telephone to the official 
designated in Sec. 503.29.
    (c) Individuals who have not given advance notice of intention to 
exercise the right of public observation will not be permitted to attend 
and observe the open meeting of the Commission if the available space 
and seating are necessary to accommodate individuals who gave advance 
notice of such intention.



Sec. 503.22  Scope of application.

    The provisions of this part 503, Sec. Sec. 503.20 through 503.29, 
apply to meetings of the Commission, and do not apply to conferences or 
other gatherings of employees of the Commission who meet or join with 
others, except at meetings of the Commission to deliberate on or conduct 
official agency business.



Sec. 503.23  Open meetings.

    Every meeting of the Commission will be open to public observation 
except as provided in Sec. 503.24.



Sec. 503.24  Grounds for closing a meeting.

    (a) Except in a case where the Commission determines otherwise, a 
meeting or portion of a meeting may be closed to public observation 
where the Commission determines that the meeting or portion of the 
meeting is likely to:
    (1) Disclose matters that are:
    (i) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interests of national defense 
or foreign policy and
    (ii) In fact properly classified pursuant to such Executive order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552) provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (5) Involve accusing any person of a crime, or formally censuring 
any person;
    (6) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of the records or 
information would:
    (i) Interfere with enforcement proceedings,

[[Page 23]]

    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of the Commission;
    (9) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed action of 
the Commission, provided the Commission has not already disclosed to the 
public the content or nature of its proposed action, or is not required 
by law to make the disclosure on its own initiative prior to taking 
final action on the proposal; or
    (10) Specifically concern the Commission's issuance of a subpoena or 
the Commission's participation in a civil action or proceeding, an 
action in a foreign court or international tribunal, or an arbitration, 
or the initiation, conduct, or disposition by the Commission of a 
particular case of formal agency adjudication pursuant to the procedures 
in 5 U.S.C. 554, or otherwise involve a determination on the record 
after opportunity for a hearing.
    (b) If the Commission determines that the public interest would 
require that a meeting to be open, it may nevertheless so hold.



Sec. 503.25  Announcement of meetings.

    (a) The Commission meets in its offices at 600 E Street, NW, 
Washington, DC, from time to time as announced by timely notice 
published in the Federal Register.
    (b) At the earliest practicable time, which is estimated to be not 
later than eight days before the beginning of a meeting of the 
Commission, the Commission will make available for public inspection in 
its offices, and, if requested, will furnish by telephone or in writing, 
a notice of the subject matter of the meeting, except to the extent that 
the information is exempt from disclosure under the provisions of Sec. 
503.24.



Sec. 503.26  Procedures for closing of meetings.

    (a) The closing of a meeting will occur when:
    (1) A majority of the membership of the Commission votes to take 
that action. A separate vote of the Commission members will be taken 
with respect to each Commission meeting, a portion or portions of which 
are proposed to be closed to the public pursuant to Sec. 503.24, or 
with respect to any information which is proposed withheld under Sec. 
503.24. A single vote may be taken with respect to a series of meetings, 
a portion or portions of which are proposed to be closed to the public, 
or with respect to any information concerning that series of meetings, 
so long as each meeting in the series involves the same particular 
matters and is scheduled to be held no more than thirty days after the 
initial meeting in the series. The vote of each Commission member 
participating in the voting will be recorded and no proxies will be 
allowed.
    (2) Whenever any person whose interests may be directly affected by 
a portion of a meeting requests that the Commission close that portion 
to the public for any of the reasons referred to in Sec. 503.24(e), 
(f), or (g), the Commission, upon request of any one of its Commission 
members, will take a recorded vote, whether to close that portion of the 
meeting.
    (b) Within one day of any vote taken, the Commission will make 
publicly available a written copy of the voting reflecting the vote of 
each member on the question and a full written explanation of its action 
closing the entire or portion of the meeting together with a list of all 
persons expected to attend the meeting and their affiliation.
    (c) The Commission will announce the time, place and subject matter 
of

[[Page 24]]

the meeting at least eight days before the meeting.
    (d) For every closed meeting, before the meeting is closed, the 
Commission's Chair will publicly certify that the meeting may be closed 
to the public, and will state each relevant closure provision. A copy of 
the certification, together with a statement setting forth the time and 
place of the meeting, and the persons present, will be retained by the 
Commission.



Sec. 503.27  Reconsideration of opening or closing, or rescheduling a 
meeting.

    The time or place of a Commission meeting may be changed following 
the public announcement only if the Commission publicly announces such 
changes at the earliest practicable time. The subject matter of a 
meeting, or the determination of the Commission to open or close a 
meeting, or portion of a meeting, to the public, may be changed 
following the public announcement only if a majority of the Commission 
members determines by a recorded vote that Commission business so 
requires and that no earlier announcement of the changes was possible, 
and the Commission publicly announces the changes and the vote of each 
member upon the changes at the earliest practicable time.



Sec. 503.28  Record of closed meetings, or closed portion of a meeting.

    (a) The Commission will maintain a complete transcript or electronic 
recording adequate to record fully the proceedings of each closed 
meeting or closed portion of a meeting, except that in the case of a 
meeting or portion of a meeting closed to the public pursuant to Sec. 
503.24(d), (h), or (j), the Commission will maintain either a transcript 
or recording, or a detailed set of minutes.
    (b) Any minutes so maintained will fully and clearly describe all 
matters discussed and shall provide a full and accurate summary of any 
actions taken, and the reasons therefor, including a description of each 
of the views expressed on any item and the record of any rollcall vote. 
All documents considered in connection with any action will be 
identified in the minutes.
    (c) The Commission will promptly make available to the public, in 
its offices, the transcript, electronic recording, or minutes, of the 
discussion of any item on the agenda of a closed meeting, or closed 
portion of a meeting, except for the item or items of discussion which 
the Commission determines to contain information which may be withheld 
under Sec. 503.24. Copies of the transcript or minutes, or a 
transcription of the recording, disclosing the identity of each speaker, 
will be furnished to any person at the actual cost of duplication or 
transcription.
    (d) The Commission will maintain a complete verbatim copy of the 
transcript, a complete copy of the minutes, or a complete electronic 
recording of each closed meeting or closed portion of a meeting for a 
period of two years after the date of the closed meeting or closed 
portion of a meeting.
    (e) All actions required or permitted by this section to be 
undertaken by the Commission will be by or under the authority of the 
Chair of the Commission.



Sec. 503.29  Requests for information.

    Requests to the Commission for information about the time, place, 
and subject matter of a meeting, whether it or any portions thereof are 
closed to the public, and any requests for copies of the transcript or 
minutes or of a transcript of an electronic recording of a closed 
meeting, or closed portion of a meeting, to the extent not exempt from 
disclosure by the provisions of Sec. 503.24, must be addressed to the 
Administrative Officer, Foreign Claims Settlement Commission, 600 E 
Street, NW, Room 6002, Washington, DC 20579, telephone (202) 616-6975.

[[Page 25]]



SUBCHAPTER B_RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER TITLE 
               I OF THE WAR CLAIMS ACT OF 1948, AS AMENDED





PART 504_FILING OF CLAIMS AND PROCEDURES THEREFOR--Table of Contents




Sec.
504.1 Claim defined.
504.2 Time within which claims may be filed.
504.3 Official claim forms.
504.4 Place of filing claims.
504.5 Documents to accompany forms.
504.6 Receipt of claims.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C. 
App. 2001).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 504.1  Claim defined.

    (a) This subchapter is included solely in order to provide for the 
adjudication of any additional claims that may arise on behalf of 
survivors of deceased civilians and military veterans who had been 
listed as missing during the Vietnam conflict but were subsequently 
determined to have been interned, in hiding, or captured by a hostile 
force in Southeast Asia (see Sec. 504.2(a)(3) and (b)(3)). The 
Commission no longer has authority to receive or consider any other 
types of claims based on the internment of civilians or the maltreatment 
of military servicemen held as prisoners of war by forces hostile to the 
United States.
    (b) A properly completed and executed application made on an 
official form provided by the Foreign Claims Settlement Commission for 
such purpose constitutes a claim and will be processed under the laws 
administered by the Commission.
    (c) Any communication, letter, note, or memorandum from a claimant, 
or the claimant's duly authorized representative, or a person acting as 
next friend of a claimant who is not legally competent, setting forth 
sufficient facts to apprise the Commission of an interest to apply under 
the provisions of sections 5(i) and 6(f) of the Act, will be deemed to 
be an informal claim. Where an informal claim is received and an 
official form is forwarded for completion and execution by the 
applicant, that official form will be considered as evidence necessary 
to complete the initial claim, and unless that official form is received 
within thirty (30) days from the date it was transmitted for execution, 
if the claimant resides in the continental United States, or forty-five 
(45) days if outside the continental United States, the claim may be 
disallowed.



Sec. 504.2  Time within which claims may be filed.

    (a) Claims of individuals entitled to benefits under section 5(i) of 
the War Claims Act of 1948, as added by Public Law 91-289, will be 
accepted by the Commission during the period beginning June 24, 1970, 
and ending:
    (1) June 24, 1973, inclusive;
    (2) 3 years from the date the civilian American citizen by whom the 
claim is filed returned to the jurisdiction of the United States; or
    (3) 3 years from the date upon which the Commission, at the request 
of a potentially eligible survivor, makes a determination that the 
civilian American citizen has actually died or may be presumed to be 
dead, in the case of any civilian American citizen who has not returned 
to the jurisdiction of the United States, whichever of the preceding 
dates last occurs.
    (b) Claims of individuals entitled to benefits under section 6(f) of 
the War Claims Act of 1948, as added by Public Law 91-289, will be 
accepted by the Commission during the period beginning June 24, 1970, 
and ending:
    (1) June 24, 1973, inclusive;
    (2) 3 years from the date the prisoner of war by whom the claim is 
filed returned to the jurisdiction of the Armed Forces of the United 
States; or
    (3) 3 years from the date the Department of Defense makes a 
determination that the prisoner of war has actually died or is presumed 
to be dead, in the case of any prisoner of war who has not returned to 
the jurisdiction of the Armed Forces of the United States,

[[Page 26]]

whichever of the preceding dates last occurs.



Sec. 504.3  Official claim forms.

    Official forms are provided for use in the preparation of claims for 
submission to the Commission for processing. Claim forms are available 
at the Washington offices of the Commission and through other offices as 
the Commission may designate. The official claim form for all claims 
under section 5(i) and 6(f) has been designated FCSC Form 289, 
``Application for Compensation for Members of the Armed Forces of the 
United States Held as Prisoner of War in Vietnam; for Persons Assigned 
to Duty on board the `U.S.S. Pueblo' Captured by Military Forces of 
North Korea; for Civilian American Citizens Captured or Who Went into 
Hiding to Avoid Capture or Internment in Southeast Asia During the 
Vietnam Conflict and, in Case of Death of any Such Person, for Their 
Survivors.''



Sec. 504.4  Place of filing claims.

    Claims must be mailed or delivered in person to the Foreign Claims 
Settlement Commission, 600 E Street, NW, Room 6002, Washington, DC 
20579.



Sec. 504.5  Documents to accompany forms.

    All claims filed pursuant to sections 5(a) and 6(f) of the Act must 
be accompanied by evidentiary documents, instruments, and records as 
outlined in the instruction sheet attached to the claim form.



Sec. 504.6  Receipt of claims.

    (a) Claims deemed received. A claim will be deemed to have been 
received by the Commission on the date postmarked, if mailed, or if 
delivery is made in person, on the date of delivery at the offices of 
the Commission in Washington, DC.
    (b) Claims developed. In the event that a claim has been 
insufficiently prepared so as to preclude processing thereof, the 
Commission may request the claimant to furnish whatever supplemental 
evidence, including the completion and execution of an official claim 
form, as may be essential to the processing of the claim. In case the 
evidence or official claim form requested is not returned within the 
time which may be designated by the Commission, the claim may be deemed 
to have been abandoned and may be disallowed.



PART 505_PROVISIONS OF GENERAL APPLICATION--Table of Contents




Sec.
505.1 Persons eligible to file claims.
505.2 Persons under legal disability.
505.3 Definitions applicable under the Act.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C. 
App. 2001).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 505.1  Persons eligible to file claims.

    Persons eligible to file claims with the Commission under the 
provisions of sections 5(i) and 6(f) of the War Claims Act of 1948, as 
amended, are:
    (a) Civilian American citizens captured and held in Southeast Asia 
or their eligible survivors, under the provisions of section 5(i) of the 
Act; and
    (b) Members of the Armed Forces of the United States held as 
prisoners of war during the Vietnam conflict or their eligible 
survivors, under section 6(f) of the Act.



Sec. 505.2  Persons under legal disability.

    (a) Claims may be submitted on behalf of persons who, being 
otherwise eligible to make claims under the provisions of sections 5(i) 
and 6(f), are incompetent or otherwise under any legal disability, by 
the natural or legal guardian, committee, conservator, curator, or any 
other person, including the spouse of the claimant, whom the Commission 
determines is charged with the care of the claimant.
    (b) Upon the death of any individual for whom an award has been 
made, the Commission may consider the initial application filed by or in 
behalf of the decedent as a formal claim for the purpose of reissuing 
the award to the next eligible survivor in the order of preference as 
set forth under sections 5(i) and 6(d)(4) of the Act.



Sec. 505.3  Definitions applicable under the Act.

    Child means:
    (1) A natural or adopted son or daughter of a deceased prisoner of 
war

[[Page 27]]

or a deceased civilian prisoner of war or a deceased American citizen 
including any posthumous son or daughter of such deceased person.
    (2) Any son or daughter of a deceased person born out of wedlock 
will be deemed to be a child of the deceased for the purpose of this 
Act, if:
    (i) Legitimated by a subsequent marriage of the parents,
    (ii) Recognized as a child of the deceased by his or her admission, 
or
    (iii) So declared by an order or decree of any court of competent 
jurisdiction.
    Husband means the surviving male spouse of a deceased prisoner of 
war or of a deceased civilian American citizen who was married to the 
deceased at the time of her death by a marriage valid under the 
applicable law of the place entered into.
    Natural guardian means father and mother who shall be deemed to be 
the natural guardians of the person of their minor children. If either 
dies or is incapable of action, the natural guardianship of the person 
shall devolve upon the other. In the event of death or incapacity of 
both parents, then the blood relative, paternal or maternal, standing in 
loco parentis to the minor shall be deemed the natural guardian.
    Parent means:
    (1)(i) The natural or adoptive father or mother of a deceased 
prisoner of war, or any other individual standing in loco parentis to 
the deceased person for a period of not less than 1 year immediately 
preceding the date of that person's entry into active service and during 
at least 1 year of the person's minority. Not more than one mother or 
one father as defined shall be recognized in any case. An individual 
will not be recognized as standing in loco parentis if the natural 
parents or adoptive parents are living, unless there is affirmative 
evidence of abandonment and renunciation of parental duties and 
obligations by the natural or adoptive parent or parents prior to entry 
into active service by the deceased prisoner or war;
    (ii) An award in the full amount allowable had the deceased prisoner 
of war survived may be made to only one parent when it is shown that the 
other parent has died or if there is affirmative evidence of abandonment 
and renunciation of parental duties and obligations by the other parent.
    (2) The father of an illegitimate child will not be recognized as 
such for purposes of the Act unless evidence establishes that:
    (i) He has legitimated the child by subsequent marriage with the 
mother;
    (ii) Recognized the child as his by written admission prior to 
enlistment of the deceased in the armed forces or entry into an overseas 
duty status; or
    (iii) Prior to death of the child he has been declared by decree of 
a court of competent jurisdiction to be the father.
    Widow means the surviving female spouse of a deceased prisoner of 
war or a deceased civilian American citizen who was married to the 
deceased at the time of his death by marriage valid under the applicable 
law of the place where entered into.



PART 506_ELIGIBILITY REQUIREMENTS FOR COMPENSATION--Table of Contents




                  Subpart A_Civilian American Citizens

Sec.
506.1 ``Civilian American citizen'' defined.
506.2 Other definitions.
506.3 Rate of benefits payable.
506.4 Survivors entitled to award of detention benefits.
506.5 Persons not eligible to award of civilian detention benefits.

                       Subpart B_Prisoners of War

506.10 ``Vietnam conflict'' defined.
506.11 ``Prisoner of war'' defined.
506.12 Membership in the Armed Forces of the United States; 
          establishment of.
506.13 ``Armed Forces of the United States'' defined.
506.14 ``Force hostile to the United States'' defined.
506.15 Geneva Convention of August 12, 1949.
506.16 Failure to meet the conditions and requirements prescribed under 
          the Geneva Convention of August 12, 1949.
506.17 Rate of and basis for award of compensation.
506.18 Entitlement of survivors to award in case of death of prisoner of 
          war.
506.19 Members of the Armed Forces of the United States precluded from 
          receiving award of compensation.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C. 
App. 2001).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.

[[Page 28]]



                  Subpart A_Civilian American Citizens



Sec. 506.1  ``Civilian American citizen'' defined.

    Civilian American citizen means any person who, being then a citizen 
of the United States, was captured in Southeast Asia during the Vietnam 
conflict by any force hostile to the United States, or who went into 
hiding in Southeast Asia in order to avoid capture or internment by any 
such hostile force.



Sec. 506.2  Other definitions.

    Calendar month means the period of time between a designated day of 
any given month and the date preceding a similarly designated day of the 
following month.
    Citizen of the United States means a person who under applicable law 
acquired citizenship of the United States by birth, by naturalization, 
or by derivation.
    Dependent husband means the surviving male spouse of a deceased 
civilian American citizen who was married to the deceased at the time of 
her death by a marriage valid under the applicable law of the place 
where entered into.
    Force hostile to the United States means any organization or force 
in Southeast Asia, or any agent or employee thereof, engaged in any 
military or civil activities designed to further the prosecution of its 
armed conflict against the Armed Forces of the United States during the 
Vietnam conflict.
    Southeast Asia means, but is not necessarily restricted to, the 
areas of Vietnam, Laos, and Cambodia.
    Went into hiding means the action taken by a civilian American 
citizen when that person initiated a course of conduct consistent with 
an intention to evade capture or detention by a hostile force in 
Southeast Asia.



Sec. 506.3  Rate of benefits payable.

    Detention benefits awarded to a civilian American citizen will be 
paid at the rate of $150 for each calendar month of internment or during 
the period in which that civilian American citizen went into hiding to 
avoid capture and internment by a hostile force. Awards shall take 
account of fractional parts of a calendar month.



Sec. 506.4  Survivors entitled to award of detention benefits.

    In case of death of a civilian American citizen who would have been 
entitled to detention benefits under the War Claims Act of 1948, as 
amended, benefits will be awarded, if claim is made, only to the 
following persons:
    (a) Widow or husband if there is no child or children of the 
deceased;
    (b) Widow or dependent husband and child or children of the 
deceased, one-half to the widow or dependent husband and the other half 
to the child or children in equal shares;
    (c) The child or children of the deceased in equal shares if there 
is no widow or dependent husband, if otherwise qualified.



Sec. 506.5  Persons not eligible to award of civilian detention benefits.

    An individual is disqualified as a ``civilian American citizen'' 
under the Act, and thus is precluded from receiving an award of 
detention benefits, if that person:
    (a) Voluntarily, knowingly, and without duress, gave aid to or 
collaborated with or in any manner served the detaining hostile force; 
or
    (b) While detained, was a regularly appointed, enrolled, enlisted, 
or inducted member of the Armed Forces of the United States.



                       Subpart B_Prisoners of War



Sec. 506.10  ``Vietnam conflict'' defined.

    Vietnam conflict refers to the period beginning February 28, 1961, 
and ending on a date to be determined by Presidential proclamation or 
concurrent resolution of the Congress. (For purposes of determining 
eligibility for certain veterans' benefits, the President has proclaimed 
the date of May 7, 1975, to be the ending date of the ``Vietnam era'' 
(Presidential Proclamation No. 4373, 38 U.S.C. 101 note). In addition, 
Congress has set May 7, 1975, as the ending date of the ``Vietnam 
conflict'' for purposes of payment of interest on missing military 
service members' deposits in the United States Treasury under 10 U.S.C. 
1035. However, neither

[[Page 29]]

the President nor the Congress has set an ending date for the Vietnam 
conflict for purposes of determining eligibility for compensation under 
50 U.S.C. App. 2004 and 2005.)



Sec. 506.11  ``Prisoner of war'' defined.

    Prisoner of war means any regularly appointed, enrolled, enlisted or 
inducted member of the Armed Forces of the United States who was held by 
any force hostile to the United States for any period of time during the 
Vietnam conflict.



Sec. 506.12  Membership in the Armed Forces of the United States; 
establishment of.

    Regular appointment, enrollment, enlistment or induction in the 
Armed Forces of the United States must be established by certification 
obtained from the Department of Defense.



Sec. 506.13  ``Armed Forces of the United States'' defined.

    Armed Forces of the United States means the United States Air Force, 
Army, Navy, Marine Corps and Coast Guard, and commissioned officers of 
the U.S. Public Health Service who were detailed for active duty with 
the Armed Forces of the United States.



Sec. 506.14  ``Force hostile to the United States'' defined.

    Force hostile to the United States means any organization or force 
in Southeast Asia, or any agent or employee thereof, engaged in any 
military or civil activities designed to further the prosecution of its 
armed conflict against the Armed Forces of the United States during the 
Vietnam conflict.



Sec. 506.15  Geneva Convention of August 12, 1949.

    The Geneva Convention of August 12, 1949, as identified in section 
6(f) of the War Claims Act of 1948, as amended, is the ``Geneva 
Convention Relative to the Treatment of Prisoners of War of August 12, 
1949'' which is included under the ``Geneva Convention of August 12, 
1949, for the Protection of War Victims,'' entered into by the United 
States and other governments, including the former government in North 
Vietnam which acceded to it on June 28, 1957.



Sec. 506.16  Failure to meet the conditions and requirements prescribed 
under the Geneva Convention of August 12, 1949.

    For the purpose of this part, obligations under the Geneva 
Convention of August 12, 1949, consist of the responsibility assumed by 
the contracting parties thereto with respect to prisoners of war within 
the meaning of the Convention, to comply with and to fully observe the 
provisions of the Convention, and particularly those articles relating 
to food rations of prisoners of war, humane treatment, protection, and 
labor of prisoners of war, and the failure to abide by the conditions 
and requirements established in such Convention by any hostile force 
with which the Armed Forces of the United States were engaged in armed 
conflict.



Sec. 506.17  Rate of and basis for award of compensation.

    (a) Compensation allowed a prisoner of war during the Vietnam 
conflict under section 6(f)(2) of the War Claims Act of 1948, as 
amended, will be paid at the rate of $2 per day for each day on which 
that person was held as prisoner of war and on which the hostile force, 
or its agents, failed to furnish the quantity and quality of food 
prescribed for prisoners of war under the Geneva Convention of August 
12, 1949.
    (b) Compensation allowed a prisoner of war during the Vietnam 
conflict under section 6(f)(3) of the Act, will be paid at the rate of 
$3 per day for each day on which that person was held as a prisoner of 
war and on which the hostile force failed to meet the conditions and 
requirements under the provisions of the Geneva Convention of August 12, 
1949 relating to labor of prisoners of war or for inhumane treatment by 
the hostile force by which such person was held.
    (c) Compensation under paragraphs (a) and (b) of this section will 
be paid to the prisoner of war or qualified applicant on a lump-sum 
basis at a total rate of $5 per day for each day the prisoner of war was 
entitled to compensation.

[[Page 30]]



Sec. 506.18  Entitlement of survivors to award in case of death of prisoner 
of war.

    In case of death of a prisoner of war who would have been entitled 
to an award of compensation under section 6(f) (2) and (3) of the War 
Claims Act of 1948, as amended, the compensation will be awarded, if 
claim is made, only to the following persons:
    (a) Widow or husband if there is no child or children of the 
deceased;
    (b) Widow or husband and child or children of the deceased, one-half 
to the widow or husband and the other half to the child or children of 
the deceased in equal shares;
    (c) Child or children of the deceased (in equal shares) if there is 
no widow or husband; and
    (d) Parents (in equal shares) if there is no widow, husband or 
child.



Sec. 506.19  Members of the Armed Forces of the United States precluded 
from receiving award of compensation.

    Any member of the Armed Forces of the United States, who at any 
time, voluntarily, knowingly, and without duress gave aid to or 
collaborated with, or in any manner served any force hostile to the 
United States, is precluded from receiving an award of compensation 
based on that member's capture and internment.



PART 507_PAYMENT--Table of Contents




Sec.
507.1 Payments under the War Claims Act of 1948, as amended by Pub. L. 
          91-289.
507.2 Payments to persons under legal disability.
507.3 Reissuance of awards.

    Authority: Sec. 2, Pub. L. 80-896, as amended (50 U.S.C. App. 2001).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 507.1  Payments under the War Claims Act of 1948, as amended by 
Public Law 91-289.

    (a) Upon a determination by the Commission as to the amount and 
validity of each claim filed pursuant to section 5(i) and 6(f) of the 
War Claims Act of 1948, as amended, any award made thereunder will be 
certified by the Commission to the Secretary of the Treasury for payment 
out of funds appropriated for this purpose, in favor of the civilian 
internee or prisoner of war found entitled thereto.
    (b) Awards made to survivors of deceased civilian internees or 
prisoners of war will be certified to the Secretary of the Treasury for 
payment to the individual member or members of the class or classes of 
survivors entitled to receive compensation in the full amount of the 
share to which each survivor is entitled, and if applicable, under the 
procedure set forth in Sec. 507.3, except that as to persons under 
legal disability, payment will be made as specified in Sec. 507.2.



Sec. 507.2  Payments to persons under legal disability.

    Any awards or any part of an award payable under sections 5(i) and 
6(f) of the Act to any person under legal disability may, in the 
discretion of the Commission, be certified for payment for the use of 
the claimant, to the natural or legal guardian, committee, conservator 
or curator, or if there is no natural or legal guardian, committee, 
conservator or curator, then, in the discretion of the Commission, to 
any person, including the spouse of such person, or the Chief Officer of 
the hospital in which the claimant may be a patient, whom the Commission 
may determine is charged with the care of the claimant. In the case of a 
minor, any part of the amount payable may, in the discretion of the 
Commission, be certified for payment to that minor.



Sec. 507.3  Reissuance of awards.

    Upon the death of any claimant entitled to payment of an award, the 
Commission will cause the award to be canceled and the amount of the 
award will be redistributed to the survivors of the same class or to 
members of the next class of eligible survivors, if appropriate, in the 
order of preference as set forth under the Act.



PART 508_HEARINGS--Table of Contents




Sec.
508.1 Basis for hearing.
508.2 Request for hearing.
508.3 Notification to claimant.
508.4 Failure to file request for hearing.

[[Page 31]]

508.5 Purpose of hearing.
508.6 Resume of hearing, preparation of.
508.7 Action by the Commission.
508.8 Application of other regulations.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C. 
App. 2001).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 508.1  Basis for hearing.

    Any claimant whose application is denied or is approved for less 
than the full allowable amount of his or her claim will be entitled to a 
hearing before the Commission or its representative with respect to that 
claim. Hearings may also be held on the Commission's own motion.



Sec. 508.2  Request for hearing.

    Within 30 days after the Commission's notice of denial of a claim, 
or approval for a lesser amount than claimed, has been posted by the 
Commission, the claimant, if a hearing is desired, must notify the 
Commission in writing, and must set forth in full the reasons for 
requesting the hearing, including any statement of law or facts upon 
which the claimant relies.



Sec. 508.3  Notification to claimant.

    Upon receipt of such a request, the Commission will schedule a 
hearing and notify the claimant as to the date and place the hearing is 
to be held. No later than 10 days prior to the scheduled hearing date, 
the claimant must submit all documents, briefs, or other additional 
evidence relevant to his or her appeal.



Sec. 508.4  Failure to file request for hearing.

    The failure to file a request for a hearing within the period 
specified in Sec. 509.2 of this chapter will be deemed to constitute a 
waiver of right to a hearing and the decision of the Commission will 
constitute a full and final disposition of the case.



Sec. 508.5  Purpose of hearing.

    (a) Hearings will be conducted by the Commission, its designee or 
designees. Oral testimony and documentary evidence, including 
depositions that may have been taken as provided by statute and the 
rules of practice, may be offered in evidence on claimant's behalf or by 
counsel for the Commission designated by it to represent the public 
interest opposed to the allowance of an unjust or unfounded claim or 
portion thereof, and either may cross-examine as to evidence offered 
through witnesses on behalf of the other. Objections to the admission of 
any such evidence will be ruled upon by the presiding officer.
    (b) Hearings may be stenographically recorded either at the request 
of the claimant or at the discretion of the Commission. A claimant 
making such a request must notify the Commission at least 10 days prior 
to the hearing date. When a stenographic record of a hearing is ordered 
at the claimant's request, the cost of such reporting and transcription 
may be charged to the claimant.
    (c) Such hearings will be open to the public.



Sec. 508.6  R[eacute]sum[eacute] of hearing, preparation of.

    Following each hearing, the hearing officer will prepare a 
r[eacute]sum[eacute] of the hearing, specifying the issues on which the 
hearing was based, and including a list of documents and contents and 
other items relative to the issues that were introduced as evidence. A 
brief analysis of oral testimony will also be prepared and included in 
the r[eacute]sum[eacute] of each hearing not stenographically reported.



Sec. 508.7  Action by the Commission.

    After the conclusion of the hearing and a review of the 
r[eacute]sum[eacute], the Commission may affirm, modify, or reverse its 
former action with respect to the claim, including a denial or reduction 
in the amount of the award theretofore approved. All findings of the 
Commission concerning the persons to whom compensation is payable, and 
the amounts thereof, are conclusive and not reviewable by any court.



Sec. 508.8  Application of other regulations.

    To the extent they are not inconsistent with the regulations set 
forth under provisions of this subchapter,

[[Page 32]]

the other regulations of the Commission will also be applicable to the 
claims filed hereunder.

[[Page 33]]



 SUBCHAPTER C_RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE 

  INTERNATIONAL CLAIMS SETTLEMENT ACT OF 1949, AS AMENDED, AND RELATED 
                                  ACTS





PART 509_FILING OF CLAIMS AND PROCEDURES THEREFOR--Table of Contents




Sec.
509.1 Time for filing.
509.2 Form, content and filing of claims.
509.3 Exhibits and documents in support of claim.
509.4 Acknowledgment and numbering.
509.5 Procedure for determination of claims.
509.6 Hearings.
509.7 Presettlement conference.

    Authority: Sec. 3, Pub. L. 455, 81st Cong., as amended (22 U.S.C. 
1622).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 509.1  Time for filing.

    Claims must be filed as specified by the Commission by duly 
promulgated notice published in the Federal Register, or as specified in 
legislation passed by Congress, as applicable.



Sec. 509.2  Form, content and filing of claims.

    (a) Unless otherwise specified by law, or by regulations published 
in the Federal Register, claims must be filed on official forms, which 
will be provided by the Commission upon request in writing addressed to 
the Commission at its office at 600 E Street, NW, Suite 6002, 
Washington, DC 20579. Each form must include all of the information 
called for in it and must be completed and signed in accordance with the 
instructions accompanying the form.
    (b) Notice to the Foreign Claims Settlement Commission, the 
Department of State, or any other governmental office or agency of an 
intention to file a claim against a foreign government, prior to the 
enactment of the statute authorizing a claims program, prior to a 
referral of claims to the Commission by the Secretary for pre-
adjudication, or prior to the effective date of a lump-sum claims 
settlement agreement, will not be considered as a timely filing of a 
claim under the statute, referral, or agreement.
    (c) Any initial written indication of an intention to file a claim 
received within 30 days prior to the expiration of the filing period 
thereof will be considered as a timely filing of a claim if formalized 
within 30 days after the expiration of the filing period.



Sec. 509.3  Exhibits and documents in support of claim.

    (a) Original documents. If available, all exhibits and documents 
must be filed with and at the same time as the claim, and must, wherever 
possible, be in the form of original documents, or copies or originals 
certified as such by their public or other official custodian.
    (b) Documents in a foreign language. Each copy of a document, 
exhibit or paper filed, which is written or printed in a language other 
than English, must be accompanied by an English translation thereof duly 
verified under oath by its translator to be a true and accurate 
translation thereof, together with the name and address of the 
translator.
    (c) Preparation of papers. All claims, briefs, and memoranda filed 
shall be typewritten or printed and, if typewritten, must be on business 
letter (8\1/2\ x 11) size paper.



Sec. 509.4  Acknowledgment and numbering.

    The Commission will acknowledge the receipt of a claim in writing 
and will notify the claimant of the claim number assigned to it, which 
number must be used on all further correspondence and papers filed with 
regard to the claim.



Sec. 509.5  Procedure for determination of claims.

    (a) The Commission may on its own motion order a hearing upon any 
claim, specifying the questions to which the hearing shall be limited.
    (b) Without previous hearing, the Commission or a designated member 
of the staff may issue a Proposed Decision in determination of a claim. 
This Proposed Decision will set forth findings of

[[Page 34]]

fact and conclusions of law on the relevant elements of the claim, to 
the extent that evidence and information relevant to such elements is 
before the Commission. The claimant will have the burden of proof in 
submitting evidence and information sufficient to establish the elements 
necessary for a determination of the validity and amount of his or her 
claim.
    (c) The Proposed Decision will be delivered to the claimant or the 
claimant's attorney of record in person or by mail. Delivery by mail 
will be deemed completed 5 days after the mailing of the Proposed 
Decision addressed to the last known address of the claimant or the 
claimant's attorney of record. A copy of the Proposed Decision will be 
available for public inspection at the offices of the Commission, except 
in cases where public disclosure of the names of claimants is barred by 
statute.
    (d) It will be the policy of the Commission to post on a bulletin 
board and on its World Wide Web site (http://www.usdoj.gov/fcsc), any 
information of general interest to claimants before the Commission.
    (e) When the Proposed Decision denies a claim in whole or in part, 
the claimant may file notice of objection to the denial within 15 days 
of delivery of the decision. If the claimant wishes to appear at an oral 
hearing before the Commission to present his or her objection, the 
claimant must request the oral hearing at the time of submission of his 
or her objection, stating the reasons for objection, and may request a 
hearing on the claim, specifying whether for the taking of evidence or 
for oral argument on the legal issues which are the subject of the 
objection.
    (f) Copies of objections to or requests for hearings on Proposed 
Decisions will be available for public inspection at the Commission's 
offices.
    (g) Upon the expiration of 30 days after delivery to the claimant or 
claimant's attorney, if no objection under this section has in the 
meantime been filed, a staff Proposed Decision, upon approval by the 
Commission, will become the Commission's final determination and 
decision on the claim. A Proposed Decision issued by the Commission will 
become final 30 days after delivery to the claimant or the claimant's 
attorney without further order or decision by the Commission.
    (h) If an objection has in the meantime been filed, but no hearing 
requested, the Commission may, after due consideration thereof:
    (1) Issue a Final Decision affirming or modifying its Proposed 
Decision,
    (2) Issue an Amended Proposed Decision, or
    (3) On its own motion order hearing thereon, indicating whether for 
the taking of evidence on specified questions or for the hearing of oral 
arguments.
    (i) After the conclusion of a hearing, upon the expiration of any 
time allowed by the Commission for further submissions, the Commission 
may proceed to issue a Final Decision in determination of the claim.
    (j)(1) In case an individual claimant dies prior to the issuance of 
the Final Decision, that person's legal representative will be 
substituted as party claimant. However, upon failure of a representative 
to qualify for substitution, the Commission may issue its decision in 
the name of the estate of the deceased and, in case of an award, certify 
the award in the same manner to the Secretary of the Treasury for 
payment, if the payment of the award is provided for by statute.
    (2) Notice of the Commission's action under this paragraph will be 
forwarded to the claimant's attorney of record, or if the claimant is 
not represented by an attorney, the notice will be addressed to the 
estate of the claimant at the last known place of residence.
    (3) The term legal representative as applied in this paragraph 
means, in general, the administrator or executor, heir(s), next of kin, 
or descendant(s).
    (k) After the date of filing with the Commission no claim may be 
amended to reflect the assignment thereof by the claimant to any other 
person or entity except as otherwise provided by statute.
    (l) At any time after a final Decision has been issued on a claim, 
or a Proposed Decision has been entered as the Final Decision on a 
claim, but not later than 60 days before the completion date of the 
Commission's affairs in connection with the program under

[[Page 35]]

which such claim is filed, a petition to reopen on the ground of newly 
discovered evidence may be filed. No such petition will be entertained 
unless it appears therein that the newly discovered evidence came to the 
knowledge of the party filing the petition subsequent to the date of 
issuance of the Final Decision or the date on which the Proposed 
Decision was entered as the Final Decision; that it was not for want of 
due diligence that the evidence did not come sooner to the claimant's 
knowledge; and that the evidence is material, and not merely cumulative, 
and that reconsideration of the matter on the basis of that evidence 
would produce a different decision. The petition must include a 
statement of the facts which the petitioner expects to prove, the name 
and address of each witness, the identity of documents, and the reasons 
for failure to make earlier submission of the evidence.



Sec. 509.6  Hearings.

    (a) Hearings, whether upon the Commission's own motion or upon 
request of claimant, will be held upon not less than fifteen days' 
notice of the time and place thereof.
    (b) The hearings will be open to the public unless otherwise 
requested by claimant and ordered by the Commission, or when required by 
law.
    (c) The hearings will be conducted by the Commission, its designee 
or designees. Oral testimony and documentary evidence, including 
depositions that may have been taken as provided by statute and the 
rules of practices, may be offered in evidence on the claimant's behalf 
or by counsel for the Commission designated by it to represent the 
public interest opposed to the allowance of any unjust or unfounded 
claim or portion thereof; and either may cross-examine as to evidence 
offered through witnesses on behalf of the other. Objections to the 
admission of any such evidence will be ruled upon by the presiding 
officer.
    (d) The hearings will be conducted as non-adversarial proceedings. 
However, the claimant will be the moving party, and will have the burden 
of proof on all issues involved in the determination of his or her 
claim.
    (e) Hearings may be stenographically reported or electronically 
recorded, either at the request of the claimant or upon the discretion 
of the Commission. A claimant making such a request must notify the 
Commission at least ten (10) days prior to the hearing date. When a 
stenographic record or transcript of a hearing is ordered at the 
claimant's request, the cost of the reporting and transcription will be 
charged to the claimant.
    (f) The following rules of procedure will apply in the conduct of 
hearings held by the Commission for presentation of objections to 
Proposed Decisions:
    (1) Presentation of Objections to Proposed Decisions
    (i) Objections should focus either on the presentation of new 
evidence, or on the presentation of arguments demonstrating that, in the 
claimant's view, the Commission erred in considering the evidence 
previously submitted. Restatements of facts, evidence or materials 
already established in the record should be avoided.
    (ii) The Chief Counsel of the Commission or designated staff 
attorney will first introduce the objecting claimant and any witnesses 
to the Commission, and will then present a brief summary of the case, 
together with reasons supporting the decision as issued.
    (iii) The objecting claimant and all witnesses will be sworn.
    (iv) The objecting claimant, or the claimant's attorney, will then 
present the claimant's objections to the Commission, specifically 
setting forth the basis for the claimant's disagreement with the 
Proposed Decision, and the reasons supporting the claimant's contention 
that a more favorable decision should be rendered. Claimants will 
normally be limited to fifteen (15) minutes for their presentation of 
objections, but may request additional time if needed.
    (v) Following presentation of the claimant's objection, the Chief 
Counsel or designated staff attorney will be allotted an equivalent 
amount of time to question the claimant and the claimant's witnesses 
with respect to the testimony and other evidence presented in support of 
the objection.

[[Page 36]]

    (vi) The objecting claimant or the claimant's attorney, and the 
Chief Counsel or designated staff attorney, will then be allotted up to 
five (5) minutes each for follow-up or rebuttal.
    (vii) The Chair and Commissioners may direct questions to the 
objecting claimant and the claimant's attorney, and to the Chief Counsel 
or designated staff attorney, at any time during the proceedings 
described in the foregoing.
    (viii) The foregoing provisions may be modified at the discretion of 
the Chair as circumstances may require.
    (ix) At the conclusion, the Chair will inform the participants that 
the Commission will take the matter under advisement, and that a written 
Final Decision disposing of the objection will issue in due course.
    (2) Submission to Questioning/Conduct of Proceedings
    (i) Presentation of the claimant's objection by the objecting 
claimant or the claimant's attorney, and of follow-up and rebuttal by 
the claimant or the claimant's attorney and by the Chief Counsel or 
designated staff attorney, must be directed to the Commission. Verbal 
exchanges between the objecting claimant or the claimant's attorney, and 
the Chief Counsel or designated staff attorney, will be limited to 
questions and answers during the questioning phase of the proceeding 
described in paragraph (f)(1)(v) of this section, unless otherwise 
necessary for clarification or exchange of documents.
    (ii) Professional conduct and courtesies of the kind normally 
accorded in appellate judicial proceedings must be observed in all 
appearances and proceedings before the Commission.



Sec. 509.7  Presettlement conference.

    The Commission on its own motion or initiative, or upon the 
application of a claimant for good cause shown, may direct that a 
presettlement conference be held with respect to any issue involved in a 
claim.

[[Page 37]]



                 CHAPTER VI--NATIONAL SCIENCE FOUNDATION




  --------------------------------------------------------------------
Part                                                                Page
601             Classification and declassification of 
                    national security information...........          39
602             Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............          41
604             New restrictions on lobbying................          68
605             Nondiscrimination on the basis of handicap 
                    in programs or activities receiving 
                    Federal financial assistance............          80
606             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the National 
                    Science Foundation......................          96
607             Salary offset...............................         102
608             Claims collection and administrative offset.         106
611             Nondiscrimination in federally-assisted 
                    programs of the National Science 
                    Foundation--effectuation of title VI of 
                    the Civil Rights Act of 1964............         110
612             Availability of records and information.....         120
613             Privacy Act regulations.....................         133
614             Government in the Sunshine Act regulations 
                    of the National Science Board...........         137
615             Testimony and production of records.........         139
617             Nondiscrimination on the basis of age in 
                    programs or activities receiving Federal 
                    financial assistance from NSF...........         141
618             Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         146
620             Governmentwide debarment and suspension 
                    (nonprocurement)........................         162
630             Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         185
640             Compliance with the National Environmental 
                    Policy Act..............................         191

[[Page 38]]

641             Environmental assessment procedures for 
                    proposed National Science Foundation 
                    actions in Antarctica...................         194
650             Patents.....................................         199
660             Intergovernmental review of the National 
                    Science Foundation programs and 
                    activities..............................         209
670             Conservation of Antarctic animals and plants         212
671             Waste regulation............................         222
672             Enforcement and hearing procedures 
                    guidelines..............................         229
673             Antarctic non-governmental expeditions......         242
674             Antarctic meteorites........................         243
675             Medical clearance process for deployment to 
                    Antarctica..............................         245
680             National Science Foundation rules of 
                    practice and statutory conflict-of-
                    interest exemptions.....................         246
689             Research misconduct.........................         249
690             Protection of human subjects................         254

[[Page 39]]



PART 601_CLASSIFICATION AND DECLASSIFICATION OF NATIONAL SECURITY 
INFORMATION--Table of Contents




Sec.
601.1 Purpose.
601.2 Classification authority.
601.3 Security program.
601.4 Classification Review Committee.
601.5 Derivative classification.
601.6 Downgrading and declassification.
601.7 Mandatory declassification review.
601.8 Access to classified materials.
601.9 Access by historical researchers and former Presidential 
          appointees.

    Authority: E.O. 12958, 3 CFR, 1995 Comp. p. 333.

    Source: 47 FR 57284, Dec. 23, 1983, unless otherwise noted.



Sec. 601.1  Purpose.

    Pursuant to Executive Order 12958 and Information Security Oversight 
Office Directive No. 1, the National Science Foundation [Foundation] 
issues the following regulations. The regulations identify the 
information to be protected, prescribe classification, declassification, 
downgrading, and safeguarding procedures to be followed, and establish a 
monitoring system to ensure the regulations' effectiveness.

[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]



Sec. 601.2  Classification authority.

    The Foundation does not have original classification authority under 
Executive Order 12958. In any instance where a Foundation employee 
develops information that appears to warrant classification because of 
its national security character, the material will be afforded 
protection and sent to the Division of Administrative Services (DAS). 
Upon determination that classification is warranted, DAS will submit 
such material to the agency that has appropriate subject matter interest 
and classification authority.

[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]



Sec. 601.3  Security program.

    The Director, Division of Administrative Services, is responsible 
for conducting a security program that ensures effective implementation 
of Executive Order 12958, to include:
    (a) Maintaining active training and orientation programs for 
employees concerned with classified information or material.
    (b) Encouraging Foundation personnel to challenge those 
classification decisions they believe to be improper.
    (c) Issuing directives that ensure classified information is used, 
processed, stored, reproduced and transmitted only under conditions that 
will provide adequate protection and prevent access by unauthorized 
persons.
    (d) Recommending to the Director appropriate administrative action 
to correct abuse or violation of any provision of these regulations, 
including notification by warning letters, formal reprimand, and to the 
extent permitted by law, suspension without pay and removal.

[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]



Sec. 601.4  Classification Review Committee.

    The Security Officer (Information) chairs the Foundation's 
Classification Review Committee which has authority to act on all 
suggestions and complaints with respect to the Foundation's 
administration of the regulations. The Assistant Directors and the Heads 
of other offices reporting to the Director serve as members of the 
Committee. All suggestions and complaints including those regarding 
overclassification, failure to classify, or delay in declassifying not 
otherwise resolved, shall be referred to the Committee for resolution. 
The Committee shall establish procedures to review and act within 30 
days upon all appeals regarding requests for declassification. The 
Committee is authorized to overrule previous determinations in whole or 
in part when in its judgment, continued protection is no longer 
required. If the Committee determines that continued classification is 
required under the criteria of the Executive Order, it shall promptly so 
notify the requester and advise him that he may file an application for 
review with the Foundation. In addition, the Committee shall review all 
appeals of requests for records

[[Page 40]]

under section 552 of title 5 U.S.C. (Freedom of Information Act) when 
the proposed denial is based on their continued classification under 
Executive Order 12958.

[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]



Sec. 601.5  Derivative classification.

    Distinct from ``original'' classification is the determination that 
information is in substance the same as information currently 
classified, because of incorporating, paraphrasing, restating or 
generating in new form information that is already classified, and 
marking the newly developed material consistent with the marking of the 
source information. Persons who only reproduce, extract, or summarize 
classified information, or who only apply classification markings 
derived from source material or as directed by a classification guide, 
need not possess original classification authority.
    (a) If a person who applies derivative classification markings 
believes that the paraphrasing, restating, or summarizing of classified 
information has changed the level of or removed the basis for 
classification, that person must consult for a determination an 
appropriate official of the originating agency or office of origin who 
has the authority to upgrade, downgrade, or declassify the information.
    (b) The person who applies derivative classification markings shall 
observe and respect original classification decisions; and carry forward 
to any newly created documents any assigned authorized markings. The 
declassification date or event that provides the longest period of 
classification shall be used for documents classified on the basis of 
multiple sources.



Sec. 601.6  Downgrading and declassification.

    Executive Order 12958 prescribes a uniform system for classifying, 
declassifying, and safeguarding national security information.
    (a) Information shall be declassified or downgraded as soon as 
national security considerations permit. The National Science Foundation 
shall coordinate their review of classified information with other 
agencies that have a direct interests in the subject matter. Information 
that continues to meet the classification requirements prescribed by 
Section 1.3 despite the passage of time will continue to be protected in 
accordance with Executive Order 12958.
    (b) Foundation documents may be declassified or downgraded by the 
official who authorized the original classification, if that official is 
still serving in the same position; the originator's successor; a 
supervisory official of either; or officials delegated such authority in 
writing by the Director.
    (c) The Director shall conduct internal systematic review programs 
for classified information originated by the Foundation contained in 
records determined by the Archivist to be permanently valuable but that 
have not been accessioned into the National Archives of the United 
States.
    (d) The Archivist of the United States shall, in accordance with 
procedures and timeframes prescribed in the Information Security 
Oversight Office's directives implementing Executive Order 12958, 
systematically review for declassification or downgrading, classified 
records accessioned into the National Archives of the United States. 
Such information shall be reviewed by the Archivist for declassification 
or downgrading in accordance with systematic review guidelines that 
shall be provided by the head of the agency that originated the 
information, or in the case of foreign government information, by the 
Director of Information Security Oversight Office in consultation with 
interested agency heads.

[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]



Sec. 601.7  Mandatory declassification review.

    (a) The Division of Administrative Services is hereby designated as 
the office to which members of the public or Departments may direct 
requests for mandatory review for declassification under this provision. 
In the case of documents originally classified by the Foundation, this 
office shall, in turn, assign the request to the appropriate office for 
action within 60 days. In each instance, receipt of the request will be 
acknowledged in writing immediately

[[Page 41]]

by the office that has been assigned action. A request for 
classification review must reasonably describe the document.
    (b) Whenever a request is deficient in its description of the record 
sought, the requester should be asked to provide additional identifying 
information to the extent possible. Whenever a request does not 
reasonably describe the information sought, the requester shall be 
notified that unless additional information is provided or the scope of 
the request is narrowed, no further action will be undertaken. Upon a 
determination that the requested material no longer warrants 
classification, it shall be declassified and made promptly available to 
the requester, if not otherwise exempt from disclosure under 5 U.S.C. 
552(b) (Freedom of Information Act) or other provision of law. If the 
information may not be released in whole or in part the requester shall 
be given a brief statement as to the reasons for denial, a notice of the 
right to appeal the determination of the Classification Review 
Committee, and a notice that such an appeal must be filed with the 
Foundation within 60 days in order to be considered.
    (c) When the request relates to a document given derivative 
classification by the Foundation or originated by another agency, the 
request and the document will be forwarded to the originator of the 
source document, and the requestor notified of such referral.
    (d) Employees presently cleared for access to classified information 
are encouraged to challenge classification in cases where there is 
reasonable cause to believe that information is classified 
unnecessarily, improperly, or for an inappropriate period of time. Such 
challenges should be brought to the attention of the Security Officer 
(Information) who will act thereon within 30 days, informing the 
challenger of actions taken. Requests for confidentiality will be 
honored.



Sec. 601.8  Access to classified materials.

    No person may be given access to classified information unless that 
person has been determined to be trustworthy and unless access is 
essential to the accomplishment of lawful and authorized Government 
purposes.



Sec. 601.9  Access by historical researchers and former Presidential 
appointees.

    The requirement in Sec. 601.8 that access to classified information 
may be granted only as is essential to the accomplishment of lawful and 
authorized Government purposes may be waived for persons who are engaged 
in historical research projects, or previously have occupied 
policymaking positions to which they were appointed by the President, 
provided they execute written agreements to safeguard the information 
and written consent to the Foundation's review of their notes and 
manuscripts solely for the purpose of determining that no classified 
information is disclosed. A precondition to any such access is the 
favorable completion of an appropriate investigative inquiry.



PART 602_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE 
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                            Subpart A_General

Sec.
602.1 Purpose and scope of this part.
602.2 Scope of subpart.
602.3 Definitions.
602.4 Applicability.
602.5 Effect on other issuances.
602.6 Additions and exceptions.

                    Subpart B_Pre-Award Requirements

602.10 Forms for applying for grants.
602.11 State plans.
602.12 Special grant or subgrant conditions for ``high-risk'' grantees.

                    Subpart C_Post-Award Requirements

                        Financial Administration

602.20 Standards for financial management systems.
602.21 Payment.
602.22 Allowable costs.
602.23 Period of availability of funds.
602.24 Matching or cost sharing.
602.25 Program income.
602.26 Non-Federal audit.

                    Changes, Property, and Subawards

602.30 Changes.
602.31 Real property.
602.32 Equipment.
602.33 Supplies.

[[Page 42]]

602.34 Copyrights.
602.35 Subawards to debarred and suspended parties.
602.36 Procurement.
602.37 Subgrants.

              Reports, Records, Retention, and Enforcement

602.40 Monitoring and reporting program performance.
602.41 Financial reporting.
602.42 Retention and access requirements for records.
602.43 Enforcement.
602.44 Termination for convenience.

                 Subpart D_After-the-Grant Requirements

602.50 Closeout.
602.51 Later disallowances and adjustments.
602.52 Collection of amounts due.

Subpart E--Entitlements [Reserved]

    Authority: 42 U.S.C. 1870(a).

    Source: 53 FR 8080, 8087, Mar. 11, 1988, unless otherwise noted.



                            Subpart A_General



Sec. 602.1  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. 602.2  Scope of subpart.

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



Sec. 602.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subgrantees, 
subcontractors, and other payees; and
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required, such as annuities, insurance 
claims, and other benefit payments.
    Accrued income means the sum of:
    (1) Earnings during a given period from services performed by the 
grantee and goods and other tangible property delivered to purchasers, 
and
    (2) Amounts becoming owed to the grantee for which no current 
services or performance is required by the grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from programmatic 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for grant and 
subgrant in this section and except where qualified by Federal) a 
procurement contract under a grant or subgrant, and means a procurement 
subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs

[[Page 43]]

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.
    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.

[[Page 44]]

    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, 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. 602.4  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. 602.6, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.

[[Page 45]]

    (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. 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. 602.4(a) (3) through (8) are subject to Subpart E.



Sec. 602.5  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. 602.6.



Sec. 602.6  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.

[[Page 46]]

    (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. 602.10  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. 602.11  State plans.

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



Sec. 602.12  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

[[Page 47]]

    (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. 602.20  Standards for financial management systems.

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

[[Page 48]]

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. 602.21  Payment.

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

[[Page 49]]

    (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. 602.43(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. 602.22  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.
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. 602.23  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. 602.24  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:

[[Page 50]]

    (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. 602.25, 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. 602.25(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 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.

[[Page 51]]

    (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 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. 602.22, 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

[[Page 52]]

grantee. This requirement will also be imposed by the grantee on 
subgrantees.



Sec. 602.25  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. 602.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 602.31 
and 602.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (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. 602.26  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

[[Page 53]]

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. 602.36 
shall be followed.

[53 FR 8080, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45946, Aug. 
29, 1997]

                    Changes, Property, and Subawards



Sec. 602.30  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. 602.22) contain requirements for prior approval of certain types 
of costs. Except where waived, those requirements apply to all grants 
and subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct 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

[[Page 54]]

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. 602.36 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. 602.22) 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. 602.31  Real property.

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

[[Page 55]]

    (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.



Sec. 602.32  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. 602.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (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

[[Page 56]]

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. 602.32(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. 602.33  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. 602.34  Copyrights.

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



Sec. 602.35  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. 602.36  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,

[[Page 57]]

conditions, and specifications of their contracts or purchase orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or
    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative analysis 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

[[Page 58]]

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. 602.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name 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

[[Page 59]]

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. 602.36(d)(2)(i) 
apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of 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

[[Page 60]]

or competitive proposals and one of the following circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price reasonableness 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. 602.22). 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.

[[Page 61]]

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

[[Page 62]]

    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR Part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR Part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR Part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8080, 8087 Mar. 11, 1988, as amended at 60 FR 19639, 19645, Apr. 
19, 1995]



Sec. 602.37  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;

[[Page 63]]

    (3) Ensure that a provision for compliance with Sec. 602.42 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 602.10;
    (2) Section 602.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 602.21; and
    (4) Section 602.50.

              Reports, Records, Retention, and Enforcement



Sec. 602.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.

[[Page 64]]

    (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. 602.41  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 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 paragraph Sec. 602.41(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

[[Page 65]]

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 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. 602.41(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. 602.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 602.41(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. 602.41(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. 602.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 602.41(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.

[[Page 66]]

    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 602.41(b)(2).



Sec. 602.42  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. 602.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.

[[Page 67]]

    (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. 602.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 602.35).



Sec. 602.44  Termination for convenience.

    Except as provided in Sec. 602.43 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

[[Page 68]]

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. 602.43 or paragraph (a) of this section.



                 Subpart D_After-the-Grant Requirements



Sec. 602.50  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. 602.32(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. 602.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 602.42;
    (d) Property management requirements in Sec. Sec. 602.31 and 
602.32; and
    (e) Audit requirements in Sec. 602.26.



Sec. 602.52  Collection of amounts due.

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

Subpart E--Entitlements [Reserved]



PART 604_NEW RESTRICTIONS ON LOBBYING--Table of Contents




                            Subpart A_General

Sec.
604.100 Conditions on use of funds.
604.105 Definitions.
604.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

604.200 Agency and legislative liaison.
604.205 Professional and technical services.
604.210 Reporting.

[[Page 69]]

            Subpart C_Activities by Other Than Own Employees

604.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

604.400 Penalties.
604.405 Penalty procedures.
604.410 Enforcement.

                          Subpart E_Exemptions

604.500 Secretary of Defense.

                        Subpart F_Agency Reports

604.600 Semi-annual compilation.
604.605 Inspector General report.

Appendix A to Part 604--Certification Regarding Lobbying
Appendix B to Part 604--Disclosure Form to Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 42 U.S.C. 
1870.

    Source: 55 FR 6737, 6754, Feb. 26, 1990, unless otherwise noted.

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



                            Subpart A_General



Sec. 604.100  Conditions on use of funds.

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



Sec. 604.105  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

[[Page 70]]

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.
    (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.

[[Page 71]]

    (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. 604.110  Certification and disclosure.

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

unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraph (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 
paragraph (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 paragraph 
(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

[[Page 72]]

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. 604.200  Agency and legislative liaison.

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



Sec. 604.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
604.100 (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

[[Page 73]]

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. 604.210  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. 604.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
604.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 604.110 (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

[[Page 74]]

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. 604.400  Penalties.

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



Sec. 604.405  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. 604.410  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. 604.500  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.

[[Page 75]]

    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F_Agency Reports



Sec. 604.600  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 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. 604.605  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.

[[Page 76]]

        Appendix A to Part 604--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.

            Statement for Loan Guarantees and Loan Insurance

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

[[Page 77]]

       Appendix B to Part 604--Disclosure Form to Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC01JA91.007


[[Page 78]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.008


[[Page 79]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.009


[[Page 80]]





PART 605_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                      Subpart A_General Provisions

Sec.
605.0 Adoption of HHS regulations.
605.1 Purpose.
605.2 Application.
605.3 Definitions.
605.4 Discrimination prohibited.
605.5 Assurances required.
605.6 Remedial action, voluntary action, and self-evaluation.
605.7 Designation of responsible employee and adoption of grievance 
          procedures.
605.8 Notice.
605.9 Administrative requirements for small recipients.
605.10 Effect of state or local law or other requirements and effect of 
          employment opportunities.

                     Subpart B_Employment Practices

605.11 Discrimination prohibited.
605.12 Reasonable accommodation.
605.13 Employment criteria.
605.14 Preemployment inquiries.
605.15-605.20 [Reserved]

                         Subpart C_Accessibility

605.21 Discrimination prohibited.
605.22 Existing facilities.
605.23 New construction.
605.24-605.30 [Reserved]

        Subpart D-Preschool, Elementary, and Secondary Education

605.31 Application of this subpart.
605.32 Location and notification.
605.33 Free appropriate public education.
605.34 Educational setting.
605.35 Evaluation and placement.
605.36 Procedural safeguards.
605.37 Nonacademic services.
605.38 Preschool and adult education.
605.39 Private education.
605.40 [Reserved]

                    Subpart E_Postsecondary Education

605.41 Application of this subpart.
605.42 Admissions and recruitment.
605.43 Treatment of students; general.
605.44 Academic adjustments.
605.45 Housing.
605.46 Financial and employment assistance to students.
605.47 Nonacademic services.
605.48-605.50 [Reserved]

             Subpart F_Health, Welfare, and Social Services

605.51 Application of this subpart.
605.52 Health, welfare, and other social services.
605.53 Drug and alcohol addicts.
605.54 Education of institutionalized persons.
605.55-605.60 [Reserved]

                          Subpart G_Procedures

605.61 Procedures.
605.62-605.90 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 47 FR 8573, Mar. 1, 1982, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 605.0  Adoption of HHS regulations.

    The regulations of the Department of Health and Human Services on 
Nondiscrimination on the Basis of Handicap, 45 CFR part 84, including 
any amendments thereto, have been adopted almost in their entirety to 
programs or activities receiving Federal financial assistance from the 
National Science Foundation. The few changes in the Foundation's rules 
include a newly added sub-paragraph (5) to paragraph (k) of Sec. 605.3; 
and modifications in paragraph (j), Sec. 605.3; paragraph (a) of Sec. 
605.5; paragraph (b) of Sec. 605.46; and Sec. 605.61. Paragraph (c) of 
Sec. 605.5 has been removed, and ``qualified handicapped persons'' has 
been substituted for ``handicapped persons'' wherever that phrase 
appears in Sec. 605.4(b)(5) and in Subpart C (Sec. Sec. 605.21 through 
605.23). The date for compliance with Sec. 605.33(d) has been changed.

[47 FR 8573, Mar. 1, 1982, as amended at 61 FR 51021, Sept. 30, 1996; 68 
FR 51381, Aug. 26, 2003]



Sec. 605.1  Purpose.

    The purpose of this part is to effectuate section 504 of the 
Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance.



Sec. 605.2  Application.

    This part applies to each recipient of Federal financial assistance 
from the National Science Foundation and to

[[Page 81]]

each program or activity that receives such assistance.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.3  Definitions.

    As used in this part, the term:
    (a) The Act means the Rehabilitation Act of 1973, Public Law 93-112, 
as amended by the Rehabilitation Act Amendments of 1974, Public Law 93-
516, 29 U.S.C. 794.
    (b) Section 504 means section 504 of the Act.
    (c) Education of the Handicapped Act means that statute as amended 
by the Education for all Handicapped Children Act of 1975, Public Law 
94-142, 20 U.S.C. 1401 et seq.
    (d) Foundation means the National Science Foundation.
    (e) Director means the Director of the National Science Foundation.
    (f) Recipient means any state or its political subdivision, any 
instrumentality of a state or its political subdivision, 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, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    (g) Applicant for assistance means one who submits an application, 
request, or plan required to be approved by a Foundation official or by 
a recipient as a condition to becoming a recipient.
    (h) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement by which the Foundation 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.
    (i) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (j) Handicapped person. (1) Handicapped persons means any person in 
the United States 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) As used in paragraph (j)(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.
    (ii) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (iii) 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.
    (iv) Is regarded as having an impairment means (A) has a physical or 
mental impairment that does not subtantially 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 
(j)(2)(i) of this section but is treated by a recipient as having such 
an impairment.
    (k) Qualified handicapped person means:

[[Page 82]]

    (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 public preschool elementary, secondary, or adult 
educational services, a handicapped person (i) of an age during which 
nonhandicapped persons are provided such services, (ii) of any age 
during which it is mandatory under state law to provide such services to 
handicapped persons, or (iii) to whom a state is required to provide a 
free appropriate public education under section 612 of the Education of 
the Handicapped Act; and
    (3) With respect to postsecondary 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;
    (4) With respect to other services, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    (5) With respect to scientific and technical experimentation, 
observation, or field work a person who meets the academic, scientific 
and technical standards for participation and any reasonable physical 
qualifications for participation. Physical qualifications are not 
``reasonable,'' however, if they can be obviated without unreasonable 
burden by modifying facilities or aid, benefits, or services or by 
providing auxiliary aids. In determining whether the burdens are 
unreasonable, factors such as cost, risks, or sacrifice of legitimate 
objectives may be considered. In exceptional cases psychological 
qualifications may be considered `reasonable physical qualifications' 
under this paragraph. Nothing in this provision or these regulations 
requires reversal of scientific judgments on research, including choice 
of experiments, protocols for experiments, location of observing sites, 
or the like that are considered necessary to any line of scientific 
inquiry by the research scientists involved.
    (l) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (j) of this section.
    (m) Program or activity means all of the operations of any entity 
described in paragraphs (m)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) 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;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) 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
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (m)(1), (2), or (3) of this section.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 605.4  Discrimination prohibited.

    (a) General. No qualified handicapped person 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 which receives Federal financial assistance.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
any aid, benefit, or service, may not, directly or

[[Page 83]]

through contractual, licensing, or other arrangements, on the basis of 
handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an 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 persons or to any class of handicapped persons unless such 
action is necessary to provide qualified handicapped persons with aid, 
benefits, or services that are as effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person 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 or 
activity;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit, or service.
    (2) For purposes of this part, aids, benefits, and services, to be 
equally effective, are not required to produce the identical result or 
level of achievement for handicapped and nonhandicapped persons, but 
must afford handicapped persons equal opportunity to obtain the same 
result, to gain the same benefit, or to reach the same level of 
achievement, in the most integrated setting appropriate to the person's 
needs.
    (3) Despite the existence of separate or different aid, benefits, or 
services provided in accordance with this part, a recipient may not deny 
a qualified handicapped person the opportunity to participate in such 
programs or activities that are not separate or different.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration (i) that 
have the effect of subjecting qualified handicapped persons to 
discrimination on the basis of handicap, (ii) that have the purpose or 
effect of defeating or substantially impairing accomplishment of the 
objectives of the recipient's program or activity with respect to 
handicapped persons, 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 site or location of a facility, an applicant 
for assistance or a recipient may not make selections (i) that have the 
effect of excluding qualified handicapped persons from, denying them the 
benefits of, or otherwise subjecting them to discrimination under any 
program or activity that receives 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 qualified handicapped persons.
    (6) As used in this section, the aid, benefit, or service provided 
under a program or activity receiving Federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole or in part, with Federal financial 
assistance.
    (c) Aid, benefits, or services limited by Federal law. The exclusion 
of nonhandicapped persons from aid, benefits, or services limited by 
Federal statute or executive order to handicapped persons or the 
exclusion of a specific class of handicapped persons from aid, benefits, 
or services limited by Federal statute or executive order to a different 
class of handicapped persons is not prohibited by this part.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]

[[Page 84]]



Sec. 605.5  Assurances required.

    (a) Assurances. Recipients of Federal financial assistance to which 
this part applies will assure NSF, in a manner specified by the 
Director, that the programs or activities will be operated in compliance 
with this part.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended in the form of real property or to provide 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 the 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.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.6  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Director 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 Director 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 Director, where appropriate, may require either or 
both recipients to take remedial action.
    (3) The Director 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 
persons who are no longer participants in the recipient's program or 
activity but who were participants in the program when such 
discrimination occurred or (ii) with respect to handicapped persons who 
would have been participants in the program or activity had the 
discrimination not occurred.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped persons.
    (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 persons or organizations representing handicapped persons, 
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 persons or organizations representing handicapped persons, 
any policies and practices that do not meet the requirements of this 
part; and
    (iii) Take, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient that employs fifteen or more persons 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 Director upon request: (i) A list 
of the interested person consulted (ii) a description of areas examined 
and any problems identified, and (iii) a description of any 
modifications made and any remedial steps taken.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.7  Designation of responsible employee and adoption of grievance 
procedures.

    (a) Designation of responsible employee. A recipient that employs 
fifteen or

[[Page 85]]

more persons shall designate at least one person to coordinate its 
efforts to comply with this part.
    (b) Adoption of grievance procedures. A recipient that employs 
fifteen or more persons 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 postsecondary educational institutions.



Sec. 605.8  Notice.

    (a) A recipient that employs fifteen or more persons shall take 
appropriate initial and continuing steps to notify participants, 
beneficiaries, applications, 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 this part. The notification shall state, 
where appropriate, that the recipient does not discriminate in admission 
or access to, or treatment or employment in, its programs or activities. 
The notification shall also include an identification of the responsible 
employee designated pursuant to Sec. 605.7(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, publication in 
newspapers and magazines, placement of notices in recipient's 
publication, and distribution of memoranda or other written 
communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.9  Administrative requirements for small recipients.

    The Director may require any recipient with fewer than fifteen 
employees, or any class of such recipients, to comply with Sec. Sec. 
605.7 and 605.8, in whole or in part, when the Director finds a 
violation of this part or finds that such compliance will not 
significantly impair the ability of the recipient or class or recipients 
to provide benefits or services.



Sec. 605.10  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 persons to receive 
services or to 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 persons than for 
nonhandicapped persons.



                     Subpart B_Employment Practices



Sec. 605.11  Discrimination prohibited.

    (a) General. (1) No qualified handicapped person shall, on the basis 
of handicap, be subjected to discrimination in employment under any 
program or activity to which this part applies.
    (2) A recipient that receives assistance under the Education of the 
Handicapped Act shall take positive steps to employ and advance in 
employment qualified handicapped persons in programs or activities 
assisted under that Act.
    (3) 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

[[Page 86]]

limit, segregate, or classify applicants or employees in any way that 
adversely affects their opportunities or status because of handicap.
    (4) 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 
apprenticeships.
    (b) Specific activities. The provisions of this subpart apply to:
    (1) Recruitment, advertising, and the processing of applications 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;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including those that are social 
or recreational; and
    (9) Any other term, condition, or privilege of employment.
    (c) A recipient's obligation to comply with this subpart is not 
affected by any inconsistent term of any collective bargaining agreement 
to which it is a party.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.12  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental 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 or activity.
    (b) Reasonable accommodation may include: (1) Making facilities used 
by employees readily accessible to and usable by handicapped persons, 
and (2) job restructuring, part-time or modified work schedules, 
acquisition or modification or 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 or activity, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, 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.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.13  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 
persons or any class of handicapped persons 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 persons are not shown by the Director to be 
available.

[[Page 87]]

    (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 reflect the applicant's or 
employee's job skills, aptitude, or whatever other 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).



Sec. 605.14  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a preemployment medical examination or may not 
make preemployment inquiry of an applicant as to whether the applicant 
is a handicapped person 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. 605.6(a), 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. 605.6(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 entering employees are subjected 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 that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (3) Government officials investigating compliance with the Act shall 
be provided relevant information upon request.



Sec. Sec. 605.15-605.20  [Reserved]



                         Subpart C_Accessibility



Sec. 605.21  Discrimination prohibited.

    No qualified handicapped person shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped persons, 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. 605.22  Existing facilities.

    (a) Accessibility. A recipient shall operate each program or 
activity to which this part applies so that when each part is viewed in 
its entirety it is readily accessible to qualified handicapped persons. 
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 persons.
    (b) Methods. A recipient may comply with the requirements of 
paragraph (a)

[[Page 88]]

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 health, 
welfare, or other social services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities in 
conformance with the requirements of Sec. 605.23, or any other methods 
that result in making its program or activity accessible to qualified 
handicapped persons. 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 
serve qualified handicapped persons in the most integrated setting 
appropriate.
    (c) Small health, welfare, or other social service providers. If a 
recipient with fewer than fifteen employees that provides health, 
welfare, or other social services finds, after consultation with a 
qualified handicapped person 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, the recipient may, 
as an alternative, refer the qualified handicapped person to other 
providers of those services that are accessible.
    (d) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within sixty days of the effective date of 
this part except that 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 qualified handicapped 
persons or organizations representing qualified 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 persons;
    (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 accessibility under paragraph (a) of this section and, if the time 
period of the transition plan is longer than one year, identify the 
steps of 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 usuable 
by qualified handicapped persons.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.23  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 
persons, 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 in a manner that affects or could affect the usability of 
the facility or 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 
persons.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as

[[Page 89]]

of January 18, 1991, design, construction, or alteration of buildings in 
conformance with sections 3-8 of the Uniform Federal Accessibility 
Standards (USAF) (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 8573, Mar. 1, 1982, as amended at 55 FR 52138, 52142, Dec. 19, 
1990]



Sec. Sec. 605.24-605.30  [Reserved]



        Subpart D_Preschool, Elementary, and Secondary Education



Sec. 605.31  Application of this subpart.

    Subpart D applies to preschool, elementary, secondary, and adult 
education programs or activities that receive or benefit from Federal 
financial assistance and to recipients that operate, or that receive 
Federal financial assistance for the operation of, such programs or 
activities.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.32  Location and notification.

    A recipient that operates a public elementary or secondary education 
program shall annually:
    (a) Undertake to identify and locate every qualified handicapped 
person residing in the recipient's jurisdiction who is not receiving a 
public education; and
    (b) Take appropriate steps to notify handicapped persons and their 
parents or guardians or the recipient's duty under this subpart.



Sec. 605.33  Free appropriate public education.

    (a) General. A recipient that operates a public elementary or 
secondary education program shall provide a free appropriate public 
education to each qualified handicapped person who is in the recipient's 
jurisdiction, regardless of the nature or severity of the person's 
handicap.
    (b) Appropriate education. (1) For the purpose of this subpart, the 
provision of an appropriate education is the provision of regular or 
special education and related aids and services that (i) are designed to 
meet individual educational needs of handicapped persons as adequately 
as the needs of nonhandicapped persons are met and (ii) are based upon 
adherence to procedures that satisfy the requirements of Sec. Sec. 
605.34, 605.35 and 605.36.
    (2) Implementation of an Individualized Education Program developed 
in accordance with the Education of the Handicapped Act is one means of 
meeting the standard established in paragraph (b)(1)(i) of this section.
    (3) A recipient may place a handicapped person or refer such person 
for aid, benefits, or services other than those that it operates or 
provides as its means of carrying out the requirements of this subpart. 
If so, the recipient remains responsible for ensuring that the 
requirements of this subpart are met with respect to any handicapped 
person so placed or referred.
    (c) Free education--(1) General. For the purpose of this section, 
the provision of a free education is the provision of educational and 
related services without cost to the handicapped person or to his or her 
parents or guardian, except for those fees that are imposed on non-
handicapped persons or their parents or guardian. It may consist either 
of the provision of free services or, if a recipient places a 
handicapped person or refers such person for aid, benefits, or services 
not operated or provided by the recipient as its means of carrying out 
the requirements of this subpart, of

[[Page 90]]

payment for the costs of the aid, benefits, or services. Funds available 
from any public or private agency may be used to meet the requirements 
of this subpart. Nothing in this section shall be construed to relieve 
an insurer or similar third party from an otherwise valid obligation to 
provide or pay for services provided to a handicapped person.
    (2) Transportation. If a recipient places a handicapped person or 
refers such person for aid, benefits, or services not operated or 
provided by the recipient as its means of carrying out the requirements 
of this subpart, the recipient shall ensure that adequate transportation 
to and from the aid, benefits, or services is provided at no greater 
cost than would be incurred by the person or his or her parents or 
guardian if the person were placed in the program operated by the 
recipient.
    (3) Residential placement. If a public or private residential 
placement is necessary to provide a free appropriate public education to 
a handicapped person because of his or her handicap, the placement, 
including non-medical care and room and board, shall be provided at no 
cost to the person or his or her parents or guardian.
    (4) Placement of handicapped persons by parents. If a recipient has 
made available, in conformance with the requirements of this section and 
Sec. 605.34, a free appropriate public education to a handicapped 
person and the person's parents or guardian chooses to place the person 
in a private school, the recipient is not required to pay for the 
person's education in the private school. Disagreements between a parent 
or guardian and a recipient regarding whether the recipient has made a 
free appropriate public education available or otherwise regarding the 
question of financial responsibility are subject to the due process 
procedures of Sec. 605.36.
    (d) Compliance. A recipient may not exclude any qualified 
handicapped person from a public elementary or secondary education after 
the effective date of this part. A recipient that is not, on the 
effective date of this regulation, in full compliance with the other 
requirements of the preceding paragraphs of this section shall meet such 
requirements at the earliest practicable time and in no event later than 
July 1, 1983.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.34  Educational setting.

    (a) Academic setting. A recipient to which this subpart applies 
shall educate, or shall provide for the education of, each qualified 
handicapped person in its jurisdiction with persons who are not 
handicapped to the maximum extent appropriate to the needs of the 
handicapped person. A recipient shall place a handicapped person in the 
regular educational environment operated by the recipient unless it is 
demonstrated by the recipient that the education of the person in the 
regular environment with the use of supplementary aids and services 
cannot be achieved satisfactorily. Whenever a recipient places a person 
in a setting other than the regular educational environment pursuant to 
this paragraph, it shall take into account the proximity of the 
alternate setting to the person's home.
    (b) Nonacademic settings. In providing or arranging for the 
provision of nonacademic and extracurricular services and activities, 
including meals, recess periods, and the services and activities set 
forth in Sec. 605.37(a)(2), a recipient shall ensure that handicapped 
persons participate with nonhandicapped persons in such activities and 
services to the maximum extent appropriate to the needs of the 
handicapped person in question.
    (c) Comparable facilities. If a recipient, in compliance with 
paragraph (a) of this section, operates a facility that is identifiable 
as being for handicapped persons, the recipient shall ensure that the 
facility and the services and activities provided therein are comparable 
to the other facilities, services, and activities of the recipient.



Sec. 605.35  Evaluation and placement.

    (a) Preplacement evaluation. A recipient that operates a public 
elementary or secondary education program or activity shall conduct an 
evaluation in accordance with the requirements of paragraph (b) of this 
section of any person who, because of handicap, needs or

[[Page 91]]

is believed to need special education or related services before taking 
any action with respect to the initial placement of the person in 
regular or special education and any subsequent significant change in 
placement.
    (b) Evaluation procedures. A recipient to which this subpart applies 
shall establish standards and procedures for the evaluation and 
placement of persons who, because of handicap, need or are believed to 
need special education or related services which ensure that:
    (1) Tests and other evaluation materials have been validated for the 
specific purpose for which they are used and are administered by trained 
personnel in conformance with the instructions provided by their 
producer;
    (2) Tests and other evaluation materials include those tailored to 
assess specific areas of educational need and not merely those which are 
designed to provide a single general intelligence quotient; and
    (3) Tests are selected and administered so as best to ensure that, 
when a test is administered to a student with impaired sensory, manual, 
or speaking skills, the test results accurately reflect the student's 
aptitude or achievement level or whatever other factor the test purports 
to measure, rather than reflecting the student's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
that the test purports to measure).
    (c) Placement procedures. In interpreting evaluation data and in 
making placement decisions, a recipient shall (1) draw upon information 
from a variety of sources, including aptitude and achievement tests, 
teacher recommendations, physical condition, social or cultural 
background, and adaptive behavior, (2) establish procedures to ensure 
that information obtained from all such sources is documented and 
carefully considered, (3) ensure that the placement decision is made by 
a group of persons, including persons knowledgeable about the child, the 
meaning of the evaluation data, and the placement options, and (4) 
ensure that the placement decision is made in conformity with Sec. 
605.34.
    (d) Reevaluation. A recipient to which this section applies shall 
establish procedures, in accordance with paragraph (b) of this section, 
for periodic reevaluation of students who have been provided special 
education and related services. A reevaluation procedure consistent with 
the Education for the Handicapped Act is one means of meeting this 
requirement.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.36  Procedural safeguards.

    A recipient that operates a public elementary or secondary education 
program shall establish and implement, with respect to actions regarding 
the identification, evaluation, or educational placement of persons who, 
because of handicap, need or are believed to need special instruction or 
related services, a system of procedural safeguards that includes 
notice, an opportunity for the parents or guardian of the person to 
examine relevant records, an impartial hearing with opportunity for 
participation by the person's parents or guardian and representation by 
counsel, and a review procedure. Compliance with the procedural 
safeguards of section 615 of the Education of the Handicapped Act is one 
means of meeting this requirement.



Sec. 605.37  Nonacademic services.

    (a) General. (1) A recipient to which this subpart applies shall 
provide nonacademic and extracurricular services and activities in such 
manner as is necessary to afford handicapped students an equal 
opportunity for participation in such services and activities.
    (2) Nonacademic and extracurricular services and activities may 
include counseling services, physical recreational athletics, 
transportation, health services, recreational activities, special 
interest groups or clubs sponsored by the recipients, referrals to 
agencies which provide assistance to handicapped persons, and employment 
of students, including both employment by the recipient and assistance 
in making available outside employment.
    (b) Counseling services. A recipient to which this subpart applies 
that provides personal, academic, or vocational counseling, guidance, or 
placement services to its students shall provide these services without 
discrimination on the basis of handicap. The recipient

[[Page 92]]

shall ensure that qualified handicapped students are not counseled 
toward more restrictive career objectives than are nonhandicapped 
students with similar interests and abilities.
    (c) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar aid, benefits, or services 
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 interscholastic, 
club, or intramural athletics shall provide to qualified handicapped 
students an equal opportunity for participation.
    (2) A recipient may offer to handicapped students physical education 
and athletic activities that are separate or different from those 
offered to nonhandicapped students only if separation or differentiation 
is consistent with the requirements of Sec. 605.34 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.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.38  Preschool and adult education.

    A recipient to which this subpart applies that provides preschool 
education or day care or adult education may not, on the basis of 
handicap, exclude qualified handicapped persons and shall take into 
account the needs of such persons in determining the aid, benefits, or 
services to be provided.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.39  Private education.

    (a) A recipient that provides private elementary or secondary 
education may not, on the basis of handicap, exclude a qualified 
handicapped person if the person can, with minor adjustments, be 
provided an appropriate education, as defined in Sec. 605.33(b)(1), 
within that recipient's program or activity.
    (b) A recipient to which this section applies may not charge more 
for the provision of an appropriate education to handicapped persons 
than to nonhandicapped persons except to the extent that any additional 
charge is justified by a substantial increase in cost to the recipient.
    (c) A recipient to which this section applies that provides special 
education shall do so in accordance with the provisions of Sec. Sec. 
605.35 and 605.36. Each recipient to which this section applies is 
subject to the provisions of Sec. Sec. 605.34, 605.37 and 605.38.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.40  [Reserved]



                    Subpart E_Postsecondary Education



Sec. 605.41  Application of this subpart.

    Subpart E applies to postsecondary education programs or activities, 
including postsecondary vocational education programs or activities, 
that receive Federal financial assistance and to recipients that 
operate, or that receive Federal financial assistance for the operation 
of, such programs or activities.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.42  Admissions and recruitment.

    (a) General. Qualified handicapped persons 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 persons who may be admitted;
    (2) May not make use of any test or criterion for admission that has 
a disproportionate, adverse effect on handicapped persons or any class 
of handicapped persons 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 
Director to be available.

[[Page 93]]

    (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 or 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 persons; and
    (4) Except as provided in paragraph (c) of this section, may not 
make preadmission inquiry as to whether an applicant for admission is a 
handicapped person but, after admission, may make inquiries on a 
confidential basis as to handicaps that may require accommodation.
    (c) Preadmission inquiry exception. When a recipient is taking 
remedial action to correct the effects of past discrimination pursuant 
to Sec. 605.6(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. 605.6(6), the recipient may invite applicants for admission 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 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. 605.43  Treatment of students; general.

    (a) 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 postsecondary education 
aid, benefits, or services 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, an 
education program or activity 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, 
course of study, or other part of its education program or activity.
    (d) A recipient to which this subpart applies shall operate its 
program or activity in the most integrated setting appropriate.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.44  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,

[[Page 94]]

against a qualified handicapped applicant or student. Academic 
requirements that the recipient can demonstrate are essential to the 
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 students' academic achievement, 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 take such steps as are necessary to 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 speaking 
skills.
    (2) Auxiliary aids may include taped texts, 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 attendents, individually prescribed devices, 
readers for personal use or study, or other devices or services of a 
personal nature.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.45  Housing.

    (a) Housing provided by the recipient. 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 the 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. 605.46  Financial and employment assistance to students.

    (a) Provision of financial assistance. (1) In providing financial 
assistance to qualified handicapped persons, 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 persons 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, trusts, bequests, 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

[[Page 95]]

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 helps its students to obtain employment shall assure itself that 
the employment opportunities it helps to make available to students are, 
as a whole, made available in a manner that would not violate subpart B 
if they were provided by the recipient.
    (c) Employment of students by recipients. A recipient that employs 
any of its students may not do so in a manner that violates subpart B.



Sec. 605.47  Nonacademic services.

    (a) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar aid, benefits, or services 
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 or differentiation is consistent with the requirements of 
Sec. 605.43(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 
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.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. Sec. 605.48-605.50  [Reserved]



             Subpart F_Health, Welfare, and Social Services



Sec. 605.51  Application of this subpart.

    Subpart F applies to health, welfare, and other social service 
programs or activities that receive Federal financial assistance and to 
recipients that operate, or that receive Federal financial assistance 
for the operation of, such programs or activities.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.52  Health, welfare, and other social services.

    (a) General. In providing health, welfare, or other social services 
or benefits, a recipient may not, on the basis of handicap:
    (1) Deny a qualified handicapped person these benefits or services;
    (2) Afford a qualified handicapped person an opportunity to receive 
benefits or services that is not equal to that offered nonhandicapped 
persons;
    (3) Provide a qualified handicapped person which benefits or 
services that are not as effective (as defined in Sec. 605.4(b)) as the 
benefits or services provided to others;
    (4) Provide benefits or services in a manner that limits or has the 
effect of limiting the participation of qualified handicapped persons; 
or
    (5) Provide different or separate benefits or services to 
handicapped persons except where necessary provide qualified handicapped 
persons with benefits and services that are as effective as those 
provided to others.
    (b) Notice. A recipient that provides notice concerning benefits or 
services or written material concerning waivers

[[Page 96]]

of rights or consent to treatment shall take such steps as are necessary 
to ensure that qualified handicapped persons, including those with 
impaired sensory or speaking skills, are not denied effective notice 
because of their handicap.
    (c) Emergency treatment for the hearing impaired. A recipient 
hospital that provides health services or benefits shall establish a 
procedure for effective communication with persons with impaired hearing 
for the purpose of providing emergency health care.
    (d) Auxiliary aids. (1) A recipient to which this subpart applies 
that employs fifteen or more persons shall provide appropriate auxiliary 
aids to persons with impaired sensory, manual, or speaking skills, where 
necessary to afford such persons an equal opportunity to benefit from 
the service in question.
    (2) The Director may require recipients with fewer than fifteen 
employees to provide auxiliary aids where the provision of aids would 
not significantly impair the ability of the recipient to provide its 
benefits or services.
    (3) For the purpose of this paragraph, auxiliary aids may include 
brailled and taped material, interpreters, and other aids for persons 
with impaired hearing or vision.



Sec. 605.53  Drug and alcohol addicts.

    A recipient to which this subpart applies that operates a general 
hospital or outpatient facility may not discriminate in admission or 
treatment against a drug or alcohol abuser or alcoholic who is suffering 
from a medical condition, because of the person's drug or alcohol abuse 
or alcoholism.



Sec. 605.54  Education of institutionalized persons.

    A recipient to which this subpart applies and that operates or 
supervises a program or activity that provides aid, benefits, or 
services for persons who are institutionalized because of handicap shall 
ensure that each qualified handicapped person, as defined in Sec. 
605.3(k)(2), in its program or activity is provided an appropriate 
education, as defined in Sec. 605.33(b). Nothing in this section shall 
be interpreted as altering in any way the obligations of recipients 
under subpart D.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. Sec. 605.55-605.60  [Reserved]



                          Subpart G_Procedures



Sec. 605.61  Procedures.

    The procedural provisions applicable to title VI of the Civil Rights 
Act of 1964 apply to this part. These procedures are found in Sec. Sec. 
611.6 through 611.10 of this title (45 CFR). In the event that the 
Department of Education or the Department of Health and Human Services 
conducts a hearing under this part on behalf of NSF, the provisions of 
45 CFR 84.61 shall also apply except that the Director of NSF or his 
designee shall also be ``the responsible Department official'' for 
purposes of 45 CFR 81.102 and 81.121 and ``the reviewing authority'' for 
purposes of 45 CFR 81.103, 81.104, and 81.105. Also, in such cases, the 
Director of NSF rather than the Secretary of HHS or Education shall 
conduct the review provided for in 45 CFR 81.106.



Sec. Sec. 605.62-605.90  [Reserved]



PART 606_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL SCIENCE FOUNDATION--
Table of Contents




Sec.
606.1 Purpose.
606.2 Application.
606.3 Definitions.
606.4-606.9 [Reserved]
606.10 Self-evaluation.
606.11 Notice.
606.12-606.29 [Reserved]
606.30 General prohibitions against discrimination.
606.31-606.39 [Reserved]
606.40 Employment.
606.41-606.49 [Reserved]
606.50 Program accessibility: Discrimination prohibited.
606.51 Program accessibility: Existing facilities.
606.52 Program accessibility: New construction and alterations.
606.53-606.59 [Reserved]
606.60 Communications.

[[Page 97]]

606.61-606.69 [Reserved]
606.70 Complaint procedures.
606.71-606.99 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 54 FR 4791, Jan. 31, 1989, unless otherwise noted.



Sec. 606.1  Purpose.

    The purpose of this part is to effectuate 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. 606.2  Application.

    This part applies to all programs or activities conducted by the 
Foundation, except for programs or activities conducted outside the 
United States that do not involve individuals with handicaps in the 
United States. Programs and activities receiving Federal financial 
assistance from the Foundation are covered by 45 CFR part 605.



Sec. 606.3  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, 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 Foundation. 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, note 
takers, 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 Foundation's alleged 
discriminatory action in sufficient detail to inform the Foundation of 
the nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    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.
    Foundation means the National Science Foundation.
    Individual with handicaps means any person in the United States 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.

[[Page 98]]

    (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 Foundation as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the Foundation as having such an 
impairment.
    Qualified individual with handicaps means--
    (1) With respect to any Foundation 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 
Foundation 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. 606.40.
    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); 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810); 
and the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat. 
28). As used in this part, section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally assisted 
programs.



Sec. Sec. 606.4-606.9  [Reserved]



Sec. 606.10  Self-evaluation.

    (a) The Foundation shall, within one year of the effective date of 
this part, evaluate its current policies and practices, and the effects 
thereof, that do not or may not meet the requirements of this part, and, 
to the extent modification of any such policies and practices is 
required, the Foundation shall proceed to make the necessary 
modifications.
    (b) The Foundation 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 Foundation shall, for at least three years following 
completion of the evaluation required under paragraph (a) of this 
section, maintain on file and make available for public inspection:
    (1) A list of the interested persons who made comments;
    (2) A description of areas examined and any problems identified; and
    (3) A description of any modifications made.



Sec. 606.11  Notice.

    The Foundation 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 Foundation and make such 
information available to them in such manner as the Director of the 
Foundation finds necessary to apprise such persons of the protections 
against discrimination assured them by section 504 and this regulation.



Sec. Sec. 606.12-606.29  [Reserved]



Sec. 606.30  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 Foundation.

[[Page 99]]

    (b)(1) The Foundation, 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 planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Foundation 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 Foundation may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The Foundation may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude qualified individuals with handicaps from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the Foundation; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The Foundation, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (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 Foundation shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with handicaps.



Sec. Sec. 606.31-606.39  [Reserved]



Sec. 606.40  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 Foundation. 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. 606.41-606.49  [Reserved]



Sec. 606.50  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 606.51, no qualified 
individual with handicaps shall, because the Foundation's facilities are 
inaccessible to or

[[Page 100]]

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 
Foundation.



Sec. 606.51  Program accessibility: Existing facilities.

    (a) General. The Foundation 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 Foundation to make each of its existing 
facilities accessible to and usable by individuals with handicaps; or
    (2) Require the Foundation 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 Foundation personnel believe that the proposed 
action would fundamentally alter the program or activity or would result 
in undue financial and administrative burdens, the Foundation has the 
initial burden of establishing that compliance with Sec. 606.51(a) 
would result in such alteration or burdens. The decision that compliance 
would result in such alteration or burdens must be made by the 
Foundation Director or his or her designee after considering all 
Foundation 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 burdens, the Foundation 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 Foundation may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with handicaps. The Foundation is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The Foundation, 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 Foundation 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 Foundation shall comply with the 
obligations established under this section within 60 days of the 
effective date of this part except that where structural changes in 
facilities are undertaken, such changes shall be made within three years 
of the effective date of this part, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Foundation 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 Foundation 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 Foundation's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;

[[Page 101]]

    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of 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. 606.52  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 Foundation 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. 606.53-606.59  [Reserved]



Sec. 606.60  Communications.

    (a) The Foundation shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Foundation 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 Foundation.
    (i) In determining what type of auxiliary aid is necessary, the 
Foundation shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The Foundation need not provide individually prescribed 
devices, readers for personal use or study, or other devices of a 
personal nature.
    (2) Where the Foundation communicates with applicants and 
beneficiaries by telephone, telecommunications devices for deaf persons 
(TDD's) or equally effective telecommunication systems shall be used to 
communicate with persons with impaired hearing.
    (b) The Foundation 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 Foundation shall provide signage at a primary entrance to 
each of its inaccessible facilities, directing users to a 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 Foundation 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 Foundation personnel believe that 
the proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the 
Foundation has the initial burden of establishing that compliance with 
Sec. 606.60 would result in such alteration or burdens. The decision 
that compliance would result in such alteration or burdens must be made 
by the Foundation Director or his or her designee after considering all 
Foundation 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 Foundation 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. 606.61-606.69  [Reserved]



Sec. 606.70  Complaint 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 Foundation.
    (b) The Foundation shall process complaints alleging violations of 
section 504 with respect to employment

[[Page 102]]

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 Director, Office of Equal Opportunity Programs (OEOP), shall 
coordinate implementation of this section.
    (d) Persons wishing to submit complaints should submit complete 
complaints (see Sec. 606.03) to the Office of Equal Opportunity 
Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, 
VA 22230. In accordance with the procedures outlined below, the 
Foundation will accept all complete complaints and will either undertake 
to investigate them if they are within the jurisdiction of the 
Foundation and submitted within 180 days of the alleged acts of 
discrimination or in the case of complaints not within the jurisdiction 
of the Foundation, it shall promptly notify the complainant and shall 
make reasonable efforts to refer the complaint to the appropriate 
government entity. Complete complaints submitted after the 180 day time 
limit may also be acted upon at the discretion of the Foundation if good 
cause for the delay in submission is found.
    (e) The Foundation shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or a 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.
    (f) Within 180 days of the receipt of a complete complaint, the 
Director, Office of Equal Opportunity Programs (OEOP), or his or her 
designee or delegate, will investigate the complaint and 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 a right to appeal to the Director of the Foundation.
    (g)(1) A complainant may appeal findings of fact, conclusions of 
law, or remedies to the Director of the Foundation. Such appeals must be 
in writing and must state fully the basis for the appeal, proposed 
alternative findings of fact, conclusions of law, or remedies. They must 
be sent (as evidenced by an appropriate postmark or other satisfactory 
evidence) within 90 days after the date of receipt from the Foundation 
of the letter described in paragraph (f) of this section. The Foundation 
may extend this time for good cause.
    (2) The Director shall notify the complainant of the results of the 
appeal within 30 days of the receipt of the appeal. If the Director 
determines that additional information is needed from the complainant, 
the Director shall have 30 days from the date such additional 
information is received from the complainant to make a determination on 
the appeal.
    (h) The time limits for sending a letter to the complainant in 
paragraph (f) and for deciding an appeal in paragraph (g)(2) of this 
section may be extended with the permission of the Assistant Attorney 
General.

[54 FR 4791, Jan. 31, 1989, as amended at 59 FR 37437, July 22, 1994]



Sec. Sec. 606.71-606.99  [Reserved]



PART 607_SALARY OFFSET--Table of Contents




Sec.
607.1 Purpose and scope.
607.2 Definitions.
607.3 Applicability.
607.4 Notice requirements before offset.
607.5 Hearing.
607.6 Written decision.
607.7 Coordinating offset with another Federal agency.
607.8 Procedures for salary offset.
607.9 Refunds.
607.10 Statute of limitations.
607.11 Non-waiver of rights.
607.12 Interest, penalties, and administrative costs.

    Authority: 5 U.S.C. 5514; E.O. 12107, 3 CFR, 1978 Comp., p. 264; 5 
CFR part 550, subpart K.

    Source: 58 FR 68769, Dec. 29, 1993, unless otherwise noted.



Sec. 607.1  Purpose and scope.

    (a) This part provides procedures for the collection by 
administrative offset of a federal employee's salary without his or her 
consent to satisfy certain

[[Page 103]]

debts owed to the Federal government. This part applies to all Federal 
employees who owe debts to the National Science Foundation (NSF) and to 
current employees of NSF who owe debts to other Federal agencies. This 
part does not apply when the employee consents to recovery from his or 
her current pay account.
    (b) This part does not apply to debts or claims arising under:
    (1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et 
seq.;
    (2) The Social Security Act, 42 U.S.C. 301 et seq.;
    (3) The tariff laws of the United States; or
    (4) Any case where a collection of a debt by salary offset is 
explicitly provided for or prohibited by another statute.
    (c) This part does not apply to any adjustment to pay arising out of 
an employee's selection 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.
    (d) This part does not preclude the compromise, suspension, or 
termination of collection action where appropriate under the standards 
implementing the Federal Claims Collection Act, 31 U.S.C. 3711 et seq., 
and 4 CFR parts 101 through 105.
    (e) This part does not preclude an employee from requesting waiver 
of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 716, 
or in any way questioning the amount or validity of the debt by 
submitting a subsequent claim to the General Accounting Office. This 
part does not preclude an employee from requesting a waiver pursuant to 
other statutory provisions applicable to the particular debt being 
collected.
    (f) Matters not addressed in this part should be reviewed in 
accordance with the Federal Claims Collection Standards at 4 CFR 101.1 
et seq.



Sec. 607.2  Definitions.

    For the purposes of this part the following definitions will apply:
    Agency means an executive agency as defined at 5 U.S.C. 105, 
including the U.S. Postal Service and the U.S. Postal Rate Commission; a 
military department as defined at 5 U.S.C. 102; an agency or court in 
the judicial branch; an agency of the legislative branch, including the 
U.S. Senate and House of Representatives; and other independent 
establishments that are entities of the Federal government.
    Certification means a written debt claim received from a creditor 
agency which requests the paying agency to offset the salary of an 
employee.
    Chief Financial Officer means the Chief Financial Officer of NSF or 
such other official of NSF who is designated by the Chief Financial 
Officer to determine whether an employee is indebted to the United 
States and to take action to collect such debts.
    Creditor agency means an agency of the Federal Government to which 
the debt is owed.
    Debt means an amount owed by a Federal employee to the United States 
from sources which include loans insured or guaranteed by the United 
States and all other amounts due the United States from fees, leases, 
rents, royalties, services, sales of real or personal property, 
overpayments, penalties, damages, interests, fines, forfeitures (except 
those arising under the Uniform Code of Military Justice), and all other 
similar sources.
    Disposable pay means the amount that remains from an employee's 
Federal pay after required deductions for social security, Federal, 
State or local income tax, health insurance premiums, retirement 
contributions, life insurance premiums, Federal employment taxes, and 
any other deductions that are required to be withheld by law.
    Hearing official means an individual responsible for conducting a 
hearing with respect to the existence or amount of a debt claimed, or 
the repayment schedule of a debt, and who renders a decision on the 
basis of such hearing. A hearing official may not be under the 
supervision or control of the Chief Financial Officer or of persons 
having supervision or control over the Chief Financial Officer.
    NSF means the National Science Foundation.
    Paying agency means the agency that employs the individual who owes 
the

[[Page 104]]

debt and authorizes the payment of his or her current pay.
    Salary offset means an administrative offset to collect a debt 
pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially 
established pay intervals from the current pay account of an employee 
without his or her consent.



Sec. 607.3  Applicability.

    The regulations in this part are to be followed when:
    (a) NSF is owed a debt by an individual who is a current employee of 
the NSF; or
    (b) NSF is owed a debt by an individual currently employed by 
another Federal agency; or
    (c) NSF employs an individual who owes a debt to another Federal 
agency.



Sec. 607.4  Notice requirements before offset.

    (a) Salary offset shall not be made against an employee's pay unless 
the employee is provided with written notice signed by the Chief 
Financial Officer of the debt at least 30 days before salary offset 
commences.
    (b) The written notice shall contain:
    (1) A statement that the debt is owed and an explanation of its 
nature and amount;
    (2) The agency's intention to collect the debt by deducting from the 
employee's current disposable pay account;
    (3) The amount, frequency, proposed beginning date, and duration of 
the intended deduction(s);
    (4) An explanation of interest, penalties, and administrative 
charges, including a statement that such charges will be assessed unless 
excused in accordance with the Federal Claims Collections Standards at 4 
CFR 101.1;
    (5) The employee's right to inspect, request, and receive a copy of 
government records relating to the debt;
    (6) The employee's opportunity to establish a written schedule for 
the voluntary repayment of the debt in lieu of offset;
    (7) The employee's right to an oral hearing or a determination based 
on a review of the written record (``paper hearing'') conducted by an 
impartial hearing official concerning the existence or the amount of the 
debt, or the terms of the repayment schedule;
    (8) The procedures and time period for petitioning for a hearing;
    (9) A statement that a timely filing of a petition for a hearing 
will stay the commencement of collection proceedings;
    (10) A statement that a final decision on the hearing (if requested) 
will be issued by the hearing official 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;
    (11) A statement that knowingly false or frivolous statements, 
representations, or evidence may subject the employee to appropriate 
disciplinary procedures and/or statutory penalties;
    (12) A statement of other rights and remedies available to the 
employee under statutes or regulations governing the program for which 
the collection is being made;
    (13) Unless there are contractual or statutory provisions to the 
contrary, a statement that 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; and
    (14) A statement that the proceedings regarding such debt are 
governed by section 5 of the Debt Collection Act of 1982 (5 U.S.C. 
5514).



Sec. 607.5  Hearing.

    (a) Request for hearing. (1) An employee may file a petition for an 
oral or paper hearing in accordance with the instructions outlined in 
the agency's notice to offset.
    (2) A hearing may be requested by filing a written petition 
addressed to the Chief Financial Officer stating why the employee 
disputes the existence or amount of the debt or, in the case of an 
individual whose repayment schedule has been established other than by a 
written agreement, concerning the terms of the repayment schedule. The 
petition for a hearing must be received by the Chief Financial Officer 
not later than fifteen (15) calendar days after the employee's receipt 
of the offset notice, or notice of the terms of the payment schedule, 
unless the employee can show

[[Page 105]]

good cause for failing to meet the filing deadline.
    (b) Hearing procedures. (1) The hearing will be presided over by an 
impartial hearing official.
    (2) The hearing shall conform to procedures contained in the Federal 
Claims Collection Standards, 4 CFR 102.3(c). The burden shall be on the 
employee to demonstrate that the existence or the amount of the debt is 
in error.



Sec. 607.6  Written decision.

    (a) The hearing official shall issue a final written opinion no 
later than 60 days after the filing of the petition.
    (b) The written opinion will include a statement of the facts 
presented to demonstrate the nature and origin of the alleged debt; the 
hearing official's analysis, findings, and conclusions; the amount and 
validity of the debt, if any; and the repayment schedule, if any.



Sec. 607.7  Coordinating offset with another Federal agency.

    (a) When the NSF is the creditor agency and the Chief Financial 
Officer determines that an employee of another agency (i.e., the paying 
agency) owes a debt to the NSF, the Chief Financial Officer shall, as 
appropriate:
    (1) Certify in writing to the paying agency that the employee owes 
the debt, the amount and basis of the debt, the date on which payment 
was due, and the date the Government's right to collect the debt 
accrued, and that this part 607 has been approved by the Office of 
Personnel Management.
    (2) Unless the employee has consented to salary offset in writing or 
signed a statement acknowledging receipt of the required procedures, and 
the written consent is sent to the paying agency, the Chief Financial 
Officer must advise the paying agency of the action(s) taken under this 
part 607, and the date(s) they were taken.
    (3) Request the paying agency to collect the debt by salary offset. 
If deductions must be made in installments, the Chief Financial Officer 
may recommend to the paying agency the amount or percentage of 
disposable pay to be collected in each installment;
    (4) Arrange for a hearing upon the proper petitioning by the 
employee.
    (b) When the NSF is the creditor agency and the employee is in the 
process of separating from the Federal service, the NSF must submit its 
debt claim to the paying agency as provided in this part. The paying 
agency must certify the total amount collected, give a copy of the 
certification to the employee, and send a copy of the certification and 
notice of the employee's separation to the NSF. If the paying agency is 
aware that the employee is entitled to Civil Service Retirement and 
Disability Fund or other similar payments, it must certify to the agency 
responsible for making such payments that the debtor owes a debt, 
including the amount of the debt, and that the provisions of 5 CFR 
550.1108 have been followed.
    (c) When the NSF is the creditor agency and the employee has already 
separated from Federal service and all payments due from the paying 
agency have been paid, the Chief Financial Officer may request, unless 
otherwise prohibited, that money payable to the employee from the Civil 
Service Retirement and Disability Fund or other similar funds be 
collected by administrative offset.
    (d) When the NSF is the paying agency, upon receipt of a properly 
certified debt claim from another agency, deductions will be scheduled 
to begin at the next established pay interval. The employee must receive 
written notice that NSF has received a certified debt claim from the 
creditor agency, the amount of the debt, the date salary offset will 
begin, and the amount of the deduction(s). NSF shall not review the 
merits of the creditor agency's determination of the validity or the 
amount of the certified claim. If the employee transfers to another 
agency after the creditor agency has submitted its debt claim to NSF and 
before the debt is collected completely, NSF must certify the amount 
collected. One copy of the certification must be furnished to the 
employee. A copy must be furnished to the creditor agency with notice of 
the employee's transfer.



Sec. 607.8  Procedures for salary offset.

    (a) Deductions to liquidate an employee's debt will be by the method 
and

[[Page 106]]

in the amount stated in the Chief Financial Officer's notice of 
intention to offset as provided in Sec. 607.4. Debts will be collected 
in one lump sum where possible. If the employee is financially unable to 
pay in one lump sum, collection must be made in installments.
    (b) Debts will be collected by deduction at officially established 
pay intervals from an employee's current pay account unless alternative 
arrangements for repayment are made.
    (c) Installment deductions will be made over a period not greater 
than the anticipated period of employment. The size of installment 
deductions must bear a reasonable relationship to the size of the debt 
and the employee's ability to pay. The deduction for the pay intervals 
for any period must not exceed 15% of disposable pay unless the employee 
has agreed in writing to a deduction of a greater amount.
    (d) Unliquidated debts may be offset against any financial payment 
due to a separated employee including but not limited to final salary or 
leave payment in accordance with 31 U.S.C. 3716.



Sec. 607.9  Refunds.

    (a) NSF will promptly refund to an employee any amounts deducted to 
satisfy debts owed to NSF when the debt is waived, found not owed to 
NSF, or when directed by an administrative or judicial order.
    (b) Another creditor agency will promptly return to NSF any amounts 
deducted by NSF to satisfy debts owed to the creditor agency when the 
debt is waived, found not owed, or when directed by an administrative or 
judicial order.
    (c) Unless required by law, refunds under this section shall not 
bear interest.



Sec. 607.10  Statute of limitations.

    If a debt has been outstanding for more than 10 years after NSF's 
right to collect the debt first accrued, the agency may not collect by 
salary offset unless facts material to the Government's right to collect 
were not known and could not reasonably have been known by the official 
or officials who were charged with the responsibility for discovery and 
collection of such debts.



Sec. 607.11  Non-waiver of rights.

    An employee's involuntary payment of all or any part of a debt 
collected under the regulations in this part will not be construed as a 
waiver of any rights that the employee may have under 5 U.S.C. 5514 or 
any other provision of law.



Sec. 607.12  Interest, penalties, and administrative costs.

    Charges may be assessed on a debt for interest, penalties, and 
administrative costs in accordance with 31 U.S.C. 3717 and the Federal 
Claims Collection Standards, 4 CFR 101.1.



PART 608_CLAIMS COLLECTION AND ADMINISTRATIVE OFFSET--Table of Contents




Sec.
608.1 Purpose and scope.
608.2 Collection, compromise, and use of consumer reporting agencies.
608.3 Administrative offset.
608.4 Reductions of tax refunds.

    Authority: 31 U.S.C. 3711, 3716, 3718 and 3720A.

    Source: 58 FR 68772, Dec. 29, 1993, unless otherwise noted.



Sec. 608.1  Purpose and scope.

    (a) This part sets forth policies and procedures for the collection 
and compromise claims and the administrative offset of claims by the 
National Science Foundation (NSF) pursuant to 31 U.S.C. 3711, 3716, 3718 
and 3720A. It is not intended to limit or govern the rights of the NSF 
or the United States to collect, compromise, or administratively offset 
debts or claims under other authority and procedures that may be legally 
available to it.
    (b) Matters not addressed in this part should be reviewed and 
handled in accordance with applicable statutory provisions and the 
Federal Claims Collection Standards issued jointly by the Attorney 
General and the Comptroller General (4 CFR parts 101 through 105).
    (c) Any action other than the issuance of regulations specifically 
required to be done by the head of the agency by any of the statutes or 
regulations referred to in paragraphs (a) and (b) of this section shall 
be done on behalf of NSF by its Chief Financial

[[Page 107]]

Officer or by those to whom the Chief Financial Officer delegates 
authority. This is not intended to prevent the Chief Financial Officer 
from issuing additional internal procedures and guidance consistent with 
this part.



Sec. 608.2  Collection, compromise, and use of consumer reporting agencies.

    (a) Subject to the specific limitations and procedures of 31 U.S.C. 
3711 and in accordance with the applicable provisions of the Federal 
Claims Collection Standards, NSF, acting through its Chief Financial 
Officer or those to whom he or she delegates authority or assigns 
responsibilities, shall try to collect claims of the United States 
Government for money or property arising out of the activities of NSF or 
that are referred to NSF and may compromise or suspend or end collection 
action of certain claims. In making demands for payment, NSF will follow 
the guidance set forth at 4 CFR 102.2. In appropriate cases, as 
authorized by and subject to 31 U.S.C. 3718 and 4 CFR 102.6, NSF may 
contract for collection services. Before compromising or suspending or 
ending the collection of a claim in excess of $5,000, the matter shall 
be referred to the NSF Office of General Counsel for legal review.
    (b) When trying to collect a claim of the Government (except for 
claims under the Internal Revenue Code of 1986, 26 U.S.C. 1 et seq.), 
NSF may disclose to a consumer reporting agency information from a 
system of records that an individual is responsible for a claim if (1) a 
notice published pursuant to 5 U.S.C. 552a(3)(4) indicates that 
information in the system of records may be disclosed to a consumer 
reporting agency that an individual is responsible for a claim and (2) 
if the Chief Financial Officer of NSF decides that the claim is valid 
and overdue. Such disclosures to a consumer reporting agency will be 
done only under the conditions and procedures specified in 31 U.S.C. 
3711(f) and in the Federal Claims Collections Standards. Specifically, 
before NSF provides the information to the consumer reporting agency, 
the individual will be given the notice required by 31 U.S.C. 
3711(f)(1)(C); and in accordance with 4 CFR 102.5(c), the right of 
administrative review to be provided to the individual shall be 
consistent with the provisions of 4 CFR 102.3(c). If NSF does not have a 
current address for the individual in its files, it will take reasonable 
action to locate the individual, but if unsuccessful will mail the 
notice to the individual's last known address. NSF will disclose 
information only to a consumer reporting agency that gives satisfactory 
assurances that it is complying with all laws of the United States 
relating to providing consumer credit information. The information 
provided by NSF shall be limited to the type of information described in 
31 U.S.C. 3711(f)(1)(F). Moreover, NSF will not provide such information 
until it has established internal procedures to disclose promptly to a 
consumer reporting agency to which disclosure is made of any substantial 
changes in the condition or amount of the claim and to verify or correct 
promptly information about the claim on request of a consumer reporting 
agency for verification of information disclosed.
    (c) If in response to the notice referred to in paragraph (b) of 
this section, the individual repays or agrees in writing with NSF to a 
repayment plan, the information will not be disclosed to a consumer 
reporting agency. If in response to the notice referred to in paragraph 
(b) the individual requests a review or reconsideration of the claim, 
information shall not be disclosed to the consumer reporting agency 
until such a review is provided.
    (d) The review referred to in paragraph (c) of this section shall be 
based only on the written documentation in the file, including any 
additional written information provided by the individual in response to 
the notice referred to in paragraph (b). A written summary briefly 
describing the nature of the review performed and the conclusion reached 
shall be made. The written summary and conclusion shall be referred to 
the NSF Office of General Counsel for legal review. After legal review, 
a copy of the written summary shall be sent to the individual.



Sec. 608.3  Administrative offset.

    (a) If NSF is unable to collect a claim from a person after trying 
to do so in

[[Page 108]]

accordance with Sec. 608.2, NSF may collect the claim by administrative 
offset subject to the procedures and limitations of 31 U.S.C. 3716 and 
the applicable provisions of the Federal Claims Collection Standards. 
Determinations to pursue administrative offset shall be made on a case-
by-case basis taking into account the considerations specified at 31 
U.S.C. 3716(b) and 4 CFR 102.3(a). Before employing administrative 
offset, NSF will comply with the notice, hearing, review, or other 
procedural requirements of 31 U.S.C. 3716(a) and 4 CFR 102.3(b) and (c). 
Furthermore, before an administrative offset is taken by NSF pursuant to 
the authority of this part 608, the matter shall be referred to the 
Office of General Counsel for legal review to ensure that the required 
procedures have been followed.
    (b) When another agency requests NSF to administratively offset a 
claim owing to that agency, NSF will normally comply with such request 
if the requesting agency has provided the certification required by 4 
CFR 102.3(f) and offset would not be contrary to law. Before imposing 
administrative offsets at the request of another agency under this part 
608, the matter shall be referred to the NSF Office of General Counsel 
for legal review.
    (c)(1) In appropriate cases, NSF may request another agency to 
administratively setoff a claim owed to NSF. Before making the 
certification to the other agency required by 4 CFR 102.3(f), the matter 
shall be referred to the NSF Office of General Counsel for legal review.
    (2) Unless otherwise prohibited by law, NSF may request that moneys 
that are due and payable to a debtor from the Civil Service Retirement 
and Disability Fund, the Foreign Service Retirement Fund or any other 
Federal retirement fund be administratively offset in reasonable amounts 
in order to collect in one full payment or a minimal number of payments 
debts owed the United States by the debtor. Such requests shall be made 
to the appropriate officials of the respective fund servicing agency in 
accordance with such regulations as may be prescribed by that agency. 
The requests for administrative offset will certify in writing that (i) 
the debtor owes the United States a debt and the amount of the debt; 
(ii) NSF has complied with applicable regulations and procedures; and 
(iii) NSF has followed the requirements of the Federal Claims Collection 
Standards as made applicable by this section. Once NSF decides to 
request offset from a Federal retirement fund, it will make the request 
as soon as practical after completion of the applicable procedures in 
order that the fund servicing agency may identify and flag the debtor's 
account in anticipation of the time when the debtor requests or becomes 
eligible to receive payments from the fund and to ensure that offset 
will be initiated prior to the expiration of the statute of limitations.
    (3) If NSF collects part or all of the debt by other means before 
deductions are made or completed pursuant to this paragraph (c), NSF 
shall act promptly to modify or terminate its request for offset.
    (4) This paragraph (c) does not require or authorize the fund 
servicing agency to review the merits of (i) NSF's determination with 
respect to the amount and validity of the debt, (ii) NSF's determination 
as to waiver under an applicable statute, or (iii) NSF's determination 
to provide or not provide an oral hearing.
    (d) No collection by administrative offset shall be made on any debt 
that has been outstanding for more than ten years unless facts material 
to the Government's right to collect the debt were not known, and 
reasonably could not have been known, by the official or officials 
responsible for discovering the debt.
    (e) Administrative offset under this section will not be initiated 
against:
    (1) A debt in which administrative offset of the type of debt 
involved is explicitly provided for or prohibited by a statutes other 
than 31 U.S.C. 3716, including debts subject to the Salary offset 
procedures at 45 CFR part 607;
    (2) Debts owed by other agencies of the United States or by any 
State or local Government; or
    (3) Debts arising under the Internal Revenue Code of 1954; the 
Social Security Act; or the tariff laws of the United States.

[[Page 109]]



Sec. 608.4  Reductions of tax refunds.

    (a) In accordance with regulations and guidance issued by the 
Secretary of the Treasury at 26 CFR 301.6402-6 and the requirements of 
31 U.S.C. 3720A, NSF will participate in the Federal Tax Refund Offset 
Program for offset against income tax refunds of persons owing past due 
legally enforceable debts to NSF.
    (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 NSF against amounts 
payable to or on behalf of the debtor by or on behalf of NSF;
    (4) With respect to which NSF 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, the debt will be referred to the IRS 
for offset against any overpayment of tax;
    (5) With respect to which NSF 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, has considered the 
evidence presented by such taxpayer, and has determined that an amount 
of such debt is past-due and legally enforceable;
    (6) Has been disclosed by NSF 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;
    (7) Is at least $25.00;
    (8) All other requirements of 31 U.S.C. 3720A and the Internal 
Revenue Service regulations at 26 CFR 301.6402-6 relating to the 
eligibility of a debt for tax return offset have been satisfied.
    (c) NSF will make a request for reduction of an IRS tax refund only 
after the NSF determines that an amount is owed and past-due and 
provides the debtor with 60 days written notice. NSF's notice of 
intention to collect by IRS tax refund offset (Notice of Intent) will 
state:
    (1) The amount of the debt;
    (2) That unless the debt is repaid within 60 days from the date of 
the NSF's Notice of Intent, NSF intends to collect the debt by 
requesting the IRS to reduce any amounts payable to the debtor as 
refunds of Federal taxes paid by an amount equal to the amount of the 
debt and all accumulated interest and other charges;
    (3) That the debtor has a right to present evidence that all or part 
of the debt is not past-due or legally enforceable; and
    (4) A mailing address for forwarding any written correspondence and 
a contact name and phone number for any questions.
    (d) 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 is not legally 
enforceable.
    (3) Include with the request any documents which the debtor wishes 
to be considered or state that additional information will be submitted 
within the remainder of the 60-day period.
    (e) The failure of a debtor to respond as provided in paragraph (d) 
of this section will result in an automatic referral of the debt to the 
IRS without further action by NSF. If the debtor responds, NSF will 
consider all available evidence related to the debt and issue a written 
determination, including supporting rationale, whether its prior 
determination that the debt is past-due and legally enforceable is 
sustained, amended, or canceled. Before this determination is made the 
matter shall be referred to the NSF Office of General Counsel for legal 
review. NSF will

[[Page 110]]

give prompt notification of this determination to the debtor.



PART 611_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE 

NATIONAL SCIENCE FOUNDATION_EFFECTUATION OF TITLE VI OF THE CIVIL 
RIGHTS ACT OF 1964--Table of Contents




Sec.
611.1 Purpose.
611.2 Application of part.
611.3 Discrimination prohibited.
611.4 Assurances required.
611.5 Illustrative applications.
611.6 Compliance information.
611.7 Conduct of investigations.
611.8 Procedure for effecting compliance.
611.9 Hearings.
611.10 Decisions and notices.
611.11 Judicial review.
611.12 Effect on other regulations; forms and instructions.
611.13 Definitions.

Appendix A to Part 611

    Authority: Sec. 11(a), National Science Foundation Act of 1950, as 
amended, 42 U.S.C. 1870(a); 42 U.S.C. 2000d-1.

    Source: 29 FR 16305, Dec. 4, 1964, unless otherwise noted.



Sec. 611.1  Purpose.

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



Sec. 611.2  Application of part.

    This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the Foundation, 
including the types of Federal financial assistance listed in Appendix A 
of this part. It applies to money paid, property transferred, or other 
Federal financial assistance extended after the effective date of the 
regulation pursuant to an application approved prior to such effective 
date. This part does not apply to (a) any Federal financial assistance 
by way of insurance or guaranty contract, (b) money paid, property 
transferred, or other assistance extended before the effective date of 
this part, (c) any assistance to any individual who is the ultimate 
beneficiary, or (d) any employment practice, under any such program, of 
any employer, employment agency, or labor organization, except to the 
extent described in Sec. 611.3. The fact that a type of Federal 
financial assistance is not listed in the Appendix shall not mean, if 
title VI of the Act is otherwise applicable, that a program is not 
covered. Other types of Federal financial assistance under statutes now 
in force or hereafter enacted may be added to this list by notice 
published in the Federal Register.

[29 FR 16305, Dec. 4, 1964, as amended at 68 FR 51382, Aug. 26, 2003]



Sec. 611.3  Discrimination prohibited.

    (a) General. No person in the United States, shall, on grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this part applies may not directly or through contractual or other 
arrangements, on the ground of race, color, or national origin:
    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other

[[Page 111]]

requirement or condition which individuals must meet in order to be 
provided any service, financial aid, or other benefit provided under the 
program;
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program (including the opportunity to participate in the program of 
an employee but only to the extent set forth in paragraph (c) of this 
section).
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals 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 individuals to be 
afforded an opportunity to participate in any such program, may not 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals 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 respects individuals 
of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination under any program to which this regulation 
applies, on the grounds of race, color, or national origin; or with the 
purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the Act or this regulation.
    (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 in or through a facility provided with the aid of Federal 
financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph and paragraph (c) of this section does not limit the 
generality of the prohibition in paragraph (a) of this section.
    (6) This regulation does not prohibit the consideration of race, 
color, or national origin if the purpose and effect are to remove or 
overcome the consequences of practices or impediments which have 
restricted the availability of, or participation in, the program or 
activity receiving Federal financial assistance, on the grounds of race, 
color, or national origin. Where previous discriminatory practice or 
usage tends, on the grounds of race, color, or national origin, to 
exclude individuals from participation in, to deny them the benefits of, 
or to subject them to discrimination under any program or activity to 
which this regulation applies the applicant or recipient has an 
obligation to take reasonable action to remove or overcome the 
consequences of the prior discriminatory practice or usage, and to 
accomplish the purposes of the Act.
    (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 may not directly or through 
contractual or other arrangements subject an individual to 
discrimination on the ground of race, color, or national origin in its 
employment practices under such program (including recruitment or 
recruitment advertising, employment, layoff or termination, upgrading, 
demotion, or transfer, rates of pay or other forms of compensation and 
use of facilities), including programs where a primary objective of the 
Federal financial assistance is (i) to assist such individuals through 
employment to meet expenses incident to the commencement or continuation 
of their education or training or (ii) to provide work experience which 
contributes to the education or training of such individuals.
    (2) Types of Federal financial assistance listed in Appendix A as 
respects employment opportunities provided thereunder, or in facilities 
provided thereunder, which are limited, or for which preference is 
given, to students,

[[Page 112]]

fellows, or other persons, including research associates, where in 
training for the same or related employments, have one of the above 
purposes as a primary purpose.
    (3) The requirements applicable to construction employment under any 
such program shall be those specified in or pursuant to part III of 
Executive Order 11246 or any Executive order which supersedes it.
    (4) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the grounds of 
race, color, or national origin, to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program to which this regulation applies, the 
provisions of paragraph (c)(3) of this section shall apply to the 
employment practices of the recipient or other persons subject to the 
regulation, to the extent necessary to assure equality of opportunity 
to, and nondiscriminatory treatment of, beneficiaries.
    (d) Medical emergencies. Notwithstanding the foregoing provisions of 
this section, a recipient of Federal financial assistance shall not be 
deemed to have failed to comply with paragraph (a) of this section if 
immediate provision of a service or other benefit to an individual is 
necessary to prevent his death or serious impairment of his health, and 
such service or other benefit cannot be provided except by or through a 
medical institution which refuses or fails to comply with paragraph (a) 
of this section.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 68 
FR 51382, Aug. 26, 2003]



Sec. 611.4  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this part. In the case where the 
Federal financial assistance is to provide or is in the form of personal 
property, or real property or interest therein or structures thereon, 
the assurance shall obligate the recipient, or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
property is used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services and benefits, or for as long as the recipient retains 
ownership or possession of the property, whichever is longer. In all 
other cases the assurance shall obligate the recipient for the period 
during which Federal Financial assistance is extended pursuant to the 
application. The responsible Foundation official shall specify the form 
of the foregoing assurances and the extent to which like assurances will 
be required of subgrantees, contractors and subcontractors, successors 
in interest, and other participants. Any such assurance shall include 
provisions which give the United States a right to seek its judicial 
enforcement.
    (2) In the case where Federal financial assistance is provided in 
the form of a transfer of real property, structures, or improvements 
thereon, or interest therein, from the Federal Government, the 
instrument effecting or recording the transfer shall contain a covenant 
running with the land assuring nondiscrimination for the period during 
which the real property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits. Where no transfer of property 
or interest therein from the Federal Government is involved, but 
property is acquired or improved with Federal financial assistance, the 
recipient shall agree to include such covenant in any subsequent 
transfer of such property. When the property is obtained from the 
Federal Government, such covenant may also include a condition coupled 
with a right to be reserved by the

[[Page 113]]

Foundation to revert title to the property in the event of a breach of 
the covenant where, in the discretion of the responsible Foundation 
official, such a condition and right of reverter is appropriate to the 
statute 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 Foundation official may agree, upon request 
of the transferee and if necessary to accomplish such financing, and 
upon such conditions as he deems appropriate, to subordinate such right 
of reversion to the lien of such mortgage or other encumbrance.
    (3) Transfers of surplus property are subject to regulations issued 
by the Administrator of the General Services Administration. (41 CFR 
101-6.2.)
    (b) Elementary and secondary schools. The requirements of paragraph 
(a) of this section with respect to any elementary or secondary school 
or school system shall be deemed to be satisfied if such school or 
school system (1) is subject to a final order of a court of the United 
States for the desegregation of such school or school system, and 
provides an assurance that it will comply with such order, including any 
future modification of such order, or (2) submits a plan for the 
desegregation of such school or school system which the responsible 
Official of the Department of Health, Education, and Welfare determines 
is adequate to accomplish the purposes of the Act and this part, and 
provides reasonable assurance that it will carry out such plan. In any 
case of continuing Federal financial assistance the responsible Official 
of the Department of Health, Education, and Welfare may reserve the 
right to redetermine, after such period as may be specified by him, the 
adequacy of the plan to accomplish the purposes of the Act and this 
part. In any case in which a final order of a court of the United States 
for the desegregation of such school or school system is entered after 
submission of such a plan, such plan shall be revised to conform to such 
final order, including any future modification of such order.
    (c) Assurances from institutions. (1) In the case of any application 
for Federal financial assistance to an institution of higher education 
(including assistance for construction, for research for a special 
training project, or for any other purpose), the assurance required by 
this section shall extend to admission practices and to all other 
practices relating to the treatment of students.
    (2) The assurance required with respect to an institution of higher 
education, hospital, or any other institution, insofar as the assurance 
relates to the institution's practices with respect to admission or 
other treatment of individuals as students, patients, or clients of the 
institution or to the opportunity to participate in the provision of 
services or other benefits to such individuals, shall be applicable to 
the entire institution.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 68 
FR 51382, Aug. 26, 2003]



Sec. 611.5  Illustrative applications.

    The following examples will illustrate the application of the 
foregoing provisions to some of the programs aided by the Foundation. 
(In all cases the discrimination prohibited is discrimination on the 
ground of race, color, or national origin prohibited by title VI of the 
Act and this part, as a condition of the receipt of Federal financial 
assistance.)

    1. For support to elementary or secondary schools such as for the 
acquisition of equipment discrimination by the recipient school district 
in any of its elementary or secondary schools, or by the recipient 
private institution, in the admission of students, or in the treatment 
of its students in any aspect of the educational process, is prohibited. 
In this and the following illustration the prohibition of discrimination 
in the treatment of students or other trainees includes the prohibition 
of discrimination among the students or trainees in the availability or 
use of any academic, dormitory, eating, recreational, or other 
facilities of the grantee or other recipient.
    2. In a research, training, or other grant to a university for 
activities to be conducted in a graduate school, discrimination in the 
admission and treatment of students in the

[[Page 114]]

graduate school is prohibited, and the prohibition extends to the entire 
university.
    3. In a training grant to a hospital or other nonacademic 
institution, discrimination is prohibited in the selection of 
individuals to be trained and in their treatment by the grantee during 
their training. In a research or demonstration grant to such an 
institution, discrimination is prohibited with respect to any 
educational activity, any provision of medical or other services and any 
financial aid to individuals incident to the program.
    4. In grants to assist in the construction of facilities for 
research or for the provision of educational services, assurances will 
be required that services will be provided without discrimination, to 
the same extent that discrimination would be prohibited as a condition 
of Federal operating grants for the support of such services. Thus, as a 
condition of grants for the construction of academic, research, or other 
facilities at institutions of higher education, assurances will be 
required that there will be no discrimination in the admission or 
treatment of students. In other construction grants the assurances 
required will similarly be adapted to the nature of the activities to be 
conducted in the facilities for construction of which the grants have 
been authorized by Congress.
    5. Upon transfers of real or personal property for research or 
educational uses, discrimination is prohibited to the same extent as in 
the case of grants for the construction of facilities or the provision 
of equipment for like purposes.
    6. In some situations even though past discriminatory practices have 
been abandoned, the consequences of such practices continue to impede 
the full availability of a benefit. If the efforts required of the 
applicant or recipient under Sec. 611.6(d) to provide information as to 
the availability of the program or activity, and the rights of 
beneficiaries under this regulation, have failed to overcome these 
consequences, it will become necessary for such applicant or recipient 
to take additional steps to make the benefits fully available to racial 
and nationality groups previously subjected to discrimination. This 
action might take the form, for example, of special arrangements for 
obtaining referrals which will insure that groups previously subjected 
to discrimination are adequately served but not the establishment of 
discriminatory qualifications for participation in any program.
    7. Even though an applicant or recipient has never used 
discriminatory policies, the services and benefits of the program or 
activity it administers may not in fact be equally available to some 
racial or nationality groups. In such circumstances an applicant or 
recipient may properly give special consideration to race, color, or 
national origin to make the benefits of its program more widely 
available to such groups, not then being adequately served. For example, 
where a university is not adequately serving members of a particular 
racial or nationality group, it may establish special recruitment 
policies to make its program better known and more readily available to 
such group, and take other steps to provide that group with more 
adequate service.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 68 
FR 51382, Aug. 26, 2003]



Sec. 611.6  Compliance information.

    (a) Cooperation and assistance. The responsible Foundation official 
shall, to the fullest extent practicable, seek the cooperation of 
recipients in obtaining compliance with this part and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible Foundation official timely, complete and 
accurate compliance reports at such times, and in such form and 
containing such information, as the responsible Foundation official may 
determine to be necessary to enable him to ascertain whether the 
recipient has complied or is complying with this part. In the case in 
which a primary recipient extends Federal financial assistance to any 
other recipient, such other recipient shall also submit such compliance 
reports to the primary recipient as may be necessary to enable the 
primary recipient to carry out its obligations under this part.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible Foundation 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 is in the exclusive possession of any other agency, 
institution or person and this agency, institution or person shall fail 
or refuse to furnish this information, the recipient shall so certify in 
its report and shall set forth what efforts it has made to obtain the 
information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries,

[[Page 115]]

and other interested persons such information regarding the provisions 
of this part and its applicability to the program for which the 
recipient receives Federal financial assistance, and make such 
information available to them in such manner, as the responsible 
Foundation official finds necessary to apprise such persons of the 
protections against discrimination assured them by the Act and this 
part.

(Approved by the Office of Management and Budget under control number 
3l45-0087)

[29 FR l6305, Dec. 4, l964, as amended at 49 FR 37595, Sept. 25, l984; 
68 FR 51382, Aug. 26,2003]



Sec. 611.7  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible Foundation official 
shall from time to time review the practices of recipients to determine 
whether they are complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this part may by himself or by a representative file with the 
responsible Foundation official a written complaint. A complaint must be 
filed not later than 90 days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible Foundation official.
    (c) Investigations. The responsible Foundation official 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 should include, where appropriate, a review of 
the pertinent practices and policies of the recipient, the circumstances 
under which the possible noncompliance with this part occurred, and 
other factors relevant to a determination as to whether the recipient 
has failed to comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
regulation, the responsible Foundation official will so inform the 
recipient and the matter will be resolved by informal means whenever 
possible. If it has been determined that the matter cannot be resolved 
by informal means, action will be taken as provided for in Sec. 611.8.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the responsible Foundation official 
will so inform the recipient and the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.



Sec. 611.8  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec. 611.4. If an applicant fails or refuses 
to furnish an assurance required under Sec. 611.4 or otherwise fails to 
comply with that section, Federal financial assistance may be refused in 
accordance with the procedures of paragraph (c) of this section. The 
Foundation shall not be required to provide assistance in such a case 
during the pendency of the administrative proceedings under such 
subsection,

[[Page 116]]

except that the Foundation shall continue assistance during the pendency 
of such proceedings where such assistance is due and payable pursuant to 
an application 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 Foundation official has advised the applicant or 
recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means,
    (2) There has been an express finding on the record, after 
opportunity for hearings, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part,
    (3) The action has been approved by the Director pursuant to Sec. 
611.10(e) and
    (4) The expiration of thirty days after the Director has filed with 
the Committee of the House and the Committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action.

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

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 51 
FR 22938, June 24, 1986]



Sec. 611.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 611.8(b), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than twenty days after the date of such notice 
within which the applicant or recipient may request of the responsible 
Foundation official that the matter be scheduled for hearing or (2) 
advise the applicant or recipient that the matter in question has been 
set down for hearing at a stated place and time. The time and place so 
fixed shall be reasonable and shall be subject to change for cause. The 
complainant, if any, shall be advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this paragraph or to 
appear at a hearing for which a date has been set shall be deemed to be 
a waiver of the right to a hearing under section 602 of the Act and 
Sec. 611.8(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 Foundation in Arlington, VA, at a time fixed by the responsible 
Foundation official unless he determines that the convenience of the 
applicant or recipient or of the Foundation requires that another place 
be selected. Hearings shall be held before the responsible Foundation 
official or, at the discretion of the Director, a hearing examiner 
designated in accordance with 5 U.S.C. 3105 and 3344.

[[Page 117]]

    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Foundation 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 through 557, 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 Foundation and the applicant or recipient shall be entitled to 
introduce all relevant evidence on the issues as stated in the notice 
for hearing or as determined by the officer conducting the hearing at 
the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal statutes, authorities, or other 
means by which Federal financial assistance is extended and 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 Director 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 
procedure not inconsistent with this part. Final decisions in such 
cases, insofar as this part is concerned, shall be made in accordance 
with Sec. 611.10.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 59 
FR 37437, July 22, 1994; 68 FR 51382, Aug. 26, 2003]



Sec. 611.10  Decisions and notices.

    (a) Decision by a person or persons other than the responsible 
Foundation official. If the hearing is held by a hearing examiner, such 
hearing examiner shall either make an initial decision, if so 
authorized, or certify the entire record including recommended findings 
and proposed decision to the responsible Foundation official for a final 
decision, and a copy of such initial decision or certification shall be 
mailed to the applicant or recipient. Where the initial decision is made 
by the hearing examiner, the applicant or recipient may within 30 days 
of the mailing of such notice of initial decision file with the 
responsible Foundation official his exceptions to the initial decision, 
with his reasons therefor. In the absence of exceptions, the responsible 
Foundation official may on his own motion within 45 days after the 
initial decision serve on the applicant or recipient a notice that he 
will review the decision. Upon the filing of such exceptions or of such 
notice of review the responsible Foundation 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 Foundation official.
    (b) Decisions on record or review by the responsible Foundation 
official. Whenever, after hearing, a record is certified to the 
responsible Foundation official for decision or he reviews the decision 
of a hearing examiner pursuant to paragraph (a) of this section, or 
whenever the responsible Foundation official conducts the hearing, the 
applicant or recipient shall be given reasonable opportunity to file 
with him briefs

[[Page 118]]

or other written statements of its contentions, and a copy of the final 
decision of the responsible Foundation official shall be given in 
writing to the applicant or recipient, and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 611.9(a), a decision shall be made 
by the responsible Foundation official on the record and a copy of such 
decision shall be given in writing to the applicant or recipient, and to 
the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer, panel, or 
responsible Foundation official shall set forth the ruling on each 
finding, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to this part with 
which it is found that the applicant or recipient has failed to comply.
    (e) Approval by Director. Any final decision of a responsible 
Foundation official (other than the Director) which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this part or the Act, shall promptly be transmitted to 
the Director who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, 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 to which this regulation applies will thereafter be extended 
to the applicant or recipient determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the responsible 
Foundation official that it will fully comply with this part.
    (g) Posttermination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this regulation and provides reasonable assurance that it will fully 
comply with this regulation.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible Foundation official to restore fully its 
eligibility to receive Federal financial assistance. Any such request 
shall be supported by information showing that the applicant or 
recipient has met the requirements of paragraph (g)(1) of this section. 
If the responsible Foundation official determines that those 
requirements have been satisfied, he shall restore such eligibility.
    (3) If the responsible Foundation official denies any such request, 
the applicant or recipient 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 Foundation official. The applicant or recipient will be 
restored to such eligibility if it proves at such a hearing that it 
satisfied the requirements of paragraph (g)(1) of this section. While 
proceedings under this paragraph are pending, the sanctions imposed by 
the order issued under paragraph (f) of this section shall remain in 
effect.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 51 
FR 22939, June 24, 1986; 68 FR 51382, Aug. 26, 2003]



Sec. 611.11  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. 611.12  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions heretofore issued by any officer of the Foundation which 
impose requirements designed to prohibit any discrimination against 
individuals on the ground

[[Page 119]]

of race, color, or national origin under any program to which this part 
applies, and which authorize the suspension or termination of or refusal 
to grant or to continue Federal financial assistance to any applicant 
for or recipient of such assistance 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 person of any obligation assumed or 
imposed under any such superseded regulation, order, instruction, or 
like direction prior to the effective date of this part. Nothing in this 
part, however, supersedes any of the following (including future 
amendments thereof): (1) Executive Order 11246 and regulation issued 
thereunder, or (2) any other orders, regulations, or instructions, 
insofar as such orders, regulations, or instructions prohibit 
discrimination on the ground of race, color, or national origin in any 
program or situation to which this part is inapplicable, or prohibit 
discrimination on any other ground.
    (b) Forms and instructions. Each responsible Foundation official 
shall issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating this part as 
applied to programs to which this part applies and for which he is 
responsible.
    (c) Supervision and coordination. The Director may from time to time 
assign 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. 611.10), including the achievement of effective coordination 
and maximum uniformity within the Foundation and within the Executive 
Branch of the Government in the application of title VI and this 
regulation 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 subsection shall have the same effect as 
though such action had been taken by the responsible official of this 
agency.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 68 
FR 51382, Aug. 26, 2003]



Sec. 611.13  Definitions.

    As used in this part:
    (a) The term Foundation means the National Science Foundation, and 
includes each of its organizational units.
    (b) The term Director means the Director of the National Science 
Foundation.
    (c) The term responsible Foundation official with respect to any 
program receiving Federal financial assistance means the Director or 
other official of the Foundation designated by the Director.
    (d) The term 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 any one of 
the foregoing.
    (e) The term Federal financial assistance includes (1) grants and 
loans of Federal funds, (2) the grant or the donation of Federal 
property and interests in property, (3) the detail of Federal personnel, 
(4) the sale and lease of, and the permission to use (on other than a 
casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and (5) any Federal agreement, 
arrangement, or other contract which has as one of its purposes the 
provision of assistance.
    (f) The terms program or activity and program mean all of the 
operations of any entity described in paragraphs (f)(1) through (4) of 
this section, any part of which is extended Federal financial 
assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or

[[Page 120]]

    (ii) 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;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) 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
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (f)(1), (2), or (3) of this section.
    (g) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (h) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity 
or any individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, including any 
successor, assign, or transferee thereof, but such term does not include 
any ultimate beneficiary.
    (i) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient.
    (j) The term applicant means one who submits an application, 
request, or plan required to be approved by a responsible Foundation 
official, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term application means such an 
application, request, or plan.

[29 FR 16305, Dec. 4, 1964, as amended at 68 FR 51382, Aug. 26, 2003]

                         Appendix A to Part 611

    Statutory Provisions under which the National Science Foundation 
provides Federal financial assistance:
The National Science Foundation Act of 1950, as amended (42 U.S.C. 1861-
1875).

[38 FR 17986, July 5, 1973, as amended at 59 FR 37437, July 22, 1994]



PART 612_AVAILABILITY OF RECORDS AND INFORMATION--Table of Contents




Sec.
612.1 General provisions.
612.2 Public reading room.
612.3 Requirements for making requests.
612.4 Processing requests.
612.5 Timing of responses to requests.
612.6 Responses to requests.
612.7 Exemptions.
612.8 Business information.
612.9 Appeals.
612.10 Fees.
612.11 Other rights and services.

    Authority: 5 U.S.C. 552, as amended.

    Source: 65 FR 11741, Mar. 6, 2000, unless otherwise noted.



Sec. 612.1  General provisions.

    This part contains the rules that the National Science Foundation 
follows in processing requests for records under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552. Information routinely made 
available to the public as part of a regular Foundation activity (for 
example, program announcements and solicitations, summary of awarded 
proposals, statistical reports on U.S. science, news releases) may be 
provided to the public without reliance on this part. As a matter of 
policy, the Foundation also makes discretionary disclosures of records 
or information otherwise exempt under the FOIA whenever disclosure would 
not foreseeably harm an interest protected by a FOIA exemption. This 
policy, however, does not

[[Page 121]]

create any right enforceable in court. When individuals seek records 
about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, NSF 
processes those requests under both NSF's Privacy regulations at part 
613 of this chapter, and this part.



Sec. 612.2  Public reading room.

    (a) The Foundation maintains a public reading room located in the 
NSF Library at 4201 Wilson Boulevard, Suite 225, Arlington, Virginia, 
open during regular working hours Monday through Friday. It contains the 
records that the FOIA requires to be made regularly available for public 
inspection and copying and has computers and printers available for 
public use in accessing records. Also available for public inspection 
and copying are current subject matter indexes of reading room records.
    (b) Information about FOIA and Privacy at NSF and copies of 
frequently requested FOIA releases are available online at . Most NSF policy documents, staff 
instructions, manuals, and other publications that affect a member of 
the public, are available in electronic form through the ``Documents'' 
option on the tool bar on NSF's Home Page on the World Wide Web at 
.



Sec. 612.3  Requirements for making requests.

    (a) Where to send a request. You may make a FOIA request for records 
of the National Science Foundation by writing directly to the FOIA 
Officer, Office of the General Counsel, National Science Foundation, 
4201 Wilson Boulevard, Suite 1265, Arlington, VA 22230. For records 
maintained by the NSF Office of the Inspector General (OIG), you may 
write directly to the Office of Inspector General, National Science 
Foundation, 4201 Wilson Boulevard, Suite 1135, Arlington, VA 22230. The 
FOIA Officer will also forward requests for OIG records to that Office. 
Requests may also be sent by facsimile to (703) 306-0149 or by e-mail to 
[email protected].
    (b) Form of request. A FOIA request need not be in any particular 
format, but it must be in writing, include the requester's name and 
mailing address, and be clearly identified both on the envelope and in 
the letter, or in a facsimile or electronic mail message as a Freedom of 
Information Act or ``FOIA'' request. It must describe the records sought 
with sufficient specificity to permit identification, and include 
agreement to pay applicable fees as described in Sec. 612.10. NSF is 
not obligated to act upon a request until it meets these procedural 
requirements.
    (c)(1) If you are making a request for records about yourself and 
the records are not contained in a Privacy Act system of records, your 
request will be processed only under the FOIA, since the Privacy Act 
does not apply. If the records about you are contained in a Privacy Act 
system of records, NSF will respond with information on how to make a 
Privacy Act request (see NSF Privacy Act regulations at 45 CFR 613.2).
    (2) If you are making a request for personal information about 
another individual, either a written authorization signed by that 
individual in accordance with Sec. 613.2(f) of this chapter permitting 
disclosure of those records to you, or proof that that individual is 
deceased (for example, a copy of a death certificate or a published 
obituary) will help the agency process your request.
    (d) Description of records sought. Your request must describe the 
records that you seek in enough detail to enable NSF personnel to locate 
them with a reasonable amount of effort. A record must have been created 
or obtained by NSF and under the control of NSF at the time of the 
request to be subject to the FOIA. NSF has no obligation under the FOIA 
to create, compile or obtain a record to satisfy a FOIA request. 
Whenever possible, your request should include specific descriptive 
information about each record sought, such as the date, title or name, 
author, recipient, and subject matter of the record. As a general rule, 
the more specific you are about the records or type of records that you 
want, the more likely the Foundation will be able to locate those 
records in response to your request, and the more likely fees will be 
reduced or eliminated. If NSF determines that your request does not 
reasonably describe records, you will be advised what additional 
information is needed

[[Page 122]]

to perfect your request or why your request is otherwise insufficient.
    (e) Agreement to pay fees. Your request must state that you will 
promptly pay the total fees chargeable under this regulation or set a 
maximum amount you are willing to pay. NSF does not charge if fees total 
less than $25.00. If you seek a waiver of fees, please see Sec. 
612.10(k) for a discussion of the factors you must address. If you place 
an inadequate limit on the amount you will pay, or have failed to make 
payments for previous requests, NSF may require advance payment (see 
Sec. 612.10(i)).
    (f) Receipt date. A request that meets the requirements of this 
section will be considered received on the date it is received by the 
Office of the General Counsel or the Office of the Inspector General. In 
determining which records are responsive to a FOIA request, the 
Foundation will include only records in its possession as of the close 
of business (5:00pm) on the date of receipt.
    (g) Publications excluded. For the purpose of public requests for 
records the term ``record'' does not include publications which are 
available to the public in the Federal Register, or by sale or free 
distribution. Such publications may be obtained from the Government 
Printing Office, the National Technical Information Service, the NSF 
Publications Clearinghouse PO Box 218, Jessup, MD 20794-0218, or through 
NSF's Home Page on the World Wide Web at  
``Documents.'' Requests for such publications will be referred to or the 
requester informed of the appropriate source.



Sec. 612.4  Processing requests.

    (a) Monitoring of requests. The NSF Office of the General Counsel 
(OGC), or such other office as may be designated by the Director, will 
serve as the central office for administering these regulations. For 
records maintained by the Office of Inspector General, that Office will 
control incoming requests made directly or referred to it, dispatch 
response letters, and maintain administrative records. For all other 
records maintained by NSF, OGC (or such other office as may be 
designated by the Director) will control incoming requests, assign them 
to appropriate action offices, monitor compliance, consult with action 
offices on disclosure, approve necessary extensions, dispatch denial and 
other letters, and maintain administrative records.
    (b) Consultations and referrals. When the Foundation receives a 
request for a record in its possession that originated with another 
agency or in which another agency has a substantial interest, it may 
decide that the other agency of the Federal Government is better able to 
determine whether the record should or should not be released under the 
FOIA.
    (1) If the Foundation determines that it is the agency best able to 
process the record in response to the request, then it will do so, after 
consultation with the other interested agencies where appropriate.
    (2) If it determines that it is not the agency best able to process 
the record, then it will refer the request regarding that record (or 
portion of the record) to the agency that originated or has a 
substantial interest in the record in question (but only if that agency 
is subject to the FOIA). Ordinarily, the agency that originated a record 
will be presumed to be best able to determine whether to disclose it.
    (3) Where the Foundation reasonably believes that multiple requests 
submitted by a requester, or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances, and the requests involve clearly related matters, they 
may be aggregated. Multiple requests involving unrelated matters will 
not be aggregated.
    (c) Notice of referral. Whenever the Foundation refers all or any 
part of the responsibility for responding to a request to another 
agency, it ordinarily will notify the requester of the referral and 
inform the requester of the name of each agency to which the request has 
been referred and of the part of the request that has been referred, 
unless such notification would disclose information otherwise exempt.



Sec. 612.5  Timing of responses to requests.

    (a) In general. NSF ordinarily will initiate processing of requests 
according to their order of receipt.

[[Page 123]]

    (b) Time for response. The Foundation will seek to take appropriate 
agency action within 20 days of when a request is received or is 
perfected (excluding the date of receipt, weekends, and legal holidays), 
whichever is later. A request which otherwise meets the requirements of 
Sec. 612.3 is perfected when you have reasonably described the records 
sought under Sec. 612.3(d), and agreed to pay fees under Sec. 
612.3(c), or otherwise met the fee requirements under Sec. 612.10.
    (c) Unusual circumstances. (1) Where the time limits for processing 
a request cannot be met because of unusual circumstances, as defined in 
the FOIA, the FOIA Officer will notify the requester as soon as 
practicable in writing of the unusual circumstances and may extend the 
response period for up to ten working days.
    (2) Where the extension is for more than ten working days, the FOIA 
Officer will provide the requester with an opportunity either to modify 
the request so that it may be processed within the ten day extension 
period or to arrange an agreed upon alternative time period with the 
FOIA Officer for processing the request or a modified request.
    (d) Expedited processing. (1) If you want to receive expedited 
processing you must submit a statement, certified to be true and correct 
to the best of your knowledge and belief, explaining in detail the basis 
for requesting expedited processing.
    (2)(i) Requests and appeals will be given expedited treatment 
whenever it is determined that a requester has demonstrated compelling 
need by presenting:
    (A) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (B) An urgency to inform the public about an actual or alleged 
Federal government activity, if made by a person primarily engaged in 
disseminating information.
    (ii) For example, a requester who is 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. Such requester also must 
establish a particular urgency to inform the public about the government 
activity involved in the request, beyond the public's right to know 
about government activity generally, and that the information sought has 
particular value that would be lost if not disseminated quickly.
    (3) Within ten calendar days of receipt of a request for expedited 
processing, the FOIA Officer or OIG will decide whether to grant it, and 
will notify the requester of the decision orally or in writing. If a 
request for expedited treatment is granted, the request will be 
processed as soon as practicable. If a request for expedited processing 
is denied, any appeal of that decision will be acted on expeditiously.



Sec. 612.6  Responses to requests.

    (a) Acknowledgment of requests. The FOIA Officer will ordinarily 
send an acknowledgment of a FOIA request only if it is anticipated that 
a determination on release will not be possible within 20 working days.
    (b) Grants of requests. Once the Foundation makes a determination to 
grant a request in whole or in part, it will notify the requester in 
writing. The Foundation will inform the requester in the notice of any 
applicable fee and will disclose records to the requester promptly on 
payment of applicable fees. Records disclosed in part will be marked or 
annotated to show both the amount and the location of the information 
deleted where practicable.
    (c) Denials of requests. (1) Denials of FOIA requests will be made 
by the Office of the General Counsel, the Office of the Inspector 
General, or such other office as may be designated by the Director. The 
response letter will briefly set forth the reasons for the denial, 
including any FOIA exemption(s) applied by the Foundation in denying the 
request. It will also provide the name and title or position of the 
person responsible for the denial, will inform the requester of the 
right to appeal, and will, where appropriate, include an estimate of the 
volume of any requested materials withheld. An estimate need not be 
provided when the volume is otherwise indicated through deletions on 
records

[[Page 124]]

disclosed in part, or if providing an estimate would harm an interest 
protected by an applicable exemption.
    (2) Requesters can appeal an agency determination to withhold all or 
part of any requested record; a determination that a requested record 
does not exist or cannot be located; a determination that what has been 
requested is not a record subject to the Act; a disapproval of a fee 
category claim by a requester; denial of a fee waiver or reduction; or a 
denial of a request for expedited treatment (see Sec. 612.9).



Sec. 612.7  Exemptions.

    (a) Exemptions from disclosure. The following types of records or 
information may be withholdable as exempt in full or in part from 
mandatory public disclosure:
    (1) Exemption 1--5 U.S.C. 552(b)(1). Records specifically authorized 
and properly classified pursuant to Executive Order to be kept secret in 
the interest of national defense or foreign policy. NSF does not have 
classifying authority and normally does not deal with classified 
materials.
    (2) Exemption 2--5 U.S.C. 552(b)(2). Records related solely to the 
internal personnel rules and practices of NSF. This exemption primarily 
protects information that if released would allow the recipient to 
circumvent a statute or agency regulation. Administrative information 
such as rules relating to the work hours, leave, and working conditions 
of NSF personnel, or similar matters, can be disclosed to the extent 
that no harm would be caused to the functions to which the information 
pertains. Examples of records normally exempt from disclosure include, 
but are not limited to:
    (i) Operating rules, guidelines, manuals on internal procedure, 
schedules and methods utilized by NSF investigators, inspectors, 
auditors and examiners.
    (ii) Negotiating positions or limits at least until the execution of 
a contract (including a grant or cooperative agreement) or the 
completion of the action to which the negotiating positions were 
applicable. They may also be exempt pursuant to other provisions of this 
section.
    (iii) Information relating to position management and manpower 
utilization, such as internal staffing plans, authorizations or 
controls, or involved in determination of the qualifications of 
candidates for employment, advancement, or promotion including 
examination questions and answers.
    (iv) Computer software, the release of which would allow 
circumvention of a statute or NSF rules, regulations, orders, manuals, 
directives, instructions, or procedures; or the integrity and security 
of data systems.
    (3) Exemption 3--5 U.S.C. 552(b)(3). Records specifically exempted 
from disclosure by another statute that either requires that the 
information be withheld in a such way that the agency has no discretion 
in the matter; or establishes particular criteria for withholding or 
refers to particular types of information to be withheld. Examples of 
records exempt from disclosure include, but are not limited to:
    (i) Records that disclose any invention in which the Federal 
Government owns or may own a right, title, or interest (including a 
nonexclusive license), 35 U.S.C. 205;
    (ii) Contractor proposals not specifically set forth or incorporated 
by reference into a contract, 41 U.S.C. 253b(m);
    (iii) Information protected by the Procurement Integrity Act, 41 
U.S.C. 423.
    (4) Exemption 4--5 U.S.C. 552(b)(4). Trade secrets and commercial or 
financial information obtained from a person, and privileged or 
confidential. Information subject to this exemption is that customarily 
held in confidence by the originator(s), including nonprofit 
organizations and their employees. Release of such information is likely 
to cause substantial harm to the competitive position of the originator 
or submitter, or impair the Foundation's ability to obtain such 
information in the future. NSF will process information potentially 
exempted from disclosure by Exemption 4 under Sec. 612.8. Examples of 
records or information normally exempt from disclosure include, but are 
not limited to:

[[Page 125]]

    (i) Information received in confidence, such as grant applications, 
fellowship applications, and research proposals prior to award;
    (ii) Confidential scientific and manufacturing processes or 
developments, and technical, scientific, statistical data or other 
information developed by a grantee.
    (iii) Technical, scientific, or statistical data, and commercial or 
financial information privileged or received in confidence from an 
existing or potential contractor or subcontractor, in connection with 
bids, proposals, or contracts, concerning contract performance, income, 
profits, losses, and expenditures, as well as trade secrets, inventions, 
discoveries, or other proprietary data. When the provisions of 41 U.S.C. 
253b(m) or 41 U.S.C. 423 are met, certain proprietary and source 
selection information may also be withheld under Exemption 3.
    (iv) Confidential proprietary information submitted on a voluntary 
basis.
    (v) Statements or information collected in the course of 
inspections, investigations, or audits, when such statements are 
received in confidence from the individual and retained in confidence 
because they reveal trade secrets or commercial or financial information 
normally considered confidential or privileged.
    (5) Exemption 5--5 U.S.C. 552(b)(5). Inter-agency or intra-agency 
memoranda or letters which would not be available by law to a private 
party in litigation with NSF. Factual material contained in such records 
will be considered for release if it can be reasonably segregated and is 
not otherwise exempt. Examples of records exempt from disclosure 
include, but are not limited to:
    (i) Those portions of reports, memoranda, correspondence, 
workpapers, minutes of meetings, and staff papers, containing 
evaluations, advice, opinions, suggestions, or other deliberative 
material that are prepared for use within NSF or within the Executive 
Branch of the Government by agency personnel and others acting in a 
consultant or advisory capacity;
    (ii) Advance information on proposed NSF plans to procure, lease, or 
otherwise acquire, or dispose of materials, real estate, facilities, 
services or functions, when such information would provide undue or 
unfair competitive advantage to private interests or impede legitimate 
government functions;
    (iii) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interest;
    (iv) Records prepared for use in proceedings before any Federal or 
State court or administrative body;
    (v) Evaluations of and comments on specific grant applications, 
research projects or proposals, or potential contractors and their 
products, whether made by NSF personnel or by external reviewers acting 
either individually or in panels, committees or similar groups;
    (vi) Preliminary, draft or unapproved documents, such as opinions, 
recommendations, evaluations, decisions, or studies conducted or 
supported by NSF;
    (vii) Proposed budget requests, and supporting projections used or 
arising in the preparation and/or execution of a budget; proposed annual 
and multi-year policy, priorities, program and financial plan and 
supporting papers;
    (viii) Those portions of official reports of inspection, reports of 
the Inspector General, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of NSF, when these records have traditionally been treated by 
the courts as privileged against disclosure in litigation.
    (6) Exemption 6--5 U.S.C. 552(b)(6). Personnel and medical files and 
similar files, the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy. The exemption may apply to 
protect the privacy of living persons and of living close survivors of a 
deceased person identified in a record. Information in such files which 
is not otherwise exempt from disclosure pursuant to other provisions of 
this section will be released to the subject or to his designated legal 
representative, and may be disclosed to others with the subject's 
written consent. Examples of records exempt from

[[Page 126]]

disclosure include, but are not limited to:
    (i) Reports, records, and other materials pertaining to individual 
cases in which disciplinary or other administrative action has been or 
may be taken. Opinions and orders resulting from those administrative or 
disciplinary proceedings shall be disclosed without identifying details 
if used, cited, or relied upon as precedent.
    (ii) Records compiled to evaluate or adjudicate the suitability of 
candidates for employment, and the eligibility of individuals (civilian 
or contractor employees) for security clearances, or for access to 
classified information.
    (iii) Reports and evaluations which reflect upon the qualifications 
or competence of individuals.
    (iv) Personal information such as home addresses and telephone and 
facsimiles numbers, private e-mail addresses, social security numbers, 
dates of birth, marital status and the like.
    (v) The exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest.
    (7) Exemption 7--5 U.S.C. 552(b)(7). Records or information compiled 
for civil or criminal law enforcement purposes, including the 
implementation of Executive Orders or regulations issued pursuant to 
law. This exemption may exempt from mandatory disclosure records not 
originally created, but later gathered, for law enforcement purposes.
    (i) This exemption applies only to the extent that the production of 
such law enforcement records or information:
    (A) Could reasonably be expected to interfere with enforcement 
proceedings;
    (B) Would deprive a person of the right to a fair trial or an 
impartial adjudication;
    (C) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, or living close 
survivors of a deceased person identified in a record;
    (D) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within the Federal Government, 
or a State, local, or foreign agency or authority, or any private 
institution, that furnished information on a confidential basis; and 
information furnished by a confidential source and obtained by a 
criminal law enforcement authority in a criminal investigation;
    (E) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (F) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (ii) Examples of records normally exempt from disclosure include, 
but are not limited to:
    (A) The identity and statements of complainants or witnesses, or 
other material developed during the course of an investigation and all 
materials prepared in connection with related government litigation or 
adjudicative proceedings;
    (B) The identity of firms or individuals investigated for alleged 
irregularities involving NSF grants, contracts or other matters when no 
indictment has been obtained, no civil action has been filed against 
them by the United States, or no government-wide public suspension or 
debarment has occurred.
    (C) Information obtained in confidence, expressed or implied, in the 
course of a criminal investigation by the NSF Officer of the Inspector 
General.
    (iii) The exclusions contained in 5 U.S.C. 552(c)(1) and (2) may 
also apply to these records.
    (8) Exemption 8--5 U.S.C. 552(b)(8). Records contained in or related 
to examination, operating, or condition reports prepared by, on behalf 
of, or for the use of any agency responsible for the regulation or 
supervision of financial institutions.
    (9) Exemption 9--5 U.S.C. 552(b)(9). Records containing geological 
and geophysical information and data, including maps, concerning wells.

[[Page 127]]

    (b) Deletion of exempt portions and identifying details. Any 
reasonably segregable portion of a record will be provided to requesters 
after deletion of the portions which are exempt. Whenever any final 
opinion, order, or other materials required to be made available relates 
to a private party or parties and the release of the name(s) or other 
identifying details will constitute a clearly unwarranted invasion of 
personal privacy, the record shall be published or made available with 
such identifying details left blank, or shall be published or made 
available with obviously fictitious substitutes and with a notification 
such as the following: Names of parties and certain other identifying 
details have been removed (and fictitious names substituted) in order to 
prevent a clearly unwarranted invasion of the personal privacy of the 
individuals involved.



Sec. 612.8  Business Information

    (a) In general. Business information obtained by the Foundation from 
a submitter of that information will be disclosed under the FOIA only 
under this section's procedures.
    (b) Definitions. For purposes of this section:
    (1) Business Information means commercial or financial information 
obtained by the Foundation from a submitter that may be protected from 
disclosure under Exemption 4 of the FOIA and Sec. 612.7(a)(4).
    (2) Submitter means any person or entity from whom the Foundation 
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 must use good faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. The Foundation will provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
that seeks its business information wherever required under this 
section, in order to give the submitter an opportunity to object to 
disclosure of any specified portion of that information under paragraph 
(f) of this section. The notice shall either describe the business 
information requested or include copies of the requested records or 
record portions containing the information.
    (e) Where notice is required. Notice will be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) The Foundation has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. NSF will allow a submitter 
a reasonable time, consistent with statutory requirements, to respond to 
the notice described in paragraph (d) of this section. If a submitter 
has any objection to disclosure, it must submit a detailed written 
statement. The statement must specify all grounds for withholding any 
portion of the information under any exemption of the FOIA and, in the 
case of Exemption 4, must show why the information is a trade secret, or 
commercial or financial information that is privileged or confidential. 
In the event that a submitter fails to respond within the time specified 
in the notice, the submitter will be considered to have no objection to 
disclosure of the information. Information provided by a submitter under 
this paragraph may itself be a record subject to disclosure under the 
FOIA.
    (g) Notice of intent to disclose. The Foundation will consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever it decides 
to disclose business information over the objection of a submitter, the 
Foundation will give the submitter written notice, which will include:
    (1) A statement of the reason(s) why the submitter's disclosure 
objections were not sustained;

[[Page 128]]

    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which will be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section will not apply if:
    (1) The Foundation determines that the information should not be 
disclosed (the Foundation protects from disclosure to third parties 
information about specific unfunded applications, including pending, 
withdrawn, or declined proposals);
    (2) The information lawfully has been 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 the requirements 
of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, in which case the Foundation 
will, within a reasonable time prior to a specified disclosure date, 
give the submitter written notice of any final decision to disclose the 
information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the Foundation 
will promptly notify the submitter(s). Whenever a submitter files a 
lawsuit seeking to prevent the disclosure of business information, the 
Foundation will notify the requester(s).



Sec. 612.9  Appeals.

    (a) Appeals of denials. You may appeal a denial of your request to 
the General Counsel, National Science Foundation, 4201 Wilson Boulevard, 
Suite 1265, Arlington, VA 22230. You must make your appeal in writing 
and it must be received by the Office of the General Counsel within ten 
days of the receipt of the denial (weekends, legal holidays, and the 
date of receipt excluded). Clearly mark your appeal letter and the 
envelope ``Freedom of Information Act Appeal.'' Your appeal letter must 
include a copy of your written request and the denial together with any 
written argument you wish to submit.
    (b) Responses to appeals. A written decision on your appeal will be 
made by the General Counsel. A decision affirming an adverse 
determination in whole or in part will contain a statement of the 
reason(s) for the affirmance, including any FOIA exemption(s) applied, 
and will inform you of the FOIA provisions for court review of the 
decision. If the adverse determination is reversed or modified on 
appeal, in whole or in part, you will be notified in a written decision 
and your request will be reprocessed in accordance with that appeal 
decision.
    (c) When appeal is required. If you wish to seek review by a court 
of any denial, you must first appeal it under this section.



Sec. 612.10  Fees

    (a) In general. NSF will charge for processing requests under the 
FOIA in accordance with paragraph (c) of this section, except where fees 
are limited under paragraph (d) of this section or where a waiver or 
reduction of fees is granted under paragraph (k) of this section. If 
fees are applicable, NSF will itemize the amounts charged. NSF may 
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. When it appears that the requester 
will put the records to a commercial use, either because of the nature 
of the request itself or because NSF has reasonable cause to doubt a 
requester's stated use, NSF will provide the requester a reasonable 
opportunity to submit further clarification.
    (2) Direct costs means those expenses that an agency actually incurs 
in searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records to respond to a

[[Page 129]]

FOIA request. Direct costs include, for example, the salary of the 
employee performing the work (the basic rate of pay for the employee, 
plus 16 percent of that rate to cover benefits) and the cost of 
operating duplication machinery. Not included in direct costs are 
overhead expenses such as the costs of space and heating or lighting of 
the facility in which the records are kept.
    (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 can take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk) among others. 
NSF will honor a requester's specified preference of form or format of 
disclosure if the record is readily reproducible by NSF, with reasonable 
effort, in the requested form or format.
    (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 made under the 
auspices of a qualifying institution and that the records are not sought 
for a commercial use, but are sought to further scholarly research.
    (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 
made under the auspices of a qualifying institution and that the records 
are not sought for a commercial use or to promote any particular product 
or industry, but are sought to further scientific research.
    (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 in those instances where they can 
qualify as disseminators of ``news'') who 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 
NSF will 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 will 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, doing all that is necessary to redact it and prepare it for 
disclosure. Review costs are recoverable even if a record ultimately is 
not disclosed. Review time includes time spent considering any formal 
objection to disclosure made by a business submitter under Sec. 612.8, 
but 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. NSF will ensure that searches 
are done in the most efficient and least expensive manner reasonably 
possible. For example, NSF will not search line by line where 
duplicating an entire document would be quicker and less expensive.

[[Page 130]]

    (c) Fees. In responding to FOIA requests, NSF will charge the 
following fees unless a waiver or reduction of fees has been granted 
under paragraph (k) of this section:
    (1) Search. (i) Search fees will 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. NSF may charge for time 
spent searching even if responsive records are not located or are 
withheld entirely as exempt from disclosure.
    (ii) Manual searches for records. Whenever feasible, NSF will charge 
at the salary rate(s) (i.e., basic pay plus 16 percent) of the 
employee(s) conducting the search. Where a homogeneous class of 
personnel is used exclusively (e.g., all administrative/clerical or all 
professional/executive), NSF has established an average rate for the 
range of grades typically involved. Routine search for records by 
clerical personnel are charged at $2.50 for each quarter hour. When a 
non-routine, non-clerical search by professional personnel is conducted 
(for example, where the task of determining which records fall within a 
request requires professional time) the charge is $7.50 for each quarter 
hour.
    (iii) Computer searches of records. NSF will charge at the actual 
direct cost of conducting the search. This will include the cost of 
operating the central processing unit (CPU) for that portion of 
operating time that is directly attributable to searching for records 
responsive to a FOIA request and operator/programmer salary (i.e., basic 
pay plus 16 percent) apportionable to the search. When NSF can establish 
a reasonable agency-wide average rate for CPU operating costs and 
operator/programmer salaries involved in FOIA searches, the Foundation 
will do so and charge accordingly.
    (2) Duplication. Duplication fees will 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 will be 25 cents per page. For copies produced by computer, such 
as tapes or printouts, NSF will charge the direct costs, including 
operator time, of producing the copy. For other forms of duplication, 
NSF will charge the direct costs of that duplication.
    (3) Review. Review fees will be charged to requesters who make a 
commercial use request. Review fees will be charged only for the initial 
record review-in other words, the review done when NSF determines 
whether an exemption applies to a particular record or record portion at 
the initial request level. NSF may charge for review even if a record 
ultimately is not disclosed. No charge will be made for review at the 
administrative appeal level for an exemption already applied. However, 
records or record portions 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; the costs 
of that review are chargeable where it is made necessary by a change of 
circumstances. Review fees will be charged at the salary rate (basic pay 
plus 16%) of the employee(s) performing the review.
    (d) Limitations on charging fees. (1) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.
    (2) Except for requesters seeking records for a commercial use, NSF 
will 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).
    (3) Whenever a total fee calculated under paragraph (c) of this 
section is $25.00 or less for any request, no fee will be charged.
    (4) The provisions of paragraphs (d) (2) and (3) of this section 
work together. This means that noncommercial requesters will be charged 
no fees unless the cost of search in excess of two hours plus the cost 
of duplication in excess of 100 pages totals more than $25.00. 
Commercial requesters will not be charged unless the costs of search, 
review, and duplication total more than $25.00.
    (e) Notice of anticipated fees in excess of $25.00. When NSF 
determines or estimates that the fees to be charged under

[[Page 131]]

this section will exceed $25.00, it will notify the requester of the 
actual or estimated amount of the fees, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. If 
only a portion of the fee can be estimated readily, NSF will advise the 
requester that the estimated fee may be only a portion of the total fee. 
In cases in which a requester has been notified that actual or estimated 
fees exceed $25.00, the request will not be considered perfected and 
further work will not be done until the requester agrees to pay the 
anticipated total fee. Any such agreement should be memorialized in 
writing. A notice under this paragraph will offer the requester an 
opportunity to discuss the matter with Foundation personnel in order to 
reformulate the request to meet the requester's needs at a lower cost, 
if possible. If a requester fails to respond within 60 days of notice of 
actual or estimated fees with an agreement to pay those fees, NSF may 
administratively close the request.
    (f) Charges for other services. Apart from the other provisions of 
this section, when NSF chooses as a matter of administrative discretion 
to provide a requested special service-such as certifying that records 
are true copies or sending them by other than ordinary mail-the direct 
costs of providing the service will be charged to the requester.
    (g) Charging interest. NSF may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 
and will accrue from the date of the billing until payment is received 
by NSF. NSF will follow the provisions of the Debt Collection Act of 
1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative 
procedures, including the use of consumer reporting agencies, collection 
agencies, and offset.
    (h) Aggregating requests. Where NSF 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 agency may aggregate those requests and charge accordingly. 
NSF may presume that multiple requests of this type made within a 30-day 
period have been made in order to avoid fees. Where requests are 
separated by a longer period, NSF will aggregate them only where there 
exists a solid basis for determining that aggregation is warranted under 
all the circumstances involved. Multiple requests involving unrelated 
matters will not be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i) (2) and (3) of this section, NSF will not require the 
requester to make an advance payment-in other words, a payment made 
before work is begun or continued on a request. Payment owed for work 
already completed (i.e., a prepayment before copies are sent to a 
requester) is not an advance payment.
    (2) Where NSF determines or estimates that a total fee to be charged 
under this section will be more than $250.00, it may require the 
requester to make an advance payment of an amount up to the amount of 
the entire anticipated fee before beginning to process the request, 
except where it receives a satisfactory assurance of full payment from a 
requester that has a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged fee to any agency within 30 days of the date of billing, NSF may 
require the requester to pay the full amount due, plus any applicable 
interest, and to make an advance payment of the full amount of any 
anticipated fee, before NSF begins to process a new request or continues 
to process a pending request from that requester.
    (4) In cases in which NSF requires advance payment or payment due 
under paragraph (i)(2) or (3) of this section, the request will not be 
considered perfected and further work will not be done on it until the 
required payment is received.
    (j) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute that 
specifically requires an agency to set and collect fees for particular 
types of records. Where records responsive to requests are maintained 
for distribution by agencies operating such statutorily based fee

[[Page 132]]

schedule programs, NSF will inform requesters of the steps for obtaining 
records from those sources so that they may do so most economically.
    (k) 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 where NSF determines, 
based on all available information, that 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 is not primarily in the commercial interest of the 
requester.
    (2) To determine whether the first fee waiver requirement is met, 
NSF will 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 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. 
Disclosure of information already in the public domain, in either 
duplicative or substantially identical form, is unlikely to contribute 
to such understanding where nothing new would be added to the public's 
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 ``public understanding.'' The 
disclosure must 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 will be considered. A representative of the 
news media as defined in paragraph (b)(6) of this section will normally 
be presumed satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether disclosure is likely to contribute ``significantly'' to public 
understanding of government operations or activities. The public's 
understanding of the subject in question must be enhanced by the 
disclosure to a significant extent as compared to the level of public 
understanding existing prior to the disclosure. NSF will make no value 
judgments about whether information that would contribute significantly 
to public understanding of the operations or activities of the 
government is ``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
NSF will 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. NSF will consider any commercial interest of the 
requester (with reference to the definition of ``commercial use'' 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 will be given an opportunity in the 
administrative process to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure: Whether any identified 
commercial interest of the requester is sufficiently large, 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 where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. NSF ordinarily will 
presume that where a news media requester has satisfied the public 
interest standard, the public interest will be the interest primarily 
served by disclosure to that requester. Disclosure to data brokers or 
others

[[Page 133]]

who merely compile and market government information for direct economic 
return will not be presumed to primarily serve the public interest.
    (4) Where only some of the requested records satisfy the 
requirements for a waiver of fees, a waiver will 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.



Sec. 612.11  Other rights and services.

    Nothing in this part will be construed to entitle any person, as of 
right, to any service or to the disclosure of any record to which such 
person is not entitled under the FOIA.



PART 613_PRIVACY ACT REGULATIONS--Table of Contents




Sec.
613.1 General provisions.
613.2 Requesting access to records.
613.3 Responding to requests for access to records.
613.4 Amendment of records.
613.5 Exemptions.
613.6 Other rights and services.

    Authority: 5 U.S.C. 552a.

    Source: 65 FR 11748, Mar. 6, 2000, unless otherwise noted.



Sec. 613.1  General Provisions.

    This part sets forth the National Science Foundation procedures 
under the Privacy Act of 1974. The rules in this part apply to all 
records in systems of records maintained by NSF that are retrieved by an 
individual's name or personal identifier. They describe the procedures 
by which individuals may request access to records about themselves and 
request amendment or correction of those records. All Privacy Act 
requests for access to records are also processed under the Freedom of 
Information Act, 5 U.S.C. 552 (as provided in part 612 of this chapter), 
which gives requesters the benefit of both statutes. Notice of systems 
of records maintained by the National Science Foundation are published 
in the Federal Register.



Sec. 613.2  Requesting access to records.

    (a) Where to make a request. You may make a request for access to 
NSF records about yourself by appearing in person at the National 
Science Foundation or by making a written request. If you choose to 
visit the Foundation, you must contact the NSF Security Desk and ask to 
speak with the Foundation's Privacy Act Officer in the Office of the 
General Counsel. Written requests should be sent to the NSF Privacy Act 
Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 1265, 
Arlington, VA 22230. Written requests are recommended, since in many 
cases it may take several days to determine whether a record exists, and 
additional time may be required for record(s) retrieval and processing.
    (b) Description of requested records. You must describe the records 
that you seek in enough detail to enable NSF personnel to locate the 
system of records containing them with a reasonable amount of effort. 
Providing information about the purpose for which the information was 
collected, applicable time periods, and name or identifying number of 
each system of records in which you think records about you may be kept, 
will help speed the processing of your request. NSF publishes notices in 
the Federal Register that describe the systems of records maintained by 
the Foundation. The Office of the Federal Register publishes a biennial 
``Privacy Act Compilation'' that includes NSF system notices. This 
compilation is available in many large reference and university 
libraries, and can be accessed electronically at the Government Printing 
Office's web site at .
    (c) Verification of identity. When requesting access to records 
about yourself, NSF requires that you verify your identity in an 
appropriate fashion. Individuals appearing in person should be prepared 
to show reasonable picture identification such as driver's license, 
government or other employment identification card, or passport. Written 
requests must state your full name and current address. You must sign 
your request and your signature must either be notarized, or submitted 
by you under 28 U.S.C. 1746, a law that permits

[[Page 134]]

statements to be made under penalty of perjury as a substitute for 
notarization. While no specific form is required, you may obtain 
information about these required elements for requests from the NSF 
Privacy Act Officer, Suite 1265, 4201 Wilson Blvd, Arlington, VA 22230, 
or from the NSF Home Page under ``Public & Media Information--FOIA and 
Privacy Act'' at http://www.nsf.gov/home/pubinfo/foia.htm. In order to 
help agency personnel in locating and identifying requested records, you 
may also, at your option, include your social security number, and/or 
date and place of birth. An individual reviewing his or her record(s) in 
person may be accompanied by an individual of his or her choice after 
signing a written statement authorizing that individual's presence. 
Individuals requesting or authorizing the disclosure of records to a 
third party must verify their identity and specifically name the third 
party and identify the information to be disclosed.
    (d) Verification of guardianship. When making a request as the 
parent or guardian of a minor or as the guardian of someone determined 
by a court of competent jurisdiction to be incompetent, for access to 
records about that individual, you must establish:
    (1) The identity of the record subject, by stating individual's name 
and current address and, at your option, the social security number and/
or date and place of birth of the individual;
    (2) Your own identity, as required in paragraph (c) of this section;
    (3) That you are the parent or guardian of that individual, which 
you may prove by providing a copy of the individual's birth certificate 
showing your parentage or by providing a court order establishing your 
guardianship; and
    (4) That you are acting on behalf of that individual in making the 
request.
    (e) Application of procedures. The procedures of paragraphs (a) 
through (d) of this section shall apply to requests made pursuant to 5 
U.S.C. 552a(c)(3) and (d)(1).



Sec. 613.3  Responding to requests for access to records.

    (a) Timing of responses to requests. The Foundation will make 
reasonable effort to act on a request for access to records within 20 
days of its receipt by the Privacy Act Officer (excluding date of 
receipt, weekends, and legal holidays) or from the time any required 
identification is received by the Privacy Act Officer, whichever is 
later. In determining which records are responsive to a request, the 
Foundation will include only records in its possession as of the date of 
receipt. When the agency cannot complete processing of a request within 
20 working days, the Foundation will send a letter explaining the delay 
and notifying the requester of the date by which processing is expected 
to be completed.
    (b) Authority to grant or deny requests. The Privacy Act Officer, or 
his or her designee in the office with responsibility for the requested 
records, is authorized to grant or deny access to a Foundation record.
    (c) Granting access to records. When a determination is made to 
grant a request for access in whole or part, the requester will be 
notified as soon as possible of the Foundation's decision. Where a 
requester has previously failed to pay a properly charged fee to any 
agency within 30 days of the date of billing, NSF may require the 
requester to pay the full amount due, plus any applicable interest, and 
to make an advance payment of the full amount of any anticipated fee, 
before NSF begins to process a new request or continues to process a 
pending request from that requester.
    (1) Requests made in person. When a request is made in person, if 
the records can be found, and reviewed for access without unreasonable 
disruption of agency operations, the Foundation may disclose the records 
to the requester directly upon payment of any applicable fee. A written 
record should be made documenting the granting of the request. If a 
requester is accompanied by another person, the requester shall be 
required to authorize in writing any discussion of the records in the 
presence of the other person.
    (2) Requests made in writing. The Foundation will send the records 
to the requester promptly upon payment of any applicable fee.
    (d) Denying access to records. The requester will be notified in 
writing of any determination to deny a request

[[Page 135]]

for access to records. The notification letter will be signed by the 
Privacy Act Officer, or his or her designee, as the individual 
responsible for the denial and will include a brief statement of the 
reason(s) for the denial, including any Privacy Act exemption(s) applied 
in denying the request.
    (e) Fees. The Foundation will charge for duplication of records 
requested under the Privacy Act in the same way it charges for 
duplication under the Freedom of Information Act (see 45 C.F.R. 612.10). 
No search or review fee may be charged for the record unless the record 
has been exempted from access under Exemptions (j)(2) or (k)(2) of the 
Privacy Act.



Sec. 613.4  Amendment of records.

    (a) Where to make a request. An individual may request amendment of 
records pertaining to him or her that are maintained in an NSF Privacy 
Act system of records, except that certain records described in 
subparagraph (h) of this section are exempt from amendment. Request for 
amendment of records must be made in writing to the NSF Privacy Act 
Officer, National Science Foundation, Suite 1265, 4201 Wilson Boulevard, 
Arlington, VA 22230.
    (b) How to make a request. Your request should identify each 
particular record in question, state the amendment you want to take 
place, and specify why you believe that the record is not accurate, 
relevant, timely, or complete. You may submit any documentation that you 
think would be helpful. Providing an edited copy of the record(s) 
showing the desired change will assist the agency in making a 
determination about your request. If you believe that the same 
information is maintained in more than one NSF system of records you 
should include that information in your request. You must sign your 
request and provide verification of your identity as specified in Sec. 
613.2(c).
    (c) Timing of responses to requests. The Privacy Act Officer, or his 
or her designee, will acknowledge receipt of request for amendment 
within 10 working days of receipt. Upon receipt of a proper request the 
Privacy Act Officer will promptly confer with the NSF Directorate or 
Office with responsibility for the record to determine if the request 
should be granted in whole or part.
    (d) Granting request for amendment. When a determination is made to 
grant a request for amendment in whole or part, notification to the 
requester will be made as soon as possible, normally within 30 working 
days of the Privacy Act Officer receiving the request, describing the 
amendment made and including a copy of the amended record, in 
disclosable form.
    (e) Denying request for amendment. When a determination is made that 
amendment, in whole or part, is unwarranted, the matter shall be brought 
to the attention of the Inspector General, if it pertains to records 
maintained by the Office of the Inspector General, or to the attention 
of the General Counsel, if it pertains to other NSF records. If the 
General Counsel or Inspector General or their designee agrees with the 
determination that amendment is not warranted, the Privacy Act Officer 
will notify the requester in writing, normally within 30 working days of 
the Privacy Act Officer receiving the request. The notification letter 
will be signed by the Privacy Act Officer or his or her designee, and 
will include a statement of the reason(s) for the denial and how to 
appeal the decision.
    (f) Appealing a denial. You may appeal a denial of a request to 
amend records to the General Counsel, National Science Foundation, 4201 
Wilson Blvd, Suite 1265, Arlington, VA 22230. You must make your appeal 
in writing and it must be received by the Office of the General Counsel 
within ten days of the receipt of the denial (weekends, legal holidays, 
and the date of receipt excluded). Clearly mark your appeal letter and 
envelope ``Privacy Act Appeal.'' Your appeal letter must include a copy 
of your original request for amendment and the denial letter, along with 
any additional documentation or argument you wish to submit in favor of 
amending the records. It must be signed by you or your officially 
designated representative.
    (g) Responses to appeals. The General Counsel, or his or her 
designee, will normally render a decision on the appeal within thirty 
working days after proper receipt of the written appeal by

[[Page 136]]

the General Counsel. If additional time to make a determination is 
necessary you will be advised in writing of the need for an extension.
    (1) Amendment appeal granted. If on appeal the General Counsel, or 
his or her designee, determines that amendment of the record should take 
place, you will be notified as soon as possible of the Foundation's 
decision. The notification will describe the amendment made and include 
a copy of the amended record, in disclosable form.
    (2) Amendment appeal denied--Statement of disagreement. If on appeal 
the General Counsel, or his or her designee, upholds a denial of a 
request for amendment of records, you will be notified in writing of the 
reasons why the appeal was denied and advised of your right to seek 
judicial review of the decision. The letter will also notify you of your 
right to file with the Foundation a concise statement setting forth the 
reasons for your disagreement with the refusal of the Foundation to 
amend the record. The statement should be sent to the Privacy Act 
Officer, who will ensure that a copy of the statement is placed with the 
disputed record. A copy of the statement will be included with any 
subsequent disclosure of the record.
    (h) Records not subject to amendment. The following records are not 
subject to amendment:
    (1) Transcripts of testimony given under oath or written statements 
made under oath;
    (2) Transcripts of grand jury proceedings, judicial proceedings, or 
quasi-judicial proceedings, which are the official record of those 
proceedings;
    (3) Pre-sentence records that originated with the courts; and
    (4) Records in systems of records that have been exempted from 
amendment under Privacy Act, 5 U.S.C. 552a(j) or (k) by notice published 
in the Federal Register.



Sec. 613.5  Exemptions.

    (a) Fellowships and other support. Pursuant to 5 U.S.C. 552a(k)(5), 
the Foundation hereby exempts from the application of 5 U.S.C. 
552a(c)(3) and (d) any materials which would reveal the identity of 
references of fellowship or other award applicants or nominees, or 
reviewers of applicants for Federal contracts (including grants and 
cooperative agreements) contained in any of the following systems of 
records:
    (1) ``Fellowships and Other Awards,''
    (2) ``Principal Investigator/Proposal File and Associated Records,''
    (3) ``Reviewer/ Proposal File and Associated Records,'' and
    (4) ``Reviewer/Fellowship and Other Awards File and Associated 
Records.''
    (b) OIG Files Compiled for the Purpose of a Criminal Investigation 
and for Related Purposes. Pursuant to 5 U.S.C. 552a(j)(2), the 
Foundation hereby exempts the system of records entitled ``Office of 
Inspector General Investigative Files,'' insofar as it consists of 
information compiled for the purpose of a criminal investigation or for 
other purposes within the scope of 5 U.S.C. 552a(j)(2), from the 
application of 5 U.S.C. 552a, except for subsections (b), (c)(1) and 
(2), (e)(4) (A) through (F), (e)(6), (7), (9), (10) and (11), and (i).
    (c) OIG and ACA Files Compiled for Other Law Enforcement Purposes. 
Pursuant to 5 U.S.C. 552a(k)(2), the Foundation hereby exempts the 
systems of records entitled ``Office of Inspector General Investigative 
Files'' and ``Antarctic Conservation Act Files'' insofar as they consist 
of information compiled for law enforcement purposes other than material 
within the scope of 5 U.S.C. 552a(j)(2), from the application of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f).
    (d) Investigations of Scientific Misconduct. Pursuant to 5 U.S.C. 
552a(k)(2) and (k)(5), the Foundation hereby exempts from the 
application of 5 U.S.C. 552a(c)(3) and (d) any materials which would 
reveal the identity of confidential sources of information contained in 
the following system of records: ``Debarment/Scientific Misconduct 
Files.''
    (e) Personnel Security Clearances. Pursuant to 5 U.S.C. 552a(k)(5), 
the Foundation hereby exempts from the application of 5 U.S.C. 
552a(c)(3) and (d) any materials which would reveal the identity of 
confidential sources of information contained in the following system of 
records: ``Personnel Security.''
    (f) Applicants for Employment. Records on applicants for employment 
at NSF are covered by the Office of Personnel

[[Page 137]]

Management (OPM) government-wide system notice ``Recruiting, Examining 
and Placement Records.'' These records are exempted as claimed in 5 CFR 
297.501(b)(7).
    (g) Other records. The Foundation may also assert exemptions for 
records received from another agency that could properly be claimed by 
that agency in responding to a request.



Sec. 613.6  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under the Privacy Act.



PART 614_GOVERNMENT IN THE SUNSHINE ACT REGULATIONS OF THE NATIONAL 
SCIENCE BOARD--Table of Contents




Sec.
614.1 General rule.
614.2 Grounds for closing meetings.
614.3 Materials relating to closed portions of meetings.
614.4 Opening of transcript or recording.
614.5 Public announcement.
614.6 Meeting changes.
614.7 Record vote.
614.8 Application to Board Executive Committee.

    Authority: Government in the Sunshine Act, sec. 552b of title 5, 
U.S.C.; 90 Stat. 1241.

    Source: 42 FR 14719, Mar. 16, 1977, unless otherwise noted.



Sec. 614.1  General rule.

    Except as otherwise provided in these regulations, every portion of 
every meeting of the National Science Board will be open to public 
observation.



Sec. 614.2  Grounds for closing meetings.

    (a) The National Science Board may by record vote close any portion 
of any meeting if it properly determines that an open meeting:
    (1) Is likely to disclose matters that (i) are specifically 
authorized under criteria established by Executive Order to be kept 
secret in the interests of national defense or foreign policy and (ii) 
are in fact properly classified pursuant to the Executive Order;
    (2) Is likely to relate solely to the internal personnel rules and 
practices of the National Science Foundation;
    (3) Is likely to disclose matters specifically exempted from 
disclosure by statute (other than 5 U.S.C. 552): Provided, That the 
statute (i) requires in such a manner as to leave no discretion on the 
issue that the matters be withheld from the public, or (ii) establishes 
particular criteria for withholding or refers to particular types of 
matters to be withheld;
    (4) Is likely to disclose trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Is likely to involve accusing any person of a crime, or formally 
censuring any person;
    (6) Is likely to disclose personal information where the disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (7) Is likely to disclose investigatory law-enforcement records, or 
information which, if written, would be contained in such records, but 
only to the extent provided in 5 U.S.C. 552b(c)(7);
    (8) Is likely to disclose information contained in or related to 
examination, operating, or condition reports prepared by, on behalf of, 
or for the use of an agency responsible for the regulation or 
supervision of financial institutions;
    (9) Is likely to disclose information, the premature disclosure of 
which would:
    (i) In the case of information received from an agency which 
regulates currencies, securities, commodities, or financial 
institutions, be likely to (A) lead to significant financial speculation 
in currencies, securities, or commodities, or (B) significantly endanger 
the stability of any financial institution; or
    (ii) Be likely to significantly frustrate implementation of a 
proposed Foundation action, unless the Foundation has already disclosed 
to the public the content or nature of its proposed action or is 
required by law to make such disclosure on its own initiative before 
taking final action; or
    (10) Is likely to specifically concern the Foundation's 
participation in a civil action or proceeding, an action in a foreign 
court or international tribunal, or an arbitration.

[[Page 138]]

    (b) Anyone who believes his interests may be directly affected by a 
portion of a meeting may request that the Board close it to the public 
for any reason referred to in paragraph (a) (5), (6), or (7) of this 
section. The request should be addressed to the Executive Officer, 
National Science Board, National Science Foundation, 4201 Wilson 
Boulevard, Arlington, VA 22230. It will be circulated to Members of the 
Board if received at least three full days before the meeting, and on 
motion of any Member the Board will determine by record vote whether to 
close the affected portion of the meeting.

[42 FR 14719, Mar. 16, 1977, as amended at 59 FR 37438, July 22, 1994]



Sec. 614.3  Materials relating to closed portions of meetings.

    If a portion or portions of any meeting of the National Science 
Board are closed to the public under Sec. 614.2:
    (a) The General Counsel of the National Science Foundation shall 
publicly certify that, in his opinion, that portion or portions may 
properly be closed to the public. The certificate shall state the 
exemptions under 5 U.S.C. 552b(c) that make the closings proper.
    (b) The presiding officer of the meeting (usually the Chairman of 
the Board) shall furnish a statement setting forth the time and place of 
the meeting and the persons present.
    (c) The Board shall make a complete transcript or electronic 
recording adequate to record fully the proceedings of each portion of 
the meeting that is closed to the public.
    (d) The National Science Board Office shall maintain the General 
Counsel's certificate, the presiding officer's statement, and the 
transcript or recording of the meeting for at least two years after the 
meeting and at least one year after the Board completes consideration of 
any proposal, report, resolution, or similar matter discussed in any 
closed portion of the meeting.



Sec. 614.4  Opening of transcript or recording.

    (a) Except as otherwise provided in this section, the transcript or 
electronic recording of every portion of every meeting closed to the 
public will promptly be made available on request to any member of the 
public in an easily accessible place.
    (b) Informal requests to inspect or copy the transcript or 
electronic recording of a closed session may be made to the staff of the 
National Science Board and will be handled informally and expeditiously. 
Written requests to inspect or copy such a transcript or recording that 
cite the Freedom of Information Act or the Sunshine Act will be treated 
as formal requests made under the Freedom of Information Act. They will 
be handled under the Foundation's Freedom of Information procedures 
described in 45 CFR part 612. The exemptions of these Sunshine Act 
regulations, 45 CFR 614.2, will govern, however, in determining what 
portions of the transcript or recording may be withheld.
    (c) A request to inspect or copy a transcript or electronic 
recording should specify the date of the meeting and the agenda item or 
items to which the request pertains. It should contain a promise to pay 
the costs of any duplication requested.
    (d) No search or transcription fees will be charged. Duplication 
fees may be charged as provided in 45 CFR 612.6.

[42 FR 55619, Oct. 18, 1977]



Sec. 614.5  Public announcement.

    (a) Except as provided in paragraphs (c) and (d) of this section, 
the National Science Board will make a public announcement of each Board 
meeting at least one week before the meeting takes place. The 
announcement will cover:
    (1) The time, place, and subject matter of the meeting;
    (2) What portions of the meeting, if any, are to be closed to the 
public; and
    (3) The name and telephone number of the official designated to 
respond to requests for information on the meeting.
    (b) Each such announcement will be promptly posted on public notice 
boards at the National Science Foundation and made available to journals 
of general scientific interest. Immediately following the issuance of 
such an announcement, it will be submitted for publication in the 
Federal Register.

[[Page 139]]

    (c) The announcement may be made less than a week before the meeting 
it announces or after the meeting only if (1) the Board by record vote 
determines that agency business requires the meeting to be called on 
such short or after-the-fact notice and (2) an announcement is made at 
the earliest practicable time.
    (d) All or any portion of the announcement of any meeting may be 
omitted if the Board by record vote determines that the announcement 
would disclose information which should be withheld under the same 
standards as apply for closing meetings under Sec. 614.2.



Sec. 614.6  Meeting changes.

    (a) The time or place of a meeting of the National Science Board 
that has been publicly announced as provided in Sec. 614.5 may 
subsequently be changed, but any such change will be publicly announced 
at the earliest practicable time.
    (b) The subject matter of any portion of any meeting of the Board 
that has been publicly announced as provided in Sec. 614.5 or the 
determination whether any portion of any meeting so publicly announced 
will be open or closed may subsequently be changed, but only when:
    (1) The Board determines by record vote that agency business so 
requires and that no earlier announcement of the change was possible; 
and
    (2) The Board publicly announces the change and the vote of each 
Member on the change at the earliest practicable time.



Sec. 614.7  Record vote.

    (a) For purposes of this part a vote of the National Science Board 
is a ``record vote'' if:
    (1) It carries by a majority of all those holding office as Board 
Members at the time of the vote;
    (2) No proxies are counted toward the necessary majority; and
    (3) The individual vote of each Member present and voting is 
recorded.
    (b) Within one day of any such record vote or any attempted record 
vote that fails to achieve the necessary majority under paragraph (a)(1) 
of this section, the Board Office will make publicly available a written 
record showing the vote of each Member on the question.
    (c) Within one day of any record vote under which any portion or 
portions of a Board meeting are to be closed to the public, the Board 
Office will make available a full written explanation of the Board's 
action and a list of all persons expected to attend the meeting, showing 
their affiliations.



Sec. 614.8  Application to Board Executive Committee.

    All the provisions of this part applicable to the National Science 
Board shall apply equally to the Executive Committee of the Board 
whenever the Executive Committee is meeting pursuant to its authority to 
act on behalf of the Board.



PART 615_TESTIMONY AND PRODUCTION OF RECORDS--Table of Contents




Sec.
615.1 Purpose.
615.2 Applicability.
615.3 Definitions.
615.4 Legal proceedings before NSF or in which the United States is a 
          party.
615.5 Legal proceedings between private litigants: Testimony and 
          production of documents.
615.6 Legal proceedings between private litigants: Procedure when demand 
          is made.
615.7 Legal proceedings between private litigants: Office of Inspector 
          General employees.

    Authority: 42 U.S.C. 1870(a).

    Source: 59 FR 44056, Aug. 26, 1994, unless otherwise noted.



Sec. 615.1  Purpose.

    (a) This part sets forth policies and procedures to be followed 
when, in connection with a legal proceeding, an NSF employee is issued a 
demand to provide testimony or produce official records and information.
    (b) The provisions of this part are intended to promote economy and 
efficiency in NSF's programs and operations; minimize the possibility of 
involving NSF in controversial issues not related to its functions; 
maintain the impartiality of NSF among private litigants; and protect 
sensitive, confidential information and the deliberative process.

[[Page 140]]

    (c) This part is not intended to and does not waive the sovereign 
immunity of the United States.
    (d) This part is intended only to provide guidance for the internal 
operations of NSF, and is not intended to, and does not, and may not be 
relied upon to create any right or benefit, substantive or procedural, 
enforceable at law by a party against the United States.



Sec. 615.2  Applicability.

    This part applies to demands and requests for factual or expert 
testimony or for official records or information in legal proceedings, 
whether or not the United States is a party, except that it does not 
apply to:
    (a) Demands upon or requests for an NSF employee to testify as to 
facts or events that are in no way related to his or her official duties 
or to the functions of NSF,
    (b) Demands upon or requests for a former NSF employee to testify as 
to matters in which the former employee was not directly or materially 
involved while at NSF,
    (c) Demands upon or requests for an NSF reviewer to testify as to 
matters not directly related to that individual's employment by or 
service to NSF, and
    (d) Congressional demands and requests for testimony or records.



Sec. 615.3  Definitions.

    (a) Demand--A subpoena, order, or other demand of a court or other 
competent authority for the production of records or for the appearance 
and testimony of an NSF employee, issued in a legal proceeding between 
private litigants.
    (b) Foundation or NSF means the National Science Foundation.
    (c) General Counsel means the General Counsel of the Foundation, or 
any person to whom the General Counsel has delegated authority under 
this part.
    (d) Legal proceeding means any proceeding before a court of law, 
administrative board or commission, hearing officer, or other body 
conducting a legal or administrative proceeding.
    (e) Official records and information means all documents and 
material which are records of the Foundation under the Freedom of 
Information Act, 5 U.S.C. 552; all other records contained in NSF's 
files; and all other information or material acquired by an NSF employee 
in the performance of his or her official duties or because of his or 
her official status.
    (f) NSF employee or employee means any present or former officer or 
employee of NSF; any other individual hired through contractual 
agreement by or on behalf of NSF, or who has performed or is performing 
services under such an agreement for NSF; and any individual who served 
or is serving on any advisory committee or in any advisory capacity, 
whether formal or informal.
    (g) Request means any informal request, by whatever method, for the 
production of official records and information or for testimony which 
has not been ordered by a court or other competent authority.
    (h) Testimony means any written or oral statement by a witness, 
including depositions, answers to interrogatories, affidavits, 
declarations, and statements at a hearing or trial.



Sec. 615.4  Legal proceedings before NSF or in which the United States 
is a party.

    In any legal proceeding before NSF or to which the United States is 
a party, the General Counsel shall arrange for a current employee to 
testify as a witness for the United States whenever the attorney 
representing the United States requests it. The employee may testify for 
the United States both as to facts within the employee's personal 
knowledge and as an expert or opinion witness. For any party other than 
the United States, the employee may testify only as to facts within his 
or her personal knowledge.



Sec. 615.5  Legal proceedings between private litigants: Testimony and 
production of documents.

    (a) No employee may produce official records and information or 
provide any testimony in response to a demand or request unless 
authorized to do so by the General Counsel in accordance with this part.
    (b) The General Counsel, in his or her discretion, may grant an 
employee permission to testify or produce official

[[Page 141]]

records and information in response to a demand or request. In making 
this decision, the General Counsel shall consider whether:
    (1) The purposes of this part are met;
    (2) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (3) NSF has an interest in the decision that may be rendered in the 
legal proceeding; and
    (4) Allowing such testimony or production of records would be in the 
best interest of NSF or the United States.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the General Counsel, shall not:
    (1) Disclose confidential or privileged information;
    (2) Testify as to facts when the General Counsel determines such 
testimony would not be in the best interest of the Foundation or the 
United States; or
    (3) Testify as an expert or opinion witness with regard to any 
matter arising out of the employee's official duties or the functions of 
the Foundation.



Sec. 615.6  Legal proceedings between private litigants: Procedure when 
demand is made.

    (a) Whenever an employee is served with a demand to testify in his 
or her official capacity, or to produce official records and 
information, the employee shall immediately notify the General Counsel.
    (b) The General Counsel shall review the demand and, in accordance 
with the provisions of Sec. 615.5, determine whether, or on what 
conditions, to authorize the employee to testify and/or produce official 
records and information.
    (c) If a response to a demand is required before the General Counsel 
has made the determination referred to in Sec. 615.6(b), the General 
Counsel shall provide the court or other competent authority with a copy 
of this part, inform the court or other competent authority that the 
demand is being reviewed, and seek a stay of the demand pending a final 
determination. If the court fails to stay the demand, the employee must 
appear at the stated time and place, produce a copy of this part, and 
respectfully decline to comply with the demand. ``United States ex rel 
Touhy v. Ragen,'' 340 US 462 (1951).
    (d) If a court or other competent authority orders that a demand be 
complied with notwithstanding a final decision by the General Counsel to 
the contrary, or at any other stage in the process, the General Counsel 
may take steps to arrange for legal representation for the employee, and 
shall advise the employee on how to respond to the demand.



Sec. 615.7  Legal proceedings between private litigants: Office of 
Inspector General employees.

    Notwithstanding the requirements set forth in Sec. Sec. 615.1 
through 615.6, when an employee of the Office of Inspector General is 
issued a demand to provide testimony or produce official records and 
information, the Inspector General or his or her designee shall be 
responsible for performing the functions assigned to the General Counsel 
with respect to such demand pursuant to the provisions of this part.



PART 617_NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR ACTIVITIES 
RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM NSF--Table of Contents




Sec.
617.1 Purpose.
617.2 Definitions.
617.3 Standards.
617.4 General duties of recipients.
617.5 Self-evaluation.
617.6 Information requirements.
617.7 Compliance reviews.
617.8 Pre-award reviews.
617.9 Complaints.
617.10 Mediation.
617.11 Investigation.
617.12 Compliance procedure.
617.13 Hearings, decisions, post-termination proceedings.
617.14 Remedial action by recipients.
617.15 Exhaustion of administrative remedies.
617.16 Prohibition against intimidation or retaliation.

[[Page 142]]


Appendix I to Part 617--List of Age Distinctions Provided in Federal 
          Statutes or Regulations Affecting Federal Financial Assistance 
          Administered by NSF

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101, et seq.; 45 CFR part 90.

    Source: 49 FR 49628, Dec. 21, 1984, unless otherwise noted.



Sec. 617.1  Purpose.

    This part prescribes NSF's policies and procedures under the Age 
Discrimination Act of 1975 and the Department of Health and Human 
Services government-wide age discrimination regulations at 45 CFR part 
90. The Act and part 90 prohibit discrimination on the basis of age in 
programs or activities receiving Federal financial assistance. The Act 
and part 90 permit federally assisted programs or 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 part 
90.

[49 FR 49628, Dec. 21, 1984, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 617.2  Definitions.

    The following terms used in this part are defined in part 90:

Act
Action
Age
Age distinction
Age-related term
Agency
Federal financial assistance
Program or activity
Recipient (including subrecipients)
United States

[49 FR 49628, Dec. 21, 1984, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 617.3  Standards.

    Standards for determining whether an age distinction or age-related 
term is prohibited are set out in part 90 of this title 45. See also 
appendix I to this part.



Sec. 617.4  General duties of recipients.

    Each recipient of Federal financial assistance from NSF shall comply 
with the Act, part 90, and this part. Each NSF award of Federal 
financial assistance shall contain the following provision:

                 Compliance With Age Discrimination Act

    The recipient agrees to comply with the Age Discrimination Act of 
1975 as implemented by the Department of Health and Human Services 
regulations at 45 CFR part 90 and the regulations of the Foundation at 
45 CFR part 617. In the event the recipient passes on NSF financial 
assistance to sub-recipients, this provision shall apply to the 
subrecipients, and the instrument under which the Federal financial 
assistance is passed to the subrecipient shall contain a provision 
identical to this provision.



Sec. 617.5  Self-evaluation.

    (a) Each recipient (including subrecipients) employing the 
equivalent of fifteen or more full-time employees shall complete a 
written self-evaluation of its compliance under this part within 18 
months of the effective date of these regulations, unless a similar 
evaluation has been completed for another agency.
    (b) In its self-evaluation, each recipient shall identify all age 
distinctions it uses and justify each age distinction it imposes on the 
program or activity receiving Federal financial assistance from NSF.
    (c) Each recipient shall take corrective action whenever a self-
evaluation indicates a violation of the Act.
    (d) Each recipient shall make the self-evaluation available on 
request to NSF and the public for three years after its completion.



Sec. 617.6  Information requirements.

    Each recipient shall:
    (a) Make available upon request to NSF information necessary to 
determine whether the recipient is complying with the Act.
    (b) Permit reasonable access by NSF or its designee to the books, 
records, accounts, and other recipient facilities and sources of 
information to the extent necessary to determine whether a recipient is 
complying with the Act.



Sec. 617.7  Compliance reviews.

    (a) NSF may conduct compliance reviews of recipients that will 
permit it to investigate and correct violations of

[[Page 143]]

the Act. NSF may conduct these reviews 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 has occurred.
    (b) If a compliance review indicates a violation of the Act, NSF 
will attempt to achieve voluntary compliance with the Act. If voluntary 
compliance cannot be achieved, NSF may arrange for enforcement as 
described in Sec. 617.12.



Sec. 617.8  Pre-award reviews.

    NSF reserves the right to conduct pre-award reviews of applicants 
for Federal financial assistance from NSF in cases where the NSF has 
substantial reason to believe that a potential recipient who is not then 
a recipient of other NSF financial assistance under the same program or 
activity may engage in practices under that program or activity that 
would violate the Act. However, the results of any such review shall not 
constitute a basis for NSF refusal to grant financial assistance to the 
applicant under that program or activity unless the procedural 
requirements of the Act (42 U.S.C. 6104) and Sec. Sec. 617.12 and 
617.13 of this part have been followed.

[49 FR 49628, Dec. 21, 1984, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 617.9  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with NSF, alleging discrimination 
prohibited by the Act. 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, NSF may extend 
this time limit.
    (b) NSF will accept 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. If an 
insufficient complaint is amended within 10 working days after notice by 
NSF to the complainant of the deficiency, NSF will consider the amended 
complaint as filed on the date the original insufficient complaint was 
filed for purposes of determining if it was timely filed. However, all 
other time requirements established by the Act and this part shall run 
from the date the amended complaint was filed.
    (c) On receipt of any complaint NSF shall promptly send written 
acknowledgement to the complainant, and a copy of the complaint to the 
recipient. In addition, NSF shall send either copies of this part or 
other pertinent information describing the rights and obligations of the 
parties.
    (d) NSF will return to the complainant any complaint outside the 
coverage of this part, and will state why it is outside the coverage of 
this part.



Sec. 617.10  Mediation.

    (a) NSF will refer to the Federal Mediation and Conciliation Service 
all complaints that fall within the jurisdiction of this part and 
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 for a 
mediator to make an informed judgement that an agreement is not 
possible. NSF will take no further administrative action on any 
complaint if the complainant refuses to participate in the mediation 
process.
    (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 recipient sign it. The mediator shall send a copy of the 
agreement to NSF. NSF shall take no further action on the complaint 
unless the complainant or the recipient fails to comply with the 
agreement, in which case the other party may request that the complaint 
be reopened.
    (d) The mediator shall 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 of the Federal 
Mediation and Conciliation Service.

[[Page 144]]

    (e) NSF will use the mediation process for a maximum of 60 days 
after receiving a complaint. Mediation ends if:
    (1) 60 days elapse from the time NSF receives a sufficient 
complaint: or
    (2) Before the end of the 60 day period, an agreement is reached; or
    (3) Before the end of the 60 day period, the mediator determines 
that an agreement cannot be reached.
    (f) The mediator shall return unresolved complaints to NSF.



Sec. 617.11  Investigation.

    (a) Informal investigation. (1) NSF will investigate complaints that 
are unresolved after mediation or are reopened because of violation of a 
mediation agreement.
    (2) As part of the initial investigation, NSF will use informal fact 
finding methods, including joint or separate discussions with the 
complainant and recipient, to establish the facts, and, if possible, 
will settle the complaint on terms that are agreeable to the parties. 
NSF may seek the assistance of any involved State agency.
    (3) NSF will put any agreement in writing and have it signed by the 
parties and an authorized official of NSF.
    (4) A settlement shall not affect other enforcement efforts of NSF, 
including compliance reviews, or individual complaints that involve the 
recipient.
    (5) A settlement is not a finding of discrimination against the 
recipient.
    (b) Formal investigation. If NSF 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 the Act, NSF will try to obtain voluntary 
compliance. If NSF cannot obtain voluntary compliance, it will begin 
enforcement as described in Sec. 617.12. If the investigation does not 
indicate a violation of the Act, NSF will issue a written determination 
in favor of the recipient.

[49 FR 49628, Dec. 21, 1984, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 617.12  Compliance procedure.

    (a) NSF may enforce this part by either termination of a recipient's 
financial asistance from NSF for the program or activity involved where 
the recipient has violated the Act or this part or refusal to grant 
further financial assistance under the program or activity involved 
where the recipient has violated the Act or this part. 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. Therefore, cases settled in the mediation process or before a 
hearing will not involve termination of a recipient's Federal financial 
assistance from NSF.
    (b) NSF may also enforce this part by any other means authorized by 
law, including but not limited to:
    (1) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations by this part.
    (2) 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 this part.
    (c) NSF will limit any termination or refusal to grant further 
financial assistance to the particular recipient and the particular 
program or activity found to be in violation of the Act. NSF will not 
base any part of a termination or refusal on a finding with respect to 
any program or activity of the recipient which does not receive Federal 
financial assistance for NSF.
    (d) NSF will not begin any hearing under paragraph (a) until the 
Director has advised the recipient of its failure to comply with this 
part and has determined that voluntary compliance cannot be obtained.
    (e) NSF will not terminate or refuse to grant financial assistance 
until thirty days have elapsed after the Director has sent a written 
report of the circumstances and grounds of the action to the committees 
of the Congress having legislative jurisdiction over the program or 
activity involved. The Director will file a report whenever any action 
is taken under paragraph (f) of this section.
    (f) Alternate Funds Disbursal Procedures. (1) When NSF withholds 
funds from a recipient under these regulations, the Secretary may 
disburse the withheld funds directly to an alternate

[[Page 145]]

recipient: Any public or non-profit private organization or agency, or 
State or political subdivision of the State.
    (2) The Director will require any alternate recipient to 
demonstrate:
    (i) The ability to comply with these regulations; and
    (ii) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.

[49 FR 49628, Dec. 21, 1984, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 617.13  Hearings, decisions, post-termination proceedings.

    Procedures prescribed in 45 CFR 611.9 and 611.10 for NSF enforcement 
of Title VI of the Civil Rights Act of 1964 shall apply also for NSF 
enforcement of this part. At the conclusion of any action taken under 
Sec. 617.12, NSF, shall remind both parties of the right to judicial 
review established by 42 U.S.C. 6105.



Sec. 617.14  Remedial action by recipients.

    Where the Director finds that a recipient has discriminated on the 
basis of age, the recipient shall take any remedial action the Director 
may require to overcome the effects of the discrimination. If another 
recipient exercises control over the recipient that has discriminated, 
the Director may require both recipients to take remedial action.



Sec. 617.15  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action after exhausting 
administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed a sufficient 
complaint and NSF has made no finding with regard to the complaint; or
    (2) NSF issues any finding in favor of the recipient.
    (b) If NSF fails to make a finding within 180 days or issues a 
finding in favor of the recipient, NSF will:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief under 42 U.S.C. 6104; and
    (3) Inform the complainant that under 42 U.S.C. 6104:
    (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 Director, the Attorney General of 
the United States, and the recipient;
    (iv) The notice must state 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.



Sec. 617.16  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against a person who:
    (a) Attempts to assert a right protected by the Act, or
    (b) Cooperates in any mediation, investigation, hearing or other 
part of NSF's investigation, conciliation, and enforcement process.

  Appendix I to Part 617--List of Age Distinctions Provided in Federal 
     Statutes or Regulations Affecting Federal Financial Assistance 
                           Administered by NSF

    I. Section 6 of Pub. L. 94-86, 42 U.S.C. 1881a:
    This statute authorizes the Foundation to establish the Alan T. 
Waterman Award to recognize and encourage the work of ``younger'' 
scientists. Under NSF procedures awards have been limited to persons 35 
years of age or under.

[[Page 146]]



PART 618_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A_Introduction

Sec.
618.100 Purpose and effective date.
618.105 Definitions.
618.110 Remedial and affirmative action and self-evaluation.
618.115 Assurance required.
618.120 Transfers of property.
618.125 Effect of other requirements.
618.130 Effect of employment opportunities.
618.135 Designation of responsible employee and adoption of grievance 
          procedures.
618.140 Dissemination of policy.

                           Subpart B_Coverage

618.200 Application.
618.205 Educational institutions and other entities controlled by 
          religious organizations.
618.210 Military and merchant marine educational institutions.
618.215 Membership practices of certain organizations.
618.220 Admissions.
618.225 Educational institutions eligible to submit transition plans.
618.230 Transition plans.
618.235 Statutory amendments.

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

618.300 Admission.
618.305 Preference in admission.
618.310 Recruitment.

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

618.400 Education programs or activities.
618.405 Housing.
618.410 Comparable facilities.
618.415 Access to course offerings.
618.420 Access to schools operated by LEAs.
618.425 Counseling and use of appraisal and counseling materials.
618.430 Financial assistance.
618.435 Employment assistance to students.
618.440 Health and insurance benefits and services.
618.445 Marital or parental status.
618.450 Athletics.
618.455 Textbooks and curricular material.

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

618.500 Employment.
618.505 Employment criteria.
618.510 Recruitment.
618.515 Compensation.
618.520 Job classification and structure.
618.525 Fringe benefits.
618.530 Marital or parental status.
618.535 Effect of state or local law or other requirements.
618.540 Advertising.
618.545 Pre-employment inquiries.
618.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

618.600 Notice of covered programs.
618.605 Enforcement procedures.

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

    Source: 65 FR 52865, 52893, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec. 618.100  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. 618.105  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,

[[Page 147]]

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 General Counsel and head of the 
policy office, Division of Contracts, Policy, and Oversight.
    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
    (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

[[Page 148]]

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. 
618.100 through 618.605.
    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. 618.110  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.
    (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. 618.115  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

[[Page 149]]

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. 618.110(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. 618.120  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. 618.205 through 618.235(a).



Sec. 618.125  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 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

[[Page 150]]

the basis of sex, in any education program or activity operated by a 
recipient and that receives Federal financial assistance.



Sec. 618.130  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. 618.135  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. 618.140  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. 618.300 through 618.310 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. 618.135, 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 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

[[Page 151]]

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. 618.200  Application.

    Except as provided in Sec. Sec. 618.205 through 618.235(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. 618.205  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. 618.210  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. 618.215  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. 618.220  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. 618.225 and 618.230, and Sec. Sec. 618.300 through 
618.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec. 618.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec. 618.300 
through 618.310 apply to each recipient. A recipient to which Sec. Sec. 
618.300 through 618.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec. 618.300 through 
618.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec. 618.300 through 618.310 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. 618.300 through 618.310 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.

[[Page 152]]



Sec. 618.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec. 618.300 through 618.310 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. 618.300 through 
618.310.



Sec. 618.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 618.225 
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. 618.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec. 618.300 through 
618.310 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. 618.225 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. 618.235  Statutory amendments.

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

[[Page 153]]

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.
    (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.

[[Page 154]]



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



Sec. 618.300  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. 618.300 through Sec. Sec. 618.310 apply, 
except as provided in Sec. Sec. 618.225 and Sec. Sec. 618.230.
    (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. 618.300 through 618.310 
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. 618.300 through 618.310 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. 618.235(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. 618.305  Preference in admission.

    A recipient to which Sec. Sec. 618.300 through 618.310 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. 618.300 through 618.310.



Sec. 618.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec. 
618.300 through 618.310 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. 618.110(a), and may choose to 
undertake such efforts as affirmative action pursuant to Sec. 
618.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec. 618.300 through 618.310 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. 618.300 through 618.310.

[[Page 155]]



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



Sec. 618.400  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 
618.400 through 618.455 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. 618.300 through 618.310 do 
not apply, or an entity, not a recipient, to which Sec. Sec. 618.300 
through 618.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec. 618.400 
through 618.455, 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 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. 618.405  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,

[[Page 156]]

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. 618.410  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. 618.415  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.



Sec. 618.420  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,

[[Page 157]]

courses, services, and facilities comparable to each course, service, 
and facility offered in or through such schools.



Sec. 618.425  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. 618.430  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
    (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.

[[Page 158]]

    (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. 618.450.



Sec. 618.435  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. 
618.500 through 618.550.



Sec. 618.440  Health and insurance benefits and services.

    Subject to Sec. 618.235(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. 618.500 through 618.550 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. 618.445  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. 618.235(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 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. 618.450  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

[[Page 159]]

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. 618.455  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. 618.500  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 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.

[[Page 160]]

    (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. 618.500 
through 618.550, 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. 618.500 through 
618.550 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. 618.505  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. 618.510  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. 618.500 through 618.550.



Sec. 618.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (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. 618.520  Job classification and structure.

    A recipient shall not:

[[Page 161]]

    (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. 618.550.



Sec. 618.525  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. 618.515.
    (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. 618.530  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. 
618.235(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. 618.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec. 618.500 through 618.550 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,

[[Page 162]]

service, or benefit to members of the other sex.



Sec. 618.540  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. 618.545  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. 618.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec. 
618.500 through 618.550 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. 618.600  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. 618.605  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 45 CFR part 611.



PART 620_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)--Table 
of Contents




Sec.
620.25 How is this part organized?
620.50 How is this part written?
620.75 Do terms in this part have special meanings?

                            Subpart A_General

620.100 What does this part do?
620.105 Does this part apply to me?
620.110 What is the purpose of the nonprocurement debarment and 
          suspension system?
620.115 How does an exclusion restrict a person's involvement in covered 
          transactions?
620.120 May we grant an exception to let an excluded person participate 
          in a covered transaction?
620.125 Does an exclusion under the nonprocurement system affect a 
          person's eligibility for Federal procurement contracts?
620.130 Does exclusion under the Federal procurement system affect a 
          person's eligibility to participate in nonprocurement 
          transactions?
620.135 May the National Science Foundation exclude a person who is not 
          currently participating in a nonprocurement transaction?
620.140 How do I know if a person is excluded?
620.145 Does this part address persons who are disqualified, as well as 
          those who are excluded from nonprocurement transactions?

                     Subpart B_Covered Transactions

620.200 What is a covered transaction?
620.205 Why is it important to know if a particular transaction is a 
          covered transaction?

[[Page 163]]

620.210 Which nonprocurement transactions are covered transactions?
620.215 Which nonprocurement transactions are not covered transactions?
620.215 Are any procurement contracts included as covered transactions?
620.225 How do I know if a transaction in which I may participate is a 
          covered transaction?

    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons

620.300 What must I do before I enter into a covered transaction with 
          another person at the next lower tier?
620.305 May I enter into a covered transaction with an excluded or 
          disqualified person?
620.310 What must I do if a Federal agency excludes a person with whom I 
          am already doing business in a covered transaction?
620.315 May I use the services of an excluded person as a principal 
          under a covered transaction?
620.320 Must I verify that principals of my covered transactions are 
          eligible to participate?
620.325 What happens if I do business with an excluded person in a 
          covered transaction?
620.330 What requirements must I pass down to persons at lower tiers 
          with whom I intend to do business?

            Disclosing Information--Primary Tier Participants

620.335 What information must I provide before entering into a covered 
          transaction with the National Science Foundation?
620.340 If I disclose unfavorable information required under Sec. 
          620.335, will I be prevented from participating in the 
          transaction?
620.345 What happens if I fail to disclose the information required 
          under Sec. 620.335?
620.350 What must I do if I learn of the information required under 
          Sec. 620.335 after entering into a covered transaction with 
          the National Science Foundation?

             Disclosing Information--Lower Tier Participants

620.355 What information must I provide to a higher tier participant 
          before entering into a covered transaction with that 
          participant?
620.360 What happens if I fail to disclose the information required 
          under Sec. 620.355?
620.365 What must I do if I learn of information required under Sec. 
          620.355 after entering into a covered transaction with a 
          higher tier participant?

  Subpart D_Responsibilities of National Science Foundation Officials 
                         Regarding Transactions

620.400 May I enter into a transaction with an excluded or disqualified 
          person?
620.405 May I enter into a covered transaction with a participant if a 
          principal of the transaction is excluded?
620.410 May I approve a participant's use of the services of an excluded 
          person?
620.415 What must I do if a Federal agency excludes the participant or a 
          principal after I enter into a covered transaction?
620.420 May I approve a transaction with an excluded or disqualified 
          person at a lower tier?
620.425 When do I check to see if a person is excluded or disqualified?
620.430 How do I check to see if a person is excluded or disqualified?
620.435 What must I require of a primary tier participant?
620.440 What method do I use to communicate those requirements to 
          participants?
620.445 What action may I take if a primary tier participant knowingly 
          does business with an excluded or disqualified person?
620.450 What action may I take if a primary tier participant fails to 
          disclose the information required under Sec. 620.335?
620.455 What may I do if a lower tier participant fails to disclose the 
          information required under Sec. 620.355 to the next higher 
          tier?

                 Subpart E_Excluded Parties List System

620.500 What is the purpose of the Excluded Parties List System (EPLS)?
620.505 Who uses the EPLS?
620.510 Who maintains the EPLS?
620.515 What specific information is in the EPLS?
620.520 Who places the information into the EPLS?
620.525 Whom do I ask if I have questions about a person in the EPLS?
620.530 Where can I find the EPLS?

   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions

620.600 How do suspension and debarment actions start?
620.605 How does suspension differ from debarment?
620.610 What procedures does the National Science Foundation use in 
          suspension and debarment actions?
620.615 How does the National Science Foundation notify a person of a 
          suspension and debarment action?

[[Page 164]]

620.620 Do Federal agencies coordinate suspension and debarment actions?
620.625 What is the scope of a suspension or debarment action?
620.630 May the National Science Foundation impute the conduct of one 
          person to another?
620.635 May the National Science Foundation settle a debarment or 
          suspension action?
620.640 May a settlement include a voluntary exclusion?
620.645 Do other Federal agencies know if the National Science 
          Foundation agrees to a voluntary exclusion?

                          Subpart G_Suspension

620.700 When may the suspending official issue a suspension?
620.705 What does the suspending official consider in issuing a 
          suspension?
620.710 When does a suspension take effect?
620.715 What notice does the suspending official give me if I am 
          suspended?
620.720 How may I contest a suspension?
620.725 How much time do I have to contest a suspension?
620.730 What information must I provide to the suspending official if I 
          contest a suspension?
620.735 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the suspension is based?
620.740 Are suspension proceedings formal?
620.745 How is fact-finding conducted?
620.750 What does the suspending official consider in deciding whether 
          to continue or terminate my suspension?
620.755 When will I know whether the suspension is continued or 
          terminated?
620.760 How long may my suspension last?

                           Subpart H_Debarment

620.800 What are the causes for debarment?
620.805 What notice does the debarring official give me if I am proposed 
          for debarment?
620.810 When does a debarment take effect?
620.815 How may I contest a proposed debarment?
620.820 How much time do I have to contest a proposed debarment?
620.825 What information must I provide to the debarring official if I 
          contest a proposed debarment?
620.830 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the proposed debarment is based?
620.835 Are debarment proceedings formal?
620.840 How is fact-finding conducted?
620.845 What does the debarring official consider in deciding whether to 
          debar me?
620.850 What is the standard of proof in a debarment action?
620.855 Who has the burden of proof in a debarment action?
620.860 What factors may influence the debarring official's decision?
620.865 How long may my debarment last?
620.870 When do I know if the debarring official debars me?
620.875 May I ask the debarring official to reconsider a decision to 
          debar me?
620.880 What factors may influence the debarring official during 
          reconsideration?
620.885 May the debarring official extend a debarment?

                          Subpart I_Definitions

620.900 Adequate evidence.
620.905 Affiliate.
620.910 Agency.
620.915 Agent or representative.
620.920 Civil judgment.
620.925 Conviction.
620.930 Debarment.
620.935 Debarring official.
620.940 Disqualified.
620.945 Excluded or exclusion.
620.950 Excluded Parties List System.
620.955 Indictment.
620.960 Ineligible or ineligibility.
620.965 Legal proceedings.
620.970 Nonprocurement transaction.
620.975 Notice.
620.980 Participant.
620.985 Person.
620.990 Preponderance of the evidence.
620.995 Principal.
620.1000 Respondent.
620.1005 State.
620.1010 Suspending official.
620.1015 Suspension.
620.1020 Voluntary exclusion or voluntarily excluded.

Subpart J [Reserved]

Appendix to Part 620--Covered Transactions

    Authority: 42 U.S.C. 1870(a); 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: 68 FR 66544, 66633, Nov. 26, 2003, unless otherwise noted.



Sec. 620.25  How is this part organized?

    (a) This part is subdivided into ten subparts. Each subpart contains 
information related to a broad topic or specific audience with special 
responsibilities, as shown in the following table:

------------------------------------------------------------------------
                                             You will find provisions
            In subpart . . .                     related to . . .
------------------------------------------------------------------------
A......................................  general information about this
                                          rule.

[[Page 165]]

 
B......................................  the types of National Science
                                          Foundation transactions that
                                          are covered by the
                                          Governmentwide nonprocurement
                                          suspension and debarment
                                          system.
C......................................  the responsibilities of persons
                                          who participate in covered
                                          transactions.
D......................................  the responsibilities of
                                          National Science Foundation
                                          officials who are authorized
                                          to enter into covered
                                          transactions.
E......................................  the responsibilities of Federal
                                          agencies for the Excluded
                                          Parties List System
                                          (Disseminated by the General
                                          Services Administration).
F......................................  the general principles
                                          governing suspension,
                                          debarment, voluntary exclusion
                                          and settlement.
G......................................  suspension actions.
H......................................  debarment actions.
I......................................  definitions of terms used in
                                          this part.
J......................................  [Reserved]
------------------------------------------------------------------------

    (b) The following table shows which subparts may be of special 
interest to you, depending on who you are:

------------------------------------------------------------------------
             If you are . . .                   See subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a         A, B, C, and I.
 nonprocurement transaction.
(2) a respondent in a suspension action...  A, B, F, G and I.
(3) a respondent in a debarment action....  A, B, F, H and I.
(4) a suspending official.................  A, B, D, E, F, G and I.
(5) a debarring official..................  A, B, D, E, F, H and I.
(6) a (n) National Science Foundation       A, B, D, E and I.
 official authorized to enter into a
 covered transaction.
(7) Reserved..............................  J.
------------------------------------------------------------------------



Sec. 620.50  How is this part written?

    (a) This part uses a ``plain language'' format to make it easier for 
the general public and business community to use. The section headings 
and text, often in the form of questions and answers, must be read 
together.
    (b) Pronouns used within this part, such as ``I'' and ``you,'' 
change from subpart to subpart depending on the audience being 
addressed. The pronoun ``we'' always is the National Science Foundation.
    (c) The ``Covered Transactions'' diagram in the appendix to this 
part shows the levels or ``tiers'' at which the National Science 
Foundation enforces an exclusion under this part.



Sec. 620.75  Do terms in this part have special meanings?

    This part uses terms throughout the text that have special meaning. 
Those terms are defined in Subpart I of this part. For example, three 
important terms are--
    (a) Exclusion or excluded, which refers only to discretionary 
actions taken by a suspending or debarring official under this part or 
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
    (b) Disqualification or disqualified, which refers to prohibitions 
under specific statutes, executive orders (other than Executive Order 
12549 and Executive Order 12689), or other authorities. 
Disqualifications frequently are not subject to the discretion of an 
agency official, may have a different scope than exclusions, or have 
special conditions that apply to the disqualification; and
    (c) Ineligibility or ineligible, which generally refers to a person 
who is either excluded or disqualified.



                            Subpart A_General



Sec. 620.100  What does this part do?

    This part adopts a governmentwide system of debarment and suspension 
for National Science Foundation nonprocurement activities. It also 
provides for reciprocal exclusion of persons who have been excluded 
under the Federal Acquisition Regulation, and provides for the 
consolidated listing of all persons who are excluded, or disqualified by 
statute, executive order, or other legal authority. This part satisfies 
the requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 
6101 note (Section 2455, Public Law 103-355, 108 Stat. 3327).



Sec. 620.105  Does this part apply to me?

    Portions of this part (see table at Sec. 620.25(b)) apply to you if 
you are a(n)--
    (a) Person who has been, is, or may reasonably be expected to be, a 
participant or principal in a covered transaction;
    (b) Respondent (a person against whom the National Science 
Foundation has initiated a debarment or suspension action);
    (c) National Science Foundation debarring or suspending official; or

[[Page 166]]

    (d) National Science Foundation official who is authorized to enter 
into covered transactions with non-Federal parties.



Sec. 620.110  What is the purpose of the nonprocurement debarment and 
suspension system?

    (a) To protect the public interest, the Federal Government ensures 
the integrity of Federal programs by conducting business only with 
responsible persons.
    (b) A Federal agency uses the nonprocurement debarment and 
suspension system to exclude from Federal programs persons who are not 
presently responsible.
    (c) An exclusion is a serious action that a Federal agency may take 
only to protect the public interest. A Federal agency may not exclude a 
person or commodity for the purposes of punishment.



Sec. 620.115  How does an exclusion restrict a person's involvement in 
covered transactions?

    With the exceptions stated in Sec. Sec. 620.120, 620.315, and 
620.420, a person who is excluded by the National Science Foundation or 
any other Federal agency may not:
    (a) Be a participant in a(n) National Science Foundation transaction 
that is a covered transaction under subpart B of this part;
    (b) Be a participant in a transaction of any other Federal agency 
that is a covered transaction under that agency's regulation for 
debarment and suspension; or
    (c) Act as a principal of a person participating in one of those 
covered transactions.



Sec. 620.120  May we grant an exception to let an excluded person 
participate in a covered transaction?

    (a) The Director or designee may grant an exception permitting an 
excluded person to participate in a particular covered transaction. If 
the Director or designee grants an exception, the exception must be in 
writing and state the reason(s) for deviating from the governmentwide 
policy in Executive Order 12549.
    (b) An exception granted by one agency for an excluded person does 
not extend to the covered transactions of another agency.



Sec. 620.125  Does an exclusion under the nonprocurement system affect 
a person's eligibility for Federal procurement contracts?

    If any Federal agency excludes a person under its nonprocurement 
common rule on or after August 25, 1995, the excluded person is also 
ineligible to participate in Federal procurement transactions under the 
FAR. Therefore, an exclusion under this part has reciprocal effect in 
Federal procurement transactions.



Sec. 620.130  Does exclusion under the Federal procurement system affect 
a person's eligibility to participate in nonprocurement transactions?

    If any Federal agency excludes a person under the FAR on or after 
August 25, 1995, the excluded person is also ineligible to participate 
in nonprocurement covered transactions under this part. Therefore, an 
exclusion under the FAR has reciprocal effect in Federal nonprocurement 
transactions.



Sec. 620.135  May the National Science Foundation exclude a person who 
is not currently participating in a nonprocurement transaction?

    Given a cause that justifies an exclusion under this part, we may 
exclude any person who has been involved, is currently involved, or may 
reasonably be expected to be involved in a covered transaction.



Sec. 620.140  How do I know if a person is excluded?

    Check the Excluded Parties List System (EPLS) to determine whether a 
person is excluded. The General Services Administration (GSA) maintains 
the EPLS and makes it available, as detailed in subpart E of this part. 
When a Federal agency takes an action to exclude a person under the 
nonprocurement or procurement debarment and suspension system, the 
agency enters the information about the excluded person into the EPLS.

[[Page 167]]



Sec. 620.145  Does this part address persons who are disqualified, as 
well as those who are excluded from nonprocurement transactions?

    Except if provided for in Subpart J of this part, this part--
    (a) Addresses disqualified persons only to--
    (1) Provide for their inclusion in the EPLS; and
    (2) State responsibilities of Federal agencies and participants to 
check for disqualified persons before entering into covered 
transactions.
    (b) Does not specify the--
    (1) National Science Foundation transactions for which a 
disqualified person is ineligible. Those transactions vary on a case-by-
case basis, because they depend on the language of the specific statute, 
Executive order, or regulation that caused the disqualification;
    (2) Entities to which the disqualification applies; or
    (3) Process that the agency uses to disqualify a person. Unlike 
exclusion, disqualification is frequently not a discretionary action 
that a Federal agency takes.



                     Subpart B_Covered Transactions



Sec. 620.200  What is a covered transaction?

    A covered transaction is a nonprocurement or procurement transaction 
that is subject to the prohibitions of this part. It may be a 
transaction at--
    (a) The primary tier, between a Federal agency and a person (see 
appendix to this part); or
    (b) A lower tier, between a participant in a covered transaction and 
another person.



Sec. 620.205  Why is it important if a particular transaction is a 
covered transaction?

    The importance of a covered transaction depends upon who you are.
    (a) As a participant in the transaction, you have the 
responsibilities laid out in Subpart C of this part. Those include 
responsibilities to the person or Federal agency at the next higher tier 
from whom you received the transaction, if any. They also include 
responsibilities if you subsequently enter into other covered 
transactions with persons at the next lower tier.
    (b) As a Federal official who enters into a primary tier 
transaction, you have the responsibilities laid out in subpart D of this 
part.
    (c) As an excluded person, you may not be a participant or principal 
in the transaction unless--
    (1) The person who entered into the transaction with you allows you 
to continue your involvement in a transaction that predates your 
exclusion, as permitted under Sec. 620.310 or Sec. 620.415; or
    (2) A(n) National Science Foundation official obtains an exception 
from the Director or designee to allow you to be involved in the 
transaction, as permitted under Sec. 620.120.



Sec. 620.210  Which nonprocurement transactions are covered transactions?

    All nonprocurement transactions, as defined in Sec. 620.970, are 
covered transactions unless listed in Sec. 620.215. (See appendix to 
this part.)



Sec. 620.215  Which nonprocurement transactions are not covered 
transactions?

    The following types of nonprocurement transactions are not covered 
transactions:
    (a) A direct award to--
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization;
    (3) An entity owned (in whole or in part) or controlled by a foreign 
government; or
    (4) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.
    (b) A benefit 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). For example, if 
a person receives social security benefits under the Supplemental 
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et 
seq., those benefits are not covered transactions and, therefore, are 
not affected if the person is excluded.
    (c) Federal employment.

[[Page 168]]

    (d) A transaction that the National Science Foundation needs to 
respond to a national or agency-recognized emergency or disaster.
    (e) A permit, license, certificate, or similar instrument issued as 
a means to regulate public health, safety, or the environment, unless 
the National Science Foundation specifically designates it to be a 
covered transaction.
    (f) An incidental benefit that results from ordinary governmental 
operations.
    (g) Any other transaction if the application of an exclusion to the 
transaction is prohibited by law.



Sec. 620.220  Are any procurement contracts included as covered 
transactions?

    (a) Covered transactions under this part--
    (1) Do not include any procurement contracts awarded directly by a 
Federal agency; but
    (2) Do include some procurement contracts awarded by non-Federal 
participants in nonprocurement covered transactions (see appendix to 
this part).
    (b) Specifically, a contract for goods or services is a covered 
transaction if any of the following applies:
    (1) The contract is awarded by a participant in a nonprocurement 
transaction that is covered under Sec. 620.210, and the amount of the 
contract is expected to equal or exceed $25,000.
    (2) The contract requires the consent of a(n) National Science 
Foundation official. In that case, the contract, regardless of the 
amount, always is a covered transaction, and it does not matter who 
awarded it. For example, it could be a subcontract awarded by a 
contractor at a tier below a nonprocurement transaction, as shown in the 
appendix to this part.
    (3) The contract is for federally-required audit services.



Sec. 620.225  How do I know if a transaction in which I may participate 
is a covered transaction?

    As a participant in a transaction, you will know that it is a 
covered transaction because the agency regulations governing the 
transaction, the appropriate agency official, or participant at the next 
higher tier who enters into the transaction with you, will tell you that 
you must comply with applicable portions of this part.



    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons



Sec. 620.300  What must I do before I enter into a covered transaction 
with another person at the next lower tier?

    When you enter into a covered transaction with another person at the 
next lower tier, you must verify that the person with whom you intend to 
do business is not excluded or disqualified. You do this by:
    (a) Checking the EPLS; or
    (b) Collecting a certification from that person if allowed by this 
rule; or
    (c) Adding a clause or condition to the covered transaction with 
that person.



Sec. 620.305  May I enter into a covered transaction with an excluded 
or disqualified person?

    (a) You as a participant may not enter into a covered transaction 
with an excluded person, unless the National Science Foundation grants 
an exception under Sec. 620.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you have obtained an 
exception under the disqualifying statute, Executive order, or 
regulation.



Sec. 620.310  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?

    (a) You as a participant may continue covered transactions with an 
excluded person if the transactions were in existence when the agency 
excluded the person. However, you are not required to continue the 
transactions, and you may consider termination. You should make a 
decision about whether to terminate and the type of termination action, 
if any, only after a thorough review to ensure that the action is proper 
and appropriate.
    (b) You may not renew or extend covered transactions (other than no-
cost

[[Page 169]]

time extensions) with any excluded person, unless the National Science 
Foundation grants an exception under Sec. 620.120.



Sec. 620.315  May I use the services of an excluded person as a principal 
under a covered transaction?

    (a) You as a participant may continue to use the services of an 
excluded person as a principal under a covered transaction if you were 
using the services of that person in the transaction before the person 
was excluded. However, you are not required to continue using that 
person's services as a principal. You should make a decision about 
whether to discontinue that person's services only after a thorough 
review to ensure that the action is proper and appropriate.
    (b) You may not begin to use the services of an excluded person as a 
principal under a covered transaction unless the National Science 
Foundation grants an exception under Sec. 620.120.



Sec. 620.320  Must I verify that principals of my covered transactions 
are eligible to participate?

    Yes, you as a participant are responsible for determining whether 
any of your principals of your covered transactions is excluded or 
disqualified from participating in the transaction. You may decide the 
method and frequency by which you do so. You may, but you are not 
required to, check the EPLS.



Sec. 620.325  What happens if I do business with an excluded person in 
a covered transaction?

    If as a participant you knowingly do business with an excluded 
person, we may disallow costs, annul or terminate the transaction, issue 
a stop work order, debar or suspend you, or take other remedies as 
appropriate.



Sec. 620.330  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

    Before entering into a covered transaction with a participant at the 
next lower tier, you must require that participant to--
    (a) Comply with this subpart as a condition of participation in the 
transaction. You may do so using any method(s), unless Sec. 620.440 
requires you to use specific methods.
    (b) Pass the requirement to comply with this subpart to each person 
with whom the participant enters into a covered transaction at the next 
lower tier.

            Disclosing Information--Primary Tier Participants



Sec. 620.335  What information must I provide before entering into a 
covered transaction with the National Science Foundation?

    Before you enter into a covered transaction at the primary tier, you 
as the participant must notify the National Science Foundation office 
that is entering into the transaction with you, if you know that you or 
any of the principals for that covered transaction:
    (a) Are presently excluded or disqualified;
    (b) Have been convicted within the preceding three years of any of 
the offenses listed in Sec. 620.800(a) or had a civil judgment rendered 
against you for one of those offenses within that time period;
    (c) Are presently indicted for or otherwise criminally or civilly 
charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses listed in Sec. 620.800(a); or
    (d) Have had one or more public transactions (Federal, State, or 
local) terminated within the preceding three years for cause or default.



Sec. 620.340  If I disclose unfavorable information required under 
Sec. 620.335, will I be prevented from participating in the transaction?

    As a primary tier participant, your disclosure of unfavorable 
information about yourself or a principal under Sec. 620.335 will not 
necessarily cause us to deny your participation in the covered 
transaction. We will consider the information when we determine whether 
to enter into the covered transaction. We also will consider any 
additional information or explanation that you elect to submit with the 
disclosed information.

[[Page 170]]



Sec. 620.345  What happens if I fail to disclose information required 
under Sec. 620.335?

    If we later determine that you failed to disclose information under 
Sec. 620.335 that you knew at the time you entered into the covered 
transaction, we may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec. 620.350  What must I do if I learn of information required under 

Sec. 620.335 after entering into a covered transaction with the National 
Science 
          Foundation?

    At any time after you enter into a covered transaction, you must 
give immediate written notice to the National Science Foundation office 
with which you entered into the transaction if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec. 
620.335; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. 620.335.

             Disclosing Information--Lower Tier Participants



Sec. 620.355  What information must I provide to a higher tier participant 
before entering into a covered transaction with that participant?

    Before you enter into a covered transaction with a person at the 
next higher tier, you as a lower tier participant must notify that 
person if you know that you or any of the principals are presently 
excluded or disqualified.



Sec. 620.360  What happens if I fail to disclose the information required 
under Sec. 620.355?

    If we later determine that you failed to tell the person at the 
higher tier that you were excluded or disqualified at the time you 
entered into the covered transaction with that person, we may pursue any 
available remedies, including suspension and debarment.



Sec. 620.365  What must I do if I learn of information required under 

Sec. 620.355 after entering into a covered transaction with a higher 
tier participant?

    At any time after you enter into a lower tier covered transaction 
with a person at a higher tier, you must provide immediate written 
notice to that person if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec. 
620.355; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. 620.355.



  Subpart D_Responsibilities of National Science Foundation Officials 
                         Regarding Transactions



Sec. 620.400  May I enter into a transaction with an excluded or 
disqualified person?

    (a) You as an agency official may not enter into a covered 
transaction with an excluded person unless you obtain an exception under 
Sec. 620.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you obtain a waiver or 
exception under the statute, Executive order, or regulation that is the 
basis for the person's disqualification.



Sec. 620.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?

    As an agency official, you may not enter into a covered transaction 
with a participant if you know that a principal of the transaction is 
excluded, unless you obtain an exception under Sec. 620.120.



Sec. 620.410  May I approve a participant's use of the services of an 
excluded person?

    After entering into a covered transaction with a participant, you as 
an agency official may not approve a participant's use of an excluded 
person as a principal under that transaction, unless you obtain an 
exception under Sec. 620.120.

[[Page 171]]



Sec. 620.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?

    (a) You as an agency official may continue covered transactions with 
an excluded person, or under which an excluded person is a principal, if 
the transactions were in existence when the person was excluded. You are 
not required to continue the transactions, however, and you may consider 
termination. You should make a decision about whether to terminate and 
the type of termination action, if any, only after a thorough review to 
ensure that the action is proper.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an 
excluded person is a principal, unless you obtain an exception under 
Sec. 620.120.



Sec. 620.420  May I approve a transaction with an excluded or disqualified 
person at a lower tier?

    If a transaction at a lower tier is subject to your approval, you as 
an agency official may not approve--
    (a) A covered transaction with a person who is currently excluded, 
unless you obtain an exception under Sec. 620.120; or
    (b) A transaction with a person who is disqualified from that 
transaction, unless you obtain a waiver or exception under the statute, 
Executive order, or regulation that is the basis for the person's 
disqualification.



Sec. 620.425  When do I check to see if a person is excluded or disqualified?

    As an agency official, you must check to see if a person is excluded 
or disqualified before you--
    (a) Enter into a primary tier covered transaction;
    (b) Approve a principal in a primary tier covered transaction;
    (c) Approve a lower tier participant if agency approval of the lower 
tier participant is required; or
    (d) Approve a principal in connection with a lower tier transaction 
if agency approval of the principal is required.



Sec. 620.430  How do I check to see if a person is excluded or disqualified?

    You check to see if a person is excluded or disqualified in two 
ways:
    (a) You as an agency official must check the EPLS when you take any 
action listed in Sec. 620.425.
    (b) You must review information that a participant gives you, as 
required by Sec. 620.335, about its status or the status of the 
principals of a transaction.



Sec. 620.435  What must I require of a primary tier participant?

    You as an agency official must require each participant in a primary 
tier covered transaction to--
    (a) Comply with subpart C of this part as a condition of 
participation in the transaction; and
    (b) Communicate the requirement to comply with Subpart C of this 
part to persons at the next lower tier with whom the primary tier 
participant enters into covered transactions.



Sec. 620.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with subpart C of this part and requiring them to include a 
similar term or condition in lower tier covered transactions.



Sec. 620.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?

    If a participant knowingly does business with an excluded or 
disqualified person, you as an agency official may refer the matter for 
suspension and debarment consideration. You may also disallow costs, 
annul or terminate the transaction, issue a stop work order, or take any 
other appropriate remedy.



Sec. 620.450  What action may I take if a primary tier participant 
fails to disclose the information required under Sec. 620.335?

    If you as an agency official determine that a participant failed to 
disclose information, as required by Sec. 620.335, at the time it 
entered into a

[[Page 172]]

covered transaction with you, you may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec. 620.455  What may I do if a lower tier participant fails to 

disclose the information required under Sec. 620.355 to the next 
higher tier?

    If you as an agency official determine that a lower tier participant 
failed to disclose information, as required by Sec. 620.355, at the 
time it entered into a covered transaction with a participant at the 
next higher tier, you may pursue any remedies available to you, 
including the initiation of a suspension or debarment action.



                 Subpart E_Excluded Parties List System



Sec. 620.500  What is the purpose of the Excluded Parties List System 
(EPLS)?

    The EPLS is a widely available source of the most current 
information about persons who are excluded or disqualified from covered 
transactions.



Sec. 620.505  Who uses the EPLS?

    (a) Federal agency officials use the EPLS to determine whether to 
enter into a transaction with a person, as required under Sec. 620.430.
    (b) Participants also may, but are not required to, use the EPLS to 
determine if--
    (1) Principals of their transactions are excluded or disqualified, 
as required under Sec. 620.320; or
    (2) Persons with whom they are entering into covered transactions at 
the next lower tier are excluded or disqualified.
    (c) The EPLS is available to the general public.



Sec. 620.510  Who maintains the EPLS?

    In accordance with the OMB guidelines, the General Services 
Administration (GSA) maintains the EPLS. When a Federal agency takes an 
action to exclude a person under the nonprocurement or procurement 
debarment and suspension system, the agency enters the information about 
the excluded person into the EPLS.



Sec. 620.515  What specific information is in the EPLS?

    (a) At a minimum, the EPLS indicates--
    (1) The full name (where available) and address of each excluded or 
disqualified person, in alphabetical order, with cross references if 
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 the action;
    (6) The agency and name and telephone number of the agency point of 
contact for the action; and
    (7) The Dun and Bradstreet Number (DUNS), or other similar code 
approved by the GSA, of the excluded or disqualified person, if 
available.
    (b)(1) The database for the EPLS includes a field for the Taxpayer 
Identification Number (TIN) (the social security number (SSN) for an 
individual) of an excluded or disqualified person.
    (2) Agencies disclose the SSN of an individual to verify the 
identity of an individual, only if permitted under the Privacy Act of 
1974 and, if appropriate, the Computer Matching and Privacy Protection 
Act of 1988, as codified in 5 U.S.C. 552(a).



Sec. 620.520  Who places the information into the EPLS?

    Federal officials who take actions to exclude persons under this 
part or officials who are responsible for identifying disqualified 
persons must enter the following information about those persons into 
the EPLS:
    (a) Information required by Sec. 620.515(a);
    (b) The Taxpayer Identification Number (TIN) of the excluded or 
disqualified person, including the social security number (SSN) for an 
individual, if the number is available and may be disclosed under law;
    (c) Information about an excluded or disqualified person, generally 
within five working days, after--
    (1) Taking an exclusion action;

[[Page 173]]

    (2) Modifying or rescinding an exclusion action;
    (3) Finding that a person is disqualified; or
    (4) Finding that there has been a change in the status of a person 
who is listed as disqualified.



Sec. 620.525  Whom do I ask if I have questions about a person in the EPLS?

    If you have questions about a person in the EPLS, ask the point of 
contact for the Federal agency that placed the person's name into the 
EPLS. You may find the agency point of contact from the EPLS.



Sec. 620.530  Where can I find the EPLS?

    (a) You may access the EPLS through the Internet, currently at 
http://epls.arnet.gov.
    (b) As of November 26, 2003, you may also subscribe to a printed 
version. However, we anticipate discontinuing the printed version. Until 
it is discontinued, you may obtain the printed version by purchasing a 
yearly subscription from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402, or by calling the 
Government Printing Office Inquiry and Order Desk at (202) 783-3238.



   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions



Sec. 620.600  How do suspension and debarment actions start?

    When we receive information from any source concerning a cause for 
suspension or debarment, we will promptly report and investigate it. We 
refer the question of whether to suspend or debar you to our suspending 
or debarring official for consideration, if appropriate.



Sec. 620.605  How does suspension differ from debarment?

    Suspension differs from debarment in that--

------------------------------------------------------------------------
        A suspending official . . .          A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary       Imposes debarment for a
 status of ineligibility for procurement     specified period as a final
 and nonprocurement transactions, pending    determination that a person
 completion of an investigation or legal     is not presently
 proceedings.                                responsible.
(b) Must--................................  Must conclude, based on a
(1) Have adequate evidence that there may    preponderance of the
 be a cause for debarment of a person; and.  evidence, that the person
(2) Conclude that immediate action is        has engaged in conduct that
 necessary to protect the Federal interest.  warrants debarment.
(c) Usually imposes the suspension first,   Imposes debarment after
 and then promptly notifies the suspended    giving the respondent
 person, giving the person an opportunity    notice of the action and an
 to contest the suspension and have it       opportunity to contest the
 lifted.                                     proposed debarment.
------------------------------------------------------------------------



Sec. 620.610  What procedures does the National Science Foundation use in 
suspension and debarment actions?

    In deciding whether to suspend or debar you, we handle the actions 
as informally as practicable, consistent with principles of fundamental 
fairness.
    (a) For suspension actions, we use the procedures in this subpart 
and subpart G of this part.
    (b) For debarment actions, we use the procedures in this subpart and 
subpart H of this part.



Sec. 620.615  How does the National Science Foundation notify a person of 
a suspension or debarment action?

    (a) The suspending or debarring official sends a written notice to 
the last known street address, facsimile number, or e-mail address of--
    (1) You or your identified counsel; or
    (2) Your agent for service of process, or any of your partners, 
officers, directors, owners, or joint venturers.
    (b) The notice is effective if sent to any of these persons.



Sec. 620.620  Do Federal agencies coordinate suspension and debarment 
actions?

    Yes, when more than one Federal agency has an interest in a 
suspension or debarment, the agencies may consider designating one 
agency as the lead agency for making the decision. Agencies are 
encouraged to establish

[[Page 174]]

methods and procedures for coordinating their suspension and debarment 
actions.



Sec. 620.625  What is the scope of a suspension or debarment?

    If you are suspended or debarred, the suspension or debarment is 
effective as follows:
    (a) Your suspension or debarment constitutes suspension or debarment 
of all of your divisions and other organizational elements from all 
covered transactions, unless the suspension or debarment decision is 
limited--
    (1) By its terms to one or more specifically identified individuals, 
divisions, or other organizational elements; or
    (2) To specific types of transactions.
    (b) Any affiliate of a participant may be included in a suspension 
or debarment action if the suspending or debarring official--
    (1) Officially names the affiliate in the notice; and
    (2) Gives the affiliate an opportunity to contest the action.



Sec. 620.630  May the National Science Foundation impute conduct of one 
person to another?

    For purposes of actions taken under this rule, we may impute conduct 
as follows:
    (a) Conduct imputed from an individual to an organization. We may 
impute the fraudulent, criminal, or other improper conduct of any 
officer, director, shareholder, partner, employee, or other individual 
associated with an organization, to that organization when the improper 
conduct occurred in connection with the individual's performance of 
duties for or on behalf of that organization, or with the organization's 
knowledge, approval or acquiescence. The organization's acceptance of 
the benefits derived from the conduct is evidence of knowledge, approval 
or acquiescence.
    (b) Conduct imputed from an organization to an individual, or 
between individuals. We may impute the fraudulent, criminal, or other 
improper conduct of any organization to an individual, or from one 
individual to another individual, if the individual to whom the improper 
conduct is imputed either participated in, had knowledge of, or reason 
to know of the improper conduct.
    (c) Conduct imputed from one organization to another organization. 
We may impute the fraudulent, criminal, or other improper conduct of one 
organization to another organization when the improper conduct occurred 
in connection with a partnership, joint venture, joint application, 
association or similar arrangement, or when the organization to whom the 
improper conduct is imputed has the power to direct, manage, control or 
influence the activities of the organization responsible for the 
improper conduct. Acceptance of the benefits derived from the conduct is 
evidence of knowledge, approval or acquiescence.



Sec. 620.635  May the National Science Foundation settle a debarment or 
suspension action?

    Yes, we may settle a debarment or suspension action at any time if 
it is in the best interest of the Federal Government.



Sec. 620.640  May a settlement include a voluntary exclusion?

    Yes, if we enter into a settlement with you in which you agree to be 
excluded, it is called a voluntary exclusion and has governmentwide 
effect.



Sec. 620.645  Do other Federal agencies know if the National Science 
Foundation agrees to a voluntary exclusion?

    (a) Yes, we enter information regarding a voluntary exclusion into 
the EPLS.
    (b) Also, any agency or person may contact us to find out the 
details of a voluntary exclusion.



                          Subpart G_Suspension



Sec. 620.700  When may the suspending official issue a suspension?

    Suspension is a serious action. Using the procedures of this subpart 
and subpart F of this part, the suspending official may impose 
suspension only when that official determines that--
    (a) There exists an indictment for, or other adequate evidence to 
suspect, an offense listed under Sec. 620.800(a), or

[[Page 175]]

    (b) There exists adequate evidence to suspect any other cause for 
debarment listed under Sec. 620.800(b) through (d); and
    (c) Immediate action is necessary to protect the public interest.



Sec. 620.705  What does the suspending official consider in issuing a 
suspension?

    (a) In determining the adequacy of the evidence to support the 
suspension, the suspending official considers 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. During this assessment, the suspending 
official may examine the basic documents, including grants, cooperative 
agreements, loan authorizations, contracts, and other relevant 
documents.
    (b) An indictment, conviction, civil judgment, or other official 
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of 
suspension actions.
    (c) In deciding whether immediate action is needed to protect the 
public interest, the suspending official has wide discretion. For 
example, the suspending official may infer the necessity for immediate 
action to protect the public interest either from the nature of the 
circumstances giving rise to a cause for suspension or from potential 
business relationships or involvement with a program of the Federal 
Government.



Sec. 620.710  When does a suspension take effect?

    A suspension is effective when the suspending official signs the 
decision to suspend.



Sec. 620.715  What notice does the suspending official give me if I am 
suspended?

    After deciding to suspend you, the suspending official promptly 
sends you a Notice of Suspension advising you--
    (a) That you have been suspended;
    (b) That your suspension is based on--
    (1) An indictment;
    (2) A conviction;
    (3) Other adequate evidence that you have committed irregularities 
which seriously reflect on the propriety of further Federal Government 
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your 
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on 
notice without disclosing the Federal Government's evidence;
    (d) Of the cause(s) upon which we relied under Sec. 620.700 for 
imposing suspension;
    (e) That your suspension is for a temporary period pending the 
completion of an investigation or resulting legal or debarment 
proceedings;
    (f) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other National Science Foundation procedures governing 
suspension decision making; and
    (g) Of the governmentwide effect of your suspension from procurement 
and nonprocurement programs and activities.



Sec. 620.720  How may I contest a suspension?

    If you as a respondent wish to contest a suspension, you or your 
representative must provide the suspending official with information in 
opposition to the suspension. You may do this orally or in writing, but 
any information provided orally that you consider important must also be 
submitted in writing for the official record.



Sec. 620.725  How much time do I have to contest a suspension?

    (a) As a respondent you or your representative must either send, or 
make rrangements to appear and present, the information and argument to 
the suspending official within 30 days after you receive the Notice of 
Suspension.
    (b) We consider the notice to be received by you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or

[[Page 176]]

    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec. 620.730  What information must I provide to the suspending official 
if I contest a suspension?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the suspending official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Suspension. A general denial is insufficient to raise a 
genuine dispute over facts material to the suspension;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, state, 
or local agencies, including administrative agreements that affect only 
those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Suspension that grew out of facts relevant to the cause(s) stated in the 
notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the National Science Foundation may seek further criminal, 
civil or administrative action against you, as appropriate.



Sec. 620.735  Under what conditions do I get an additional opportunity to 
challenge the facts on which the suspension is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the suspending official determines that--
    (1) Your suspension is based upon an indictment, conviction, civil 
judgment, or other finding by a Federal, State, or local body for which 
an opportunity to contest the facts was provided;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Suspension;
    (3) The issues raised in your presentation in opposition to the 
suspension are not factual in nature, or are not material to the 
suspending official's initial decision to suspend, or the official's 
decision whether to continue the suspension; or
    (4) On the basis of advice from the Department of Justice, an office 
of the United States Attorney, a State attorney general's office, or a 
State or local prosecutor's office, that substantial interests of the 
government in pending or contemplated legal proceedings based on the 
same facts as the suspension would be prejudiced by conducting fact-
finding.
    (b) You will have an opportunity to challenge the facts if the 
suspending official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the suspension.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the suspending official or designee must conduct 
additional proceedings to resolve those facts.



Sec. 620.740  Are suspension proceedings formal?

    (a) Suspension proceedings are conducted in a fair and informal 
manner. The suspending official may use flexible procedures to allow you 
to present matters in opposition. In so doing, the suspending official 
is not required to follow formal rules of evidence or procedure in 
creating an official record upon which the official will base a final 
suspension decision.
    (b) You as a respondent or your representative must submit any 
documentary evidence you want the suspending official to consider.



Sec. 620.745  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the National Science Foundation agree to 
waive it in advance. If you want a copy of the transcribed record, you 
may purchase it.

[[Page 177]]



Sec. 620.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?

    (a) The suspending official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the suspending official's initial 
decision to suspend you;
    (2) Any further information and argument presented in support of, or 
opposition to, the suspension; and
    (3) Any transcribed record of fact-finding proceedings.
    (b) The suspending official may refer disputed material facts to 
another official for findings of fact. The suspending official may 
reject any resulting findings, in whole or in part, only after 
specifically determining them to be arbitrary, capricious, or clearly 
erroneous.



Sec. 620.755  When will I know whether the suspension is continued or 
terminated?

    The suspending official must make a written decision whether to 
continue, modify, or terminate your suspension within 45 days of closing 
the official record. The official record closes upon the suspending 
official's receipt of final submissions, information and findings of 
fact, if any. The suspending official may extend that period for good 
cause.



Sec. 620.760  How long may my suspension last?

    (a) If legal or debarment proceedings are initiated at the time of, 
or during your suspension, the suspension may continue until the 
conclusion of those proceedings. However, if proceedings are not 
initiated, a suspension may not exceed 12 months.
    (b) The suspending official may extend the 12 month limit under 
paragraph (a) of this section for an additional 6 months if an office of 
a U.S. Assistant Attorney General, U.S. Attorney, or other responsible 
prosecuting official requests an extension in writing. In no event may a 
suspension exceed 18 months without initiating proceedings under 
paragraph (a) of this section.
    (c) The suspending official must notify the appropriate officials 
under paragraph (b) of this section of an impending termination of a 
suspension at least 30 days before the 12 month period expires to allow 
the officials an opportunity to request an extension.



                           Subpart H_Debarment



Sec. 620.800  What are the causes for debarment?

    We may debar a person 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, tax 
evasion, 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 your 
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, or a procurement debarment by any Federal agency taken 
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;

[[Page 178]]

    (2) Knowingly doing business with an ineligible person, except as 
permitted under Sec. 620.120;
    (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. 620.640 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it 
affects your present responsibility.



Sec. 620.805  What notice does the debarring official give me if I am 
proposed for debarment?

    After consideration of the causes in Sec. 620.800 of this subpart, 
if the debarring official proposes to debar you, the official sends you 
a Notice of Proposed Debarment, pursuant to Sec. 620.615, advising 
you--
    (a) That the debarring official is considering debarring you;
    (b) Of the reasons for proposing to debar you in terms sufficient to 
put you on notice of the conduct or transactions upon which the proposed 
debarment is based;
    (c) Of the cause(s) under Sec. 620.800 upon which the debarring 
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other National Science Foundation procedures governing 
debarment; and
    (e) Of the governmentwide effect of a debarment from procurement and 
nonprocurement programs and activities.



Sec. 620.810  When does a debarment take effect?

    A debarment is not effective until the debarring official issues a 
decision. The debarring official does not issue a decision until the 
respondent has had an opportunity to contest the proposed debarment.



Sec. 620.815  How may I contest a proposed debarment?

    If you as a respondent wish to contest a proposed debarment, you or 
your representative must provide the debarring official with information 
in opposition to the proposed debarment. You may do this orally or in 
writing, but any information provided orally that you consider important 
must also be submitted in writing for the official record.



Sec. 620.820  How much time do I have to contest a proposed debarment?

    (a) As a respondent you or your representative must either send, or 
make arrangements to appear and present, the information and argument to 
the debarring official within 30 days after you receive the Notice of 
Proposed Debarment.
    (b) We consider the Notice of Proposed Debarment to be received by 
you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec. 620.825  What information must I provide to the debarring official 
if I contest a proposed debarment?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the debarring official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Proposed Debarment. Include any information about any of the 
factors listed in Sec. 620.860. A general denial is insufficient to 
raise a genuine dispute over facts material to the debarment;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, State, 
or local agencies, including administrative

[[Page 179]]

agreements that affect only those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Proposed Debarment that grew out of facts relevant to the cause(s) 
stated in the notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the National Science Foundation may seek further criminal, 
civil or administrative action against you, as appropriate.



Sec. 620.830  Under what conditions do I get an additional opportunity to 
challenge the facts on which a proposed debarment is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the debarring official determines that--
    (1) Your debarment is based upon a conviction or civil judgment;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Proposed Debarment; or
    (3) The issues raised in your presentation in opposition to the 
proposed debarment are not factual in nature, or are not material to the 
debarring official's decision whether to debar.
    (b) You will have an additional opportunity to challenge the facts 
if the debarring official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the proposed debarment.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the debarring official or designee must conduct 
additional proceedings to resolve those facts.



Sec. 620.835  Are debarment proceedings formal?

    (a) Debarment proceedings are conducted in a fair and informal 
manner. The debarring official may use flexible procedures to allow you 
as a respondent to present matters in opposition. In so doing, the 
debarring official is not required to follow formal rules of evidence or 
procedure in creating an official record upon which the official will 
base the decision whether to debar.
    (b) You or your representative must submit any documentary evidence 
you want the debarring official to consider.



Sec. 620.840  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the National Science Foundation agree to 
waive it in advance. If you want a copy of the transcribed record, you 
may purchase it.



Sec. 620.845  What does the debarring official consider in deciding 
whether to debar me?

    (a) The debarring official may debar you for any of the causes in 
Sec. 620.800. However, the official need not debar you even if a cause 
for debarment exists. The official may consider the seriousness of your 
acts or omissions and the mitigating or aggravating factors set forth at 
Sec. 620.860.
    (b) The debarring official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the debarring official's proposed 
debarment;
    (2) Any further information and argument presented in support of, or 
in opposition to, the proposed debarment; and
    (3) Any transcribed record of fact-finding proceedings.
    (c) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any resultant findings, in whole or in part, only after specifically 
determining them to be arbitrary, capricious, or clearly erroneous.

[[Page 180]]



Sec. 620.850  What is the standard of proof in a debarment action?

    (a) In any debarment action, we must establish the cause for 
debarment by a preponderance of the evidence.
    (b) If the proposed debarment is based upon a conviction or civil 
judgment, the standard of proof is met.



Sec. 620.855  Who has the burden of proof in a debarment action?

    (a) We have the burden to prove that a cause for debarment exists.
    (b) Once a cause for debarment is established, you as a respondent 
have the burden of demonstrating to the satisfaction of the debarring 
official that you are presently responsible and that debarment is not 
necessary.



Sec. 620.860  What factors may influence the debarring official's decision?

    This section lists the mitigating and aggravating factors that the 
debarring official may consider in determining whether to debar you and 
the length of your debarment period. The debarring official may consider 
other factors if appropriate in light of the circumstances of a 
particular case. The existence or nonexistence of any factor, such as 
one of those set forth in this section, is not necessarily determinative 
of your present responsibility. In making a debarment decision, the 
debarring official may consider the following factors:
    (a) The actual or potential harm or impact that results or may 
result from the wrongdoing.
    (b) The frequency of incidents and/or duration of the wrongdoing.
    (c) Whether there is a pattern or prior history of wrongdoing. For 
example, if you have been found by another Federal agency or a State 
agency to have engaged in wrongdoing similar to that found in the 
debarment action, the existence of this fact may be used by the 
debarring official in determining that you have a pattern or prior 
history of wrongdoing.
    (d) Whether you are or have been excluded or disqualified by an 
agency of the Federal Government or have not been allowed to participate 
in State or local contracts or assistance agreements on a basis of 
conduct similar to one or more of the causes for debarment specified in 
this part.
    (e) Whether you have entered into an administrative agreement with a 
Federal agency or a State or local government that is not governmentwide 
but is based on conduct similar to one or more of the causes for 
debarment specified in this part.
    (f) Whether and to what extent you planned, initiated, or carried 
out the wrongdoing.
    (g) Whether you have accepted responsibility for the wrongdoing and 
recognize the seriousness of the misconduct that led to the cause for 
debarment.
    (h) Whether you have paid or agreed to pay all criminal, civil and 
administrative liabilities for the improper activity, including any 
investigative or administrative costs incurred by the government, and 
have made or agreed to make full restitution.
    (i) Whether you have cooperated fully with the government agencies 
during the investigation and any court or administrative action. In 
determining the extent of cooperation, the debarring official may 
consider when the cooperation began and whether you disclosed all 
pertinent information known to you.
    (j) Whether the wrongdoing was pervasive within your organization.
    (k) The kind of positions held by the individuals involved in the 
wrongdoing.
    (l) Whether your organization took appropriate corrective action or 
remedial measures, such as establishing ethics training and implementing 
programs to prevent recurrence.
    (m) Whether your principals tolerated the offense.
    (n) Whether you brought the activity cited as a basis for the 
debarment to the attention of the appropriate government agency in a 
timely manner.
    (o) Whether you have fully investigated the circumstances 
surrounding the cause for debarment and, if so, made the result of the 
investigation available to the debarring official.
    (p) Whether you had effective standards of conduct and internal 
control systems in place at the time the questioned conduct occurred.
    (q) Whether you have taken appropriate disciplinary action against 
the

[[Page 181]]

individuals responsible for the activity which constitutes the cause for 
debarment.
    (r) Whether you have had adequate time to eliminate the 
circumstances within your organization that led to the cause for the 
debarment.
    (s) Other factors that are appropriate to the circumstances of a 
particular case.



Sec. 620.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of 
debarment will be based on the seriousness of the cause(s) upon which 
your debarment is based. Generally, debarment should not exceed three 
years. However, if circumstances warrant, the debarring official may 
impose a longer period of debarment.
    (b) In determining the period of debarment, the debarring official 
may consider the factors in Sec. 620.860. If a suspension has preceded 
your debarment, the debarring official must consider the time you were 
suspended.
    (c) If the debarment is for a violation of the provisions of the 
Drug-Free Workplace Act of 1988, your period of debarment may not exceed 
five years.



Sec. 620.870  When do I know if the debarring official debars me?

    (a) The debarring official must make a written decision whether to 
debar within 45 days of closing the official record. The official record 
closes upon the debarring official's receipt of final submissions, 
information and findings of fact, if any. The debarring official may 
extend that period for good cause.
    (b) The debarring official sends you written notice, pursuant to 
Sec. 620.615 that the official decided, either--
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective 
dates; and
    (iv) Advises you that your debarment is effective for covered 
transactions and contracts that are subject to the Federal Acquisition 
Regulation (48 CFR chapter 1), throughout the executive branch of the 
Federal Government unless an agency head or an authorized designee 
grants an exception.



Sec. 620.875  May I ask the debarring official to reconsider a decision 
to debar me?

    Yes, as a debarred person you may ask the debarring official to 
reconsider the debarment decision or to reduce the time period or scope 
of the debarment. However, you must put your request in writing and 
support it with documentation.



Sec. 620.880  What factors may influence the debarring official during 
reconsideration?

    The debarring official may reduce or terminate your debarment based 
on--
    (a) Newly discovered material evidence;
    (b) A reversal of the conviction or civil judgment upon which your 
debarment was based;
    (c) A bona fide change in ownership or management;
    (d) Elimination of other causes for which the debarment was imposed; 
or
    (e) Other reasons the debarring official finds appropriate.



Sec. 620.885  May the debarring official extend a debarment?

    (a) Yes, the debarring official may extend a debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest.
    (b) However, the debarring official may not extend a debarment 
solely on the basis of the facts and circumstances upon which the 
initial debarment action was based.
    (c) If the debarring official decides that a debarment for an 
additional period is necessary, the debarring official must follow the 
applicable procedures in this subpart, and subpart F of this part, to 
extend the debarment.

[[Page 182]]



                          Subpart I_Definitions



Sec. 620.900  Adequate evidence.

    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.



Sec. 620.905  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. The ways we use to 
determine control include, but are not limited to--
    (a) Interlocking management or ownership;
    (b) Identity of interests among family members;
    (c) Shared facilities and equipment;
    (d) Common use of employees; or
    (e) A business entity which has been organized following the 
exclusion of a person which has the same or similar management, 
ownership, or principal employees as the excluded person.



Sec. 620.910  Agency.

    Agency means any United States executive department, military 
department, defense agency, or any other agency of the executive branch. 
Other agencies of the Federal government are not considered ``agencies'' 
for the purposes of this part unless they issue regulations adopting the 
governmentwide Debarment and Suspension system under Executive orders 
12549 and 12689.



Sec. 620.915  Agent or representative.

    Agent or representative means any person who acts on behalf of, or 
who is authorized to commit, a participant in a covered transaction.



Sec. 620.920  Civil judgment.

    Civil judgment means the disposition of a civil action by any court 
of competent jurisdiction, whether by verdict, decision, settlement, 
stipulation, other disposition which creates a civil liability for the 
complained of wrongful acts, or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).



Sec. 620.925  Conviction.

    Conviction means--
    (a) A judgment or any other determination of guilt of a criminal 
offense by any court of competent jurisdiction, whether entered upon a 
verdict or plea, including a plea of nolo contendere; or
    (b) Any other resolution that is the functional equivalent of a 
judgment, including probation before judgment and deferred prosecution. 
A disposition without the participation of the court is the functional 
equivalent of a judgment only if it includes an admission of guilt.



Sec. 620.930  Debarment.

    Debarment means an action taken by a debarring official under 
subpart H of this part to exclude a person from participating in covered 
transactions and transactions covered under the Federal Acquisition 
Regulation (48 CFR chapter 1). A person so excluded is debarred.



Sec. 620.935  Debarring official.

    (a) Debarring official means an agency official who is authorized to 
impose debarment. A debarring official is either--
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 620.940  Disqualified.

    Disqualified means that a person is prohibited from participating in 
specified Federal procurement or nonprocurement transactions as required 
under a statute, Executive order (other than Executive Orders 12549 and 
12689) or other authority. Examples of disqualifications include persons 
prohibited under--
    (a) The Davis-Bacon Act (40 U.S.C. 276(a));
    (b) The equal employment opportunity acts and Executive orders; or
    (c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C. 
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).



Sec. 620.945  Excluded or exclusion.

    Excluded or exclusion means--
    (a) That a person or commodity is prohibited from being a 
participant in

[[Page 183]]

covered transactions, whether the person has been suspended; debarred; 
proposed for debarment under 48 CFR part 9, subpart 9.4; voluntarily 
excluded; or
    (b) The act of excluding a person.



Sec. 620.950  Excluded Parties List System

    Excluded Parties List System (EPLS) means the list maintained and 
disseminated by the General Services Administration (GSA) containing the 
names and other information about persons who are ineligible. The EPLS 
system includes the printed version entitled, ``List of Parties Excluded 
or Disqualified from Federal Procurement and Nonprocurement Programs,'' 
so long as published.



Sec. 620.955  Indictment.

    Indictment means an indictment for a criminal offense. A 
presentment, information, or other filing by a competent authority 
charging a criminal offense shall be given the same effect as an 
indictment.



Sec. 620.960  Ineligible or ineligibility.

    Ineligible or ineligibility means that a person or commodity is 
prohibited from covered transactions because of an exclusion or 
disqualification.



Sec. 620.965  Legal proceedings.

    Legal proceedings means any criminal proceeding or any civil 
judicial proceeding, including a proceeding under the Program Fraud 
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal 
Government or a State or local government or quasi-governmental 
authority is a party. The term also includes appeals from those 
proceedings.



Sec. 620.970  Nonprocurement transaction.

    (a) Nonprocurement transaction means any transaction, regardless of 
type (except procurement contracts), including, but not limited to the 
following:
    (1) Grants.
    (2) Cooperative agreements.
    (3) Scholarships.
    (4) Fellowships.
    (5) Contracts of assistance.
    (6) Loans.
    (7) Loan guarantees.
    (8) Subsidies.
    (9) Insurances.
    (10) Payments for specified uses.
    (11) Donation agreements.
    (b) A nonprocurement transaction at any tier does not require the 
transfer of Federal funds.



Sec. 620.975  Notice.

    Notice means a written communication served in person, sent by 
certified mail or its equivalent, or sent electronically by e-mail or 
facsimile. (See Sec. 620. 615.)



Sec. 620.980  Participant.

    Participant means any person who submits a proposal for or who 
enters into a covered transaction, including an agent or representative 
of a participant.



Sec. 620.985  Person.

    Person means any individual, corporation, partnership, association, 
unit of government, or legal entity, however organized.



Sec. 620.990  Preponderance of the evidence.

    Preponderance of the evidence means proof by information that, 
compared with information opposing it, leads to the conclusion that the 
fact at issue is more probably true than not.



Sec. 620.995  Principal.

    Principal means--
    (a) An officer, director, owner, partner, principal investigator, or 
other person within a participant with management or supervisory 
responsibilities related to a covered transaction; or
    (b) A consultant or other person, whether or not employed by the 
participant or paid with Federal funds, who--
    (1) Is in a position to handle Federal funds;
    (2) Is in a position to influence or control the use of those funds; 
or,
    (3) Occupies a technical or professional position capable of 
substantially influencing the development or outcome of an activity 
required to perform the covered transaction.



Sec. 620.1000  Respondent.

    Respondent means a person against whom an agency has initiated a 
debarment or suspension action.

[[Page 184]]



Sec. 620.1005  State.

    (a) State means--
    (1) Any of the states of the United States;
    (2) The District of Columbia;
    (3) The Commonwealth of Puerto Rico;
    (4) Any territory or possession of the United States; or
    (5) Any agency or instrumentality of a state.
    (b) For purposes of this part, State does not include institutions 
of higher education, hospitals, or units of local government.



Sec. 620.1010  Suspending official.

    (a) Suspending official means an agency official who is authorized 
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 620.1015  Suspension.

    Suspension is an action taken by a suspending official under subpart 
G of this part that immediately prohibits a person from participating in 
covered transactions and transactions covered under the Federal 
Acquisition Regulation (48 CFR chapter 1) for a temporary period, 
pending completion of an agency investigation and any judicial or 
administrative proceedings that may ensue. A person so excluded is 
suspended.



Sec. 620.1020  Voluntary exclusion or voluntarily excluded.

    (a) Voluntary exclusion means a person's agreement to be excluded 
under the terms of a settlement between the person and one or more 
agencies. Voluntary exclusion must have governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has agreed 
to a voluntary exclusion.

Subpart J--[Reserved]

[[Page 185]]

               Appendix to Part 620--Covered Transactions
[GRAPHIC] [TIFF OMITTED] TR26NO03.000



PART 630_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 
ASSISTANCE)--Table of Contents




                     Subpart A_Purpose and Coverage

Sec.
630.100 What does this part do?
620.105 Does this part apply to me?
630.110 Are any of my Federal assistance awards exempt from this part?
630.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

630.200 What must I do to comply with this part?
630.205 What must I include in my drug-free workplace statement?
630.210 To whom must I distribute my drug-free workplace statement?
630.215 What must I include in my drug-free awareness program?
630.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
630.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
630.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

630.300 What must I do to comply with this part if I am an individual 
          recipient?
630.301 [Reserved]

[[Page 186]]

   Subpart D_Responsibilities of National Science Foundation Awarding 
                                Officials

630.400 What are my responsibilities as a National Science Foundation 
          awarding official?

           Subpart E_Violations of This Part and Consequences

630.500 How are violations of this part determined for recipients other 
          than individuals?
630.505 How are violations of this part determined for recipients who 
          are individuals?
630.510 What actions will the Federal Government take against a 
          recipient determined to have violated this part?
630.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

630.605 Award.
630.610 Controlled substance.
630.615 Conviction.
630.620 Cooperative agreement.
630.625 Criminal drug statute.
630.630 Debarment.
630.635 Drug-free workplace.
630.640 Employee.
630.645 Federal agency or agency.
630.650 Grant.
630.655 Individual.
630.660 Recipient.
630.665 State.
630.670 Suspension.

    Authority: 41 U.S.C. 701 et seq.

    Source: 68 FR 66557, 66634, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 630.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec. 630.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the National Science 
Foundation; or
    (2) A(n) National Science Foundation awarding official. (See 
definitions of award and recipient in Sec. Sec. 630.605 and 630.660, 
respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
             If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an individual..  A, B and E.
(2) A recipient who is an individual......  A, C and E.
(3) A(n) National Science Foundation        A, D and E.
 awarding official.
------------------------------------------------------------------------



Sec. 630.110  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award that the Director or designee 
determines that the application of this part would be inconsistent with 
the international obligations of the United States or the laws or 
regulations of a foreign government.



Sec. 630.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec. 630. 510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 630.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free

[[Page 187]]

awareness program for your employees (see Sec. Sec. 630.205 through 
630.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec. 630.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. 630.230).



Sec. 630.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec. 630.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec. 
630.205 be given to each employee who will be engaged in the performance 
of any Federal award.



Sec. 630.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec. 630.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec. 630.205 and an ongoing awareness program 
as described in Sec. 630.215, you must publish the statement and 
establish the program by the time given in the following table:

------------------------------------------------------------------------
                 If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award is  must have the policy
 less than 30 days.                          statement and program in
                                             place as soon as possible,
                                             but before the date on
                                             which performance is
                                             expected to be completed.
(b) The performance period of the award is  must have the policy
 30 days or more.                            statement and program in
                                             place within 30 days after
                                             award.
(c) You believe there are extraordinary     may ask the National Science
 circumstances that will require more than   Foundation awarding
 30 days for you to publish the policy       official to give you more
 statement and establish the awareness       time to do so. The amount
 program.                                    of additional time, if any,
                                             to be given is at the
                                             discretion of the awarding
                                             official.
------------------------------------------------------------------------



Sec. 630.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. 630.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--

[[Page 188]]

    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec. 630.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each National 
Science Foundation award. A failure to do so is a violation of your 
drug-free workplace requirements. You may identify the workplaces--
    (1) To the National Science Foundation official that is making the 
award, either at the time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by National Science Foundation 
officials or their designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award 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).
    (c) If you identified workplaces to the National Science Foundation 
awarding official at the time of application or award, as described in 
paragraph (a)(1) of this section, and any workplace that you identified 
changes during the performance of the award, you must inform the 
National Science Foundation awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 630.300  What must I do to comply with this part if I am an individual 
recipient?

    As a condition of receiving a(n) National Science Foundation award, 
if you are an individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the National Science Foundation awarding official or other 
designee for each award that you currently have, unless Sec. 630.301 or 
the award document designates a central point for the receipt of the 
notices. When notice is made to a central point, it must include the 
identification number(s) of each affected award.



Sec. 630.301  [Reserved]



   Subpart D_Responsibilities of National Science Foundation Awarding 
                                Officials



Sec. 630.400   What are my responsibilities as a(n) National Science 
Foundation awarding official?

    As a(n) National Science Foundation awarding official, you must 
obtain each recipient's agreement, as a condition of the award, to 
comply with the requirements in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.

[[Page 189]]



           Subpart E_Violations of this Part and Consequences



Sec. 630.500  How are violations of this part determined for recipients 
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Director or designee determines, in 
writing, that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec. 630.505  How are violations of this part determined for recipients 
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Director or designee determines, in writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec. 630.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. 630.500 or Sec. 630.505, the National Science 
Foundation may take one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 45 CFR Part 620, 
for a period not to exceed five years.



Sec. 630.515  Are there any exceptions to those actions?

    The Director, National Science Foundation may waive with respect to 
a particular award, in writing, a suspension of payments under an award, 
suspension or termination of an award, or suspension or debarment of a 
recipient if the Director, National Science Foundation determines that 
such a waiver would be in the public interest. This exception authority 
cannot be delegated to any other official.



                          Subpart F_Definitions



Sec. 630.605  Award.

    Award means an award of financial assistance by the National Science 
Foundation or other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 45 
CFR Part 602 that implements OMB Circular A-102 (for availability, see 5 
CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) 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).



Sec. 630.610  Controlled substance.

    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.



Sec. 630.615  Conviction.

    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.



Sec. 630.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent

[[Page 190]]

with 31 U.S.C. 6305, is used to enter into the same kind of relationship 
as a grant (see definition of grant in Sec. 630.650), except that 
substantial involvement is expected between the Federal agency and the 
recipient when carrying out the activity contemplated by the award. The 
term does not include cooperative research and development agreements as 
defined in 15 U.S.C. 3710a.



Sec. 630.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec. 630.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689.



Sec. 630.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec. 630.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (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).



Sec. 630.645  Federal agency or agency.

    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.



Sec. 630.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec. 630.655  Individual.

    Individual means a natural person.



Sec. 630.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec. 630.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.

[[Page 191]]



Sec. 630.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order 12689. Suspension of a recipient is a distinct and separate action 
from suspension of an award or suspension of payments under an award.



PART 640_COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT--Table 
of Contents




Sec.
640.1 Purpose.
640.2 Committee on Environmental Matters.
640.3 Actions requiring an environmental assessment and categorical 
          exclusions.
640.4 Responsibilities and procedures for preparation of an 
          environmental assessment.
640.5 Responsibilities and procedures for preparation of an 
          environmental impact statement.

    Authority: NEPA; the Environmental Quality Improvement Act of 1970, 
as amended (42 U.S.C. 4371 et seq.); sec. 309 of the Clean Air Act, as 
amended (42 U.S.C. 7609); E.O. 11514, ``Protection and Enhancement of 
Environmental Quality'' (March 5, 1970, as amended by E.O. 11991, May 
24, 1977); and CEQ regulations at 40 CFR Parts 1500 through 1508.

    Source: 45 FR 40, Jan. 2, 1980, unless otherwise noted.



Sec. 640.1  Purpose.

    The purpose of this regulation is to adopt NSF procedures to 
supplement regulations at 40 CFR parts 1500 through 1508 (hereafter 
referred to as ``CEQ regulations'').



Sec. 640.2  Committee on Environmental Matters.

    (a) There is established an NSF Committee on Environmental Matters 
(hereafter referred to as the Committee) to consist of one 
representative from each directorate. The General Counsel, or his or her 
designee, shall serve as Chairman. At the discretion of the Chairman and 
with the concurrence of the Committee, additional members may be 
appointed.
    (b) All incoming correspondence from CEQ and other agencies 
concerning matters related to NEPA, including draft and final 
environmental impact statements, shall be brought to the attention of 
the Chairman. The Chairman will prepare or, at his or her discretion, 
coordinate replies to such correspondence.
    (c) The Committee shall meet regularly to discuss NSF policies and 
practices regarding NEPA, and make recommendations on the need for or 
adequacy of environmental impact assessments or statements.
    (d) With respect to actions of NSF, the Committee will:
    (1) Maintain a list of actions for which environmental impact 
statements are being prepared.
    (2) Revise this list at regular intervals, based on input from the 
directorates, and send revisions to CEQ.
    (3) Make the list available for public inspection on request.
    (4) Maintain a list of environmental impact assessments.
    (5) Maintain a file of draft and final environmental impact 
statements.
    (e) The Committee and/or the Chairman will perform such additional 
functions as are set forth elsewhere in this part and in other NSF 
issuances.

[45 FR 40, Jan. 2, 1980, as amended at 49 FR 37596, Sept. 25, 1984; 59 
FR 37438, July 22, 1994]



Sec. 640.3  Actions requiring an environmental assessment and categorical 
exclusions.

    (a) The types of actions to be classified as ``major Federal 
actions'' subject to NEPA procedures are discussed generally in the CEQ 
regulations. Paragraph (b) of this section describes various classes of 
NSF actions that normally require the preparation of an environmental 
assessment or an EIS, and

[[Page 192]]

those classes that are categorically excluded. (Categorical exclusion is 
defined at 40 CFR 1508.4.) The word ``normally'' is stressed; there may 
be individual cases in which specific factors require contrary action. 
NSF directorates and offices are responsible for identifying situations 
in which an environmental assessment or an EIS should be prepared even 
if not normally required by paragraph (b) of this paragraph.
    (b) Most NSF awards support individual scientific research projects 
and are not ``major Federal actions significantly affecting the quality 
of the human environment'' except in the sense that the long term effect 
of the accumulation of human knowledge is likely to affect the quality 
of the human environment. However, such long term effects are basically 
speculative and unknowable in advance; thus they normally do not provide 
a sufficient basis for classifying research as subject to NEPA (See 40 
CFR 1508.8) and are categorically excluded from an environmental 
assessment. Nevertheless, in some cases the actual procedures used in 
carrying out the research may have potential environmental effects, 
particularly where the project requires construction of facilities or 
major disturbance of the local environment brought about by blasting, 
drilling, excavating, or other means. Accordingly, except as provided in 
paragraph (c) of this section, the following types of activities require 
at least an environmental assessment:
    (1) Cases where developmental efforts are supported, if the project 
supports the transition of a particular technology from the development 
stage to large-scale commercial utilization.
    (2) Any project supporting construction, other than interior 
remodelling.
    (3) Cases where field work affecting the natural environment will be 
conducted.
    (4) Any project that will involve drilling of the earth, excavation, 
explosives, weather modification, or other techniques that may alter a 
local environment.
    (5) Any project that provides for the testing and release of 
biological-control agents for purposes of ecosystem manipulation and 
assessment of short- and long-term effects of major ecosystem 
perturbation.
    (c) Directorates having divisions or programs with a substantial 
number of projects that fall within categories (3), (4), and (5) in (b) 
of this section, are authorized to issue supplemental guidelines to 
Division Directors and Program Officers establishing subcategories of 
research methodologies or techniques for which environmental assessments 
need not be prepared. For example, if a program regularly supports 
research that involves noninvasive techniques or nonharmful invasive 
techniques (such as taking water or soil samples, or collecting non-
protected species of flora and fauna) the directorate may determine that 
field projects otherwise coming under paragraph (b)(3) of this section 
which involve only the use of such techniques do not require an 
environmental assessment. However, any such guidelines must be submitted 
to the Chairman for approval.
    (d) In some cases within the categories listed in paragraph (b) of 
this section, it will be evident at the outset or after the assessment 
process is begun that an EIS should be prepared. In such cases an 
assessment need not be completed, but the process of preparing an EIS 
(See Sec. 640.5, of this part) should be started.



Sec. 640.4  Responsibilities and procedures for preparation of an 
environmental assessment.

    (a) Program Officers, as the first point of decision in the review 
process, shall determine into which category incoming proposals fall, 
according to the criteria set forth in Sec. 640.3 of this part. 
Notwithstanding this responsibility of the Program Officer, the 
appropriate Division Director, Assistant Director, and other reviewing 
policy officials must assure that adequate analysis is being made.
    (b) Where appropriate, programs, divisions, or directorates will 
advise prospective applicants in program announcements, requests for 
proposals, and other NSF-prepared brochures of the requirement to 
furnish information regarding any environmental impact that the 
applicant's proposed study may have.

[[Page 193]]

    (c) Should an environmental assessment be required, the directorate 
supporting the activity shall be responsible for its preparation. The 
grant or contract applicant may be asked to submit additional 
information in order that a reasonable and accurate assessment may be 
made. Though no specific format for an environmental assessment is 
prescribed, it shall be a separate document suitable for public review 
and shall serve the purpose described in 40 CFR 1508.9, which is quoted 
in full as follows:

                 Section 1508.9 Environmental Assessment

    ``Environmental Assessment'':
    (a) Means a concise public document for which a Federal agency is 
responsible that serves to:
    (1) Briefly provide sufficient evidence and analysis for determining 
whether to prepare an environmental impact statement or a finding of no 
significant impact.
    (2) Aid an agency's compliance with the Act when no environmental 
impact statement is necessary.
    (3) Facilitate preparation of a statement when one is necessary.
    (b) Shall include brief discussions of the need for the proposal, of 
alternatives as required by section 102(2)(E), of the environmental 
impacts of the proposed action and alternatives, and a listing of 
agencies and persons consulted.

    (d) A copy of the assessment or drafts shall accompany the 
appropriate proposal throughout the NSF internal review and approval 
process. At the option of the directorate preparing the assessment, a 
draft may be submitted to the Committee for its review and comments. 
Prior to an award decision, one copy of all completed assessments shall 
be sent to the Chairman for review and updating of the Committee listing 
of assessments.
    (e) If, on the basis of an environmental assessment, it is 
determined that an EIS is not required, a Finding of No Significant 
Impact (FNSI) as described in 40 CFR 1508.13 will be prepared. The FNSI 
shall include the environmental assessment or a summary of it and be 
available to the public from the Committee. If the proposed action is 
one that normally requires an EIS, is closely similar to an action 
normally requiring an EIS, or is without precedent, the FNSI shall be 
made available for a 30 day public review period before any action is 
taken.



Sec. 640.5  Responsibilities and procedures for preparation of an 
environmental impact statement.

    (a) If initially or after an environmental assessment has been 
completed, it is determined that an environmental impact statement 
should be prepared, it and other related documentation will be prepared 
by the directorate responsible for the action in accordance with section 
102(2)(c) of the Act, this part, and the CEQ regulations. The 
responsible directorate will be in close communication with the grant or 
contract applicant and may have to rely extensively on his or her input 
in preparing the EIS. However, once a document is prepared it shall be 
submitted to the Chairman who, after such review by the Committee as is 
deemed necessary by the Chairman, shall transmit the document as 
required by CEQ regulations and this part. If the Chairman considers a 
document unsatisfactory, he or she shall return it to the responsible 
directorate for revision prior to an award decision.
    Specifically, the following steps, as discussed in the CEQ 
regulations, will be followed in preparing an EIS:
    (1) A notice of intent to prepare a draft EIS will be published as 
described in 40 CFR 1501.7.
    (2) Scoping, as described in 40 CFR 1501.7, will be conducted.
    (3) The format and contents of the draft and final EIS shall be as 
discussed in 40 CFR part 1502.
    (4) Comments on the draft EIS shall be invited as set forth in 40 
CFR 1503.1. The minimum period to be afforded for comments on a draft 
EIS shall be 45 days, unless a lesser period is necessary to comply with 
other specific statutory requirements or in case of emergency 
circumstances, as described in 40 CFR 1506.11.
    (5) The requirements of 40 CFR 1506.9 for filing of documents with 
the Environmental Protection Agency shall be followed.
    (6) The responsible directorate shall examine carefully the basis on 
which supportive studies have been conducted

[[Page 194]]

to assure that such studies are objective and comprehensive in scope and 
in depth.
    (7) The Act requires that the decisionmaking involved ``utilize a 
systematic, interdisciplinary approach that will insure the integrated 
use of the natural and social sciences and the environmental design 
arts.'' If such disciplines are not present on the NSF staff, 
appropriate use should be made of personnel of Federal, State, and local 
agencies, universities, non-profit organizations, or private industry.
    (8) A copy of the draft EIS or the final EIS (or a summary, if the 
size of the EIS does not make this practical) shall be included in and 
accompany the appropriate proposal throughout the NSF internal review 
and approval process.
    (b)(1) 40 CFR 1506.1 describes the types of actions that should not 
be taken during the NEPA process. Such actions shall be avoided by NSF 
personnel during the process of preparation of an EIS and for a period 
of thirty days after the final EIS is filed with EPA, unless such 
actions are necessary to comply with other specific statutory 
requirements.
    (2) 40 CFR 1506.10 also places certain limitations on the timing of 
agency decisions on taking ``major Federal actions''. In some cases the 
actual ``decision point'' may be more clear-cut than others. If the 
``action'' that necessitated the preparation of an EIS is one that would 
be carried out under grant, contract, or cooperative agreement, then the 
award shall not be made before the times set forth in 40 CFR 1506.10, 
unless such action is necessary to comply with other specific statutory 
requirements, or as exceptions are needed as provided in 40 CFR 1506.10, 
1506.11, or 1507.3. However, an award for preliminary planning proposals 
may be made before such times if it is so structured as to require 
further NSF approvals for funding the actual actions that might 
adversely affect the quality of the human environment. In such cases, 
the subsequent approvals for funding these actions will be considered 
the ``decision''. This is consistent with the requirement that 
environmental considerations undergo concurrent review with all other 
project planning considerations.
    (c) In appropriate cases, if the action involves other agencies, the 
Chairman may agree to designate another agency as ``lead agency'' and to 
cooperate as discussed in 40 CFR 1501.5 and 1501.6. In such cases, the 
Chairman has authority to alter the procedures described in (a) to the 
extent they are inconsistent with functions assigned to NSF under the 
``cooperating agency'' arrangements.
    (d) A public record of decision stating what the decision was; 
identifying alternatives that were considered, including the 
environmentally preferable one(s); discussing any national policy 
considerations that entered into the decision; and summarizing a 
monitoring and enforcement program if applicable for mitigation, will be 
prepared. This record of decision will be prepared at the time the 
decision is made, or if appropriate, when the agency makes its 
recommendation for action to Congress. (See 40 CFR 1505.2.)



PART 641_ENVIRONMENTAL ASSESSMENT PROCEDURES FOR PROPOSED NATIONAL 
SCIENCE FOUNDATION ACTIONS IN ANTARCTICA--Table of Contents




Sec.
641.10 Purpose.
641.11 Policy.
641.12 Applicability.
641.13 Right of action.
641.14 Definitions.
641.15 Preliminary environmental review.
641.16 Preparation of environmental documents, generally.
641.17 Initial environmental evaluation.
641.18 Comprehensive environmental evaluation.
641.19 Modification of environmental documents.
641.20 Notification of the availability of environmental documents and 
          other information.
641.21 Monitoring.
641.22 Cases of emergency.

    Authority: E.O. 12114, 44 FR 1957, 3 CFR 1979 Comp., p. 356.

    Source: 57 FR 40339, Sept. 3, 1992, unless otherwise noted.

[[Page 195]]



Sec. 641.10  Purpose.

    These procedures are designed to elicit and evaluate information 
that will inform the National Science Foundation (NSF) of the potential 
environmental consequences of proposed U.S. Antarctic Program (USAP) 
actions, so that relevant environmental considerations are taken into 
account by decisionmakers before reaching final decisions on whether or 
how to proceed with proposed actions. These procedures are consistent 
with and implement the requirements of:
    (a) Executive Order 12114 as it relates to NSF's Antarctic 
activities, and
    (b) the environmental assessment provisions of the Protocol on 
Environmental Protection to the Antarctic Treaty.



Sec. 641.11  Policy.

    It is the policy of NSF to use all practicable means, consistent 
with its authority, to ensure that potential environmental effects of 
actions undertaken by NSF in Antarctica, either independently or in 
cooperation with another country, are appropriately identified and 
considered during the decisionmaking process, and that appropriate 
environmental safeguards which would limit, mitigate or prevent adverse 
impacts on the Antarctic environment are identified.



Sec. 641.12  Applicability.

    The requirements set forth in this part apply to all proposed 
projects, programs and actions authorized or approved by, or subject to 
the control and responsibility of NSF that may have an impact on the 
Antarctic environment.



Sec. 641.13  Right of action

    The procedures set forth in this part establish internal procedures 
to be followed by NSF in considering the potential environmental effects 
of actions taken in Antarctica. Nothing in this part shall be construed 
to create a cause of action.



Sec. 641.14  Definitions.

    As used in these procedures, the term:
    (a) Action means a project, program or other activity, including the 
adoption of an official policy or formal plan, that is undertaken, 
authorized, adopted or approved by, or subject to the control or 
responsibility of NSF, the decommissioning of a physical plant or 
facility, and any change in the scope or intensity of a project, program 
or action.
    (b) Antarctica means the area south of 60 degrees south latitude.
    (c) Antarctic environment means the natural and physical environment 
of Antarctica and its dependent and associated ecosystems, but excludes 
social, economic and other environments.
    (d) Antarctic Treaty Consultative Meeting means a meeting of the 
Parties to the Antarctic Treaty, held pursuant to Article IX(1) of the 
Treaty.
    (e) Comprehensive Environmental Evaluation or CEE means a study of 
the reasonably foreseeable potential effects of a proposed action on the 
antarctic environment, prepared in accordance with the provisions of 
Sec. 641.18, and includes all comments thereon received during the 
comment period described in Sec. 641.18(c). A Comprehensive 
Environmental Evaluation shall constitute an environmental impact 
statement for purposes of the Executive Order.
    (f) Environmental Action Memorandum means a document briefly 
describing a proposed action and its potential impacts, if any, on the 
antarctic environment prepared by the responsible official when he or 
she determines that a proposed action will have less than a minor or 
transitory impact on the Antarctic environment.
    (g) Environmental document means an initial environmental evaluation 
or a comprehensive environmental evaluation.
    (h) Environmental review means the environmental review required by 
the provisions of this part, and includes preliminary environmental 
review and preparation of an environmental document, and review by the 
parties to the Protocol, and committees established under the Protocol 
for that purpose, and the public, as applicable.
    (i) Executive Order means Executive Order 12114, Environmental 
Effects Abroad of Major Federal Actions, 44 FR 1957.
    (j) Initial Environmental Evaluation or IEE means a study of the 
reasonably

[[Page 196]]

foreseeable potential effects of a proposed action on the antarctic 
environment, prepared in accordance with the provisions of Sec. 641.17.
    (k) Preliminary environmental review means the environmental review 
described in Sec. 641.15(a).
    (l) Protocol means the Protocol on Environmental Protection to the 
Antarctic Treaty, adopted on October 4, 1991, in Madrid, at the fourth 
session of the Eleventh Special Antarctic Treaty Consultative Meeting 
and signed by the United States on that date, and all annexes thereto.
    (m) Responsible official means the Director of the Office of Polar 
Programs, or any NSF employee(s) designated by the Director to be 
principally responsible for the preparation of environmental action 
memoranda or environmental documents under this part.
    (n) Treaty means the Antarctic Treaty signed in Washington, D.C., on 
December 1, 1959, T.I.A.S No. 4780.

[57 FR 40339, Sept. 3, 1992, as amended at 59 FR 37438, July 22, 1994]



Sec. 641.15  Preliminary environmental review.

    (a) The responsible official shall be notified early in the general 
planning process of actions proposed by USAP components that may have 
impacts on the Antarctic environment, so that environmental review may 
be integrated into the planning and decisionmaking processes. The 
responsible official shall conduct a preliminary environmental review of 
each action, including consideration of the potential direct and 
reasonably foreseeable indirect effects of a proposed action on the 
Antarctic environment.
    (b) If, on the basis of the preliminary environmental review, the 
responsible official determines that an action will have less than a 
minor or transitory impact on the Antarctic environment, he will prepare 
an Environmental Action Memorandum briefly summarizing the environmental 
issues considered and conclusions drawn from the review. No further 
environmental review shall be necessary.



Sec. 641.16  Preparation of environmental documents, generally.

    (a) Preparation of an environmental document. If the responsible 
official determines, either initially or on the basis of a preliminary 
environmental review, that a proposed action may have at least a minor 
or transitory impact on the Antarctic environment, he will prepare an 
environmental document in accordance with the provisions of this part. 
In making this determination, the responsible official should consider 
whether and to what degree the proposed action:
    (1) Has the potential to adversely affect the Antarctic environment;
    (2) May adversely affect climate and weather patterns;
    (3) May adversely affect air or water quality;
    (4) May affect atmospheric, terrestrial (including aquatic), glacial 
or marine environments;
    (5) May detrimentally affect the distribution, abundance or 
productivity or species, or populations of species of fauna and flora;
    (6) May further jeopardize endangered or threatened species or 
populations of such species;
    (7) May degrade, or pose substantial risk to, areas of biological, 
scientific, historic, aesthetic or wilderness significance;
    (8) Has highly uncertain environmental effects, or involves unique 
or unknown environmental risks; or
    (9) Together with other actions, the effects of any one of which is 
individually insignificant, may have at least minor or transitory 
cumulative environmental effects.
    (b) Prior assessments. Notwithstanding the provisions of Sec. 
641.16(a), if (1) An environmental document (including a generic or 
programmatic CEE) or its equivalent has been prepared for a particular 
type of action; (2) That document includes an analysis of potential 
environmental effects that are directly relevant to the potential 
effects of the proposed action, taking in account factors such as the 
similarity of the actions and of the locations within which they take 
place; and (3) There are no potential site specific or other impacts 
that would require further evaluation, then a new environmental document

[[Page 197]]

need not be prepared. Instead, the responsible official shall prepare an 
Environmental Action Memorandum for the proposed action, cross-
referencing the previously prepared environmental document.
    (c) Exclusions. NSF has determined that the following actions will 
have less than a minor or transitory impact on the Antarctic 
environment, and are not subject to the procedures set forth in this 
part, except to the extent provided herein:
    (1) Scientific research activities involving:
    (i) Low volume collection of biological or geologic specimens, 
provided no more mammals or birds are taken than can normally be 
replaced by natural reproduction in the following season;
    (ii) Small-scale detonation of explosives in connection with seismic 
research conducted in the continental interior or Antarctica where there 
will be no potential for impact on native flora and fauna;
    (iii) Use of weather/research balloons, research rockets, and 
automatic weather stations that are to be retrieved; and
    (iv) Use of radioisotopes, provided such use complies with 
applicable laws and regulations, and with NSF procedures for handling 
and disposing of radioisotopes.
    (2) Interior remodelling and renovation of existing facilities.

Notwithstanding the foregoing, if information developed during the 
planning of any of the actions described in this paragraph (c) indicates 
the possibility that the action may have at least a minor or transitory 
impact on the Antarctic environment, the environmental effects of the 
action shall be reviewed to determine the need for the preparation of an 
environmental document.
    (d) Coordination with other committees, offices and federal 
agencies. The responsible official shall notify NSF's Committee of 
Environmental Matters when he intends to prepare an environmental 
document, and will coordinate preparation of the document with those 
entities. Responsibility for preparation of the environmental document 
rests primarily with the responsible official, but, as soon as is 
feasible, he should consult with and encourage the participation of 
other knowledgeable individuals within NSF, and, where appropriate, with 
other individuals, government agencies and entities with relevant 
knowledge and expertise.
    (e) Type of environmental document. The type of environmental 
document required under this part depends on the nature of the proposed 
action under consideration. An IEE must be prepared for proposed actions 
which the responsible official concludes may have at least a minor or 
transitory impact on the Antarctic environment and for which a CEE is 
not prepared. A CEE must be prepared if an IEE indicates, or if it is 
otherwise determined, that a proposed action is likely to have more than 
a minor or transitory impact on the Antarctic environment.
    (f) Obligation of funds. Because of logistic constraints (i.e., 
constraints due to transportation difficulties, inaccessibility of 
Antarctic bases for much of the year, and the need to obtain items or 
materials requiring long lead times), it may not be possible to complete 
the environmental review of a proposed action before funds must be 
committed and/or disbursed. In such cases, funds for the proposed action 
may be committed and/or disbursed, provided:
    (1) The appropriate environmental review is completed before 
implementation of the proposed action in Antarctica, and
    (2) Implementation plans for the proposed action will be modified or 
canceled, if appropriate, in light of the completed environmental review 
(including public comments, if applicable).

[57 FR 40339, Sept. 3, 1992, as amended at 59 FR 37438, July 22, 1994]



Sec. 641.17  Initial environmental evaluation.

    (a) Contents. An IEE shall contain sufficient detail to assess 
whether a proposed action may have more than a minor or transitory 
impact on the Antarctic environment, and shall include the following 
information:
    (1) A description of the proposed action, including its purpose, 
location, duration and intensity; and
    (2) Consideration of alternatives to the proposed action and any 
impacts

[[Page 198]]

that the proposed action may have on the Antarctic environment, 
including cumulative impacts in light of existing and known planned 
actions and existing information on such actions.
    (b) Further environmental review. If an IEE indicates that a 
proposed action is likely to have no more than a minor or transitory 
impact on the Antarctic environment, no further environmental review of 
the action is necessary provided that appropriate procedures, which may 
include monitoring, are put in place to assess and verify the impact of 
the action.
    (c) Availability to public. An annual list of IEEs and a description 
of any decisions taken in consequence thereof shall be provided to the 
Department of State for circulation to all Parties to the Protocol and 
to organizations or committees established pursuant to the Protocol or 
the Treaty, as required. The Environmental Officer, Division of Polar 
Programs, shall also make the list and copies of final IEEs available to 
the public upon request.



Sec. 641.18  Comprehensive environmental evaluation.

    (a) Scoping. If it is determined that a CEE will be prepared, the 
responsible official shall publish a notice of intent to prepare a CEE 
in the Federal Register, inviting interested persons and government 
agencies to participate in the process of identifying significant issues 
relating to the proposed action and determining the scope of the issues 
to be addressed in the CEE.
    (b) Contents of CEE. A CEE shall be a concise and analytical 
document, prepared in accordance with the range of relevant issues 
identified in the scoping process. It shall contain sufficient 
information to permit informed consideration of the reasonably 
foreseeable potential environmental effects of a proposed action and 
possible alternatives to that proposed action. Such information shall 
include the following:
    (1) A description of the proposed action including its purpose, 
location, duration and intensity;
    (2) A description of the initial base-line environmental state with 
which predicted changes are to be compared, and a prediction of the 
future environmental state in the absence of the proposed action;
    (3) A description of the methods and data used to forecast the 
potential impacts of the proposed action;
    (4) An estimate of the nature, extent, duration and intensity of the 
likely direct potential impacts of the proposed action;
    (5) A consideration of the potential indirect or second order 
impacts from the proposed action;
    (6) A consideration of potential cumulative impacts of the proposed 
action in light of existing activities and other known planned actions 
and available information on those actions;
    (7) A description of possible alternatives to the proposed action, 
including the alternative of not proceeding, and the potential 
consequences of those alternatives, in sufficient detail to allow a 
clear basis for choice among the alternatives and the proposed action;
    (8) Identification of measures, including monitoring, that could be 
employed to minimize, mitigate or prevent potential impacts of the 
proposed action, detect unforeseen impacts, provide early warning of any 
adverse effects, and carry out prompt and effective response to 
accidents;
    (9) Identification of unavoidable potential impacts of the proposed 
action;
    (10) Consideration of the potential effects of the proposed action 
on the conduct of scientific research and on other existing uses and 
values;
    (11) Identification of gaps in knowledge and uncertainties 
encountered in compiling the information required by this paragraph (b);
    (12) A non-technical summary of the information included in the CEE; 
and
    (13) The name and address of the person and/or organization which 
prepared the CEE, and the address to which comments thereon should be 
directed.
    (c) Circulation of draft CEE. A draft of each CEE shall be provided 
to the Department of State for circulation to all Parties to the 
Protocol and to organizations or committees established pursuant to the 
Protocol or Treaty, as required by the Protocol, and shall be made 
publicly available. Notice of such public availability shall be 
published in

[[Page 199]]

the Federal Register. All such parties shall have a period of not less 
than ninety (90) days within which to review and comment upon the draft 
CEE.
    (d) Final CEE. A final CEE shall address, and shall include or 
summarize, comments received on the draft CEE. The final CEE, notice of 
any decisions related thereto, and any evaluation of the significance of 
the predicted impacts in relation to the advantages of the proposed 
action shall be provided to the Department of State for circulation to 
all Parties to the Protocol, and shall be available to the public upon 
request, at least sixty (60) days prior to the commencement of the 
proposed activity in Antarctica. Notice of such public availability 
shall be published in the Federal Register.
    (e) Implementation of proposed action. No final decision shall be 
taken to proceed in Antarctica with an action for which a final CEE is 
required until after the earlier of:
    (1) The first Antarctic Treaty Consultative Meeting taking place at 
least one hundred and twenty days after circulation of the draft CEE, or
    (2) Fifteen months following the circulation of the draft CEE.



Sec. 641.19  Modification of environmental documents.

    The responsible official should revise or supplement an 
environmental document if there is a change in a proposed action that 
may have more than a minor or transitory effect on the antarctic 
environment, or if there are new circumstances or information that 
indicate the action may have impacts not anticipated in the original 
environmental document.



Sec. 641.20  Notification of the availability of environmental documents 
and other information.

    The Environmental Officer, Office of Polar Programs, shall make 
Environmental Action Memoranda, environmental documents and final data 
obtained under Sec. 641.21, available to the public upon request. 
However, notice of such availability need not be given, except as 
specifically provided in this part.

[57 FR 40339, Sept. 3, 1992, as amended at 59 FR 37438, July 22, 1994]



Sec. 641.21  Monitoring.

    Scientific, analytic and/or reporting procedures shall be put in 
place, including appropriate monitoring of key environmental indicators, 
to assess and verify the potential environmental impacts of actions 
which are the subject of a CEE. All proposed actions for which an 
environmental document has been prepared shall include procedures 
designed to provide a regular and verifiable record of the actual 
impacts of those actions, in order, inter alia, to
    (a) Enable assessments to be made of the extent to which such 
impacts are consistent with the Protocol; and
    (b) Provide information useful for minimizing or mitigating those 
impacts, and, where appropriate, information on the need for suspension, 
cancellation or modification of the action.



Sec. 641.22  Cases of emergency.

    This part shall not apply to actions taken in cases of emergency 
relating to the safety of human life or of ships, aircraft or equipment 
and facilities of high value, or the protection of the environment which 
require an action to be taken without completion of the environmental 
review required by this part. Notice of any such actions which would 
otherwise have required the preparation of a CEE shall be provided 
immediately to the Department of State for circulation to all Parties to 
the Protocol and to committees and organizations established pursuant to 
the Treaty or Protocol, as required. A description of the emergency 
action undertaken shall also be provided to the Department of State for 
appropriate circulation within ninety days of the action.



PART 650_PATENTS--Table of Contents




Sec.
650.1 Scope of part.
650.2 National Science Foundation patent policy.
650.3 Source of authority.
650.4 Standard patent rights clause.
650.5 Special patent provisions.
650.6 Awards not primarily for research.
650.7 Awards affected by international agreements.
650.8 Retention of rights by inventor.
650.9 Unwanted inventions.

[[Page 200]]

650.10 Inventions also supported by another Federal agency.
650.11 Utilization reports.
650.12 Waivers and approvals.
650.13 Exercise of march-in rights.
650.14 Request for conveyance of title to NSF.
650.15 Appeals.
650.16 Background rights.
650.17 Subcontracts.
650.18 Delegation of authority.
650.19 Electronic invention handling.

Appendix A to Part 650--Optional Format for Confirmatory License

    Authority: 35 U.S.C. 200-212, 42 U.S.C. 1870(e) and 1871; and the 
Presidential Memorandum entitled ``Government Patent Policy'', issued 
February 18, 1983.

    Source: 57 FR 18053, Apr. 28, 1992, unless otherwise noted.



Sec. 650.1  Scope of part.

    This part contains the policies, procedures, and clauses that govern 
allocation of rights to inventions made in performance of NSF-assisted 
research. It applies to all current and future funding agreements 
entered into by the Foundation that relate to performance of scientific 
or engineering research. As stated in the NSF Acquisition Regulation 
(chapter 25 of title 48 of the Code of Federal Regulations), this part 
applies to contracts as well as to grants and cooperative agreements.



Sec. 650.2  National Science Foundation patent policy.

    As authorized by the National Science Board at its 230th meeting, 
October 15-16, 1981, the Director of the National Science Foundation has 
adopted the following statement of NSF patent policy.
    (a) In accordance with the Bayh-Dole Act and the Presidential 
Memorandum entitled ``Government Patent Policy'' issued February 18, 
1983, the Foundation will use the Patent Rights clause prescribed by the 
Department of Commerce in all its funding agreements for the performance 
of experimental, developmental, or research work, including awards made 
to foreign entities, unless the Foundation determines that some other 
provision would better serve the purposes of that Act or the interests 
of the United States and the general public.
    (b) In funding agreements covered by a treaty or agreement that 
provides that an international organization or foreign government, 
research institute, or inventor will own or share patent rights, the 
Foundation will acquire such patent rights as are necessary to comply 
with the applicable treaty or agreement.
    (c) If an awardee elects not to retain rights to an invention, the 
Foundation will allow the inventor to retain the principal patent rights 
unless the awardee, or the inventor's employer if other than the 
awardee, shows that it would be harmed by that action.
    (d) The Foundation will normally allow any patent rights not wanted 
by the awardee or inventor to be dedicated to the public through 
publication in scientific journals or as a statutory invention 
registration. However, if another Federal agency is known to be 
interested in the relevant technology, the Foundation may give it an 
opportunity to review and patent the invention so long as that does not 
inhibit the dissemination of the research results to the scientific 
community.



Sec. 650.3  Source of authority.

    (a) 35 U.S.C. 200-212, commonly called the Bayh-Dole Act, as amended 
by title V of Public Law 98-620 (98 stat. 3335, 3364). That law controls 
the allocation of rights to inventions made by employees of small 
business firms and domestic nonprofit organizations, including 
universities, during federally-supported experimentation, research, or 
development. Government-wide implementing regulations are contained in 
part 401 of title 37 of the Code of Federal Regulations.
    (b) Section 11(e) of the National Science Foundation Act of 1950, as 
amended, (42 U.S.C. 1870(e)) provides that the Foundation shall have the 
authority to do all things necessary to carry out the provisions of this 
Act, including, but without being limited thereto, the authority--to 
acquire by purchase, lease, loan, gift, or condemnation, and to hold and 
dispose of by grant, sale, lease, or loan, real and personal property of 
all kinds necessary for, or resulting from, the exercise of authority 
granted by this Act.

[[Page 201]]

    (c) Section 12 of the NSF Act (42 U.S.C. 1871) provides that each 
contract or other arrangement executed pursuant to this Act which 
relates to scientific research shall contain provisions governing the 
disposition of inventions produced thereunder in a manner calculated to 
protect the public interest and the equities of the individual or 
organization with which the contract or other arrangement is executed.
    (d) The Presidential Memorandum entitled ``Government Patent 
Policy'' issued February 18, 1983, directs Federal agencies, to the 
extent permitted by law, to apply to all research performers the 
policies of the Bayh-Dole Act. Under the provisions of the National 
Science Foundation Act quoted above, the Foundation is permitted to 
apply the Bayh-Dole policies without restriction.



Sec. 650.4  Standard patent rights clause.

    (a) The following Patent Rights clause will be used in every funding 
agreement awarded by the Foundation that relates to scientific or 
engineering research unless a special patent clause has been negotiated 
(see Sec. 650.5).

                     Patent Rights (September, 1997)

    (a) Definitions--(1) Invention means any invention or discovery 
which is or may be patentable or otherwise protectable under title 35 of 
the United States Code, to any novel variety of plant which is or may be 
protected under the Plant Variety Protection Act (7 U.S.C. 2321 et 
seq.).
    (2) Subject invention means any invention of the grantee conceived 
or first actually reduced to practice in the performance of work under 
this grant, provided that in the case of a variety of plant, the date of 
determination (as defined in section 41(d) of the Plant Variety 
Protection Act (7 U.S.C. 2401(d)) must also occur during the period of 
grant performance.
    (3) Practical application means to manufacture in the case of a 
composition or product, to practice in the case of a process or method, 
or to operate in the case of a machine or system; and, in each case, 
under such conditions as to establish that the invention is being 
utilized and that its benefits are to the extent permitted by law or 
Government regulations available to the public on reasonable terms.
    (4) Made when used in relation to any invention means the conception 
or first actual reduction to practice of such invention.
    (5) Small business firm means a domestic small business concern as 
defined at section 2 of Public Law 85-536 (15 U.S.C. 632) and 
implementing regulations of the Administrator of the Small Business 
Administration. For the purpose of this Patents Rights clause, the size 
standard for small business concerns involved in Government procurement 
and subcontracting at 13 CFR 121.3-8 and 13 CFR 121.3-12, respectively, 
will be used.
    (6) Nonprofit organization means a domestic university or other 
institution of higher education or an organization of the type described 
in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 
501(c)) and exempt from taxation under section 501(a) of the Internal 
Revenue Code (26 U.S.C. 501(a)) or any domestic nonprofit scientific or 
educational organization qualified under a State nonprofit organization 
statute.
    (b) Allocation of Principal Rights. The grantee may retain the 
entire right, title, and interest throughout the world to each subject 
invention subject to the provisions of this Patents Rights clause and 35 
U.S.C. 203. With respect to any subject invention in which the grantee 
retains title, the Federal Government shall have a nonexclusive, 
nontransferable, irrevocable, paid-up license to practice or have 
practiced for or on behalf of the United States the subject invention 
throughout the world. If the award indicates it is subject to an 
identified international agreement or treaty, the National Science 
Foundation (NSF) also has the right to direct the grantee to convey to 
any foreign participant such patent rights to subject inventions as are 
required to comply with that agreement or treaty.
    (c) Invention Disclosure, Election of Title and Filing of Patent 
Applications by Grantee. (1) The grantee will disclose each subject 
invention to NSF within two months after the inventor discloses it in 
writing to grantee personnel responsible for the administration of 
patent matters. The disclosure to NSF shall be in the form of a written 
report and shall identify the grant under which the invention was made 
and the inventor(s). It shall be sufficiently complete in technical 
detail to convey a clear understanding of the nature, purpose, 
operation, and, to the extent known, the physical, chemical, biological 
or electrical characteristics of the invention. The disclosure shall 
also identify any publication, on sale or public use of the invention 
and whether a manuscript describing the invention has been submitted for 
publication and, if so, whether it has been accepted for publication at 
the time of disclosure. In addition, after disclosure to NSF, the 
grantee will promptly notify NSF of the acceptance of any manuscript 
describing the invention for publication or of any on sale or public use 
planned by the grantee.

[[Page 202]]

    (2) The grantee will elect in writing whether or not to retain title 
to any such invention by notifying NSF within two years of disclosure to 
NSF. However, in any case where publication, on sale, or public use has 
initiated the one year statutory period wherein valid patent protection 
can still be obtained in the United States, the period for election of 
title may be shortened by NSF to a date that is no more than 60 days 
prior to the end of the statutory period.
    (3) The grantee will file its initial patent application on an 
invention to which it elects to retain title within one year after 
election of title or, if earlier, prior to the end of any statutory 
period wherein valid patent protection can be obtained in the United 
States after a publication, on sale, or public use. The grantee will 
file patent applications in additional countries or international patent 
offices within either ten months of the corresponding initial patent 
application, or six months from the date when permission is granted by 
the Commissioner of Patents and Trademarks to file foreign patent 
applications when such filing has been prohibited by a Secrecy Order.
    (4) Requests for extension of the time for disclosure to NSF, 
election, and filing under subparagraphs (c) (1), (2), and (3) of this 
clause may, at the discretion of NSF, be granted.
    (d) Conditions When the Government May Obtain Title. The grantee 
will convey to NSF, upon written request, title to any subject 
invention:
    (1) If the grantee fails to disclose or elect the subject invention 
within the times specified in paragraph (c) above, or elects not to 
retain title; provided that NSF may only request title within 60 days 
after learning of the failure of the grantee to disclose or elect within 
the specified times.
    (2) In those countries in which the grantee fails to file patent 
applications within the times specified in paragraph (c) above; 
provided, however, that if the grantee has filed a patent application in 
a country after the times specified in paragraph (c) above, but prior to 
its receipt of the written request of NSF, the grantee shall continue to 
retain title in that country.
    (3) In any country in which the grantee decides not to continue the 
prosecution of any application for, to pay the maintenance fees on, or 
defend in a reexamination or opposition proceeding on, a patent on a 
subject invention.
    (e) Minimum Rights to Grantee. (1) The grantee will retain a 
nonexclusive royalty-free license throughout the world in each subject 
invention to which the Government obtains title, except if the grantee 
fails to disclose the subject invention within the times specified in 
paragraph (c) above. The grantee's license extends to its domestic 
subsidiaries and affiliates, if any, within the corporate structure of 
which the grantee is a party and includes the right to grant sublicenses 
of the same scope to the extent the grantee was legally obligated to do 
so at the time the grant was awarded. The license is transferable only 
with the approval of NSF except when transferred to the successor of 
that part of the grantee's business to which the invention pertains.
    (2) The grantee's domestic license may be revoked or modified by NSF 
to the extent necessary to achieve expeditious practical application of 
the subject invention pursuant to an application for an exclusive 
license submitted in accordance with applicable provisions at 37 CFR 
part 404. This license will not be revoked in that field of use or the 
geographical areas in which the grantee has achieved practical 
application and continues to make the benefits of the invention 
reasonably accessible to the public. The license in any foreign country 
may be revoked or modified at the discretion of NSF to the extent the 
grantee, its licensees, or its domestic subsidiaries or affiliates have 
failed to achieve practical application in that foreign country.
    (3) Before revocation or modification of the license, NSF will 
furnish the grantee a written notice of its intention to revoke or 
modify the license, and the grantee will be allowed thirty days (or such 
other time as may be authorized by NSF for good cause shown by the 
grantee) after the notice to show cause why the license should not be 
revoked or modified. The grantee has the right to appeal, in accordance 
with applicable regulations in 37 CFR part 404 concerning the licensing 
of Government-owned inventions, any decision concerning the revocation 
or modification of its license.
    (f) Grantee Action to Protect Government's Interest. (1) The grantee 
agrees to execute or to have executed and promptly deliver to NSF all 
instruments necessary to:
    (i) Establish or confirm the rights the Government has throughout 
the world in those subject inventions for which the grantee retains 
title, and
    (ii) Convey title to NSF when requested under paragraph (d) above, 
and to enable the Government to obtain patent protection throughout the 
world in that subject invention.
    (2) The grantee agrees to require, by written agreement, its 
employees, other than clerical and non-technical employees, to disclose 
promptly in writing to personnel identified as responsible for the 
administration of patent matters and in a format suggested by the 
grantee each subject invention made under this grant in order that the 
grantee can comply with the disclosure provisions of paragraph (c) 
above, and to execute all papers necessary to file patent applications 
on subject inventions and to establish the Government's rights in the 
subject inventions.

[[Page 203]]

The disclosure format should require, at a minimum, the information 
requested by paragraph (c)(1) above. The grantee shall instruct such 
employees through the employee agreements or other suitable educational 
programs on the importance of reporting inventions in sufficient time to 
permit the filing of patent applications prior to U.S. or foreign 
statutory bars.
    (3) The grantee will notify NSF of any decision not to continue 
prosecution of a patent application, pay maintenance fees, or defend in 
a reexamination or opposition proceeding on a patent, in any country, 
not less than thirty days before the expiration of the response period 
required by the relevant patent office.
    (4) The grantee agrees to include, within the specification of any 
United States patent application and any patent issuing thereon covering 
a subject invention, the following statement: ``This invention was made 
with Government support under (identify the grant) awarded by the 
National Science Foundation. The Government has certain rights in this 
invention.''
    (5) The grantee or its representative will complete, execute, and 
forward to NSF a confirmation of a License to the United States 
Government and the page of a United States patent application that 
contains the Federal support clause within two months of filing any 
domestic or foreign patent application.
    (g) Subcontracts. (1) The grantee will include this Patents Rights 
clause, suitably modified to identify the parties, in all subcontracts, 
regardless of tier, for experimental, developmental, or research work. 
The subcontractor will retain all rights provided for the grantee in 
this Patents Rights clause, and the grantee will not, as part of the 
consideration for awarding the subcontract, obtain rights in the 
subcontractor's subject inventions.
    (2) In the case of subcontracts, at any tier, when the prime award 
by the Foundation was a contract (but not a grant or cooperative 
agreement), NSF, subcontractor, and contractor agree that the mutual 
obligations of the parties created by this Patents Rights clause 
constitute a contract between the subcontractor and the Foundation with 
respect to those matters covered by this Patents Rights clause.
    (h) Reporting on Utilization of Subject Inventions. The grantee 
agrees to submit on request periodic reports no more frequently than 
annually on the utilization of a subject invention or on efforts at 
obtaining such utilization that are being made by the grantee or its 
licensees or assignees. Such reports shall include information regarding 
the status of development, date of first commercial sale or use, gross 
royalties received by the grantee, and such other data and information 
as NSF may reasonably specify. The grantee also agrees to provide 
additional reports in connection with any march-in proceeding undertaken 
by NSF in accordance with paragraph (j) of this Patents Rights clause. 
As required by 35 U.S.C. 202(c)(5), NSF agrees it will not disclose such 
information to persons outside the Government without the permission of 
the grantee.
    (i) Preference for United States Industry. Notwithstanding any other 
provision of this Patents Rights clause, the grantee agrees that neither 
it nor any assignee will grant to any person the exclusive right to use 
or sell any subject invention in the United States unless such person 
agrees that any products embodying the subject invention or produced 
through the use of the subject invention will be manufactured 
substantially in the United States. However, in individual cases, the 
requirement for such an agreement may be waived by NSF upon a showing by 
the grantee or its assignee that reasonable but unsuccessful efforts 
have been made to grant licenses on similar terms to potential licensees 
that would be likely to manufacture substantially in the United States 
or that under the circumstances domestic manufacture is not commercially 
feasible.
    (j) March-in Rights. The grantee agrees that with respect to any 
subject invention in which it has acquired title, NSF has the right in 
accordance with procedures at 37 CFR 401.6 and NSF regulations at 45 CFR 
650.13 to require the grantee, an assignee or exclusive licensee of a 
subject invention to grant a nonexclusive, partially exclusive, or 
exclusive license in any field of use to a responsible applicant or 
applicants, upon terms that are reasonable under the circumstances, and 
if the grantee, assignee, or exclusive licensee refuses such a request, 
NSF has the right to grant such a license itself if NSF determines that:
    (1) Such action is necessary because the grantee or assignee has not 
taken, or is not expected to take within a reasonable time, effective 
steps to achieve practical application of the subject invention in such 
field of use;
    (2) Such action is necessary to alleviate health or safety needs 
which are not reasonably satisfied by the grantee, assignee, or their 
licensees;
    (3) Such action is necessary to meet requirements for public use 
specified by Federal regulations and such requirements are not 
reasonably satisfied by the grantee, assignee, or licensee; or
    (4) Such action is necessary because the agreement required by 
paragraph (i) of this Patents Rights clause has not been obtained or 
waived or because a licensee of the exclusive right to use or sell any 
subject invention in the United States is in breach of such agreement.

[[Page 204]]

    (k) Special Provisions for Grants with Nonprofit Organizations. If 
the grantee is a nonprofit organization, it agrees that:
    (1) Rights to a subject invention in the United States may not be 
assigned without the approval of NSF, except where such assignment is 
made to an organization which has as one of its primary functions the 
management of inventions, provided that such assignee will be subject to 
the same provisions as the grantee;
    (2) The grantee will share royalties collected on a subject 
invention with the inventor, including Federal employee co-inventors 
(when NSF deems it appropriate) when the subject invention is assigned 
in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10;
    (3) The balance of any royalties or income earned by the grantee 
with respect to subject inventions, after payment of expenses (including 
payments to inventors) incidental to the administration of subject 
inventions, will be utilized for the support of scientific research or 
education; and
    (4) It will make efforts that are reasonable under the circumstances 
to attract licensees of subject inventions that are small business firms 
and that it will give preference to a small business firm if the grantee 
determines that the small business firm has a plan or proposal for 
marketing the invention which, if executed, is equally likely to bring 
the invention to practical application as any plans or proposals from 
applicants that are not small business firms; provided that the grantee 
is also satisfied that the small business firm has the capability and 
resources to carry out it plan or proposal. The decision whether to give 
a preference in any specific case will be at the discretion of the 
grantee. However, the grantee agrees that the Secretary of Commerce may 
review the grantee's licensing program and decisions regarding small 
business applicants, and the grantee will negotiate changes to its 
licensing policies, procedures, or practices with the Secretary when the 
Secretary's review discloses that the grantee could take reasonable 
steps to implement more effectively the requirements of this paragraph 
(k)(4).
    (l) Communications. All communications required by this Patents 
Rights clause should be sent to: Patent Assistant, Office of the General 
Counsel, National Science Foundation, 4201 Wilson Boulevard, Arlington, 
VA 22230.

    (b) When the above Patent Rights clause is used in a funding 
agreement other than a grant, ``grant'' and ``grantee'' may be replaced 
by ``contract'' and ``contractor'' or other appropriate terms.

(Approved by the Office of Management and Budget under control number 
3145-0084)

[57 FR 18053, Apr. 28, 1992, as amended at 59 FR 37438, July 22, 1994; 
62 FR 49938, Sept. 24, 1997]



Sec. 650.5  Special patent provisions.

    At the request of the prospective awardee or on recommendation from 
NSF staff, a Grants or Contracts Officer, with the concurrence of the 
cognizant Program Manager, may negotiate special patent provisions when 
he or she determines that exceptional circumstances require restriction 
or elimination of the right of a prospective awardee to retain title to 
any subject invention in order to better promote the policy and 
objectives of chapter 18 of title 35 of the United States Code or the 
National Science Foundation Act. The Grants or Contracts Officer will 
prepare the written determination required by Sec. 401.3(e) of title 37 
of the Code of Federal Regulations and assure that appropriate reports 
are made to the Secretary of Commerce and Chief Counsel for Advocacy of 
the Small Business Administration as required in Sec. 401.3(f). Unless 
doing so would be inconsistent with an obligation imposed on the 
Foundation by statute, international agreement, or pact with other 
participants in or supporters of the research, every special patent 
provision will allow the awardee, after an invention has been made, to 
request that it be allowed to retain principal rights to that invention 
under Sec. 650.12(e) of this regulation.



Sec. 650.6  Awards not primarily for research.

    (a) Awards not primarily intended to support scientific or 
engineering research need contain no patent provision. Examples of such 
awards are travel and conference grants.
    (b) NSF fellowships and traineeships are primarily intended to 
support education or training, not particular research. Therefore, in 
accordance with section 212 of title 35 of the United States Code, the 
Foundation claims no rights to inventions made by fellows or trainees. 
The following provision will be included in each fellowship or

[[Page 205]]

traineeship program announcement and made part of the award:

                      Intellectual Property Rights

    The National Science Foundation claims no rights to any inventions 
or writings that might result from its fellowship or traineeship awards. 
However, fellows and trainees should be aware that the NSF, another 
Federal agency, or some private party may acquire such rights through 
other support for particular research. Also, fellows and trainees should 
note their obligation to include an Acknowledgment and Disclaimer in any 
publication.



Sec. 650.7  Awards affected by international agreements.

    (a) Some NSF awards are made as part of international cooperative 
research programs. The agreements or treaties underlying many of these 
programs require an allocation of patent rights different from that 
provided by the Patent Rights clause in Sec. 650.4(a). Therefore, as 
permitted by Sec. 401.5(d) of the implementing regulations for the 
Bayh-Dole Act (37 CFR 401.5(d)), paragraph (b) of the standard Patent 
Rights clause in Sec. 650.4(a) has been modified to provide that the 
Foundation may require the grantee to transfer to a foreign government 
or research performer such rights in any subject invention as are 
contemplated in the international agreement. The award instrument will 
identify the applicable agreement or treaty.
    (b) After an invention is disclosed to the Patent Assistant, the 
recipient of an award subject to an international agreement will be 
informed as to what rights, if any, it must transfer to foreign 
participants. Recipients may also ask the Program Manager to provide 
them with copies of the identified international agreements before or 
after accepting an award.



Sec. 650.8  Retention of rights by inventor.

    If an awardee elects not to retain rights to an invention, the 
inventor may request the NSF Patent Assistant for permission to retain 
principal patent rights. Such requests should be made as soon as 
possible after the awardee notifies the Patent Assistant that it does 
not want to patent the invention. Such requests will normally be granted 
unless either the awardee or the employer of the inventor shows that it 
would be harmed by that action. As required by Sec. 401.9 of the 
implementing regulations for the Bayh-Dole Act (37 CFR 401.9), the 
inventor will be subject to the same conditions that the awardee would 
have been, except that the special restrictions imposed on nonprofit 
organizations will not apply to the inventor.



Sec. 650.9  Unwanted inventions.

    (a) The Foundation will normally allow any patent rights not wanted 
by the awardee or inventor to be dedicated to the public through 
publication in scientific and engineering journals or as a statutory 
invention registration under section 157 of title 35 of the United 
States Code. Except as provided in paragraph (b) of this section, the 
NSF Patent Assistant will acknowledge a negative election by encouraging 
the awardee and inventor to promptly make all research results available 
to the scientific and engineering community.
    (b) If the NSF Patent Assistant believes that another Federal agency 
is interested in the relevant technology, he or she may, after receiving 
the awardee's election not to patent and ascertaining that the inventor 
also does not want to patent, send a copy of the invention disclosure to 
that agency to give it an opportunity to review and patent the 
invention. Unless the agency expresses an interest in the invention 
within thirty days, the Patent Assistant will acknowledge the awardee's 
negative election by encouraging prompt publication of all research 
results. If the agency does express an interest in patenting the 
invention, the Patent Assistant will transfer to it all rights to the 
invention.



Sec. 650.10  Inventions also supported by another Federal Agency.

    Section 401.13(a) of the implementing regulation for the Bayh-Dole 
Act (37 CFR 401.13(a)) provides that in the event that an invention is 
made under funding agreements of more than one federal agency, the 
agencies involved will, at the request of the grantee or contractor or 
on their own initiative, designate one agency to be responsible

[[Page 206]]

for the administration of the invention. Whenever the NSF Patent 
Assistant finds that another agency also supported an NSF subject 
invention, he or she will consult with the grantee or contractor and 
appropriate personnel in the other agency to determine if a single 
agency should be designated to administer the Government's rights in the 
invention. The Patent Assistant may transfer to, or accept from, any 
other Federal agency, responsibility for administering a jointly-
supported invention.



Sec. 650.11  Utilization reports.

    Paragraph (h) of the standard Patent Rights clause set forth in 
Sec. 650.4 obliges grantees ``to submit on request periodic reports no 
more frequently than annually on the utilization of a subject invention 
or on efforts at obtaining such utilization''. At this time, the 
Foundation does not plan to request such reports except in connection 
with march-in investigations conducted under Sec. 650.13. This section 
will be amended to describe periodic reporting requirements if such are 
ever established.

[57 FR 18053, Apr. 28, 1992, as amended at 59 FR 37438, July 22, 1994]



Sec. 650.12  Waivers and approvals.

    (a) Requests for extension of time to disclose to the NSF Patent 
Assistant, make an election to retain title to, or file a patent on a 
subject invention will be granted by the NSF Patent Assistant unless he 
or she determines that such an extension would either imperil the 
securing of valid patent protection or unacceptably restrict the 
publication of the results of the NSF-supported research.
    (b) Approval of assignments by nonprofit organizations (required by 
subparagraph (k)(1) of the Patent Rights clause in Sec. 650.4(a)) will 
be given by the Patent Assistant unless he or she determines that the 
interests of the United States Government will be adversely affected by 
such assignment.
    (c) Approval of long-term exclusive licensing of NSF-assisted 
inventions by nonprofit organizations (restricted by earlier versions of 
the NSF Patents Rights clause and by pre-Bayh-Dole Institutional Patent 
Agreements and waiver conditions) will be given by the Patent Assistant 
unless he or she determines that the interests of the United States 
Government will be adversely affected by such waiver.
    (d) The preference for United States industry imposed by paragraph 
(i) of the Patent Rights clause in Sec. 650.4(a) may be waived by the 
NSF Patent Assistant as provided in that paragraph.
    (e) Special restrictions on or limitation of the right of an awardee 
to retain title to subject inventions imposed under Sec. 650.5 of this 
regulation may be waived by the Grants or Contracting Officer whenever 
he or she determines, after consultation with the cognizant Program 
Manager, that the reasons for imposing the restrictions or limitations 
do not require their application to a particular invention.
    (f) Requests for approvals and waiver under this section should be 
addressed to the NSF Patent Assistant as provided in paragraph (1) of 
the Patent Rights clause in Sec. 650.4(a). Requests under paragraph (a) 
of this section for extensions of time to disclose, elect, or file may 
be made by telephone or electronic mail as well as in writing. A written 
request for extension of time to disclose, elect, or file can be assumed 
to have been approved unless the Patent Assistant replies negatively 
within ten business days of the date such request was mailed, 
telecopied, or otherwise dispatched. Requests for approvals or waivers 
under paragraphs (b), (c), (d), and (e) of this section must be in 
writing and should explain why an approval or waiver is justified under 
the stated criteria. The requester will be given a written explanation 
of the reasons for denial of a request covered by this section.



Sec. 650.13  Exercise of march-in rights.

    (a) The procedures established by this section supplement those 
prescribed by Sec. 401.6 of the implementing regulation for the Bayh-
Dole Act (37 CFR Sec. 401.6) and apply to all march-in rights held by 
NSF including those resulting from funding agreements not covered by the 
Bayh-Dole Act.
    (b) Petitions requesting that the NSF exercise a march-in right 
should be addressed to the NSF Patent Assistant. Such petitions should:

[[Page 207]]

    (1) Identify the patent or patent application involved and the 
relevant fields of use of the invention;
    (2) State the grounds for the proposed march-in;
    (3) Supply evidence that one or more of the four conditions creating 
a march-in right (lack of practical application, unsatisfied health or 
safety needs, unmet requirements for public use, or failure to prefer 
United States industry) is present; and
    (4) Explain what action by the Foundation is necessary to correct 
that condition.
    (c) If evidence received from a petitioner or from the Foundation's 
administration of the Patent Rights clause indicates that one or more of 
the four conditions creating a march-in right might exist, the NSF 
Patent Assistant will informally review the matter as provided in Sec. 
401.6(b) of the implementing regulation. If that informal review 
indicates that one or more of the four conditions creating a march-in 
right probably exists, the Patent Assistant will initiate a formal 
march-in proceeding by issuing a written notice to the patent holder. 
That notice will provide all the information required by Sec. 401.6(c) 
of the implementing regulation. The patent holder may submit information 
and argument in opposition to the proposed march-in in person, in 
writing, or through a representative.
    (d) If the NSF Patent Assistant determines that a genuine dispute 
over material facts exists, he or she will identify the disputed facts 
and notify the NSF General Counsel. The General Counsel will create a 
cross-directorate fact-finding panel, which will establish its own fact-
finding procedures within the requirements of Sec. 401.6(e) of the 
implementing regulation based on the dimensions of the particular 
dispute. The Patent Assistant will serve as secretary to the panel, but 
will not take part in its deliberations. Written findings of facts will 
be submitted to the General Counsel, sent by certified mail to the 
patent holder, and made available to all other interested parties.
    (e) The NSF General Counsel will determine whether and how the 
Foundation should exercise a march-in right as provided in Sec. 
401.6(g) of the implementing regulation.



Sec. 650.14  Request for conveyance of title to NSF.

    (a) The procedures established by this section apply to the exercise 
of the Foundation's right under paragraph (d) of the Patent Rights 
clause in Sec. 650.4(a) to request conveyance of title to a subject 
invention if certain conditions exist.
    (b) The NSF Patent Assistant may request the recipient of an NSF 
award to convey to the Foundation or a designee title in one or more 
countries to any invention to which the awardee has elected not to 
retain title. The NSF Patent Assistant may request immediate conveyance 
of title to a subject invention if the awardee fails (1) to submit a 
timely invention disclosure, (2) to make a timely election to retain 
patent rights, or (3) to file a timely patent application; but only if 
he or she determines that such action is required to preserve patent 
rights.
    (c) The NSF Patent Assistant will informally review any apparent 
failure by an awardee to comply with the requirements of paragraph (c) 
of the Patent Rights clause in Sec. 650.4(a). The interested 
institution, the inventor, the patent holder, and any other interested 
party will be given an opportunity to explain why a particular invention 
was not disclosed, why an election was not made, or why a patent 
application was not filed. If the Patent Assistant determines that a 
genuine dispute over material facts exists, a cross-directorate fact-
finding panel will be appointed by the General Counsel. The panel will 
establish its own fact-finding procedures based on the dimensions of the 
particular dispute. Written findings of facts will be submitted to the 
General Counsel, sent by certified mail to the patent holder, and made 
available to all other interested parties.
    (d) The NSF General Counsel will determine whether the Foundation 
should request conveyance of title or if it should retain title obtained 
under Sec. 650.14(b).



Sec. 650.15  Appeals.

    (a) All actions by the NSF Patent Assistant under Sec. 650.8 
denying an inventor's request to retain rights to a subject invention, 
under Sec. 650.12 denying a request for waiver, or under Sec. 
650.14(d)

[[Page 208]]

denying the existence of a material dispute may be appealed to the 
Director of the NSF Division of Grants and Contracts by an affected 
party within thirty days. A request under Sec. 650.14(b) to immediately 
convey title to the Foundation may be appealed to the DGC Director by 
the title holder within five days.
    (b) All actions by a Grants and Agreements Officer or Contracting 
Officer refusing to eliminate restrictions on or limitation of the right 
of an awardee to retain title to subject inventions imposed under Sec. 
650.5 of this regulation may be appealed to the Director of the NSF 
Division of Contracts, Policy, and Oversight (CPO) by an affected party 
within thirty days.
    (c) A decision by the General Counsel to exercise a march-in right 
or to request conveyance of title may be appealed by the patent holder 
or any affected licensee to the NSF Deputy Director within thirty days. 
When a march-in was initiated in response to a petition, the General 
Counsel's decision not to exercise a march-in right or to exercise it in 
a manner different from that requested in the petition may be appealed 
by the petitioner to the NSF Deputy Director within thirty days.
    (d) In reviewing the actions of the NSF Patent Assistant, a Grants 
and Agreements Officer, a Contracting Officer, or the General Counsel, 
the CPO Director or NSF Deputy Director will consider both the factual 
and legal basis for the action or determination and its consistency with 
the policies and objectives of the Foundation and, if applicable, the 
Bayh-Dole Act (35 U.S.C. 200-212) and implementing regulations at part 
401 of title 37 of the Code of Federal Regulations.

[57 FR 18053, Apr. 28, 1992, as amended at 61 FR 51022, Sept. 30, 1996]



Sec. 650.16  Background rights.

    The Foundation will acquire rights to a research performer's pre-
existing technology only in exceptional circumstances where, due to the 
nature of the research being supported, the Foundation requires greater 
control over resulting inventions. The NSF Grants or Contracts Officer, 
with concurrence of the cognizant Program Manager, will negotiate a 
background rights provision. If the affected awardee is a small business 
firm or nonprofit organization, the provision will conform to the 
requirements of the Bayh-Dole Act (35 U.S.C. 202(f)) as implemented by 
37 CFR 401.12).



Sec. 650.17  Subcontracts.

    As provided in paragraph (g) of the Patent Rights clause in Sec. 
650.4(a), awardees should normally use that clause in all subcontracts. 
At the request of the awardee or subcontractor or on recommendation from 
NSF staff, the cognizant Grants or Contracts Officer may direct the 
awardee to insert into subcontracts relating to scientific research a 
special patent provision negotiated under Sec. 650.5.



Sec. 650.18  Delegation of authority.

    The General Counsel is responsible for implementing this regulation 
and is authorized to make any exceptions to or extensions of the NSF 
Patent Policy as may be required by particular circumstances. The 
General Counsel will designate the NSF Patent Assistant and that 
individual is authorized to carry out the functions assigned by this 
regulation.



Sec. 650.19  Electronic invention handling.

    (a) Grantees are encouraged to use the Edison Invention Information 
Management System maintained by the National Institutes of Health to 
disclose NSF subject inventions. Detailed instructions for use of that 
system are provided at http://era.info.nih.gov/Edison/ and should be 
followed for NSF subject inventions except that:
    (1) All written communications required should be addressed to the 
Patent Assistant, Office of the General Counsel, National Science 
Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
    (2) NSF does not require either an Annual Utilization Report or a 
Final Invention Statement and Certification.
    (b) Questions on use of Edison may be sent to the NSF Patent 
Assistant at [email protected].

[62 FR 49938, Sept. 24, 1997]

[[Page 209]]

    Appendix A to Part 650--Optional Format for Confirmatory License

    The following format may be used for the confirmatory license to the 
Government required by subparagraph (f)(5) of the Patent Rights clause 
in Sec. 650.4(a). Any equivalent instrument may also be used.

                 License to the United States Government

    This instrument confirms to the United States Government, as 
represented by the National Science Foundation, an irrevocable, 
nonexclusive, nontransferable, royalty-free license to practice or have 
practiced on its behalf throughout the world the following subject 
invention:

(invention title)

(inventor[s] name[s])

(patent application number and filing date)

(country, if other than United States)

(NSF Disclosure No.).

    This subject invention was made with NSF support through:

(grant or contract number)

(grantee or contractor).

    Principal rights to this subject invention have been left with the 
licensor.

 Signed:________________________________________________________________

 Name:__________________________________________________________________

 Title:_________________________________________________________________

 Date:__________________________________________________________________

    Accepted on behalf of the Government:

                          NSF Patent Assistant

 Date:__________________________________________________________________



PART 660_INTERGOVERNMENTAL REVIEW OF THE NATIONAL SCIENCE FOUNDATION 
PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
660.1 What is the purpose of these regulations?
660.2 What definitions apply to these regulations?
660.3 What programs and activities of the Foundation are subject to 
          these regulations?
660.4 [Reserved]
660.5 What is the Director's obligation with respect to Federal 
          interagency coordination?
660.6 What procedures apply to the selection of programs and activities 
          under these regulations?
660.7 How does the Director communicate with state and local officials 
          concerning the Foundation's programs and activities?
660.8 How does the Director provide states an opportunity to comment on 
          proposed Federal financial assistance and direct Federal 
          development?
660.9 How does the Director receive and respond to comments?
660.10 How does the Director make efforts to accommodate 
          intergovernmental concerns?
660.11 What are the Director's obligations in interstate situations?
660.12 [Reserved]
660.13 May the Director waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended Apr. 
8, 1983 (48 FR 15887); and sec. 401 of the Intergovernmental Cooperation 
Act of 1968 and as amended (31 U.S.C. 6506).

    Source: 48 FR 29365, June 24, 1983, unless otherwise noted.



Sec. 660.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovermental Cooperation 
Act of 1968.
    (b) These regulations are intended to foster an intergovermental 
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 Foundation, and are not intended to create any right or benefit 
enforceable at law by a party against the Foundation or its officers.



Sec. 660.2  What definitions apply to these regulations?

    Foundation means the National Science Foundation.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Director means the Director of the National Science Foundation or an 
official or employee of the Foundation acting for the Director under a 
delegation of authority.

[[Page 210]]

    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. 660.3  What programs and activities of the Foundation are subject 
to these regulations?

    The Director publishes in the Federal Register a list of the 
Foundation's programs and activities that are subject to these 
regulations.



Sec. 660.4  [Reserved]



Sec. 660.5  What is the Director's obligation with respect to Federal 
interagency coordination?

    The Director, 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 Foundation regarding programs and activities covered under these 
regulations.



Sec. 660.6  What procedures apply to the selection of programs and 
activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 660.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Director of 
the Foundation's programs and activities selected for that process.
    (c) A state may notify the Director of changes in its selections at 
any time. For each change, the state shall submit to the Director an 
assurance that the state has consulted with elected local elected 
officials regarding the change. The Foundation may establish deadlines 
by which states are required to inform the Director of changes in their 
program selections.
    (d) The Director uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Director is 
notified of its selections.



Sec. 660.7  How does the Director communicate with state and local 
officials concerning the Foundation's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 660.6, the Director, 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 Director 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 Foundation in its discretion deems 
appropriate.



Sec. 660.8  How does the Director provide states an opportunity to 

comment on proposed Federal financial assistance and direct Federal 
development?

    (a) Except in unusual circumstances, the Director gives state 
processes or directly affected state, areawide, regional and local 
officials and entities:
    (1) At least 30 days from the date established by the Director to 
comment on proposed Federal financial assistance in covered programs 
(i.e., those referenced in Sec. 660.3) in the form of continuation 
awards that are not peer reviewed; and
    (2) At least 60 days from the date established by the Director to 
comment on proposed direct Federal development or Federal financial 
assistance in covered programs (i.e., those referenced Sec. 660.3) 
other than continuation awards that are not peer reviewed.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Foundation have been 
delegated.

[[Page 211]]



Sec. 660.9  How does the Director receive and respond to comments?

    (a) The Director follows the procedures in Sec. 660.10 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. 660.6.
    (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 Foundation.
    (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 Foundation. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Foundation by the single point of contact, the 
Director follows the procedures of Sec. 660.10 of this part.
    (e) The Director considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Director is not required to apply the procedures of Sec. 660.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Foundation by a commenting party.



Sec. 660.10  How does the Director make efforts to accommodate 
intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Foundation through its single point of contact, the Director 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 Director in his or her discretion 
deems appropriate. The Director 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 
Director informs the single point of contact that:
    (1) The Foundation will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Director 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. 660.11  What are the Director's obligations in interstate 
situations?

    (a) The Director 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 Foundation'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 
Foundation's program or activity;
    (4) Responding pursuant to Sec. 660.10 of this part if the Director 
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 Foundation have been delegated.
    (b) The Director uses the procedures in Sec. 660.10 if a state 
process provides a state process recommendation to the

[[Page 212]]

Foundation through a single point of contact.



Sec. 660.12  [Reserved]



Sec. 660.13  May the Director waive any provision of these regulations?

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



PART 670_CONSERVATION OF ANTARCTIC ANIMALS AND PLANTS--Table of Contents




                         Subpart A_Introduction

Sec.
670.1 Purpose of regulations.
670.2 Scope.
670.3 Definitions.

                  Subpart B_Prohibited Acts, Exceptions

670.4 Prohibited acts.
670.5 Exception in extraordinary circumstances.
670.6 Prior possession exception.
670.7 Food exception.
670.8 Foreign permit exception.
670.9 Antarctic Conservation Act enforcement exception.
670.10 [Reserved]

                            Subpart C_Permits

670.11 Applications for permits.
670.12 General issuance criteria.
670.13 Permit administration.
670.14 Conditions of permits.
670.15 Modification, suspension, and revocation.
670.16 [Reserved]

       Subpart D_Native Mammals, Birds, Plants, and Invertebrates

670.17 Specific issuance criteria.
670.18 Content of permit applications.
670.19 Designation of native mammals.
670.20 Designation of native birds.
670.21 Designation of native plants.
670.22 [Reserved]

   Subpart E_Specially Protected Species of Mammals, Birds, and Plants

670.23 Specific issuance criteria.
670.24 Content of permit applications.
670.25 Designation of specially protected species of native mammals, 
          birds and plants.
670.26 [Reserved]

              Subpart F_Antarctic Specially Protected Areas

670.27 Specific issuance criteria.
670.28 Content of permit applications.
670.29 Designation of Antarctic specially protected areas.
670.30 [Reserved]

         Subpart G_Import Into and Export From the United States

670.31 Specific issuance criteria for imports.
670.32 Specific issuance criteria for exports.
670.33 Content of permit applications.
670.34 Entry and exit ports.
670.35 [Reserved]

       Subpart H_Introduction of Non-Indigenous Plants and Animals

670.36 Specific issuance criteria.
670.37 Content of permit applications.
670.38 Conditions of permits.
670.39 [Reserved]

    Authority: 16 U.S.C. 2405, as amended.

    Source: 63 FR 50164, Sept. 21, 1998, unless otherwise noted.



                         Subpart A_Introduction



Sec. 670.1  Purpose of regulations.

    The purpose of the regulations in this part is to conserve and 
protect the native mammals, birds, plants, and invertebrates of 
Antarctica and the ecosystem upon which they depend and to implement the 
Antarctic Conservation Act of 1978, Public Law 95-541, as amended by the 
Antarctic Science, Tourism, and Conservation Act of 1996, Public Law 
104-227.



Sec. 670.2  Scope.

    The regulations in this part apply to:
    (a) Taking mammals, birds, or plants native to Antarctica.
    (b) Engaging in harmful interference of mammals, birds, 
invertebrates, or plants native to Antarctica.
    (c) Entering or engaging in activities within Antarctic Specially 
Protected Areas.
    (d) Receiving, acquiring, transporting, offering for sale, selling, 
purchasing, importing, exporting or having custody, control, or 
possession of any mammal, bird, or plant native to Antarctica that was 
taken in violation of the Act.

[[Page 213]]

    (e) Introducing into Antarctica any member of a non-native species.



Sec. 670.3  Definitions.

    In this part:
    Act means the Antarctic Conservation Act of 1978, Public Law 95-541 
(16 U.S.C. 2401 et seq.) as amended by the Antarctic Science, Tourism, 
and Conservation Act of 1996, Public Law 104-227.
    Antarctic Specially Protected Area means an area designated by the 
Antarctic Treaty Parties to protect outstanding environmental, 
scientific, historic, aesthetic, or wilderness values or to protect 
ongoing or planned scientific research, designated in subpart F of this 
part.
    Antarctica means the area south of 60 degrees south latitude.
    Director means the Director of the National Science Foundation, or 
an officer or employee of the Foundation designated by the Director.
    Harmful interference means--
    (a) Flying or landing helicopters or other aircraft in a manner that 
disturbs concentrations of birds or seals;
    (b) Using vehicles or vessels, including hovercraft and small boats, 
in a manner that disturbs concentrations of birds or seals;
    (c) Using explosives or firearms in a manner that disturbs 
concentrations of birds or seals;
    (d) Willfully disturbing breeding or molting birds or concentrations 
of birds or seals by persons on foot;
    (e) Significantly damaging concentrations of native terrestrial 
plants by landing aircraft, driving vehicles, or walking on them, or by 
other means; and
    (f) Any activity that results in the significant adverse 
modification of habitats of any species or population of native mammal, 
native bird, native plant, or native invertebrate.
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into or introduce into, any place subject to the 
jurisdiction of the United States, including the 12-mile territorial sea 
of the United States, whether or not such act constitutes an importation 
within the meaning of the customs laws of the United States.
    Management plan means a plan to manage the activities and protect 
the special value or values in an Antarctic Specially Protected Area 
designated by the United States as such a site consistent with plans 
adopted by the Antarctic Treaty Consultative Parties.
    Native bird means any member, at any stage of its life cycle, of any 
species of the class Aves which is indigenous to Antarctica or occurs 
there seasonally through natural migrations, that is designated in 
subpart D of this part. It includes any part, product, egg, or offspring 
of or the dead body or parts thereof excluding fossils.
    Native invertebrate means any terrestrial or freshwater 
invertebrate, at any stage of its life cycle, which is indigenous to 
Antarctica. It includes any part thereof, but excludes fossils.
    Native mammal means any member, at any stage of its life cycle, of 
any species of the class Mammalia, which is indigenous to Antarctica or 
occurs there seasonally through natural migrations, that is designated 
in subpart D of this part. It includes any part, product, offspring of 
or the dead body or parts thereof but excludes fossils.
    Native plant means any terrestrial or freshwater vegetation, 
including bryophytes, lichens, fungi, and algae, at any stage of its 
life cycle which is indigenous to Antarctica that is designated in 
subpart D of this part. It includes seeds and other propagules, or parts 
of such vegetation, but excludes fossils.
    Person has the meaning given that term in section 1 of title 1, 
United States Code, and includes any person subject to the jurisdiction 
of the United States and any department, agency, or other 
instrumentality of the Federal Government or of any State or local 
government.
    Protocol means the Protocol on Environmental Protection to the 
Antarctic Treaty, signed October 4, 1991, in Madrid, and all annexes 
thereto, including any future amendments to which the United States is a 
Party.
    Specially Protected Species means any native species designated as a 
Specially Protected Species that is designated in subpart E of this 
part.
    Take or taking means to kill, injure, capture, handle, or molest a 
native

[[Page 214]]

mammal or bird, or to remove or damage such quantities of native plants 
that their local distribution or abundance would be significantly 
affected or to attempt to engage in such conduct.
    Treaty means the Antarctic Treaty signed in Washington, DC on 
December 1, 1959.
    United States means the several states of the Union, the District of 
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin 
Islands, Guam, the Commonwealth of the Northern Mariana Islands, and 
other commonwealth, territory, or possession of the United States.



                  Subpart B_Prohibited Acts, Exceptions



Sec. 670.4  Prohibited acts.

    Unless a permit has been issued pursuant to subpart C of this part 
or unless one of the exceptions stated in Sec. Sec. 670.5 through 670.9 
is applicable, it is unlawful to commit, attempt to commit, or cause to 
be committed any of the acts described in paragraphs (a) through (g) of 
this section.
    (a) Taking of native mammal, bird or plants. It is unlawful for any 
person to take within Antarctica a native mammal, a native bird, or 
native plants.
    (b) Engaging in harmful interference. It is unlawful for any person 
to engage in harmful interference in Antarctica of native mammals, 
native birds, native plants or native invertebrates.
    (c) Entry into Antarctic specially designated areas. It is unlawful 
for any person to enter or engage in activities within any Antarctic 
Specially Protected Area.
    (d) Possession, sale, export, and import of native mammals, birds, 
and plants. It is unlawful for any person to receive, acquire, 
transport, offer for sale, sell, purchase, export, import, or have 
custody, control, or possession of, any native bird, native mammal, or 
native plant which the person knows, or in the exercise of due care 
should have known, was taken in violation of the Act.
    (e) Introduction of non-indigenous animals and plants into 
Antarctica. It is unlawful for any person to introduce into Antarctica 
any animal or plant which is not indigenous to Antarctica or which does 
not occur there seasonally through natural migrations, as specified in 
subpart H of this part, except as provided in Sec. Sec. 670.7 and 
670.8.
    (f) Violations of regulations. It is unlawful for any person to 
violate the regulations set forth in this part.
    (g) Violation of permit conditions. It is unlawful for any person to 
violate any term or condition of any permit issued under subpart C of 
this part.



Sec. 670.5  Exception in extraordinary circumstances.

    (a) Emergency exception. No act described in Sec. 670.4 shall be 
unlawful if the person committing the act reasonably believed that the 
act was committed under emergency circumstances involving the safety of 
human life or of ships, aircraft, or equipment or facilities of high 
value, or the protection of the environment.
    (b) Aiding or salvaging native mammals or native birds. The 
prohibition on taking shall not apply to any taking of native mammals or 
native birds if such action is necessary to:
    (1) Aid a sick, injured or orphaned specimen;
    (2) Dispose of a dead specimen; or
    (3) Salvage a dead specimen which may be useful for scientific 
study.
    (c) Reporting. Any actions taken under the exceptions in this 
section shall be reported promptly to the Director.



Sec. 670.6  Prior possession exception.

    (a) Exception. Section 670.4 shall not apply to:
    (1) any native mammal, bird, or plant which is held in captivity on 
or before October 28, 1978; or
    (2) Any offspring of such mammal, bird, or plant.
    (b) Presumption. With respect to any prohibited act set forth in 
Sec. 670.4 which occurs after April 29, 1979, the Act creates a 
rebuttable presumption that the native mammal, native bird, or native 
plant involved in such act was not held in captivity on or before 
October 28, 1978, or was not an offspring referred to in paragraph (a) 
of this section.

[[Page 215]]



Sec. 670.7  Food exception.

    Paragraph (e) of Sec. 670.4 shall not apply to the introduction of 
animals and plants into Antarctica for use as food as long as animals 
and plants used for this purpose are kept under carefully controlled 
conditions. This exception shall not apply to living species of animals. 
Unconsumed poultry or its parts shall be removed from Antarctica unless 
incinerated, autoclaved or otherwise sterilized.



Sec. 670.8  Foreign permit exception.

    Paragraphs (d) and (e) of Sec. 670.4 shall not apply to 
transporting, carrying, receiving, or possessing native mammals, native 
plants, or native birds or to the introduction of non-indigenous animals 
and plants when conducted by an agency of the United States Government 
on behalf of a foreign national operating under a permit issued by a 
foreign government to give effect to the Protocol.



Sec. 670.9  Antarctic Conservation Act enforcement exception.

    Paragraphs (a) through (d) of Sec. 670.4 shall not apply to acts 
carried out by an Antarctic Conservation Act Enforcement Officer 
(designated pursuant to 45 CFR 672.3) if undertaken as part of the 
Antarctic Conservation Act Enforcement Officer's official duties.



Sec. 670.10  [Reserved]



                            Subpart C_Permits



Sec. 670.11  Applications for permits.

    (a) General content of permit applications. All applications for a 
permit shall be dated and signed by the applicant and shall contain the 
following information:
    (1) The name and address of the applicant;
    (i) Where the applicant is an individual, the business or 
institutional affiliation of the applicant must be included; or
    (ii) Where the applicant is a corporation, firm, partnership, or 
institution, or agency, either private or public, the name and address 
of its president or principal officer must be included.
    (2) Where the applicant seeks to engage in a taking,
    (i) The scientific names, numbers, and description of native 
mammals, native birds or native plants to be taken; and
    (ii) Whether the native mammals, birds, or plants, or part of them 
are to be imported into the United States, and if so, their ultimate 
disposition.
    (3) Where the applicant seeks to engage in a harmful interference, 
the scientific names, numbers, and description of native birds or native 
seals to be disturbed; the scientific names, numbers, and description of 
native plants to be damaged; or the scientific names, numbers, and 
description of native invertebrates, native mammals, native plants, or 
native birds whose habitat will be adversely modified;
    (4) A complete description of the location, time period, and manner 
in which the taking or harmful interference would be conducted, 
including the proposed access to the location;
    (5) Where the application is for the introduction of non-indigenous 
plants or animals, the scientific name and the number to be introduced;
    (6) Whether agents as referred to in Sec. 670.13 will be used; and
    (7) The desired effective dates of the permit.
    (b) Content of specific permit applications. In addition to the 
general information required for permit applications set forth in this 
subpart, the applicant must submit additional information relating to 
the specific action for which the permit is being sought. These 
additional requirements are set forth in the sections of this part 
dealing with the subject matter of the permit applications as follows:

Native Mammals, Birds, Plants, and Invertebrates--Section 670.17
Specially Protected Species--Section 670.23
Specially Protected Areas--Section 670.27
Import and Export--Section 670.31
Introduction of Non-Indigenous Plants and Animals--Section 670.36

    (c) Certification. Applications for permits shall include the 
following certification:

    I certify that the information submitted in this application for a 
permit is complete and accurate to the best of my knowledge and belief. 
Any false statement will subject me to the criminal penalties of 18 
U.S.C. 1001.


[[Page 216]]


    (d) Address to which applications should be sent. Each application 
shall be in writing, addressed to:

Permit Officer, Office of Polar Programs, National Science Foundation, 
Room 755, 4201 Wilson Boulevard, Arlington, Virginia 22230.

    (e) Sufficiency of application. The sufficiency of the application 
shall be determined by the Director. The Director may waive any 
requirement for information, or request additional information as 
determined to be relevant to the processing of the application.
    (f) Withdrawal. An applicant may withdraw an application at any 
time.
    (g) Publication of permit applications. The Director shall publish 
notice in the Federal Register of each application for a permit. The 
notice shall invite the submission by interested parties, within 30 days 
after the date of publication of the notice, of written data, comments, 
or views with respect to the application. Information received by the 
Director as a part of any application shall be available to the public 
as a matter of public record.



Sec. 670.12  General issuance criteria.

    Upon receipt of a complete and properly executed application for a 
permit and the expiration of the applicable public comment period, the 
Director will decide whether to issue the permit. In making the 
decision, the Director will consider, in addition to the specific 
criteria set forth in the appropriate subparts of this part:
    (a) Whether the authorization requested meets the objectives of the 
Act and the requirements of the regulations in this part;
    (b) The judgment of persons having expertise in matters germane to 
the application; and
    (c) Whether the applicant has failed to disclose material 
information required or has made false statements about any material 
fact in connection with the application.



Sec. 670.13  Permit administration.

    (a) Issuance of the permits. The Director may approve any 
application in whole or part. Permits shall be issued in writing and 
signed by the Director. Each permit may contain such terms and 
conditions as are consistent with the Act and this part.
    (b) Denial. The applicant shall be notified in writing of the denial 
of any permit request or part of a request and of the reason for such 
denial. If authorized in the notice of denial, the applicant may submit 
further information or reasons why the permit should not be denied. Such 
further submissions shall not be considered a new application.
    (c) Amendment of applications or permits. An applicant or permit 
holder desiring to have any term or condition of his application or 
permit modified must submit full justification and supporting 
information in conformance with the provisions of this subpart and the 
subpart governing the activities sought to be carried out under the 
modified permit. Any application for modification of a permit that 
involves a material change beyond the terms originally requested will 
normally be subject to the same procedures as a new application.
    (d) Notice of issuance or denial. Within 10 days after the date of 
the issuance or denial of a permit, the Director shall publish notice of 
the issuance or denial in the Federal Register.
    (e) Agents of the permit holder. The Director may authorize the 
permit holder to designate agents to act on behalf of the permit holder.
    (f) Marine mammals, endangered species, and migratory birds. If the 
Director receives a permit application involving any native mammal which 
is a marine mammal as defined by the Marine Mammal Protection Act of 
1972 (16 U.S.C. 1362(5)), any species which is an endangered or 
threatened species under the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) or any native bird which is protected under the Migratory 
Bird Treaty Act (16 U.S.C. 701 et seq.), the Director shall submit a 
copy of the application to the Secretary of Commerce or to the Secretary 
of the Interior, as appropriate. If the appropriate Secretary determines 
that a permit should not be issued pursuant to any of the cited acts, 
the Director shall not issue a permit. The Director shall inform the 
applicant of any denial by the appropriate Secretary and no further

[[Page 217]]

action shall be taken on the application. If, however, the appropriate 
Secretary issues a permit pursuant to the requirements of the cited 
acts, the Director still must determine whether the proposed action is 
consistent with the Act and the regulations in this part.



Sec. 670.14  Conditions of permits.

    (a) Possession of permits. Permits issued under the regulations in 
this part, or copies of them, must be in the possession of persons to 
whom they are issued and their agents when conducting the authorized 
action.
    (b) Display of permits. Any permit issued shall be displayed for 
inspection upon request to the Director, designated agents of the 
Director, or any person with enforcement responsibilities.
    (c) Filing of reports. Permit holders are required to file reports 
of the activities conducted under a permit. Reports shall be submitted 
to the Director not later than June 30 for the preceding 12 months.



Sec. 670.15  Modification, suspension, and revocation.

    (a) The Director may modify, suspend, or revoke, in whole or in 
part, any permit issued under this subpart:
    (1) In order to make the permit consistent with any change to any 
regulation in this part made after the date of issuance of this permit;
    (2) If there is any change in conditions which make the permit 
inconsistent with the purpose of the Act and the regulations in this 
part; or
    (3) In any case in which there has been any violation of any term or 
condition of the permit, any regulation in this part, or any provision 
of the Act.
    (b) Whenever the Director proposes any modifications, suspension, or 
revocation of a permit under this section, the permittee shall be 
afforded opportunity, after due notice, for a hearing by the Director 
with respect to such proposed modification, suspension or revocation. If 
a hearing is requested, the action proposed by the Director shall not 
take effect before a decision is issued by him after the hearing, unless 
the proposed action is taken by the Director to meet an emergency 
situation.
    (c) Notice of the modification, suspension, or revocation of any 
permit by the Director shall be published in the Federal Register, 
within 10 days from the date of the Director's decision.



Sec. 670.16  [Reserved]



       Subpart D_Native Mammals, Birds, Plants, and Invertebrates



Sec. 670.17  Specific issuance criteria.

    With the exception of specially protected species of mammals, birds, 
and plants designated in subpart E of this part, permits to engage in a 
taking or harmful interference:
    (a) May be issued only for the purpose of providing--
    (1) Specimens for scientific study or scientific information; or
    (2) Specimens for museums, zoological gardens, or other educational 
or cultural institutions or uses; or
    (3) For unavoidable consequences of scientific activities or the 
construction and operation of scientific support facilities; and
    (b) Shall ensure, as far as possible, that--
    (1) No more native mammals, birds, or plants are taken than are 
necessary to meet the purposes set forth in paragraph (a) of this 
section;
    (2) No more native mammals or native birds are taken in any year 
than can normally be replaced by net natural reproduction in the 
following breeding season;
    (3) The variety of species and the balance of the natural ecological 
systems within Antarctica are maintained; and
    (4) The authorized taking, transporting, carrying, or shipping of 
any native mammal or bird is carried out in a humane manner.



Sec. 670.18  Content of permit applications.

    In addition to the information required in subpart C of this part, 
an applicant seeking a permit to take a native mammal or native bird 
shall include a complete description of the project including the 
purpose of the proposed taking, the use to be made of the native mammals 
or native birds,

[[Page 218]]

and the ultimate disposition of the native mammals and birds. An 
applicant seeking a permit to engage in a harmful interference shall 
include a complete description of the project including the purpose of 
the activity which will result in the harmful interference. Sufficient 
information must be provided to establish that the taking, harmful 
interference, transporting, carrying, or shipping of a native mammal or 
bird shall be humane.



Sec. 670.19  Designation of native mammals.

    The following are designated native mammals:

Pinnipeds:
    Crabeater seal--Lobodon carcinophagus.
    Leopard seal--Hydrurga leptonyx.
    Ross seal--Ommatophoca rossi.\1\
---------------------------------------------------------------------------

    \1\ These species of mammals have been designated as specially 
protected species and are subject to subpart E of this part.
---------------------------------------------------------------------------

    Southern elephant seal--Mirounga leonina.
    Southern fur seals--Arctocephalus spp.\1\
    Weddell seal--Leptonychotes weddelli.
Large Cetaceans (Whales):
    Blue whale--Balaenoptera musculus.
    Fin whale--Balaenoptera physalus.
    Humpback whale--Megaptera novaeangliae.
    Minke whale--Balaenoptera acutrostrata.
    Pygmy blue whale--Balaenoptera musculus brevicauda
    Sei whale--Balaenoptera borealis
    Southern right whale--Balaena glacialis australis
    Sperm whale--Physeter macrocephalus
    Small Cetaceans (Dolphins and porpoises):
    Arnoux's beaked whale--Berardius arnuxii.
    Commerson's dolphin--Cephalorhynchus commersonii
    Dusky dolphin--Lagenorhynchus obscurus
    Hourglass dolphin--Lagenorhynchus cruciger
    Killer whale--Orcinus orca
    Long-finned pilot whale--Globicephala melaena
    Southern bottlenose whale--Hyperoodon planifrons.
    Southern right whale dolphin--Lissodelphis peronii
    Spectacled porpoise--Phocoena dioptrica



Sec. 670.20  Designation of native birds.

    The following are designated native birds:

                                Albatross

    Black-browed--Diomedea melanophris.
    Gray-headed--Diomedea chrysostoma.
    Light-mantled sooty--Phoebetria palpebrata.
    Wandering--Diomedea exulans.

                                 Fulmar

    Northern Giant--Macronectes halli.
    Southern--Fulmarus glacialoides.
    Southern Giant--Macronectes giganteus.

                                  Gull

    Southern Black-backed--Larus dominicanus.

                                 Jaeger

    Parasitic--Stercorarius parasiticus.
    Pomarine--Stercorarius pomarinsus

                                 Penguin

    Adelie--Pygoscelis adeliae.
    Chinstrap--Pygoscelis antarctica.
    Emperor--Aptenodytes forsteri.
    Gentoo--Pygoscelis papua.
    King--Aptenodytes patagonicus.
    Macaroni--Eudyptes chrysolophus.
    Rockhopper--Eudyptes crestatus.

                                 Petrel

    Antarctic--Thalassoica antarctica.
    Black-bellied Storm--Fregetta tropica.
    Blue--Halobaena caerulea.
    Gray--Procellaria cinerea.
    Great-winged--Pterodroma macroptera.
    Kerguelen--Pterodroma brevirostris.
    Mottled--Pterodroma inexpectata.
    Snow--Pagodroma nivea.
    Soft-plumaged--Pterodroma mollis.
    South-Georgia Diving--Pelecanoides georgicus.
    White-bellied Storm--Fregetta grallaria.
    White-chinned--Procellaria aequinoctialis.
    White-headed--Pterodroma lessoni.
    Wilson's Storm--Oceanites oceanicus.

                                 Pigeon

    Cape--Daption capense.

                                 Pintail

    South American Yellow-billed--Anas georgica spinicauda.

                                  Prion

    Antarctic--Pachyptila desolata.
    Narrow-billed--Pachyptila belcheri.

                                  Shag

    Blue-eyed--Phalacrocorax atriceps.

                               Shearwater

    Sooty--Puffinus griseus.

                                  Skua

    Brown--Catharacta lonnbergi
    South Polar--Catharacta maccormicki.

[[Page 219]]

                                 Swallow

    Barn--Hirundo rustica.

                               Sheathbill

    American--Chionis alba.

                                  Tern

    Antarctic--Sterna vittata.
    Arctic--Sterna paradisaea.

[66 FR 46739, Sept. 7, 2001]



Sec. 670.21  Designation of native plants.

    All plants whose normal range is limited to, or includes Antarctica 
are designated native plants, including:

Bryophytes
Freshwater algae
Fungi
Lichens
Marine algae
Vascular Plants



Sec. 670.22  [Reserved]



   Subpart E_Specially Protected Species of Mammals, Birds, and Plants



Sec. 670.23  Specific issuance criteria.

    Permits authorizing the taking of mammals, birds, or plants 
designated as a Specially Protected Species of mammals, birds, and 
plants in Sec. 670.25 may only be issued if:
    (a) There is a compelling scientific purpose for such taking;
    (b) The actions allowed under any such permit will not jeopardize 
the existing natural ecological system, or the survival of the affected 
species or population;
    (c) The taking involves non-lethal techniques, where appropriate; 
and
    (d) The authorized taking, transporting, carrying or shipping will 
be carried out in a humane manner.



Sec. 670.24  Content of permit applications.

    In addition to the information required in subpart C of this part, 
an applicant seeking a permit to take a Specially Protected Species 
shall include the following in the application:
    (a) A detailed scientific justification of the need for taking the 
Specially Protected Species, including a discussion of possible 
alternative species;
    (b) Information demonstrating that the proposed action will not 
jeopardize the existing natural ecological system or the survival of the 
affected species or population; and
    (c) Information establishing that the taking, transporting, 
carrying, or shipping of any native bird or native mammal will be 
carried out in a humane manner.



Sec. 670.25  Designation of specially protected species of native mammals, 
birds and plants.

    The following two species have been designated as Specially 
Protected Species by the Antarctic Treaty Parties and are hereby 
designated Specially Protected Species:

Common Name and Scientific Name
Kerguelen Fur Seal--Arctocephalus tropicales gazella.
Ross Seal--Ommatophoca rossii.

[63 FR 50164, Sept. 21, 1998, as amended at 66 FR 46740, Sept. 7, 2001]



Sec. 670.26  [Reserved]



              Subpart F_Antarctic Specially Protected Areas



Sec. 670.27  Specific issuance criteria.

    Permits authorizing entry into any Antarctic Specially Protected 
Area designated in Sec. 670.29 may only be issued if:
    (a) The entry and activities to be engaged in are consistent with an 
approved management plan, or
    (b) A management plan relating to the area has not been approved by 
the Antarctic Treaty Parties, but
    (1) There is a compelling scientific purpose for such entry which 
cannot be served elsewhere, and
    (2) The actions allowed under the permit will not jeopardize the 
natural ecological system existing in such area.



Sec. 670.28  Content of permit application.

    In addition to the information required in subpart C of this part, 
an applicant seeking a permit to enter an Antarctic Specially Protected 
Area shall include the following in the application:
    (a) A detailed justification of the need for such entry, including a 
discussion of alternatives;

[[Page 220]]

    (b) Information demonstrating that the proposed action will not 
jeopardize the unique natural ecological system in that area; and
    (c) Where a management plan exists, information demonstrating the 
consistency of the proposed actions with the management plan.



Sec. 670.29  Designation of Antarctic specially protected areas.

    The following areas have been designated by the Antarctic Treaty 
Parties for special protection and are hereby designated as Antarctic 
Specially Protected Areas. Detailed maps and descriptions of the sites 
and complete management plans can be obtained from the National Science 
Foundation, Office of Polar Programs, National Science Foundation, Room 
755, 4201 Wilson Boulevard, Arlington, Virginia 22230.

ASPA 101, Taylor Rookery, MacRobertson Land.
ASPA 102, Rookery Islands, Holme Bay.
ASPA 103, Ardrey Island and Odbert Island, Budd Coast.
ASPA 104, Sabrina Island, Balleny Islands.
ASPA 105, Beaufort Island, Ross Sea.
ASPA 106, Cape Hallett, Victoria Land.
ASPA 107, Dion Islands, Marguerite Bay, Antarctic Peninsula.
ASPA 108, Green Island, Berthelot Islands, Antarctic Peninsula.
ASPA 109, Moe Island, South Orkney Islands.
ASPA 110, Lynch Island, South Orkney Islands.
ASPA 111, Southern Powell Island and adjacent islands, South Orkney 
Islands.
ASPA 112, Coppermine Peninsula, Robert Island.
ASPA 113, Litchfield Island, Arthur Harbor, Palmer Archipelago.
ASPA 114, North Coronation Island, South Orkney Islands.
ASPA 115, Lagotellerie Island, Marguerite Bay.
ASPA 116, `New College Valley', Caughley Beach, Cape Bird, Ross Island.
ASPA 117, Avian Island, Northwest Marguerite Bay.
ASPA 118, Cryptogam Ridge, Mount Melbourne, Victoria Land.
ASPA 119, Forlidas Pond and Davis Valley Ponds.
ASPA 120, Pointe-Geologie Archipelago
ASPA 121, Cape Royds, Ross Island.
ASPA 122, Arrival Heights, Hut Point Peninsula, Ross Island.
ASPA 123, Barwick Valley, Victoria Land.
ASPA 124, Cape Crozier, Ross Island.
ASPA 125, Fildes Peninsula, King George Island, South Shetland Islands.
ASPA 126, Byers Peninsula, Livingston Island, South Shetland Islands.
ASPA 127, Haswell Island.
ASPA 128, Western Shore of Admiralty Bay, King George Island.
ASPA 129, Rothera Point, Adelaide Island.
ASPA 130, Tramway Ridge, Mt. Erebus, Ross Island.
ASPA 131, Canada Glacier, Lake Fryxell, Taylor Valley, Victoria Land.
ASPA 132, Potter Peninsula, King George Island, South Shetland Islands.
ASPA 133, Harmony Point.
ASPA 134, Cierva Point and nearby islands, Danco Coast, Antarctic 
Peninsula.
ASPA 135, Bailey Peninsula, Budd Coast, Wilkes Land.
ASPA 136, Clark Peninsula, Budd Coast, Wilkes Land.
ASPA 137, Northwest White Island, McMurdo Sound.
ASPA 138, Linnaeus Terrace, Asgard Range, Victoria Land.
ASPA 139, Biscoe Point, Anvers Island, Palmer Archipelago.
ASPA 140, Shores of Port Foster, Deception Island, South Shetland 
Islands.
ASPA 141, Yukidori Valley, Langhovde, Lutzow-Holm Bay.
ASPA 142, Svarthamaren Mountain, Muhlig-Hofmann Mountains, Queen Maud 
Land.
ASPA 143, Marine Plain, Mule Peninsula, Vestfold Hills, Princess 
Elizabeth Land.
ASPA 144, Chile Bay (Discovery Bay), Greenwich Island, South Shetland 
Islands.
ASPA 145, Port Foster, Deception Island, South Shetland Islands.
ASPA 146, South Bay, Doumer Island, Palmer Archipelago.
ASPA 147, Ablation Point-Ganymede Heights, Alexander Island.
ASPA 148, Mount Flora, Hope Bay, Antarctic Peninsula.
ASPA 149, Cape Shirreff, Livingston Island, South Shetland Islands.
ASPA 150, Ardley Island, Maxwell Bay, King George Island, South Shetland 
Islands.
ASPA 151, Lions Rump, King George Island, South Shetland Islands.
ASPA 152, Western Bransfield Strait, off Low Island, South Shetland 
Islands.
ASPA 153, East Dallmann Bay, off Brabant Island.
ASPA 154, Cape Evans Historic Site.
ASPA 155, Lewis Bay Tomb.
ASPA 156, Hut and associated artifacts, Backdoor Bay, Cape Royds, Ross 
Island.
ASPA 157, Discovery Hut, Hut Point, Ross Island.
ASPA 158, Huts and associated artifacts, Cape Adare.
ASPA 159, Summit of Mt. Melbourne, North Victoria Land.
ASAP 160, Botany Bay, Cape Geology, Victoria Land.

[63 FR 50164, Sept. 21, 1998, as amended at 66 FR 46740, Sept. 7, 2001]

[[Page 221]]



Sec. 670.30  [Reserved]



         Subpart G_Import Into and Export From the United States



Sec. 670.31  Specific issuance criteria for imports.

    Subject to compliance with other applicable law, any person who 
takes a native mammal, bird, or plant under a permit issued under the 
regulations in this part may import it into the United States unless the 
Director finds that the importation would not further the purpose for 
which it was taken. If the importation is for a purpose other than that 
for which the native mammal, bird, or plant was taken, the Director may 
permit importation upon a finding that importation would be consistent 
with the purposes of the Act, the regulations in this part, or the 
permit under which they were taken.



Sec. 670.32  Specific issuance criteria for exports.

    The Director may permit export from the United States of any native 
mammal, bird, or native plants taken within Antarctica upon a finding 
that exportation would be consistent with the purposes of the Act, the 
regulations in this part, or the permit under which they were taken.



Sec. 670.33  Content of permit applications.

    In addition to the information required in subpart C of this part, 
an applicant seeking a permit to import into or export from the United 
States a native mammal, a native bird, or native plants taken within 
Antarctica shall include the following in the application:
    (a) Information demonstrating that the import or export would 
further the purposes for which the species was taken;
    (b) Information demonstrating that the import or export is 
consistent with the purposes of the Act or the regulations in this part;
    (c) A statement as to which U.S. port will be used for the import or 
export, and
    (d) Information describing the intended ultimate disposition of the 
imported or exported item.



Sec. 670.34  Entry and exit ports.

    (a) Any native mammal, native bird, or native plants taken within 
Antarctica that are imported into or exported from the United States 
must enter or leave the United States at ports designated by the 
Secretary of Interior in 50 CFR part 14. The ports currently designated 
are:
    (1) Los Angeles, California.
    (2) San Francisco, California.
    (3) Miami, Florida.
    (4) Honolulu, Hawaii.
    (5) Chicago, Illinois.
    (6) New Orleans, Louisiana.
    (7) New York, New York.
    (8) Seattle, Washington.
    (9) Dallas/Fort Worth, Texas.
    (10) Portland, Oregon.
    (11) Baltimore, Maryland.
    (12) Boston, Massachusetts.
    (13) Atlanta, Georgia.
    (b) Permits to import or export at non-designated ports may be 
sought from the Secretary of Interior pursuant to subpart C, 50 CFR part 
14.



Sec. 670.35  [Reserved]



       Subpart H_Introduction of Non-Indigenous Plants and Animals



Sec. 670.36  Specific issuance criteria.

    For purposes consistent with the Act, only the following plants and 
animals may be considered for a permit allowing their introduction into 
Antarctica:
    (a) Domestic plants; and
    (b) Laboratory animals and plants including viruses, bacteria, 
yeasts, and fungi.
    Living non-indigenous species of birds shall not be introduced into 
Antarctica.



Sec. 670.37  Content of permit applications.

    Applications for the introduction of plants and animals into 
Antarctica must describe:
    (a) The species, numbers, and if appropriate, the age and sex, of 
the animals or plants to be introduced into Antarctica;
    (b) The need for the plants or animals;
    (c) What precautions the applicant will take to prevent escape or 
contact with native fauna and flora; and

[[Page 222]]

    (d) How the plants or animals will be removed from Antarctica or 
destroyed after they have served their purpose.



Sec. 670.38  Conditions of permits.

    All permits allowing the introduction of non-indigenous plants and 
animals will require that the animal or plant be kept under controlled 
conditions to prevent its escape or contact with native fauna and flora 
and that after serving its purpose the plant or animal shall be removed 
from Antarctica or be destroyed in manner that protects the natural 
system of Antarctica.



Sec. 670.39  [Reserved]



PART 671_WASTE REGULATION--Table of Contents




                         Subpart A_Introduction

Sec.
671.1 Purpose of regulations.
671.2 Scope.
671.3 Definitions.

                  Subpart B_Prohibited Acts, Exceptions

671.4 Prohibited acts.
671.5 Exceptions.

                            Subpart C_Permits

671.6 Applications for permits.
671.7 General issuance criteria.
671.8 Permit administration.
671.9 Conditions of permit.
671.10 Review, modification, suspension, and revocation.

                       Subpart D_Waste Management

671.11 Waste storage.
671.12 Waste disposal.
671.13 Waste management for the USAP.

    Subpart E_Designation of Banned Substances; Reclassification of 
                               Pollutants

671.14 Annual review.
671.15 Publication of preliminary determination.
671.16 Designation and redesignation of pollutants.

                      Subpart F_Cases of Emergency

671.17 Cases of emergency.

    Authority: 16 U.S.C. 2405.

    Source: 58 FR 34719, June 29, 1993, unless otherwise noted.



                         Subpart A_Introduction



Sec. 671.1  Purpose of regulations.

    The purposes of these regulations in part 671 are to protect the 
Antarctic environment and dependent and associated ecosystems, to 
preserve Antarctica's value as an area for the conduct of scientific 
research, and to implement the Antarctic Conservation Act of 1978, 
Public Law 95-541, consistent with the provisions of the Protocol on 
Environmental Protection to the Antarctic Treaty, signed in Madrid, 
Spain, on October 4, 1991.



Sec. 671.2  Scope.

    These regulations in part 671 apply to any U.S. citizen's use or 
release of a banned substance, designated pollutant or waste in 
Antarctica.

[58 FR 34719, June 29, 1993, as amended at 59 FR 37438, July 22, 1994]



Sec. 671.3  Definitions.

    (a) Definitions. In this part:
    Act means the Antarctic Conservation Act of 1978, Public Law 95-541, 
92 Stat. 2048 (16 U.S.C. 2401 et seq.)
    Antarctic hazardous waste means any waste consisting of or 
containing one or more designated pollutants.
    Antarctica means the area south of 60 degrees south latitude.
    Banned substance means any polychlorinated biphenyls (PCBs), non-
sterile soil, polystyrene beads, plastic chips or similar loose 
polystyrene packing material, pesticides (other than those required for 
scientific, medical or hygiene purposes) or other substance designated 
as such under subpart E of this part.
    Designated pollutant means any substance designated as such by the 
Director pursuant to subpart E of this part; any pesticide, radioactive 
substance, or substance consisting of or containing any chemical listed 
by source, generic or chemical name at 40 CFR 61.01, Table 116.4A of 40 
CFR 116.4; subpart D of 40 CFR part 261, 40 CFR 302.4, part 355, and 
part 372; and any substance which exhibits a hazardous waste 
characteristic as defined in subparts B and C of 40 CFR part 261; but 
shall not include any banned substance.

[[Page 223]]

    Director means the Director of the National Science Foundation, or 
an officer or employee of the Foundation designated by the Director.
    Incinerate or Incineration means the processing of material by 
mechanisms that (1) involve the control of combustion air and/or fuel so 
as to maintain adequate temperature for efficient combustion; (2) 
contain the combustion reaction in an enclosed device with sufficient 
residence time and mixing for complete processing; and (3) control 
emission of gaseous or particulate combustion products.
    Master permit means a permit issued to a federal agency, or its 
agents or contractors, or any other entity, covering activities 
conducted in connection with USAP or other group activities in 
Antarctica.
    NSF or Foundation means the National Science Foundation.
    Open burning means combustion of any material by means other than 
incineration.
    Permit means a permit issued pursuant to subpart C of this part.
    Private permit means any permit other than a master permit.
    Protocol means the Protocol on Environmental Protection to the 
Antarctic Treaty, signed by the United States in Madrid on October 4, 
1991, and any and all Annexes thereto, as amended or supplemented from 
time to time.
    Release means any spilling, leaking, pumping, pouring, emitting, 
emptying, discharging, injecting, leaching, dumping, burying or 
disposing of a substance, whether intentionally or accidentally.
    Station means McMurdo Station, Palmer Station, Amundsen-Scott South 
Pole Station and any other permanent USAP facility in Antarctica 
designed to accommodate at least 50 persons at any one time.
    Substance means any gas, liquid, or solid, or mixture thereof, 
including biological material.
    Treaty means the Antarctic Treaty signed in Washington, D.C., on 
December 1, 1959.
    United States means the several States of the Union, the District of 
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin 
Islands, Guam and the Trust Territory of the Pacific Islands, including 
the Federated States of Micronesia and the Commonwealth of the Northern 
Mariana Islands.
    United States Antarctic Program or USAP means the United States 
national program in Antarctica.
    U.S. citizen means any individual who is a citizen or national of 
the United States; any corporation, partnership, trust, association, or 
other legal entity existing or organized under the laws of any of the 
United States; and any department agency or other instrumentality of the 
Federal government or of any State, and any officer, employee, or agent 
of such instrumentality.
    Use means to use, generate or create a substance, or to import a 
substance into Antarctica, but does not include the shipboard use of a 
substance, provided that substance is not released or removed from the 
vessel.
    Waste means any substance that will no longer be used for any useful 
purpose, but does not include substances to be recycled in Antarctica, 
or substances to be reused in a manner different than their initial use, 
provided such substances are stored in a manner that will prevent their 
dispersal into the environment, and further provided that they are 
recycled, reused or disposed of in accordance with the provisions of 
this Part within three years. Recycling includes, but is not limited to, 
the reuse, further use, reclamation or extraction of a waste through a 
process or activity that is separate from the process or activity that 
produced the waste.
    (b) Pollutants, generally. All banned substances, designated 
pollutants and waste shall be considered pollutants for purposes of the 
Antarctic Conservation Act.



                  Subpart B_Prohibited Acts, Exceptions



Sec. 671.4  Prohibited acts.

    Unless one of the exceptions stated in Sec. 671.5 is applicable, it 
is unlawful for any U.S. citizen to:
    (a) Use or release any banned substance in Antarctica;
    (b) Use or release any designated pollutant in Antarctica, except 
pursuant

[[Page 224]]

to a permit issued by NSF under subpart C of this part;
    (c) Release any waste in Antarctica, except pursuant to a permit 
issued by NSF under subpart C of this part; or
    (d) Violate any term or condition of a permit issued by NSF under 
subpart C of this part, or any term or condition of any of the 
regulations issued under this part.



Sec. 671.5  Exceptions

    A permit shall not be required for any use or release of designated 
pollutants or waste allowed under the Act to Prevent Marine Pollution 
from Ships (33 U.S.C. 1901 et seq.), as amended, or for any shipboard 
use of banned substances or designated pollutants, provided such 
substances are not removed from the vessel in Antarctica.



                            Subpart C_Permits



Sec. 671.6  Applications for permits.

    (a) General content of permit applications. Each application for a 
permit shall be dated and signed by the applicant, and shall include the 
following information:
    (1) The applicant's name, address and telephone number, the business 
or institutional affiliation of the applicant, or the name, address and 
telephone number of the president, principal officer or managing partner 
of the applicant, as applicable;
    (2) A description of the types, expected concentrations and volumes 
of wastes and designated pollutants to be released in Antarctica; the 
nature and timing of such releases; arrangements for waste management, 
including, without limitation, plans for waste reduction, minimization, 
treatment and processing, recycling, storage, transportation and 
disposal; arrangements for training and educating personnel to comply 
with these waste management requirements and procedures, and 
arrangements for monitoring compliance; and other arrangements for 
minimizing and monitoring the environmental impacts of proposed 
operations and activities;
    (3) A description of the types, expected concentrations and volumes 
of designated pollutants to be used in Antarctica; the nature and timing 
of such uses; the method of storage of designated pollutants; and a 
contingency plan for controlling releases in a manner designed to 
minimize any resulting hazards to health and the environment;
    (4) The desired effective date and duration of the permit; and
    (5) The following certification:

    ``I certify that, to the best of my knowledge and belief, and based 
upon due inquiry, the information submitted in this application for a 
permit is complete and accurate. Any knowing or intentional false 
statement will subject me to the criminal penalties of 18 U.S.C. 1001.''

    (b) Address to which application should be sent. Each application 
shall be in writing, and sent to: Permits Office, Office of Polar 
Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, 
VA 22230.
    (c) Sufficiency of application. The sufficiency of the application 
shall be determined by the Director. The Director may waive any 
requirement for information, or require such additional information as 
he determines is relevant to the processing and evaluation of the 
application.
    (d) Publication of permit applications. The Director shall publish 
notice in the Federal Register of each application for a permit and the 
proposed conditions of its issuance (including duration). The notice 
shall invite the submission by interested parties, the Environmental 
Protection Agency and other federal agencies, within 30 days after the 
date of publication of notice, of written data, comments, or views with 
respect to the application. Information received by the Director as a 
part of any application shall be available to the public as a matter of 
public record.

[58 FR 34719, June 29, 1993, as amended at 59 FR 37438, July 22, 1994]



Sec. 671.7  General issuance criteria.

    (a) Upon receipt of a complete and properly executed application for 
a permit, the Director will decide whether and on what conditions he 
will issue a permit. In making this decision, the Director will 
carefully consider any comments or suggestions received from interested 
parties, the Environmental Protection Agency and other federal agencies 
pursuant to Sec. 671.6(d), and will

[[Page 225]]

determine whether the permit requested meets the objectives of the Act, 
the Protocol, and the requirements of these regulations.
    (b) Permits authorizing the use or release of designated pollutants 
or wastes may be issued only if, based on relevant available 
information, the Director determines that such use or release will not 
pose a substantial hazard to health or the environment, taking into 
account available information on the possible cumulative impact of 
multiple releases.



Sec. 671.8  Permit administration.

    (a) Issuance of permits. The Director may approve an application for 
a permit in whole or in part, and may condition such approval upon 
compliance with additional terms and conditions. Permits shall be issued 
in writing, shall be signed by the Director, shall specify duration, and 
shall contain such terms and conditions as may be established by the 
Director and as are consistent with the Act and this part.
    (b) Denial. An applicant shall be notified in writing of the denial 
of any permit request or part of a request, and the reason for such 
denial. If authorized in the notice of denial, the applicant may submit 
further information, or reasons why the permit should not be denied. 
Such further submissions shall constitute amendments of the application.
    (c) Amendment of applications or permits. An applicant or permit 
holder desiring to have any term or condition of his application or 
permit modified must submit full justification and supporting 
information in conformance with the provisions of this Part. Any 
application for modification of a permit that involves a material change 
beyond the terms originally requested will be subject to the same 
procedures as a new application.
    (d) Public notice of issuance or denial. Within 10 days after the 
date of the issuance or denial of a permit, the Director shall publish 
notice of the issuance or denial in the Federal Register, including the 
conditions of issuance or basis for denial, as appropriate.



Sec. 671.9  Conditions of permit.

    (a) Conditions. All permits issued pursuant to subpart C of this 
part shall be conditioned upon compliance with the relevant provisions 
of the ACA, the Treaty, the Protocol, such specific conditions or 
restrictions as may be imposed by the Director under Sec. 671.7, and 
the provisions of subpart D of this part.
    (b) Possession of permits. Permits issued under this part, or copies 
of them, must be in the possession of persons to whom they are issued or 
their agents when conducting the authorized action. Any permit issued 
shall be shown to the Director or to any other person with enforcement 
authority upon request.
    (c)(1) Reports. Permit holders must provide the Director with 
written reports of:
    (i) Any non-permitted release of designated pollutants or waste 
within fourteen days after the occurrence of such release, including the 
date, quantity and cause of the release, and plans for remediation;
    (ii) The identity and quantity of all designated pollutants removed 
from Antarctica or otherwise disposed of, and the method of disposal; 
and
    (iii) Any other violations of the terms and conditions of their 
permits.
    (2) The Director may also require permit holders to file reports of 
activities conducted under their permits. Such reports shall be 
submitted to the Director not later than June 30 for the preceding 12 
month period ending May 31.



Sec. 671.10  Review, modification, suspension, and revocation.

    (a) The Director may modify, suspend or revoke, in whole or in part, 
any permit issued under this part:
    (1) In order to make the permit consistent with any change to any 
regulation in this Part made after the date of issuance of the permit;
    (2) If there is any change in conditions which makes the permit 
inconsistent with the Act and any regulation in this part; or
    (3) In any case in which there has been any violation of any term or 
condition of the permit, any regulation in this part, or any provision 
of the Act.

[[Page 226]]

    (b) The Director shall review all unexpired permits issued under 
this part at least biennially to determine whether those permits should 
be modified, suspended or revoked as set forth in paragraph (a) of this 
section.
    (c) Whenever the Director proposes any modifications, suspensions or 
revocations of a permit under this Sec. 671.10, the permittee shall be 
afforded the opportunity, after due notice, for a hearing by the 
Director with respect to such proposed modification, suspension, or 
revocation. If a hearing is requested, the action proposed by the 
Director shall not take effect before a decision is issued by him after 
the hearing, unless the proposed action is taken by the Director to meet 
an emergency situation.
    (d) Notice of the modification, suspension, or revocation of any 
permit shall be published in the Federal Register within 10 days from 
the date of the Director's decision.



                       Subpart D_Waste Management



Sec. 671.11  Waste storage.

    (a) Pending the treatment, disposal or removal of any wastes 
pursuant to Sec. 671.12, all wastes shall be contained, confined or 
stored in a manner that will prevent dispersal into the environment;
    (b) All Antarctic hazardous wastes generated at or transported to 
any USAP station may be temporarily stored at such station prior to the 
treatment, disposal or removal of any wastes pursuant to Sec. 671.12, 
provided all such Antarctic hazardous waste is stored in either closed 
containers or tanks labeled to indicate their contents and the beginning 
date of accumulation of such waste, and further provided the following 
conditions are satisfied:
    (1) If Antarctic hazardous wastes, radioactive wastes, or medical 
wastes, are generated at or transported to McMurdo Station, they may be 
temporarily stored at that station for a period not to exceed 15 months;
    (2) If Antarctic hazardous wastes, radioactive wastes, or medical 
wastes, are generated at or transported to South Pole Station, they may 
be temporarily stored at that station while awaiting transport to 
McMurdo Station, for a period not to exceed 15 months;
    (3) If Antarctic hazardous wastes, radioactive wastes, or medical 
wastes, are generated at or transported to Palmer Station, they may be 
temporarily stored at that station while awaiting transport to McMurdo 
Station or other disposition, for a period not to exceed 28 months;
    (4) Containers holding Antarctic hazardous wastes must be:
    (i) In good, non-leaking condition with sufficient structural 
integrity for the storage of Antarctic hazardous waste;
    (ii) Made of or lined with materials which will not react with, and 
are otherwise compatible with, the Antarctic hazardous waste to be 
stored, so that the ability of the containers to contain such waste is 
not impaired;
    (iii) Stored in a manner that allows access for inspection and 
response to emergencies; and
    (iv) Inspected at least weekly for leakage and deterioration. All 
inspections must be appropriately documented.
    (5) Tank systems used for storing Antarctic hazardous wastes must be 
in good, non-leaking condition with sufficient structural integrity for 
the storing of hazardous wastes; and systems must be inspected weekly to 
detect corrosion or releases of waste and to collect data from 
monitoring and leak detection equipment, to the extent available, to 
ensure that they are functioning properly. All inspections must be 
appropriately documented. Prior to the expiration of the 15 month period 
referred to in Sec. 671.11(b)(1), all Antarctic hazardous wastes shall 
be treated or removed from Antarctica in accordance with Sec. 671.12.
    (6) Ignitable, reactive or incompatible wastes shall be properly 
segregated and protected from sources of ignition or reaction, as 
appropriate.
    (c) All Antarctic hazardous wastes generated at a location other 
than a permanent station may be temporarily stored at such location for 
a period not to exceed 12 months, in closed, non-leaking containers 
marked to indicate their contents. Such containers must be in good 
condition and made of or

[[Page 227]]

lined with material which will not react with and is otherwise 
compatible with the Antarctic hazardous waste stored therein so as not 
to impair the ability of the container to contain the waste. Prior to 
the expiration of the 12 month period referred to above, all such 
hazardous wastes shall be either:
    (1) Treated or processed, disposed of or removed from Antarctica 
pursuant to Sec. 671.12, or
    (2) Removed to a permanent station and temporarily stored at that 
station in accordance with paragraph (b) of this section.



Sec. 671.12  Waste disposal.

    (a)(1) The following wastes shall be removed from Antarctica:
    (i) Radioactive materials;
    (ii) Electrical batteries;
    (iii) Fuel (both liquid and solid);
    (iv) Waste containing harmful levels of heavy metals or acutely 
toxic or harmful persistent compounds;
    (v) Poly-vinyl chloride (PVC), polyurethane foam, polystyrene foam, 
rubber and lubricating oils, treated timbers and other products 
containing additives which can produce harmful emissions or releases;
    (vi) All other plastic wastes except low density polyethylene 
containers (such as bags for storing wastes) provided such containers 
are incinerated in accordance with paragraph (e) of this section;
    (vii) Solid, non-combustible wastes; and
    (viii) Fuel, oil and chemical drums that constitute waste.
    (2) Notwithstanding paragraph (a)(1) of this section, the 
obligations set forth in paragraphs (a)(1) (vii) and (viii) of this 
section shall not apply if the Director determines that the removal of 
such wastes by any practicable option would cause greater adverse 
environmental impacts than would be caused by leaving them in their 
existing locations.
    (b) All liquid wastes other than sewage and domestic liquid wastes 
and wastes referred in paragraph (a) of this section shall be removed 
from Antarctica to the maximum extent practicable.
    (c) Sewage and domestic liquid wastes may be discharged directly 
into the sea, taking into account the assimilative capacity of the 
receiving marine environment, and provided that such discharge occurs, 
wherever practicable, where conditions exist for initial dilution and 
rapid dispersal, and further provided that large quantities of such 
wastes (generated in a station where the average weekly occupancy over 
the austral summer is approximately 30 individuals or more) shall be 
treated at least by maceration. If biological treatment processes are 
used, the by-product of such treatment may be disposed of into the sea 
provided disposal does not adversely affect the local environment.
    (d) Residues of introduced animal carcasses, laboratory culture of 
micro-organisms and plant pathogens, and introduced avian products must 
be removed from Antarctica unless incinerated, autoclaved or otherwise 
sterilized.
    (e) Combustible wastes not removed from Antarctica other than wastes 
referred to in paragraph (a) of this section, shall be burnt in 
incinerators which reduce harmful emissions or discharges to the maximum 
extent practicable and the solid residue of such incineration shall be 
removed from Antarctica; provided, however, that USAP may continue to 
bury such combustible wastes in snow pits at South Pole Station, but 
must phase out such practices before March 1, 1995. Any emission or 
discharge standards and equipment guidelines which may be recommended by 
the Committee for Environmental Protection constituted or to be 
constituted pursuant to the Protocol or by the Scientific Committee on 
Antarctic Research shall be taken into account.
    (f) Sewage and domestic liquid wastes and other liquid wastes not 
removed from Antarctica in accordance with other provisions of this 
section, shall, to the maximum extent practicable, not be disposed of 
onto sea ice, ice shelves or grounded ice-sheet unless such wastes were 
generated by stations located inland on ice shelves or on the grounded 
ice-sheet. In such event, the wastes may be disposed of in deep ice pits 
if that is the only practicable option, provided the ice pits are not 
located on known ice-flow lines which

[[Page 228]]

terminate at ice-free land areas or in blue ice areas of high ablation.
    (g) No wastes may be disposed of onto ice-free areas or into any 
fresh water system.
    (h) Open burning of wastes is prohibited at all permanent stations, 
and shall be phased out at all other locations by March 1, 1994. If it 
is necessary to dispose of waste by open burning prior to March 1, 1994, 
allowance shall be made for the wind direction and speed and the type of 
waste to be burnt to limit particulate deposition and to avoid such 
deposition over areas of special biological, scientific, historic, 
aesthetic or wilderness significance.
    (i) Each unauthorized release of waste in Antarctic shall be, to the 
maximum extent practicable, promptly cleaned up by the person 
responsible for such release.



Sec. 671.13  Waste management for the USAP.

    (a) In order to provide a basis for tracking USAP wastes, and to 
facilitate studies aimed at evaluating the environmental impacts of 
scientific activity and logistic support, the USAP shall classify its 
wastes in one of the following categories:
    (1) Sewage and domestic liquid wastes;
    (2) Other liquid wastes and chemicals, including fuels and 
lubricants;
    (3) Solid wastes to be combusted;
    (4) Other solid wastes; and
    (5) Radioactive material.
    (b) USAP shall prepare and annually review and update a waste 
management plan (including plans for waste reduction, storage and 
disposal) specifying for each of its permanent stations, field camps and 
ships (other than small boats that are part of the operations of 
permanent stations or are otherwise taken into account in existing 
management plans for ships):
    (1) Current and planned waste management arrangements, including 
final disposal;
    (2) Current and planned arrangement for assessing the environmental 
effects of waste and waste management;
    (3) Other efforts to minimize environmental effects of wastes and 
waste management; and
    (4) Programs for cleaning up existing waste disposal sites and 
abandoned work sites.
    (c) USAP shall designate one or more waste management officials to 
develop and monitor waste management plans and ensure that members of 
expeditions receive training so as to limit the impact of their 
activities on the Antarctic environment, and to inform them of the 
requirements of the Protocol and of this Part.
    (d) USAP shall, to the extent practicable, prepare an inventory of 
locations of past activities (i.e., traverses, fuel depots, field bases, 
crashed aircraft) so that such locations can be taken into account in 
planning future scientific, logistic and waste management programs.
    (e) USAP shall clean up its past and present waste disposal sites on 
land and abandoned work sites, except that it shall not be required to:
    (1) Remove any structure designated as a historic site or monument; 
or
    (2) Remove any structure or waste in circumstances where the removal 
would result in greater adverse environmental impact than leaving the 
structure or waste in its existing location.
    (f) USAP shall circulate waste management plans and inventories 
described in this section in accordance with the requirements of the 
Treaty and the Protocol.



    Subpart E_Designation of Banned Substances; Reclassification of 
                               Pollutants



Sec. 671.14  Annual review.

    The Director shall review the list of banned substances and 
designated pollutants at least annually, and may propose the designation 
or redesignation of any substance as a banned substance, designated 
pollutant or other waste, based on the following criteria:
    (a) If the Director determines that a substance, including a 
designated pollutant, poses a substantial immediate hazard to health or 
the environment and such hazard cannot be eliminated through waste 
management practices or other methods, or if the Parties to the Protocol 
or Treaty agree that a substance should be banned from use in

[[Page 229]]

Antarctica, the Director may designate such substance a banned 
substance.
    (b) If the Director determines that a substance is liable to create 
a hazard to health or the environment if improperly treated or 
processed, stored, transported, or disposed of, the Director may 
designate such substance a designated pollutant.
    (c) If the Director determines that a substance previously 
designated a banned substance no longer displays the characteristics 
described in paragraph (a) of this section, the Director may remove such 
substance from the list of banned substances (to the extent consistent 
with the provisions of the Protocol), but if the Director determines 
that such substance has the characteristics described in paragraph (b) 
of this section, it shall be redesignated a designated pollutant.
    (d) If the Director determines that a substance previously 
designated a designated pollutant no longer displays the characteristics 
described in paragraph (b) of this section, the Director may remove such 
substance from the list of designated pollutants.
    (e) In making the determinations referred to in paragraphs (a) 
through (d) of this section, the Director shall take into account all 
relevant new information obtained through monitoring activities or 
otherwise.



Sec. 671.15  Publication of preliminary determination

    Prior to any designation or redesignation of substances pursuant to 
Sec. 671.14 (including removal of such substances from lists of banned 
substances or designated pollutants), the Director shall publish notice 
in the Federal Register of any proposed designation or redesignation, 
including the basis therefor. The notice shall invite the submission by 
interested parties, the Environmental Protection Agency and other 
federal agencies, within 30 days after the date of publication of 
notice, of written data, comments, or views with respect to such action.



Sec. 671.16  Designation and redesignation of pollutants

    After review of any comments or suggestions received from interested 
parties, the Environmental Protection Agency and other Federal agencies 
pursuant to Sec. 671.15, the Director will make a final determination 
to designate and redesignate various substances as set forth above. 
Within 10 days after the date of such final determination, the Director 
shall publish notice of any action taken in the Federal Register. Such 
action shall become effective no earlier than thirty days following 
publication of notice.



                      Subpart F_Cases of Emergency



Sec. 671.17  Cases of emergency.

    The provisions of this part shall not apply in cases of emergency 
relating to the safety of human life or of ships, aircraft or other 
equipment and facilities of high value, or the protection of the 
environment. Notice of any acts or omissions resulting from such 
emergency situations shall be reported promptly to the Director, who 
shall notify the Treaty parties in accordance with the requirements of 
the Treaty and the Protocol, and publish notice of such acts or 
omissions in the Federal Register.



PART 672_ENFORCEMENT AND HEARING PROCEDURES--Table of Contents




Sec.
672.1 Hearing procedures--Scope of these rules.
672.2 Definitions.
672.3 Powers and duties of the Director; Presiding Official; Office of 
          Polar Programs.
672.4 Filing, service, and form of pleadings and documents.
672.5 Filing and service of rulings, orders, and decisions.
672.6 Appearances.
672.7 Issuance of complaint.
672.8 Answer to the complaint.
672.9 Motions.
672.10 Default order.
672.11 Informal settlement; consent agreement and order.
672.12 Prehearing conference.
672.13 Accelerated decision; decision to dismiss.
672.14 Scheduling the hearing.
672.15 Evidence.
672.16 Objections and offers of proof.
672.17 Burden of presentation; burden of persuasion.
672.18 Filing the transcript.
672.19 Proposed findings, conclusions, and order.

[[Page 230]]

672.20 Initial decision.
672.21 Appeal from or review of interlocutory orders or rulings.
672.22 Appeal from or review of initial decision.
672.23 Final order on appeal.
672.24 Maximum civil monetary penalties for violations.

    Authority: 16 U.S.C. 2401 et seq., 28 U.S.C. 2461 note.

    Source: 54 FR 7132, Feb. 16, 1989, unless otherwise noted. 
Redesignated at 58 FR 34718, June 29, 1993.



Sec. 672.1  Hearing procedures--Scope of these rules.

    (a) These hearing rules govern all adjudicatory proceedings for the 
assessment of civil penalties or imposition of other sanctions pursuant 
to the Antarctic Conservation Act of 1978, 16 U.S.C. 2407; 2404(f); 
2401-2412; and
    (b) Other adjudicatory proceedings that the Foundation, in its 
discretion, determines are appropriate for handling under these rules, 
including proceedings governed by the Administrative Procedure Act 
requirements for ``hearings on the record.'' 5 U.S.C. 554 (1982).
    (c) Questions arising at any stage of the proceeding which are not 
addressed in these rules shall be resolved at the discretion of the 
Director or Presiding Officer.



Sec. 672.2  Definitions.

    (a) Throughout these rules, words in the singular also include the 
plural, and words in the masculine gender also include the feminine, and 
vice versa.
    (b) Act means the particular statute authorizing the initiation of 
the proceeding.
    (c) Administrative Law Judge means an Administrative Law Judge 
appointed under 5 U.S.C. 3105 (see also Pub. L. 95-251, 92 Stat. 183).
    (d) Complainant means any person authorized to issue a complaint on 
behalf of the Agency to persons alleged to be in violation of the Act. 
The complainant shall not be the Presiding Officer or any other person 
who will participate or advise in the decision.
    (e) Complaint means a written communication, alleging one or more 
violations of specific provisions of the Act, Treaties, NSF regulations 
or a permit promulgated thereunder, issued by the complainant to a 
person under this subpart.
    (f) Consent Agreement means any written document, signed by the 
parties, containing stipulations or conclusions of fact or law, and a 
proposed penalty, revocation or suspension of a permit, or other 
sanction.
    (g) Director means the Director of the National Science Foundation 
(NSF) or his delegatee.
    (h) Final Order means (1) an order issued by the Director after an 
appeal of an initial decision, accelerated decision, a decision to 
dismiss, or default order, or (2) an initial decision which becomes a 
final order.
    (i) Foundation, Agency, or NSF means the National Science 
Foundation.
    (j) Hearing means a hearing on the record open to the public and 
conducted under these rules.
    (k) Hearing Clerk is the person with whom all pleadings, motions, 
and other documents required under this subpart are filed.
    (l) Initial Decision means the decision issued by the Presiding 
Officer based upon the official record of the proceedings.
    (m) Party means any person that participates in a hearing as 
complainant, respondent, or intervenor.
    (n) Permit means a permit issued under section 5 of the Antarctic 
Conservation Act of 1978, 16 U.S.C. section 2404.
    (o) Person includes any individual, partnership, association, 
corporation, and any trustee, assignee, receiver or legal successor 
thereof; any organized group of persons whether incorporated or not; and 
any officer, employee, agent, department, agency or instrumentality of 
the Federal Government. of any State or local unit of government, or of 
any foreign government.
    (p) Presiding Officer means the attorney designated by the Director 
to conduct hearings or other proceedings under this subpart.
    (q) Respondent means any person proceeded against in the complaint.
    (r) Terms defined in the Act and not defined in these rules of 
practice are used consistent with the meanings given in the Act.

[[Page 231]]



Sec. 672.3  Powers and duties of the Director; Presiding Official; Office 
of Polar Programs.

    (a) Director. The Director of NSF shall exercise all powers and 
duties as prescribed or delegated under the Act and these rules.
    (b) The Director may delegate all or part of his authority. Partial 
delegation does not prevent the Presiding Officer from referring any 
motion or case to the Director.
    (c) Presiding Officer. The Director may designate one or more 
Presiding Officers to perform the functions described below. The 
Presiding Officers shall be attorneys who are permanent or temporary 
employees of the Foundation or some other Federal Agency and may perform 
other duties compatible with their authority as hearing officers. 
Administrative Law Judges may perform the functions of Presiding 
Officers. The Presiding Officer shall have performed no prosecutorial or 
investigatory functions in connection with any matter related to the 
hearing.
    (d) The Presiding Officer shall conduct a fair and impartial 
proceeding, assure that the facts are fully elicited, adjudicate all 
issues, and avoid delay. The Presiding Officer shall have authority to:
    (1) Conduct administrative hearings under these rules of practice;
    (2) Rule upon motions, requests, and offers of proof, dispose of 
procedural requests, and issue all necessary orders;
    (3) Administer oaths and affirmations and take affidavits;
    (4) Examine witnesses and receive documentary or other evidence;
    (5) For good cause, upon motion or sua sponte, order a party, or an 
officer or agent thereof, to produce testimony, documents, or other 
nonprivileged evidence, and failing the production thereof without good 
cause being shown, draw adverse inferences against that party;
    (6) Admit or exclude evidence;
    (7) Hear and decide questions of facts, law or discretion;
    (8) Require parties to attend conferences for the settlement or 
simplification of the issues, or the expedition of facts, law or 
discretion;
    (9) Issue subpoenas authorized by the Act; and
    (10) Take all actions necessary for the maintenance of order and for 
the efficient, fair and impartial adjudication of issues arising in 
proceedings governed by these rules.
    (e) Disqualification; Withdrawal. (1) The Presiding Officer may not 
participate in any matter in which he (i) has a financial interest or 
(ii) has any relationship with a party or with the subject matter which 
would make it inappropriate for him to act. Any party may at any time by 
motion made to the Director, or his delegatee, request that the 
Presiding Officer be disqualified from the proceeding.
    (2) If the Presiding Officer is disqualified or withdraws from the 
proceeding, the Director shall assign a qualified replacement who has 
none of the infirmities listed in paragraph (e)(1) of this section. The 
Director, should he withdraw or disqualify himself, shall assign the 
Deputy Director to be his replacement.
    (f) Office of Polar Programs. The Office of Polar Programs (OPP) 
manages and operates the national program in Antarctica, including 
administration of the Antarctic Conservation Act (ACA) permit system. 
OPP is responsible for investigating alleged violations of the 
``prohibited acts'' section of the ACA and alleged noncompliance with 
ACA permits. OPP will act as the official complainant in all proceedings 
under the ACA governed by these rules. OPP may delegate all or part of 
its investigatory duties to other appropriate NSF employees, other 
qualified federal employees, or consultants. OPP will prepare complaints 
with the assistance of designated prosecuting attorneys within NSF's 
Office of the General Counsel, other qualified federal attorneys, or 
other appropriate legal representative selected jointly by OPP and OGC. 
The designated prosecuting attorney will represent OPP in all 
proceedings governed by these rules.
    (g) The Office of Polar Programs, acting on behalf of the Director, 
may designate qualified individuals as enforcement officers empowered to 
execute all of the law enforcement functions set forth in section 10 of 
the ACA, 16 U.S.C. 2409, as well as any other appropriate actions 
ancillary to those statutory

[[Page 232]]

duties. OPP will provide each enforcement officer with official 
enforcement credentials for identification purposes and use during 
execution of official duties.

OPP may also designate knowledgeable individuals to provide educational 
and other information regarding the Antarctic to tour operators, their 
clients and employees, and other visitors to the Antarctic.
    (h) The Office of the General Counsel, with the concurrence of the 
Office of Polar Programs, may refer appropriate cases to the Department 
of Justice for possible prosecution of criminal violations of the 
Antarctic Conservation Act.

[54 FR 7132, Feb. 16, 1989. Redesignated at 58 FR 34718, June 29, 1993, 
and amended at 59 FR 37438, July 22, 1994; 61 FR 51022, Sept. 30, 1996; 
66 FR 42451, Aug. 13, 2001]



Sec. 672.4  Filing, service, and form of pleadings and documents.

    (a) Filing of pleadings and documents. (1) Except as otherwise 
provided, the original and one copy of the complaint, and the original 
of the answer and of all other documents served in the proceeding, shall 
be filed with the Hearing Clerk.
    (2) A certificate of service shall accompany each document filed or 
served. Except as otherwise provided, a party filing documents with the 
Hearing Clerk, after the filing of the answer, shall serve copies 
thereof upon all other parties and the Presiding Officer. The Presiding 
Officer shall maintain a duplicate file during the course of the 
proceeding.
    (3) When the Presiding Officer corresponds directly with the 
parties, he shall file the original of the correspondence with the 
Hearing Clerk, maintain a copy in the duplicate file, and send a copy to 
all parties. Parties who correspond directly with the Presiding Officer 
shall in addition to serving all other parties send a copy of all such 
correspondence to the Hearing Clerk. A certificate of service shall 
accompany each document served under this subsection.
    (b) Service of pleadings and documents--(1) Service of complaint. 
(i) Service of a copy of the signed original of the complaint, together 
with a copy of these rules, may be made personally or by certified mail, 
return receipt requested, on the respondent or his representative.
    (ii) Service upon a domestic or foreign corporation or upon a 
partnership or other unincorporated association which is subject to suit 
under a common name shall be made by personal service or certified mail, 
as prescribed by paragraph (b)(1)(i) of this section, directed to an 
officer, partner, a managing or general agent, or to any other person 
authorized by appointment or by Federal or State law to receive service 
of process.
    (iii) Service upon an officer or agency of the United States shall 
be made by delivering a copy of the complaint to the officer or agency, 
or in any manner prescribed for service by applicable regulations. If 
the agency is a corporation, the complaint shall be served as prescribed 
in paragraph (b)(1)(ii) of this section.
    (iv) Service upon a State or local unit of government, or a State or 
local officer, agency, department, corporation or other instrumentality 
shall be made by serving a copy of the complaint in the manner 
prescribed by the law of the State for the service of process on any 
such persons, or
    (A) If upon a State or local unit of government, or a State or local 
department, agency, corporation or other instrumentality, by delivering 
a copy of the complaint to the chief executive officer thereof; or
    (B) If upon a State or local officer by delivering a copy to such 
officer.
    (v) Proof of service of the complaint shall be made by affidavit of 
the person making personal service, or by properly executed return 
receipt. Such proof of service shall be filed with the complaint 
immediately upon completion of service.
    (2) The first page of every pleading, letter, or other document 
shall contain a caption identifying the respondent and the docket number 
which is exhibited on the complaint.
    (3) The original of any pleading, letter, or other document (other 
than exhibits) shall be signed by the party filing it or by his 
representative. The signature constitutes a representation by

[[Page 233]]

the signer that he has read the pleading, letter or other document, that 
to the best of his knowledge, information and belief, the statements 
made therein are true, and that it is not interposed for delay.
    (4) The initial document filed by any person shall contain his name, 
address and telephone number. Any changes in this information shall be 
communicated promptly to the Hearing Clerk, Presiding Officer, and all 
parties to the proceeding. A party who fails to furnish such information 
and any changes thereto shall be deemed to have waived his right to 
notice and service under these rules.



Sec. 672.5  Filing and service of rulings, orders, and decisions.

    (a) All rulings, orders, decisions, and other documents issued by 
the Presiding Officer shall be filed with the Hearing Clerk. Copies of 
all such documents shall be served personally, or by certified mail, 
return receipt requested, upon all parties.
    (b) Computation. In computing any period of time prescribed or 
allowed in these rules, except as otherwise provided, computation is by 
calendar days and does not include the day of the event from which the 
designated period begins to run. When a stated time expires on a 
Saturday, Sunday or legal holiday, the stated time period shall be 
extended to include the next business day.
    (c) Extensions of time. The Presiding Officer may grant an extension 
of time for the filing of any pleading, document, or motion (1) upon 
timely motion of a party to the proceeding, for good cause shown, and 
after consideration of prejudice to other parties, or (2) upon his own 
motion. Such a motion by a party may only be made after notice to all 
other parties, unless the movant can show good cause why serving notice 
is impracticable. The motion shall be filed in advance of the date on 
which the pleading, document or motion is due to be filed, unless the 
failure of a party to make timely motion for extension of time was the 
result of excusable neglect.
    (d) Service by mail. Service of the complaint is complete when the 
return receipt is signed. Service of all other pleadings and documents 
is complete upon mailing. Where a pleading or document is served by 
mail, five (5) days shall be added to the time allowed by these rules 
for the filing of a responsive pleading or document.
    (e) Ex parte discussion of proceeding. At no time after the issuance 
of the complaint shall the Presiding Officer, or any other person who is 
likely to advise these officials in the decision on the case, discuss ex 
parte the merits of the proceeding with any interested person outside 
the Agency, with any Agency staff member who performs a prosecutorial or 
investigative function in the proceeding or other factually related 
proceeding, or with any representative of such person. Any ex parte 
memorandum or other communication addressed to the Presiding Officer 
during the pendency of the proceedinq and relating to the merits 
thereof, by or on behalf of any party, shall be regarded as argument 
made in the proceeding and shall be served upon all other parties. The 
Presiding Officer shall give the other parties an opportunity to reply.
    (f) Subject to the provisions of law restricting the public 
disclosure of confidential information, any person may, during Agency 
business hours, inspect and copy any document filed in any proceeding. 
Such documents shall be made available by the Hearing Clerk.
    (g) The person seeking copies of any documents filed in a proceeding 
shall bear the cost of duplication. Upon a formal request the Agency may 
waive this cost in appropriate cases.



Sec. 672.6  Appearances.

    (a) Appearances. Any party may appear in person or by counsel or 
other representative. A partner may appear on behalf of a partnership 
and an officer may appear on behalf of a corporation. Persons who appear 
as counsel or other representative must conform to the standards of 
conduct and ethics required of practitioners before the courts of the 
United States.
    (b) Intervention. A motion for leave to intervene in any proceeding 
conducted under these rules must set forth the grounds for the proposed 
intervention, the position and interest of the movant, and whether the 
intervention will

[[Page 234]]

cause delay. Any person already a party to the proceeding may file an 
answer to a motion to intervene, making specific reference to the 
factors set forth in the foregoing sentence and paragraph (c) of this 
section, within ten (10) days after service of the motion for leave to 
intervene.
    (c) A motion for leave to intervene in a proceeding must ordinarily 
be filed before the first prehearing conference, or if there is no such 
conference, prior to the setting of a time and place for a hearing. Any 
motion filed after that time must include, in addition to the 
information set forth in paragraph (b) of this section, a statement of 
good cause for the failure to file in a timely manner. Agreements, 
arrangements, and other matters previously resolved during the 
proceeding are binding on the intervenor.
    (d) Disposition. The Presiding Officer may grant leave to intervene 
only if the movant demonstrates that (1) his presence in the proceeding 
would not unduly prolong or otherwise prejudice the adjudication of the 
rights of the original parties; (2) the movant will be adversely 
affected by a final order; and (3) the interests of the movant are not 
being adequately represented by the original parties. The intervenor 
becomes a full party to the proceeding upon the granting of leave to 
intervene.
    (e) Amicus curiae. Persons not parties to the proceeding who wish to 
file briefs may so move. The motion shall identify the interest of the 
applicant and shall state the reasons why the proposed amicus brief is 
desirable. If the motion is granted, the Presiding Officer or Director 
shall issue an order setting the time for filing such brief. An amicus 
curiae is eligible to participate in any briefing after his motion is 
granted, and shall be served with all briefs, motions, and orders 
relating to issues to be briefed.
    (f) Consolidation. The Presiding Officer may, by motion or sua 
sponte, consolidate any or all matters at issue in two or more 
proceedings docketed under these rules where (1) there exists common 
parties or common questions of fact or law; (2) consolidation would 
expedite and simplify consideration of the issues; and (3) consolidation 
would not adversely affect the rights of parties engaged in otherwise 
separate proceedings.
    (g) Severance. The Presiding Officer may, by motion or sua sponte, 
for good cause shown order any proceedings severed with respect to any 
or all parties or issues.



Sec. 672.7  Issuance of complaint.

    (a) General. If the complainant has reason to believe that a person 
has violated any provision of the Antarctic Conservation Act, other Act 
or attendant regulations, or a permit issued under the ACA, he may 
institute a proceeding for the assessment of a civil penalty or other 
sanctions by issuing a complaint under the Act and these rules.
    (b) If the complainant has reason to believe that (1) a permittee 
violated any term or condition of the permit, or (2) a permittee 
misrepresented or inaccurately described any material fact in the permit 
application or failed to disclose all relevant facts in the permit 
application, or (3) other good cause exists for such action, he may 
institute a proceeding for the revocation or suspension of a permit by 
issuing a complaint under the Act and these rules. A complaint may seek 
suspension or revocation of a permit in addition to the assessment of a 
civil penalty.
    (c) Content and amendment of the complaint. All complaints shall 
include:
    (1) A statement reciting the section(s) of the Act, regulations, 
and/or permit authorizing the issuance of the complaint;
    (2) A concise statement of the factual basis for all alleged 
violations; and
    (3) Notice of the respondent's right to request a hearing on any 
material fact contained in the complaint, or on the appropriateness of 
the proposed sanction.
    (d) Each complaint for the assessment of a civil penalty shall also 
include:
    (1) Specific reference to each provision of the Act and implementing 
regulations which respondent is alleged to have violated;
    (2) The amount of the civil penalty which is proposed to be 
assessed; and
    (3) A statement explaining the reasoning behind the proposed 
penalty;

[[Page 235]]

    (e) Each complaint for the revocation or suspension of a permit 
shall also include:
    (1) Specific reference to each term or condition of the permit which 
the respondent is alleged to have violated, to each alleged inaccuracy 
or misrepresentation in respondent's permit application, to each fact 
which the respondent allegedly failed to disclose in his permit 
application, or to other reasons which form the basis for the complaint;
    (2) A request for an order to either revoke or suspend the permit 
and a statement of the terms and conditions of any proposed partial 
suspension or revocation; and
    (3) A statement indicating the basis for recommending the 
revocation, rather than the suspension, of the permit, or vice versa.
    A copy of these rules shall accompany each complaint served.
    (f) Derivation of proposed civil penalty. The complainant shall 
determine the dollar amount of the proposed civil penalty in accordance 
with any criteria set forth in the Act and with any civil penalty 
guidance issued by NSF.
    (g) Amendment of the complaint. The complainant may amend the 
complaint once as a matter of right at any time before the answer is 
filed. Otherwise the complainant may amend the complaint only upon 
motion granted by the Presiding Officer. Respondent shall have twenty 
(20) additional days from the date of service of the amended complaint 
to file his answer.
    (h) Withdrawal of the complaint. The complainant may withdraw the 
complaint, or any part thereof, without prejudice one time before the 
answer has been filed. After one withdrawal before the filing of an 
answer, or after the filing of an answer, the complainant may withdraw 
the complaint, or any part thereof, without prejudice, only upon motion 
granted by the Presiding Officer.
    (i) Complainant, in cooperation with the Office of General Counsel, 
may refer cases to the Department of Justice for possible criminal 
prosecution if there is reason to believe that respondent willfully 
violated the Antarctic Conservation Act or its attendant regulations. 
Such referral does not automatically preclude NSF from proceeding 
administratively under the Act and these rules against the same 
respondent.



Sec. 672.8  Answer to the complaint.

    (a) General. Where respondent (1) contests any material fact upon 
which the complaint is based; (2) contends that the amount of the 
penalty proposed in the complaint or the proposed revocation or 
suspension, as the case may be, is inappropriate; or (3) contends that 
he is entitled to judgment as a matter of law, he shall file a written 
answer to the complaint with the Hearing Clerk. Any such answer to the 
complaint must be filed with the Hearing Clerk within twenty (20) days 
after service of the complaint.
    (b) Contents of the answer. The answer shall clearly and directly 
admit, deny or explain each of the factual allegations contained in the 
complaint. If respondent asserts he has no knowledge of a particular 
factual allegation, the allegation is deemed denied. The answer shall 
also state (1) the circumstances or arguments which are alleged to 
constitute the grounds of defense; (2) the facts which respondent 
intends to place at issue; and (3) whether a hearing is requested.
    (c) Request for hearing. A hearing upon the issues raised by the 
complaint and answer shall be held upon request of respondent in the 
answer. The Presiding Officer may deem the right to a hearing waived if 
it is not requested by respondent. In addition, a hearing may be held at 
the discretion of the Presiding Officer, sua sponte, to examine issues 
raised in the answer.
    (d) Failure to admit, deny, or explain. Failure of respondent to 
admit, deny, or explain any material factual allegation contained in the 
complaint constitutes an admission of the allegation.
    (e) Amendment of the answer. The respondent may amend the answer to 
the complaint upon motion granted by the Presiding Officer.



Sec. 672.9  Motions.

    (a) General. All motions, except those made orally on the record 
during a hearing, shall (1) be in writing; (2) state the basis or 
grounds with particularity; (3) set forth the relief or order sought;

[[Page 236]]

and (4) be accompanied by any affidavit, certificate, or other evidence 
or legal memorandum relied upon.
    (b) Response to motions. A party must file a response to any written 
motion within ten (10) days after service of such motion, unless the 
Presiding Officer allows additional time. The response shall be 
accompanied by any affidavit, certificate, other evidence, or legal 
memorandum relied upon. If no response is filed within the designated 
period, the Presiding Officer may deem the parties to have waived any 
objection to the granting of the motion. The Presiding Officer may also 
set a shorter time for response, or make such other appropriate orders 
concerning the disposition of motions.
    (c) Ruling on Motions. The Presiding Officer shall rule on all 
motions, unless otherwise provided in these rules. The Presiding Officer 
may permit oral argument if he considers it necessary or desirable.



Sec. 672.10  Default order.

    (a) Default. The Presiding Officer may find a party in default (1) 
after motion, upon failure to file a timely answer to the complaint; (2) 
after motion or sua sponte, upon failure to comply with a prehearing or 
hearing order of the Presiding Officer; or (3) after motion or sua 
sponte, upon failure to appear at a conference or hearing without good 
cause being shown. No finding of default on the basis of a failure to 
appear at a hearing shall be made against the respondent unless the 
complainant presents sufficient evidence to the Presiding Officer to 
establish a prima facie case against the respondent. Any motion for a 
default order shall include a proposed default order and shall be served 
upon all parties. The alleged defaulting party shall have twenty (20) 
days from service to reply to the motion. Default by respondent 
constitutes, for purposes of the pending action only, an admission of 
all facts alleged in the complaint and a waiver of respondent's right to 
a hearing on such factual allegations. If the complaint is for the 
assessment of a civil penalty, the penalty proposed in the complaint 
shall become due and payable by respondent without further proceedings 
sixty (60) days after a final order issued upon default. If the 
complaint is for the revocation or suspension of a permit, the 
conditions of revocation or suspension proposed in the complaint shall 
become effective without further proceedings on the date designated by 
the Presiding Officer in his final order issued upon default. Default by 
the complainant shall result in the dismissal of the complaint with 
prejudice.
    (b) Procedures upon default. When the Presiding Officer finds a 
default has occurred, he shall issue a default order against the 
defaulting party. This order shall constitute the initial decision, and 
shall be filed with the Hearing Clerk.
    (c) Contents of a default order. A default order shall include 
findings of fact showing the grounds for the order, conclusions 
regarding all material issues of law or discretion, and the penalty 
which is recommended, or the terms and conditions of permit revocation 
or suspension, or other sanctions.
    (d) The Presiding Officer may set aside a default order for good 
cause shown.



Sec. 672.11  Informal settlement; consent agreement and order.

    (a) Settlement policy. The Agency encourages settlement of a 
proceeding at any time if the settlement is consistent with the 
provisions and objectives of the Act and applicable regulations. The 
respondent may confer with complainant concerning settlement whether or 
not the respondent requests a hearing. Settlement conferences shall not 
affect the respondent's obligation to file a timely answer.
    (b) Consent agreement. The parties shall forward a written consent 
agreement and a proposed consent order to the Presiding Officer whenever 
settlement or compromise is proposed. The consent agreement shall state 
that, for the purpose of this proceeding, respondent (1) admits the 
jurisdictional allegations of the complaint; (2) admits the facts 
stipulated in the consent agreement or neither admits nor denies 
specific factual allegations contained in the complaint; and (3) 
consents to the assessment of a stated civil penalty or to the stated 
permit revocation or

[[Page 237]]

suspension, or to other sanctions or actions in mitigation. The consent 
agreement shall include any and all terms of the agreement, and shall be 
signed by all parties or their counsel or representatives.
    (c) Consent order. No settlement or consent agreement shall dispose 
of any proceeding under the rules without a consent order from the 
Director or his delegatee. Before signing such an order, the Director or 
his delegatee may require that the parties to the settlement appear 
before him to answer inquiries relating to the consent agreement or 
order.
    (d) Actions by respondent to clean, protect, enhance, or benefit the 
environment. NSF may accept from respondent environmentally beneficial 
actions, in lieu of penalties, in whole or in part, assessed under the 
Antarctic Conservation Act. An assessment of the monetary value of any 
action in mitigation shall be made before that action is incorporated as 
a part of any consent agreement and order.



Sec. 672.12  Prehearing conference.

    (a) Purpose of prehearing conference. Unless a conference appears 
unnecessary, the Presiding Officer, at any time before the hearing 
begins, shall direct the parties and their counsel or other 
representatives to appear at a conference before him to consider:
    (1) The settlement of the case;
    (2) The simplification of issues and stipulation of facts not in 
dispute;
    (3) The necessity or desirability of amendments to pleadings;
    (4) The exchange of exhibits, documents, prepared testimony, and 
admissions or stipulations of fact which will avoid unnecessary proof;
    (5) The limitation of the number of expert or other witnesses;
    (6) Setting a time and place for the hearing; and
    (7) Any other matters which may expedite the proceeding.
    (b) Exchange of witness lists and documents. Unless otherwise 
ordered by the Presiding Officer, each party at the prehearing 
conference shall make available to all other parties (1) the names of 
the expert and other witnesses he intends to call, together with a brief 
narrative summary of their expected testimony, and (2) copies of all 
documents and exhibits which each party intends to introduce into 
evidence. Documents and exhibits shall be marked for identification as 
ordered by the Presiding Officer. The Presiding Officer may exclude from 
evidence any document or testimony not disclosed at the prehearing 
conference. If the Presiding Officer permits the submittal of new 
evidence, he will grant parties a reasonable opportunity to respond.
    (c) Record of the prehearing conference. No transcript of a 
prehearing conference relating to settlement shall be made. With respect 
to other prehearing conferences, no transcript of any prehearing 
conferences shall be made unless ordered by the Presiding Officer upon 
motion of a party or sua sponte. The Presiding Officer shall prepare and 
file for the record a written summary of the action taken at the 
conference. The summary shall incorporate any written stipulations or 
agreements of the parties and all rulings and appropriate orders 
containing directions to the parties.
    (d) Unavailability of a prehearing conference. If a prehearing 
conference is unnecessary or impracticable, the Presiding Officer, on 
motion or sua sponte, may conduct a telephonic conference or direct the 
parties to correspond with him to accomplish any of the objectives set 
forth in this section.
    (e) Other discovery. (1) Except as provided by paragraph (b) of this 
section, further discovery shall be permitted only upon determination by 
the Presiding Officer that (i) such discovery will not in any way 
unreasonably delay the proceeding; (ii) the information to be obtained 
is not otherwise obtainable; and (iii) such information has significant 
probative value.
    (2) The Presiding Officer shall order depositions upon oral 
questions only upon a showing of good cause and upon a finding that (i) 
the information sought cannot be obtained by alternative methods; or 
(ii) there is substantial reason to believe that relevant and probative 
evidence may otherwise not be preserved for presentation by a witness at 
the hearing.
    (3) Any party may request further discovery by motion. Such a motion 
shall set forth (i) the circumstances

[[Page 238]]

warranting the taking of the discovery; (ii) the nature of the 
information expected to be discovered; and (iii) the proposed time and 
place where it will be taken. If the Presiding Officer determines that 
the motion should be granted, he shall issue an order granting 
discovery, with any qualifying conditions and terms.
    (4) When the information sought to be obtained is within the control 
of one of the parties, failure to comply with an order issued pursuant 
to this paragraph may lead to (i) the inference that the information to 
be discovered would be adverse to the party from whom the information 
was sought; or (ii) the issuance of a default.



Sec. 672.13  Accelerated decision; decision to dismiss.

    (a) General. The Presiding Officer, upon motion of any party or sua 
sponte, may at any time render an accelerated decision in favor of the 
complainant or the respondent as to all or any part of the proceeding, 
without further hearing or upon such limited additional evidence, such 
as affidavits, as he may require, if no genuine issue of material fact 
exists and a party is entitled to judgment as a matter of law regarding 
all or any part of the proceeding. In addition, the Presiding Officer, 
upon motion of the respondent, may at any time dismiss an action without 
further hearing or upon such limited additional evidence as he requires, 
if complainant fails to establish a prima facie case, or if other 
grounds show complainant has no right to relief.
    (b) Effect. (1) If an accelerated decision or a decision to dismiss 
is issued as to all the issues and claims in the proceeding, the 
decision constitutes an initial decision of the Presiding Officer, and 
shall be filed with the Hearing Clerk.
    (2) If an accelerated decision or a decision to dismiss is rendered 
on less than all issues or claims in the proceeding, the Presiding 
Officer shall determine what material facts exist without substantial 
controversy and what material facts remain controverted in good faith. 
He shall then issue an interlocutory order specifying the facts which 
appear substantially uncontroverted, and the issues and claims upon 
which the hearing will proceed.



Sec. 672.14  Scheduling the hearing.

    (a) When an answer is filed, the Hearing Clerk shall forward the 
complaint, the answer, and any other documents filed thus far in the 
proceeding to the Presiding Officer, who will notify the parties of his 
assignment.
    (b) Notice of hearing. If the respondent requests a hearing in his 
answer, or one is ordered by the Presiding Officer, the Presiding 
Officer shall serve upon the parties a notice setting forth a time and 
place for the hearing. The Presiding Officer may issue the notice of 
hearing at any appropriate time, but not later than twenty (20) days 
prior to the date set for the hearing.
    (c) Postponement of hearing. The Presiding Officer will not grant a 
request for postponement of a hearing except upon motion and for good 
cause shown.



Sec. 672.15  Evidence.

    (a) General. The Presiding Officer shall admit all evidence which is 
not irrelevant, immaterial, unduly repetitious, or otherwise unreliable 
or of little probative value. Notwithstanding the preceding sentence, 
evidence relating to settlement which would be excluded in the federal 
courts under Ru1e 408 of the Federal Rules of Evidence is inadmissible. 
In the presentation, admission, disposition, and use of evidence, the 
Presiding Officer shall preserve the confidentiality of trade secrets 
and other commercial and financial information. The confidential or 
trade secret status of any information shall not, however, preclude its 
introduction into evidence. The Presiding Officer may review such 
evidence in camera, and issue appropriate protective orders.
    (b) Examination of witnesses. Parties shall examine witnesses 
orally, under oath or affirmation, except as otherwise provided in these 
rules or by the Presiding Officer. Parties shall have the right to 
cross-examine a witness who appears at the hearing.
    (c) Verified statements. The Presiding Officer may admit into the 
record as evidence, in lieu of oral testimony, statements of fact or 
opinion prepared

[[Page 239]]

by a witness. The admissibility of the evidence contained in the 
statement shall be subject to the same rules as if the testimony were 
produced under oral examination. Before any such statement is read or 
admitted into evidence, the witness shall deliver a copy of the 
statement to the Presiding Officer, the reporter, and opposing counsel. 
The witness presenting the statement shall swear to or affirm the 
statement and shall be subject to appropriate oral cross-examination.
    (d) Admission of affidavits where the witness is unavailable. The 
Presiding Officer may admit into evidence affidavits of witnesses who 
are ``unavailable,'' within the meaning of that term under Rule 804(a) 
of the Federal Rules of Evidence.
    (e) Exhibits. Where practicable, an original and one copy of each 
exhibit shall be filed with the Presiding Officer for the record and a 
copy shall be furnished to each party. A true copy of any exhibit may be 
substituted for the original.
    (f) Official notice. Official notice may be taken of any matter 
judicially noticeable in the Federal courts and of other facts within 
the specialized knowledge and experience of the Agency. Opposing parties 
shall be given adequate opportunity to show that such facts are 
erroneously noticed.



Sec. 672.16  Objections and offers of proof.

    (a) Objection. Any objection concerning the conduct of the hearing 
may be made orally or in writing during the hearing. The party raising 
the objection must supply a short statement of its grounds. The ruling 
by the Presiding Officer on any objection and the reasons given for it 
shall be part of the record. An exception to each objection overruled 
shall be automatic and is not waived by further participation in the 
hearing.
    (b) Offer of proof. Whenever evidence is excluded from the record, 
the party offering the evidence may make an offer of proof, which shall 
be included in the record. The offer of proof for excluded oral 
testimony shall consist of a brief statement describing the nature of 
the evidence excluded. The offer of proof for excluded documents or 
exhibits shall consist of the insertion in the record of the documents 
or exhibits excluded.



Sec. 672.17  Burden of presentation; burden of persuasion.

    The complainant has the burden of going forward with and of proving 
that the violation occurred as set forth in the complaint and that the 
proposed civil penalty, revocation, suspension, or other sanction, is 
appropriate. Following the establishment of a prima facie case, 
respondent has the burden of presenting and of going forward with any 
defense to the allegations set forth in the complaint. The Presiding 
Officer shall decide all controverted matters upon a preponderance of 
the evidence.



Sec. 672.18  Filing the transcript.

    The hearing shall be transcribed verbatim. After the Presiding 
Officer closes the record, the reporter shall promptly transmit the 
original and certified copies to the Hearing Clerk, and one certified 
copy directly to the Presiding Officer. A certificate of service shall 
accompany each copy of the transcript. The Hearing Clerk shall notify 
all parties of the availability of the transcript and shall furnish the 
parties with a copy of the transcript upon payment of the cost of 
reproduction, unless a party can show that the cost is unduly 
burdensome. Any person not a party to the proceeding may obtain a copy 
of the transcript upon payment of the reproduction fee, except for those 
parts of the transcript ordered to be kept confidential by the Presiding 
Officer.



Sec. 672.19  Proposed findings, conclusions, and order.

    Unless otherwise ordered by the Presiding Officer, any party may 
submit proposed findings of fact, conclusions of law, and a proposed 
order, together with supporting briefs, within twenty (20) days after 
the parties are notified of the availability of the transcript. The 
Presiding Officer shall set a time by which reply briefs must be 
submitted. All submissions shall be in writing, shall be served upon all 
parties, and shall contain adequate references to the record and relied-
upon authorities.

[[Page 240]]



Sec. 672.20  Initial decision.

    (a) Filing and contents. The Presiding Officer shall issue and file 
with the Hearing Clerk an initial decision as soon as practicable after 
the period for filing reply briefs, if any, has expired. The initial 
decision shall contain findings of fact, conclusions regarding all 
material issues of law or discretion, the reasons for the findings and 
conclusions, a recommended civil penalty assessment or other sanction, 
if appropriate, and a proposed final order. Upon receipt of an initial 
decision, the Hearing Clerk shall forward a copy to all parties, and 
shall send the original, along with the record of the proceeding, to the 
Director.
    (b) Amount of civil penalty. If the Presiding Officer determines 
that a violation has occurred, he shall set the dollar amount of the 
recommended civil penalty in the initial decision in accordance with any 
criteria set forth in the Act, and must consider any civil penalty 
guidelines issued by NSF. If the Presiding Officer decides to assess a 
penalty different in amount from the penalty recommended in the 
complaint, he shall set forth in the initial decision the specific 
reasons for the increase or decrease. The Presiding Officer shall not 
raise a penalty from that recommended in the complaint if the respondent 
has defaulted.
    (c) Effect of initial decision. The initial decision of the 
Presiding Officer shall become the final order of the Agency within 
forty-five (45) days after its service upon the parties and without 
further proceedings unless (1) an appeal to the Director is filed by a 
party to the proceedings; or (2) the Director elects, sua sponte, to 
review the initial decision.
    (d) Motion to reopen a hearing. A motion to reopen a hearing to take 
further evidence must be made no later than twenty (20) days after 
service of the initial decision on the parties and shall (1) state the 
specific grounds upon which relief is sought; (2) state briefly the 
nature and purpose of the evidence to be adduced; (3) show that such 
evidence is not cumulative; and (4) show good cause why such evidence 
was not adduced at the hearing. The motion shall be made to the 
Presiding Officer and filed with the Hearing Clerk. Parties shall have 
ten (10) days following service to respond. The Presiding Officer shall 
grant or deny such motion as soon as practicable. The conduct of any 
proceeding which may be required as a result of the granting of any 
motion to reopen shall be governed by the provisions of the applicable 
sections of these rules. The filing of a motion to reopen a hearing 
shall automatically stay the running of all time periods specified under 
these Rules until such time as the motion is denied or the reopened 
hearing is concluded.



Sec. 672.21  Appeal from or review of interlocutory orders or rulings.

    (a) Request for interlocutory orders or rulings. Except as provided 
in this section, appeals to the Director or, upon delegation, to the 
General Counsel, shall obtain as a matter of right only from a default 
order, an accelerated decision or decision to dismiss, or an initial 
decision rendered after an evidentiary hearing. Appeals from other 
orders or rulings shall lie only if the Presiding Officer, upon motion 
of a party, certifies such orders or rulings to the Director on appeal. 
Requests for such certification shall be filed in writing within six (6) 
days of notice of the ruling or service of the order, and shall state 
briefly the grounds to be relied upon on appeal.
    (b) Availability of interlocutory appeal. The Presiding Officer may 
certify any ruling for appeal to the Director when (1) the order or 
ruling involves an important question of law or policy and there is 
substantial grounds for difference of opinion; and (2) either (i) an 
immediate appeal from the order or ruling will materially advance the 
ultimate resolution of the proceeding, or (ii) review after the final 
order is issued will be inadequate or ineffective.
    (c) Decision. If the Director or the General Counsel takes no action 
within thirty (30) days of the certification, the appeal is dismissed. 
If the Director or the General Counsel decides to hear the interlocutory 
appeal, he shall make and transmit his findings and conclusions to the 
Presiding Officer. When the Presiding Officer declines to certify an 
order or ruling to the Director on

[[Page 241]]

interlocutory appeal, it may be reviewed by the Director only upon 
appeal from the initial decision.
    (d) Stay of proceedings. The Presiding Officer may stay the 
proceedings for an interlocutory appeal. Proceedings will not be stayed 
except in extraordinary circumstances. Where the Presiding Officer 
grants a stay of more than thirty (30) days, such stay must be 
separately approved by the Director.



Sec. 672.22  Appeal from or review of initial decision.

    (a) Notice of appeal. Any party may appeal any adverse initial 
decision of the Presiding Officer by filing a notice of appeal and an 
accompanying appellate brief with the Hearing Clerk and upon all other 
parties and amicus curiae within twenty (20) days after the initial 
decision is served upon the parties. The notice of appeal shall set 
forth alternative findings of fact, alternative conclusions regarding 
issues of law or discretion, and a proposed order together with relevant 
references to the record and the initial decision. The appellant's brief 
shall contain a statement of the issues presented for review, argument 
on the issues presented, and a short conclusion stating the precise 
relief sought, together with appropriate references to the record. 
Within twenty (20) days of the service of notices of appeal and briefs, 
any other party or amicus curiae may file with the Hearing Clerk a reply 
brief responding to argument raised by the appellant, together with 
references to the relevant portions of the record, initial decision, or 
opposing brief. Reply briefs shall be limited to the scope of the appeal 
brief.
    (b) Sua sponte review by the Director. Whenever the Director 
determines sua sponte to review an initial decision, the Hearing Clerk 
shall serve notice of such intention on the parties within forty-five 
(45) days after the initial decision is served upon the parties. The 
notice shall include a statement of issues to be briefed by the parties 
and a time schedule for the service and filing of briefs.
    (c) Scope of appeal or review. The appeal of the initial decision 
shall be limited to those issues raised by the parties during the course 
of the proceeding. If the Director determines that issues raised, but 
not appealed by the parties, should be argued, he shall give the parties 
or their representatives written notice of such determination to permit 
preparation of adequate argument. Nothing herein shall prohibit the 
Director from remanding the case to the Presiding Officer for further 
proceedings.
    (d) Argument. The Director may, upon request of a party or sua 
sponte, assign a time and place for oral argument.



Sec. 672.23  Final order on appeal.

    (a) Contents of the final order. When an appeal has been taken or 
the Director issues a notice of intent to conduct review sua sponte, the 
Director shall issue a final order as soon as practicable after the 
filing of all appellate briefs or oral argument. The Director shall 
adopt, modify or set aside the findings and conclusions contained in the 
decision or order being reviewed and shall set forth in the final order 
the reasons for his actions. The Director may, in his discretion, 
increase or decrease the assessed penalty from the amount recommended in 
the decision or order being reviewed, except that if the order being 
reviewed is a default order, the Director may not increase the amount of 
the penalty.
    (b) Payment of a civil penalty. The respondent shall pay the full 
amount of the civil penalty assessed in the final order within sixty 
(60) days after receipt of the final order unless otherwise agreed by 
the parties. Payment shall be made by forwarding to the Hearing Clerk a 
cashier's check or certified check in the amount of the penalty assessed 
in the final order, payable to the Treasurer, United States of America.
    (c) Money due and owing the United States by virtue of an unappealed 
final decision or settlement order may be collected by referral to the 
Department of Justice for appropriate civil action against respondent.



Sec. 672.24  Maximum civil monetary penalties for violations.

    (a) For violations occurring before August 1, 1998, the maximum 
civil penalty that may be assessed under Sec. Sec. 672.20(b) and 
672.23(a) is set by the

[[Page 242]]

statute at $5,000 for any violation and $10,000 for knowing violations.
    (b) For violations occurring between August 1, 1998 and August 31, 
2002, the maximum civil penalty was adjusted under authority of the 
Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 
note) as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 
104-134) to $5,500 for any violation and $11,000 for knowing violations.
    (c) For violations occurring after August 31, 2002, the maximum 
civil penalty is adjusted under authority of the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note) as amended by the 
Debt Collection Improvement Act of 1996 (Pub. L. 104-134) to $6,500 for 
any violation and $11,000 for knowing violations.

[67 FR 55729, Aug. 30, 2002]



PART 673_ANTARCTIC NON-GOVERNMENTAL EXPEDITIONS--Table of Contents




Sec.
673.1 Purpose of regulations.
673.2 Scope.
673.3 Definitions.
673.4 Environmental protection information.
673.5 Emergency response plan.

    Authority: 16 U.S.C. 2401 et. seq.

    Source: 66 FR 42451, Aug. 13, 2001, unless otherwise noted.



Sec. 673.1  Purpose of regulations.

    The purpose of the regulations in this part is to implement the 
Antarctic Conservation Act of 1978, Public Law 95-541, as amended by the 
Antarctic Science, Tourism and Conservation Act of 1996, Public Law 104-
227, and Article 15 of the Protocol on Environmental Protection to the 
Antarctic Treaty done at Madrid on October 4, 1991. Specifically, this 
part requires that all non-governmental expeditions, for which advance 
notice by the United States is required under the Antarctic Treaty, who 
use non-flagged vessels ensure that the vessel owner or operator has an 
appropriate emergency response plan. This part is also designed to 
ensure that expedition members are informed of their environmental 
protection obligations under the Antarctic Conservation Act.

(Approved by the Office of Management and Budget under control number 
3145-0180)



Sec. 673.2  Scope.

    The requirements in this part apply to non-governmental expeditions 
to or within Antarctica for which the United States is required to give 
advance notice under Paragraph (5) of Article VII of the Antarctic 
Treaty.



Sec. 673.3  Definitions.

    In this part:
    Antarctica means the area south of 60 degrees south latitude.
    Expedition means an activity undertaken by one or more non-
governmental persons organized within or proceeding from the United 
States to or within Antarctica for which advance notification is 
required under Paragraph 5 of Article VII of the Antarctic Treaty.
    Person has the meaning given that term in section 1 of title 1, 
United States Code, and includes any person subject to the jurisdiction 
of the United States except that the term does not include any 
department, agency, or other instrumentality of the Federal Government.



Sec. 673.4  Environmental protection information.

    (a) Any person who organizes a non-governmental expedition to 
Antarctica and who does business in the United States shall notify 
expedition members of the environmental protection obligations of the 
Antarctic Conservation Act.
    (b) The National Science Foundation's Office of Polar Programs may 
prepare for publication and distribution explanation of the prohibited 
acts set forth in the Antarctic Conservation Act, as well as other 
appropriate educational material for tour operators, their clients, and 
employees. Such material provided to tour operators for distribution to 
their passengers and crew shall be disseminated prior to or during 
travel to the Antarctic.

[[Page 243]]



Sec. 673.5  Emergency response plan.

    Any person organizing a non-governmental expedition to or within 
Antarctica who is transporting passengers aboard a non-U.S. flagged 
vessel shall ensure that:
    (a) The vessel owner's or operator's shipboard oil pollution 
emergency plan, prepared and maintained according to Regulation 26 of 
Annex I of the International Convention for the Prevention of Pollution 
from Ships, 1973, as modified by the Protocol of 1978 relating thereto 
(MARPOL 73/78), has provisions for prompt and effective response action 
to such emergencies as might arise in the performance of the vessel's 
activities in Antarctica. Any emergency response plan which satisfies 
the requirements contained in 33 CFR 151.26 of the U.S. Coast Guard 
regulations will also satisfy the requirements of this paragraph. If the 
vessel owner or operator does not have a shipboard oil pollution 
emergency plan, a separate plan for prompt and effective response action 
is required.
    (b) The vessel owner or operator agrees to take all reasonable 
measures to implement the plan for a prompt and effective response 
action in the event of an emergency, taking into account considerations 
of risk to human life and safety.



PART 674_ANTARCTIC METEORITES--Table of Contents




Sec.
674.1 Purpose of regulations.
674.2 Scope and applicability.
674.3 Definitions.
674.4 Restrictions on collection of meteorites in Antarctica.
674.5 Requirements for collection, handling, documentation and curation 
          of Antarctic meteorites.
674.6 Submission of information to NSF.
674.7 Exception for serendipitous finds.

    Authority: 16 U.S.C. 2401 et seq.

    Source: 68 FR 15379, Mar. 31, 2003, unless otherwise noted.



Sec. 674.1  Purpose of regulations.

    The purpose of the regulations in this part is to implement the 
Antarctic Conservation Act of 1978, as amended by the Antarctic Science, 
Tourism and Conservation Act of 1996, (16 U.S.C 2401 et seq.), and 
Article 7 of the Protocol on Environmental Protection to the Antarctic 
Treaty done at Madrid on October 4, 1991. Specifically, this part is 
designed to ensure meteorites in Antarctica will be collected for 
scientific research purposes only and that U.S. expedition organizers to 
Antarctica who plan to collect meteorites in Antarctica will ensure that 
any specimens collected will be properly collected, handled, documented 
and curated to preserve their scientific value.



Sec. 674.2  Scope and applicability.

    This part applies to any person who collects meteorites in 
Antarctica. The requirements of Sec. 674.5 apply to any person 
organizing an expedition to or within Antarctica for which the United 
States is required to give advance notice under Paragraph (5) of Article 
VII of the Antarctic Treaty where one of the purposes of the expedition 
is to collect meteorites in Antarctica. The requirements in this part 
only apply to the collection of meteorites in Antarctica after April 30, 
2003.



Sec. 674.3  Definitions.

    In this part:
    Antarctica means the area south of 60 degrees south latitude.
    Expedition means an activity undertaken by one or more persons 
organized within or proceeding from the United States to or within 
Antarctica for which advance notification is required under Paragraph 5 
of Article VII of the Antarctic Treaty.
    Incremental cost is the extra cost involved in sharing the samples 
with other researchers. It does not include the initial cost of 
collecting the meteorites in Antarctica or the cost of maintaining the 
samples in a curatorial facility.
    Person has the meaning given that term in section 1 of title 1, 
United States Code, and includes any person subject to the jurisdiction 
of the United States.



Sec. 674.4  Restrictions on collection of meteorites in Antarctica.

    No person may collect meteorites in Antarctica for other than 
scientific research purposes.

[[Page 244]]



Sec. 674.5  Requirements for collection, handling, documentation, and 
curation of Antarctic meteorites.

    (a) Any person organizing an expedition to or within Antarctica, 
where one of the purposes of the expedition is to collect meteorites in 
Antarctica, shall ensure that the meteorites will be properly collected, 
documented, handled, and curated to preserve their scientific value. 
Curation includes making specimens available to bona fide scientific 
researchers on a timely basis, in accordance with specified procedures.
    (b) Expedition organizers described in paragraph (a) of this section 
shall develop and implement written procedures for the collection, 
documentation, and curation of specimens which include the following 
components:
    (1) Handling requirements. Handling procedures shall ensure that the 
specimens are properly labeled and handled to minimize the potential for 
contamination from the point of collection to the point of curation. At 
a minimum, handling procedures shall include:
    (i) Handling the samples with clean Teflon or polyethylene coated 
implements or stainless steel implements (or equivalent);
    (ii) Double bagging of samples in Teflon or polyethylene (or 
equivalent) bags;
    (iii) A unique sample identifier included with the sample;
    (iv) Keeping the samples frozen at or below -15 [deg]C until opened 
and thawed in a clean laboratory setting at the curation facility; and
    (v) Thawing in a clean, dry, non-reactive gas environment, such as 
nitrogen or argon.
    (2) Sample documentation. Documentation for each specimen, that 
includes, at a minimum:
    (i) A unique identifier for the sample;
    (ii) The date of find;
    (iii) The date of collection (if different from date of find);
    (iv) The latitude and longitude to within 500 meters of the location 
of the find and the name of the nearest named geographical feature;
    (v) The name, organizational affiliation, and address of the finder 
or the expedition organizer;
    (vi) A physical description of the specimen and of the location of 
the find; and
    (vii) Any observations of the collection activity, such as potential 
contamination of the specimen.
    (3) Curation. Make prior arrangements to ensure that any specimens 
collected in Antarctica will be maintained in a curatorial facility that 
will:
    (i) Preserve the specimens in a manner that precludes chemical or 
physical degradation;
    (ii) Produce an authoritative classification for meteorites that can 
be shown to belong to a well-established chemical and petrological 
group, and provide appropriate descriptions for those meteorites that 
cannot be shown to belong to an established chemical and petrological 
group;
    (iii) Develop and maintain curatorial records associated with the 
meteorites including collection information, authoritative 
classification, total known mass, information about handling and sample 
preparation activities that have been performed on the meteorite, and 
sub-sample information;
    (iv) Submit an appropriate summary of information about the 
meteorites to the Antarctic Master Directory via the National Antarctic 
Data Coordination Center as soon as possible, but no later than two 
years after receipt of samples at the curatorial facility;
    (v) Submit information on classification of the meteorite to an 
internationally recognized meteorite research catalog, such as the 
``Catalogue of Meteorites'' published by the Natural History Museum of 
London or the ``Meteoritical Bulletin'' published by the Meteoritical 
Society;
    (vi) Specify procedures by which requests for samples by bonafide 
scientific researchers will be handled;
    (vii) Make samples available to bonafide scientific researchers at 
no more than incremental cost and within a reasonable period of time; 
and
    (viii) In the event that the initial curatorial facility is no 
longer in a position to provide curation services for the specimens, or 
believes that the meteorites no longer merit curation, it shall consult 
with the National Science Foundation's Office of Polar Programs

[[Page 245]]

to identify another appropriate curatorial facility, or to determine 
another appropriate arrangement.



Sec. 674.6  Submission of information to NSF.

    A copy of the written procedures developed by expedition organizers 
pursuant to Sec. 674.5(b) shall be furnished to the National Science 
Foundation's Office of Polar Programs at a minimum of 90 days prior to 
the planned departure date of the expedition for Antarctica. NSF shall 
publish a notice of availability of the plan in the Federal Register 
that provides for a 15 day comment period. NSF shall evaluate the 
procedures in the plan to determine if they are sufficient to ensure 
that the meteorites will be properly collected, handled, documented, and 
curated. NSF shall provide comments on the adequacy of the plan within 
45 days of receipt. If NSF advises the expedition organizer that the 
procedures satisfy the requirements of Sec. 674.5 and the procedures 
are implemented, the expedition organizer will have satisfied the 
requirements of this part.



Sec. 674.7  Exception for serendipitous finds.

    A person who makes a serendipitous discovery of a meteorite in 
Antarctica which could not have been reasonably anticipated, may collect 
the meteorite for scientific research purposes, provided that the 
meteorite is collected in the manner most likely to prevent 
contamination under the circumstances, and provided that the meteorite 
is otherwise handled, documented and curated in accordance with the 
requirements of Sec. 674.5.



PART 675_MEDICAL CLEARANCE PROCESS FOR DEPLOYMENT TO ANTARCTICA--Table 
of Contents




Sec.
675.1 Purpose and authority.
675.2 Medical examinations.
675.3 Medical clearance criteria.
675.4 Waiver process.

    Authority: 42 U.S.C. 1870.

    Source: 62 FR 31522, June 10, 1997, unless otherwise noted.



Sec. 675.1  Purpose and authority.

    (a) This part sets forth the procedures for medical screening to 
determine whether candidates for participation in the United States 
Antarctic Program (USAP) are physically qualified and psychologically 
adapted for assignment or travel to Antarctica. Medical screening 
examinations are necessary to determine the presence of any physical or 
psychological conditions that would threaten the health or safety of the 
candidate or other USAP participants or that could not be effectively 
treated by the limited medical care capabilities in Antarctica.
    (b) Presidential Memorandum No. 6646 (February 5, 1982) (available 
from the National Science Foundation, Office of Polar Programs, room 
755, 4201 Wilson Blvd., Arlington, VA 22230) sets forth the National 
Science Foundation's overall management responsibilities for the entire 
United States national program in Antarctica.



Sec. 675.2  Medical examinations.

    (a) Any individual seeking to travel to Antarctica under sponsorship 
of the United States Antarctic Program must undergo a medical and dental 
examination to determine whether the individual is physically qualified 
for deployment to Antarctica.
    (b) The medical and dental examinations may be conducted by a 
qualified licensed physician or dentist of the candidate's choosing, or 
designated by the employing organization, following instructions 
provided by the USAP. The medical examinations shall include a medical 
history, physical examination and appropriate clinical tests which 
address major organ systems for medical conditions inconsistent with 
safe deployment to Antarctica.
    (c) The candidate's physician/dentist will submit the required 
medical information on the appropriate USAP-provided forms to a USAP-
designated physician who will determine whether the individual is 
qualified for deployment to Antarctica based upon Medical Clearance 
Criteria established by the USAP. All information requested on the forms 
shall be provided.
    (d) Candidates who anticipate spending the austral winter in 
Antarctica

[[Page 246]]

(when evacuation may be impossible) are subject to additional 
evaluation, including a determination of psychological adaptability for 
such an isolated assignment. Psychological evaluations of ``winter-
over'' candidates shall be performed by a qualified team of USAP-
designated physicians/clinical psychologists.



Sec. 675.3  Medical clearance criteria.

    (a) The USAP shall establish Medical Clearance Criteria for 
determining eligibility for deployment to Antarctica. (See Medical 
Standards for Antarctic Deployment available from the National Science 
Foundation, Office of Polar Programs, room 755.09, 4201 Wilson Blvd., 
Arlington, VA 22230).
    The criteria will include examination of the following major organ 
systems:
    (1) Lungs and chest wall.
    (2) Heart and vascular system.
    (3) Abdominal organs and gastrointestinal system.
    (4) Endocrine or metabolic system.
    (5) Genitalia and urinary system.
    (6) Musculoskeletal.
    (7) Skin and cellular tissues.
    (8) Neurological Disorders.
    (9) Psychiatric or psychological.
    (10) Dental.
    (b) The USAP may review and revise the Medical Clearance Criteria 
periodically as appropriate.



Sec. 675.4  Waiver process.

    (a) If an individual is found not physically qualified for 
deployment to Antarctica, the USAP's contractor will inform the 
individual of the determination and of the administrative waiver 
process, and will provide a waiver application package to the individual 
upon request.
    (b) The waiver applicant should send the completed waiver 
application package to the USAP's contractor which will forward the 
package to NSF's Office of Polar Programs for review and a determination 
on the appropriateness of a waiver. In making the waiver determination, 
the Office of Polar Programs may consult with other qualified medical 
personnel and may require waiver applicants to take further medical 
examinations or to furnish additional medical documentation in support 
of the waiver application.
    (c) The Director, Office of Polar Programs (or designee) will make a 
final determination, in the exercise of his or her discretion, on the 
appropriateness of a waiver on a case-by-case basis.
    (d) Individuals for whom a waiver is determined to be appropriate 
are eligible for deployment to Antarctica subject to any necessary 
limitations/restrictions identified by the Director, Office of Polar 
Programs, or designee.



PART 680_NATIONAL SCIENCE FOUNDATION RULES OF PRACTICE AND STATUTORY 
CONFLICT-OF-INTEREST EXEMPTIONS--Table of Contents




     Subpart A_Rules of Practice for the National Science Foundation

Sec.
680.10 Definitions; cross-references to employee ethical conduct 
          standards and financial disclosure regulations.
680.11 Staff involvement with NSF proposals and awards.
680.12 One-year NSF post-employment restrictions.
680.13 Purposes for ``substitute'' requirements.

                     Subpart B_Statutory Exemptions

680.20 Exemptions under 18 U.S.C. 208(b).

    Authority: 5 U.S.C. 7301; 18 U.S.C. 208 (1988); 42 U.S.C. 1870(a); 5 
CFR 2635.105(c)(3), 2635.402(d)(1).

    Source: 47 FR 32131, July 26, 1982, unless otherwise noted.



     Subpart A_Rules of Practice for the National Science Foundation

    Source: 61 FR 59837, Nov. 25, 1996, unless otherwise noted.



Sec. 680.10  Definitions; cross-references to employee ethical conduct 
standards and financial disclosure regulations.

    (a) Definitions. Under this subpart, unless a provision plainly 
indicates otherwise:
    (1) Award means any grant, contract, cooperative agreement, loan, or 
other arrangement made by the Government.
    (2) Employee includes, in addition to any individual defined in 5 
CFR 2635.102(h), any individual working at

[[Page 247]]

NSF under the Intergovernmental Personnel Act. It includes any part-time 
or intermittent employee, temporary consultant; but not a special 
Government employee, as defined in 18 U.S.C. 202(a).
    (3) Institution means any university, college, business firm, 
research institute, professional society, or other organization. It 
includes all parts of a university or college, including all 
institutions in a multi-institution State or city system. It includes 
any university consortium or joint corporation; but not the universities 
that belong to such a consortium. Those universities shall be considered 
separate institutions for purposes of this part.
    (4) Proposal means an application for an award and includes a bid.
    (b) Cross-references to employee ethical conduct standards and 
financial disclosure regulations. Members of the National Science Board 
and other employees of the National Science Foundation (NSF), including 
special Government employees, should refer to the Standards of Ethical 
Conduct for Employees of the Executive Branch at 5 CFR part 2635, the 
National Science Foundation's regulations at 5 CFR part 5301 which 
supplement the executive branch Standards, and the executive branch 
financial disclosure regulations at 5 CFR part 2634.



Sec. 680.11  Staff involvement with NSF proposals and awards.

    (a)(1) Many scientists, engineers, and educators interrupt active 
research and teaching careers to spend a year or two at NSF and then 
return to research and teaching, usually at the same institution from 
which they came. Many such visiting scientists, engineers, and educators 
(and a few permanent employees) who have been principal investigators 
under NSF awards before coming to NSF, retain some interest or 
association with the work. If an individual is a principal investigator 
under an NSF award, the individual is not precluded from retaining ties 
to the work after becoming an NSF employee. The employee may stay in 
contact with those who are continuing the work in the employee's 
laboratory or on his or her project. The employee may continue to 
supervise graduate students. And the employee may visit and work in the 
laboratory on his or her own time for these and related purposes.
    (2) Before a prospective employee comes to NSF, the prospective 
employee and the grantee institution must designate, subject to NSF 
approval, a ``substitute principal investigator''--i.e., another 
scientist who will be responsible for the work and equipment and will 
represent the institution in any dealings with NSF officials while the 
prospective employee is at NSF.
    (3) Appointment of a substitute principal investigator is 
unnecessary if all work under an award is to be completely suspended 
while the employee is at NSF. If the work is to be suspended, the 
employee and the grantee institution must inform the NSF in writing 
before the employee's employment begins. Work under the award may be 
resumed when the employee completes his or her NSF employment, and its 
term may be extended to account for the time lost during the employee's 
NSF employment.
    (b)(1) NSF will entertain no proposal on which a current NSF 
employee would be a senior investigator or equivalent, unless it is a 
proposal for continuation or extension of support for work on which the 
employee served in that capacity before coming to NSF. Any proposal for 
continuation of NSF support at essentially the same level (with 
reasonable allowance for inflation) will normally be considered a 
proposal for continuation or extension if it would support the work of 
the same investigator and his or her laboratory or group (if any) in the 
same general field of science, engineering, or education, 
notwithstanding that the focus of the work may change in response to 
research opportunities or educational needs.
    (2) Someone other than the current NSF employee must submit any such 
proposal for continuation or extension of work NSF previously supported 
and handle all negotiations with NSF, but the capacity in which the 
current NSF employee will serve should be clearly spelled out in the 
proposal.
    (c) In accordance with 5 CFR 5301.103(a)(1), an NSF employee may not 
receive, directly or indirectly, any

[[Page 248]]

salary, consulting fee, honorarium, or other form of compensation for 
services, or reimbursement of expenses, from an NSF award.



Sec. 680.12  One-year NSF post-employment restrictions.

    (a) For one year after leaving NSF employment, a former NSF 
employee, including a special Government employee who has performed work 
for NSF on more than 60 days in the previous twelve months, shall not 
represent himself, herself, or any other person in dealings with any NSF 
official on any proposal, project, or other particular matter.
    (b) The one-year restriction contained in paragraph (a) of this 
section is in addition to any post-employment restriction imposed by 
statute, including 18 U.S.C. 207 and 41 U.S.C. 423. To the extent that 
any disqualification required by paragraph (a) of this section is not 
also required by statute, written exceptions may be granted by the NSF's 
General Counsel, whose decisions shall be final. Exceptions will be rare 
and will be granted only where strict application of the rules would 
result in undue hardship for former short-term employees or for other 
former employees, and when granting an exception would not result in an 
unfair advantage to the former employee.
    (c)(1) Paragraph (a) of this section applies to particular matters 
involving specific parties, such as grants, contracts, or other 
agreements; applications for permits, licenses, or the like; requests 
for rulings or similar official determinations; claims; investigations 
or audits; charges or accusations against individuals or firms; 
adjudicatory hearings; and court cases.
    (2) For former employees, other than special Government employees, 
paragraph (a) of this section also applies to particular matters that do 
not involve specific parties, such as:
    (i) Determinations to establish or dis-establish a particular 
program or set its budget level for a particular fiscal year;
    (ii) Decisions to undertake or terminate a particular project;
    (iii) Decisions to open or not open a contract to competitive 
bidding;
    (iv) General policy or rulemaking--including, for example, decisions 
on particular NSF rules or formal policy, such as adoption or amendment 
of a resolution by the National Science Board, promulgation or amendment 
of an NSF regulation or circular, amendment of standard grant or 
contract terms, or changes to NSF manuals or policy documents; and
    (v) Agency positions on particular legislative or regulatory 
proposals.
    (d) Paragraph (a) of this section does not apply to:
    (1) Any expression of a former employee's views on policy issues 
where the circumstances make it obvious that the former employee is only 
speaking as an informed and interested citizen, not representing any 
financial or other interests of his or her own or of any other person or 
institution with which he or she is associated;
    (2) Any appearance or communication concerning matters of a personal 
or individual nature, such as the former employee's taxes, salary, 
benefits, possible Federal employment, rights as a former employee, or 
the application of conflict-of-interest rules to something the former 
employee proposes to do;
    (3) Any appearance on the former employee's own behalf in any 
litigation or administrative proceeding; or
    (4) Any presentation of scientific or technical information (at a 
site visit, for example) or any other communication of scientific or 
technical information on work being proposed or conducted.
    (e) As soon as his or her NSF employment ceases, a former NSF 
employee (including any former special Government employee described in 
paragraph (a) of this section) may again be listed as principal 
investigator on an NSF award, may be listed as principal investigator in 
any proposal or award, and may sign a proposal as principal 
investigator. However, the former employee and the grantee institution 
shall formally designate, subject to NSF approval, a ``substitute 
negotiator'' who, though not principally responsible for the work, will 
represent the former employee and the institution in dealings with NSF 
officials on any proposal or

[[Page 249]]

project for as long as the former employee would be barred from 
representational contacts with NSF by paragraph (a) of this section or 
by statute.



Sec. 680.13  Purposes for ``substitute'' requirements.

    Appointment of a ``substitute principal investigator'' or 
``substitute negotiator'' ensures against unthinking violation of the 
restrictions on dealings with NSF officials. It serves this purpose by 
flagging proposals or awards affected by the restrictions and by 
identifying someone else with whom NSF officials can properly discuss 
them or negotiate over them. Designation of a substitute principal 
investigator while an employee is at NSF has two additional functions: 
it identifies another person to be responsible for the work and 
equipment, and it reminds all concerned that during an employee's NSF 
service his or her attentions should focus on NSF duties.



                     Subpart B_Statutory Exemptions



Sec. 680.20  Exemptions under 18 U.S.C. 208(b).

    (a) The Foundation exempts the interests described in the remainder 
of this section from the operation of section 208(a) and from case-by-
case formal determinations under section 208(b)(1) of title 18, United 
States Code.
    (b) Minor interests. The following financial interests are too 
inconsequential to affect the integrity of an employee's services to the 
Government:
    (1) Noncorporate bonds;
    (2) Shares in a well-diversified money market or mutual fund;
    (3) Stocks, bonds, or other securities of a corporation listed on 
the New York or American Stock Exchange if the aggregate market value of 
all the securities you hold in that corporation does not exceed $1,000;
    (4) Vested pension rights to which no further contributions are 
being made by your former employer.
    (c) Indirect interests. An NSF employee may be a stockholder, 
partner, employee, officer, or director of an institution, such as a 
mutual fund, that owns a financial interest in a second institution. If 
the owning institution's financial interest consists of securities or 
other evidences of debt of the second institution that amount to:
    (1) Less than 5 percent of the total portfolio of investments of the 
owning institution,
    (2) Less than 5 percent of the total outstanding amounts of the same 
classes of securities of the second institution, and
    (3) Less than would be needed to obtain effective control of the 
second institution,

then the interest is too remote and inconsequential to affect the 
integrity of the employee's services to the Government.
    (d) Policy determinations. Where a general policy determination of 
the Government might constitute a ``particular matter'' under 18 U.S.C. 
208(a) and might affect the home institution of an NSF officer or 
employee, but only in the same manner as all similar institutions, the 
officer or employee may participate in that determination.
    (e) Support services for National Science Board tasks and 
responsibilities. A member of the National Science Board may need 
professional, clerical, and administrative services to support the 
member's personal efforts to carry out Board tasks and responsibilities. 
With the approval of the Director and the Chairman of the National 
Science Board and in accordance with other laws and regulations, the NSF 
may contract with the home insitution of the member to provide such 
services. The institution may receive reimbursement of all allowable 
costs, but no profit or fee. In such circumstances any financial 
interests the institution might have are normally too inconsequential to 
affect the integrity of the services provided by the Board member to the 
Government.

[47 FR 32131, July 26, 1982. Redesignated at 61 FR 59839, Nov. 25, 1996]



PART 689_RESEARCH MISCONDUCT--Table of Contents




Sec.
689.1 Definitions.
689.2 General policies and responsibilities.
689.3 Actions.
689.4 Role of awardee institutions.
689.5 Initial NSF handling of misconduct matters.

[[Page 250]]

689.6 Investigations.
689.7 Pending proposals and awards.
689.8 Interim administrative actions.
689.9 Dispositions.
689.10 Appeals.

    Authority: 42 U.S.C. 1870(a).

    Source: 67 FR 11937, Mar. 18, 2002, unless otherwise noted.



Sec. 689.1  Definitions.

    The following definitions apply to this part:
    (a) Research misconduct means fabrication, falsification, or 
plagiarism in proposing or performing research funded by NSF, reviewing 
research proposals submitted to NSF, or in reporting research results 
funded by NSF.
    (1) Fabrication means making up data or results and recording or 
reporting them.
    (2) Falsification means manipulating research materials, equipment, 
or processes, or changing or omitting data or results such that the 
research is not accurately represented in the research record.
    (3) Plagiarism means the appropriation of another person's ideas, 
processes, results or words without giving appropriate credit.
    (4) Research, for purposes of paragraph (a) of this section, 
includes proposals submitted to NSF in all fields of science, 
engineering, mathematics, and education and results from such proposals.
    (b) Research misconduct does not include honest error or differences 
of opinion.



Sec. 689.2  General policies and responsibilities.

    (a) NSF will take appropriate action against individuals or 
institutions upon a finding that research misconduct has occurred. 
Possible actions are described in Sec. 689.3. NSF may also take interim 
action during an investigation, as described in Sec. 689.8.
    (b) NSF will find research misconduct only after careful inquiry and 
investigation by an awardee institution, by another Federal agency, or 
by NSF. An ``inquiry'' consists of preliminary information-gathering and 
preliminary fact-finding to determine whether an allegation or apparent 
instance of research misconduct has substance and if an investigation is 
warranted. An investigation must be undertaken if the inquiry determines 
the allegation or apparent instance of research misconduct has 
substance. An ``investigation'' is a formal development, examination and 
evaluation of a factual record to determine whether research misconduct 
has taken place, to assess its extent and consequences, and to evaluate 
appropriate action.
    (c) A finding of research misconduct requires that--
    (1) There be a significant departure from accepted practices of the 
relevant research community; and
    (2) The research misconduct be committed intentionally, or 
knowingly, or recklessly; and
    (3) The allegation be proven by a preponderance of evidence.
    (d) Before NSF makes any final finding of research misconduct or 
takes any final action on such a finding, NSF will normally afford the 
accused individual or institution notice, a chance to provide comments 
and rebuttal, and a chance to appeal. In structuring procedures in 
individual cases, NSF may take into account procedures already followed 
by other entities investigating or adjudicating the same allegation of 
research misconduct.
    (e) Debarment or suspension for research misconduct will be imposed 
only after further procedures described in applicable debarment and 
suspension regulations, as described in Sec. Sec. 689.8 and 689.9, 
respectively. Severe research misconduct, as established under the 
regulations in this part, is an independent cause for debarment or 
suspension under the procedures established by the debarment and 
suspension regulations.
    (f) The Office of Inspector General (OIG) oversees investigations of 
research misconduct and conducts any NSF inquiries and investigations 
into suspected or alleged research misconduct.
    (g) The Deputy Director adjudicates research misconduct proceedings 
and the Director decides appeals.
    (h) Investigative and adjudicative research misconduct records 
maintained by the agency are exempt from public

[[Page 251]]

disclosure under the Freedom of Information Act (5 U.S.C. 552) and the 
Privacy Act (5 U.S.C. 552a) to the extent permitted by law and 
regulation.



Sec. 689.3  Actions.

    (a) Possible final actions listed in this paragraph (a) for guidance 
range from minimal restrictions (Group I) to the most severe and 
restrictive (Group III). They are not exhaustive and do not include 
possible criminal sanctions.
    (1) Group I actions. (i) Send a letter of reprimand to the 
individual or institution.
    (ii) Require as a condition of an award that for a specified period 
an individual or institution obtain special prior approval of particular 
activities from NSF.
    (iii) Require for a specified period that an institutional official 
other than those guilty of misconduct certify the accuracy of reports 
generated under an award or provide assurance of compliance with 
particular policies, regulations, guidelines, or special terms and 
conditions.
    (2) Group II actions. (i) Totally or partially suspend an active 
award, or restrict for a specified period designated activities or 
expenditures under an active award.
    (ii) Require for a specified period special reviews of all requests 
for funding from an affected individual or institution to ensure that 
steps have been taken to prevent repetition of the misconduct.
    (iii) Require a correction to the research record.
    (3) Group III actions. (i) Terminate an active award.
    (ii) Prohibit participation of an individual as an NSF reviewer, 
advisor, or consultant for a specified period.
    (iii) Debar or suspend an individual or institution from 
participation in Federal programs for a specified period after further 
proceedings under applicable regulations.
    (b) In deciding what final actions are appropriate when misconduct 
is found, NSF officials should consider:
    (1) How serious the misconduct was;
    (2) The degree to which the misconduct was knowing, intentional, or 
reckless;
    (3) Whether it was an isolated event or part of a pattern;
    (4) Whether it had a significant impact on the research record, 
research subjects, other researchers, institutions or the public 
welfare; and
    (5) Other relevant circumstances.
    (c) Interim actions may include, but are not limited to:
    (1) Totally or partially suspending an existing award;
    (2) Suspending eligibility for Federal awards in accordance with 
debarment-and-suspension regulations;
    (3) Proscribing or restricting particular research activities, as, 
for example, to protect human or animal subjects;
    (4) Requiring special certifications, assurances, or other, 
administrative arrangements to ensure compliance with applicable 
regulations or terms of the award;
    (5) Requiring more prior approvals by NSF;
    (6) Deferring funding action on continuing grant increments;
    (7) Deferring a pending award;
    (8) Restricting or suspending participation as an NSF reviewer, 
advisor, or consultant.
    (d) For those cases governed by the debarment and suspension 
regulations, the standards of proof contained in the debarment and 
suspension regulations shall control. Otherwise, NSF will take no final 
action under this section without a finding of misconduct supported by a 
preponderance of the relevant evidence.



Sec. 689.4  Role of awardee institutions.

    (a) Awardee institutions bear primary responsibility for prevention 
and detection of research misconduct and for the inquiry, investigation, 
and adjudication of alleged research misconduct. In most instances, NSF 
will rely on awardee institutions to promptly:
    (1) Initiate an inquiry into any suspected or alleged research 
misconduct;
    (2) Conduct a subsequent investigation, if warranted;
    (3) Take action necessary to ensure the integrity of research, the 
rights and interests of research subjects and the public, and the 
observance of legal requirements or responsibilities; and

[[Page 252]]

    (4) Provide appropriate safeguards for subjects of allegations as 
well as informants.
    (b) If an institution wishes NSF to defer independent inquiry or 
investigation, it should:
    (1) Complete any inquiry and decide whether an investigation is 
warranted within 90 days. If completion of an inquiry is delayed, but 
the institution wishes NSF deferral to continue, NSF may require 
submission of periodic status reports.
    (2) Inform OIG immediately if an initial inquiry supports a formal 
investigation.
    (3) Keep OIG informed during such an investigation.
    (4) Complete any investigation and reach a disposition within 180 
days. If completion of an investigation is delayed, but the institution 
wishes NSF deferral to continue, NSF may require submission of periodic 
status reports.
    (5) Provide OIG with the final report from any investigation.
    (c) NSF expects institutions to promptly notify OIG should the 
institution become aware during an inquiry or investigation that:
    (1) Public health or safety is at risk;
    (2) NSF's resources, reputation, or other interests need protecting;
    (3) There is reasonable indication of possible violations of civil 
or criminal law;
    (4) Research activities should be suspended;
    (5) Federal action may be needed to protect the interests of a 
subject of the investigation or of others potentially affected; or
    (6) The scientific community or the public should be informed.
    (d) Awardee institutions should maintain and effectively communicate 
to their staffs appropriate policies and procedures relating to research 
misconduct, which should indicate when NSF should be notified.



Sec. 689.5  Initial NSF handling of misconduct matters.

    (a) NSF staff who learn of alleged misconduct will promptly and 
discreetly inform OIG or refer informants to OIG.
    (b) The identity of informants who wish to remain anonymous will be 
kept confidential to the extent permitted by law or regulation.
    (c) If OIG determines that alleged research misconduct involves 
potential civil or criminal violations, OIG may refer the matter to the 
Department of Justice.
    (d) Otherwise OIG may:
    (1) Inform the awardee institution of the alleged research 
misconduct and encourage it to undertake an inquiry;
    (2) Defer to inquiries or investigations of the awardee institution 
or of another Federal agency; or
    (3) At any time proceed with its own inquiry.
    (e) If OIG proceeds with its own inquiry it will normally complete 
the inquiry no more than 90 days after initiating it.
    (f) On the basis of what it learns from an inquiry and in 
consultation as appropriate with other NSF offices, OIG will decide 
whether a formal NSF investigation is warranted.



Sec. 689.6  Investigations.

    (a) When an awardee institution or another Federal agency has 
promptly initiated its own investigation, OIG may defer an NSF inquiry 
or investigation until it receives the results of that external 
investigation. If it does not receive the results within 180 days, OIG 
may proceed with its own investigation.
    (b) If OIG decides to initiate an NSF investigation, it must give 
prompt written notice to the individual or institutions to be 
investigated, unless notice would prejudice the investigation or unless 
a criminal investigation is underway or under active consideration. If 
notice is delayed, it must be given as soon as it will no longer 
prejudice the investigation or contravene requirements of law or Federal 
law-enforcement policies.
    (c) If a criminal investigation by the Department of Justice, the 
Federal Bureau of Investigation, or another Federal agency is underway 
or under active consideration by these agencies or the NSF, OIG will 
determine what information, if any, may be disclosed to the subject of 
the investigation or to other NSF employees.
    (d) An NSF investigation may include:

[[Page 253]]

    (1) Review of award files, reports, and other documents already 
readily available at NSF or in the public domain;
    (2) Review of procedures or methods and inspection of laboratory 
materials, specimens, and records at awardee institutions;
    (3) Interviews with subjects or witnesses;
    (4) Review of any documents or other evidence provided by or 
properly obtainable from parties, witnesses, or other sources;
    (5) Cooperation with other Federal agencies; and
    (6) Opportunity for the subject of the investigation to be heard.
    (e) OIG may invite outside consultants or experts to participate in 
an NSF investigation. They should be appointed in a manner that ensures 
the official nature of their involvement and provides them with legal 
protections available to federal employees.
    (f) OIG will make every reasonable effort to complete an NSF 
investigation and to report its recommendations, if any, to the Deputy 
Director within 180 days after initiating it.



Sec. 689.7  Pending proposals and awards.

    (a) Upon learning of alleged research misconduct OIG will identify 
potentially implicated awards or proposals and when appropriate, will 
ensure that program, grant, and contracting officers handling them are 
informed (subject to Sec. 689.6(c)).
    (b) Neither a suspicion or allegation of research misconduct nor a 
pending inquiry or investigation will normally delay review of 
proposals. To avoid influencing reviews, reviewers or panelists will not 
be informed of allegations or of ongoing inquiries or investigations. 
However, if allegations, inquiries, or investigations have been rumored 
or publicized, the responsible Program Director may consult with OIG 
and, after further consultation with the Office of General Counsel, 
either defer review, inform reviewers to disregard the matter, or inform 
reviewers of the status of the matter.



Sec. 689.8  Interim administrative actions.

    (a) After an inquiry or during an external or NSF investigation the 
Deputy Director may order that interim actions (as described in Sec. 
689.3(c)) be taken to protect Federal resources or to guard against 
continuation of any suspected or alleged research misconduct. Such an 
order will normally be issued on recommendation from OIG and in 
consultation with the Division of Contracts, Policy, and Oversight or 
Division of Grants and Agreements, the Office of the General Counsel, 
the responsible Directorate, and other parts of the Foundation as 
appropriate.
    (b) When suspension is determined to be appropriate, the case will 
be referred to the suspending official pursuant to 45 CFR part 620, and 
the suspension procedures of 45 CFR part 620 will be followed, but the 
suspending official will be either the Deputy Director or an official 
designated by the Deputy Director.
    (c) Such interim actions may be taken whenever information developed 
during an investigation indicates a need to do so. Any interim action 
will be reviewed periodically during an investigation by NSF and 
modified as warranted. An interested party may request a review or 
modification by the Deputy Director of any interim action.
    (d) The Deputy Director will make and OIG will retain a record of 
interim actions taken and the reasons for taking them.
    (e) Interim administrative actions are not final agency actions 
subject to appeal.



Sec. 689.9  Dispositions.

    (a) After receiving a report from an external investigation by an 
awardee institution or another Federal agency, OIG will assess the 
accuracy and completeness of the report and whether the investigating 
entity followed reasonable procedures. It will either recommend adoption 
of the findings in whole or in part or, normally within 30 days, 
initiate a new investigation.
    (b) When any satisfactory external investigation or an NSF 
investigation fails to confirm alleged misconduct--
    (1) OIG will notify the subject of the investigation and, if 
appropriate, those who reported the suspected or alleged misconduct. 
This notification may include the investigation report.

[[Page 254]]

    (2) Any interim administrative restrictions that were imposed will 
be lifted.
    (c) When any satisfactory investigation confirms misconduct--
    (1) In cases in which debarment is considered by OIG to be an 
appropriate disposition, the case will be referred to the debarring 
official pursuant to 45 CFR part 620 and the procedures of 45 CFR part 
620 will be followed, but:
    (i) The debarring official will be either the Deputy Director, or an 
official designated by the Deputy Director.
    (ii) Except in unusual circumstances, the investigation report and 
recommended disposition will be included among the materials provided to 
the subject of the investigation as part of the notice of proposed 
debarment.
    (iii) The notice of the debarring official's decision will include 
instructions on how to pursue an appeal to the Director.
    (2) In all other cases--
    (i) Except in unusual circumstances, the investigation report will 
be provided by OIG to the subject of the investigation, who will be 
invited to submit comments or rebuttal. Comments or rebuttal submitted 
within the period allowed, normally 30 days, will receive full 
consideration and may lead to revision of the report or of a recommended 
disposition.
    (ii) Normally within 45 days after completing an NSF investigation 
or receiving the report from a satisfactory external investigation, OIG 
will submit to the Deputy Director the investigation report, any 
comments or rebuttal from the subject of the investigation, and a 
recommended disposition. The recommended disposition will propose any 
final actions to be taken by NSF. Section 689.3 lists possible final 
actions and considerations to be used in determining them.
    (iii) The Deputy Director will review the investigation report and 
OIG's recommended disposition. Before issuing a disposition the Deputy 
Director may initiate further hearings or investigation. Normally within 
120 days after receiving OIG's recommendations or after completion of 
any further proceedings, the Deputy Director will send the affected 
individual or institution a written disposition, specifying actions to 
be taken. The decision will include instructions on how to pursue an 
appeal to the Director.



Sec. 689.10  Appeals.

    (a) An affected individual or institution may appeal to the Director 
in writing within 30 days after receiving the Deputy Director's written 
decision. The Deputy Director's decision becomes a final administrative 
action if it is not appealed within the 30 day period.
    (b) The Director may appoint an uninvolved NSF officer or employee 
to review an appeal and make recommendations.
    (c) The Director will normally inform the appellant of a final 
decision within 60 days after receiving the appeal. That decision will 
be the final administrative action of the Foundation



PART 690_PROTECTION OF HUMAN SUBJECTS--Table of Contents




Sec.
690.101 To what does this policy apply?
690.102 Definitions.
690.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal department or agency.
690.104-690.106 [Reserved]
690.107 IRB membership.
690.108 IRB functions and operations.
690.109 IRB review of research.
690.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
690.111 Criteria for IRB approval of research.
690.112 Review by institution.
690.113 Suspension or termination of IRB approval of research.
690.114 Cooperative research.
690.115 IRB records.
690.116 General requirements for informed consent.
690.117 Documentation of informed consent.
690.118 Applications and proposals lacking definite plans for 
          involvement of human subjects.
690.119 Research undertaken without the intention of involving human 
          subjects.
690.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal department 
          or agency.
690.121 [Reserved]
690.122 Use of Federal funds.

[[Page 255]]

690.123 Early termination of research support: Evaluation of 
          applications and proposals.
690.124 Conditions.

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

    Source: 56 FR 28012, 28022, June 18, 1991, unless otherwise noted.



Sec. 690.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a federal department 
or agency, whether or not it is regulated as defined in Sec. 
690.102(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. 
690.102(e) must be reviewed and approved, in compliance with Sec. 
690.101, Sec. 690.102, and Sec. 690.107 through Sec. 690.117 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

[[Page 256]]

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

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

[56 FR 28012, 28022, June 18, 1991; 56 FR 29756, June 28, 1991]



Sec. 690.102  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.

[[Page 257]]

    (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.
    (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. 690.103  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.

[[Page 258]]

    (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:
    (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. 690.101 (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. 690.103(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

[[Page 259]]

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. 690.101 (b) or (i). An institution with an approved assurance 
shall certify that each application or proposal for research covered by 
the assurance and by Sec. 690.103 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. 690.103 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, 28022, June 18, 1991; 56 FR 29756, June 28, 1991]



Sec. Sec. 690.104-690.106  [Reserved]



Sec. 690.107  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. 690.108  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

[[Page 260]]

Sec. 690.103(b)(4) and, to the extent required by, Sec. 690.103(b)(5).
    (b) Except when an expedited review procedure is used (see Sec. 
690.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 690.109  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. 690.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 690.116, 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. 690.117.
    (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. 690.110  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. 690.108(b).
    (c) Each IRB which uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals which have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.

[[Page 261]]



Sec. 690.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized: (i) By using procedures which 
are consistent with sound research design and which do not unnecessarily 
expose subjects to risk, and (ii) whenever appropriate, by using 
procedures already being performed on the subjects for diagnostic or 
treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of the special problems of research involving 
vulnerable populations, such as children, prisoners, pregnant women, 
mentally disabled persons, or economically or educationally 
disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by Sec. 690.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 690.117.
    (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. 690.112  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. 690.113  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. 690.114  Cooperative research.

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

[[Page 262]]



Sec. 690.115  IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent documents, progress reports submitted by investigators, and 
reports of injuries to subjects.
    (2) Minutes of IRB meetings which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities.
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described is Sec. 
690.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. 690.103(b)(4) and Sec. 690.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 690.116(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. 690.116  General requirements for informed consent.

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

[[Page 263]]

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

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



Sec. 690.117  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. 690.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator

[[Page 264]]

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

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



Sec. 690.118  Applications and proposals lacking definite plans for 
involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to departments or agencies with the knowledge 
that subjects may be involved within the period of support, but definite 
plans would not normally be set forth in the application or proposal. 
These include activities such as institutional type grants when 
selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. These applications need not be reviewed by an 
IRB before an award may be made. However, except for research exempted 
or waived under Sec. 690.101 (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. 690.119  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. 690.120  Evaluation and disposition of applications and proposals 

for research to be conducted or supported by a Federal department or 
agency.

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

[[Page 265]]

or proposal, or enter into negotiations to develop an approvable one.



Sec. 690.121  [Reserved]



Sec. 690.122  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. 690.123  Early termination of research support: Evaluation of 
applications and proposals.

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



Sec. 690.124  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.

[[Page 267]]



                 CHAPTER VII--COMMISSION ON CIVIL RIGHTS




  --------------------------------------------------------------------
Part                                                                Page
701             Organization and functions of the Commission         269
702             Rules on hearings, reports, and meetings of 
                    the Commission..........................         272
703             Operations and functions of State Advisory 
                    Committees..............................         281
704             Information disclosure and communications...         284
705             Materials available pursuant to 5 U.S.C. 
                    552a....................................         291
706             Employee responsibilities and conduct.......         296
707             Enforcement of nondiscrimination on the 
                    basis of disability in programs or 
                    activities conducted by U.S. Commission 
                    on Civil Rights.........................         303
708             Collection by salary offset from indebted 
                    current and former employees............         309

[[Page 269]]



PART 701_ORGANIZATION AND FUNCTIONS OF THE COMMISSION--Table of Contents




                  Subpart A_Organizations and Functions

Sec.
701.1 Establishment.
701.2 Responsibilities.

                    Subpart B_Organization Statement

701.10 Membership of the Commission.
701.11 Commission meetings--duties of the Chairperson.
701.12 Staff Director.
701.13 Staff organization and functions.

    Authority: 42 U.S.C. 1975, 1975a, 1975b.

    Source: 67 FR 70482, Nov. 22, 2002, unless otherwise noted.



                  Subpart A_Organizations and Functions



Sec. 701.1  Establishment.

    The United States Commission on Civil Rights (hereinafter referred 
to as the ``Commission'') is a bipartisan agency of the executive branch 
of the Government. The predecessor agency to the present Commission was 
established by the Civil Rights Act of 1957, 71 Stat. 634. This Act was 
amended by the Civil Rights Act of 1960, 74 Stat. 86; the Civil Rights 
Act of 1964, 78 Stat. 241; by 81 Stat. 582 (1967); by 84 Stat. 1356 
(1970); by 86 Stat. 813 (1972); and by the Civil Rights Act of 1978, 92 
Stat. 1067. The present Commission was established by the United States 
Commission on Civil Rights Act of 1983, 97 Stat. 1301, as amended by the 
Civil Rights Commission Amendments Act of 1994, 108 Stat. 4339. The 
statutes are codified in 42 U.S.C. 1975 through 1975d. (Hereinafter, the 
1994 Act will be referred to as ``the Act.'')



Sec. 701.2  Responsibilities.

    (a) The Commission's authority under 42 U.S.C. 1975a(a) may be 
summarized as follows:
    (1) To investigate allegations in writing under oath or affirmation 
that citizens of the United States are being deprived of their right to 
vote and have that vote counted by reason of color, race, religion, sex, 
age, disability, or national origin;
    (2) To study and collect information relating to discrimination or a 
denial of equal protection of the laws under the Constitution because of 
color, race, religion, sex, age, disability or national origin or in the 
administration of justice;
    (3) To appraise the laws and policies of the Federal Government 
relating to discrimination or denials of equal protection of the laws 
under the Constitution because of, color, race, religion, sex, age, 
disability, or national origin or in the administration of justice;
    (4) To serve as a national clearinghouse for information relating to 
discrimination or denials of equal protection of the laws because of 
color, race, religion, sex, age, disability, or national origin;
    (5) To prepare public service announcements and advertising 
campaigns to discourage discrimination or denials of equal protection of 
the laws because of color, race, religion, sex, age, disability, or 
national origin.
    (b) Under 42 U.S.C. 1975a(c), the Commission is required to submit 
at least one report annually that monitors Federal civil rights 
enforcement efforts in the United States and other such reports to the 
President and to the Congress at such times as the Commission, the 
Congress, or the President shall deem appropriate.
    (c) In fulfilling these responsibilities the Commission is 
authorized by the Act to hold hearings and to issue subpoenas for the 
attendance of witnesses; to consult with governors, attorneys general; 
and other representatives of State and local governments, and private 
organizations; and is required to establish an advisory committee in 
each State. The Act also provides that all Federal agencies shall 
cooperate fully with the Commission so that it may effectively carry out 
its functions and duties.



                    Subpart B_Organization Statement



Sec. 701.10  Membership of the Commission.

    (a) The Commission is composed of eight members (or 
``Commissioners''), not more than four of whom may be of the same 
political party. The President shall appoint four members, the President 
pro tempore of the Senate shall

[[Page 270]]

appoint two, and the Speaker of the House of Representatives shall 
appoint two.
    (b) The Chairperson and Vice Chairperson of the Commission are 
designated by the President with the concurrence of a majority of the 
Commissioners. The Vice Chairperson acts as Chairperson in the absence 
or disability of the Chairperson or in the event of a vacancy in that 
office.
    (c) No vacancy in the Commission affects its powers and any vacancy 
is filled in the same manner and is subject to the same limitations with 
respect to party affiliations as previous appointments.
    (d) Five members of the Commission constitute a quorum.



Sec. 701.11  Commission meetings--duties of the Chairperson.

    (a) At a meeting of the Commission in each calendar year, the 
Commission shall, by vote of the majority, adopt a schedule of 
Commission meetings for the following calendar year.
    (b) In addition to the regularly scheduled meetings, it is the 
responsibility of the Chairperson to call the Commission to meet in a 
special open meeting at such time and place as he or she shall deem 
appropriate; provided however, that upon the motion of a member, and a 
favorable vote by a majority of Commission members, a special meeting of 
the Commission may be held in the absence of a call by the Chairperson.
    (c) The Chairperson, after consulting with the Staff Director, shall 
establish the agenda for each meeting. The agenda at the meeting of the 
Commission may be modified by the addition or deletion of specific items 
upon the motion of a Commissioner and a favorable vote by a majority of 
the members.
    (d) In the event that after consulting with the members of the 
Commission and consideration of the views of the members the Chairperson 
determines that there are insufficient substantive items on a proposed 
meeting agenda to warrant holding a scheduled meeting, the Chairperson 
may cancel such meeting.



Sec. 701.12  Staff Director.

    A Staff Director for the Commission is appointed by the President 
with the concurrence of a majority of the Commissioners. The Staff 
Director is the administrative head of the agency.



Sec. 701.13  Staff organization and functions.

    The Commission staff organization and function are as follows:
    (a) Office of the Staff Director. Under the direction of the Staff 
Director, this Office defines and disseminates to staff the policies 
established by the Commissioners; develops program plans for 
presentation to the Commissioners; evaluates program results; supervises 
and coordinates the work of other agency offices; manages the 
administrative affairs of the agency; appoints an Equal Employment 
Opportunity Officer for the agency's in-house Equal Employment 
Opportunity Program; and conducts agency liaison with the Executive 
Office of the President, the Congress, and other Federal agencies.
    (b) Office of the Deputy Staff Director. Under the direction of the 
Deputy Staff Director, this Office is responsible for the day-to-day 
administration of the agency; evaluation of quantity and quality of 
program efforts; personnel administration; and the supervision of Office 
Directors who do not report directly to the Staff Director.
    (c) Office of the General Counsel. Under the direction of the 
General Counsel, who reports directly to the Staff Director, this office 
serves as legal counsel to the Commissioners and to the agency; legal 
aspects of agency-related personnel actions, employment issues, and 
labor relations issues; plans and conducts hearings and consultations 
for the Commission; conducts legal studies; prepares reports of legal 
studies and hearings; drafts or reviews proposals for legislative and 
executive action; receives and responds to requests for material under 
the Freedom of Information Act, Federal Advisory Committee Act, 
Administrative Procedures Act, and the Sunshine Act; serves as the 
agency's ethics office and responds to requests for advice and guidance 
on questions of ethical conduct,

[[Page 271]]

conflicts of interest, and reporting financial interest; and reviews all 
agency publications and congressional testimony for legal sufficiency.
    (d) Office of Management. This Office is responsible for all 
administrative, management, and facilitative services necessary for the 
operation of the agency, including financial management, personnel, 
publications, and the National Clearinghouse Library. This office 
consists of three divisions reporting directly to the Staff Director.
    (1) Administrative Services and Clearinghouse Division. Under the 
direction of the Chief of Administrative Services, this Division is 
responsible for the identification and acquisition of Commission hearing 
facilities; oversight of the Rankin Library and the distribution of 
publications; procurement; information and resources management; 
security; telecommunications; transportation; space management; repair 
and maintenance services; supplies; central mailing lists; and assorted 
other administrative duties and functions;
    (2) Budget and Finance Division. Under the direction of the Chief of 
Budget and Finance, this Division is responsible for budget preparation, 
formulation, justification, and execution; financial management; and 
accounting, including travel for Commissioners and staff; and
    (3) Human Resources Division. Under the direction of the Director of 
Human Resources, this Division is responsible for human resources 
development, including career staffing, classification, benefits, time 
and attendance, training, and compensation.
    (e) Office of Federal Civil Rights Evaluation. Under the direction 
of an Assistant Staff Director, this Office is responsible for 
monitoring, evaluating and reporting on the civil rights enforcement 
effort of the Federal Government; developing concepts for programs, 
projects, and policies directed toward the achievement of Commission 
goals; preparing documents that articulate the Commission's views and 
concerns regarding Federal civil rights to Federal agencies having 
appropriate jurisdiction; and receiving complaints alleging denial of 
civil rights because of color, race, religion, sex, age, disability, or 
national origin and referring these complaints to the appropriate 
government agency for investigation and resolution.
    (f) Congressional Affairs Unit. This Unit is responsible for liaison 
with committees and members of Congress or their staffs, monitoring 
legislative activities relating to civil rights, and preparing testimony 
for presentation before committees of Congress when such testimony has 
been requested by a committee.
    (g) Public Affairs Unit. Under the direction of the Chief of Public 
Affairs, this Unit is responsible for planning and managing briefings at 
which the Commission receives information regarding civil rights issues; 
developing plans for community outreach activities; managing the 
Commission's public service announcements; media releases and press 
conferences; preparing for publication periodic updates of Commission 
activities and a Commission civil rights magazine; and keeping the 
Commission and Commission staff apprised of civil rights conferences and 
activities.
    (h) Regional Programs Coordination Unit. Under the direction of the 
Chief of the Regional Programs Coordination Unit, this Unit is 
responsible for directing and coordinating the programs and work of the 
regional offices and 51 State Advisory Committees to the Commission and 
maintaining liaison between the regional offices and the various 
headquarters' offices of the Commission.
    (i) Regional Offices. The Commission has six regional offices, each 
headed by a Director, that coordinate studies and fact-finding 
activities on a variety of civil rights issues addressed by the State 
Advisory Committees (SAC) in their regions and approved by the Staff 
Director; report to the Commission on the results of SAC activities; 
submit SAC reports to the Commission for action; and assist with follow-
up on recommendations included in SAC or Commission reports. The name of 
the Director, the address, and telephone and facsimile numbers for each 
regional office are published annually in the ``United States Government 
Manual''. The regions and the SACs that they serve are:

[[Page 272]]

            Region I: Eastern Regional Office, Washington, DC

    Connecticut, Delaware, District of Columbia, Maine, Maryland, 
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode 
Island, and Vermont, Virginia, West Virginia.

          Region II: Southern Regional Office, Atlanta, Georgia

    Florida, Georgia, Kentucky, North Carolina, South Carolina, and 
Tennessee.

        Region III: Midwestern Regional Office, Chicago, Illinois

    Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

         Region IV: Central Regional Office, Kansas City, Kansas

    Alabama, Arkansas, Iowa, Kansas, Louisiana, Mississippi, Missouri, 
Nebraska, and Oklahoma.

       Region V: Rocky Mountain Regional Office, Denver, Colorado

    Colorado, Montana, New Mexico, North Dakota, South Dakota, Utah, and 
Wyoming.

       Region VI: Western Regional Office, Los Angeles, California

    Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, Texas, 
and Washington.



PART 702_RULES ON HEARINGS, REPORTS, AND MEETINGS OF THE COMMISSION--Table 
of Contents




                     Subpart A_Hearings and Reports

Sec.
702.1 Definitions.
702.2 Authorization for hearing.
702.3 Notice of hearing.
702.4 Subpoenas.
702.5 Conduct of proceedings.
702.6 Executive session.
702.7 Counsel.
702.8 Evidence at Commission proceedings.
702.9 Cross-examination at public session.
702.10 Voluntary witnesses at public session of a hearing.
702.11 Special executive session.
702.12 Contempt of the Commission.
702.13 Intimidation of witnesses.
702.14 Transcript of Commission proceedings.
702.15 Witness fees.
702.16 Attendance of news media at public sessions.
702.17 Communications with respect to Commission proceedings.
702.18 Commission reports.

                           Subpart B_Meetings

702.50 Purpose and scope.
702.51 Definitions.
702.52 Open meeting requirements.
702.53 Closed meetings.
702.54 Closed meeting procedures.
702.55 Public announcement of meetings.
702.56 Records.
702.57 Administrative review.

    Authority: 42 U.S.C. 1975, 1975a, 1975b.

    Source: 67 FR 70482, Nov. 22, 2002, unless otherwise noted.



                     Subpart A_Hearings and Reports



Sec. 702.1  Definitions.

    For purposes of this part, the following definitions shall apply 
unless otherwise provided:
    (a) The Act means the United States Commission on Civil Rights Act 
of 1983, 97 Stat. 1301, as amended by the Civil Rights Commission 
Amendments Act of 1994, 108 Stat. 4339, codified in 42 U.S.C. 1975 
through 1975d.
    (b) The Commission means the United States Commission on Civil 
Rights or, as provided in Sec. 702.2, to any authorized subcommittee 
thereof.
    (c) The Chairperson means the Chairperson of the Commission or 
authorized subcommittee thereof or to any acting Chairperson of the 
Commission or of such subcommittee.
    (d) Proceeding means collectively to any public session of the 
Commission and executive session held in connection therewith.
    (e) Hearing means collectively to a public session of the Commission 
and any executive session held in connection therewith, including the 
attendance of witnesses or the production of written or other matters 
for which subpoenas have been issued.
    (f) Witnesses are persons subpoenaed to attend and testify or 
produce written or other matter.
    (g) The rules in this part means the Rules on Hearings of the 
Commission.
    (h) Report means statutory reports or portions thereof issued 
pursuant to 42 U.S.C. 1975a(c).
    (i) Verified answer means an answer the truth of which is 
substantiated by oath or affirmation attested to by a notary public or 
other person who has legal authority to administer oaths.

[[Page 273]]



Sec. 702.2  Authorization for hearing.

    Under 42 U.S.C. 1975a(e)(1) the Commission or, on the authorization 
of the Commission, any subcommittee of two or more members, at least one 
of whom shall be of each major political party, may, for the purpose of 
carrying out the provisions of the Act, hold such hearings and act at 
such times and locations as the Commission or such authorized 
subcommittee may deem advisable. The holding of hearings by the 
Commission or the appointment of a subcommittee to hold hearings 
pursuant to this section must be approved by a majority of the 
Commission or by a majority of the members present at a meeting at which 
at least a quorum of five members is present.



Sec. 702.3  Notice of hearing.

    At least 30 days prior to the commencement of any hearing, the 
Commission shall publish in the Federal Register notice of the date on 
which such hearing is to commence, the location at which it is to be 
held, and the subject of the hearing.



Sec. 702.4  Subpoenas.

    (a) Subpoenas for the attendance and testimony of witnesses or the 
production of written or other matter may be issued by the Commission 
over the signature of the Chairperson and may be served by any person 
designated by the Chairperson.
    (b) A witness compelled to appear before the Commission or required 
to produce written or other matter shall be served with a copy of the 
rules in this part at the time of service of the subpoena.
    (c) The Commission may issue subpoenas for the attendance and 
testimony of witnesses or for the production of written or other matter. 
Such a subpoena may not require the presence of a witness more than 100 
miles outside the location wherein the witness is found or resides or is 
domiciled or transacts business or has appointed an agent for receipt of 
service of process.
    (d) The Chairperson shall receive and the Commission shall dispose 
of requests to subpoena additional witnesses except as otherwise 
provided in Sec. 702.6(e).
    (e) Requests for subpoenas shall be in writing, supported by a 
showing of the general relevance and materiality of the evidence sought. 
Witness fees and mileage shall be computed and paid pursuant to Sec. 
702.15.
    (f) Subpoenas shall be issued at a reasonably sufficient time in 
advance of their scheduled return, in order to give subpoenaed persons 
an opportunity to prepare for their appearance and to employ counsel, 
should they so desire.
    (g) No subpoenaed document or information contained therein shall be 
made public unless it is introduced into and received as part of the 
official record of the hearing.



Sec. 702.5  Conduct of proceedings.

    (a) The Chairperson shall announce in an opening statement the 
subject of the proceedings.
    (b) Following the opening statement, the Commission shall first 
convene in executive session if one is required pursuant to the 
provisions of Sec. 702.6.
    (c) The Chairperson, subject to the approval of the Commission, 
shall:
    (1) Set the order of presentation of evidence and appearance of 
witnesses;
    (2) Rule on objections and motions;
    (3) Administer oaths and affirmations;
    (4) Make all rulings with respect to the introduction into or 
exclusion from the record of documentary or other evidence;
    (5) Regulate the course and decorum of the proceedings and the 
conduct of the parties and their counsel to ensure that the proceedings 
are conducted in a fair and impartial manner.
    (d) Proceedings shall be conducted with reasonable dispatch and due 
regard shall be had for the convenience and necessity of witnesses.
    (e) The questioning of witnesses shall be conducted only by Members 
of the Commission, by authorized Commission staff personnel, or by 
counsel to the extent provided in Sec. 702.7.
    (f) In addition to persons served with a copy of the rules in this 
part pursuant to Sec. Sec. 702.4 and 702.6, a copy of the rules in this 
part will be made available to all witnesses.

[[Page 274]]

    (g) The Chairperson may punish breaches of order and decorum by 
censure and exclusion from the proceedings.



Sec. 702.6  Executive session.

    (a) If the Commission determines that evidence or testimony at any 
hearing may tend to defame, degrade, or incriminate any person, it shall 
receive such evidence or testimony or summary of such evidence or 
testimony in executive session.
    (b) The Commission shall afford any persons defamed, degraded, or 
incriminated by such evidence or testimony an opportunity to appear and 
be heard in executive session, with a reasonable number of additional 
witnesses requested by them, before deciding to use such evidence or 
testimony.
    (1) Such person shall be served with notice, in writing, at least 10 
days prior to the date, time, and location for the appearance of 
witnesses at executive session or where service is by mail at least 14 
days prior to such date. This notice shall be accompanied by a copy of 
the rules in this part and by a brief summary of the information that 
the Commission has determined may tend to defame, degrade, or 
incriminate such person;
    (2) The notice, summary, and rules in this part shall be served by 
certified mail or by leaving a copy thereof at the last known residence 
or business address of such person; and
    (3) The date of service, for purposes of this section, shall be the 
day when the material is deposited in the mail or is delivered in 
person, whichever is applicable. When service is made by mail, the 
return post office receipt shall be proof of service; in all other 
cases, the acknowledgment of the party served or the verified return of 
the one making service shall be proof of the same.
    (c) If a person receiving notice under this section notifies the 
Commission within five days of service of such notice or where service 
is by mail within eight days of service of such notice that the 
scheduled appearance constitutes a hardship, the Commission may, in its 
discretion, set a new date or time for such person's appearance at the 
executive session.
    (d) In the event such persons fail to appear at executive session at 
the time and location scheduled under paragraph (b) or (c) of this 
section, they shall not be entitled to another opportunity to appear at 
executive session, except as provided in Sec. 702.11.
    (e) If such persons intend to submit sworn statements of themselves 
or others, or if they intend that witnesses appear in their behalf at 
executive session, they shall, no later than 48 hours prior to the time 
set under paragraph (b) or (c) of this section, submit to the Commission 
all such statements and a list of all witnesses. The Commission will 
inform such persons whether the number of witnesses requested is 
reasonable within the meaning of paragraph (b) of this section. In 
addition, the Commission will receive and dispose of requests from such 
persons to subpoena other witnesses. Requests for subpoenas shall be 
made sufficiently in advance of the scheduled executive session to 
afford subpoenaed persons reasonable notice of their obligation to 
appear at that session. Subpoenas returnable at executive session shall 
be governed by the provisions of Sec. 702.4.
    (f) Persons for whom an executive session has been scheduled, and 
persons compelled to appear at such session, may be represented by 
counsel at such session to the extent provided by Sec. 702.7.
    (g) Attendance at executive session shall be limited to 
Commissioners; authorized Commission staff personnel; witnesses, and 
their counsel at the time scheduled for their appearance; and such other 
persons whose presence is requested or consented to by the Commission.
    (h) In the event the Commission determines to release or to use 
evidence or testimony that it has determined may tend to defame, 
degrade, or incriminate any persons in such a manner as to reveal 
publicly their identity, such evidence or testimony, prior to such 
public release or use, will be presented at a public session, and the 
Commission will afford them an opportunity to appear as voluntary 
witnesses or to file a sworn statement in their own behalf and to submit 
brief and pertinent sworn statements of others.

[[Page 275]]



Sec. 702.7  Counsel.

    (a) Persons compelled to appear in person before the Commission and 
any witness appearing at a public session of the Commission will be 
accorded the right to be accompanied and advised by counsel, who will 
have the right to subject their clients to reasonable examination, make 
objections on the record, and briefly argue the basis for such 
objections.
    (b) For the purpose of this section, counsel shall mean an attorney 
at law admitted to practice before the Supreme Court of the United 
States or the highest court of any State or Territory of the United 
States.
    (c) Failure of any persons to obtain counsel shall not excuse them 
from attendance in response to a subpoena, nor shall any persons be 
excused in the event their counsel is excluded from the proceeding 
pursuant to Sec. 702.6(g). In the latter case, however, such persons 
shall be afforded a reasonable time to obtain other counsel, said time 
to be determined by the Commission.



Sec. 702.8  Evidence at Commission proceedings.

    (a) The rules of evidence prevailing in courts of law or equity 
shall not control proceedings of the Commission.
    (b) Where a witness testifying at a public session of a hearing or a 
session for return of subpoenaed documents offers the sworn statements 
of other persons, such statements, in the discretion of the Commission, 
may be included in the record, provided they are received by the 
Commission 24 hours in advance of the witness' appearance.
    (c) The prepared statement of a witness testifying at a public 
session of a hearing, in the discretion of the Commission, may be placed 
into the record, provided that such statement is received by the 
Commission 24 hours in advance of the witness' appearance.
    (d) In the discretion of the Commission, evidence may be included in 
the record after the close of a public session of a hearing provided the 
Commission determines that such evidence does not tend to defame, 
degrade, or incriminate any person.
    (e) The Commission will determine the pertinence of testimony and 
evidence adduced at its proceedings and may refuse to include in the 
record of a proceeding or may strike from the record any evidence it 
considers to be cumulative, immaterial, or not pertinent.



Sec. 702.9  Cross-examination at public session.

    If the Commission determines that oral testimony of a witness at a 
public session tends to defame, degrade, or incriminate any person, such 
person, or through counsel, shall be permitted to submit questions to 
the Commission in writing, which, in the discretion of the Commission, 
may be put to such witness by the Chairperson or by authorized 
Commission staff personnel.



Sec. 702.10  Voluntary witnesses at public session of a hearing.

    A person who has not been subpoenaed and who has not been afforded 
an opportunity to appear pursuant to Sec. 702.6 may be permitted, in 
the discretion of the Commission, to make an oral or written statement 
at a public session of a hearing. Such person may be questioned to the 
same extent and in the same manner as other witnesses before the 
Commission.



Sec. 702.11  Special executive session.

    If, during the course of a public session, evidence is submitted 
that was not previously presented at executive session and that the 
Commission determines may defame, degrade, or incriminate any person, 
the provisions of Sec. 702.6 shall apply and such extensions, recesses 
or continuances of the public session shall be ordered by the 
Commission, as it deems necessary. The time and notice requirements of 
Sec. 702.6 may be modified by the Commission provided reasonable notice 
of a scheduled executive session is afforded such person; the Commission 
may, in its discretion, strike such evidence from the record, in which 
case the provisions of Sec. 702.6 shall not apply.



Sec. 702.12  Contempt of the Commission.

    Proceedings and process of the Commission are governed by 42 U.S.C. 
1975a(e)(2), which provides that in case of contumacy or refusal to obey 
a subpoena, the Attorney General may in a

[[Page 276]]

Federal court of appropriate jurisdiction obtain an appropriate order to 
enforce the subpoena.



Sec. 702.13  Intimidation of witnesses.

    Witnesses at Commission proceedings are protected by the provisions 
of 18 U.S.C. 1505, which provide that whoever, with intent to avoid, 
evade, prevent, or obstruct compliance, in whole or in part, with any 
civil investigative demand duly and properly made under the Antitrust 
Civil Process Act, willfully withholds, misrepresents, removes from any 
place, conceals, covers up, destroys, mutilates, alters, or by other 
means falsifies any documentary material, answers to written 
interrogatories, or oral testimony, which is the subject of such demand; 
or attempts to do so or solicits another to do so; or whoever corruptly, 
or by threats or force, or by any threatening letter or communication 
influences, obstructs, or impedes or endeavors to influence, obstruct, 
or impede the due and proper administration of the law under which any 
pending proceeding is being had before any department or agency of the 
United States, or the due and proper exercise of the power of inquiry 
under which any inquiry or investigation is being had by either House, 
or any committee of either House or any joint committee of the Congress 
shall be fined under this title or imprisoned not more than five years, 
or both.



Sec. 702.14  Transcript of Commission proceedings.

    (a) An accurate transcript shall be made of the testimony of all 
witnesses at all proceedings of the Commission. Transcripts shall be 
recorded solely by the official reporter or by any other person or means 
designated by the Commission.
    (b) Every person who submits data or evidence shall be entitled to 
retain or, on payment of lawfully prescribed costs, procure a copy or 
transcript thereof, except that witnesses in a hearing held in executive 
session may be limited, for good cause, to inspection of the official 
transcript of their testimony. Transcript copies of public sessions may 
be obtained by the public upon the payment of the cost thereof.
    (c) Persons who have presented testimony at a proceeding may ask 
within 60 days after the close of the proceeding to correct errors in 
the transcript of their testimony. Such requests shall be granted only 
to make the transcript conform to their testimony as presented at the 
proceeding.



Sec. 702.15  Witness fees.

    A witness attending any session of the Commission shall be paid the 
same fees and mileage that are paid witnesses in the courts of the 
United States. Mileage payments must be tendered at the witness' request 
upon service of a subpoena issued on behalf of the Commission or any 
subcommittee thereof.



Sec. 702.16  Attendance of news media at public sessions.

    Reasonable access for coverage of public sessions shall be provided 
to the various communications media, including newspapers, magazines, 
radio, newsreels, and television, subject to the physical limitations of 
the room in which the session is held and consideration of the physical 
comfort of Commission members, staff, and witnesses. However, no 
witnesses shall be televised, filmed, or photographed during the session 
nor shall the testimony of any witness be broadcast or recorded for 
broadcasting if the witness objects.



Sec. 702.17  Communications with respect to Commission proceedings.

    During any proceeding held outside Washington, DC, communications to 
the Commission with respect to such proceeding must be made to the 
Chairperson or authorized Commission staff personnel in attendance. All 
requests for subpoenas returnable at a hearing, requests for appearance 
of witnesses at a hearing, and statements or other documents for 
inclusion in the record of a proceeding, required to be submitted in 
advance, must be submitted to the Chairperson, or such authorized person 
as the Chairperson may appoint, at an office located in the community 
where such hearing or proceeding is scheduled to be held. The location 
of such office will be set forth in all subpoenas issued under the rules 
in this part and in all notices prepared pursuant to Sec. 706.2.

[[Page 277]]



Sec. 702.18  Commission reports.

    (a) If a Commission report tends to defame, degrade, or incriminate 
any person, the report or relevant portions thereof shall be delivered 
to such person at least 30 days before the report is made public to 
allow such person to make a timely verified answer to the report. The 
Commission shall afford such person an opportunity to file with the 
Commission a verified answer to the report or relevant portions thereof 
not later than 20 days after service as provided by the regulations in 
this part.
    (1) Such person shall be served with a copy of the report or 
relevant portions thereof, with an indication of the section(s) that the 
Commission has determined tend to defame, degrade, or incriminate such 
person, a copy of the Act, and a copy of the regulations in this part.
    (2) The report or relevant portions thereof, the Act, and 
regulations in this part shall be served by certified mail, return 
receipt requested, or by leaving a copy thereof at the last known 
residence or business address or the agent of such person.
    (3) The date of service for the purposes of this section shall be 
the day the material is delivered either by the post office or 
otherwise, to such person or the agent of such person or at the last 
known residence or business address of such person. The acknowledgement 
of the party served or the verified return of the one making service 
shall be proof of service except that when service is made by mail, the 
return post office receipt shall also constitute proof of same.
    (b) If a person receiving a Commission report or relevant portions 
thereof under this part requests an extension of time from the 
Commission within seven days of service of such report, the Commission 
may, upon a showing of good cause, grant the person additional time 
within which to file a verified answer.
    (c) A verified answer shall plainly and concisely state the facts 
and law constituting the person's reply or defense to the charges or 
allegations contained in the report.
    (d) Such verified answer shall be published as an appendix to the 
report; however, the Commission may except from the answer such matter 
as it determines to be scandalous, prejudicial, or unnecessary.



                           Subpart B_Meetings



Sec. 702.50  Purpose and scope.

    This subpart contains the regulations of the United States 
Commission on Civil Rights implementing sections (a)-(f) of 5 U.S.C. 
552b, the ``Government in the Sunshine Act.'' They are adopted to 
further the principle that the public is entitled to the fullest 
practicable information regarding the decision-making processes of the 
Commission. They open meetings of the Commission to public observation 
except where the rights of individuals are involved or the ability of 
the Commission to carry out its responsibilities requires 
confidentiality.



Sec. 702.51  Definitions.

    (a) Commission means the United States Commission on Civil Rights 
and any subcommittee of the Commission authorized under the United 
States Commission on Civil Rights Act of 1983, 97 Stat. 1301, as amended 
by the Civil Rights Commission Amendments Act of 1994, 108 Stat. 4339. 
The statutes are codified in 42 U.S.C. 1975 through 1975d.
    (b) Commissioner means a member of the U.S. Commission on Civil 
Rights appointed by the President, the President pro tempore of the 
Senate, or the Speaker of the House of Representatives, as provided in 
42 U.S.C. 1975.
    (c) Meeting means the deliberations of at least the number of 
Commissioners required to take action on behalf of the Commission where 
such deliberations determine or result in the joint conduct or 
disposition of official Commission business.
    (1) The number of Commissioners required to take action on behalf of 
the Commission is four, except that such number is two when the 
Commissioners are a subcommittee of the Commission authorized under 42 
U.S.C. 1975a(e)(1).
    (2) Deliberations among Commissioners regarding the setting of the 
time, location, or subject matter of a meeting, whether the meeting is 
open or closed, whether to withhold information discussed at a closed 
meeting,

[[Page 278]]

and any other deliberations required or permitted by 5 U.S.C. 552b (d) 
and (e) and Sec. 702.54 and Sec. 702.55 of this subpart, are not 
meetings for the purposes of this subpart.
    (3) The consideration by Commissioners of Commission business that 
is not discussed through conference calls or a series of two party calls 
by the number of Commissioners required to take action on behalf of the 
Commission is not a meeting for the purposes of this subpart.
    (d) Public announcement or publicly announce means the use of 
reasonable methods, such as the posting on the Commission's website or 
public notice bulletin boards and the issuing of press releases, to 
communicate information to the public regarding Commission meetings.
    (e) Staff Director means the Staff Director of the Commission.



Sec. 702.52  Open meeting requirements.

    (a) Every portion of every Commission meeting shall be open to 
public observation, except as provided in Sec. 702.53 of this subpart. 
Commissioners shall not jointly conduct or dispose of agency business 
other than in accordance with this subpart.
    (b) This subpart gives the public the right to attend and observe 
Commission open meetings; it confers no right to participate in any way 
in such meetings.
    (c) The Staff Director shall be responsible for making physical 
arrangements for Commission open meetings that provide ample space, 
sufficient visibility, and adequate acoustics for public observation.
    (d) The presiding Commissioner at an open meeting may exclude 
persons from a meeting and shall take all steps necessary to preserve 
order and decorum.



Sec. 702.53  Closed meetings.

    (a) The Commission may close a portion or portions of a meeting and 
withhold information pertaining to such meeting when it determines that 
the public interest does not require otherwise and when such portion or 
portions of a meeting or the disclosure of such information is likely 
to:
    (1) Disclose matters that are:
    (i) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interests of national defense 
or foreign policy and
    (ii) In fact properly classified pursuant to such Executive Order;
    (2) Disclose information relating solely to the internal personnel 
rules and practices of the Commission;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552b), provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Disclose trade secrets and commercial or financial information 
obtained from a person and is privileged or confidential;
    (5) Involve accusing any person of a crime or formally censuring any 
person;
    (6) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory records compiled for law enforcement 
purposes, or information that if written would be contained in such 
records, but only to the extent that the production of such records or 
information would:
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source and, in the case 
of a record received by the Commission from a criminal law enforcement 
authority in the course of a criminal investigation or by an agency 
conducting a lawful national security intelligence investigation, 
confidential information furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;

[[Page 279]]

    (8) Disclose information received by the Commission and contained in 
or related to examination, operating, or condition reports prepared by, 
on behalf of, or for the use of an agency responsible for the regulation 
or supervision of financial institutions;
    (9) Disclose information the premature disclosure of that would:
    (i) In the case of information received by the Commission from an 
agency that regulates currencies, securities, commodities, or financial 
institutions, be likely to:
    (A) Lead to significant financial speculation in currencies, 
securities, or commodities, or
    (B) Significantly endanger the stability of any financial 
institution; or
    (ii) Be likely to significantly frustrate implementation of a 
proposed action, except that this paragraph shall not apply in any 
instance where the Commission has already disclosed to the public the 
content or nature of its proposed action or where the Commission is 
required by law to make such disclosure on its own initiative prior to 
taking final agency action on such proposal; or
    (10) Specifically concern the Commission's issuance of a subpoena or 
the Commission's participation in a civil action or proceeding, an 
action in a foreign court or international tribunal, or an arbitration.
    (b) [Reserved]



Sec. 702.54  Closed meeting procedures.

    (a) A meeting or portion thereof will be closed, and information 
pertaining to a closed meeting will be withheld, only after four 
Commissioners when no Commissioner's position is vacant, three 
Commissioners when there is a vacancy, or two Commissioners on a 
subcommittee authorized under 42 U.S.C. 1975a(e)(1), vote to take such 
action.
    (b)(1) A separate vote shall be taken with respect to each meeting, 
a portion or portions of which are proposed to be closed to the public 
under Sec. 702.53, and with respect to any information to be withheld 
under Sec. 702.53.
    (2) A single vote may be taken with respect to a series of meetings, 
a portion or portions of which are proposed to be closed to the public, 
or with respect to any information concerning such series of meetings, 
so long as:
    (i) Each meeting in such series involves the same particular 
matters, and
    (ii) Is scheduled to be held no more than thirty (30) days after the 
initial meeting in such series.
    (c) The Commission will vote on the question of closing a meeting or 
portion thereof and withholding information under paragraph (b) of this 
section if one Commissioner calls for such a vote. The vote of each 
Commissioner participating in a vote to close a meeting shall be 
recorded and no proxies shall be allowed.
    (1) If such vote is against closing a meeting and withholding 
information, the Staff Director, within one working day of such vote, 
shall make publicly available by putting in a place easily accessible to 
the public a written copy of such vote reflecting the vote of each 
Commissioner.
    (2) If such vote is for closing a meeting and withholding 
information, the Staff Director, within one working day of such vote, 
shall make publicly available by putting in a place easily accessible to 
the public a written copy of such vote reflecting the vote of each 
Commissioner, and:
    (i) A full written explanation of the decision to close the meeting 
or portions thereof (such explanation will be as detailed as possible 
without revealing the exempt information);
    (ii) A list of all persons other than staff members expected to 
attend the meeting and their affiliation (the identity of persons 
expected to attend such meeting will be withheld only if revealing their 
identity would reveal the exempt information that is the subject of the 
closed meeting).
    (d) Prior to any vote to close a meeting or portion thereof under 
paragraph (c) of this section, the Commissioners shall obtain from the 
General Counsel an opinion as to whether the closing of a meeting or 
portions thereof is in accordance with paragraphs (a)(1) through (10) of 
Sec. 702.53.
    (1) For every meeting closed in accordance with paragraphs (a)(1) 
through (10) of Sec. 702.53, the General Counsel shall publicly certify 
in writing that, in his or her opinion, the

[[Page 280]]

meeting may be closed to the public and shall cite each relevant 
exemptive provision.
    (2) A copy of certification by the General Counsel together with a 
statement from the presiding officer of the closed meeting setting forth 
the time and location of the meeting and the persons present, shall be 
retained by the Commission.
    (e) For all meetings closed to the public, the Commission shall 
maintain a complete verbatim transcript or electronic recording adequate 
to record fully the proceedings of each meeting or portion of a meeting, 
which sets forth the time and location of the meeting and the persons 
present. In the case of a meeting or a portion of a meeting closed to 
the public pursuant to paragraphs (a)(8), (9)(i)(A), or (10) of Sec. 
702.53, the Commission may retain a set of minutes and such minutes 
shall fully and clearly describe all matters discussed and provide a 
full and accurate summary of any actions taken, and the reasons 
therefor, including a description of each of the views expressed on any 
item and the record of any roll call vote (reflecting the vote of each 
member on the question). All documents considered in connection with any 
action shall be identified in such minutes.
    (f) Any person whose interests may be directly affected by a portion 
of a meeting may request that such portion be closed to the public under 
Sec. 702.53 or that it be open to the public if the Commission has 
voted to close the meeting pursuant to Sec. 702.53(a)(5), (6) or (7). 
The Commission will vote on the request if one Commissioner asks that a 
vote be taken. Such requests shall be made to the Staff Director within 
a reasonable amount of time after the meeting or vote in question is 
publicly announced.



Sec. 702.55  Public announcement of meetings.

    (a) Agenda. The Staff Director shall set as early as possible but in 
any event at least eight calendar days before a meeting, the time, 
location, and subject matter for the meeting. Agenda items will be 
identified in adequate detail to inform the general public of the 
specific business to be discussed at the meeting.
    (b) Notice. The Staff Director, at least eight calendar days before 
a meeting, shall make public announcement of:
    (1) The time of the meeting;
    (2) Its location;
    (3) Its subject matter;
    (4) Whether it is open or closed to the public; and
    (5) The name and phone number of a Commission staff member who will 
respond to requests for information about the meeting.
    (c) Changes. (1) The time of day or location of a meeting may be 
changed following the public announcement required by paragraph (b) of 
this section, if the Staff Director publicly announces such change at 
the earliest practicable time subsequent to the decision to change the 
time of day or location of the meeting.
    (2) The date of a meeting may be changed following the public 
announcement required by paragraph (b) of this section, or a meeting may 
be scheduled less than eight calendar days in advance, if:
    (i) Four Commissioners when no Commissioner's position is vacant, 
three Commissioners when there is such a vacancy, or two Commissioners 
on a subcommittee authorized under 42 U.S.C. 1975a(d), determine by 
recorded vote that Commission business requires such a meeting at an 
earlier date; and
    (ii) The Staff Director, at the earliest practicable time following 
such vote, makes public announcement of the time, location, and subject 
matter of such meeting and whether it is open or closed to the public.
    (3) The subject matter of a meeting or the determination to open or 
close a meeting or a portion of a meeting to the public may be changed 
following the public announcement required by paragraph (b) of this 
section if:
    (i) Four Commissioners when no Commissioner's position is vacant, 
three Commissioners when there is such a vacancy, or two Commissioners 
on a subcommittee authorized under 42 U.S.C. 1975a(e)(1) determine by 
recorded vote that Commission business so requires; and

[[Page 281]]

    (ii) The Staff Director publicly announces such change and the vote 
of each Commissioner upon such change at the earliest practicable time 
subsequent to the decision to make such change.
    (d)(1) Federal Register. Immediately following all public 
announcements required by paragraphs (b) and (c) of this section, notice 
of the time, location, and subject matter of a meeting, whether the 
meeting is open or closed to the public, any change in one of the 
preceding, and the name and phone number of the official designated by 
the Commission to respond to requests for information about meeting, 
shall be submitted for publication in the Federal Register.
    (2) Notice of a meeting will be published in the Federal Register 
even after the meeting that is the subject of the notice has occurred in 
order to provide a public record of all Commission meetings.



Sec. 702.56  Records.

    (a) The Commission shall promptly make available to the public in an 
easily accessible place at Commission headquarters the following 
materials:
    (1) A copy of the certification by the General Counsel required by 
Sec. 702.54(e)(1).
    (2) A copy of all recorded votes required to be taken by these 
rules.
    (3) A copy of all announcements published in the Federal Register 
pursuant to this subpart.
    (4) Transcripts, electronic recordings, and minutes of closed 
meetings determined not to contain items of discussion or information 
that may be withheld under Sec. 702.53. Copies of such material will be 
furnished to any person at the actual cost of transcription or 
duplication.
    (b)(1) Requests to review or obtain copies of records compiled under 
this Act, other than transcripts, electronic recordings, or minutes of a 
closed meeting, will be processed under the Freedom of Information Act 
and, where applicable, the Privacy Act regulations of the Commission 
(parts 704 and 705, respectively, of this title). Nothing in this 
subpart expands or limits the present rights of any person under the 
rules in this part with respect to such requests.
    (2) Requests to review or obtain copies of transcripts, electronic 
recordings, or minutes of a closed meeting maintained under Sec. 
702.54(e) and not released under paragraph (a)(4) of this section shall 
be directed to the Staff Director who shall respond to such requests 
within ten (10) working days.
    (c) The Commission shall maintain a complete verbatim copy of the 
transcript, a complete copy of minutes, or a complete electronic 
recording of each meeting, or portion of a meeting, closed to the 
public, for a period of two years after such meeting or until one year 
after the conclusion of any agency proceeding with respect to which the 
meeting or portion was held, whichever occurs later.



Sec. 702.57  Administrative review.

    Any person who believes a Commission action governed by this subpart 
to be contrary to the provisions of this subpart shall file an objection 
in writing with the Staff Director specifying the violation and 
suggesting corrective action. Whenever possible, the Staff Director 
shall respond within ten (10) working days of the receipt of such 
objections.



PART 703_OPERATIONS AND FUNCTIONS OF STATE ADVISORY COMMITTEES--Table of 
Contents




Sec.
703.1 Name and establishment.
703.2 Functions.
703.3 Scope of subject matter.
703.4 Advisory Committee Management Officer.
703.5 Membership.
703.6 Officers.
703.7 Subcommittees--Special assignments.
703.8 Meetings.
703.9 Reimbursement of members.
703.10 Public availability of documents and other materials.

    Authority: 42 U.S.C. 1975a(d).

    Source; 67 FR 70482, Nov. 22, 2002, unless otherwise noted.



Sec. 703.1  Name and establishment.

    Pursuant to 42 U.S.C. 1975a(d), the Commission has chartered and 
maintains Advisory Committees to the

[[Page 282]]

Commission in each State, and the District of Columbia. All relevant 
provisions of the Federal Advisory Committee Act of 1972 (Public Law 92-
463, as amended) are applicable to the management, membership, and 
operations of such committees and subcommittees thereof.



Sec. 703.2  Functions.

    Under the Commission's charter each Advisory Committee shall:
    (a) Advise the Commission in writing of any knowledge or information 
it has of any alleged deprivation of the right to vote and to have the 
vote counted by reason of color, race, religion, sex, age, disability, 
or national origin, or that citizens are being accorded or denied the 
right to vote in Federal elections as a result of patterns or practices 
of fraud or discrimination;
    (b) Advise the Commission concerning matters related to 
discrimination or a denial of equal protection of the laws under the 
Constitution and the effect of the laws and policies of the Federal 
Government with respect to equal protection of the laws;
    (c) Advise the Commission upon matters of mutual concern in the 
preparation of reports of the Commission to the President and the 
Congress;
    (d) Receive reports, suggestions, and recommendations from 
individuals, public and private organizations, and public officials upon 
matters pertinent to inquiries conducted by the Advisory Committee;
    (e) Initiate and forward advice and recommendations to the 
Commission upon matters that the Advisory Committee has studied;
    (f) Assist the Commission in the exercise of its clearinghouse 
function and with respect to other matters that the Advisory Committee 
has studied;
    (g) Attend, as observers, any open hearing or conference that the 
Commission may hold within the State.



Sec. 703.3  Scope of subject matter.

    The scope of the subject matter to be dealt with by Advisory 
Committees shall be those subjects of inquiry or study with which the 
Commission itself is authorized to investigate, pursuant to 42 U.S.C. 
1975(a). Each Advisory Committee shall confine its studies to the State 
covered by its charter. It may, however, subject to the requirements of 
Sec. 703.4, undertake to study, within the limitations of the Act, 
subjects other than those chosen by the Commission for study.



Sec. 703.4  Advisory Committee Management Officer.

    (a) The Chief of the Regional Programs Coordination Unit is 
designated as Advisory Committee Management Officer pursuant to the 
requirements of the Federal Advisory Committee Act of 1972 (Public Law 
92-463, as amended).
    (b) Such Officer shall carry out the functions specified in section 
8(b) of the Federal Advisory Committee Act.
    (c) Such Officer shall, for each Advisory Committee, appoint a 
Commission employee to provide services to the Committee and to be 
responsible for supervising the activity of the Committee pursuant to 
section 8 of the Federal Advisory Committee Act. The employee is subject 
to the supervision of the Regional Director of the Commission 
responsible for the State within which said Committee is chartered.



Sec. 703.5  Membership.

    (a) Subject to exceptions made from time to time by the Commission 
to fit special circumstances, each Advisory Committee shall consist of 
at least 11 members appointed by the Commission. Members of the Advisory 
Committees shall serve for a fixed term to be set by the Commission upon 
the appointment of a member subject to the duration of Advisory 
Committees as prescribed by the charter, provided that members of the 
Advisory Committee may, at any time, be removed by the Commission.
    (b) Membership on the Advisory Committee shall be reflective of the 
different ethnic, racial, and religious communities within each State 
and the membership shall also be representative with respect to sex, 
political affiliation, age, and disability status.



Sec. 703.6  Officers.

    (a) The officers of each Advisory Committee shall be a Chairperson, 
Vice Chairperson, and such other officers as may be deemed advisable.

[[Page 283]]

    (b) The Chairperson shall be appointed by the Commission.
    (c) The Vice Chairperson and other officers shall be elected by the 
majority vote of the full membership of the Committee.
    (d) The Chairperson, or in his or her absence the Vice Chairperson, 
under the direction of the Commission staff member appointed pursuant to 
Sec. 703.4(b) shall:
    (1) Call meetings of the Committee;
    (2) Preside over meetings of the Committee;
    (3) Appoint all subcommittees of the Committee;
    (4) Certify for accuracy the minutes of Committee meetings prepared 
by the assigned Commission staff member; and
    (5) Perform such other functions as the Committee may authorize or 
the Commission may request.



Sec. 703.7  Subcommittees--Special assignments.

    Subject to the approval of the designated Commission employee, an 
Advisory Committee may:
    (a) Establish subcommittees, composed of members of the Committee, 
to study and report upon matters under consideration and authorize such 
subcommittees to take specific action within the competence of the 
Committee; and
    (b) Designate individual members of the Committee to perform special 
projects involving research or study on matters under consideration by 
the Committee.



Sec. 703.8  Meetings.

    (a) Meetings of a Committee shall be convened by the designated 
Commission employee or subject to his or her approval by the Chairperson 
or a majority of the Advisory Committee members. The agenda for such 
Committee or subcommittee meeting shall be approved by the designated 
Commission employee.
    (b) A quorum shall consist of one-half or more of the members of the 
Committee, or five members, whichever is the lesser, except that with 
respect to the conduct of fact-finding meetings as authorized in 
paragraph (e) of this section, a quorum shall consist of three members.
    (c) Notice of all meetings of an Advisory Committee shall be given 
to the public.
    (1) Notice shall be published in the Federal Register at least 15 
days prior to the meetings, provided that in emergencies such 
requirement may be waived.
    (2) Notice of meetings shall be provided to the public by press 
releases and other appropriate means.
    (3) Each notice shall contain a statement of the purpose of the 
meeting, a summary of the agenda, and the date, time, and location of 
such meeting.
    (d) Except as provided for in paragraph (d)(1) of this section, all 
meetings of Advisory Committees or subcommittees shall be open to the 
public.
    (1) The Chief of the Regional Programs Coordination Unit may 
authorize a Committee or subcommittee to hold a meeting closed to the 
public if he or she determines that the closing of such meeting is in 
the public interest provided that prior to authorizing the holding of a 
closed meeting the Chief of the Regional Programs Coordination Unit has 
requested and received the opinion of the General Counsel with respect 
to whether the meeting may be closed under one or more of the exemptions 
provided in the Government in the Sunshine Act, 5 U.S.C. 552b(c).
    (2) In the event that any meeting or portion thereof is closed to 
the public, the Committee shall publish, at least annually, in summary 
form a report of the activities conducted in meetings not open to the 
public.
    (e) Advisory Committees and subcommittees may hold fact-finding 
meetings for the purpose of inviting the attendance of and soliciting 
information and views from government officials and private persons 
respecting subject matters within the jurisdiction of the Committee or 
subcommittee.
    (f) Any person may submit a written statement at any business or 
fact-finding meeting of an Advisory Committee or subcommittee.
    (g) At the discretion of the designated Commission employee or his 
or her designee, any person may make an oral presentation at any 
business or

[[Page 284]]

fact-finding meeting, provided that such presentation will not defame, 
degrade, or incriminate any other person as prohibited by the Act.



Sec. 703.9  Reimbursement of members.

    (a) Advisory Committee members may be reimbursed by the Commission 
by a per diem subsistence allowance and for travel expenses at rates not 
to exceed those prescribed by Congress for Government employees, for the 
following activities only:
    (1) Attendance at meetings, as provided for in Sec. 703.8; and
    (2) Any activity specifically requested and authorized by the 
Commission to be reimbursed.
    (b) Members will be reimbursed for the expense of travel by private 
automobile on a mileage basis only to the extent such expense is no more 
than that of suitable public transportation for the same trip unless 
special circumstances justify the additional expense of travel by 
private automobile.



Sec. 703.10  Public availability of documents and other materials.

    Part 704 of this chapter shall be applicable to reports, 
publications, and other materials prepared by or for Advisory 
Committees.



PART 704_INFORMATION DISCLOSURE AND COMMUNICATIONS--Table of Contents




Sec.
704.1 Material available pursuant to 5 U.S.C. 552.
704.2 Complaints.
704.3 Other requests and communications.
704.4 Restrictions on disclosure of information.

    Authority: 5 U.S.C. 552, 552a, 552b.

    Source: 67 FR 70482, Nov. 22, 2002, unless otherwise noted.



Sec. 704.1  Material available pursuant to 5 U.S.C. 552.

    (a) Purpose, scope, and definitions. (1) This section contains the 
regulations of the United States Commission on Civil Rights implementing 
the Freedom of Information Act, 5 U.S.C. 552. These regulations inform 
the public with respect to where and how records and information may be 
obtained from the Commission. Officers and employees of the Commission 
shall make Commission records available under 5 U.S.C. 552 only as 
prescribed in this section. Nothing contained in this section, however, 
shall be construed to prohibit officers or employees of the Commission 
from routinely furnishing information or records that are customarily 
furnished in the regular performance of their duties.
    (2) For the purposes of this part the following terms are defined as 
indicated:
    Commission means the United States Commission on Civil Rights;
    FOIA means Freedom of Information Act, 5 U.S.C. 552;
    FOIA Request means a request in writing, for records pursuant to 5 
U.S.C. 552, which meets the requirements of paragraph (d) of this part. 
This part does not apply to telephone or other oral communications or 
requests not complying with paragraph (d)(1)(i) of this section.
    Office of the General Counsel means the General Counsel of the 
Commission or his or her designee;
    Staff Director means the Staff Director of the Commission.
    (b) General policy. In order to foster the maximum participation of 
an informed public in the affairs of Government, the Commission will 
make the fullest possible disclosure of its identifiable records and 
information consistent with such considerations as those provided in the 
exemptions of 5 U.S.C. 552 that are set forth in paragraph (f) of this 
section.
    (c) Material maintained on file pursuant to 5 U.S.C. 552(a)(2). 
Material maintained on file pursuant to 5 U.S.C. 552(a)(2) shall be 
available for inspection during regular business hours at the offices of 
the Commission at 624 9th Street, NW., Washington, DC 20425. Copies of 
such material shall be available upon written request, specifying the 
material desired, addressed to the Office of the General Counsel, U.S. 
Commission on Civil Rights, 624 9th Street, NW., Washington, DC 20425, 
and upon the payment of fees, if any, determined in accordance with 
paragraph (e) of this section.
    (1) Current index. Included in the material available pursuant to 5 
U.S.C. 552(a)(2) shall be an index of:

[[Page 285]]

    (i) All other material maintained on file pursuant to 5 U.S.C. 
552(a)(2); and
    (ii) All material published by the Commission in the Federal 
Register and currently in effect.
    (2) Deletion of identifying details. Wherever deletions from 
material maintained on file pursuant to 5 U.S.C. 552(a)(2) are required 
in order to prevent a clearly unwarranted invasion of privacy, 
justification for the deletions shall be placed as a preamble to 
documents from which such deletions are made.
    (d) Materials available pursuant to 5 U.S.C. 552(a)(3)--(1) Request 
procedures. (i) Each request for records pursuant to this section shall 
be in writing over the signature of the requester, addressed to the 
Office of the General Counsel, U.S. Commission on Civil Rights, 624 9th 
Street, NW., Washington, DC 20425 and:
    (A) Shall clearly and prominently be identified as a request for 
information under the Freedom of Information Act (if submitted by mail 
or otherwise submitted in an envelope or other cover, be clearly and 
prominently identified as such on the envelope or other cover--e.g., 
FOIA); and
    (B) Shall contain a sufficiently specific description of the record 
requested with respect to names, dates, and subject matter to permit 
such record to be identified and located; and
    (C) Shall contain a statement that whatever costs involved pursuant 
to paragraph (e) of this section will be paid, that such costs will be 
paid up to a specified amount, or that waiver or reduction of fees is 
requested pursuant to paragraph (e) of this section.
    (ii) If the information submitted pursuant to paragraph (d)(1)(i)(B) 
of this section is insufficient to enable identification and location of 
the records, the General Counsel shall as soon as possible notify the 
requester in writing indicating the additional information needed. Every 
reasonable effort shall be made to assist in the identification and 
location of the record sought. Time requirements under the regulations 
in this part are tolled from the date notification under this section is 
sent to the requester until an answer in writing to such notification is 
received from requester.
    (iii) A request for records that is not in writing or does not 
comply with paragraph (d)(1)(i) of this section is not a request under 
the Freedom of Information Act and the 10 day time limit for agency 
response under the Act will not be deemed applicable.
    (iv) Except as otherwise provided in this section, the General 
Counsel shall immediately notify the requester of noncompliance with 
paragraphs (d)(1)(i)(C) and (e) of this section.
    (2) Agency determinations. (i) Responses to all requests pursuant to 
5 U.S.C. 552(a)(3) shall be made by the General Counsel in writing to 
the requester within 10 working days after receipt by the General 
Counsel of such request except as specifically exempted under paragraphs 
(d)(1) (ii), (iii) and (iv) of this section, and shall state:
    (A) Whether and to what extent the Commission will comply with the 
request;
    (B) The probable availability of the records or that the records may 
be furnished with deletions or that records will be denied as exempt 
pursuant to 5 U.S.C. 552(b)(1) through (9);
    (C) The estimated costs, determined in accordance with paragraph (e) 
of this section, including waiver or reduction of fee as appropriate and 
any deposit or prepayment requirement; and
    (D) When records are to be provided, the time and place at which 
records or copies will be available determined in accordance with the 
terms of the request and with paragraph (d)(3) of this section. Such 
response shall be termed a determination notice.
    (ii) In the case of denial of requests in whole or part the 
determination notice shall state:
    (A) Specifically what records are being denied;
    (B) The reasons for such denials;
    (C) The specific statutory exemption(s) upon which such denial is 
based;
    (D) The names and titles or positions of every person responsible 
for the denial of such request; and
    (E) The right of appeal to the Staff Director of the Commission and 
procedures for such appeal as provided under paragraph (g) of this 
section.
    (iii) Each request received by the Office of the General Counsel for 
records pursuant to the regulations in this part

[[Page 286]]

shall be recorded immediately. The record of each request shall be kept 
current, stating the date and time the request is received, the name and 
address of the person making the request, any amendments to such 
request, the nature of the records requested, the action taken regarding 
the request, including waiver of fees, extensions of time pursuant to 5 
U.S.C. 552(a)(6)(B), and appeals. The date and subject of any letters 
pursuant to paragraph (d)(1) of this section or agency determinations 
pursuant to paragraph (d)(2)(i) of this section, the date(s) any records 
are subsequently furnished, and the payment requested and received.
    (3) Time limitations. (i) Time limitations for agency response to a 
request for records established by the regulations in this part shall 
begin when the request is recorded pursuant to paragraph (d)(2)(iii) of 
this section. A written request pursuant to FOIA but sent to an office 
of the Commission other than the Office of the General Counsel shall be 
date stamped, initialed, and redirected immediately to the Office of the 
General Counsel. The required period for agency determination shall 
begin when it is received by the Office of the General Counsel in 
accordance with paragraph (d)(2)(iii) of this section.
    (ii) In unusual circumstances, pursuant to 5 U.S.C. 552(a)(6)(B), 
the General Counsel may, in the case of initial determinations under the 
regulations in this part, extend the 10 working day time limit in which 
the agency is required to make its determination notification. Such 
extension shall be communicated in writing to the requesting party 
setting forth with particularity the reasons for such extension and the 
date on which a determination is expected to be transmitted. Such 
extensions may not exceed 10 working days for any request and may only 
be used to the extent necessary to properly process a particular 
request. Such extension is permissible only where there is a 
demonstrated need:
    (A) To search for and collect the requested records from field 
facilities or other establishments that are separate from the Office of 
the General Counsel;
    (B) To search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records that are demanded in a single 
request; or
    (C) For consultation, which shall be conducted with all practicable 
speed, with another agency having a substantial interest in the 
determination of the request or among two or more components of the same 
agency having substantial subject matter interest therein.
    (e) Fees--(1) Definitions. The following definitions apply to the 
terms when used in this section:
    (i) Direct costs means those expenditures that the Commission 
actually incurs in searching for and duplicating (and in the case of 
commercial requesters, reviewing) documents to respond to a request made 
under paragraph (d) of this section. Direct costs include, for example, 
the salary of the employee(s) performing the work (the basic rate of pay 
for the employee(s) plus 16 percent of that rate to cover benefits) and 
the cost of operating duplicating machinery. Not included in direct 
costs are overhead expenses such as costs of space and heating or 
lighting the facility in which the records are stored.
    (ii) Search means all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification within documents. However, an entire document will be 
duplicated if this would prove to be a more efficient and less expensive 
method of complying with a request than a more detailed manner of 
searching. Search is distinguished from review of material in order to 
determine whether the material is exempt from disclosure.
    (iii) Duplication means the process of making a copy of a document 
necessary to respond to a request for disclosure of records. Such copies 
can take the form of paper or machine readable documentation (e.g., 
magnetic tape or disk), among others.
    (iv) Review means the process of examining documents located in 
response to an information request to determine whether any portion of 
any document is permitted to be withheld. It also includes processing 
any documents for disclosure, e.g., doing all that is necessary to 
prepare them for release. Review does not include time spent resolving 
general legal or policy issues

[[Page 287]]

regarding the application of exemptions.
    (v) Commercial use request means a request from or on behalf of one 
who seeks information for a use or purpose that furthers the commercial, 
trade, or profit interests of the requester or the person on whose 
behalf the request is made. In deciding whether a requester properly 
belongs in this category, the General Counsel will determine the use to 
which a requester will put the documents requested. When the General 
Counsel has reasonable cause to doubt such intended use, or where such 
use is not clear from the request itself, the General Counsel will seek 
additional clarification before assigning the request to a specific 
category.
    (vi) Educational institution means a school, an institution of 
higher education, an institution of professional education, or an 
institution of vocational education that operates a program or programs 
of scholarly research.
    (vii) Noncommercial scientific institution means an institution that 
is not operated on a commercial basis 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.
    (viii) Representative of the news media 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. 
News media entities include television or radio stations broadcasting to 
the public at large, and publishers of periodicals (but only in those 
instances when they can qualify as disseminators of news) who make their 
products available for purchase or subscription by the general public. 
Freelance journalists may be regarded as working for a news organization 
if they can demonstrate a solid basis for expecting publication through 
that organization, even though not actually employed by it.
    (2) Costs to be included in fees. The direct costs included in fees 
will vary according to the following categories of requests:
    (i) Commercial use requests. Fees will include the Commission's 
direct costs for searching for, reviewing, and duplicating the requested 
records.
    (ii) Educational and noncommercial scientific institution requests. 
The Commission will provide documents to requesters in this category for 
the cost of duplication alone, excluding charges for the first 100 
pages. To be eligible for inclusion in this category, requesters must 
show that the request is being made under the auspices of a qualifying 
institution and that the records are sought in furtherance of scholarly 
(if the request is from an educational institution) or scientific (if 
the request is from a noncommercial scientific institution) research.
    (iii) Requests from representatives of the news media. The 
Commission will provide documents to requesters in this category for the 
cost of duplication alone, excluding charges for the first 100 pages. To 
be eligible for inclusion in this category a requester must meet the 
criteria in paragraph (e)(1)(viii) of this section.
    (iv) All other requests. The Commission will charge requesters who 
do not fit into any of the categories in paragraphs (e)(2)(i) through 
(iii) of this section fees that cover the direct costs of searching for 
and duplicating records that are responsive to the requests, except for 
the first two hours of search time and the first 100 pages duplicated. 
However, requests from persons for records about themselves will 
continue to be treated under the fee provisions of the Privacy Act of 
1974 and Sec. 705.10 of this chapter.
    (3) Fee calculation. Fees will be calculated as follows:
    (i) Manual search. At the salary rate (basic pay plus 16 percent) of 
the employee(s) making the search.
    (ii) Computer search. At the actual direct cost of providing the 
search, including computer search time directly attributable to search 
for records responsive to the request, runs, and operator salary 
apportionable to the search.
    (iii) Review (commercial use requests only). At the salary rate 
(basic pay plus 16 percent) of the employee(s) conducting the review. 
Only the review necessary at the initial administrative

[[Page 288]]

level to determine the applicability of any exemption, and not review at 
the administrative appeal level, will be included in the fee.
    (iv) Duplication. At 20 cents per page for paper copy. For copies of 
records prepared by computer (such as tapes or printouts), the actual 
cost of production, including operator time, will be charged.
    (v) Additional services; certification. Express mail and other 
additional services that may be arranged by the requester will be 
charged at actual cost. The fee for certification or authentication of 
copies shall be $3.00 per document.
    (vi) Assessment of interest. The Commission may begin assessing 
interest charges on the 31st day following the day the fee bill is sent. 
Interest will be at the rate prescribed in 31 U.S.C. 3717 and will 
accrue from the date of billing.
    (vii) No fee shall be charged if the total billable cost calculated 
under paragraphs (e)(2) and (3) of this section is less than $10.00.
    (4) Waiver or reduction of fees. (i) Documents will be furnished 
without charge, or at a reduced charge, where disclosure of the 
information is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities of 
the government and is not primarily in the commercial interest of the 
requester.
    (ii) Whenever a waiver or reduction of fees is granted, only one 
copy of the record will be furnished.
    (iii) The decision of the General Counsel on any fee waiver or 
reduction request shall be final and unappealable.
    (5) Payment procedures--(i) Fee payment. Payment of fees shall be 
made by cash (if delivered in person), check, or money order payable to 
the United States Commission on Civil Rights.
    (ii) Notification of fees. No work shall be done that will result in 
fees in excess of $25.00 without written authorization from the 
requester. Where it is anticipated that fees will exceed $25.00, and the 
requester has not indicated in advance a willingness to pay fees as high 
as are anticipated, the requester will be notified of the amount of the 
projected fees. The notification shall offer the requester an 
opportunity to confer with the General Counsel in an attempt to 
reformulate the request so as to meet the requester's needs at a lower 
cost. The administrative time limits prescribed in 5 U.S.C. 552(a)(6) 
will not begin until after the requester agrees in writing to accept the 
prospective charges.
    (6) Advance payment of fees. When fees are projected to exceed 
$250.00, the requester may be required to make an advance payment of all 
or part of the fee before the request is processed. If a requester has 
previously failed to pay a fee in a timely fashion (i.e., within 30 days 
of the billing date), the requester will be required to pay the full 
amount owed plus any applicable interest, and to make an advance payment 
of the full amount of the estimated fee before a new or pending request 
is processed from that requester. The administrative time limits 
prescribed in 5 U.S.C. 552(a)(6) will not begin until after the 
requester has complied with this provision.
    (7) Other provisions--(i) Charges for unsuccessful search. Charges 
may be assessed for time spent searching for requested records, even if 
the search fails to locate responsive records or the records are 
determined, after review, to be exempt from disclosure.
    (ii) Aggregating requests to avoid fees. Multiple requests shall be 
aggregated when the General Counsel reasonably determines that a 
requester or group of requesters is attempting to break down a request 
into a series of requests to evade fees.
    (iii) Debt Collection Improvement Act of 1996. The Debt Collection 
Improvement Act of 1996 (Pub. L. 104-134), including disclosure to 
consumer reporting agencies and use of collection agencies, will be used 
to encourage payment where appropriate.
    (f) Exemptions (5 U.S.C. 552(b))-(1) General. The Commission may 
exempt from disclosure matters that are:
    (i)(A) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy and
    (B) Are in fact properly classified pursuant to such Executive 
Order.

[[Page 289]]

    (ii) Related solely to the internal personnel rules and practices of 
an agency;
    (iii) Specifically exempted from disclosure by statute;
    (iv) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (v) Interagency or intra-agency memoranda or letters that would not 
be available by law to a party other than an agency in litigation with 
the agency;
    (vi) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (vii) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (A) Could reasonably be expected to interfere with enforcement 
proceedings;
    (B) Could deprive a person of a right to a fair trial or an 
impartial adjudication;
    (C) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (D) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution that furnished information on a 
confidential basis;
    (E) Could disclose techniques and procedures for all enforcement 
investigations or prosecutions, or could disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (F) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (viii) Contained in or related to examination, operating, or 
condition reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
and
    (ix) Geological and geophysical information and data, including 
maps, concerning wells.
    (2) Investigatory records or information. (5 U.S.C. 552(b)(7)).
    (i) Among the documents exempt from disclosure pursuant to paragraph 
(f)(1)(vii) of this section shall be records or information reflecting 
investigations that either are conducted for the purpose of determining 
whether a violation(s) of legal right has taken place, or have disclosed 
that a violation(s) of legal right has taken place, but only to the 
extent that production of such records or information would fall within 
the classifications established in paragraphs (f)(1)(vii)(B) through (F) 
of this section.
    (ii) Among the documents exempt from disclosure under 
paragraphs(f)(1)(vii)(D) and (f)(2)(i) of this section concerning 
confidential sources shall be documents that disclose the fact or the 
substance of a communication made to the Commission in confidence 
relating to an allegation or support of an allegation of wrongdoing by 
certain persons. It is sufficient under this section to indicate the 
confidentiality of the source if the substance of the communication or 
the circumstances of the communication indicate that investigative 
effectiveness could reasonably be expected to be inhibited by 
disclosure.
    (iii) Whenever a request is made that involves access to records 
described in paragraph (f)(1)(vii)(A) of this section and the 
investigation or proceeding involves a possible violation of criminal 
law and there is reason to believe that the subject of the investigation 
or proceeding is not aware of its pendency and disclosure of the 
existence of the records could reasonably be expected to interfere with 
enforcement proceedings, the Commission may, during only such time as 
that circumstance continues, treat the records as not subject to the 
requirements of 5 U.S.C. 552 and this section.
    (3) Any reasonably segregable portion of a record shall be provided 
to any person requesting such record after deletion of the portions that 
are exempt under this section.
    (g) Administrative appeals. (1) These procedures apply whenever a 
requester is denied records under paragraph (d)(2)(i) of this section.
    (2) Parties may appeal decisions under paragraph (d)(2)(i) of this 
section

[[Page 290]]

within 90 days of the date of such decision by filing a written request 
for review addressed to the Staff Director, U.S. Commission on Civil 
Rights, 624 9th Street, NW., Washington, DC 20425, by certified mail, 
including a copy of the written denial, and may include a statement of 
the circumstances, reasons or arguments advanced in support of 
disclosure. Review will be made by the Staff Director on the basis of 
the written record.
    (3) The decision on review of any appeal filed under this section 
shall be in writing over the signature of the Staff Director will be 
promptly communicated to the person requesting review and will 
constitute the final action of the Commission.
    (4) Determinations of appeals filed under this section shall be made 
within 20 working days after the receipt of such appeal. If, on appeal, 
denial of records is in whole or part upheld, the Staff Director shall 
notify the persons making such request of the provisions for judicial 
review of that determination under 5 U.S.C. 552(a)(6).
    (5) An extension of time may be granted under this section pursuant 
to criteria established in paragraph (d)(3)(ii) (A) through (C) of this 
section, except that such extension together with any extension, which 
may have been granted pursuant to paragraph (d)(3)(ii) of this section, 
may not exceed a total of 10 working days.



Sec. 704.2  Complaints.

    Any person may bring to the attention of the Commission a grievance 
that he or she believes falls within the jurisdiction of the Commission, 
as set forth in section 3 of the Act. This shall be done by submitting a 
complaint in writing to the Office of Civil Rights Evaluation, U.S. 
Commission on Civil Rights, 9th Street, NW., Washington, DC 20425. 
Allegations falling under section 3(a)(1) of the Act must be under oath 
or affirmation. All complaints should set forth the pertinent facts upon 
which the complaint is based, including but not limited to specification 
of:
    (a) Names and titles of officials or other persons involved in acts 
forming the basis for the complaint;
    (b) Accurate designations of place locations involved;
    (c) Dates of events described in the complaint.



Sec. 704.3  Other requests and communications.

    Requests for information should be addressed to the Public Affairs 
Unit and requests for Commission literature should be directed to 
National Clearinghouse Library, U.S. Commission on Civil Rights, 624 9th 
Street, NW., Washington DC 20425. Communications with respect to 
Commission proceedings should be made pursuant to Sec. 702.17 of this 
chapter. All other communications should be directed to Office of Staff 
Director, U.S. Commission on Civil Rights, 624 9th Street, Washington, 
DC 20425.



Sec. 704.4  Restrictions on disclosure of information.

    (a) By the provisions of the Act, no evidence or testimony or 
summary of evidence or testimony taken in executive session may be 
released or used in public sessions without the consent of the 
Commission, and any person who releases or uses in public without the 
consent of the Commission such evidence or testimony taken in executive 
session shall be fined not more than $1,000 or imprisoned for not more 
than 1 year.
    (b) Unless a matter of public record, all information or documents 
obtained or prepared by any Commissioner, officer, or employee of the 
Commission, including members of Advisory Committees, in the course of 
his or official duties, or by virtue of his or her official status, 
shall not be disclosed or used by such person for any purpose except in 
the performance of his or her official duties.
    (c) Any Commissioner, officer, or employee of the Commission, 
including members of Advisory Committees, who is served with a subpoena, 
order, or other demand requiring the disclosure of such information or 
the production of such documents shall appear in response to such 
subpoena, order, or other demand and, unless otherwise directed by the 
Commission, shall respectfully decline to disclose the information or 
produce the documents

[[Page 291]]

called for, basing his or her refusal upon this section. Any such person 
who is served with such a subpoena, order, or other demand shall 
promptly advise the Commission of the service of such subpoena, order, 
or other demand, the nature of the information or documents sought, and 
any circumstances that may bear upon the desirability of making 
available such information or documents.



PART 705_MATERIALS AVAILABLE PURSUANT TO 5 U.S.C. 552a--Table of Contents




Sec.
705.1 Purpose and scope.
705.2 Definitions.
705.3 Procedures for requests pertaining to individual records in a 
          system of records.
705.4 Times, places, and requirements for identification of individuals 
          making requests and identification of records requested.
705.5 Disclosure of requested information to individuals.
705.6 Request for correction or amendment to record.
705.7 Agency review of request for correction or amendment of the 
          record.
705.8 Appeal of an initial adverse agency determination.
705.9 Disclosure of records to a person other than the individual to 
          whom the record pertains.
705.10 Fees.
705.11 Penalties.
705.12 Special procedures: Information furnished by other agencies.
705.13 Exemptions.
705.95 Accounting of the disclosures of records.

    Authority: 5 U.S.C. 552a.

    Source; 67 FR 70482, Nov. 22, 2002, unless otherwise noted.



Sec. 705.1  Purpose and scope.

    (a) The purpose of this part is to set forth rules to inform the 
public regarding information maintained by the United States Commission 
on Civil Rights about identifiable individuals and to inform those 
individuals how they may gain access to and correct or amend information 
about themselves.
    (b) The rules in this part carry out the requirements of the Privacy 
Act of 1974 (Public Law 93-579) and in particular 5 U.S.C. 552a as added 
by that Act.
    (c) The rules in this part apply only to records disclosed or 
requested under the Privacy Act of 1974, and not to requests for 
information made pursuant to the Freedom of Information Act, 5 U.S.C. 
552.



Sec. 705.2  Definitions.

    For the purpose of this part:
    (a) Commission and agency mean the U.S. Commission on Civil Rights;
    (b) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence;
    (c) Maintain includes maintain, collect, use, or disseminate;
    (d) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Commission, including, but 
not limited to, his or her education, financial transactions, medical 
history, and criminal or employment history and that contains his or her 
name, or the identifying number, symbol, or other identifying particular 
assigned to the individual;
    (e) System record means a group of any records under the control of 
the Commission from which information may be retrieved by the name of 
the individual or by some identifying number, symbol, or other 
identifying particular assigned to that individual;
    (f) Statistical record means a record in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual, except as provided in 13 U.S.C. 8;
    (g) Routine use means, with respect to the disclosure of a record, 
the use of such record for a purpose that is compatible with the purpose 
for which it was collected;
    (h) Confidential source means a source who furnished information to 
the Government under an express promise that the identity of the source 
would remain confidential, or, prior to September 27, 1975, under an 
implied promise that the identity of the source would be held in 
confidence; and
    (i) Act means the Privacy Act of 1974, Public Law 93-579.

[[Page 292]]



Sec. 705.3  Procedures for requests pertaining to individual records in 
a system of records.

    (a) An individual seeking notification of whether a system of 
records contains a record pertaining to him or her or an individual 
seeking access to information or records pertaining to him or her, that 
are available under the Privacy Act of 1974, shall present his or her 
request in person or in writing to the General Counsel of the 
Commission.
    (b) In addition to meeting the requirements set forth in Sec. 
705.4(c) or (d), any person who requests information under the 
regulations in this part shall provide a reasonably specific description 
of the information sought so that it may be located without undue search 
or inquiry. If possible, that description should include the nature of 
the records sought, the approximate dates covered by the record, and, if 
known by the requester, the system in which the record is thought to be 
included. Requested information that is not identified by a reasonably 
specific description is not an identifiable record, and the request for 
that information cannot be treated as a formal request.
    (c) If the description is insufficient, the agency will notify the 
requester and, to the extent possible, indicate the additional 
information required. Every reasonable effort shall be made to assist a 
requester in the identification and location of the record or records 
sought.



Sec. 705.4  Times, places, and requirements for identification of 
individuals making requests and identification of records requested.

    (a) The General Counsel is the designated Privacy Act Officer for 
the Commission.
    (b) An individual making a request to the General Counsel in person 
may do so at the Commission's headquarters office, 624 9th Street, N.W., 
Washington, D.C. 20425, on any business day during business hours. 
Persons may also appear for purposes of identification only, at any of 
the regional offices of the Commission on any business day during 
business hours. Regional offices are located as follows:

            Region I: Eastern Regional Office, Washington, DC

    Connecticut, Delaware, District of Columbia, Maine, Maryland, 
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode 
Island, Vermont, Virginia, and West Virginia.

          Region II: Southern Regional Office, Atlanta, Georgia

    Florida, Georgia, Kentucky, North Carolina, South Carolina, and 
Tennessee.

        Region III: Midwestern Regional Office, Chicago, Illinois

    Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

         Region IV: Central Regional Office, Kansas City, Kansas

    Alabama, Arkansas, Iowa, Kansas, Louisiana, Mississippi, Missouri, 
Nebraska, and Oklahoma.

       Region V: Rocky Mountain Regional Office, Denver, Colorado

    Colorado, Montana, New Mexico, North Dakota, South Dakota, Utah, and 
Wyoming.

       Region VI: Western Regional Office, Los Angeles, California

    Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, Texas, 
and Washington.

    (c) An individual seeking access to records in person may establish 
his or her identity by the presentation of one document bearing a 
photograph (such as a driver's license, passport, or identification card 
or badge) or by the presentation of two items of identification that do 
not bear a photograph, but do bear both a name and address (such as a 
credit card). When identification is made without photographic 
identification, the Commission will request a signature comparison to 
the signature appearing on the items offered for identification, 
whenever possible and practical.
    (d) An individual seeking access to records by mail shall establish 
his or her identity by a signature, address, date of birth, and one 
other identification, such as a copy of a driver's license, passport, 
identification card or badge, credit card, or other document. The words 
Privacy Act Request should be placed in capital letters on the face of 
the envelope in order to facilitate requests by mail.

[[Page 293]]

    (e) An individual seeking access in person or by mail who cannot 
provide the required documentation of identification may provide a 
notarized statement, swearing or affirming to his or her identity and to 
the fact that he or she understands that there are criminal penalties 
for the making of false statements.
    (f) The parent or guardian of a minor or a person judicially 
determined to be incompetent, in addition to establishing the identity 
of the minor or incompetent person he or she represents as required by 
paragraphs (a) through (c) of this section, shall establish his or her 
own parentage or guardianship by furnishing a copy of a birth 
certificate showing parentage or court order establishing guardianship.
    (g) An individual seeking to review information about himself or 
herself may be accompanied by another person of his or her own choosing. 
In all such cases, the individual seeking access shall be required to 
furnish a written statement authorizing the discussion of his or her 
record in the presence of the accompanying person.



Sec. 705.5  Disclosure of requested information to individuals.

    The General Counsel, or one or more assistants designated by him or 
her, upon receiving a request for notification of the existence of a 
record or for access to a record shall:
    (a) Determine whether such record exists;
    (b) Determine whether access is available under the Privacy Act;
    (c) Notify the requesting person of those determinations within 10 
(ten) working days (excluding Saturdays, Sundays, and legal public 
holidays); and
    (d) Provide access to information pertaining to that person that has 
been determined to be available.



Sec. 705.6  Request for correction or amendment to record.

    (a) Any individual who has reviewed a record pertaining to him or 
her that was furnished to him or her under this part may request the 
agency to correct or amend all or part of that record.
    (b) Each individual requesting a correction or amendment shall send 
the request to the General Counsel.
    (c) Each request for a correction or amendment of a record shall 
contain the following information:
    (1) The name of the individual requesting the correction or 
amendment.
    (2) The name of the system of records in which the record sought to 
be amended is maintained.
    (3) The location of the record system from which the record was 
obtained.
    (4) A copy of the record sought to be amended or a description of 
that record.
    (5) A statement of the material in the record that should be 
corrected or amended.
    (6) A statement of the specific wording of the correction or 
amendment sought.
    (7) A statement of the basis for the requested correction or 
amendment, including any material that the individual can furnish to 
substantiate the reasons for the amendment sought.



Sec. 705.7  Agency review of request for correction or amendment of the 
record.

    Within ten (10) working days (excluding Saturdays, Sundays and legal 
public holidays) of the receipt of the request for the correction or 
amendment of a record, the General Counsel shall acknowledge receipt of 
the request and inform the individual that his or her request has been 
received and inform the individual whether further information is 
required before the correction or amendment can be considered. Further, 
the General Counsel shall promptly and, under normal circumstances, not 
later than thirty (30) working days after receipt of the request, make 
the requested correction or amendment or notify the individual of his or 
her refusal to do so, including in the notification the reasons for the 
refusal and the procedures established by the Commission by which the 
individual may initiate a review of that refusal. In the event of 
correction or amendment, an individual shall be provided with one copy 
of each record or portion thereof corrected or amended pursuant to his 
or her request without charge as evidence of the correction or

[[Page 294]]

amendment. The Commission shall also provide to all prior recipients of 
such a record, the corrected or amended information to the extent that 
it is relevant to the information previously furnished to a recipient 
pursuant to the Privacy Act.



Sec. 705.8  Appeal of an initial adverse agency determination.

    (a) Any individual whose request for access or for a correction or 
amendment that has been denied, in whole or in part, by the General 
Counsel may appeal that decision to the Staff Director of the 
Commission, 624 9th Street, NW., Washington, DC 20425, or to a designee 
of the Staff Director.
    (b) The appeal shall be in writing and shall:
    (1) Name the individual making the appeal;
    (2) Identify the record sought to be amended or corrected;
    (3) Name the record system in which that record is contained;
    (4) Contain a short statement describing the amendment or correction 
sought; and
    (5) State the name of the person who initially denied the correction 
or amendment.
    (c) Not later than thirty (30) working days (excluding Saturdays, 
Sundays, and legal public holidays) after the date on which the agency 
received the appeal, the Staff Director shall complete his or her review 
of the appeal and make a final decision thereon, unless, for good cause 
shown, the Staff Director extends the appeal period beyond the initial 
thirty (30) day appeal period. In the event of such an extension, the 
Staff Director shall promptly notify the individual making the appeal 
that the period for a final decision has been extended.
    (d) After review of an appeal request, the Staff Director will send 
a written notice to the requester containing the following information:
    (1) The decision; and if the denial is upheld, the reasons for the 
decision;
    (2) The right of the requester to institute a civil action in a 
Federal District Court for judicial review of the decision if the appeal 
is denied; and
    (3) The right of the requester to file with the Commission a concise 
statement setting forth the reasons for his or her disagreement with the 
Commission's decision denying the request. The Commission shall make 
this statement available to any person to whom the record is later 
disclosed together with a brief statement, if the Commission considers 
it appropriate, of the agency's reasons for denying the requested 
correction or amendment. These statements shall also be provided to all 
prior recipients of the record to the extent that it is relevant to the 
information previously furnished to a recipient pursuant to the Privacy 
Act.



Sec. 705.9  Disclosure of records to a person other than the individual 
to whom the record pertains.

    (a) Any individual who desires to have his or her record disclosed 
to or mailed to a third person may authorize that person to act as his 
or her agent for that specific purpose. The authorization shall be in 
writing, signed by the individual, and notarized. The agent shall also 
submit proof of his or her own identity as provided in Sec. 705.4.
    (b) The parent of any minor individual or the legal guardian of any 
individual who has been declared by a court to be incompetent, due to 
physical or mental incapacity, may act on behalf of that individual in 
any matter covered by this part. A parent or guardian who desires to act 
on behalf of such an individual shall present suitable evidence of 
parentage or guardianship by birth certificate, copy of a court order or 
similar documents, and proof of the individual's identity as provided in 
Sec. 705.4.
    (c) An individual to whom a record is to be disclosed, in person, 
pursuant to this part may have a person of his or her own choosing 
accompany the individual when the record is disclosed.



Sec. 705.10  Fees.

    If an individual requests copies of his or her records the charge 
shall be three (3) cents per page; however, the Commission shall not 
charge for copies furnished to an individual as a necessary part of the 
process of disclosing the record to an individual. Fees may be waived or 
reduced in accordance with Sec. 704.1(e) of this chapter because of

[[Page 295]]

indigency, where the cost is nominal, when it is in the public interest 
not to charge, or when waiver would not constitute an unreasonable 
expense to the Commission.



Sec. 705.11  Penalties.

    Any person who makes a false statement in connection with any 
request for a record, or in any request for an amendment to a record 
under this part, is subject to the penalties prescribed in 18 U.S.C. 494 
and 495.



Sec. 705.12  Special procedures: Information furnished by other agencies.

    When records or information sought from the Commission include 
information furnished by other Federal agencies, the General Counsel 
shall consult with the appropriate agency prior to making a decision to 
disclose or to refuse to disclose the record, but the decision whether 
or not to disclose the record shall be made by the General Counsel.



Sec. 705.13  Exemptions.

    (a) Under the provision of 5 U.S.C. 552a(k), it has been determined 
by the agency that the following exemptions are necessary and proper and 
may be asserted by the agency:
    (1) Exemption (k)(2) of the Act. Investigatory material compiled for 
law enforcement purposes, other than material within the scope of 
subsection (j)(2) of the Privacy Act: Provided, however, That if any 
individual is denied any right, privilege, or benefit that he or she 
would otherwise be eligible for, as a result of the maintenance of such 
material, such material shall be provided to such individual, except to 
the extent that the disclosure of such material would reveal the 
identify of a source who furnished information to the Government under 
an express promise that the identity of the source would be held in 
confidence, or, prior to [the effective date of this section], under an 
implied promise that the identity of the source would be held in 
confidence.
    (2) Exemption (k)(4) of the Act. Statistical personnel records that 
are used only to generate aggregate data or for other evaluative or 
analytical purposes and that are not used to make decisions on the 
rights, benefits, or entitlements of individuals.
    (3) Exemption (k)(5) of the Act. Investigatory material maintained 
solely for the purposes of determining an individual's qualifications, 
eligibility, or suitability for employment in the Federal civilian 
service, Federal contracts, or access to classified information, but 
only to the extent that disclosure of such material would reveal the 
identity of the source who furnished information to the Government under 
an express promise that the identity of the source would be held in 
confidence, or prior to September 27, 1975, under an implied promise 
that the identity of the source would be held in confidence.
    (4) Exemption (k)(6) of the Act. Testing or examination material 
used solely to determine individual qualifications for promotion or 
appointment in the Federal service the disclosure of which would 
compromise the objectivity or fairness of the testing or examination 
process.
    (b) Following are Commission systems of records that are partially 
exempt under 5 U.S.C. 552a(k)(2), (4), (5), and (6) and the reasons for 
such exemptions:
    (1) Appeals, Grievances, and Complaints (staff)--Commission Project, 
CRC-001. Exempt partially under 5 U.S.C. 552a(k)(2). The reasons for 
possibly asserting the exemptions are to prevent subjects of 
investigation from frustrating the investigatory process, 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.
    (2) Complaints, CRC-003--Exempt partially under 5 U.S.C. 552a(k)(2). 
The reasons for possibly asserting the exemptions are to prevent 
subjects of investigation from frustrating the investigatory process, 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.

[[Page 296]]

    (3) Commission projects, CRC-004--Partially exempt under 5 U.S.C. 
552a(k)(2). The reasons for asserting the exemptions are to prevent 
subjects of investigation from frustrating the investigatory process, 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.
    (4) Other Employee Programs: EEO, Troubled Employee, and Upward 
Mobility, CRC-006--Partially exempt under 5 U.S.C. 552a(k)(4), (5), and 
(6). The reasons for asserting the exemptions 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, primarily, to 
facilitate proper selection or continuance of the best applicants or 
persons for a given position.
    (5) State Advisory Committees Projects, CRC-009--Partially exempt 
under 5 U.S.C. 552a(k)(2). The reasons for possibly asserting the 
exemptions are to prevent subjects of investigation from frustrating the 
investigatory process, 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.



Sec. 705.95  Accounting of the disclosures of records.

    (a) All disclosures of records covered by this part, except for the 
exemptions listed in paragraph (b) of this section, shall be accounted 
for by keeping a written record of the particular record disclosed, the 
name and address of the person or agency to whom or to which disclosed, 
and the date, nature, and purpose of the disclosure.
    (b) No accounting is required for disclosures of records to those 
officials and employees of the Commission who have a need for the record 
in the performance of their duties or if disclosure would be required 
under the Freedom of Information Act. 5 U.S.C. 552.
    (c) The accounting shall be maintained for 5 years or until the 
record is destroyed or transferred to the National Archives and Records 
Administrator for storage, in which event, the accounting pertaining to 
those records, unless maintained separately, shall be transferred with 
the records themselves.
    (d) The accounting of disclosures may be recorded in any system the 
Commission determines is sufficient for this purpose, however, the 
Commission must be able to construct from its system a listing of all 
disclosures. The system of accounting of disclosures is not a system of 
records under the definition in Sec. 705.2(e) and no accounting need be 
maintained for disclosure of the accounting of disclosures.
    (e) Upon request of an individual to whom a record pertains, the 
accounting of the disclosures of that record shall be made available to 
the requester, provided that he or she has complied with Sec. 705.3(a) 
and with Sec. 705.4(c) or (d).



PART 706_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




                      Subpart A_General Provisions

Sec.
706.1 Implementation of regulations.
706.2 Purpose.
706.3 Definitions.
706.4 Distribution.
706.5 Counseling.
706.6 Disciplinary and other remedial action.
706.7 Outside employment and other activity.
706.8 Prohibition against disclosure of evidence.

  Subpart B_Ethical and Other Conduct and Responsibilities of Employees

706.9 Proscribed actions.
706.10 Gifts, entertainment, and favors.
706.11 Proscribed outside employment and other activities.
706.12 Financial interests.
706.13 Use of Government property.
706.14 Misuse of information.
706.15 Indebtedness.
706.16 Gambling, betting, and lotteries.
706.17 General conduct prejudicial to the Government.
706.18 Miscellaneous statutory provisions.

[[Page 297]]

               Subpart C_Financial Reporting Requirements

706.19 Statements of financial and property interests and outside 
          employment.
706.20 Time and place for filing of reports.
706.21 Exclusion of certain positions from reporting requirements.
706.22 Information required to be reported--reporting forms.
706.23 Review of reports.
706.24 Public access to financial disclosure reports.

    Authority: Part III of 5 U.S.C.

    Source: 44 FR 75152, Dec. 19, 1979, unless otherwise noted.



                      Subpart A_General Provisions

    Source; 67 FR 70482, Nov. 22, 2002, unless otherwise noted.



Sec. 706.1  Implementation of regulations.

    The U.S. Commission on Civil Rights (hereinafter referred to as the 
Commission) through the regulations in this part, implements, with 
appropriate modifications, relevant sections of Part III of Title 5 of 
the United States Code.



Sec. 706.2  Purpose.

    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's business and the maintenance of confidence by citizens in 
their Government. The avoidance of misconduct and conflicts of interest 
on the part of Government employees and special Government employees 
through informed judgment is indispensable to the maintenance of these 
standards. To accord with these concepts, this part sets forth the 
Commission's regulations covering the agency's employees and special 
Government employees, prescribing standards of conduct and 
responsibilities and governing statements reporting employment and 
financial interests.



Sec. 706.3  Definitions.

    In this part:
    Commission means the United States Commission on Civil Rights, an 
Executive agency as defined by 5 U.S.C. 105.
    Employee means an officer or employee of the Commission including a 
special Government employee, as defined in 18 U.S.C. 202.
    Executive order means Executive Order 11222 of May 8, 1965, (3 CFR, 
1964-1965 Comp., p. 306), prescribing standards of ethical conduct for 
Government officers and employees.
    Person means an individual, a corporation, a company, an 
association, a firm, a partnership, a society, a joint stock company, or 
any other organization or institution.



Sec. 706.4  Distribution.

    (a) Within 90 days after August 30, 2002, the Commission shall 
furnish each employee with a copy of the regulations in this part.
    (b) The Commission shall furnish all new employees with a copy of 
the regulations at the time of their entrance on duty.
    (c) The Commission shall bring the regulations to the attention of 
each employee annually and at such other times as circumstances warrant.
    (d) The Commission shall have available for review by employees 
copies of relevant laws, the Executive order, and pertinent Commission 
instructions relating to ethical and other standards of conduct.



Sec. 706.5  Counseling.

    The General Counsel of the Commission shall serve as the agency's 
ethical conduct counselor and is the designated agency official for the 
purposes of the Ethics in Government Act. The General Counsel shall 
respond to requests by employees and special Government employees for 
advice and guidance respecting questions of ethical conduct, conflicts 
of interest, reporting of financial interests and other matters of law 
covered by the regulations in this part.



Sec. 706.6  Disciplinary and other remedial action.

    An employee of the Commission who violates any of the regulations in 
this part may be disciplined. The disciplinary action may be in addition 
to any

[[Page 298]]

penalty prescribed by law for the violation. In addition to or in lieu 
of disciplinary action, remedial action to end conflicts or appearance 
of conflicts of interests may include but is not limited to:
    (a) Changes in assigned duties;
    (b) Divestment by an employee of any conflicting interest; or
    (c) Disqualification for a particular assignment.



Sec. 706.7  Outside employment and other activity.

    Employees of the Commission may engage in outside employment or 
other outside activity not incompatible with the full and proper 
discharge of the duties and responsibilities of their Government 
employment. Employees who wish to engage in outside employment shall 
first obtain the approval, in writing, of their supervisor.



Sec. 706.8  Prohibition against disclosure of evidence.

    All employees of the Commission are subject to the prohibition on 
disclosure of evidence taken in executive session contained in Sec. 
702.6 of this chapter.



  Subpart B_Ethical and Other Conduct and Responsibilities of Employees



Sec. 706.9  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 Commission efficiency or economy;
    (d) Making a Commission decision outside official channels;
    (e) Losing complete independence or impartiality; or
    (f) Affecting adversely the confidence of the public in the 
integrity of the Commission.



Sec. 706.10  Gifts, entertainment, and favors.

    (a) Except as provided in paragraphs (b) and (e) of this section, an 
employee shall not solicit or accept, directly or indirectly, any gift, 
gratuity, favor, entertainment, loan, or any other thing of monetary 
value from a person who:
    (1) Has, or is seeking to obtain, contractual or other business or 
financial relations with the Commission;
    (2) Conducts operations or activities that are regulated by the 
Commission; or
    (3) Has interests that may be substantially affected by the 
performance or nonperformance of the employee's official duty.
    (b) Exceptions from the prohibitions contained in paragraph (a) of 
this section are as follows:
    (1) Gifts, entertainment, and favors that derive from family or 
personal relationships (such as those between parents, children, or 
spouse of the employee and the employee) when the circumstances make it 
clear that it is those relationships rather than the business of the 
persons concerned that 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;
    (3) Acceptance of loans from banks or other financial institutions 
on customary terms to finance proper and usual activities of employees, 
such as home mortgage loans; and
    (4) Acceptance of unsolicited advertising or promotional material, 
such as pens, pencils, note pads, calendars, and other items of nominal 
intrinsic value.
    (c) Employees 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 themselves. This paragraph, however, 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.
    (d) An employee shall not accept a gift, present, decoration, or 
other thing from a foreign government unless authorized by Congress as 
provided by the Constitution and 5 U.S.C. 7342.
    (e) Neither this section nor Sec. 706.11 precludes an employee from 
receipt of

[[Page 299]]

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. This 
paragraph, however, does not allow employees to be reimbursed, or 
payment to be made on their behalf, for excessive personal living 
expenses, gifts, entertainment, or other personal benefits.



Sec. 706.11  Proscribed outside employment and other activities.

    (a) An employee shall not engage in outside employment or other 
outside activity not compatible with the full and proper discharge of 
the duties and responsibilities of Government employment. Incompatible 
activities include but are not limited to:
    (1) 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 conflict(s) of interest; or
    (2) Outside employment that tends to impair mental or physical 
capacity to perform Governmental duties and responsibilities in an 
acceptable manner.
    (b) An employee shall not receive any salary or anything of monetary 
value from a private source as compensation for service to the 
Government as prohibited by 18 U.S.C. 209.
    (c) Employees are encouraged to engage in teaching, lecturing, and 
writing that is not prohibited by law, the Executive order, or 
Commission regulations. 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 Board of Examiners for the Foreign 
Service, which depends on information obtained as a result of Government 
employment, except when that information has been made available to the 
general public or will be made available on request or when the agency 
head gives written authorization for use of nonpublic information on the 
basis that the use is in the public interest. In addition, an employee 
who is a Presidential appointee covered by section 401(a) of the order 
shall not 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 Commission or which draws substantially 
on official data or ideas that have not become part of the body of 
public information.
    (d) This section does not preclude an employee from:
    (1) Participation in the activities of national or State political 
parties not proscribed by law;
    (2) 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; or
    (3) Outside employment permitted under the regulations in this part.



Sec. 706.12  Financial interests.

    (a) Employees shall not:
    (1) Have a direct or indirect financial interest that conflicts 
substantially, or appears to conflict substantially, with their 
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 their 
Government employment.
    (b) 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, the Executive order, or Commission 
regulations.



Sec. 706.13  Use of Government property.

    Employees shall not directly or indirectly use, or allow the use of, 
Government property of any kind, including property leased to the 
Government, for other than officially approved activities. Employees 
have a positive duty to protect and conserve Government property, 
including equipment, supplies, and other property entrusted or issued 
them.

[[Page 300]]



Sec. 706.14  Misuse of information.

    For the purpose of furthering a private interest, employees shall 
not directly or indirectly use, or allow the use of, official 
information obtained through or in connection with their Government 
employment that has not been made available to the general public.



Sec. 706.15  Indebtedness.

    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 the purpose 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 that the 
agency determines does not, under the circumstances, reflect adversely 
on the Government as the employer. In the event of dispute between an 
employee and an alleged creditor, this section does not require the 
Commission to determine the validity or amount of the disputed debt.



Sec. 706.16  Gambling, betting, and lotteries.

    Employees 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.



Sec. 706.17  General conduct prejudicial to the Government.

    Employees shall not engage in criminal, infamous, dishonest, 
immoral, or notoriously disgraceful conduct or other conduct prejudicial 
to the Government.



Sec. 706.18  Miscellaneous statutory provisions.

    Employees shall acquaint themselves with each statute that relates 
to their ethical and other conduct as an employee of the Commission and 
of the Government. The attention of Commission employees is directed to 
the following statutory provisions:
    (a) House Document 103, 86th Congress, 1st Session, the ``Code of 
Ethics for Government Service';
    (b) The provisions relating to bribery, graft, and conflicts of 
interest, as appropriate to the employees concerned (18 U.S.C. 201-225);
    (c) The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913);
    (d) The prohibitions against disloyalty and striking (5 U.S.C. 
73811; 18 U.S.C. 1918);
    (e) The prohibitions against the disclosure of classified 
information (18 U.S.C. 798; 50 U.S.C. 1905);
    (f) The provision relating to the habitual use of intoxicants to 
excess (5 U.S.C. 7352);
    (g) The prohibition against the misuse of a Government vehicle (31 
U.S.C. 1349(b));
    (h) The prohibition against the misuse of the franking privilege (18 
U.S.C. 1719);
    (i) The prohibition against the use of deceit in an examination or 
personnel action in connection with Government employment (18 U.S.C. 
1917);
    (j) The prohibition against fraud or false statements in a 
Government matter (18 U.S.C. 1001);
    (k) The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071);
    (l) The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508);
    (m) The prohibitions against:
    (1) Embezzlement of Government money or property (18 U.S.C. 641);
    (2) Failing to account for public money (18 U.S.C. 643); and
    (3) Embezzlement of the money or property of another person in the 
possession of the employee by reason of his or her employment (18 U.S.C. 
654);
    (n) The prohibition against unauthorized use of documents relating 
to claims from or by the Government (18 U.S.C. 285);
    (o) The prohibitions against political activities (5 U.S.C. 7323 and 
18 U.S.C. 602, 603, and 607); and
    (p) The prohibition against an employee acting as the agent of a 
foreign principal registered under the Foreign Agent Registration Act 
(18 U.S.C. 219).

[[Page 301]]



               Subpart C_Financial Reporting Requirements



Sec. 706.19  Statements of financial and property interests and outside 
employment.

    Pursuant to the Ethics in Government Act of 1978 (Public Law 95-521, 
as amended by Public Law 101-194, 101-280, 102-90, 102-378, and 104-65, 
referred to hereinafter in this subpart as ``the Act''), the following 
officers and employees of the Commission are required to file annual 
reports of financial and property interests and outside employment if 
they have served 61 days or more in their positions during the preceding 
calendar year:
    (a) Officers or employees, including a special Government employee 
as defined in 18 U.S.C. 202, who occupies a position classified above 
GS-15 of the General Schedule or, in the case of positions not under the 
General Schedule, for which the rate of basic pay is equal to or greater 
than 120 percent of the minimum rate of basic pay payable for GS-15 of 
the General Schedule;
    (b) Employees in the excepted service in positions that are of a 
confidential or policy-making character, unless their positions have 
been excluded by the Director of the Office of Government Ethics; and
    (c) Each designated agency ethics official.



Sec. 706.20  Time and place for filing of reports.

    (a) Annual reports are to be filed no later than May 15 of each 
calendar year, except that persons assuming a position for which reports 
are required who have not immediately prior to this assumption occupied 
a covered position in another agency, must file a report within 30 days 
after assuming the position at the Commission. In the event an 
individual terminates employment with the Commission and does not accept 
another position for which reporting is required, the report must be 
filed no later than the 30th day after termination, covering:
    (1) The preceding calendar year if the annual May 15 report has not 
been filed; and
    (2) The portion of the present calendar year up to the date of 
termination.
    (b) Reports shall be filed with the designated ethics officer 
(General Counsel) of the Commission. The reports of the designated 
ethics officer and nominees to and holders of positions that require 
confirmation by the Senate shall be transmitted by the General Counsel 
to the Office of Government Ethics of the Office of Personnel 
Management.



Sec. 706.21  Exclusion of certain positions from reporting requirements.

    (a) Under section 101 of the Act, a report is required of any person 
in the executive branch in a position excepted from the competitive 
service by reason of being of a confidential or policymaker character. 
The exclusion of any position will be effective as of the time the 
Commission files with the Office of Government Ethics a list and 
description of each position for which exclusion is sought, and the 
identity of its current occupant. Such a list must be filed with the 
Office of Government Ethics on or before the date on which such reports 
are due under the Act.
    (b) In the event that the Office of Government Ethics finds that one 
or more positions have been improperly excluded, it will so advise the 
Commission and set a date for the filing of the report.



Sec. 706.22  Information required to be reported--reporting forms.

    Information required to be reported by the Act shall be set forth in 
the manner specified in, and in accordance with the instructions 
contained in, Standard Forms issued by the Office of Personnel 
Management, to be used as follows:
    (a) Standard Form 278--for use by an officer or employee filing:
    (1) An annual report pursuant to section 101 of the Act, or
    (2) A departure report upon termination of employment, pursuant to 
section 101 of the Act;
    (b) Standard Form 278A--for use by:
    (1) An individual assuming a position for which reporting is 
required pursuant to section 201(a) of the Act; or

[[Page 302]]

    (2) An individual whose nomination has been transmitted by the 
President to the Senate, pursuant to section 201(b) of the Act.



Sec. 706.23  Review of reports.

    (a) Financial reports are reviewed by the Commission's designated 
Ethics official or the Director of the Office of Government Ethics, as 
appropriate. Reports are to be reviewed within 60 days after the date of 
their filing or transmittal to the Office of Government Ethics.
    (b) After reviewing a report, the reviewing official is required to:
    (1) State upon the report that the reporting individual is in 
compliance with applicable laws and regulations and to sign the report;
    (2) Notify the reporting individual that additional information is 
required to be submitted and the time by which it must be submitted; or
    (3) Notify the reporting individual that the report indicates 
noncompliance and afford the individual a reasonable opportunity for a 
written or oral response after which the reviewing official reaches an 
opinion whether the individual is in compliance.
    (c) If the reviewing official determines that the reporting 
individual is not in compliance with applicable laws and regulations, 
the reviewing official will notify the individual of that opinion and 
after an opportunity for personal consultation notify the individual of 
the steps that should be taken to assure compliance and the date by 
which such steps should be taken.
    (d) The use of any steps to bring the individual in compliance are 
to be in accordance with regulations issued by the Director of the 
Office of Government Ethics.
    (e) To assist employees in avoiding situations in which they would 
not be in compliance with applicable laws and regulations, the 
designated Commission ethics official is to maintain a list of those 
circumstances or situations that have resulted or may result in 
noncompliance and the lists are to be periodically published and 
furnished to individuals required to file reports under this Act.



Sec. 706.24  Public access to financial disclosure reports.

    (a) Pursuant to section 105(b) of the Act, each report will be made 
available for public inspection within 15 days after the report is 
received by the agency, whether or not the review of the report 
prescribed by section 106 of the Act has been completed.
    (b) Pursuant to section 105(b) of the Act, the following rules are 
applicable to public access to financial reports:
    (1) A financial disclosure report may not be made available to any 
person nor may a copy thereof be provided to any person except upon 
written application by such person stating:
    (i) That person's name, occupation, and address;
    (ii) The name and address of any other person or organization on 
whose behalf the inspection or copy is requested; and
    (iii) That such person is aware that it is unlawful to obtain or use 
a report:
    (A) For any unlawful purpose;
    (B) For any commercial purpose, other than by news and 
communications media for dissemination to the general public;
    (C) For determining or establishing the credit rating of any 
individual; or
    (D) For use, directly or indirectly, in the solicitation of money 
for any political, charitable, or other purpose. Any application for a 
report shall be available to the public during the period in which the 
requested report is available to the public.
    (2) [Reserved]
    (c) Requests for copies of financial disclosure reports of officers 
appointed by the President by and with the advice and consent of the 
Senate, as well as nominees to such offices and designated Commission 
ethics officials, may be directed to the Director of the Office of 
Government Ethics.
    (d) To gain access to or to obtain a copy of a report filed with the 
Commission, an individual should appear in person at the office of the 
General Counsel of the Commission, 624 9th Street, NW., Washington, DC 
20425, during the hours 8:30 a.m. to 4:30 p.m. and complete an 
application form. Requests by mail should contain the information 
described in paragraph (b) of

[[Page 303]]

this section, together with the signature of the requester. Requests 
that do not contain the required information will be returned. Notice of 
the statutory prohibitions on use will be attached to copies of reports 
provided in response to a request otherwise properly filled out.



PART 707_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY U.S. COMMISSION ON CIVIL RIGHTS--Table 
of Contents




Sec.
707.1 Purpose.
707.2 Application.
707.3 Definitions.
707.4 Self-evaluation and remedial measures.
707.5 Notice.
707.6 General prohibitions against discrimination.
707.7 Employment.
707.8 Physical access.
707.9 Access to communications.
707.10 Auxiliary aids.
707.11 Eliminating discriminatory qualifications and selection criteria.
707.12 Compliance procedures.

    Authority: 29 U.S.C. 791 et seq.

    Source: 67 FR 70482, Nov. 22, 2002, unless otherwise noted.



Sec. 707.1  Purpose.

    The purpose of this part is to effectuate 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 disability in 
programs or activities conducted by Executive agencies or the United 
States Postal Service.



Sec. 707.2  Application.

    This part applies to all programs and activities, including 
employment, conducted by the Agency.



Sec. 707.3  Definitions.

    For the purposes of this part, the term--
    (a) Agency means the U.S. Commission on Civil Rights and its State 
Advisory Committees.
    (b) 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, Braille 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, note takers, written 
materials, and other similar services and devices.
    (c) 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 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    (d) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, vehicles, or other real or 
personal property.
    (e) Individual with disabilities 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

[[Page 304]]

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, 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 toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (e)(1) of 
this definition but is treated by the Agency as having such an 
impairment.
    (f) Qualified individual with disabilities 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 disabilities 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; and
    (2) With respect to employment, an individual with disabilities who 
meets the definition set forth in 29 CFR 1614.203, which is made 
applicable to this part by Sec. 707.7.
    (3) With respect to any other Agency program or activity, an 
individual with disabilities who meets the essential eligibility 
requirements for participation in, or receipt of benefits from, that 
program or activity.
    (g) Section 504 means section 504 of the Rehabilitation Act of 1973 
(Public Law 93-112, 87 Stat. 394 (29 U.S.C. 794), as amended through 
1998. As used in this part, section 504 applies only to programs or 
activities conducted by the Agency. The Agency does not operate any 
programs of Federal financial assistance to other entities.



Sec. 707.4  Self-evaluation and remedial measures.

    (a) The Agency shall, before February 16, 1991 evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the Agency shall proceed to 
make the necessary modifications.
    (b) The Agency shall provide an opportunity to interested persons, 
including individuals with disabilities and organizations representing 
individuals with disabilities, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The Agency shall, for at least three years following completion 
of the evaluation required under paragraph (a) of this section, 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. 707.5  Notice.

    (a) The Agency shall make available to all employees, applicants, 
and other interested persons, as appropriate, information regarding the 
provisions of this part and its applicability to the programs or 
activities conducted by the Agency, and such information shall be made 
available to the extent the Staff Director finds necessary to apprise 
such persons of the protections against discrimination assured them by 
section 504 and this part.
    (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.

[[Page 305]]

    (c) The Agency shall take appropriate steps to provide individuals 
with disabilities with information regarding their section 504 rights 
under the Agency's programs or activities.



Sec. 707.6  General prohibitions against discrimination.

    (a) No qualified individual with disabilities shall, on the basis of 
disability, 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, shall 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of disability--
    (i) Deny a qualified individual with disabilities the opportunity to 
participate in or benefit from the aid, benefit(s), or service(s);
    (ii) Afford a qualified individual with disabilities an opportunity 
to participate in or benefit from the aid, benefit(s), or service(s) 
that are not equal to that afforded others;
    (iii) Provide a qualified individual with disabilities with an aid, 
benefit(s), or service(s) that are 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 disabilities or to any class of individuals with 
disabilities than are provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aid, benefits, 
or services that are as effective as those provided to others:
    (v) Deny a qualified individual with disabilities the opportunity to 
participate as a member of planning or advisory boards or committees; or
    (vi) Otherwise limit a qualified individual with disabilities in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit(s), or service(s).
    (2) The Agency shall not deny a qualified individual with 
disabilities 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 shall 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 disabilities to 
discrimination on the basis of disability; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with disabilities.
    (4) The Agency shall not in determining the site or location of a 
facility or activity make selections the purpose or effect of which 
would--
    (i) Exclude individuals with disabilities 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 of a program or activity with respect to individuals with 
disabilities.
    (5) The Agency, in the selection of procurement contractors, shall 
not use criteria that subject qualified individuals with disabilities to 
discrimination on the basis of disability.
    (c) The exclusion of non-disabled persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with disabilities or the exclusion of a specific class of individuals 
with disabilities from a program limited by Federal statute or Executive 
order to a different class of individuals with disabilities 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 disabilities.



Sec. 707.7  Employment.

    No qualified individual with disabilities shall, on the basis of 
disability, 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

[[Page 306]]

the Equal Employment Opportunity Commission in 29 CFR 1614.101 through 
1614.110, shall apply to employment in programs or activities conducted 
by the Agency.



Sec. 707.8  Physical access.

    (a) Discrimination prohibited. Except as otherwise provided in this 
section, no qualified individual with disabilities shall, because the 
Agency's facilities are inaccessible to or unusable by individuals with 
disabilities, 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.
    (b) Existing facilities-program access--(1) Existing facilities 
defined. For the purpose of this section, existing facilities means 
those facilities owned, leased or used through some other arrangement by 
the Agency on March 28, 1990.
    (2) General. The Agency shall operate each program or activity 
conducted in an existing facility so that the program or activity, when 
viewed in its entirety, is readily accessible to and usable by 
individuals with disabilities. This paragraph does not--
    (i) Necessarily require the Agency to make each of its existing 
facilities accessible to and usable by individuals with disabilities
    (ii) 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 this paragraph would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the Staff Director or his or her 
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 disabilities receive the benefits and services of the 
program or activity.
    (3) Methods. (i) 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 individuals 
with disabilities, delivery of services at alternative accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible vehicles, or any other methods that result in making 
its program or activities readily accessible to and usable by 
individuals with disabilities.
    (ii) The Agency is not required to make structural changes in 
existing facilities where other methods are effective in achieving 
compliance with paragraph (b)(2) of this section. The Agency, in making 
alterations to existing buildings to achieve program accessibility, 
shall meet accessibility requirements imposed by the Architectural 
Barriers Act of 1968, 42 U.S.C. 4151 through 4157,
    (iii) 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 
disabilities in the most integrated setting appropriate to the needs of 
qualified individuals with disabilities.
    (4) Time period for compliance. The Agency shall comply with the 
obligations established under this section before April 17, 1990, except 
that where structural changes in facilities are undertaken, such changes 
shall be made before February 16, 1993, but in any event as 
expeditiously as possible.
    (5) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Agency shall develop, before August 16, 1990, a transition plan setting 
forth the steps necessary to complete such changes. The Agency shall 
provide an opportunity to interested persons, including individuals

[[Page 307]]

with disabilities and organizations representing individuals with 
disabilities, 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--
    (i) Identify physical obstacles in the Agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with disabilities;
    (ii) Describe in detail the methods that will be used to make the 
facilities accessible;
    (iii) Specify the schedule for taking the steps necessary to achieve 
compliance with this paragraph and, if the time period of the transition 
plan is longer than 1 year, identify steps that will be taken during 
each year of the transition period; and
    (iv) Indicate the official response for implementation of the plan.
    (6) The Agency shall provide signs at a primary entrance to each of 
its inaccessible facilities, directing users to a 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.
    (c) New purchases, leases, or other arrangements. (1) Any building 
or facility acquired after March 28, 1990, whether by purchase, lease 
(other than lease renewal), or any other arrangement, shall be readily 
accessible to and usable by individuals with disabilities.
    (2) Nothing in this paragraph requires 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 this paragraph would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the Staff Director 
or his or her 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 disabilities receive the 
benefits and services of the program or activity.
    (d) 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 disabilities in 
accordance with the requirements imposed by the Architectural Barriers 
Act of 1968, 42 U.S.C. 4151 through 4157.



Sec. 707.9  Access to communications.

    (a) Discrimination prohibited. Except as otherwise provided in this 
section, no qualified individual with disabilities shall, because the 
Agency's communications are inaccessible to or unusable by individuals 
with disabilities, 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.
    (b) The Agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (c) Specific requirements regarding oral communications--(1) 
Telecommunications devices for deaf persons. (i) The Agency headquarters 
and each regional office shall maintain and reliably answer at least one 
telecommunications device for deaf persons (TDD) or equally effective 
telecommunications device.
    (ii) The Agency shall ensure that all Agency letterhead, forms, and 
other documents listing any Agency telephone number list the appropriate 
TDD numbers.
    (2) Interpreter service. (i) The Agency shall establish a reliable 
system for the provision of qualified interpreters to individuals with 
disabilities for Agency programs or activities. This provision does not 
require the Agency to have an

[[Page 308]]

interpreter on staff, but does require the Agency to be able to provide 
a qualified interpreter on reasonable notice.
    (ii) Notice of the availability of interpreter service shall be 
included in all announcements notifying the public of Agency activities 
to which the public is invited or which it is permitted to attend, 
including but not limited to the Commission's meetings, consultations, 
hearings, press conferences, and State Advisory Committee conferences 
and meetings. This notice shall designate the Agency official(s) and the 
address, telephone and TDD number to call to request interpreter 
services.
    (d) Specific requirements for printed communications. (1) The Agency 
shall establish a system to provide to individuals with disabilities 
appropriate reader or taping service for all Agency publications that 
are available to the public. This provision does not require the Agency 
to have a reader or taper on staff, but does require the Agency to be 
able to provide appropriate reader or taping service within a reasonable 
time and on reasonable notice. The Agency shall effectively notify 
qualified individuals with disabilities of the availability of reader or 
taping services.
    (2) Notice of the availability of reader or taping service shall be 
included in all publications that are available to the public. This 
notice shall designate the Agency official(s) and the address, 
telephone, and TDD number to call to request interpreter services.
    (e) Nothing in this section or Sec. 707.10 requires 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 this section or Sec. 707.10 would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the Staff Director or his or her 
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 paragraph 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 disabilities receive the benefits and services of the 
program or activity.



Sec. 707.10  Auxiliary aids.

    (a) The Agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with disabilities an equal opportunity 
to participate in, and enjoy the benefits of, a program or activity 
conducted by the Agency.
    (b) In determining what type of auxiliary aid is necessary, the 
Agency shall give primary consideration to the requests of the 
individual with disabilities.
    (c) The Agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.



Sec. 707.11  Eliminating discriminatory qualifications and selection 
criteria.

    The Agency shall not make use of any qualification standard, 
eligibility requirement, or selection criterion that excludes particular 
classes of individuals with disabilities from an Agency program or 
activity merely because the persons are disabled, without regard to an 
individual's actual ability to participate. An irrebuttable presumption 
of inability to participate based upon a disability shall be permissible 
only if the condition would, in all instances, prevent an individual 
from meeting the essential eligibility requirements for participating 
in, or receiving the benefits of, the particular program or activity.



Sec. 707.12  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
disability in programs or activities conducted by the Agency.

[[Page 309]]

    (b) The Agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established in 29 U.S.C. 791 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) Responsibility for implementation and operation of this section 
shall be vested in the Office of General Counsel.
    (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, 42 U.S.C. 4151 through 4157, is not readily accessible to and 
usable by individuals with disabilities.
    (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 paragraph (g) of this section. The 
Staff Director may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Staff 
Director or the Staff Director's designee.
    (j) The Agency shall notify the complainant in writing of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the Agency determines that additional information is needed 
from the complainant, it shall have 60 days from the date it receives 
the additional information to make its determination on the appeal.
    (k) The time limits cited in paragraphs (d), (g), (h), and (j) of 
this section may be extended for an individual case when the Staff 
Director determines that there is good cause, based on the particular 
circumstances of that case, for the extension.
    (l) The Agency may delegate its authority for conducting complaint 
investigations to other Federal agencies; however, the authority for 
making the final determination may not be delegated to another Agency.



PART 708_COLLECTION BY SALARY OFFSET FROM INDEBTED CURRENT AND FORMER 
EMPLOYEES--Table of Contents




Sec.
708.1 Purpose and scope.
708.2 Policy.
708.3 Definitions.
708.4 Applicability.
708.5 Notice.
708.6 Petitions for hearing.
708.7 Hearing procedures.
708.8 Written decision.
708.9 Coordinating offset with another Federal agency.
708.10 Procedures for salary offset.
708.11 Refunds.
708.12 Statute of limitations.
708.13 Non-waiver of rights by payments.
708.14 Interest, penalties, and administrative costs.

    Authority: 5 U.S.C. 5514.

    Source: 67 FR 70482, Nov. 22, 2002, unless otherwise noted.



Sec. 708.1  Purpose and scope.

    (a) The regulations in this part provide the procedure pursuant to 5 
U.S.C. 5514 and 5 CFR 550.1101 through 550.1110 for the collection by 
administrative offset of a Federal employee's salary without his or her 
consent to satisfy certain debts owed to the Federal government. This 
procedure applies to all Federal employees who owe debts to the U.S. 
Commission on Civil Rights (Commission). This provision does not apply 
when the employee consents to recovery from his or her current pay 
account.

[[Page 310]]

    (b) This procedure does not apply to debts or claims arising under:
    (1) The Internal Revenue Code (26 U.S.C. 1 et seq.);
    (2) The Social Security Act (42 U.S.C. 301 et seq.);
    (3) The tariff laws of the United States; or
    (4) 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).
    (c) The Commission shall except from salary offset provisions any 
adjustments to pay arising out of an employee's election of coverage or 
a change in coverage under a Federal benefits programs requiring 
periodic payroll deductions from pay, if the amount to be recovered was 
accumulated over four pay periods or less.
    (d) These procedures do not preclude an employee or former employee 
from requesting a waiver of a salary overpayment under 5 U.S.C. 5584 or 
10 U.S.C. 2774 or in any way questioning the amount or validity of the 
debt by submitting a subsequent claim to the General Accounting Office 
(GAO) in accordance with procedures prescribed by the GAO. In addition, 
this procedure does not preclude an employee from requesting a waiver 
pursuant to other statutory provisions applicable to the particular debt 
being collected.



Sec. 708.2  Policy.

    It is the policy of the Commission to apply the procedures in the 
regulations in this part uniformly and consistently in the collection of 
internal debts from its current and former employees.



Sec. 708.3  Definitions.

    For the purposes of the regulations in this part the following 
definitions apply:
    (a) Agency means:
    (1) An Executive agency as defined in 5 U.S.C. 105, including the 
U.S. Postal Service and the U.S. Postal Rate Commission;
    (2) A military department as defined in 5 U.S.C. 102;
    (3) An agency or court in the judicial branch, including a court as 
defined in 28 U.S.C. 610, the District Court for the Northern Mariana 
Islands, and the Judicial panel on Multidistrict Litigation;
    (4) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (5) Other independent establishments that are entities of the 
Federal Government.
    (b) Creditor agency means the agency to which the debt is owed.
    (c) Debt means an amount owed to the United States from sources, 
which include loans insured or guaranteed by the United States and 
amounts due the United States from fees, leases, rents, royalties, 
services, sales of real or personal property, overpayments, penalties, 
damages, interest, fines and forfeitures (except those arising under the 
Uniform Code of Military Justice), and all other similar sources.
    (d) Deputy Staff Director means the Deputy Staff Director of the 
Commission or in his or her absence, or in the event of a vacancy in the 
position or its elimination, the Director of Human Resources.
    (e) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, or in the case of an 
employee not entitled to basic pay, other authorized pay remaining from 
an employee's Federal pay after required deductions for social security, 
Federal, state or local income tax, health insurance premiums, 
retirement contributions, life insurance premiums, Federal employment 
taxes, and any other deductions that are required to be withheld by law.
    (f) Employee means a current employee of an agency, including a 
current member of the Armed Forces or a Reserve of the Armed Forces 
(Reserves).
    (g) Former employee means an employee who is no longer employed with 
the Commission but is currently employed with another Federal agency.
    (h) FCCS means the Federal Claims Collection Standards jointly 
published by the Department of Justice and the General Accounting Office 
at 4 CFR chapter I.
    (i) Hearing official means an individual responsible for conducting 
any hearing with respect to the existence or amount of a debt claimed, 
and who

[[Page 311]]

renders a decision on the basis of such hearing. A hearing official may 
not be under the supervision or control of the Deputy Staff Director of 
the Commission.
    (j) Paying agency means the agency employing the individual who owes 
the debt and is responsible for authorizing the payment of his or her 
current pay.
    (k) Pay interval will normally be the biweekly pay period but may be 
some regularly recurring period of time in which pay is received.
    (l) Retainer pay means the pay above the maximum rate of an 
employee's grade that he or she is allowed to keep in special situations 
rather than having the employee's rate of basic pay reduced.
    (m) Salary offset means an administrative offset to collect a debt 
under 5 U.S.C. 5514 by deduction(s) at one or more officially 
established pay intervals from the current pay account of an employee 
without his or her consent.
    (n) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to an agency as 
permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, or 5 U.S.C. 
8346(b), or any other law.



Sec. 708.4  Applicability.

    The regulations in this part are to be followed when:
    (a) The Commission is owed a debt by an individual who is a current 
employee of the Commission; or
    (b) The Commission is owed a debt by an individual currently 
employed by another Federal agency; or
    (c) The Commission employs an individual who owes a debt to another 
Federal agency.



Sec. 708.5  Notice.

    (a) Deductions shall not be made unless the employee who owes the 
debt has been provided with written notice signed by the Deputy Staff 
Director or in his or her absence, or in the event of a vacancy in that 
position or its elimination, the Director of Human Resources (or the 
U.S. Department of Agriculture, National Finance Center acting on behalf 
of the Commission) of the debt at least 30 days before salary offset 
commences.
    (b) The written notice from the Deputy Staff Director, acting on 
behalf of the Commission, as the creditor agency, shall contain:
    (1) A statement that the debt is owed and an explanation of its 
origin, nature, and amount;
    (2) The agency's intention to collect the debt by deducting from the 
employee's current disposable pay account;
    (3) The amount, frequency, proposed beginning date, and duration of 
the intended deduction(s);
    (4) An explanation of the requirements concerning the current 
interest rate, penalties, and administrative costs, including a 
statement that such charges will be assessed unless excused in 
accordance with the Federal Claims Collections Standards (4 CFR chapter 
I);
    (5) The employee's right to inspect, request, or receive a copy of 
the government records relating to the debt;
    (6) The employee's right to enter into a written repayment schedule 
for the voluntary repayment of the debt in lieu of offset;
    (7) The right to a hearing conducted by an impartial hearing 
official (either an administrative law judge or an official who is not 
under the control of the Commission);
    (8) The method and time period for petitioning for a hearing;
    (9) A statement that the timely filing (i.e., within 15 calendar 
days) of a petition for a hearing will stay the commencement of 
collection proceedings;
    (10) A statement that a final decision on the hearing (if one is 
requested) 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.
    (11) A statement that an employee knowingly submitting false or 
frivolous statements (5 CFR 550.1101), representations, or evidence may 
subject the employee to disciplinary procedures under 5 U.S.C. 7501 et 
seq. and 5 CFR part 752; penalties under the False Claims Act, 31 U.S.C. 
3729-3731; or criminal penalties under 18 U.S.C. 286, 287, 1001, and 
1002;
    (12) A statement of other rights and remedies available to the 
employee

[[Page 312]]

under statutes or regulations governing the program for which the 
collection is being made;
    (13) A statement that an employee will be promptly refunded any 
amount paid or deducted for a debt that is later waived or found not 
valid unless there are applicable contractual or statutory provisions to 
the contrary; and
    (14) The name, address, and phone number of an official who can be 
contacted concerning the indebtedness.



Sec. 708.6  Petitions for hearing.

    (a) Except as provided in paragraph (d) of this section, an employee 
who wants a hearing must file a written petition for a hearing to be 
received by the Deputy Staff Director not later than 15 calendar days 
from the date of receipt of the Notice of Offset. The petition must 
state why the employee believes the determination of the Commission 
concerning the existence or amount of the debt is in error.
    (b) The petition must be signed by the employee and should identify 
and explain with reasonable specificity and brevity the facts, evidence, 
and witnesses that the employee believes support his or her position.
    (c) If the employee objects to the percentage of disposable pay to 
be deducted from each check, the petition should state the objection and 
the reasons for it.
    (d) If the employee files a petition for a hearing later than the 15 
calendar days from the date of receipt of the Notice of Offset, as 
described in paragraph (a) of this section, the hearing official may 
accept the request if the employee can show that there was good cause 
(such as due to circumstances beyond his or her control or because he or 
she was not informed or aware of the time limit) for failing to meet the 
deadline date.
    (e) An employee will not be granted a hearing and will have his or 
her disposable pay offset in accordance with the Deputy Staff Director's 
offset schedule if he or she fails to show good cause why he or she 
failed to file the petition for a hearing within the stated time limits.



Sec. 708.7  Hearing procedures.

    (a) If an employee timely files a petition for a hearing under Sec. 
708.6, the Deputy Staff Director shall select the time, date, and 
location for the hearing.
    (b) The hearing shall be conducted by an impartial hearing official.
    (c) The Commission, as the creditor agency, will have the burden of 
proving the existence of the debt.
    (d) The employee requesting the hearing shall have the burden of 
proof to demonstrate that the existence or amount of the debt is in 
error.



Sec. 708.8  Written decision.

    (a) The hearing official shall issue a written opinion no later than 
sixty (60) days after the filing of the petition for hearing; or no 
longer than sixty (60) days from the proceedings if an extension has 
been granted pursuant to Sec. 708.5(b)(10).
    (b) The written opinion will include: A statement of the facts 
presented to demonstrate the nature and origin of the alleged debt; the 
hearing official's analysis, findings, and conclusions; the amount and 
validity of the debt; and, if applicable, the repayment schedule.



Sec. 708.9  Coordinating offset with another Federal agency.

    (a) The Commission is the creditor agency when the Deputy Staff 
Director determines that an employee of another Federal agency owes a 
delinquent debt to the Commission. The Deputy Staff Director shall, as 
appropriate:
    (1) Arrange for a hearing upon the proper petitioning by the 
employee;
    (2) Certify in writing that the employee of the paying agency owes 
the debt, the amount, and basis of the debt, the date on which payment 
is due, the date the Government's right to collect the debt first 
accrued, and that the Commission's regulations for salary offset have 
been approved by the Office of Personnel Management;
    (3) If the collection must be made in installments, the Commission, 
as the creditor agency, will advise the paying agency of the amount or 
percentage of disposable pay to be collected in each installment and the 
number and the commencement date of the installments;

[[Page 313]]

    (4) Advise the paying agency of the actions taken under 5 U.S.C. 
5514(a) and provide the dates on which action was taken, unless the 
employee has consented to salary offset in writing or signed a statement 
acknowledging receipt of procedures required by law. The written consent 
or acknowledgement must be sent to the paying agency;
    (5) If the employee is in the process of separating, the Commission 
will submit its debt claim to the paying agency as provided in this 
part. The paying agency must certify any amounts already collected, 
notify the employee, and send a copy of the certification of the monies 
already collected and notice of the employee's separation to the 
Commission. If the paying agency is aware that the employee is entitled 
to Civil Service or Foreign Service Retirement and Disability Fund or 
similar payments, it must provide written notification to the agency has 
been rendered in favor of the Commission.
    (6) If the employee has already separated and all payments due from 
the paying agency have been paid, the Assistant Staff Director for 
Management may request, unless otherwise prohibited, that money payable 
to the employee from the Civil Service Retirement and Disability Fund or 
other similar funds be collected by administrative offset. The 
Commission will provide the agency responsible for these payments with a 
properly certified claim.
    (b) The Commission is the paying agency when an employee of this 
agency owes a debt to another Federal agency that is the creditor 
agency.
    (1) Upon receipt of a properly certified debt claim from a creditor 
agency, deductions will be scheduled to begin at the next established 
pay interval.
    (2) The Commission must give the employee written notice that it has 
received a certified debt claim from a creditor agency (including the 
amount), and the date that deductions will be scheduled to begin and the 
amount of the deduction.
    (3) The Commission shall not review the merits of the creditor 
agency's determination of the amount of the certified claim or of its 
validity.
    (4) If the employee transfers to another paying agency after the 
creditor agency has submitted its debt claim but before the debt is 
collected completely, the Commission must certify the total amount 
collected to the creditor agency with notice of the employee's transfer. 
One copy of this certification must be furnished to the employee. The 
creditor agency will submit a properly certified claim to the new paying 
agency before collection can be resumed.
    (5) When the Commission, as a paying agency, receives an incomplete 
debt claim from a creditor agency, it must return the debt claim with a 
notice that procedures under 5 U.S.C. 5514 and this subpart must be 
provided and a properly certified debt claim received before action will 
be taken to collect from the employee's current pay account.



Sec. 708.10  Procedures for salary offset.

    (a) Deductions to liquidate an employee's debt will be by the method 
and in the amount stated in the Assistant Staff Director for 
Management's written notice of intent to collect from the employee's 
current pay, unless alternative arrangements for repayment are made.
    (b) If the employee filed a petition for a hearing with the 
Assistant Staff Director for Management before the expiration of the 
period provided, then deductions will begin after the hearing official 
has provided the employee with a hearing, and a final written decision 
has been rendered in favor of the Commission.
    (c) A debt will be collected in a lump-sum if possible.
    (d) If an employee is financially unable to pay in one lump sum or 
the amount of the debt exceeds 15 percent of disposable pay for an 
officially established pay interval, collection must be made in 
installments. The size of the installment deduction(s) will bear a 
reasonable relationship to the size of the debt and the deduction will 
be established for a period not greater than the anticipated period of 
employment. The deduction for the pay intervals for any period must not 
exceed 15% of disposable pay unless the employee has agreed in writing 
to a deduction of a

[[Page 314]]

greater amount. If possible, the installment payment will be sufficient 
in size and frequency to liquidate the debt in no more than three years.
    (e) Installment payments may be less than 15 percent of disposable 
pay if the Assistant Staff Director for Management determines that the 
15 percent deduction would create an extreme financial hardship.
    (f) Installment payments of less than $25.00 per pay period or 
$50.00 per month, will only be accepted in the most unusual 
circumstances.
    (g) Unliquidated debts may be offset by the paying agency under 31 
U.S.C. 3716 against any financial payment due to a separating employee 
including but not limited to final salary payment, retired pay, or lump 
sum leave, etc. as of the date of separation to the extent necessary to 
liquidate the debt.
    (h) If the debt cannot be liquidated by offset from any final 
payment due a separated employee it may be recovered by the offset in 
accordance with 31 U.S.C. 3716 from any later payments due the former 
employee from the United States.



Sec. 708.11  Refunds.

    (a) The Commission will refund promptly any amounts deducted to 
satisfy debts owned to the Commission when the debt is waived, found not 
owed to the Commission, or when directed by an administrative or 
judicial order; or the creditor agency will promptly return any amounts 
deducted and forwarded by the Commission to satisfy debts owed to the 
creditor agency when the debt is waived, found not owed, or when 
directed by an administrative or judicial order.
    (b) Upon receipt of monies returned in accordance with paragraph (a) 
of this section, the Commission will refund the amount to the current or 
former employee.
    (c) Unless required by law, refunds under this section shall not 
bear interest nor shall liability be conferred to the Commission for 
debt or refunds owed by other creditor agencies.



Sec. 708.12  Statute of limitations.

    If a debt has been outstanding for more than 10 years after the 
agency's right to collect the debt first accrued, the agency may not 
collect by salary offset unless facts material to the government's right 
to collect were not known and could not reasonably have been known by 
the official or officials who were charged with the responsibility for 
discovery and collection of such debts.



Sec. 708.13  Non-waiver of rights by payments.

    An employee's involuntary payment of all or any part of a debt 
collected under the regulations in this part will not be construed as a 
waiver of any rights that employee may have under 5 U.S.C. 5514 or any 
other provision of contract or law unless there are statutory or 
contractual provisions to the contrary.



Sec. 708.14  Interest, penalties, and administrative costs.

    Charges may be assessed for interest, penalties, and administrative 
costs.

[[Page 315]]



              CHAPTER VIII--OFFICE OF PERSONNEL MANAGEMENT




  --------------------------------------------------------------------
Part                                                                Page
801             Voting Rights Program.......................         317

[[Page 317]]



PART 801_VOTING RIGHTS PROGRAM--Table of Contents




                      Subpart A_General Provisions

Sec.
801.101 Definitions.
801.102 Timely filing required.
801.103 Computation of time.
801.104 Words denoting number and gender.

                  Subpart B_Listing on Eligibility List

801.201 Scope.
801.202 Times and places for filing and forms of application.
801.203 Procedures for filing application.
801.204 Qualifications requirements.
801.205 Action on the application.
801.206 Review of notice of ineligibility for listing.
801.207 Certification and publication of eligibility lists.

           Subpart C_Challenges to Listing on Eligibility List

801.301 Scope.
801.302 Basis of challenge.
801.303 Time and place of challenge.
801.304 Form of challenge.
801.305 Rejection and docketing of challenge.
801.306 Summary denial of challenge by hearing officer.
801.307 Notice of hearing.
801.308 Rights and duties of parties.
801.309 Continuance.
801.310 Hearing.
801.311 Powers of hearing officer.
801.312 Witnesses.
801.313 Subpena.
801.314 Evidence.
801.315 Decision.
801.316 Action after challenge is sustained.
801.317 Appeal.

                Subpart D_Removals From Eligibility List

801.401 Scope.
801.402 Bases for removals.
801.403 Procedure for removals determined by examiners.
801.404 Notification of removals.

                       Subpart E_Voting Complaint

801.501 Scope.
801.502 Making a complaint.
801.503 Processing a complaint.

Appendix A to Part 801
Appendix B to Part 801
Appendix C to Part 801
Appendix D to Part 801

    Authority: 5 U.S.C. 1103; secs. 7, 9, 79 Stat. 440, 411 (42 U.S.C. 
1973e, 1973g).

    Source: 30 FR 9859, Aug. 7, 1965, unless otherwise noted.

    Note: Those amendments to appendixes A, B, and D in Part 801, which 
apply to Texas, appearing at 41 FR 16155, Apr. 16, 1976, are also 
carried in Spanish at the end of appendix D.



                      Subpart A_General Provisions



Sec. 801.101  Definitions.

    In this part:
    (a) Act means the Voting Rights Act of 1965, Public Law 89-110, as 
amended by Public Law 94-73, August 6, 1975.
    (b) Applicant means a person who presents himself to an examiner at 
one of the times and places designated by the OPM under Sec. 801.202 
for the purpose of being listed as eligible to vote;
    (c) Applications means the form prescribed by the OPM under the Act 
for use by a person applying for listing on an eligibility list;
    (d) OPM means the U.S. Office of Personnel Management;
    (e) Day means a calendar day;
    (f) Eligibility list means a list of eligible voters or supplements 
to a list of eligible voters, prepared by an examiner under the Act;
    (g) Examiner means a person designated or appointed by the OPM under 
the Act to examine applicants for listing on an eligibility list and to 
prepare and maintain lists of persons eligible to vote in Federal, 
State, or local elections;
    (h) Hearing officer means a person authorized by the OPM to 
adjudicate a challenge to a listing on an eligibility list;
    (i) Political subdivision, vote, and voting have the meanings given 
these terms in the Act; and
    (j) Parties means a challenger, a challenged person, and the 
representative of either.

[30 FR 9059, Aug. 7, 1965, as amended at 41 FR 16155, Apr. 16, 1976]



Sec. 801.102  Timely filing required.

    A document or other paper required to be filed within a time limit 
specified in this part shall be delivered to the office involved before 
the close of business on the last day of the period, or if filed by mail 
be postmarked before midnight of the last day of the period.

[[Page 318]]



Sec. 801.103  Computation of time.

    In computing a period of time prescribed by this part, the day of 
the action or event after 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, Sunday, or legal holiday in the 
State involved, in which event the period runs until the end of the next 
day which is neither a Saturday, Sunday, nor a legal holiday.



Sec. 801.104  Words denoting number and gender.

    In this part:
    (a) Words importing the singular include and apply to several 
persons, parties, or things;
    (b) Words importing the plural include the singular; and
    (c) Words importing the masculine gender include the feminine as 
well.



                  Subpart B_Listing on Eligibility List



Sec. 801.201  Scope.

    This subpart prescribes the times, places, and procedures for 
listing on an eligibility list under the Act.



Sec. 801.202  Times and places for filing and forms of application.

    (a) The times and places designated by the OPM for filing an 
application in each political subdivision, and the forms of application 
prescribed by the OPM, shall be set out in appendix A to this part and 
incorporated in and made a part of this section.
    (b) The OPM shall give notice to the general public of the times and 
places designated under paragraph (a) of this section, to appropriate 
local election officials in the political subdivision, and to the 
attorney general of the State, by publication thereof in the Federal 
Register and by such other means as it considers appropriate.



Sec. 801.203  Procedures for filing application.

    (a) An applicant may obtain an application at the place and during 
the times set out in appendix A for the appropriate political 
subdivision. An application may be completed only at the place where it 
was obtained and shall be submitted by the applicant in person to an 
examiner at that place.
    (b) An examiner shall review the application in the presence of the 
applicant to insure that all questions are answered clearly and 
completely. If all questions are not answered clearly and completely or 
if an applicant is not able personally to complete the application in 
whole or in part because of lack of literacy or otherwise, or has 
difficulty in doing so, an examiner shall orally examine the applicant 
and record the pertinent information on the application or otherwise 
assist the applicant in completing the application.
    (c) After an application is completed, an examiner shall require the 
applicant to take the oath or affirmation prescribed on the application 
and to sign his name or make his mark thereon.



Sec. 801.204  Qualifications requirements.

    The qualifications required for listing, prescribed by the OPM after 
consultation with the Attorney General, for use by an examiner in 
examining an applicant for listing on an eligibility list shall be set 
out in appendix B to this part and incorporated in and made a part of 
this section.



Sec. 801.205  Action on the application.

    At the time of filing the application and in the presence of the 
applicant, the examiner shall review the application and make such 
examination as is necessary to determine whether the applicant has the 
prescribed qualifications. If the applicant has the prescribed 
qualifications, the examiner shall give him a certificate, on the form 
prescribed by the OPM, evidencing his eligibility to vote and enter his 
name on an eligibility list, the form for which is prescribed by the 
OPM. If the applicant does not have the prescribed qualifications, the 
examiner shall give him a notice of ineligibility for listing, on the 
form prescribed by the OPM.



Sec. 801.206  Review of notice of ineligibility for listing.

    An applicant may obtain a review of a notice of ineligibility for 
listing by executing the request for review contained on that notice and 
returning it to the examiner or by filing a written

[[Page 319]]

request, either personally or through a representative, with the 
Examiner (State Supervisor), U.S. Office of Personnel Management, in the 
State involved at the address set out in appendix C to this part and 
incorporated in and made a part of this section. The request shall be 
submitted within 10 days from the date of the notice of ineligibility 
for listing. The request shall set forth the applicant's reason for 
contesting the notice of ineligibility for listing. The Examiner (State 
Supervisor) shall notify the applicant or his representative and the 
examiner concerned of his decision. When the Examiner (State Supervisor) 
finds the applicant has the prescribed qualifications, he shall direct 
the examiner concerned to give the applicant a certificate evidencing 
his eligibility to vote and to enter his name on the eligibility list. 
There is no administrative appeal from the decision of an Examiner 
(State Supervisor).



Sec. 801.207  Certification and publication of eligibility lists.

    An examiner shall certify and transmit an eligibility list at least 
once a month to the office of the appropriate election official, with a 
copy to the Attorney General and the attorney general of the State. The 
list shall contain the name of each eligible voter listed since the last 
list was certified and transmitted. The list shall be made available for 
public inspection beginning on the last business day of the month and in 
any event not later than the 45th day before an election, during normal 
business hours, for one period of 10 consecutive days, at the place 
where the persons listed filed their applications as set out in appendix 
A to this part, except that the list may be made available for public 
inspection in the same political subdivision at a place other than the 
place where the persons listed filed their applications when advance 
notice of this change is posted at the place where the persons listed 
filed their applications.

[30 FR 12392, Sept. 29, 1965]



           Subpart C_Challenges to Listing on Eligibility List



Sec. 801.301  Scope.

    This subpart prescribes the procedure that governs a challenge to a 
listing on an eligibility list under the Act.



Sec. 801.302  Basis of challenge.

    A challenge to a listing on an eligibility list may be made only on 
the basis of fraud or that the challenged person does not have the 
prescribed qualifications.



Sec. 801.303  Time and place of challenge.

    A challenge shall be filed within 10 days after the listing of the 
challenged person is made available for public inspection as provided in 
Sec. 801.207 by delivering or mailing the challenge to the Examiner 
(State Supervisor), U.S. Office of Personnel Management, in the State 
involved at the address set out in appendix C to this part.



Sec. 801.304  Form of challenge.

    (a) A challenge shall be under oath and shall contain:
    (1) The name and address of the OPM office to which it is submitted;
    (2) The date of submission;
    (3) The name and address of the challenger;
    (4) The name and address of his representative, if any;
    (5) The name and address of the challenged person and his 
certificate number as they appear on the eligibility list;
    (6) A written statement setting forth in plain and concise language 
the facts constituting the grounds for challenging the listing of the 
challenged person on the eligibility list;
    (7) Affidavits of at least two persons (one of whom may be the 
challenger) with their addresses, stating that they have personal 
knowledge of the facts that constitute the grounds for challenge and 
setting forth those facts in plain and concise language. Each affidavit 
shall be sworn to before a person authorized to administer oaths; and
    (8) A certification that service of the challenge on the challenged 
person has been made as required by paragraph (b) of this section.

[[Page 320]]

    (b) The challenger shall file his challenge in triplicate and shall 
have a copy of it served on the challenged person. That service may be 
in person or by first-class mail properly addressed with charges 
prepaid.



Sec. 801.305  Rejection and docketing of challenge.

    (a) When a challenge is not timely filed or served or does not meet 
the requirements of Sec. 801.304, it shall not be entertained but shall 
be rejected.
    (b) When a challenge is not rejected under paragraph (a) of this 
section, the hearing officer shall place it on the docket.



Sec. 801.306  Summary denial of challenge by hearing officer.

    If on review of a challenge a hearing officer determines that the 
information, even if true and known at the time of listing, would not 
have disqualified the challenged person, he shall issue a decision 
denying the challenge without further proceeding and notify the parties 
of his reasons for this decision.



Sec. 801.307  Notice of hearing.

    After docketing, and if not denied under Sec. 801.306, the 
challenge shall be set for hearing. The challenger and the challenged 
person shall be sent a notice of the date, time, and place of the 
hearing and advised of the rights and duties of the parties including 
the right to request a subpena. The notice of hearing shall be dated and 
the date of the hearing shall not be less than 5 days from the date of 
that notice. The notice of hearing shall be served on the challenger and 
the challenged person either personally or by mail.



Sec. 801.308  Rights and duties of parties.

    (a) The challenger has the burden of proceeding and proof at the 
hearing and shall appear personally or with a representative to 
prosecute the challenge, except that when a continuance is sought the 
challenger may appear by a representative. If a challenger fails to 
appear personally to prosecute the challenge, the hearing officer shall 
issue a decision denying the challenge or make such other disposition as 
is warranted by the circumstances.
    (b) The challenged person has the right to appear at the hearing 
personally or by or with a representative, and to present witnesses and 
documentary evidence in his behalf.



Sec. 801.309  Continuance.

    A request for a continuance of a hearing shall be filed with the 
hearing officer at the place and on the day of the hearing. The hearing 
officer shall not grant a continuance except under extraordinary 
circumstances.



Sec. 801.310  Hearing.

    A hearing shall be open to the public and held at the time and place 
specified in the notice of hearing. A hearing shall be recorded by an 
official reporter designated by the OPM, under the supervision of the 
hearing officer. A party may obtain a copy of the transcript from the 
official reporter at a rate not in excess of the maximum rate fixed by 
contract between the OPM and the reporter.



Sec. 801.311  Powers of hearing officer.

    In addition to the powers otherwise vested in a hearing officer by 
this subpart, a hearing officer shall have the power to:
    (a) Administer oaths and affirmations;
    (b) Issue and quash subpenas;
    (c) Regulate the course of the hearing;
    (d) Rule on offers of proof;
    (e) Permit a party to withdraw from a hearing on a showing of good 
cause;
    (f) Limit the number of witnesses whose testimony would be 
cumulative;
    (g) Deny a challenge for failure to prosecute;
    (h) Exclude any person from the hearing for contumacious conduct or 
misbehavior that obstructs the hearing; and
    (i) Take any other action in the course of the hearing consistent 
with law that is necessary to carry out the spirit and intent of the 
Act.



Sec. 801.312  Witnesses.

    (a) A witness shall testify under oath or affirmation and shall be 
subject to cross-examination.

[[Page 321]]

    (b) A witness who is summoned and responds is entitled to the same 
witness and mileage fees as are paid for like service in the courts of 
the United States. The party at whose instance the testimony is taken 
shall pay the witness and mileage fees.



Sec. 801.313  Subpena.

    (a) On the request of a party and for good cause shown, a hearing 
officer may issue a subpena for the appearance of a witness or for the 
production of documentary evidence.
    (b) A hearing officer may quash a subpena for good cause shown.
    (c) The party at whose request a subpena is issued is responsible 
for arranging for service. The officer or person making service shall 
show the original subpena to the person served, read the subpena to him 
if he is unable to read, and deliver a copy of the subpena to him.
    (d) When a U.S. Marshal or his deputy serves a subpena, he shall 
evidence the service by his return on the subpena. When someone other 
than a U.S. Marshal or his deputy serves a subpena, the person serving 
the subpena shall make an affidavit, stating the date, time, and the 
manner of service, and shall return the affidavit on, or with, the 
original subpena in accordance with the form thereon. When the U.S. 
Marshal, his deputy, or other person, as appropriate, cannot serve the 
subpena, he shall state his reason for the failure on the original 
subpena. When the person named in the subpena accepts service of the 
subpena in writing, no other evidence of return is necessary. The person 
responsible for serving a subpena shall return the original subpena, 
bearing or accompanied by the required return, affidavit, statement, or 
acceptance of service, to the officer presiding at the hearing at which 
the person subpenaed is required to appear.



Sec. 801.314  Evidence.

    (a) The application of the challenged person is prima facie evidence 
that he has the qualifications that are stated in the application.
    (b) Rules of evidence are not strictly applied but the hearing 
officer shall exclude irrelevant or unduly repetitious evidence.
    (c) Each exhibit of a documentary character shall be submitted to 
the hearing officer, duly marked, and made a part of the record. An 
exhibit does not become evidence unless received in evidence by the 
hearing officer.



Sec. 801.315  Decision.

    The hearing officer who presided at the hearing, unless he has 
become unavailable, shall decide the case on the record. If no hearing 
is held, the hearing officer to whom the challenge was assigned shall 
decide the case on the record. The decision shall be in writing and 
shall state the reasons or basis for the decision. Copies of the 
decision shall be served on the parties. The decision shall be issued 
not more than 15 days after the challenge is docketed under Sec. 
801.305. The record, including the decision, shall be certified as true 
and complete by the hearing officer and forwarded to the Examiner (State 
Supervisor), U.S. Office of Personnel Management in the State involved 
at the address set out in appendix C to this part. It shall be available 
to interested persons at that office.



Sec. 801.316  Action after challenge is sustained.

    When a hearing officer sustains a challenge, he shall, after the 
courts have finally sustained his decision or the time for petitioning 
for a court review of that decision has expired, instruct an examiner to 
remove the name of the challenged person from the eligibility list and 
cancel that person's certificate evidencing his eligibility to vote. The 
examiner shall notify the challenged person, the appropriate election 
official, the Attorney General, and the attorney general of the 
appropriate State of his action.



Sec. 801.317  Appeal.

    There is no administrative appeal from the decision of a hearing 
officer or from any of his rulings. A petition for review of the 
decision of a hearing officer may be filed in court as provided in the 
Act.

[[Page 322]]



                Subpart D_Removals From Eligibility List



Sec. 801.401  Scope.

    The subpart prescribes the bases and procedures for removals from 
eligibility lists under the Act.



Sec. 801.402  Bases for removals.

    An examiner shall remove the name of a person from an eligibility 
list:
    (a) Pursuant to the instruction of a hearing officer under Sec. 
801.316;
    (b) Pursuant to the order of a court having jurisdiction under the 
Act;
    (c) When the examiner determines that the listed person has lost his 
eligibility to vote under State law not inconsistent with the 
Constitution and the laws of the United States and in accordance with 
the instructions concerning loss of eligibility to vote prescribed by 
the OPM after consultation with the Attorney General which shall be set 
out in appendix D to this part and incorporated in and made a part of 
this section.



Sec. 801.403  Procedure for removals determined by examiners.

    An examiner may remove the name of a listed person as authorized by 
Sec. 801.402(c) only after:
    (a) Giving the person a notice of the proposed removal of his name 
stating the reason why the removal is proposed and offering the person 
an opportunity to answer the notice of proposed removal in person or in 
writing or both within ten days after his receipt of that notice; and
    (b) Considering all available evidence concerning the person's loss 
of eligibility to vote, including any timely answer submitted by the 
person.



Sec. 801.404  Notification of removals.

    When an examiner removes the name of a person from an eligibility 
list he shall notify the person, the appropriate election officials, the 
Attorney General, and the attorney general of the State of that removal 
and the reason therefor.



                       Subpart E_Voting Complaint



Sec. 801.501  Scope.

    This subpart prescribes the procedure for filing and processing a 
complaint under the Act that a person was not permitted to vote.



Sec. 801.502  Making a complaint.

    A person who has been listed on an eligibility list or registered by 
an appropriate election official and who is eligible to vote but has not 
been permitted to vote may make a complaint regarding that denial to an 
examiner for the political subdivision where the denial occurred. The 
complaint may be either oral or in writing and must be made within 48 
hours after the closing of the polls.



Sec. 801.503  Processing a complaint.

    The examiner to whom a complaint is made shall promptly ascertain 
whether the complaint is well founded. If the examiner determines the 
complaint is not well founded he shall notify the person who complained 
of his determination and take no further action on the complaint. If the 
examiner determines that the complaint is well founded the examiner 
shall notify the person and the Attorney General of his determination 
and of the reason for that determination and furnish the Attorney 
General with any papers or evidence relating to the complaint.

                         Appendix A to Part 801

    This appendix sets out the dates, times, and places designated by 
the OPM for filing an application in each political subdivision, and 
sets out the forms of application prescribed by the OPM.

                   Dates, Times, and Places for Filing

    Offices at which applications may be filed will be open in each 
State in the county or parish and at the place set forth in this 
appendix beginning on the date specified and continuing thereafter until 
a closing date is given. Each office will be open Monday through 
Saturday (except on a legal holiday) between the hours of 8:30 a.m. and 
4:30 p.m., except that the OPM may change the hours and days on which 
any office will be open for filing applications by posting advance 
notice of the change at the place set forth in this appendix.

[[Page 323]]

                                 Alabama

                County; Place for filing; Beginning date

    Autauga; (1) Prattville--U.S. Post Office; November 8, 1965; (2) 
Marbury--building adjacent to U.S. Post Office, intersection of Main 
Street and State Highway 143; February 26, 1966.
    Barbour; Holiday Inn, Room 101, Barbour St. at Riverside Drive, 
Eufaula, Alabama, 36027, (205) 687-7903.
    Bullock; Union Springs--U.S. Post Office, 108 E. Hardaway Street; 
November 7, 1978.
    Chambers; Lafayette--Examiners Office, Room 218, FHA Office, County 
Building, 18 Alabama Avenue E.; July 30, 1984.\1/8\
    Choctaw; Butler--Post Office; May 31, 1966.
    Conecuh; Evergreen--Holiday Inn, Room 108, Interstate 68 and Highway 
83; September 2, 1980.
    Dallas; (1) Selma--Federal Building; August 10, 1965; (2) Orrville--
U.S. Post Office, State Highway 22; February 26, 1966.
    Elmore; (1) Wetumpka--U.S. Post Office; November 8, 1965; (2) 
Eclectic--trailer at U.S. Post Office; February 26, 1966; (3) Elmore--
trailer at U.S. Post Office; February 26, 1966.
    Greene; (1) Eutaw--U.S. Post Office; November 8, 1965; (2) Boligee--
trailer at U.S. Post Office; March 8, 1966.
    Grenada; Grenada--Post Office Building; July 22, 1966.
    Hale; (1) Greensboro--Post Office Building; August 10, 1965; (2) 
Moundville--Tidmore Building; February 26, 1966.
    Jefferson; (1) Bessemer--Post Office Building, North 19th Street, 
January 24, 1966; (2) Birmingham--Post Office and Courthouse Building, 
18th at 5th Avenue, North; January 24, 1966; (3) Fairfield--4412 Gary 
Avenue; January 24, 1966; (4) North Birmingham--Post Office Building; 
2003 41st Avenue (Sayreton), Birmingham; February 14, 1966; (5) 
Powderly--Library Building, Birmingham Baptist College, 630 Ishkooda 
Road, Birmingham; February 14, 1966; (6) Wylam--trailer at Post Office, 
4221 7th Avenue (Wylam), Birmingham; February 21, 1966; (7) Irondale--
7949-A Crestwood Boulevard; February 26, 1966; (8) Homewood--1820 28th 
Avenue; February 26, 1966; (9) Tarant--1322 Main Street; March 18, 1966.
    Lowndes; (1) Fort Deposit--Post Office Building; August 10, 1965; 
(2) Hayneville--trailer at U.S. Post Office; January 3, 1966.
    Madison; (1) Canton--285 Peace Street; August 10, 1965; (2) Flora--
Segrist Building opposite post office; July 20, 1966.
    Marengo; (1) Demopolis--Post Office Building; August 10, 1965; (2) 
Putnam--trailer adjacent to Post Office; State Highway 69; March 18, 
1966.
    Monroe; Room 112, Monroe Motor Court South, Highway 21, Monroeville, 
Alabama. August 31, 1984.
    Montgomery; (1) Montgomery--Post Office and Courthouse Building, 
corner of Church, Lee, and Moulton Streets, Rooms 332, 334, 336; October 
6, 1965, to November 6, 1969; (2) Montgomery--Aronov Building, 474 South 
Court Street, Room 132; November 7, 1969; (3) Mount Meigs--trailer at 
U.S. Post Office, intersection of U.S. Highway 80 and Pike Road; 
February 26, 1966.
    Perry; (1) Marion--Post Office Building, Room 3; August 20, 1965; 
(2) Uniontown--trailer at corner of West and Front Streets; March 5, 
1966.
    Pickens; Carrollton--U.S. Post Office, Room 200, Courthouse Square, 
Highway 86; September 5, 1978.
    Russell; Phoenix City--U.S. Post Office, 1310 Ninth Avenue; 
September 26, 1978.
    Sumter; Livingston--Post Office; May 3, 1966.
    Wilcox; (1) Camden--Federal Building, Room 202-204; August 20, 1965; 
(2) Alberta--trailer at intersection of State Highway 5 and County 
Highway 29; March 5, 1966; (3) Pine Apple--trailer at U.S. Post Office, 
County Highway 59; March 5, 1966.

                                 Arizona

                County; Place for filing; Beginning date.

    Apache; Window Rock Motor Inn, P.O. Box 1687, Window Rock, Arizona; 
October 31, 1986.
    Navajo; Holiday Inn, P.O. Box 307, Kayenta, Arizona; October 31, 
1986.
    Yuma; U.S. Border Station, Highway 95, International Borderline, San 
Luis, Arizona, 85349; (602) 627-2016; February 26, 1991.

                               California

    County; Place for filing; Beginning date
    Alameda; Oakland-U.S. Attorneys Office, Oakland Branch, 1301 Clay 
Street, Suite 3405, Oakland, California, 94612; (510) 637-3784 and (510) 
637-3748; March 23, 1996.

                                 Georgia

                County; Place for filing; Beginning date

    Baker; Newton--U.S. Post Office Building; Nov. 5, 1968.
    Baldwin; ASCS, Post Office Building, 110 Handcock Street, Room 206, 
Milledgeville, Georgia; Sept. 21, 1984.
    Brooks; Georgian Motel, room 8, 803 East Screven Street, Quitman, GA 
31643; (912) 263-9306 or 263-9307, July 17, 1990.
    Bulloch; Statesboro--Federal Building, Conference Room 208, 52 North 
Main Street; August 5, 1980.
    Burke; Waynesboro-U.S. Post Office, 721 Liberty Street, Room 204; 
November 2, 1982.
    Butts; (1) Jackson--Daughty Foundation, 221 College Street; 
September 4, 1982; (2) Flovilla--Flovilla Community Center, Collier 
Street; September 4, 1982; (3) Jenkinsburg--Cleveland BBQ Restaurant 
Building, Corner of Highway 42 and High Falls Road; September 4, 1982.

[[Page 324]]

    Calhoun; Morgan--Soil Conservation Service, Main Street, P.O. Box 
113; August 5, 1980.
    Chattahoochee; U.S. Post Office Lumpkin Highway, Cusseta, Georgia; 
Sept. 21, 1984.
    Early; Blakely--Qual Motel, Room 26, U.S. 27 South; August 5, 1980.
    Hancock; Sparta--Post Office Building, Broad Street; November 8, 
1966.
    Jefferson; Post Office Building Room 4, 131 W. Broad Street, 
Louisville, Georgia; Sept. 21, 1984.
    Johnson; Wrightsville--U.S. Post Office, Basement Office 1, 151 
South Marcus; August 5, 1980.
    Lee; (1) Leesburg--Farmers Exchange Building, Second Floor; April 3, 
1967, through April 30, 1969; (2) Leesburg--U.S. Post Office, 
intersection of State Highway 32 and U.S. Highway 19; May 1, 1969.
    McIntosh; Best Western, Swiss Inn, room 115, Highway 251 and 
Interstate 95, Darien, Georgia 31304; (912) 437-4418 or 4421; July 21, 
1992.
    Meriweather; Greenville--U.S. Department of Agriculture, 
Agricultural Stabilization Conservation Service Office, Williams Street; 
August 10, 1976.
    Mitchell; Camilla--FHA District Office Conference Room, Building 
10A, Broad Street; August 5, 1980.
    Peach; Fort Valley--U.S. Post Office Building; 300 West Church 
Street; November 7, 1972.
    Pike; ASCS, Pike County Agriculture Building, Gwyn Street, Zebulon, 
Georgia; Sept. 21, 1984.
    Randolph, Travelers Mini Lodge, Room 2, 949 Blakely Street, 
Cuthbert, Georgia, 31740; (912) 732-5806 or 5807; August 11, 1992.
    Screven; Sylvania--Post Office Building, Main and East Telephone 
Streets; April 3, 1967.
    Stewart; Lumpkin--U.S. Department of Agriculture, Agricultural 
Stabilization Conservation Service Office, Meeting Room, Court House, 
Second Floor; August 10, 1976.
    Sumter; Americus--Federal Building and Court House, Basement 
Conference Room 128, East Forsyth Street; August 5, 1980.
    Talbot--Buice Motel, Room 2, Washington St., Talbotton, Georgia 
31827, August 9, 1988.
    Taliaferro; Crawfordville--Post Office; November 5, 1968.
    Telfair; McRae--Postmasters Office, U.S. Post Office, 211 South 
Second Avenue; August 5, 1980.
    Terrell; Dawson--Post Office Building, Stonewall and Lee Streets; 
April 3, 1967.
    Tift; Tifton--FHA, Conference Room 306, Tifton County Administrative 
Building, 225 Tift Avenue; August 5, 1980.
    Twiggs; Jeffersonville--County Office Building; State Highway 96; 
September 3, 1974.
    Worth; ASCS, Worth County ASCS Building, 501 N. Henderson, 
Sylvester, Georgia; Sept. 21, 1984.

                                Louisiana

                Parish; Place for filing; Beginning date

    Bossier; (1) Benton--trailer at Post Office; April 3, 1967; (2) 
Bossier City--Lodge Hall, 1708 Scott Street; April 5, 1967 through March 
17, 1969; (3) Bossier City--Post Office, 150 Benton Road, March 18, 
1969.
    Caddo; (1) Shreveport--Post Office and Courthouse Building, 424 
Texas Street; April 3, 1967; (2) Shreveport--Terry Building, 2643 Cooper 
Road; April 3, 1967; (3) Shreveport; Hollywood Baptist Church; 5305 
Roberts Street; April 3, 1967.
    De Soto; Mansfield--trailer, at Post Office; April 3, 1967.
    East Carroll; (1) Lake Providence--Post Office Building; August 10, 
1965; (2) Sondheimer--trailer at Post Office Building; February 14, 
1966; (3) Lake Providence--ASCS Office, 205 North Hood; October 19, 
1979.
    East Feliciana; (1) Clinton--Kline Building, St. Helena Street; 
August 10, 1965, to February 8, 1966; (2) Clinton--Trailer at U.S. Post 
Office; February 19, 1966; (3) Jackson--Trailer parked on Post Office 
grounds; February 14, 1966; (4) Slaughter--Post Office Building; 
February 14, 1966.
    Madison; Tallulah--Post Office; August 13, 1966.
    Ouachita; (1) Monroe--Post Office Building, Room 301; August 20, 
1965; (2) West Monroe--I. B. Haynes Building, Cypress and Young Streets, 
February 14, 1966.
    Plaquemines; (1) Buras--Post Office Building, August 10, 1965, 
through November 17, 1965, reopened August 31, 1967; (2) Belle Chasse--
Post Office Building; November 18, 1965; (3) Belle Chasse--US Naval Air 
Station, Administration Building, Room 46, Office of the Senior Chief of 
Command; October 19, 1979.
    Sabine; Many--U.S. Post Office Building; 525 San Antonia Avenue; 
September 27, 1974.
    St. Helena; Greensburg--(1) Trailer at Post Office; College and Main 
Streets; August 19, 1972; (2) ASCS Office, Burrell Carter Building, 
Street Floor, South Main Street; October 19, 1979.
    St. Landry; Opelousas--Chattau Motor Inn, 400 East Landry, the Bayou 
Room; December 5, 1979.
    West Feliciana; (1) Saint Francisville--trailer at Post Office; 
November 3, 1965, through January 7, 1966; (2) Saint Francisville--Post 
Office Building; January 8, 1966; (3) Weyanoke--trailer located on State 
Highway 66 approximately 0.3 mile South of Weyanoke; February 14, 1966.

                               Mississippi

                County; Place for filing; Beginning date

Adams; Prentiss Inn, U.S. 61 S, Natchez, Mississippi 39121; (601) 442-
7524/25; September 17, 1991.

[[Page 325]]

    Amite; (1) Liberty--Walsh Building, Main Street, second floor; April 
3, 1967; (2) Gloster--Ivey Building, First Street; July 29, 1967.
    Benton; Ashland--Post Office Building; October 1, 1965.
    Bolivar; Cleveland--Post Office Building; October 1, 1965.
    Carroll; (1) Carrollton--Post Office Building, Main Street, January 
4, 1966, through March 22, 1968; (2) North Carollton--Van Meter Lumber 
Co. Building, George Street, March 23, 1968.
    Chickasaw; U.S. Office of Personnel Management, 75 Spring Street SW, 
Room 905, Atlanta, Georgia, 30303; 1 (888) 496-9455; August 3, 1999.
    Claiborne; (1) Port Gibson--McFatters Drug Store, Second Floor, 618 
Main Street; April 16, 1966, through October 9, 1969; (2) Port Gibson--
Federal Building, Room 111; October 10, 1969.
    Clay; (1) West Point--Post Office Building; October 1, 1965; (2) 
Pheba--rear of Champion Grocery Store; July 21, 1967.
    Coahoma; Clarksdale--Post Office Building; October 1, 1965.
    Copiah; Hazelhurst--W.S. Henley Building, 122 South Lowe Street; 
December 13, 1983.
    Covington; Collins--McLauren Building, FHA Conference Room; August 
10, 1979.
    De Soto; (1) Walls--U.S. Post Office; November 8, 1965, through 
January 4, 1966; (2) Hernando--U.S. Post Office; January 5, 1966; (3) 
Olive Branch--second floor above Post Office; July 22, 1967.
    Forrest; (1) Hattiesburg--U.S. Courthouse, corner of Pine and 
Forrest Streets, Room 6; June 8, 1967; (2) Petal--108 Ninth Avenue; 
September 16, 1967.
    Franklin; Meadville--Old Halford Building, Highway 84 East, one 
block from city square; April 3, 1967.
    Greene; Leakesville--FHA Conference Room, New Bank Annex, Main and 
Lafayette Street; August 10, 1979.
    Grenada; (1) Grenada--Post Office Building; July 22, 1966, through 
August 7, 1966; (2) Grenada--639 Union Street; August 8, 1966, through 
October 9, 1969; (3) Grenada--U.S. Post Office, basement, October 10, 
1969; (4) Tie Plant--trailer at site of Horseshoe Store two blocks west 
of Tie Plant School on dirt road; September 9, 1966.
    Hinds; (1) Jackson--301 Building, 301 North Lamar Street; November 
8, 1965, through January 2, 1966; (2) Jackson--Post Office Building, 245 
East Capitol Street; January 3, 1966; (3) Jackson--848 Lynch Street; 
June 22, 1966; (4) Raymond--U.S. Post Office; November 8, 1965.
    Holmes; (1) Lexington--U.S. Post Office; November 8, 1965; (2) 
Cruger--U.S. Post Office; July 29, 1967.
    Humphreys; (1) Belzoni--Post Office Building; October 1, 1965; (2) 
Louise--Post Office Building; June 21, 1966; (3) Isola--trailer at Post 
Office, August 23, 1971.
    Issaquena; Mayersville--trailer at Post Office; June 15, 1967.
    Jasper; Bay Springs--trailer at New Post Office; April 16, 1966.
    Jefferson; Fayette--Ball Drug Store Building, Main Street; November 
8, 1965.
    Jefferson Davis; (1) Prentiss--Magnolia Courts, intersection of U.S. 
Highway 84 and State Highway 42, Units 21 through 24; August 25, 1965, 
through August 26, 1965; (2) Prentiss--Post Office Building; August 27, 
1965.
    Jones; (1) Laurel--Federal Building, Room B-8; August 20, 1965; (2) 
Ellisville--102 Jasmine Street; September 16, 1967.
    Kemper; DeKalb--U.S. Post Office; Lobby; Seventh Street and Eighth 
Avenue; November 4, 1974.
    Leake; U.S. Office of Personnel Management, 75 Spring Street SW, 
Room 905, Atlanta, Georgia 30303; 1 (888) 496-9455; August 3, 1999.
    Leflore; (1) Greenwood--Post Office Building; August 10, 1965; (2) 
Minter City--trailer on lot on northwest side of Post Office; June 6, 
1967.
    Lowndes; Columbus--Ramada Inn, Room 153, Highway 45 North; August 
22, 1983.
    Madison; Canton--285 Peace Street; August 10, 1965.
    Marshall; Holly Springs--Post Office Building; August 8, 1967.
    Monroe; Sheliane Motel, Room 44, Highway 45 N, Aberdeen, 
Mississippi, 39730; (601) 369-2192/2193; September 17, 1991.
    Neshoba; Philadelphia--U.S. Post Office; November 8, 1965.
    Newton; (1) Newton--Post Office Building; January 4, 1966; (2) 
Decatur--building on Fourth Avenue across street from U.S. Post Office; 
July 29, 1967.
    Noxubee; (1) Macon--Post Office Building, Basement, Room 1; April 
16, 1966; (2) Brooksville--Jourdan Building, Front Street; July 29, 
1967.
    Oktibbeha; Starkville--Post Office Building, 302 University Drive; 
April 3, 1967.
    Pearl River; Picayune--Community Recreation Center; Library; Rosa 
and Beech Streets; June 8, 1974.
    Quitman; Marks--Corp of Engineers, Rogers Road; October 29, 1980.
    Rankin; (1) Brandon--Rankin Building, intersection of U.S. Highway 
80 and State Highway 18; April 16, 1966, through August 4, 1966; (2) 
Brandon--Nettles Drug Store Building, East Government Street; August 5, 
1966 through January 31, 1971; (3) Brandon--280 Government Street; 
February 1, 1971.
    Scott; Best Western, room 130, Interstate 20 and Highway 251, 
Forest, Mississippi, 39074; (601) 469-4031 or 3950; May 18, 1993.
    Sharkey; Rolling Fork--102 Elm Street; June 14, 1967.

[[Page 326]]

    Simpson; (1) Mendenhall--Post Office Building; January 4, 1966; (2) 
Magee--Post Office Building, Ninth Avenue (between Eighth and Ninth 
Streets); January 10, 1966.
    Sunflower; (1) Indianola-Post Office Building; May 2, 1967; (2) 
Ruleville-U.S. Post Office, 120 South Ruby Avenue; June 16, 1983.
    Tallahatchie; (1) Charleston--103 Market Street; August 23, 1971; 
(2) Sumner--Abbey Building, East Court Square; August 23, 1971.
    Tunica; Tunica--Department of Agriculture Building, Agricultural 
Conservation and Stabilization Service; South Side, Court Square; 
November 3, 1975.
    Warren; Vicksburg--Post Office and Courthouse Building, Crawford and 
Monroe Streets; January 4, 1966.
    Washington; Greenville--Room 204A Federal Building, Main Street and 
Poplar Street; August 8, 1983.
    Wilkinson; (1) Woodville--Post Office Building; August 8, 1967, to 
August 24, 1967; (2) Woodville--Odd Fellows Building; August 24, 1967.
    Winston; Louisville--Post Office Building; Basement, Room 6; April 
16, 1966.
    Yazoo; Yazoo City, 100 South Main Street; November 2, 1971.

                               New Mexico

                County; Place for filing; Beginning date.

    Chavez; Federal Building, 5th and Richardson Street, Roswell, New 
Mexico; December 17, 1984.
    Cibola; U.S. Forest Service, Mt. Taylor Ranger District, Cibola 
National Forest, 201 Roosevelt, Grants, New Mexico; December 17, 1984.
    Curry; Main Post Office, 417 Gidding, Room 203, Clovis, New Mexico; 
December 17, 1984.
    McKinley; Bureau of Indian Affairs, Eastern Navajo Agency, P.O. Box 
328, Crowpoint, New Mexico (25 miles north of Thoreau, 1 mile west of 
State Road 57); Bureau of Indian Affairs, Navajo Area Office, Federal 
Building, 3rd and Hill Streets, Gallup, New Mexico; December 17, 1984.
    Otero; U.S. Forest Service, Lincoln National Forest, Federal 
Building, 11th and New York Streets, Alamogordo, New Mexico; December 
17, 1984.
    Sandoval; Mobile unit on parking lot behind U.S. Post Office, Camino 
del Pueblo Road, Bernalillo, New Mexico; U.S. Forest Service, Cuba 
Ranger District, San Fe National Forest, State Highway 126 and South 
Main, Cuba, New Mexico. December 17, 1984.

                                New York

                County; Place for filing; Beginning date

    Bronx, Kings, and New York Counties, New York; 26 Federal Plaza, 
Room 29108, New York, New York.

                             North Carolina

                County; Place for filing; Beginning date

    Edgecombe; Tarboro--Room B3, U.S. Post Office, 525 Main Street, 
Tarboro, North Carolina; May 4, 1984.

                             South Carolina

                County; Place for filing; Beginning date

    Bamberg; Room 6, Farmers Home Administration, J. Carl Kershe 
Agriculture Building, Calhoun Street, Bamberg, South Carolina. October 
10, 1984.
    Calhoun; Room 5, 2nd Floor, 111 Harry C. Raysor Drive, St. Mathews, 
South Carolina. September 28, 1984.
    Chester; Chester Motor Lodge, Room 161, West End St. at By-pass, 
Chester, SC 29706, (803) 385-5511.
    Clarendon; Manning--Federal Building; November 8, 1965.
    Colleton; Soil Conservation Service, Room 203, 119 Benson Street, 
Walterboro, South Carolina. October 10, 1984.
    Darlington; Darlington--U.S. Post Office, 201 Pearl Street; November 
7, 1978.
    Dorchester; St. George--U.S. Post Office; November 8, 1965.
    Hampton; Farmers Home Administration, 1st Floor, 1003 Elm Street, 
Hampton, South Carolina. October 10, 1984.
    Marion; Marion--U.S. Post Office, 201 South Main Street, Conference 
Room; June 27, 1978.
    Richland; Room 1466, Strom Thurmond FOB, 1835 Assembly Street, 
Columbia, South Carolina. September 28, 1984.
    Williamsburg; ASCS Service Center, 208 Short Street, Kingstree, 
South Carolina. September 28, 1984.

                                  Texas

                County; Place for filing; Beginning date

    Atascosa; Pleasanton--Office of USDA, 803 North Bryant; October 29, 
1980.
    Bee; Beeville--Agriculture Plant and Animal Inspection Service; 
Basement, U.S. Post Office, 111 N. St. Mary's Street; November 2, 1976.
    Crockett; Ozona--Agricultural Stabilization and Conservation Office, 
801 Avenue E; August 12, 1978.
    Dallas; Dallas--OPM, Room 6B3, 1100 Commerce Street, Dallas, Texas, 
April 4, 1984.
    El Paso; El Paso--2211 East Missouri Avenue, Suite N300; November 7, 
1978.
    Fort Bend; Richmond--Agricultural Stabilization Conservation Office; 
May 1, 1976.
    Frio; Pearsall--Federal Building, 411 East Colorado Avenue; November 
2, 1976.
    Galveston; 5914 Seawall Boulevard, Galveston, Texas 77551, (409) 
740-1261; December 9, 1996.

[[Page 327]]

    Hidalgo--101 East 14th (West Entrance), Mission, Texas, 78572, (512) 
585-8380, November 8, 1988.
    Jefferson; 1610 I-10 South, Beaumont, Texas 77707, (409) 842-0037; 
December 9, 1996.
    La Salle; Cotulla--U.S. Border Patrol Station, Federal Building, 
North Main Street; November 2, 1976.
    Medina; Hondo--Agricultural Stabilization Conservation Office; 1703 
Avenue K; May 1, 1976.
    Reeves; Pecos--U.S. Post Office, U.S. Attorneys Office, Room 301; 
May 6, 1978.
    Uvalde; Uvalde--Agricultural Stabilization Conservation Office; 119 
West South Street; May 1, 1976.
    Wilson; Floresville--Agricultural Stabilization Conservation Office; 
May 1, 1976.

                          Forms of Application

                                 alabama

                                  Front

                                                           Form approved
                                               Budget Bureau No. 50-R359

      Application To Be Listed Under the Voting Rights Act of 1966

 State of Alabama County of_____________________________________________
Instructions to the Applicant: Please fill out this side of this form. 
If you need help in answering any question, the Examiner will help you.
    1. Name ------------ (First)------------ (Middle) -------------- 
(Last)
    2. Age ----------
    3. Address ------------ (RFD or Street Number) ---------- (Street) 
---------- (City or Town) ---------- (State)
    4. How long have you lived in Alabama?
5. How long have you lived at the above address?________________________
    6. What is your precinct? ------ or ward? ------
    7. Are you now (1) on active duty in the Armed Forces of the United 
States or the Alabama National Guard, (2) an employee of the United 
States or the State of Alabama, or (3) a seaman or college student? ----
-- [squ] Yes [squ] No
    8. (a) Are you now registered to vote in Alabama? ------ [squ] Yes 
[squ] No
    (b) Are you now listed under the Voting Rights Act? ------ [squ] Yes 
[squ] No
    9. Are you a citizen of the United States and of the State of 
Alabama? ------ [squ] Yes [squ] No
 Former Address_________________________________________________________
    10. Have you ever been convicted of a crime other than a traffic 
violation? ------ [squ] Yes [squ] No
    11. Have you ever been declared legally insane by a court? ------ 
[squ] Yes [squ] No
Any willful false statement on this application is a Federal crime 
punishable by fine or imprisonment.

                Stop Here. Take the Form to the Examiner

    I do solemnly swear (or affirm) that the information I have provided 
is true and correct to the best of my knowledge, information, and 
belief. I do further personally swear (or affirm) that I will support 
and defend the Constitution of the United States and the Constitution of 
the State of Alabama; and that I do not believe in nor am I affiliated 
with any group or party which advocated or advocates the overthrow of 
the Government of the United States or of the State of Alabama by 
unlawful means.
 Signature (or mark) of Applicant_______________________________________
 Sworn to (or affirmed) and subscribed before me on this date___________
 Examiner_______________________________________________________________
                                     U.S. Office of Personnel Management
                                                          CSC Form 805-A
                                                    [dagger] August 1965

                                  Back

             Do not write on this side--for use by examiner

                      Additional Information Items

2. If applicant shows his age to be under 21, write in his date of birth
    4. If applicant shows that he has not lived in Alabama for one year, 
will he have lived in Alabama for one year by the date of the next 
election? ------ [squ] Yes [squ] No
If yes, write in the date residence began_______________________________
------------
Former Address__________________________________________________________
    5. If applicant shows that he has not lived at his present address 
for six months, will he by the date of the next election have:
    Lived in the same county for six months? ------ [squ] Yes [squ] No
If yes, write in the date residence began_______________________________
--------------------
Former Address__________________________________________________________
    Lived in his precinct or ward for three months? ------ [squ] Yes 
[squ] No
If yes, write in the date residence began_______________________________
----------------
Former Address__________________________________________________________
    Lived in the same city or town for three months? ------ [squ] Yes 
[squ] No
If yes, write in the date residence began_______________________________
----------------
    7. If applicant answers yes, is his residence in Alabama and in his 
county for temporary purposes only? ------ [squ] Yes [squ] No
If yes, write in his occupation_________________________________________

8. (a) If applicant shows that he is now registered to vote in Alabama, 
write in the county where he is registered______________________________
    (b) If applicant shows that he is now listed under the Voting Rights 
Act, write in the county where he is listed ------------ and certificate 
number if available ------------.
    10. If applicant answers yes, name the crime -------------------- 
Where and when

[[Page 328]]

convicted? -------------------- Was the conviction for a disqualifying 
crime? --------
[squ] Yes [squ] No
    If a disqualifying crime, has applicant been pardoned with 
restoration of his right to vote? ------ [squ] Yes [squ] No
    If so pardoned, how and when?[llddash][llddash][llddash][llddash]
    11. If applicant answers yes, has he subsequently been declared 
legally sane or competent by a court? ------ [squ] Yes [squ] No
    If yes, when and by what court?[llddash][llddash]
    Certificate of Eligibility Issued-No. ---------- Notification of 
Ineligibility Issue-No. ----------

                                 georgia

                                  Front

      Application To Be Listed Under the Voting Rights Act of 1965

                                                           Form approved
                                               Budget Bureau No. 50-R359
    State of Georgia County of[llddash][llddash][llddash][llddash]
Instructions to the Applicant: Please fill out this side of this form. 
If you need help in answering any question, the Examiner will help you.
    1. Name ---------- (First) -------- (Middle) ------------ (Last)
    2. Age ----------
    3. Address ------------ (RFD or Street Number) ---------- (Street) 
---------- (City or Town) ---------- (State)
    4. How long have you lived in Georgia?[llddash][llddash]
5. How long have you lived at the above address?________________________
6. What is your election district?______________________________________
    7. Are you now on active duty in the Armed Forces of the United 
States? ------ [squ] Yes [squ] No
    8. (a) Are you now registered to vote in Georgia? ------ [squ] Yes 
[squ] No
    (b) Are you now listed under the Voting Rights Act? ------ [squ] Yes 
[squ] No
    9. Are you a citizen of the United States and of the State of 
Georgia? ------ [squ] Yes [squ] No
    10. Have you ever been convicted of a crime other than a traffic 
violation? ------ [squ] Yes [squ] No
    11. Have you ever been declared legally insane or idiotic by a 
court? ------ [squ] Yes [squ] No
Any willful false statement on this application is a Federal crime 
punishable by fine or imprisonment.

                Stop Here. Take the Form to the Examiner

    I do solemnly swear (or affirm) that I am not registered to vote 
under any other name; that I have correctly answered the questions 
appearing elsewhere on this application; that the information contained 
elsewhere on this application is true.
 Signature (or mark) of 
applicant[llddash][llddash][llddash][llddash][llddash][llddash]
 Sworn to (or affirmed) and subscribed before me this 
date[llddash][llddash][llddash][llddash][llddash][llddash][llddash]
 Examiner[llddash][llddash][llddash][llddash][llddash][llddash][llddash]
                                     U.S. Office of Personnel Management
                                                          CSC Form 805-G
                                                    [dagger] August 1965

                                  Back

           Do not write on this side--for use by the Examiner

                      Additional Information Items

    2. If applicant shows his age to be under 18, will he be 18 by the 
date of the next election? ------ [squ] Yes [squ] No
Write in his date of birth______________________________________________
    4. If applicant shows that he has not lived in Georgia for one year, 
will he have lived in Georgia for one year by the date of the next 
election? ------ [squ] Yes [squ] No
If yes, write in date residence began___________________________________
--------------------
Former address__________________________________________________________
    5. If applicant shows that he has not lived at his present address 
for six months, will he have lived within the same county for six months 
by the date of the next election? ------ [squ] Yes [squ] No
If yes, write in the date residence began_______________________________
----------------
    Former address[llddash][llddash][llddash][llddash][llddash]
    7. If applicant answers yes, is his residence in Georgia and in his 
county for temporary purposes only? ------ [squ] Yes [squ] No
    8. (a) If applicant shows that he is now registered to vote in 
Georgia, write in the county where he is 
registered[llddash][llddash][llddash][llddash][llddash][llddash]
    (b) If applicant shows that he is now listed under the Voting Rights 
Act, write in the county where he is listed ------------ and certificate 
number if available[llddash][llddash][llddash][llddash]
    10. If applicant answers yes, name the crime -------------------- 
Where and when convicted? -------------------- Was the conviction for a 
disqualifying crime? --------
[squ] Yes [squ] No
    If a disqualifying crime, has applicant been pardoned? ------[squ] 
Yes [squ] No
    If so pardoned, where and when?[llddash][llddash][llddash][llddash]
    11. If applicant answers yes, has he subsequently been declared 
legally sane or competent by a court? ------ [squ] Yes [squ] No
    If yes, when and by what court?[llddash][llddash][llddash][llddash]
Certificate of Eligibility Issued--No. ---------- Notice of 
Ineligibility Issued--No._______________________________________________

                                louisiana

                                  Front

                                                           Form approved
                                               Budget Bureau No. 50-R359

      Application To Be Listed Under the Voting Rights Act of 1965

    State of Louisiana Parish 
of[llddash][llddash][llddash][llddash][llddash][llddash]

[[Page 329]]

    Instructions to the applicant: Please fill out this side of this 
form. If you need help in answering questions 1 through 13, the Examiner 
will help you.
    1. Name ---------- (First) ---------- (Middle) -------------- (Last)
    2. Age ----------
    3. Address ------------ (RFD or Street Number) ---------- (Street) 
---------- (City or Town) ---------- (State)
4. How long have you lived in Louisiana?________________________________

5. How long have you lived at the above address?________________________
6. What is your precinct and ward?______________________________________
    7. Are you now (1) on active duty in the Armed Forces of the United 
States or the Louisiana National Guard, (2) an employee of the United 
States or the State of Louisiana, or (3) a seaman or college student? --
---- [squ] Yes [squ] No
    8. (a) Are you now registered to vote in Louisiana? ------ [squ] Yes 
[squ] No
    (b) Are you now listed under the Voting Rights Act? ------ [squ] Yes 
[squ] No
    9. Are you a citizen of the United States and of the State of 
Louisiana? ------ [squ] Yes [squ] No
    10. Have you ever been convicted of a crime other than a traffic or 
game violation?-------- [squ] Yes [squ] No
    11. Have you ever been dishonorably discharged from or are you a 
deserter from the Louisiana National Guard or militia or the military 
service of the United States? ------ [squ] Yes [squ] No
    12. Have you ever been declared legally insane or incompetent by a 
court? ----------
[squ] Yes [squ] No
    13. Are you now living in a charitable home or institution? ------ 
[squ] Yes [squ] No
14. What is your political party preference?____________________________
Any willful false statement on this application is a Federal crime 
punishable by fine or imprisonment.

                Stop Here. Take the Form to the Examiner

    I do solemnly swear (or affirm) that I will faithfully and fully 
abide by all of the laws of the State of Louisiana, that I am well 
disposed to the good order and happiness of the State of Louisiana and 
of the United States, and that the information I have provided is true 
to the best of my knowledge and belief.
 Signature (or mark) of applicant_______________________________________
 Sworn to (or affirmed) and subscribed before me this date______________
 Examiner_______________________________________________________________
                                     U.S. Office of Personnel Management
                                                          CSC Form 805-L
                                                    [dagger] August 1965

                                  Back

             Do not write on this side--For use by examiner

                      Additional Information Items

    2. If the applicant shows his age to be under 21, will he be 21 by 
the date of the next election? ------ [squ] Yes [squ] No
Write in his date of birth______________________________________________
    4. If the applicant shows that he has not lived in Louisiana for one 
year, will he have lived in Louisiana for one year by the date of the 
next election? ------ [squ] Yes [squ] No
If yes, write in the date residence began_______________________________
--------------------
Former Address__________________________________________________________
    5. If applicant shows that he has not lived at his present address 
for six months, will he by the date of the next election have:
    Lived in the same parish for six months? ------ [squ] Yes [squ] No
If yes, write in the date residence began_______________________________
--------------------
Former Address__________________________________________________________
    Lived in this precinct for three months? ------ [squ] Yes [squ] No
If yes, write in the date residence began_______________________________
--------------------
Former Address__________________________________________________________
    Lived in the same town or city for four months? ------ [squ] Yes 
[squ] No
If yes, write in the date residence began_______________________________
--------------------
Former Address__________________________________________________________
    7. If applicant's answer is yes, is his residence in Louisiana and 
in his parish for temporary purposes only? ------
[squ] Yes [squ] No
If yes, write in his occupation_________________________________________
8. (a) If applicant shows that he is now registered to vote in 
Louisiana, write in the parish where he is registered:__________________
(b) If applicant shows that he is now listed under the Voting Rights 
Act, write in the parish where he is listed -------------- and 
certificate number if available_________________________________________
10. If applicant answers yes, name the crime____________________________
Where and when convicted?_______________________________________________
    Was the conviction for a disqualifying crime? -------- [squ] Yes 
[squ] No
    If a disqualifying crime, has applicant been pardoned with express 
restoration of the right to vote? ------ [squ] Yes [squ] No
If so pardoned, how and when?___________________________________________
11. If applicant answers yes, write in whether dishonorably discharged 
or a deserter?__________________________________________________________
    If dishonorably discharged, has he been reinstated? ------ [squ] Yes 
[squ] No
If yes, when and where?_________________________________________________
    If a deserter, has he returned to his command and made up his lost 
time? ----------
 [squ] Yes [squ] No
If yes, when and where?_________________________________________________

[[Page 330]]

    12. If applicant shows that he has been declared legally insane or 
incompetent by a court, has he subsequently been declared legally sane 
or competent by a court? --------
[squ] Yes [squ] No
If yes, when and what court?____________________________________________
    13. If the applicant shows that he is now living in a charitable 
home or institution, is he disqualified? ------ [squ] Yes [squ] No
 Certificate of Eligibility Issued--No._________________________________
 Notice of Ineligibility Issued--No.____________________________________

                               mississippi

                                  Front

                                                           Form approved
                                              Budget Bureau No. 50-RO436

      Application to be Listed Under the Voting Rights Act of 1965

 State of Mississippi, County of________________________________________
Instructions to the Applicant: Please fill out both sides of this form. 
If you need help in answering any question, the Examiner will help you.
    1. Name-------- (First)-------- (Middle) -------------- (Last)
2. Date of Birth________________________________________________________
3. Social Security No___________________________________________________
    4. Are you a citizen of the United States? ------ [squ] Yes [squ] No
    5. What is your present residence address and each place you have 
resided during the past year, stating when you lived at each place?
    (a) Present address ----------------From ------------ to date.
    (b) Previous address -------------- From ------------ to ----------
--
    (c) Previous address -------------- From ------------ to ----------
--
(If you need additional space, use the back side of this form.)
    6. What is your election district? ------------ Beat -------------- 
Precinct -------------- City Ward ----------
    7. Are you now registered to vote in Mississippi? ------ [squ] Yes 
[squ] No
(a) When:_______________________________________________________________
(b) What county:________________________________________________________
(c) Address at that time:_______________________________________________
    8. Have you ever been convicted of a crime of murder, rape, bribery, 
theft, arson, obtaining money or goods under false pretenses, perjury, 
forgery, embezzlement or bigamy? ------ [squ] Yes [squ] No
(a) Which crime?________________________________________________________
(b) When and where?_____________________________________________________
    Has the right to vote been restored? ------ [squ] Yes [squ] No
If yes, when:___________________________________________________________
    9. Have you ever been declared legally insane by a court? ------ 
[squ] Yes [squ] No
If yes, when:___________________________________________________________
Where:__________________________________________________________________
(a) When and where declared competent by a court:_______________________
10. (a) If you have a current driver's license, state its number and the 
address shown thereon:__________________________________________________
(b) If you own a motor vehicle, state license tag number and the county 
and State in which the vehicle is registered for ad valorem and road and 
bridge privilege tax purposes:__________________________________________
(c) If you filed an income tax return for the year immediately past, 
state the address on your most recent income tax return:________________

(d) If you own real property, state its location:_______________________
(e) If you are receiving homestead exemption on any real property, state 
the location of all such property:______________________________________
(f) If you are currently employed, state the location of the place where 
you actually report for work:___________________________________________
(g) State the location of any church affiliation or location of any 
other religious groups of which you are a member:_______________________
(h) State the location of the greater amount of your personal 
possessions:____________________________________________________________
(i) If you have a telephone, state its location and number:_____________
    11. Do you intend to make this precinct and county your fixed 
habitation, for a definite or indefinite length of time, to which you 
intend to return whenever absent? ------ [squ] Yes [squ] No
Any willful false statement on this application is a Federal crime 
punishable by fine or imprisonment.

                Stop Here. Take the Form to the Examiner

    I do solemnly swear (or affirm) that I am at least eighteen (18) 
years old (or will be before the next election in this county), and that 
I am now in good faith a resident of this state and of ----------------
---- election precinct in this county and that I am not disqualified 
from voting by reason of having been convicted of any crime named in the 
Constitution of this state as a disqualification to be an elector; that 
I have truly answered all questions propounded to me in the foregoing 
application for registration; and that I will faithfully support the 
Constitution of the United States and of the State of Mississippi, and 
will bear true faith and allegiance to the same. So help me God.
 Signature (or mark) of applicant_______________________________________
 Sworn to (or affirmed) and subscribed before me this date______________
 Examiner_______________________________________________________________
                                     U.S. Office of Personnel Management
 Certificate of Eligibility Issued--No._________________________________
 Notice of Ineligibility Issued--No.____________________________________
                                                          CSC Form 805-M
                                                   Revised February 1973

[[Page 331]]

                                  Back

             Do not write on this side--for use by examiner

                      Additional Information Items

    2. If applicant shows his age to be under 21, will he be 21 by the 
date of the next election? ------ [squ] Yes [squ] No
 Write in his date of birth_____________________________________________
    5. If applicant shows that he has not lived in Mississippi for two 
years, will he have lived in Mississippi for two years by the date of 
the next election? ------ [squ] Yes [squ] No
If yes, write in the date residence began_______________________________
--------------------
Former address__________________________________________________________
    6. If applicant shows that he has not lived at his present address 
one year, will he by the date of the next election have:
    Lived in the same election district for one year? ------ [squ] Yes 
[squ] No
    If applicant is a minister or minister's wife, for 6 months? ------ 
[squ] Yes [squ] No
If yes, write in the date residence began_______________________________
--------------------
Former address__________________________________________________________
    Lived in the same city, town, or village for one year? ------ [squ] 
Yes [squ] No
    If applicant is a minister or minister's wife, for 6 months? ------ 
[squ] Yes [squ] No
If yes, write in the date residence began_______________________________
--------------------
Former address__________________________________________________________
8. (a) If applicant shows that he is now registered to vote in 
Mississippi, write in the county where he is registered_________________
(b) If applicant shows that he is now listed under the Voting Rights 
Act, write in the county where he is listed ---------------- and 
certificate number if available_________________________________________
    10. If applicant answers yes, was the conviction for bribery, 
burglary, theft, arson, perjury, forgery, embezzlement, bigamy, or 
obtaining money or goods under false pretenses? ------ [squ] Yes [squ] 
No
    If yes, answer the following questions:
Which crime?____________________________________________________________
When and where convicted?_______________________________________________
Has right to vote been restored by the legislature?_____________________
If so restored, when?___________________________________________________
    11. If applicant answers yes, has he subsequently been declared 
legally sane or competent by a court? ------ [squ] Yes [squ] No
If yes, when and by what court?_________________________________________
 Certificate of Eligibility Issued--No._________________________________
 Notice of Ineligibility Issued--No.____________________________________

                             south carolina

                                  Front

                                                           Form approved
                                               Budget Bureau No. 50-R359

      Application To Be Listed Under the Voting Rights Act of 1965

 State of South Carolina County of______________________________________

Instructions to the Applicant: Please fill out this side of this form. 
If you need help in answering any question, the Examiner will help you.
    1. Name---------- (First)-------- (Middle) -------------- (Last)
    2. Age ----------
    3. Address ------------ (RFD or street number) ---------- (Street) 
---------- (City or town) ---------- (State)
    4. (a) Are you a minister in charge of an organized church or the 
spouse of such a minister ------ [squ] Yes [squ] No
    (b) Are you a teacher in a public school or the spouse of such a 
teacher ------ [squ] Yes [squ] No
5. How long have you lived in South Carolina____________________________
6. How long have you lived at the above address_________________________
7. What is your ward and precinct_______________________________________
    8. Are you now (1) a student, (2) a seaman, (3) an employee of the 
United States, or (4) on active duty in the Armed Forces of the United 
States ------ [squ] Yes [squ] No
    9. (a) Are you now registered to vote in South Carolina ------ [squ] 
Yes [squ] No
    (b) Are you now listed under the Voting Rights Act ------ [squ] Yes 
[squ] No
    10. Are you a citizen of the United States and the State of South 
Carolina --------
[squ] Yes [squ] No
    11. Have you ever been convicted of a crime other than a traffic 
violation-------- [squ] Yes [squ] No
    12. Have you ever been declared legally insane, idiotic, or mentally 
incompetent by a court ------ [squ] Yes [squ] No
    13. Are you a pauper receiving all your support from your county, 
town, or city government ------ [squ] Yes [squ] No
Any willful false statement on this application is a Federal crime 
punishable by fine or imprisonment

                Stop Here--Take the Form to the Examiner

    I hereby solemnly swear (or affirm) that the information I have 
provided is true to the best of my knowledge and belief and I so 
certify.
 Signature (or mark) of applicant_______________________________________

 Sworn to (or affirmed) and subscribed before me this date______________
 Examiner_______________________________________________________________
                                     U.S. Office of Personnel Management

[[Page 332]]

                      CSC Form 805-S, October 1965

                                  Back

             Do not write on this side--for use by examiner

                      Additional Information Items

    5. If the applicant shows that he has not lived in South Carolina 
for one year, will he have lived in South Carolina for one year by the 
next election (or six months if applicant is a minister in charge of an 
organized church or a teacher in a public school, or the spouse of 
either) ------ [squ] Yes [squ] No
If yes, write in the date when he began to live in South Carolina_______
Former address__________________________________________________________
    6. If the applicant (other than a minister, teacher, or spouse of 
either) shows that he has not lived at the same address for six months, 
will he by the date of the next election have:
    Lived in the same county for six months ------ [squ] Yes [squ] No
If yes, write in the date when he began to live in the county___________
Former address__________________________________________________________
    Lived in the same city or town for four months ------ [squ] Yes 
[squ] No
If yes, write in the date when he began to live in the city or town_____
Former address__________________________________________________________
    Lived in the same precinct for three months ------ [squ] Yes [squ] 
No
If yes, write in the date when he began to live in the precinct_________
Former address__________________________________________________________
    8. If applicant answers yes, is his residence in South Carolina and 
in his county for temporary purposes [squ] Yes [squ] No
If yes, write in his occupation_________________________________________
9. (a) If applicant shows that he is now registered to vote in South 
Carolina, write in the county where he is registered____________________
(b) If applicant shows that he is now listed under the Voting Rights 
Act, write in the county where he is listed ---------------- and 
certificate number if available_________________________________________
11. If applicant answers yes, name the crime____________________________
Where and when convicted________________________________________________
    Was the conviction for a disqualifying crime ------ [squ] Yes [squ] 
No
    If a disqualifying crime, has the disqualification been removed by 
pardon of the Governor ------ [squ] Yes [squ] No
If so pardoned, where, when and by whom_________________________________
    12. If the applicant shows that he has been declared legally insane, 
idiotic, or mentally incompetent by a court, has he subsequently been 
declared legally sane or mentally competent by a court ------ [squ] Yes 
[squ] No
If yes, when and by what court__________________________________________
13. If the applicant shows that he is a pauper receiving all of his 
support from his county, town, or city, write details here______________
Certificate of eligibility issued--No.__________________________________
Notice of ineligibility issued--No._____________________________________

                                  texas

                                  Front

                                                           Form approved
                                                         OMB No. 50R0592

                      Voting Rights Act Application

    The information requested below is for the purpose of determining 
whether you are eligible to vote. If you are found eligible to vote, 
your name will be certified to appropriate state officials for addition 
to the official voting lists. The solicitation of this information for 
this purpose is authorized by the Voting Rights Act of 1965, as amended. 
While you are not required to respond, your cooperation is needed if you 
wish to be found eligible to vote.
    Instructions to the Applicant: Please fill out this side of this 
form. If you need help in answering any question, the Examiner will help 
you.
    1. Name ---------- (First) ---------- (Middle) ---------- (Last) 
Maiden surname if married woman: ----------
    2. Sex: ----------
    3. Permanent residence address: -------------------- (Street and 
Apt. No., if any, or Route No. or location (Not P.O. Box)) ------------
-- (City) ---------- (ZIP code)
4. Election Precinct (if known):________________________________________
    5. Mailing address if different from above: -------------------- 
(Street or P.O. box) ---------- (City) -------- (State) -------- (ZIP 
code)
    6. Birthplace: City ---------- or county ---------- State ---------- 
or foreign country ----------
7. Birth date: Month ------ Day ------ Year ------If naturalized, give 
court of naturalization or its location:________________________________
    8. Former registration: If now registered in another Texas County: 
-------------- (Name of county)
    Last residence address:---------- (Street and apt. No., if any) ----
------ (City) ---------- (State) ---------- (ZIP code)
    The disclosure of social security number and telephone number is 
voluntary. Failure to state either or both numbers will NOT result in 
your application being deficient. The numbers will be used only to 
maintain the accuracy and integrity of the registration records.
    Social Security Number ---------- Telephone Number ----------
    Any willful false statement on this application is a Federal crime 
punishable by fine or imprisonment.
    STOP HERE.
    TAKE THE FORM TO THE EXAMINER.
    I do solemnly swear (or affirm) that I, the applicant, am 18 years 
of age or over, or will be 18 years of age or older within 60 days

[[Page 333]]

after applying for registration, and am a citizen of the United States, 
hold legal residence in this county, have met all legal requirements, 
and I understand that the giving of false information to procure the 
registration of a voter is a felony.
Signature (or mark) of applicant________________________________________
Signature of agent*_____________________________________________________
    *Agent must be a registered voter, and must be only: (Circle one 
applicable) Husband--Wife--Mother--Father--Son--Daughter
Sworn to (or affirmed) and subscribed to me this date___________________
Examiner________________________________________________________________
                                     U.S. Office of Personnel Management
                                                          CSC FORM 805-T
                                                              April 1976

                                  Back

             Do not write on this side--For use by examiner

                      Additional Information Items

    Texas law states that a person convicted of a felony and not 
subsequently pardoned, and a person adjudicated a lunatic or idiot and 
not subsequently adjudicated competent, are not qualified to vote. 
Therefore, the following questions must be asked.
    A. Have you ever been convicted of a felony: ------ [squ] Yes [squ] 
No
If applicant answers yes, name the crime________________________________
Where and when convicted________________________________________________
    Was the conviction for a disqualifying crime: ------ [squ] Yes [squ] 
No
    If a disqualifying crime, has applicant been pardoned with 
restoration of his right to vote: ------ [squ] Yes [squ] No
If so pardoned, how and when____________________________________________
    B. Have you ever been declared to be an idiot or a lunatic by a 
court: ------ [squ] Yes [squ] No
    If applicant answers yes, has he subsequently been declared legally 
sane or competent by a court: ------ [squ] Yes [squ] No
If yes, when and by what court__________________________________________
Certificate of eligibility issued--No.__________________________________
Notice of ineligibility issued--No._____________________________________

(5 U.S.C. 1103; Secs. 7, 9, 79 Stat. 440, 411, 441 (42 U.S.C. 1973c, 
1973g))

[30 FR 9859, Aug. 7, 1965]

    Editorial Note: For Federal Register citations affecting this 
appendix A, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

                         Appendix B to Part 801

    This appendix sets out the qualifications required for listing on an 
eligibility list.

                                 alabama

    A person is qualified to be listed as an eligible voter in elections 
in the State of Alabama, except municipal elections, if he has all the 
following qualifications at the time he applies for listing and if he 
takes the required oath or affirmation.
    (1) He is 21 years of age.
    (2) He is a citizen of the United States and of the State of 
Alabama.
    (3) He will have lived in the State of Alabama for one year, in his 
county for six months, and in his ward or precinct for three months by 
the date of the next election.
    (4) He has not been convicted of treason, murder, arson, 
embezzlement, malfeasance in office, larceny, receiving stolen property, 
obtaining property or money under false pretenses, perjury, subornation 
of perjury, robbery, assault with intent to rob, burglary, forgery, 
bribery, assault and battery on the wife, bigamy, living in adultery, 
sodomy, incest, rape, crime against nature, or any crime punishable by 
imprisonment in the penitentiary, or of any infamous crime or crime 
involving moral turpitude, or of vagrancy or being a tramp, or of 
selling or offering to sell his vote or the vote of another, or of 
buying or offering to buy the vote of another, or of making or offering 
to make a false return in any election by the people or in any primary 
election to procure the nomination or election of any person to any 
office, or of suborning any witness or registrar to secure the 
registration of any person as an elector, or if so convicted he has been 
subsequently pardoned with restoration of his right to vote specifically 
expressed in the pardon.
    (5) He has not been declared legally insane by a court, or if so 
declared he has subsequently been declared legally sane or competent by 
a court.
    (6) He is not otherwise registered or listed as eligible to vote in 
the county in which he applies for listing.
    A person who has all the above qualifications is also qualified to 
be listed as an eligible voter in municipal elections if he will have 
lived in his city or town for three months by the date of the next 
election.

                                 georgia

    A person is qualified to be listed as an eligible voter in elections 
in the State of Georgia, except municipal elections, if he has all the 
following qualifications at the time he applies for listing and if he 
takes the required oath or affirmation.
    (1) He will be 18 years of age by the date of the next election.
    (2) He is a citizen of the United States and of the State of 
Georgia.
    (3) He will have lived in the State of Georgia for 1 year and in his 
county for 6 months by the date of the next election.

[[Page 334]]

    (4) He has not been convicted of treason against the State, 
embezzlement of public funds, malfeasance in office, bribery or larceny, 
or of any crime involving moral turpitude, punishable by the laws of 
Georgia with imprisonment in the penitentiary, or if so convicted he has 
been subsequently pardoned.
    (5) He has not been declared legally insane or idiotic by a court, 
or if so declared he has been subsequently declared legally sane or 
competent by a court.
    (6) He is not otherwise registered or listed as eligible to vote in 
the county in which he applies for listing.

                                louisiana

    A person is qualified to be listed as an eligible voter in elections 
in the State of Louisiana, except municipal elections, if he has all the 
following qualifications at the time he applies for listing and if he 
takes the required oath or affirmation.
    (1) He will be 21 years of age by the date of the next election.
    (2) He is a citizen of the United States and of the State of 
Louisiana.
    (3) He will have lived in the State of Louisiana for one year, in 
his parish for six months, and in his precinct for three months by the 
date of the next election.
    (4)(a) He has not been convicted of any crime punishable by 
imprisonment in the penitentiary, or if so convicted he has been 
subsequently pardoned with the express restoration of the franchise, or 
(b) he has not been convicted of a felony, or if so convicted he has 
subsequently received a pardon and full restoration of franchise.
    (5) He has not been interdicted, that is, declared legally 
incompetent or insane by a court, or if so interdicted he has been 
subsequently restored to legal competency or sanity by a court.
    (6) He has not been dishonorably discharged from the Louisiana 
National Guard or the military service of the United States, or if so 
discharged he has been reinstated.
    (7) He is not a deserter from the military services of the United 
States or the militia of the State of Louisiana, when called forth by 
the Governor or, in time of invasion, insurrection, or rebellion, by the 
President of the United States, or if such a deserter, he has returned 
to the command from which he deserted, made good the time lost in 
desertion, and served out the term of his original enlistment.
    (8) He is not an inmate of any charitable institution, except the 
Soldiers Home and the United States Marine hospital at Carville.
    (9) He is not otherwise registered or listed as eligible to vote in 
the parish in which he applies for listing.
    A person who has all the above qualifications is qualified to be 
listed as an eligible voter in municipal elections if he will have lived 
in his city or town for four months by the date of the next election.

                               mississippi

    A person is qualified to be listed as an eligible voter in elections 
in the State of Mississippi, except municipal elections, if he has all 
the following qualifications at the time he applies for listing and 
takes the required oath or affirmation.
    (1) He will be 21 years of age by the date of the next election.
    (2) He is a citizen of the United States.
    (3) He will have lived in the State of Mississippi for two years by 
the date of the next election.
    (4) He will have lived in his election district or his city, town, 
village, or municipality for one year by the date of the next election. 
However, if the person is a minister or the wife of a minister of the 
Gospel in charge of an organized church, that person is qualified if he 
or she will have lived in the election district for six months by the 
date of the next election.
    (5) He has not been convicted of arson, bigamy, bribery, burglary, 
embezzlement, forgery, obtaining money or goods under false pretenses, 
perjury, or theft, or if so convicted his right to vote has been 
restored by the legislature.
    (6) He has not been declared legally insane by a court, or if so 
declared he has been subsequently declared legally sane or competent by 
a court.
    (7) He is not otherwise registered or listed as eligible to vote in 
the county in which he applies for listing.
    A person who has all the above qualifications is qualified to be 
listed as an eligible voter in municipal elections if he will have lived 
in his city, town, or village for one year by the date of the next 
election, unless he has, within two years before the next municipal 
election, been convicted within the municipality of violating the liquor 
laws of the State or the municipality. However, if the person is a 
minister or the wife of a minister of the Gospel in charge of an 
organized church, that person is qualified to be listed as an eligible 
voter in municipal elections if he or she will have lived in the city, 
town, or village for six months by the date of the next election.

                             south carolina

    A person is qualified to be listed as an eligible voter in elections 
in the State of South Carolina, except municipal elections, if he has 
all the following qualifications at the time he applies for listing and 
if he takes the required oath or affirmation.
    (1) He is 21 years of age.
    (2) He is a citizen of the United States and of the State of South 
Carolina.

[[Page 335]]

    (3) He will have lived in the State of South Carolina for one year, 
in his county for six months, and in his precinct for three months by 
the date of the next election. However, if the person is a minister in 
charge of an organized church or a teacher in the public schools, or the 
spouse of such a minister or teacher, that person is qualified if he or 
she will have lived in the State of South Carolina for six months by the 
date of the next election.
    (4) He has not been convicted of burglary, arson, obtaining goods or 
money under false pretenses, perjury, forgery, robbery, bribery, 
adultery, bigamy, wife-beating, housebreaking, receiving stolen goods, 
breach of trust with fraudulent intent, fornication, sodomy, incest, 
assault with intent to ravish, larceny, challenging or accepting a 
challenge to duel with a deadly weapon, or crimes against the election 
laws, or if so convicted his right to vote has been restored by pardon.
    (5) He has not been declared legally insane, idiotic, or incompetent 
by a court, or if so declared he has subsequently been declared legally 
sane or competent by a court.
    (6) He is not a pauper supported at public expense.
    (7) He is not otherwise registered or listed as eligible to vote in 
the county in which he applies for listing.
    A person who has all the above qualifications is also qualified to 
be listed as an eligible voter in municipal elections if he will have 
lived in his city or town for four months by the date of the next 
election.

                                  texas

    A person is qualified to be listed as an eligible voter in elections 
in the State of Texas if he has all the following qualifications at the 
time he applies for listing and if he takes the required oath or 
affirmation.
    (1) He will be 18 years of age within 60 days after applying for 
registration.
    (2) He is a citizen of the United States.
    (3) He is a resident of the State of Texas.
    (4) He has not been convicted of a felony, or if so convicted, he 
has been subsequently restored to full citizenship and suffrage or 
pardoned.
    (5) He has not been declared an idiot or a lunatic by a court, or if 
so declared, he has been subsequently declared legally sane or competent 
by a court.
    (6) He is not otherwise registered or listed as eligible to vote in 
the county in which he applies for listing.

    Editorial Note: For Federal Register citations affecting this 
appendix B, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

                         Appendix C to Part 801

    These are the addresses of each Examiner (State Supervisor), U.S. 
Office of Personnel Management.

                                 alabama

    Examiner (State Supervisor), U.S. Office of Personnel Management, 
Southeast Region, 75 Spring Street, SW., Atlanta, Georgia, 30303.

                                 georgia

    Examiner (State Supervisor), U.S. Office of Personnel Management, 
Southeast Region, 75 Spring Street, SW., Atlanta, Georgia, 30303.

                                louisiana

    Examiner (State Supervisor), U.S. Office of Personnel Management, 
Southwest Region, 610 South Street, Room 804, New Orleans, Louisiana, 
70130.

                               mississippi

    Examiner (State Supervisor), U.S. Office of Personnel Management, 
Southeast Region, 802 State Street, Room 403, Jackson, Mississippi, 
39201. Address effective December 1, 1979: 75 Spring Street, SW., 
Atlanta, Georgia, 30303.

                             south Carolina

    Examiner (State Supervisor), U.S. Office of Personnel Management, 
Southeast Region, 75 Spring Street, SW., Atlanta, Georgia, 30303.

                                  texas

    Examiner (State Supervisor), U.S. Office of Personnel Management, 
Southwest Region, 1100 Commerce Street, Room 4C24, Dallas, Texas, 75242.

(Reorganization Plan No. 2 of 1978 (43 FR 36037))

    Editorial Note: For Federal Register citations affecting this 
appendix C, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

                         Appendix D to Part 801

    This appendix sets out the bases for loss of eligibility to vote and 
removal from an eligibility list.

                                 alabama

    A person loses his eligibility to vote in elections in the State of 
Alabama if:
    (1) He is no longer a legal resident of the State of Alabama or the 
county for which he is listed (a person may not vote in a county or 
precinct in which he is not a resident, but

[[Page 336]]

when a person removes from one precinct or ward to another precinct or 
ward within the same county, town, or city within three months before an 
election, he may vote in the precinct or ward from which he so removed);
    (2) He dies;
    (3) He is convicted of treason, murder, arson, embezzlement, 
malfeasance in office, larceny, receiving stolen property, obtaining 
property or money under false pretenses, perjury, subornation of 
perjury, robbery, assault with intent to rob, burglary, forgery, 
bribery, assault and battery on wife, bigamy, living in adultery, 
sodomy, incest, rape, crime against nature, or any crime punishable by 
imprisonment in the penitentiary, or of any infamous crime or crime 
involving moral turpitude, or vagrancy or being a tramp, or selling or 
offering to sell his vote or the vote of another, or of buying or 
offering to buy the vote of another, or of making or offering to make 
false return in any election by the people or in any primary election to 
procure the nomination or election of any person to any office, or of 
suborning any witness or registrar to secure the registration of any 
person as an elector, and has not been subsequently pardoned with 
restoration of his right to vote specifically expressed in the pardon;
    (4) He is declared legally insane by a court and has not been 
subsequently declared legally sane or competent by a court; or
    (5) He loses his citizenship in the United States or the State of 
Alabama.
    A person loses his eligibility to vote in municipal elections only, 
if he is no longer a legal resident of his city or town. Loss of 
eligibility to vote in a municipal election because of change of such 
residence does not result in loss of eligibility in any other election.

                                 georgia

    A person loses his eligibility to vote in elections in the State of 
Georgia if:
    (1) He is no longer a legal resident of the State of Georgia or the 
county for which he is listed;
    (2) He dies;
    (3) He is convicted of treason against the State, embezzlement of 
public funds, malfeasance in office, bribery or larceny, or of any crime 
involving moral turpitude, punishable by the laws of Georgia with 
imprisonment in the penitentiary, and has not been subsequently 
pardoned;
    (4) He is declared legally insane or idiotic by a court and has not 
been subsequently declared legally sane or competent by a court; or
    (5) He loses his citizenship in the United States or the State of 
Georgia.
    A person loses his eligibility to vote in municipal elections only, 
if he is no longer a legal resident of his city or town. Loss of 
eligibility to vote in a municipal election because of change of such 
residence does not result in loss of eligibility in any other election.

                                louisiana

    A person loses his eligibility to vote in elections in the State of 
Louisiana if:
    (1) He is no longer a legal resident of the State of Louisiana or 
the parish for which he is listed, however, the removal from one parish 
to another does not deprive a person of the right to remain listed in 
the parish from which he has removed for the purpose of voting for 
district officers to be elected in a district which includes the parish 
to which he has removed, or for State officers, whether the parish is in 
the same district or not, until he has acquired the right to register or 
be listed and vote for such officers in the parish to which he has 
removed (the removal of a person from one precinct to another in the 
same parish does not deprive him of his right to remain listed in the 
parish from which he has removed until three months after the removal);
    (2) He dies;
    (3)(a) He is convicted of any crime punishable by imprisonment in 
the penitentiary and has not been subsequently pardoned with the express 
restoration of the franchise, or (b) he is convicted of a felony and has 
not subsequently received a pardon and full restoration of franchise.
    (4) He is declared legally incompetent or insane by a court and has 
not been subsequently restored to legal competency or sanity by a court;
    (5) He is dishonorably discharged from the Louisiana National Guard 
or the military service of the United States and has not been 
reinstated;
    (6) He deserts from the military service of the United States or the 
militia of the State of Louisiana, when called forth by the Governor or, 
in time of invasion, insurrection, or rebellion, by the President of the 
United States and has not returned to the command from which he 
deserted, made good the time lost in desertion, and served out the term 
of his original enlistment;
    (7) He becomes an inmate of any charitable institution, except the 
Soldiers Home and the United States Marine Hospital at Carville; or
    (8) He loses his citizenship in the United States or the State of 
Louisiana.
    A person loses his eligibility to vote in municipal elections only, 
if he is no longer a legal resident of his city or town. Loss of 
eligibility to vote in a municipal election because of change of such 
residence does not result in loss of eligibility in any other election.

[[Page 337]]

                               mississippi

    A person loses his eligibility to vote in elections in the State of 
Mississippi if:
    (1) He is no longer a legal resident of the State of Mississippi or 
the election district for which he is listed;
    (2) He dies;
    (3) He is convicted of arson, bigamy, bribery, burglary, 
embezzlement, forgery, obtaining money for goods under false pretenses, 
perjury, or theft and has not had his right to vote restored by the 
legislature;
    (4) He is declared legally insane by a court and has not been 
subsequently declared legally sane or competent by a court; or
    (5) He loses his citizenship in the United States.
    A person loses his eligibility to vote in municipal elections only, 
if he (1) is no longer a legal resident of his city or town, or (2) if 
he has, within two years before the next municipal election, been 
convicted within the municipality of violating the liquor laws of the 
State or the municipality, or (3) is at the time of the municipal 
election in default for taxes due the municipality for the two preceding 
years. Loss of eligibility to vote in a municipal election because of 
change of such residence or such conviction or such default in taxes 
does not result in loss of eligibility in any other election.

                             south carolina

    A person loses his eligibility to vote in elections in the State of 
South Carolina if:
    (1) He is no longer a legal resident of the State of South Carolina 
or the county for which he is listed;
    (2) He dies;
    (3) He is convicted of burglary, arson, obtaining goods or money 
under false pretenses, perjury, forgery, robbery, bribery, adultery, 
bigamy, wife-beating, housebreaking, receiving stolen goods, breach of 
trust with fraudulent intent, fornication, sodomy, incest, assault with 
intent to ravish, larceny, challenging or accepting a challenge to duel 
with a deadly weapon, or crimes against the election laws and his right 
to vote has not been restored by pardon;
    (4) He is declared legally insane, idiotic or incompetent by a court 
and has not subsequently been declared legally sane or competent by a 
court;
    (5) He becomes a pauper supported at public expense; or
    (6) He loses his citizenship in the United States or the State of 
South Carolina.
    A person loses his eligibility to vote in municipal elections only 
if he is no longer a legal resident of his city or town. Loss of 
eligibility to vote in a municipal election because of change of 
residence does not result in a loss of eligibility in any other 
election.
    (7) He fails to register in accordance with State law requiring 
general registration of all previously registered voters every 10th 
year. However, he does not lose his eligibility to vote if he has 
attempted to register in accordance with State law and his application 
was rejected without legal cause or solely because his prior 
registration was by listing by an Examiner.

                                  texas

    A person loses his eligibility to vote in elections in the State of 
Texas if:
    (1) He is no longer a citizen of the United States;
    (2) He is no longer a resident of the State of Texas;
    (3) He dies;
    (4) He is convicted of a felony;
    (5) He is adjudged by a court of being mentally incompetent; or
    (6) He has a change of name through marriage or judgment of a court, 
and fails to present his registration certificate to the registrar with 
a signed request that his name be changed on the registration records.
    A person loses his eligibility to vote in elections of the county, 
municipality, or other political subdivision only, if he is no longer a 
resident of the subdivision on the day of the election. Loss of 
eligibility to vote in an election of a county, municipality, or other 
subdivision does not result in loss of eligibility in any other 
elections.

                                  Texas

                     Forma Aprobada OMB No. 50R0592

               Solicitud Para Ejercer El Derecho Del Voto

    La informaci[oacute]n que se le pide a continuaci[oacute] es con el 
objeto de determinar si usted es elegible para votar. Si se encuentra 
que usted es elegible, su nombre ser[aacute] certificado para que los 
oficiales apropiados del Estado lo agreguen a las listas oficiales para 
la votaci[oacute]n. La autorizaci[oacute]n para solicitar la siguiente 
informaci[oacute]n est[aacute] basada en el Acta del Derecho de Votar, 
enmendada. No se le exige que responda a las preguntas que se le 
har[aacute]n a continuaci[oacute]n, pero su cooperaci[oacute]n es 
necesaria si usted desea que se le clasifique elegible para voter.
    Instrucciones para el solicitante: Haga el favor de llenar los 
espacios en blanco con la informaci[oacute]n que se le pide. Si necesita 
ayuda para contestar alguna pregunta, el examinador le ayudara.
    1. Nombre -------------------- (Primer nombre) (Segundo nombre) 
(Apellido)
Si es casada escriba equi su apellido de soltera________________________
    2. Sexo Masculino: [squ] Femenino: [squ]
    3. Direccion permanente: ---------- (Calle y no. de su apartamento, 
calle rural o localida

[[Page 338]]

(no caja postal) Ciudad ---------- Zip code --------
4. Lugar donde votara: (si lo sabe)_____________________________________
    5. Direccion postal si es diferente de la mencionada arriba: Calle o 
Apartado Postal ---------- Ciudad ------ Estado ------ Zip code ------
    6. Lugar de nacimiento: Ciudad -------- o Condado -------- Estado --
------ o Pais --------
7. Fecha de nacimiento: Mes ---------- Dia ------ Ano ------ Si usted es 
Americano naturalizado, de el nombre de la corte o la localidad donde se 
naturalizo:_____________________________________________________________
8. Registracion previa: Si Ud. esta actualmente registrado en otro 
condado de Texas, de el nombre de ese condado___________________________
Cual fu[eacute] su [uacute]ltima direcci[oacute]n: ---------- (Ciudad) 
---------- (Estado) ---------- (Zip code)
    Es voluntario declarar su n[uacute]mero de Seguro Social y su 
n[uacute]mero de tel[eacute]fono. Si Ud. prefiere declarar s[oacute]lo 
uno de esos n[uacute]meros o ninguno de los dos, est[aacute] bien, eso 
NO ser[aacute] motivo para que su solicitud se considere incompleta. 
Esos n[uacute]meros solo servir[aacute]n para mantener la exactitud y la 
integridad de los archivos de [eacute]ste registro.
 N[uacute]mero de Seguro Social_________________________________________
 N[uacute]mero de su tel[eacute]fono____________________________________
    Si usted, sabi[eacute]ndolo, da informaci[oacute]n falsa en esta 
solicitud, est[aacute] cometiendo un crimen Federal que puede ser 
castigado con una multa o con encarcenlamiento.

PARE AQUI.
LLEVE ESTA FORMA AL EXAMINADOR.

    Solemnemente juro (o afirmo) que yo, el solicitante, soy de 18 
a[ntilde]os de edad o mayor, o que cumplir[eacute] 18 a[ntilde]os dentro 
de 60 di[aacute]s despu[eacute]s de la fecha en que he presentado esta 
solicitud, y que soy ciudadano de los Estados Unidos, mantengo 
residencia legal en este Condado, he llenado todos los requisitos 
legales y entiendo que el hecho de dar informaci[oacute]n falsa con el 
objeto de que se me registre para la votaci[oacute]n es un crimen.
 Firma (o marca) del solicitante________________________________________
 Firma del agente*______________________________________________________
    *El agente debe estar registrado para votar y debe ser: (Encierre en 
un c[iacute]rculo la palabra correspondiente)

                    Esposo--Madre--Padre--Hijo--Hija

Jurado (o afirmado) y firmado en mi presencia en esta fecha:____________
Examinador______________________________________________________________
 Officina de Administracion de Personal de los Estados Unidos de America
                                                          CSC Form 805-T
                                                              abril 1976

                          Informacion Adicional

    La ley del Estado de Texas dice que una persona que ha sido convicta 
por haber cometido un crimen y que no ha sido perdonada, o una persona 
que ha sido declarada lun[aacute]tica o idiota y por lo tanto no se le 
considera competente, no est[aacute] calificada para votar. Por esta 
raz[oacute]n las siguientes preguntas deben ser contestadas.
A. Ha sido Ud. alguna vez convicto por haber cometido un crimen: Si 
          [squ] No [squ]
 Si su respuesta es si, diga cual fu[eacute] el crimen ----------------
----____________________________________________________________________
 D[oacute]nde y cuando fu[eacute] usted convicto________________________
 Fu[eacute] esta convicci[oacute]n por un crimen que lo descalifica para 
votar? Si [squ] No [squ]________________________________________________
Si su respuesta a la pregunta anterior es afirmativa, ha sido usted 
perdonado y se le ha devuelto su derecho de votar? Si [squ] No [squ]
Si ha sido perdonado, d[oacute]nde y cu[aacute]ndo?_____________________
B. Ha sido usted declarado por una corte idiota o lun[aacute]tico? Si 
          [squ] No [squ]
Si su respuesta es si, fu[eacute] usted despues declarado por una corte 
sano o competente? Si [squ] No [squ]
 Si su respuesta es si, diga cuando y en cual corte_____________________
N[uacute]mero del certificado de elegible_______________________________
N[uacute]mero del certificado de inelegible_____________________________

                               Apendice B

    Este ap[eacute]ndice enumera las calificaciones que re requiren para 
sercolocado en una lista de personas elegibles para votar.

                                  texas

    Una persona es considerada calificada para ser puesta en la lista de 
elegibles para votar en el Estado de Texas si llena los siguientes 
requisitos al momento de hacer su solicitud y si presta juramento (o 
afirmaci[oacute]n) que se requiere.
    (1) Deber[aacute] cumplir 18 a[ntilde]os de edad dentro de 60 dias 
despues de haber hecho la solicitud.
    (2) Debe ser ciudadano de los Estados Unidos.
    (3) Debe ser residente del Estado de Texas.
    (4) No ha sido convicto por un crimen, o si fu[eacute] convicto 
alguna vez, se le han desde entonces restaurado sus derechos de 
ciudadan[iacute]a y sufragio o ha sido perdonado.
    (5) No ha sido declarado por la corte come idiota o lun[aacute]tico, 
y si lo fu[eacute], ha side despues declarado legalmente sano o 
competente por una corte.
    (6) No est[aacute] registrado para votar en ning[uacute]n otro lugar 
de este Condado.

                               Apendice D

    Este ap[eacute]ndice enumera las razones por las cuales puede usted 
perder el derecho a votar o por las cuales se le puede quitar de la 
lista de elegibles para votar.

                                  texas

    Una persona pierde su derecho a votar en las elecciones en el Estado 
de Texas si:
    (1) Ha dejado de ser ciudadano de los Estados Unidos;

[[Page 339]]

    (2) Ha dejado de ser un residente del Estado de Texas;
    (3) Ha fallecido;
    (4) Ha sido convicto por haber cometido un crimen;
    (5) Ha sido declarado en la corte de ser mentalmente incompetente;
    (6) Ha cambiado de nombre por razones de matrimonio o por otros 
procedimientos legales en una corte y ha fallado de presentar el 
certificado correspondiente al encargado, dicho certificado debe ser 
acompa[ntilde]ado de una petici[oacute]n firmada pidiendo que su nombre 
sea cambiado en los archivos de registro para votar.
    Una persona pierde su derecho a votar en las elecciones del condado, 
la municipalidad o cualquier otra sub-division politica solamente, si 
esa persona ha dejado de ser residente de ese lugar el dia de la 
eleccion. La p[eacute]rdida de su elegibilidad para votar en una 
elecc[iacute]on de un condado, municipalidad o cualquier otra 
subdivisi[oacute]n politica no resulta en la p[eacute]rdida del derecho 
a votar en otras elecciones.
    Autoridad: Los requisitos enumerados en esta Parte 801 emitidos bajo 
las secciones 7, 9, 79, Stat. 440; 42 U.S.C. 1973e, 1973g.

    Editorial Note: For Federal Register citations affecting this 
appendix D, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

[[Page 341]]



CHAPTER X--OFFICE OF COMMUNITY SERVICES, ADMINISTRATION FOR CHILDREN AND 
            FAMILIES, DEPARTMENT OF HEALTH AND HUMAN SERVICES




  --------------------------------------------------------------------
Part                                                                Page
1000            Individual Development Account Reserve Funds 
                    Established Pursuant to Grants for 
                    Assets for Independence.................         343
1050            Charitable Choice Under the Community 
                    Services Block Grant Act Programs.......         343
1080            Emergency Community Services Homeless Grant 
                    Program.................................         345

[[Page 343]]



PART 1000_INDIVIDUAL DEVELOPMENT ACCOUNT RESERVE FUNDS ESTABLISHED PURSUANT 
TO GRANTS FOR ASSETS FOR INDEPENDENCE--Table of Contents




Sec.
1000.1 Scope.
1000.2 Definitions.
1000.3 Requirements.

    Authority: 42 U.S.C. 604 nt.

    Source: 66 FR 48972, Sept. 25, 2001, unless otherwise noted.



Sec. 1000.1  Scope.

    This part applies to the Office of Community Services' Assets for 
Independence Program.



Sec. 1000.2  Definitions.

    Individual Development Account means a trust or custodial account 
created or organized in the United States exclusively for the purpose of 
paying the qualified expenses of an eligible individual, as defined in 
section 404(2) of Pub. L. 105-285, or enabling the eligible individual 
to make an emergency withdrawal as defined in section 404(3) of Pub. L. 
105-385. The written governing instrument creating the trust or 
custodial account must meet the requirements of Section 404(5) of Pub. 
L. 105-285, and of the Project Eligibility Requirements set forth in 
Program Announcements.
    Qualified Entity means one or more not-for-profit organizations 
described in section 501(c)(3) of the Internal Revenue Code of 1986 and 
exempt from taxation under section 501(a) of such Code; or a State or 
local government agency; or a tribal government which has submitted an 
application under section 405 of Pub. L. 105-285 jointly with a 
501(c)(3) organization that is exempt from taxation under 501(a) of the 
Internal Revenue Code of 1986; or an entity that is a credit union 
designated as a low-income credit union by the National Credit Union 
Administration (NCUA), or an organization designated as a community 
development financial institution by the Secretary of the Treasury (or 
Community Development Financial Institutions Fund), and can demonstrate 
a collaborative relationship with a local community-based organization 
whose activities are designed to address poverty in the community and 
the needs of community members for economic independence and stability.
    Reserve Fund means a fund, established by a qualified entity, that 
shall include all funds provided to the qualified entity from any public 
or private source in connection with the demonstration project and the 
proceeds from any investment made with such funds. The fund shall be 
maintained in accordance with section 407(c)(3), as amended. No less 
than 85 percent of the Federal grant funds in the Reserve Fund shall be 
used as matching contributions for Individual Development Accounts.

[66 FR 48972, Sept. 25, 2001, as amended at 67 FR 19518, Apr. 22, 2002]



Sec. 1000.3  Requirements.

    (a) A qualified entity, other than a State or local government 
agency or tribal government, shall establish a Reserve Fund for use in 
the Assets for Independence program. Each reserve fund established by a 
qualified entity, other than a State or local government agency or 
tribal government, is subject to the Department of Health and Human 
Services' uniform administrative requirements under 45 CFR part 74.
    (b) Any reserve fund established by a qualified entity that is a 
State or local government agency or tribal government is subject to the 
Department of Health and Human Services' uniform administrative 
requirements under 45 CFR part 92.



PART 1050_CHARITABLE CHOICE UNDER THE COMMUNITY SERVICES BLOCK GRANT ACT 
PROGRAMS--Table of Contents




Sec.
1050.1 Scope.
1050.2 Definitions.
1050.3 What conditions apply to the Charitable Choice provisions of the 
          CSBG Act?

    Authority: 42 U.S.C. 9901 et seq.

    Source: 68 FR 56469, Sept. 30, 2003, unless otherwise noted.

[[Page 344]]



Sec. 1050.1  Scope.

    This part applies to programs authorized under the Community 
Services Block Grant Act (CSBG Act). Title 42 U.S.C. 9901, 9913, 9920, 
9921, 9922, 9923.



Sec. 1050.2  Definitions.

    Applicable program means any program authorized under Title II of 
the Community Opportunities, Accountability, and Training and Education 
Act of 1998, 42 U.S.C. 9901, et seq.
    Direct funding, directly funded or funding provided directly means 
funding that is provided to an organization directly by a governmental 
entity or an intermediate organization that has the same duties as a 
governmental entity, as opposed to funding that an organization receives 
as a result of the genuine and independent private choice of a 
beneficiary.
    Intermediate organization means an organization that is authorized 
by the terms of a contract, grant or other agreement with the Federal 
Government, or a State or local government, to select other non-
governmental organizations to provide assistance under an applicable 
program. For example, when a State uses CSBG Act funds to pay for 
technical assistance services provided by a private entity and also 
authorizes that entity to subcontract for a portion of the technical 
assistance effort, the private entity is an intermediate organization.
    Program beneficiary or recipient means an individual who receives 
services under a program funded in whole or part by an applicable 
program.
    Program participant means a public or private entity that has 
received financial assistance under an applicable program.



Sec. 1050.3  What conditions apply to the Charitable Choice provisions 
of the CSBG Act?

    These Charitable Choice provisions apply whenever the Federal 
government, or a State or local government, uses funds under the CSBG 
Act to provide awards, contracts, or other assistance under any program 
authorized in the Community Services Block Grant, 42 U.S.C. 9901, et 
seq. Additionally, these provisions apply whenever an intermediate 
organization acting under a contract, grant, or other agreement with a 
Federal, State, or local government entity selects nongovernmental 
organizations to provide assistance under any of the programs authorized 
under the Community Services Block Grant Act.
    (a)(1) Religious organizations are eligible, on the same basis as 
any other organization, to participate in the applicable programs as 
long as they use program funds consistent with the Establishment Clause 
and the Free Exercise Clause of the First Amendment to the United States 
Constitution.
    (2) Neither the Federal government nor a State or local government 
receiving funds under an applicable program shall discriminate against 
an organization that applies to provide, or provides, services or 
benefits on the basis of the organization's religious character or 
affiliation.
    (b) No program participant that receives direct funding under an 
applicable program may expend the program funds for inherently religious 
activities, such as worship, religious instruction, or proselytization. 
If an organization conducts such activities, it must offer them 
separately, in time or location, from the programs or services directly 
funded under any applicable program, and participation must be voluntary 
for program beneficiaries.
    (c) A religious organization that participates in an applicable 
program will retain its independence from Federal, State, and local 
governments and may continue to carry out its mission, including the 
definition, practice and expression of its religious beliefs, provided 
that it does not expend any direct funding under the applicable program 
to support any inherently religious activities, such as worship, 
religious instruction, or proselytization. Among other things, religious 
organizations may use space in their facilities to provide services 
funded under an applicable program without removing religious art, 
icons, scriptures, or other symbols. In addition, such a religious 
organization retains the authority over its internal governance, and it 
may retain religious terms in its organization's name, select its board 
members on a religious basis, and include religious references in its 
organization's

[[Page 345]]

mission statements and other governing documents.
    (d) The participation of a religious organization in, or its receipt 
of funds from, an applicable program does not affect that organization's 
exemption provided under 42 U.S.C. 2000e-1 regarding employment 
practices.
    (e) A religious organization that receives funds under an applicable 
program, shall not, in providing program services or benefits, 
discriminate against a program beneficiary or prospective program 
beneficiary on the basis of religion or a religious belief.
    (f) Religious organizations that receive funds under an applicable 
program are subject to the same regulations as other nongovernmental 
organizations to account, in accordance with generally accepted auditing 
and accounting principles, for the use of such funds. In addition, 
religious organizations are required to keep any Federal funds they 
receive for services segregated in a separate account from non-Federal 
funds. Only the segregated government funds are subject to audit by the 
government under the applicable program.
    (g) If a State or local government contributes its own funds to 
supplement CSBG Act funded activities, the State or local government has 
the option to segregate the Federal funds or commingle them. However, if 
the funds are commingled, the Charitable Choice provisions apply to all 
of the commingled funds.
    (h) If a nongovernmental intermediate organization, acting under a 
grant, contract, or other agreement with the Federal, State or local 
government, is given the authority to select nongovernmental 
organizations to provide services under an applicable program, then the 
intermediate organization must ensure that there is compliance with 
these Charitable Choice provisions. The intermediate organization 
retains all other rights of a nongovernmental organization under the 
Charitable Choice provisions.



PART 1080_EMERGENCY COMMUNITY SERVICES HOMELESS GRANT PROGRAM--Table of 
Contents




Sec.
1080.1 Scope.
1080.2 Definitions.
1080.3 Allocation of funds.
1080.4 Eligible use of funds.
1080.5 Application procedures for States.
1080.6 Funding of alternative organizations.
1080.7 Funding of Indian tribes.
1080.8 Reporting requirements.
1080.9 Other requirements.

    Authority: 42 U.S.C. 11302 (101 Stat. 485); 42 U.S.C. 11461-11464, 
11472 (101 Stat. 532-533), as amended.

    Source: 54 FR 6372, Feb. 9, 1989, unless otherwise noted.



Sec. 1080.1  Scope.

    This part applies to the Emergency Community Services Homeless Grant 
Program.



Sec. 1080.2  Definitions.

    (a) Homeless or homeless individual includes:
    (1) An individual who lacks a fixed, regular, and adequate nighttime 
residence; and
    (2) An individual who has a primary nighttime residence that is:
    (i) A supervised publicly or privately operated shelter designed to 
provide temporary living accommodations (including welfare hotels, 
congregate shelters, and transitional housing for the mentally ill);
    (ii) An institution that provides a temporary residence for 
individuals intended to be institutionalized; or
    (iii) A public or private place not designed for, or ordinarily used 
as, a regular sleeping accommodation for human beings.

The term homeless or homeless individual does not include any individual 
imprisoned or otherwise detained pursuant to an Act of the Congress or a 
State law.
    (b) Indian tribe means any tribe, band, nation, or other organized 
group or community of Indians, including any Alaska Native village or 
regional or village corporation (as defined in, or established pursuant 
to, the Alaska Native Claims Settlement Act), that is recognized by the 
Federal Government as eligible for special programs and

[[Page 346]]

services provided to Indians because of their status as Indians.
    (c) State includes the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, 
the Commonwealth of the Northern Mariana Islands, and the Republic of 
Palau.



Sec. 1080.3  Allocation of funds.

    From the amounts made available under the Emergency Community 
Services Homeless Grant Program, the Secretary shall make grants to 
States that administer programs under the Community Services Block Grant 
Act (42 U.S.C. 9901 et seq.), after taking into account the amount set 
aside for Indian tribes in Sec. 1080.7(a) of this chapter. Such grants 
shall be allocated to the States in accordance with the formula set 
forth in subsections (a) and (b) of section 674 of such Act (42 U.S.C. 
9903 (a) and (b)). No funds shall be allocated under subsection (c) of 
section 674 of such Act (42 U.S.C. 9903(c)).



Sec. 1080.4  Eligible use of funds.

    Amounts awarded under the Emergency Community Services Homeless 
Grant Program may be used only for the following purposes:
    (a) Expansion of comprehensive services to homeless individuals to 
provide follow-up and long-term services to help them make the 
transition out of poverty;
    (b) Renovation of buildings to be used to provide such services, 
except that not more than 50 percent of such amounts may be used for 
such purpose, and provided that all procedures required under the 
National Historic Preservation Act are followed;
    (c) Provision of assistance in obtaining social and maintenance 
services and income support services for homeless individuals;
    (d) Promotion of private sector and other assistance to homeless 
individuals; and
    (e) After October 1, 1988, provision of assistance to any individual 
who has received a notice of foreclosure, eviction, or termination of 
utility services, if--
    (1) The inability of the individual to make mortgage, rental, or 
utility payments is due to a sudden reduction in income;
    (2) The assistance is necessary to avoid the foreclosure, eviction, 
or termination of utility services; and
    (3) There is a reasonable prospect that the individual will be able 
to resume the payments within a reasonable period of time.
    (f) Provision of, or referral to, violence counseling for homeless 
children and individuals, and the provision of violence counseling 
training to individuals who work with homeless children and individuals; 
and,
    (g) Not more than 5 percent of the amount received will be used to 
defray State administrative costs.

[54 FR 6372, Feb. 9, 1989, as amended at 57 FR 27946, June 23, 1992]



Sec. 1080.5  Application procedures for States.

    (a) Each State requesting funds under the Emergency Community 
Services Homeless Grant Program shall submit to the Office of Community 
Services an application for funds for each fiscal year, at a time 
established by the Secretary. Approval must be requested of and received 
from the Office of Community Services before a State may implement 
changes to the information requested by paragraph (b) of this section 
after an application has been approved.
    (b) The application may be in any format, but must include a 
description of the agencies, organizations, and activities that the 
State intends to support with the amounts received. In addition, the 
application must include the following assurances, signed by the 
Governor or his/her designee:
    (1) The State will award not less than 95 percent of the amounts it 
receives to:
    (i) Community action agencies and other organizations that are 
eligible to receive amounts under section 675(c)(2)(A) of the Community 
Services Block Grant Act (42 U.S.C. 9904(c)(2)(A));
    (ii) Organizations serving migrant and seasonal farmworkers; and
    (iii) Any organization to which a State, that applied for and 
received a waiver from the Secretary under Public Law 98-139, made a 
grant under the

[[Page 347]]

Community Services Block Grant Act (42 U.S.C. 9901 et seq.) for fiscal 
year 1984;
    (2) No amount received will be used to supplant other programs for 
homeless individuals administered by the State;
    (3) Not more than 5 percent of the amount received will be used to 
defray State administrative costs;
    (4) Every effort will be made to award the funds within 60 days of 
their receipt;
    (5) Not more than 25 percent of the amounts received will be used 
for the purpose described in Sec. 1080.4(e) of these regulations; and
    (6) The State will have mechanisms in place to assure coordination 
among State and local agencies serving the homeless. This will include 
coordination at the State level with the agency responsible for 
developing the Comprehensive Homeless Assistance Plan or the 
Comprehensive Housing Affordability Strategy as required by section 401 
of such Act (42 U.S.C. 11361), as amended by section 836 of the 
Cranston-Gonzalez National Affordable Housing Act.
    (7) The State will have procedures in place to assure compliance 
with the provisions of the National Historic Preservation Act prior to 
the awarding of any amounts to be used for renovating any properties 
that are listed on, or eligible for inclusion on, the National Register 
of Historic Places.

(Information collection requirements are approved by the Office of 
Management and Budget under control number 0970-0088)

[54 FR 6372, Feb. 9, 1989, as amended at 57 FR 27946, June 23, 1992]



Sec. 1080.6  Funding of alternative organizations.

    (a) If a State does not apply for or submits an approvable 
application for a grant under the Emergency Community Services Homeless 
Grant Program, the Secretary shall use the amounts that would have been 
allocated to that State to make grants to agencies and organizations in 
the State that meet the requirements of Sec. 1080.5(b)(1).
    (b) The amounts allocated under this section in any fiscal year 
shall be awarded to eligible agencies and organizations in the same 
proportion as funds distributed to those agencies and organizations by 
the State for the previous fiscal year under the Community Services 
Block Grant Program (42 U.S.C. 9904(c)(2)(A)).
    (c) Agencies and organizations eligible to be funded under this 
section shall submit an application meeting the requirements of 
Sec. Sec. 1080.5(a) and 1080.5(b)(2), (3), (5), (6) and (7), at a time 
specified by the Secretary. If such an agency or organization does not 
apply for or submit an approvable application under this section, the 
funds that would have been allocated to them shall be reallocated by the 
Secretary to the remaining eligible agencies and organizations on a pro 
rata basis.

[54 FR 6372, Feb. 9, 1989, as amended at 57 FR 27946, June 23, 1992]



Sec. 1080.7  Funding of Indian tribes.

    (a) Not less than 1.5 percent of the funds provided in each fiscal 
year for the Emergency Community Services Homeless Grant Program shall 
be allocated by the Secretary directly to Indian tribes that have 
applied for and received a direct grant award under section 674(c) of 
the Community Services Block Grant Act (41 U.S.C. 9903(c)) for that 
fiscal year.
    (b) An Indian tribe funded under this section is not required to 
submit an application for Emergency Community Services Homeless Grant 
Program funds. A tribe's application for a direct grant award under 
section 674(c) of the Community Services Block Grant Act (42 U.S.C. 
9903(c)) that is submitted by September 1 for the succeeding fiscal year 
will be considered as an application for Emergency Community Services 
Homeless Grant Program funds for that fiscal year. Acceptance of the 
Community Services Block Grant application by the Office of Community 
Services will constitute approval of an award of funds under this 
section.
    (c) Funds allocated under this section shall be allotted to an 
Indian tribe in an amount that bears the same ratio to all the funds 
allocated under this section as the tribe's poverty population bears to 
the total poverty population of all tribes funded under this section, 
except that no tribe shall receive an amount of less than:

[[Page 348]]

    (1) $500, for those tribes whose allocation under this section would 
otherwise be at least $1 but no more than $500; or
    (2) $1000, for those tribes whose allocation under this section 
would otherwise be at least $501 but less than $1000.
    (d) For purposes of this section, an Indian tribe's poverty 
population shall be calculated by multiplying the tribe's overall 
population by the Indian rural poverty rate for the State in which it is 
located, using the population and rural poverty rate figures established 
for the purposes of making direct grants under section 674(c) of the 
Community Services Block Grant Act (42 U.S.C. 9903(c)).



Sec. 1080.8  Reporting requirements.

    Each recipient of funds under the Emergency Community Services 
Homeless Grant Program shall submit an annual report to the Secretary, 
within 6 months of the end of the period covered by the report, on the 
expenditure of funds and the implementation of the program for that 
fiscal year.
    (a) The report is to state the types of activities funded, any 
efforts undertaken by the grantee and its subgrantees to coordinate 
homeless activities funded under this program with other homeless 
assistance activities in the State and communities, the number of 
individuals served and any impediments, including statutory and 
regulatory restrictions to homeless individuals' use of the program and 
to their obtaining services or benefits under the program.
    (b) Such annual report shall provide information on the use of funds 
to defray State administrative costs, including the types of activities 
which specifically address services to the homeless and also those 
activities that are related to the administrative costs associated with 
the coordination and integration of services to the homeless.
    (c) States shall also provide information in the annual report which 
details programs, progress, and activities that are specifically related 
to expenditures for renovation, including the effects of such activities 
on historic properties, and the provision of, or referral to, services 
for domestic violence.

(Information collection requirements are approved by the Office of 
Management and Budget under control number 0970-0088)

[57 FR 27946, June 23, 1992]



Sec. 1080.9  Other requirements.

    All recipients of grants under the Emergency Community Services 
Homeless Grant Program shall be subject to the following regulations 
applicable to the block grant programs in the Department of Health and 
Human Services:
    (a) 45 CFR part 96, subpart B, Sec. 96.12--Grant Payment, 
concerning the timing and method of disbursing grant awards;
    (b) 45 CFR part 96, subpart B, Sec. 96.14--Time Period for 
Obligation and Expenditure of Grant Funds, as amended, concerning the 
availability of grant funds;
    (c) 45 CFR part 96, subpart C--Financial Management, as amended, 
concerning financial management and audit requirements;
    (d) 45 CFR part 96, subpart E--Enforcement, as amended, concerning 
enforcement and complaint procedures; and
    (e) 45 CFR part 96, subpart F--Hearing Procedures, concerning 
hearing procedures.

[[Page 349]]



     CHAPTER XI--NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES




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


  Editorial Note: Nomenclature changes to chapter XI appear at 66 FR 
47096, Sept. 11, 2001.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1100            Statement for the guidance of the public--
                    organization, procedure and availability 
                    of information..........................         351
1105            Standards of conduct for employees..........         355
1110            Nondiscrimination in federally assisted 
                    programs................................         355
1115            Privacy Act regulations.....................         366
              SUBCHAPTER B--NATIONAL ENDOWMENT FOR THE ARTS
1150            Collection of claims........................         371
1151            Nondiscrimination on the basis of handicap..         383
1152            Intergovernmental review of National 
                    Endowment for the Arts programs and 
                    activities..............................         392
1153            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the National 
                    Endowment for the Arts..................         395
1154            Governmentwide debarment and suspension 
                    (nonprocurement)........................         401
1155            Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         424
1156            Nondiscrimination on the basis of age.......         430
1157            Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    state and local governments.............         436
1158            New restrictions on lobbying................         463

[[Page 350]]

1159            Implementation of the Privacy Act of 1974...         475
      SUBCHAPTER C--FEDERAL COUNCIL ON THE ARTS AND THE HUMANITIES
1160            Indemnities under the Arts and Artifacts 
                    Indemnity Act...........................         484
           SUBCHAPTER D--NATIONAL ENDOWMENT FOR THE HUMANITIES
1168            New restrictions on lobbying................         489
1169            Governmentwide debarment and suspension 
                    (nonprocurement)........................         500
1170            Nondiscrimination on the basis of handicap 
                    in federally assisted programs or 
                    activities..............................         522
1173            Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         535
1174            Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    state and local governments.............         540
1175            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the National 
                    Endowment for the Humanities............         567
1176            Part-time career employment.................         573
1177            Claims collection...........................         574
1178            Use of penalty mail in the location and 
                    recovery of missing children............         577
1179            Salary offset...............................         578
         SUBCHAPTER E--INSTITUTE OF MUSEUM AND LIBRARY SERVICES
1180            Grants regulations..........................         583
1181            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Institute of 
                    Museum and Library Services.............         604
1183            Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    state and local governments.............         610
1185            Governmentwide debarment and suspension 
                    (nonprocurement)........................         637
1186            Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         659
1187-1199

[Reserved]

[[Page 351]]



                          SUBCHAPTER A_GENERAL





PART 1100_STATEMENT FOR THE GUIDANCE OF THE PUBLIC_ORGANIZATION, PROCEDURE 
AND AVAILABILITY OF INFORMATION--Table of Contents




Sec.
1100.1 Definitions.
1100.2 Organization.
1100.3 Availability of information to the public.
1100.4 Current index.
1100.5 Agency procedures for handling requests for documents.
1100.6 Fees.
1100.7 Foundation report of actions.

    Authority: 5 U.S.C. 552, as amended by Pub. L. 99-570, 100 Stat. 
3207.

    Source: 52 FR 48266, Dec. 21, 1987, unless otherwise noted.



Sec. 1100.1  Definitions.

    (a) Agency means the National Endownment for the Arts, the National 
Endowment for the Humanities, the Institute of Museum and Library 
Services, or the Federal Council on the Arts and the Humanities.
    (b) Commercial use request means a request by or on behalf of anyone 
who seeks information for a use or purpose that furthers the commercial 
trade or profit interests of the requestor (or the person on whose 
behalf the request is made.) The agency must determined the use to which 
a requestor will put the document. Where the agency has reasonable cause 
to doubt the use to which a requestor will put the records sought or the 
use is not clear from the request, the agency may seek additional 
clarification. The requestor fears the burden of demonstrating the use 
or purpose of the information requested.
    (c) Direct costs mens those expenditures which an agency actually 
incurs in searching for and duplication documents to respond to a 
Freedom of Information Act (FOIA) request. In the case of commercial use 
requests, the term shall also include expenditures for reviewing 
documents.
    (d) Duplication means the process of making a copy of a document 
necessary to respond to a FOIA request. Such copies may be in the form 
of paper, microfilm, machine readable documents, or other materials.
    (e) Educational institution means a preschool, elementary, or 
secondary school, an institution of graduate or undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, which operates a program or programs of 
scholarly research.
    (f) Non-commercial scientific institution means an institution that 
is not operated on a ``commercial use'' basis as defined in paragraph 
(b) of this section and which is operated solely for the purposes of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry.
    (g) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast information that is about current events or that would be 
of current interest to the public. Freelance journalists may be regarded 
as working for a news organization if they can demonstrate a sound basis 
for expecting publication though that organization, even though not 
actually employed by it.
    (h) Review means the process of examining a document located in 
response to a commercial use request to determine whether any portion is 
permitted to be withheld. Review includes processing documents for 
disclosure, including all that is necessary to excise them and otherwise 
prepare them for release. Review does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (i) Search means all the time that is spent looking for material 
that responds to a request, including page-by-page or line-by-line 
identification of material in documents. Searches may be done manually 
or by computer using exisiting programs.



Sec. 1100.2  Organization.

    The National Foundation on the Arts and the Humanities was 
established by the National Foundation on the Arts

[[Page 352]]

and the Humanities Act of 1965, 20 U.S.C. 951 et seq. The Foundation is 
composed of the National Endowment for the Arts, the National Endowment 
for the Humanities, the Institute of Museum and Library Services, and 
the Federal Council on the Arts and the Humanities. The Institute of 
Museum and Library Services became a part of the National Foundation on 
the Arts and the Humanities pursuant to Pub. L. 97-394 (December 30, 
1982) and Pub. L. 98-306 (May 31, 1984). Each Endowment is headed by a 
Chairman and has an advisory national council composed of 26 
presidential appointees. The Institute of Museum and Library Services is 
headed by a Director and has a National Museum Services Board composed 
of 15 presidential appointees. The Federal Council on the Arts and the 
Humanities, comprised of Executive branch officials and appointees of 
the legislative branch, is authorized to make agreements to indemnify 
against loss or damage for certain exhibitions and advise on arts and 
humanities matters.



Sec. 1100.3  Availability of information to the public.

    (a) All inquiries, or requests should be addressed to the 
appropriate agency. Descriptive brochures of the organization, programs, 
and function of each agency are available upon request. Inquiries 
involving work of the National Endowment for the Arts should be 
addressed to the National Endowment for the Arts, 1100 Pennsylvania 
Avenue, NW., Washington, DC 20506. The telephone number of the National 
Endowment for the Arts is (202) 682-5400. Requests or inquiries 
involving the National Endowment for the Humanities should be addressed 
to the National Endowment for the Humanities, 1100 Pennsylvania Avenue, 
NW., Washington, DC 20506. The telephone number of the National 
Endowment for the Humanities is (202) 786-0310. Requests or inquiries 
involving the Institute of Museum and Library Services should be 
addressed to the Institute of Museum and Library Services, 1100 
Pennsylvania Avenue, NW., Washington, DC 20506. The telephone number of 
the Institute of Museum and Library Services is (202) 786-0536.
    (b) The head of each agency is responsible for the effective 
administration of the Freedom of Information Act. The head of each 
agency pursuant to this responsibility hereby directs that every effort 
be expended to facilitate service to the public with respect to the 
obtaining of information and records.
    (c) Requests for access to records of the National Endowment for the 
Arts, the National Endowment for the Humanities, or the Institute of 
Museum and Library Services may be filed by mail with the General 
Counsel of the National Endowment for the Arts, the Deputy Chairman of 
the National Endowment for the Humanities, or the Public Affairs Officer 
of the Institute of Museum and Library Services, as is appropriate. 
Requests for access to records of the Federal Council on the Arts and 
the Humanities should be directed to the attention of the National 
Endowment for the Humanities. All requests should reasonably describe 
the record or records sought. Requests submitted should be clearly 
identified as being made pursuant to the Freedom of Information Act.



Sec. 1100.4  Current index.

    Each agency shall maintain and make available for public inspection 
and copying a current index providing identifying information for the 
public as to any matter which is issued, adopted, or promulgated and 
which is required to be made available pursuant to 5 U.S.C. 552(a) (1) 
and (2). Publication and distribution of such indices has been 
determined by the Foundation to be unnecessary and impracticable. The 
indices will be provided upon request at a cost not to exceed the direct 
cost of the duplication.



Sec. 1100.5  Agency procedures for handling requests for documents.

    (a) Upon receiving a request for documents in accordance with the 
rules of this part, the General Counsel of the National Endowment for 
the Arts, Deputy Chairman of the National Endowment for the Humanities, 
or the Public Affairs Officer of the Institute of Museum and Library 
Services, as is appropriate, shall determine whether or not

[[Page 353]]

the request shall be granted in whole or in part.
    (1) The determination shall be made within ten (10) days (excepting 
Saturdays, Sundays, and legal holidays) after receipt of such request.
    (2) The requestor shall be notified of the determination and the 
reasons that support it. When a request is denied in whole or in part, 
the requestor, will be notified of his or her rights to appeal the 
determination to the head of the agency.
    (b)(1) Any party whose request for documents has been denied in 
whole or in part may file an appeal no later than ten (10) working days 
following receipt of the notification of denial. Appeals must be 
addressed to the Chairman, National Endowment for the Arts, Washington, 
DC 20506, the Chairman, National Endowment for the Humanities, 
Washington, DC 20506, or the Director Institute of Museum and Library 
Services, Washington, DC 20506, as is appropriate.
    (2) The head of the agency or his delegatee shall make a 
determination with respect to the appeal within twenty (20) days 
(excepting Saturdays, Sundays, and legal holidays) after the agency has 
received the appeal, except as provided in paragraph (c) of this 
section. If, on appeal, the denial is upheld either in whole or in part, 
the head of the agency shall notify the party submitting the appeal of 
the judicial review provisions of 5 U.S.C. 552(a)(4)(B).
    (c) In unusual circumstances, the time limits prescribed to 
determine a request for documents with respect to initial actions or 
actions on appeal may be extended by written notice from the General 
Counsel of the National Endowment for the Arts, the Deputy Chairman of 
the National Endowment for the Humanities, or the Public Affairs Officer 
of the Institute of Museum and Library Services as is appropriate. The 
notice shall describe the reason for the extension and the date on which 
the determination is expected to be made. No notice shall specify a date 
that would result in an extension of more than ten (10) days (excepting 
Saturdays, Sundays, and legal holidays). As is used in this paragraph, 
unusual circumstances means:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
volumious amount of separate and distinct records which are demanded in 
a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having a substantial subject-matter interest in the request.



Sec. 1100.6  Fees.

    (a) Categories of fees. Fees will be charged according to the 
Category of the FOIA request.
    (1) Commercial use requests. The agency will assess charges to 
recover the full direct cost of searching for, reviewing, and 
duplicating the requested document. The agency may recover the cost of 
searching for and reviewing records even if there is ultimately no 
disclosure.
    (2) Requests from educational and non-commercial scientific 
institutions. The agency will charge for duplication costs. To qualify 
for this category the requestor must show: (i) That requested records 
are being sought under the auspices of a qualified institution as 
defined in Sec. 1100.1 (e) or (f) of this part; (ii) the records are 
not sought for commercial use; and (iii) the records are being sought in 
furtherance of scholarly or scientific research of the institution.
    (3) Requests by representatives of the news media. The agency will 
charge duplication costs for the requests in this category.
    (4) All other requests. All other requests shall be charged fees 
which, recover the full reasonable cost for searching for and 
duplicating the requested records.
    (b) General fee schedule. The agency shall use the most efficient 
and least costly method to comply with requests for documents made under 
the FOIA. The agency will charge fees to recover all allowable direct 
costs incurred. The

[[Page 354]]

agency may charge fees for searching for and reviewing requested 
documents even if the documents are determined to be exempt from 
disclosure or cannot be located. If search charges are likely to exceed 
$25, the agency shall notify the requestor, unless the requestor has 
indicated in advance the willingness to pay higher fees. The following 
fees shall be charged in accordance with paragraph (a) of this section.
    (1) Searches--(i) Manual. The fee charged will be the salary rate(s) 
(i.e., basic pay plus 16.1 percent) of the employee(s) conducting the 
search.
    (ii) Computer. The fee charged will be the actual direct cost of 
providing the service including the cost of operating the central 
processing unit for the operating time that is directly attributed to 
searching for records responsive to a request and the operator/
programmer salary apportionable to the search.
    (2) Review. The fee charged will equal the salary rate(s) (basic pay 
plus 16.1 percent) of the employee(s) conducting the review.
    (3) Duplication. Copies of documents photocopied on one-side of a 
8\1/2\x11 inch sheet of paper will be provided at $.10 per page. 
Photocopies on two sides of a single 8\1/2\x11 inch sheet of paper will 
be provided at $.20 per page. For duplication of other materials, the 
charge will be the direct cost of duplication.
    (c) Restrictions on charging fees. (1) Except for documents provided 
in response to a commercial use request, the first 100 pages of 
duplication or the first two (2) hours of search time shall be provided 
at no charge. For the purposes of this section, two (2) hours of search 
time by computer entitles the requestor to two (2) hours of computer 
operator salary translated into computer search costs. Computer search 
costs consist of operator salary plus central proceeding unit operating 
time costs for the duration of the search.
    (2) Fees shall not be charged to any requestor, including commercial 
use requestors, if the cost of collecting a fee would be equal to or 
greater than the fee itself.
    (d) Waiver or reduction of fees. (1) Documents shall be furnished 
without charge or at reduced charge if disclosure of the information is 
in the public interest because it is likely to contribute significantly 
to public understanding of the operations or activities of the 
government and is not primarily in the commercial interest of the 
requestor.
    (2) The following factors shall be used to determine whether a fee 
will be waived or reduced:
    (i) The subject of the request. Whether the subject of the requested 
records concerns ``the operations or activities of the government'';
    (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;
    (iii) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. Whether disclosure of 
the requested information will contribute to ``public understanding'';
    (iv) The significance of the contribution to public understanding. 
Whether disclosure is likely to contribute ``significantly'' to public 
understanding of government operations or activities;
    (v) The existence and magnitude of a commercial interest. Whether 
the requestor has a commercial interest that would be furthered by the 
disclosure; and if so
    (vi) The primary interest in disclosure. Whether the magnitude of 
the identified commercial interest of the requestor is sufficiently 
large in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requester.''
    (e) Assessment and collection of fees. (1) Interest will accrue from 
the date the bill is mailed if the fee is not paid within thirty (30) 
days. Interest will be assessed at the rate prescribed in 31 U.S.C. 
3717.
    (2) If the agency reasonably believes that a requestor(s) is making 
multiple requests to avoid the assessment of fees, the agency may 
aggregate such requests and charge accordingly.
    (3) The agency may request an advance payment of the fee if
    (i) The allowable charges are likely to exceed $250; or
    (ii) The requestor has failed previously to pay a fee in a timely 
fashion.

[[Page 355]]

    (4) When the agency requests an advance payment, the time limits 
prescribed in section (a)(6) of the Freedom of Information Act will 
begin only after the agency has received full payment.



Sec. 1100.7  Foundation report of actions.

    On or before March 1 of each calendar year, each member agency of 
the National Foundation on the Arts and the Humanities shall submit a 
report of its activities with regard to public information requests 
during the preceding calendar year to the Speaker of the House of 
Representatives and to the President of the Senate. The report shall 
include:
    (a) The number of determinations made by each member agency of the 
National Foundation on the Arts and the Humanities not to comply with 
requests for records made to the agency under the provisions of this 
part and the reasons for each such determination;
    (b) The number of appeals made by persons under such provision, the 
result of such appeals, and the reasons for the action upon each appeal 
that results in the denial of information;
    (c) The names and titles or positions of each person responsible for 
the denial of records requested under the provisions of this part and 
the number of instances of participation for each;
    (d) The results of each proceeding conducted pursuant to 5 U.S.C. 
552(a)(4)(F), as amended, including a report of the disciplinary action 
taken against the officer of employee who was primarily responsible for 
improperly withholding records or an explanation of why disciplinary 
action was not taken;
    (e) A copy of every rule made by the Foundation implementing the 
provisions of the FOIA.
    (f) A copy of the fee schedule and the total amount of fees 
collected by the agency for making records available under this section; 
and
    (g) Such other information as indicates efforts to administer the 
provisions of the FOIA, as amended.



PART 1105_STANDARDS OF CONDUCT FOR EMPLOYEES--Table of Contents




    Authority: 5 U.S.C. 7301.

    Source: 68 FR 52702, Sept. 5, 2003, unless otherwise noted.



Sec. 1105.1  Cross-reference to employee ethical conduct standards and 
financial disclosure and financial interests regulations.

    Employees of the National Endowment for the Arts and the National 
Endowment for the Humanities are subject to the executive branchwide 
standards of ethical conduct at 5 CFR part 2635; the executive branch 
employees responsibilities and conduct regulations at 5 CFR part 735; 
the executive branch financial disclosure regulations at 5 CFR part 
2634, and the executive branch financial interests regulations at 5 CFR 
part 2640. Employees of the National Endowment for the Arts are also 
subject to that Agency's regulations at 5 CFR part 6501, which 
supplement the executive branchwide standards of conduct at 5 CFR part 
2635. Employees of the National Endowment for the Humanities are also 
subject to that Agency's regulations at 5 CFR part 6601, which 
supplement the executive branchwide standards of conduct at 5 CFR part 
2635.



PART 1110_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS--Table of 
Contents




Sec.
1110.1 Purpose.
1110.2 Application of part.
1110.3 Discrimination prohibited.
1110.4 Assurances required.
1110.5 Illustrative applications.
1110.6 Compliance information.
1110.7 Conduct of investigations.
1110.8 Procedure for effecting compliance.
1110.9 Hearings.
1110.10 Decisions and notices.
1110.11 Judicial review.
1110.12 Effect on other regulations; forms and instructions.
1110.13 Definitions.

Appendix A to Part 1110--Federal Financial Assistance to Which This Part 
          Applies

    Authority: 42 U.S.C. 2000d-2000d-7.

[[Page 356]]


    Source: 38 FR 17991, July 5, 1973, unless otherwise noted.



Sec. 1110.1  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''), 
42 U.S.C. 2000d et seq., 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 or activity receiving 
Federal financial assistance from the National Endowment for the Arts, 
the National Endowment for the Humanities, or the Institute of Museum 
and Library Services.

[62 FR 66826, Dec. 22, 1997]



Sec. 1110.2  Application of part.

    This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the National 
Endowment for the Arts, the National Endowment for Humanities, or the 
Institute of Museum and Library Services, including the types of Federal 
financial assistance listed in appendix A of this part. It applies to 
money paid, property transferred, or other Federal financial assistance 
extended after the effective date of the part, including assistance 
pursuant to an application approved prior to such date. It also applies 
to federal financial assistance extended to any such program prior to 
the effective date of this part under a contract or grant where the term 
of the contract or grant continues beyond such date or where the 
assistance was to provide real or personal property and the recipient or 
his transferee continues to use or retain ownership or possession of the 
property (see Sec. 1110.4(a)(1)). This part does not apply to (a) any 
Federal financial assistance by way of insurance or guaranty contract, 
(b) any assistance to any individual who is the ultimate beneficiary 
under any such program, or (c) any employment practice, under any such 
program, of any employer, employment agency, or labor organization, 
except to the extent described in Sec. 1110.3. The fact that a type of 
Federal financial assistance is not listed in Appendix A shall not mean, 
if title VI of the Act is otherwise applicable, that a program is not 
covered. Other types of Federal financial assistance under statutes now 
in force or hereinafter enacted may be added to this list by notice 
published in the Federal Register.

[38 FR 17991, July 5, 1973, as amended at 62 FR 66826, Dec. 22, 1997; 68 
FR 51384, Aug. 26, 2003]



Sec. 1110.3  Discrimination prohibited.

    (a) General. No person in the United States shall, on grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected, to discrimination 
under any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient 
under any program to which this part applies may not directly or through 
contractual or other arrangements, on the ground of race, color, or 
national origin:
    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership, or other requirement or condition which individuals must 
meet in order to be provided any service, financial aid, or other 
benefit provided under the program;
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity

[[Page 357]]

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).
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals 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 individuals to be 
afforded an opportunity to participate in any such program, may not 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals 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 respects individuals 
of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination under any program to which this regulation 
applies, on the grounds of race, color, or national origin; or with the 
purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the Act or this regulation.
    (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 in or through a facility provided with the aid of Federal 
financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph and paragraph (c) of this section does not limit the 
generality of the prohibition in paragraph (a) of this section.
    (6) This regulation does not prohibit the consideration of race, 
color, or national origin if the purpose and effect are to remove or 
overcome the consequences of practices or impediments which have 
restricted the availability of, or participation in, the program or 
activity receiving Federal financial assistance, on the grounds of race, 
color, or national origin. Where previous discriminatory practice or 
usage tends, on the grounds of race, color, or national origin, to 
exclude individuals from participation in, to deny them the benefits of, 
or to subject them to discrimination under any program or activity to 
which this regulation applies the applicant or recipient has an 
obligation to take reasonable action to remove or overcome the 
consequences of the prior discriminatory practice or usage, and to 
accomplish the purposes of the Act.
    (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 may not directly or through 
contractual or other arrangements subject an individual to 
discrimination on the ground of race, color, or national origin in its 
employment practices under such program (including recruitment or 
recruitment advertising employment, layoff or termination, upgrading, 
demotion, or transfer, rates of pay or other forms of compensation and 
use of facilities), including programs where a primary objective of the 
Federal financial assistance is (i) to assist such individuals through 
employment to meet expenses incident to the commencement or continuation 
of their education or training or (ii) to provide work experience which 
contributes to the education or training of such individuals or (iii) to 
reduce the unemployment of such individuals or to help them through 
employment to meet subsistence needs.
    (2) The requirements applicable to construction employment under any 
such program shall be those specified in or pursuant to Executive Order 
11246 or any executive order which supersedes it.
    (3) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the grounds of 
race, color, or national

[[Page 358]]

origin, to exclude individuals from participation in, to deny them the 
benefits of, or to subject them to discrimination under any program to 
which this regulation applies, the provisions of the foregoing 
subparagraph of this paragraph (c) shall apply to the employment 
practices of the recipient or other persons subject to the regulation, 
to the extent necessary to assure equality of opportunity to and 
nondiscriminatory treatment of, beneficiaries.
    (d) Medical emergencies. Notwithstanding the foregoing provisions of 
this section, a recipient of Federal financial assistance shall not be 
deemed to have failed to comply with paragraph (a) of this section if 
immediate provision of a service or other benefit to an individual is 
necessary to prevent his death or serious impairment of his health and 
such service or other benefit cannot be provided except by or through a 
medical institution which refuses or fails to comply with paragraph (a) 
of this section.



Sec. 1110.4  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this part. In the case where the 
Federal financial assistance is to provide or is in the form of personal 
property, or real property or interest therein or structures thereon, 
the assurance shall obligate the recipient, or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
property is used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services and benefits, or for as long as the recipient retains 
ownership or possession of the property, whichever is longer; and 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. The responsible Endowment official shall 
specify the form of the foregoing assurances and the extent to which 
like assurances will be required of subgrantees, contractors and 
subcontractors, successors in interest, and other participants. Any such 
assurance shall include provisions which give the United States a right 
to seek its judicial enforcement.
    (2) In the case of real property, structures or improvements 
thereon, or interests therein, which was acquired with 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. Where no transfer of property is involved, but property is 
improved with Federal financial assistance, the recipients 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 Endowment to revert title to the property in the event 
of a breach of the covenant where, in the discretion of the responsible 
Endowment official, such a condition and right of reverter is 
appropriate to the statute under which the real property is obtained and 
to the nature of the grant and the grantee. In the event 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 Chairman of the Endowment concerned 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

[[Page 359]]

lien of such mortgage or other encumbrance remains effective.
    (3) Transfers of surplus property are subject to regulations issued 
by the Administrator of the General Services Administration. (41 CFR 
101-6.2)
    (b) Continuing Federal financial assistance. Every application by a 
State or a State agency for continuing Federal financial assistance to 
which this part applies shall as a condition to its approval and the 
extension of any Federal financial assistance pursuant to the 
application (1) contain or be accompanied by a statement that the 
program is (or, in the case of a new program, will be) conducted in 
compliance with all requirements imposed by or pursuant to this part, 
and (2) provide or be accompanied by provision for such methods of 
administration for the program as are found by the responsible Endowment 
official to give reasonable assurance that the applicant and all 
recipients of Federal financial assistance under such program will 
comply with all requirements imposed by or pursuant to this part.
    (c) Elementary and secondary schools. The requirements of paragraph 
(a) of this section with respect to any elementary or secondary school 
or school system shall be deemed to be satisfied if such school or 
school system (1) is subject to a final order of a court of the United 
States for the desegregation of such school or school system, and 
provides an assurance that it will comply with such order, including any 
future modification of such order, or (2) submits a plan for the 
desegregation of such school or school system which the responsible 
official of the Department of Health, Education, and Welfare determines 
is adequate to accomplish the purposes of the Act and this part within 
the earliest practicable time and provides reasonable assurance that it 
will carry out such plan. In any case of continuing Federal financial 
assistance, the responsible official of the Department of Health, 
Education, and Welfare may reserve the right to redetermine, after such 
period as may be specified by him, the adequacy of the plan to 
accomplish the purposes of the Act and this part. In any case in which a 
final order of a court of the United States for the desegregation of 
such school or school system is entered after submission of such a plan, 
such plan shall be revised to conform to such final order, including any 
future modification of such order.
    (d) Assurances from institutions. (1) In the case of any application 
for Federal financial assistance to an institution of higher education 
(including assistance for construction, for research, for a special 
training project, or for any other purpose), the assurance required by 
this section shall extend to admission practices and to all other 
practices relating to the treatment of students.
    (2) The assurance required with respect to an institution of higher 
education or any other institution, insofar as the assurance relates to 
the institution's practices with respect to admission or other treatment 
of individuals as students, or clients of the institution or to the 
opportunity to participate in the provision of services or other 
benefits to such individuals, shall be applicable to the entire 
institution.

[38 FR 17991, July 5, 1973, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 1110.5  Illustrative applications.

    The following examples will illustrate the application of the 
foregoing provisions to some of the activities for which Federal 
financial assistance is provided by the Endowments. (In all cases the 
discrimination prohibited is discrimination on the ground of race, 
color, or national origin prohibited by title VI of the Act and this 
part, as a condition of the receipt of Federal financial assistance.)
    (a) In a research, training, or other grant to a university for 
activities to be conducted in a graduate school, discrimination in the 
admission and treatment of students in the graduate school is 
prohibited, and the prohibition extends to the entire university.
    (b) In cases of Federal financial assistance to elementary or 
secondary schools, discrimination by the recipient school district in 
any of its elementary or secondary schools, or by the recipient private 
institution, in the admission of students, or in the treatment of its 
students in any aspect of the educational process, is prohibited. In 
this and the following illustration

[[Page 360]]

the prohibition of discrimination in the treatment of students or other 
trainees includes the prohibition of discrimination among the students 
or trainees in the availability or use of any academic, dormitory, 
eating, recreational, or other facilities of the grantee or other 
recipient.
    (c) In a training grant to a nonacademic institution, discrimination 
is prohibited in the selection of individuals to be trained and in their 
treatment by the grantee during their training. In a research or 
demonstration grant to such an institution, discrimination is prohibited 
with respect to any educational activity, any provision of medical or 
other services and any financial aid to individuals incident to the 
program.
    (d) Where Federal financial assistance is provided to assist in the 
presentation of artistic and cultural productions to the public, 
assurances will be required that such productions will not be presented 
before any audience which has been selected on a discriminatory basis.
    (e) A recipient may not take action that is calculated to bring 
about indirectly what this part forbids it to accomplish directly. Thus, 
a State, in selecting projects to be supported through a State agency, 
may not base its selections on criteria which have the effect of 
defeating or substantially impairing accomplishment of the objectives of 
the Federal financial assistance as respects individuals of a particular 
race, color, or national origin.
    (f) In some situations even though past discriminatory practices 
have been abandoned, the consequences of such practices continue to 
impede the full availability of a benefit. If the efforts required of 
the applicant or recipient under Sec. 1110.6(d) to provide information 
as to the availability of the program or activity, and the rights of 
beneficiaries under this regulation, have failed to overcome these 
consequences, it will become necessary for such applicant or recipient 
to take additional steps to make the benefits fully available to racial 
and nationality groups previously subjected to discrimination. This 
action might take the form, for example of special arrangements for 
obtaining referrals or making selections which will insure that groups 
previously subjected to discrimination are adequately served.
    (g) Even though an applicant or recipient has never used 
discriminatory policies, the services and benefits of the program or 
activity it administers may not in fact be equally available to some 
racial or nationality groups. In such circumstances an applicant or 
recipient may properly give special consideration to race, color, or 
national origin to make the benefits of its program more widely 
available to such groups, not then being adequately served. For example, 
where a university is not adequately serving members of a particular 
racial or nationality group, it may establish special recruitment 
policies to make its program better known and more readily available to 
such group, and take other steps to provide that group with more 
adequate service.

[38 FR 17991, July 5, 1973, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 1110.6  Compliance information.

    (a) Cooperation and assistance. The responsible Endowment official 
shall, to the fullest extent practicable, seek the cooperation of 
recipients in obtaining compliance with this part and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible Endowment official timely, complete and 
accurate compliance reports at such times, and in such form and 
containing such information, as the responsible Endowment official may 
determine to be necessary to enable him to ascertain whether the 
recipient has complied or is complying with this part. In the case in 
which a primary recipient extends Federal financial assistance to any 
other recipient, such other recipient shall also submit such compliance 
reports to the primary recipient as may be necessary to enable the 
primary recipient to carry out its obligations under this part.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible Endowment official or his designee during 
normal business

[[Page 361]]

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

[38 FR 17991, July 5, 1973, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1110.7  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible Endowment official 
shall from time to time review the practices of recipients to determine 
whether they are complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this part may by himself or by a representative file with the 
responsible Endowment official a written complaint. A complaint must be 
filed not later than ninety days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible Endowment official.
    (c) Investigations. The responsible Endowment official 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 should include, where appropriate, a review of 
the pertinent practices and policies of the recipient, the circumstances 
under which the possible noncompliance with this part occurred, and 
other factors relevant to a determination as to whether the recipient 
has failed to comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the responsible Endowment official will so inform the recipient 
and the matter will be resolved by informal means whenever possible. If 
it has been determined that the matter cannot be resolved by informal 
means, action will be taken as provided for in Sec. 1110.8.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section, the responsible Endowment official 
will so inform the recipient and the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.



Sec. 1110.8  Procedure for effecting compliance.

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

[[Page 362]]

and (2) any applicable proceeding under State or local law.
    (b) Noncompliance with Sec. 1110.4. If an applicant fails or 
refuses to furnish an assurance required under Sec. 1110.4 or otherwise 
fails to comply with that section, Federal financial assistance may be 
refused in accordance with the procedures of paragraph (c) of this 
section. The Endowment concerned shall not be required to provide 
assistance in such a case during the pendency of the administrative 
proceedings under such paragraph, except that such Endowment shall 
continue assistance during the pendency of such proceedings where such 
assistance is due and payable pursuant to an application 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 Endowment official has advised the applicant 
or recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means, (2) there has been an express 
finding on the record, after opportunity for hearings, of a failure by 
the applicant or recipient to comply with a requirement imposed by or 
pursuant to this part, (3) the action has been approved by the Chairman 
of the Endowment concerned, and (4) the expiration of 30 days after the 
Chairman has filed with the Committee of the House and the Committee of 
the Senate having legislative jurisdiction over the program involved, a 
full written report of the circumstances and the grounds for such 
action. Any action to suspend or terminate or to refuse to grant or to 
continue Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the 
responsible Endowment official has determined that compliance cannot be 
secured by voluntary means, (2) the recipient or other person has been 
notified of its failure to comply and of the action to be taken to 
effect compliance, and (3) the expiration of at least 10 days from the 
mailing of such notice to the recipient or other person. During this 
period of at least 10 days, additional efforts shall be made to persuade 
the recipient or other person to comply with this part and to take such 
corrective action as may be appropriate.



Sec. 1110.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 1110.8(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and 
either:
    (1) Fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the responsible 
Endowment official that the matter be scheduled for hearing or
    (2) Advise the applicant or recipient that the matter in question 
has been set down for hearing at a stated place and time. The time and 
place so fixed shall be reasonable and shall be subject to change for 
cause. The complainant, if any, shall be advised of the time and place 
of the hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this paragraph or to 
appear at a hearing for which a date has been set shall be deemed to be 
a waiver of the right of a hearing under section 602 of the Act and 
Sec. 1110.8(c) of this part 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 Endowment concerned in Washington, DC, at a time fixed by the 
responsible

[[Page 363]]

Endowment official unless he determines that the convenience of the 
applicant or recipient or of the Endowment requires that another place 
be selected. Hearings shall be held before the responsible Endowment 
official or, at his discretion, before a hearing examiner designated in 
accordance with section 11 of the Administrative Procedure Act.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Endowment 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 Procedure 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 Endowment and 
the applicant or recipient shall be entitled to introduce all relevant 
evidence on the issues as stated in the notice for hearing or as 
determined by the officer conducting the hearing at the outset of or 
during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence entered 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 
Regulation with respect to two or more Federal statutes, authorities, or 
other means by which Federal financial assistance is extended and 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 Chairman of the Endowment concerned may, 
by agreement with such other departments or agencies where applicable, 
provide for the conduct of consolidated or joint hearings and for the 
application to such hearings of rules or procedures not inconsistent 
with this part. Final decisions in such cases, insofar as this 
regulation is concerned, shall be made in accordance with Sec. 1110.10.

[38 FR 17991, July 5, 1973, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1110.10  Decisions and notices.

    (a) Decision by person other than the responsible Endowment 
official. If the hearing is held by a hearing examiner such hearing 
examiner shall either make an initial decision, if so authorized, or 
certify the entire record including his recommended findings and 
proposed decision to the responsible Endowment official for a final 
decision, and a copy of such initial decision or certification shall be 
mailed to the applicant or recipient. Where the initial decision is made 
by the hearing examiner the applicant or recipient may within 30 days of 
the mailing of such notice of initial decision file with the responsible 
Endowment official his exceptions to the initial decision, with his 
reasons therefor. In the absence of exceptions, the responsible 
Endowment official may on his own motion within 45 days after the 
initial decision serve on the applicant or recipient a notice that he 
will review the decision. Upon the filing of such exceptions or of such 
notice of review the responsible Endowment 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 Endowment official.

[[Page 364]]

    (b) Decisions on record or review by the responsible Endowment 
official. Whenever a record is certified to the responsible Endowment 
official for decision or he reviews the decision of a hearing examiner 
pursuant to paragraph (a) of this section, or whenever the responsible 
Endowment official conducts the hearing, the applicant or recipient 
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 Endowment official shall be given in writing to the 
applicant or recipient and to the complainant if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 1110.9(a) a decision shall be made 
by the responsible Endowment official on the record and a copy of such 
decision shall be given in writing to the applicant or recipient, and to 
the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer or 
responsible Endowment 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 applicant or recipient has failed to comply.
    (e) Approval by Chairman. Any final decision of a responsible 
Endowment official (other than the Chairman) which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this part or the Act, shall promptly be transmitted to 
the Chairman, who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, 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 to which this regulation applies will thereafter be extended 
to the applicant or recipient determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the responsible 
Endowment official that it will fully comply with this part.
    (g) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this regulation and provides reasonable assurance that it will fully 
comply with this regulation. (An elementary or secondary school or 
school system which is unable to file an assurance of compliance with 
Sec. 1110.3 shall be restored to full eligibility to receive Federal 
financial assistance, if it files a court order or a plan for 
desegregation which meets the requirements of Sec. 1110.4(c), and 
provides reasonable assurance that it will comply with this court order 
or plan.)
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible Endowment official to restore fully its 
eligibility to receive Federal financial assistance. Any such request 
shall be supported by information showing that the applicant or 
recipient has met the requirements of paragraph (g)(1) of this section. 
If the responsible Endowment official determines that those requirements 
have been satisfied, he shall restore such eligibility.
    (3) If the responsible Endowment official denies any such request, 
the applicant or recipient 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 Endowment official. The applicant or recipient will be 
restored to such eligibility if it proves at such a hearing that it 
satisfied the requirements of paragraph (g)(1) of this section. While 
proceedings under this paragraph are

[[Page 365]]

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

[38 FR 17991, July 5, 1973, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1110.11  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. 1110.12  Effect on other regulations; forms and instructions.

    (a) Effects on other regulations. Nothing in this part shall be 
deemed to supersede any of the following (including future amendments 
thereof): (1) Executive Orders 10925, 11114, and 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 discrmination on the 
grounds 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 Endowment official 
shall issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating this part as 
applied to programs to which this part applies and for which he is 
responsible.
    (c) Supervision and coordination. The Chairman of an Endowment may 
from time to time assign to other officials of the Endowment 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, including the achievement of effective coordination and maximum 
uniformity within the Endowment and within the executive branch of the 
Government in the application of title VI and this part of 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 
subsection shall have the same effect as though such action had been 
taken by the responsible official of this agency.



Sec. 1110.13  Definitions.

    As used in this part:
    (a) The term Foundation means the National Foundations for the Arts 
and the Humanities, and includes the National Endowment for the Arts, 
the National Endowment for the Humanities, the Institute of Museum and 
Library Services, and each of their organizational units.
    (b) The term Endowment means the National Endowment for the Arts, 
the National Endowment for the Humanities, or the Institute of Museum 
and Library Services.
    (c) The term Chairman means the Chairman of the National Endowment 
for the Arts, the Chairman of the National Endowment for the Humanities, 
or the Director of the Institute of Museum and Library Services.
    (d) The term responsible Endowment official with respect to any 
program receiving Federal financial assistance means the Chairman of any 
Endowment or other Endowment official designated by the Chairman.
    (e) The term 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 any one of 
the foregoing.
    (f) The term Federal financial assistance includes (1) grants and 
loans of Federal funds, (2) the grant or the donation of Federal 
property and interests in property, (3) the detail of Federal personnel, 
(4) the sale and lease of, and the permission to use (on other than a 
casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and (5) any Federal agreement, 
arrangement, or other contract which has as one of its purposes the 
provision of assistance.

[[Page 366]]

    (g) Program or activity and program mean all of the operations of 
any entity described in paragraphs (g)(1) through (4) of this section, 
any part of which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) 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;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) 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
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (g)(1), (2), or (3) of this section.
    (h) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (i) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity 
or any individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, including any 
successor, assign, or transferee thereof, but such term does not include 
any ultimate beneficiary.
    (j) The term primary recipients means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient.
    (k) The term applicant means one who submits an application, 
request, or plan required to be approved by a responsible Endowment 
official, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term application means such an 
application, request, or plan.

[38 FR 17991, July 5, 1973, as amended at 62 FR 66826, Dec. 22, 1997; 68 
FR 51383, Aug. 26, 2003]

Appendix A to Part 1110--Federal Financial Assistance to Which This Part 
                                 Applies

    1. Assistance to groups for projects and productions in the arts.
    2. Surveys, research and planning in the arts.
    3. Assistance to State arts agencies for projects and productions in 
the arts.
    4. Support of research in the humanities.
    5. Support of educational programs in the humanities, including the 
training of students and teachers.
    6. Assistance to promote the interchange of information in the 
humanities.
    7. Assistance to foster public understanding and appreciation of the 
humanities.
    8. Support of the publication of scholarly works in the humanities.



PART 1115_PRIVACY ACT REGULATIONS--Table of Contents




Sec.
1115.1 Purpose and scope.
1115.2 Definitions.
1115.3 Procedures for notification of existence of records pertaining to 
          individuals.
1115.4 Procedures for requests for access to or disclosure of records 
          pertaining to an individual.
1115.5 Correction of records.
1115.6 Disclosure of records to agencies or persons other than the 
          individual to whom the record pertains.
1115.7 Exemptions.

    Authority: 5 U.S.C. 552a(f).

    Source: 40 FR 49286, Oct. 21, 1975, unless otherwise noted.

[[Page 367]]



Sec. 1115.1  Purpose and scope.

    This part sets forth the National Foundation on the Arts and the 
Humanities' procedures under the Privacy Act of 1974 as required by 5 
U.S.C. 552a(f). Internal guidance for Foundation staff and other 
regulations implementing the Privacy Act are contained or will be 
contained in Foundation circulars.



Sec. 1115.2  Definitions.

    For purposes of this part:
    (a) Foundation means the National Foundation on the Arts and the 
Humanities.
    (b) Act means the Privacy Act of 1974 (Pub. L. 93-579).
    (c) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (d) Maintain, used with reference to a record means to collect, to 
use, to disseminate, to have control over and responsibility for such 
record.
    (e) Record means any item, collection or grouping of information 
about an individual that is maintained by the Foundation and that is 
retrievable by his or her name or an identifying particular, such as a 
number, symbol, fingerprint, or photograph of the individual. 
Information maintained by the Foundation includes, but is not limited 
to, education, financial transactions, medical history, employment 
history and criminal history.
    (f) Routine use means, with respect to the disclosure of a record, 
the use of such a record for a purpose which is compatible with the 
purpose for which it was collected. The routine uses of record systems 
maintained by the Foundation were established pursuant to notice in the 
Federal Register.
    (g) System of records means a group of any records under the control 
of the Foundation from which information about an individual is 
retrievable by his or her name or by some identifying particular.



Sec. 1115.3  Procedures for notification of existence of records pertaining 
to individuals.

    (a) The systems of records, as defined in the Privacy Act of 1974, 
maintained by the National Foundation on the Arts and the Humanities are 
listed annually in the Federal Register as required by that Act. Any 
person who wishes to know whether a system of records contains a record 
pertaining to him may appear in person at the National Endowment for the 
Arts, Room 1338, 2401 E Street NW., Washington, DC 20506 or the National 
Endowment for the Humanities, Room 1000, 806 15th Street NW., 
Washington, DC 20506, on work days between the hours of 9:00 a.m. and 
5:30 p.m. or by writing to the Office of the General Counsel, National 
Endowment for the Arts or National Endowment for the Humanities, 
Washington, DC 20506. It is recommended that requests be made in 
writing, since in many cases it will take several days to ascertain 
whether a record exists.
    (b) Requests for notification of the existence of a record should 
specifically identify the system of records involved and should state, 
if the requestor is other than the individual to whom the record 
pertains, the relationship of the requestor to that individual. (Note 
that requests will not be honored by the Foundation pursuant to the 
Privacy Act unless made (1) by the individual to whom the record 
pertains, (2) by such individual's parent if the individual is a minor, 
or (3) by such individual's legal guardian if the individual has been 
declared to be incompetent due to physical or mental incapacity or age 
by a court of competent jurisdiction).
    (c) The Foundation will attempt to respond to a request as to 
whether a record exists within 10 working days from the time it receives 
the request or from the time any required identification is established, 
whichever is later.



Sec. 1115.4  Procedures for requests for access to or disclosure of 
records pertaining to an individual.

    (a) Any person may request review of records pertaining to him by 
appearing at the National Endowment for the Arts, Room 1338, 2401 E 
Street, NW., Washington, DC 20506, or the National Endowment for the 
Humanities, Room 1000, 806 15th Street, NW., Washington, DC 20506 on 
work days between the hours of 9:00 a.m. and 5:30 p.m. or by writing to 
the Office of the General Counsel, National Endowment for the Arts, or 
National Endowment for the

[[Page 368]]

Humanities, Washington, DC 20506. (See paragraphs (b) and (c) of this 
section for identification requirements.) The request should 
specifically identify the systems or records involved. The Foundation 
will strive either to make the record available within 15 working days 
of the request or to inform the requestor of the need for additional 
identification or the tendering of fees (as specified in paragraph (d) 
of this section) within 15 working days.
    (b) In the case of persons making requests by appearing at the 
Foundation, the amount of personal identification required will of 
necessity vary with the sensitivity of the record involved. Except as 
indicated below, reasonable identification such as employment 
identification cards, drivers licenses, and credit cards will normally 
be accepted as sufficient evidence of identity in the absence of any 
indications to the contrary. Records in the following systems of 
records, however, are considered to contain relatively sensitive and/or 
detailed personal information--

GRANT APPLICATIONS--NEA.
GRANT APPLICATIONS--NEH.
GRANTS TO INDIVIDUALS--NEA.
GRANTS TO INDIVIDUALS AND INSTITUTIONS--NEH.
EQUAL EMPLOYMENT OPPORTUNITY CASE FILE--NFAH NEA/NEH.
EMPLOYEE PAYROLL--NFAH.
PERSONNEL RECORDS--NFAH.

Accordingly, with respect to requests for records in these systems the 
Foundation reserves the rights to require sufficient identification to 
identify positively the individual making the request. This might 
involve independent verification by the Foundation as by phone calls to 
determine whether an individual has made a request, personal 
identification by Foundation employees who know the individual, or such 
other means as are considered appropriate under the circumstances.
    (c) A written request will be honored only if it contains the 
following certification before a duly commissioned notary public of any 
state or territory (or similar official if the request is made outside 
the United States):

    I,--------------------(Printed name), do hereby certify that I am 
the individual about whom the record requested in this letter pertains 
or that I am within the class of persons authorized to act on his behalf 
in accordance with 5 U.S.C. 552a(h).
________________________________________________________________________
                                                               Signature
________________________________________________________________________
                                                                    Date
In the County of--------------------State of--------------------. On 
this----day of__________________________________________________________
________________________________________________________________________
                                                    (Name of individual)
who is personally known to me, did appear before me and sign the above 
certificate.
________________________________________________________________________
                                                               Signature
________________________________________________________________________
                                                                    Date
(s) My Commission expires_______________________________________________


However, where the record requested is contained in any of the systems 
of records listed in paragraph (b) of this section, the Foundation 
reserves the right to require additional identification and/or to 
independently verify to its satisfaction, the identity of the requestor.
    (d) Charges for copies of records will be at the rate of $0.10 per 
photography of each page. Where records are not susceptible to photo-
copying, e.g., punch cards, magnetic tapes or oversize materials, the 
amount charged will be actual cost as determined on a case-by-case 
basis. Only one copy of each record requested will be supplied. No 
charge will be made unless the charge as computed above would exceed 
$3.00 for each request or related series of requests. If a fee in excess 
of $25.00 would be required, the requestor shall be notified and the fee 
must be tendered before the records will be copied.



Sec. 1115.5  Correction of records.

    (a) Any individual is entitled to request amendments of records 
pertaining to him pursuant to 5 U.S.C. 552a(d)(2). Such a request shall 
be made in writing and addressed to the Office of the General Counsel, 
National Endowment for the Arts or National Endowment for the 
Humanities, Washington, DC 20506.
    (b) The request should specify the record and systems of records 
involved, and should specify the exact correction desired and state that 
the request is made pursuant to the Privacy Act. An edited copy of the 
record showing the desired correction is desirable. Within 10 working 
days of the receipt of a properly addressed request (or within

[[Page 369]]

10 working days of the time the General Counsel, National Endowment for 
the Arts or the General Counsel, National Endowment for the Humanities 
becomes aware that a particular communication not addressed as 
prescribed above is a request for correction of a record under the 
Privacy Act), the General Counsel's office shall acknowledge receipt of 
the request.
    (c) The General Counsel's office upon receipt of such a request 
shall promptly confer with the office within the Foundation responsible 
for the record. In the event it is felt that correction is not warranted 
in whole or in part, the matter shall be brought to the attention of the 
Deputy Chairman of the Endowment involved. If, after review by the 
Deputy Chairman of the involved Endowment and discussion with the 
request or, if deemed helpful, it is determined that correction as 
requested is not warranted, a letter shall be sent by the Deputy 
Chairman's office to the requestor denying his request and/or explaining 
what correction might be made if agreeable to the requestor. This letter 
shall set forth the reasons for the refusal to honor the request for 
correction. It shall also inform him of his right to appeal this 
decision and include a description of the appeals procedure set forth in 
paragraph (d) of this section.
    (d) An appeal may be taken from an adverse determination under 
paragraph (c) of this section to the Assistant Chairman/Management, 
National Endowment for the Arts or the Chairman, National Endowment for 
the Humanities. Such appeal must be made in writing and should clearly 
indicate that it is an appeal. The basis for the appeal should be 
included, and it should be mailed to the same address as listed in 
paragraph (a) of this section. A hearing at the Foundation may be 
requested. Such hearing will be informal, and shall be before the 
Assistant Chairman/Management, National Endowment for the Arts, the 
Chairman, National Endowment for the Humanities, or an appointed 
designee. If no hearing is requested, the request for appeal should 
include the basis for the appeal. Where no hearing is requested the 
Assistant Chairman or Chairman before whom the appeal is taken shall 
render his decision within thirty working days after receipt of the 
written appeal at the Foundation, unless the Assistant Chairman or 
Chairman before whom the appeal is taken, for good cause shown, extends 
the 30-day period and the appellant is advised in writing of such 
extension. If a hearing is requested, the Foundation will attempt to 
contact the appellant within five working days and arrange a suitable 
time for the hearing. In such cases the decision of the Assistant 
Chairman or Chairman shall be made within 30 working days after the 
hearing unless the time is extended and the appellant is advised in 
writing of such extension.
    (e) The final decision of the Assistant Chairman or Chairman in an 
appeal shall be in writing, and, if adverse to the appellant, set forth 
the reasons for the refusal to amend the record and advise him of his 
right to appeal the decision under 5 U.S.C. 552a(g)(1)(A). The 
individual shall also be notified that he has the right to file with the 
Foundation a concise statement setting forth the reasons for this 
disagreement with the refusal of the Foundation to amend his record.



Sec. 1115.6  Disclosure of records to agencies or persons other than the 
individual to whom the record pertains.

    Records subject to the Privacy Act that are requested by any person 
other than the individual to whom they pertain will not be made 
available except under the following circumstances:
    (a) Records required to be made available by the Freedom of 
Information Act will be released in response to a request formulated in 
accordance with Foundation regulations found at 45 CFR part 1100.
    (b) Records not required by the Freedom of Information Act to be 
released may be released, at the discretion of the Foundation, if the 
written consent of the individual to whom they pertain has been obtained 
or if such release would be authorized under 5 U.S.C. 552a(b)(1) or (3) 
through (11).



Sec. 1115.7  Exemptions.

    (a) Fellowships and grants. Pursuant to 5 U.S.C. 552a(k)(5), the 
Foundation hereby exempts from the application of section 552a(d) any 
materials which

[[Page 370]]

would disclose the identity of references for fellowship or grant 
applicants contained in any of the Foundation's systems of records.
    (b) Applicants for employment. Pursuant to 5 U.S.C. 552a(k)(5), the 
Foundation hereby exempts from the application of 5 U.S.C. 552a(d) any 
materials which would disclose the identity of references of applicants 
for employment at the Foundation contained in the system of records 
entitled ``Official Personnel Folders''.

[[Page 371]]



              SUBCHAPTER B_NATIONAL ENDOWMENT FOR THE ARTS





PART 1150_COLLECTION OF CLAIMS--Table of Contents




                      Subpart A_General Provisions

Sec.
1150.1 What definitions apply to the regulations in this part?
1150.2 What is the Endowment's authority to issue these regulations?
1150.3 What other regulations also apply to the Endowment's debt 
          collection efforts?
1150.4 What types of claims are excluded from these regulations?
1150.5 What notice will I be provided if I owe a debt to the Endowment?
1150.6 What opportunity do I have to obtain a review of my debt within 
          the Endowment?
1150.7 What interest, penalty charges, and administrative costs will I 
          have to pay on a debt owed to the Endowment?
1150.8 Will failure to pay my debt affect my eligibility for Endowment 
          programs?
1150.9 How can I resolve the Endowment's claim through a voluntary 
          repayment agreement?
1150.10 What is the extent of the Chairperson's authority to compromise 
          debts owed to the Endowment, or to suspend or terminate 
          collection action on such debts?
1150.11 How does subdividing or joining debts owed to the Endowment 
          affect the Chairperson's compromise, suspension, or 
          termination authority?
1150.12 How will the Endowment use credit reporting agencies to collect 
          its claims?
1150.13 How will the Endowment contract for collection services?
1150.14 When will the Endowment refer claims to the DOJ?
1150.15 Will the Endowment use a cross-servicing agreement with the 
          Treasury to collect its claims?
1150.16 May I use the Endowment's failure to comply with these 
          regulations as a defense?

                         Subpart B_Salary Offset

1150.20 What debts are included or excluded from coverage of these 
          regulations on salary offset?
1150.21 May I ask the Endowment to waive an overpayment that otherwise 
          would be collected by offsetting my salary as a Federal 
          employee?
1150.22 What are the Endowment's procedures for salary offset?
1150.23 How will the Endowment coordinate salary offsets with other 
          agencies?
1150.24 Under what conditions will the Endowment make a refund of 
          amounts collected by salary offset?
1150.25 Will the collection of a claim by salary offset act as a waiver 
          of my rights to dispute the claimed debt?

                       Subpart C_Tax Refund Offset

1150.30 Which debts can the Endowment refer to the Treasury for 
          collection by offsetting tax refunds?
1150.31 What are the Endowment's procedures for collecting debts by tax 
          refund offset?

                     Subpart D_Administrative Offset

1150.40 Under what circumstances will the Endowment collect amounts that 
          I owe to the Endowment (or some other Federal agency) by 
          offsetting the debt against payments that the Endowment (or 
          some other Federal agency) owes me?
1150.41 How will the Endowment request that my debt to the Endowment be 
          collected by offset against some payment that another Federal 
          agency owes me?
1150.42 What procedures will the Endowment use to collect amounts I owe 
          to a Federal agency by offsetting a payment that the Endowment 
          would otherwise make to me?
1150.43 When may the Endowment make an offset in an expedited manner?
1150.44 Can a judgment I have obtained against the United States be used 
          to satisfy a debt that I owe to the Endowment?

    Authority: 31 U.S.C. 3711, 3716-3718, 3720A; 5 U.S.C. 5514.

    Source: 65 FR 37486, June 15, 2000, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1150.1  What definitions apply to the regulations in this part?

    As used in this part:
    (a) Administrative offset means the withholding of funds payable by 
the United States (including funds payable by the United States on 
behalf of a State government) to any person, or the withholding of funds 
held by the United States for any person, in order to satisfy a debt 
owed to the United States.
    (b) Agency means a department, agency, court, court administrative 
office,

[[Page 372]]

or instrumentality in the executive, judicial, or legislative branch of 
government, including a government corporation.
    (c) Chairperson means the Chairperson of the Endowment, or his or 
her designee.
    (d) Creditor agency means the agency to which the debt is owed.
    (e) Day means calendar day. To count days, include the last day of 
the period unless it is a Saturday, a Sunday, or a Federal legal 
holiday.
    (f) Debt and claim are deemed synonymous and interchangeable. These 
terms mean money owed by a person to the United States for any reason, 
including loans made or guaranteed by the United States, fees, leases, 
rents, royalties, services, sales of real or personal property, 
overpayments, damages, interests, penalties, fines, forfeitures, and all 
other similar sources. For the purpose of administrative offset under 31 
U.S.C. 3716 and subpart D of these regulations, the terms debt and claim 
also include money or property owed by a person to a State, the District 
of Columbia, American Samoa, Guam, the United States Virgin Islands, the 
Commonwealth of the Northern Marina Islands, or the Commonwealth of 
Puerto Rico.
    (g) Debtor means a person who owes a debt. Uses of the terms ``I,'' 
``you,'' ``me,'' and similar references to the reader of the regulations 
in this part are meant to apply to debtors as defined in this paragraph 
(g).
    (h) Delinquent debt means a debt that has not been paid within the 
time limit prescribed by the Endowment.
    (i) Disposable pay means the part of an employee's pay that remains 
after deductions that are required to be withheld by law have been made.
    (j) Employee means a current employee of an agency, including a 
current member of the Armed Forces or Reserve of the Armed Forces of the 
United States.
    (k) Endowment means the National Endowment for the Arts.
    (l) Federal Claims Collection Standards means the standards 
currently published at 4 CFR Chapter II. The DOJ and the Treasury have 
proposed a revision that would move the Federal Claims Collection 
Standards to 31 CFR parts 900-904. The Endowment will amend these 
regulations, as necessary, after the revised Federal Claims Collection 
Standards have been issued as final regulations.
    (m) Paying agency means the agency that employs the individual who 
owes a debt to the United States. In some cases, the Endowment may be 
both the creditor agency and the paying agency.
    (n) Payroll office means the office in the paying agency that is 
primarily responsible for payroll records and the coordination of pay 
matters with the appropriate personnel office.
    (o) Person includes a natural person or persons, profit or non-
profit corporation, partnership, association, trust, estate, consortium, 
state or local government, or other entity that is capable of owing a 
debt to the United States; however, agencies of the United States are 
excluded.
    (p) Private collection contractor means a private debt collector 
under contract with an agency to collect a non-tax debt owed to the 
United States.
    (q) Salary offset means a payroll procedure to collect a debt under 
5 U.S.C. 5514 by deduction(s) at one or more officially established pay 
intervals from the current pay account of an employee, without his or 
her consent.
    (r) Tax refund offset means the reduction of a tax refund by the 
amount of a past-due legally enforceable debt owed to the Endowment or 
any other Federal agency.



Sec. 1150.2  What is the Endowment's authority to issue these regulations?

    The Endowment is issuing the regulations in this part under 31 
U.S.C. 3711, 3716-3718, and 3720A. These sections reflect the Federal 
Claims Collection Act of 1966, as amended by the Debt Collection Act of 
1982 and the Debt Collection Improvement Act of 1996. The Endowment is 
also issuing the regulations in this part in conformity with the Federal 
Claims Collection Standards, which prescribe standards for the handling 
of the Federal government's claims for money or property. The Endowment 
is further issuing the regulations in this part in conformity with 5 
U.S.C. 5514 and the salary offset regulations published by the OPM at 5 
CFR part 550, subpart K.

[[Page 373]]



Sec. 1150.3  What other regulations also apply to the Endowment's debt 
collection efforts?

    All provisions of the Federal Claims Collection Standards also apply 
to the regulations in this part. This part supplements the Federal 
Claims Collection Standards by prescribing procedures and directives 
necessary and appropriate for operations of the Endowment.



Sec. 1150.4  What types of claims are excluded from these regulations?

    (a) The regulations in this part do not apply to any claim as to 
which there is an indication of fraud or misrepresentation, as described 
in the Federal Claims Collection Standards, unless returned to the 
Endowment by the DOJ for handling.
    (b) The regulations in this subpart, subpart B, and subpart D do not 
apply to debts arising under the Internal Revenue Code of 1986, as 
amended (26 U.S.C. 1 et seq.); the Social Security Act (42 U.S.C. 301 et 
seq.); and the tariff laws of the United States.
    (c) Remedies and procedures described in this part may be authorized 
with respect to claims that are exempt from the Debt Collection Act of 
1982 and the Debt Collection Improvement Act of 1996, to the extent that 
they are authorized under some other statute or the common law.



Sec. 1150.5  What notice will I be provided if I owe a debt to the 
Endowment?

    (a) When the Chairperson determines that you owe a debt to the 
Endowment, he or she will send you a written notice (Notice). The Notice 
will be hand-delivered or sent to you by certified mail, return receipt 
requested at the most current address known to the Endowment. The Notice 
will inform you of the following:
    (1) The amount, nature, and basis of the debt;
    (2) That a designated Endowment official has reviewed the claim and 
determined that it is valid;
    (3) That payment of the debt is due as of the date of the Notice, 
and that the debt will be considered delinquent if you do not pay it 
within 30 days of the date of the Notice;
    (4) The Endowment's policy concerning interest, penalty charges, and 
administrative costs (see Sec. 1150.7), including a statement that such 
assessments must be made against you unless excused in accordance with 
the Federal Claims Collection Standards and this part;
    (5) That you have the right to inspect and copy Endowment records 
pertaining to your debt, or to receive copies of those records if 
personal inspection is impractical;
    (6) That you have the opportunity to enter into an agreement, in 
writing and signed by both you and the Chairperson, for voluntary 
repayment of the debt (see Sec. 1150.9); and
    (7) The address, telephone number, and name of the Endowment 
official available to discuss the debt.
    (b) Notice of possible collection actions. The Notice provided by 
the Chairperson under paragraph (a) of this section will also advise you 
that, if your debt (including any interest, penalty charges, and 
administrative costs) is not paid within 60 days of the date of the 
Notice, or you do not enter into a voluntary repayment agreement within 
60 days of the date of the Notice, then the Endowment may enforce 
collection of the debt by any or all of the following methods:
    (1) By referral to a credit reporting agency (see Sec. 1150.12), a 
collection agency (see Sec. 1150.13), or the DOJ (see Sec. 1150.14);
    (2) By transferring any debt delinquent for more than 180 days to 
the Treasury for collection under a cross-servicing agreement with the 
Treasury (see Sec. 1150.15);
    (3) If you are an Endowment employee, by deducting money from your 
disposable pay account (in the amount and with the frequency, 
approximate beginning date, and duration specified by the Endowment) 
until the debt (and all accumulated interest, penalty charges, and 
administrative costs) is paid in full (see subpart B). Such proceedings 
are governed by 5 U.S.C. 5514;
    (4) If you are an employee of a Federal agency other than the 
Endowment, by initiating certification procedures to implement a salary 
offset by that Federal agency (see subpart B).

[[Page 374]]

Such proceedings are governed by 5 U.S.C. 5514;
    (5) By referring the debt to the Treasury for offset against any 
refund of overpayment of tax (see subpart C);
    (6) By administrative offset (see subpart D); or
    (7) By liquidation of security or collateral. When the Endowment 
holds security or collateral that may be liquidated and the proceeds 
applied to your debt through the exercise of a power of sale in the 
security instrument or a nonjudicial foreclosure, such procedures may be 
followed unless the cost of disposing of the collateral will be 
disproportionate to its value or special circumstances require judicial 
foreclosure.
    (c) Notice of opportunity for review. The Notice provided by the 
Chairperson under paragraph (a) of this section will also advise you of 
the opportunity to obtain a review within the Endowment concerning the 
existence or amount of the debt, the proposed schedule for offset of 
Federal employee salary payments, or whether the debt is past due or 
legally enforceable. The Notice shall also advise you of the following:
    (1) The name, address, and telephone number of an officer or 
employee of the Endowment whom you may contact concerning procedures for 
requesting a review;
    (2) The method and time period for requesting a review;
    (3) That the filing of a request for a review on or before the 60th 
day following the date of the Notice will stay the commencement of 
collection proceedings;
    (4) The name and address of the officer or employee of the Endowment 
to whom you should send the request for a review;
    (5) That a final decision on the review (if one is requested) will 
be issued at the earliest practical date, but not later than 60 days 
after the receipt of the request for a review, unless you request, and 
the review official grants, a delay in the proceedings;
    (6) That any knowingly false or frivolous statements, 
representations, or evidence may subject you to:
    (i) Disciplinary procedures appropriate under 5 U.S.C. Chapter 75, 5 
CFR part 752, or any other applicable statute or regulations;
    (ii) Penalties under the False Claims Act (31 U.S.C. 3729-3733) or 
any other applicable statutory authority; and
    (iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002, 
or any other applicable statutory authority;
    (7) Any other rights available to you to dispute the validity of the 
debt or to have recovery of the debt waived, or remedies available to 
you under statutes or regulations governing the program for which the 
collection is being made; and
    (8) That unless there are applicable contractual or statutory 
provisions to the contrary, amounts paid on or deducted for the debt 
that are later waived or found not owed will be promptly refunded to 
you.
    (d) The Endowment will respond promptly to communications from you.



Sec. 1150.6  What opportunity do I have to obtain a review of my debt 
within the Endowment?

    (a) Request for review. If you desire a review within the Endowment 
concerning the existence or amount of your debt, the proposed schedule 
for offset of Federal employee salary payments, or whether the debt is 
past due or legally enforceable, you must send such a request to the 
officer or employee of the Endowment designated in the Notice (see Sec. 
1150.5(c)(4)).
    (1) Your request for review must carry your signature and fully 
identify and explain with reasonable specificity all the facts and 
evidence that support your position. Your request for review should be 
accompanied by available evidence to support your contentions.
    (2) Your request for review must be received by the designated 
officer or employee of the Endowment on or before the 60th day following 
the date of the Notice. Timely filing will stay the commencement of 
collection procedures. If you file a request for a review after the 60-
day period provided for in this section, the Endowment will accept the 
request if you can show that the delay was the result of circumstances 
beyond your control or because you did not receive notice of the filing 
deadline (unless you had actual notice of the filing deadline).

[[Page 375]]

    (b) Inspection of Endowment records related to the debt. (1) In 
accordance with Sec. 1150.5, if you want to inspect or copy Endowment 
records related to the debt, you must send a letter to the Endowment 
official designated in the Notice stating your intention. Your letter 
must be received within 30 days of the date of the Notice.
    (2) In response to the timely request described in paragraph (b)(1) 
of this section, the designated Endowment official will notify you of 
the location and time when you may inspect and copy records related to 
the debt.
    (3) If personal inspection of Endowment records related to the debt 
is impractical, reasonable arrangements will be made to send you copies 
of those records.
    (c) Review official. The Chairperson shall designate an officer or 
employee of the Endowment (who was not involved in the determination of 
the debt) as the review official. When required by law or regulation, 
the Endowment may request an administrative law judge to conduct the 
review, or may obtain a review official who is an official, employee, or 
agent of the United States, but who is not under the supervision or 
control of the Chairperson. However, unless the review is conducted by 
an official or employee of the Endowment, any unresolved dispute you 
have regarding whether all or part of the debt is past due or legally 
enforceable (for purposes of collection by tax refund offset under Sec. 
1150.31) must be referred to the Chairperson for ultimate administrative 
disposition, and the Chairperson must notify you of his or her 
determination.
    (d) Review procedure. After you request a review, the review 
official will notify you of the form of the review to be provided. The 
review official shall determine whether an oral hearing is required, or 
if a review of the written record is sufficient, in accordance with the 
Federal Claims Collection Standards. In either case, the review official 
shall conduct the review in accordance with the Federal Claims 
Collection Standards. If the review will include an oral hearing, the 
notice sent to you by the review official will set forth the date, time, 
and location of the hearing.
    (e) Date of decision. The review official will issue a written 
decision, based upon either the written record or documentary evidence 
and information developed at an oral hearing, as soon as practical, but 
not later than 60 days after the date on which the Endowment received 
your request for a review, unless you request, and the review official 
grants, a delay in the proceedings.
    (f) Content of review decision. The review official will prepare a 
written decision that includes:
    (1) A statement of the facts presented to support the origin, 
nature, and amount of the debt;
    (2) The review official's findings, analysis, and conclusions; and
    (3) The terms of any repayment schedule, if applicable.
    (g) Interest, penalty charge, and administrative cost accrual during 
review period. Interest, penalty charges, and administrative costs 
authorized by law will continue to accrue during the review period.



Sec. 1150.7  What interest, penalty charges, and administrative costs 
will I have to pay on a debt owed to the Endowment?

    (a) Interest. (1) The Endowment will assess interest on all 
delinquent debts unless prohibited by statute, regulation, or contract.
    (2) Interest begins to accrue on all debts from the date that the 
debt becomes delinquent. The Endowment will not recover interest if you 
pay the debt within 30 days of the date on which interest begins to 
accrue. The Endowment shall assess interest at the rate established 
annually by the Secretary of the Treasury under 31 U.S.C. 3717, unless a 
different rate is either necessary to protect the interests of the 
Endowment or established by a contract, repayment agreement, or statute. 
The Endowment will notify you of the basis for its finding when a 
different rate is necessary to protect the interests of the Endowment.
    (3) The Chairperson may extend the 30-day period for payment without 
interest where he or she determines that such action is in the best 
interest of the Endowment. A decision to extend or not to extend the 
payment period is

[[Page 376]]

final and is not subject to further review.
    (b) Penalty. The Endowment will assess a penalty charge, not to 
exceed 6 percent a year, on any portion of a debt that is delinquent for 
more than 90 days.
    (c) Administrative costs. The Endowment will assess charges to cover 
administrative costs incurred as a result of your failure to pay a debt 
before it becomes delinquent. Administrative costs include the 
additional costs incurred in processing and handling the debt because it 
became delinquent, such as costs incurred in obtaining a credit report 
or in using a private collection contractor, or service fees charged by 
a Federal agency for collection activities undertaken on behalf of the 
Endowment.
    (d) Allocation of payments. A partial or installment payment by a 
debtor will be applied first to outstanding penalty assessments, second 
to administrative costs, third to accrued interest, and fourth to the 
outstanding debt principal.
    (e) Additional authority. The Endowment may assess interest, penalty 
charges, and administrative costs on debts that are not subject to 31 
U.S.C. 3717 to the extent authorized under common law or other 
applicable statutory authority.
    (f) Waiver. (1) The Chairperson may (without regard to the amount of 
the debt) waive collection of all or part of accrued interest, penalty 
charges, or administrative costs, if he or she determines that 
collection of these charges would be against equity and good conscience 
or not in the best interest of the Endowment.
    (2) A decision to waive interest, penalty charges, or administrative 
costs may be made at any time before a debt is paid. However, where 
these charges have been collected before the waiver decision, they will 
not be refunded. The Chairperson's decision to waive or not waive 
collection of these charges is final and is not subject to further 
review.



Sec. 1150.8  Will failure to pay my debt affect my eligibility for 
Endowment programs?

    In the event that you fail to pay your debt to the Endowment within 
a reasonable period of time after the date of the Notice of debt, the 
General Counsel of the Endowment shall place your name on the 
Endowment's list of debarred, suspended, and ineligible contractors, 
grantees, and other participants in programs sponsored by the Endowment. 
You will be advised of this action.



Sec. 1150.9  How can I resolve the Endowment's claim through a voluntary 
repayment agreement?

    In response to a Notice of debt, you may propose to the Endowment 
that you be allowed to repay the debt through a voluntary repayment 
agreement in lieu of the Endowment taking other collection actions under 
this part.
    (a) Your request to enter into a voluntary repayment agreement must:
    (1) Be in writing;
    (2) Admit the existence of the debt; and
    (3) Either propose payment of the debt (together with interest, 
penalty charges, and administrative costs) in a lump sum, or set forth a 
proposed repayment schedule.
    (b) The Endowment will collect claims in full or one lump sum 
whenever feasible. However, if you are unable to pay your debt in one 
lump sum, the Endowment may accept payment in regular installments that 
bear a reasonable relationship to the size of the debt and your ability 
to pay.
    (c) The Endowment will consider a request to enter into a voluntary 
repayment agreement in accordance with the Federal Claims Collection 
Standards. The Chairperson may request additional information from you, 
including financial statements if you request to make payments in 
installments, in order to make a determination of whether to accept a 
voluntary repayment agreement. It is within the Chairperson's discretion 
to accept a repayment agreement instead of proceeding with other 
collection actions under this part, and to set the necessary terms of 
any voluntary repayment

[[Page 377]]

agreement. No repayment agreement will be binding on the Endowment 
unless it is in writing and signed by both you and the Chairperson. At 
the Endowment's option, you may be required to enter into a confess-
judgment note or bond of indemnity with surety as part of an agreement 
to make payments in installments. Notwithstanding the provisions of this 
section, any reduction or compromise of a claim will be governed by 31 
U.S.C. 3711.



Sec. 1150.10  What is the extent of the Chairperson's authority to 

compromise debts owed to the Endowment, or to suspend or terminate 
collection action on such 
          debts?

    (a) The Chairperson may exercise his or her authority to compromise, 
or to suspend or terminate collection action on, those debts owed to the 
Endowment and not exceeding $100,000, excluding interest, in conformity 
with the Federal Claims Collection Act of 1966, as amended; the Federal 
Claims Collection Standards issued thereunder; and this part, except 
where standards are established by other statutes or authorized 
regulations issued pursuant to them.
    (b) The portion of a debt owed to the Endowment that is unrecovered 
as the result of a compromise shall be reported to the Internal Revenue 
Service (IRS) as income to the debtor.



Sec. 1150.11  How does subdividing or joining debts owed to the Endowment 
affect the Chairperson's compromise, suspension, or termination authority?

    A debtor's liability arising from a particular transaction or 
contract will be considered as a single claim in determining whether the 
claim is one of not more than $100,000, excluding interest, for the 
purpose of compromise or suspension or termination of collection action. 
Such a claim may not be subdivided to avoid the monetary ceiling 
established by the Federal Claims Collection Act of 1966, as amended. 
Joining two or more claims in a demand upon a debtor for payment of more 
than $100,000 does not preclude compromise or suspension or termination 
of collection action with regard to any one claim not exceeding 
$100,000, excluding interest.



Sec. 1150.12  How will the Endowment use credit reporting agencies to 
collect its claims?

    (a) The Endowment may report delinquent debts to appropriate credit 
reporting agencies by providing the following information:
    (1) A statement that the debt is valid and overdue;
    (2) The name, address, taxpayer identification number, and any other 
information necessary to establish the identity of the debtor;
    (3) The amount, status, and history of the debt; and
    (4) The program or pertinent activity under which the debt arose.
    (b) Before disclosing debt information to a credit reporting agency, 
the Endowment will:
    (1) Take reasonable action to locate the debtor if a current address 
is not available;
    (2) Provide the notice required under Sec. 1150.5 if a current 
address is available; and
    (3) Obtain satisfactory assurances from the credit reporting agency 
that it complies with the Fair Credit Reporting Act (15 U.S.C. 1681 et 
seq.) and other Federal laws governing the provision of credit 
information.
    (c) At the time debt information is submitted to a credit reporting 
agency, the Endowment will provide a written statement to the reporting 
agency that all required actions have been taken. In addition, the 
Endowment will, thereafter, ensure that the credit reporting agency is 
promptly informed of any substantive change in the conditions or amount 
of the debt, and promptly verify or correct information relevant to the 
debt.
    (d) If a debtor disputes the validity of the debt, the credit 
reporting agency will refer the matter to the appropriate Endowment 
official. The credit reporting agency will exclude the debt from its 
reports until the Endowment certifies in writing that the debt is valid.
    (e) The Endowment may disclose to a commercial credit bureau 
information concerning a commercial debt, including the following:

[[Page 378]]

    (1) Information necessary to establish the name, address, and 
employer identification number of the commercial debtor;
    (2) The amount, status, and history of the debt; and
    (3) The program or pertinent activity under which the debt arose.



Sec. 1150.13  How will the Endowment contract for collection services?

    The Endowment will use the services of a private collection 
contractor where it determines that such use is in the best interest of 
the Endowment. When the Endowment determines that there is a need to 
contract for collection services, it will:
    (a) Retain sole authority to:
    (1) Resolve any dispute with the debtor regarding the validity of 
the debt;
    (2) Compromise the debt;
    (3) Suspend or terminate collection action;
    (4) Refer the debt to the DOJ for litigation; and
    (5) Take any other action under this part which does not result in 
full collection of the debt;
    (b) Require the contractor to comply with the Privacy Act of 1974, 
as amended, to the extent specified in 5 U.S.C. 552a(m); with the Fair 
Debt Collection Practices Act (15 U.S.C. 1692-1692o) and other 
applicable Federal and State laws pertaining to debt collection 
practices; and with the applicable regulations of the Endowment in this 
chapter;
    (c) Require the contractor to account accurately and fully for all 
amounts collected; and
    (d) Require the contractor to provide to the Endowment, upon 
request, all data and reports contained in its files related to its 
collection actions on a debt.



Sec. 1150.14  When will the Endowment refer claims to the DOJ?

    The Chairperson will refer to the DOJ for litigation claims on which 
aggressive collection actions have been taken but which could not be 
collected, compromised, suspended, or terminated. Referrals will be made 
as early as possible, consistent with aggressive Endowment collection 
action, and within the period for bringing a timely suit against the 
debtor.



Sec. 1150.15  Will the Endowment use a cross-servicing agreement with 
the Treasury to collect its claims?

    (a) The Endowment will enter into a cross-servicing agreement that 
authorizes the Treasury to take the collection actions described in this 
part on behalf of the Endowment. These debt collection services will be 
provided to the Endowment in accordance with 31 U.S.C. Chapter 37.
    (b) The Endowment shall transfer to the Treasury any past due, 
legally enforceable, non-tax debt that has been delinquent for a period 
of 180 days or more so that the Secretary of the Treasury may take 
appropriate action in accordance with 31 U.S.C. 3716, 5 U.S.C. 5514, the 
Federal Claims Collection Standards, 5 CFR 550.1108, and 31 CFR part 
285. The categories of debts described in 31 U.S.C. 3711(g)(2) are 
excluded from transfer under this paragraph (b).



Sec. 1150.16  May I use the Endowment's failure to comply with these 
regulations as a defense?

    No. The failure of the Endowment to comply with any standard 
prescribed in the Federal Claims Collection Standards or these 
regulations shall not be available to any debtor as a defense.



                         Subpart B_Salary Offset



Sec. 1150.20  What debts are included or excluded from coverage of these 
regulations on salary offset?

    (a) The regulations in this subpart provide Endowment procedures for 
the collection by salary offset of a Federal employee's pay to satisfy 
certain debts owed to the Endowment or to other Federal agencies.
    (b) The regulations in this subpart do not apply to any case where 
collection of a debt by salary offset is explicitly provided for or 
prohibited by another statute.
    (c) Nothing in the regulations in this subpart precludes the 
compromise, suspension, or termination of collection actions under the 
Federal Claims Collection Act of 1966, as amended, or the Federal Claims 
Collection Standards.

[[Page 379]]

    (d) A levy pursuant to the Internal Revenue Code takes precedence 
over a salary offset under this subpart, as provided in 5 U.S.C. 
5514(d).
    (e) This subpart does not apply to any adjustment to pay arising out 
of your 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 or fewer pay periods.



Sec. 1150.21  May I ask the Endowment to waive an overpayment that 

otherwise would be collected by offsetting my salary as a Federal 
employee?

    Yes. The regulations in this subpart do not preclude you from 
requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 10 
U.S.C. 2774, 32 U.S.C. 716, or other statutory provisions pertaining to 
the particular debts being collected.



Sec. 1150.22  What are the Endowment's procedures for salary offset?

    (a) The Endowment will coordinate salary deductions under this 
subpart as appropriate.
    (b) If you are an Endowment employee, the Endowment's payroll office 
will determine the amount of your disposable pay and will implement the 
salary offset.
    (c) Deductions will begin within three official pay periods 
following receipt by the Endowment's payroll office of certification of 
debt from the creditor agency.
    (d) Types of collection. (1) Lump-sum offset. If the amount of the 
debt is equal to or less than 15 percent of disposable pay, the debt 
generally will be collected through one lump-sum offset.
    (2) 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 your ability to pay. However, the amount 
deducted from any period will not exceed 15 percent of the disposable 
pay from which the deduction is made unless you have agreed in writing 
to the deduction of a greater amount. If possible, installment payments 
will be sufficient in size and frequency to liquidate the debt in three 
years or less.
    (3) Deductions from final check. A deduction exceeding the 15 
percent of disposable pay limitation may be made from any final salary 
payment under 31 U.S.C. 3716 and the Federal Claims Collection 
Standards, in order to liquidate the debt, whether the employee is being 
separated voluntarily or involuntarily.
    (4) Deductions from other sources. If an employee subject to salary 
offset is separated from the Endowment, and the balance of the debt 
cannot be liquidated by offset of the final salary check, then the 
Endowment may offset later payments of any kind against the balance of 
the debt, as allowed by 31 U.S.C. 3716 and the Federal Claims Collection 
Standards.
    (e) Multiple debts. In instances where two or more creditor agencies 
are seeking salary offsets, or where two or more debts are owed to a 
single creditor agency, the Endowment's payroll office may, at its 
discretion, determine whether one or more debts should be offset 
simultaneously within the 15 percent limitation.



Sec. 1150.23  How will the Endowment coordinate salary offsets with other 
agencies?

    (a) Responsibilities of the Endowment as the creditor agency. Upon 
completion of the procedures established in this subpart and pursuant to 
5 U.S.C. 5514, the Endowment must submit a claim to a paying agency.
    (1) In its claim, the Endowment must certify, in writing, the 
following:
    (i) That the employee owes the debt;
    (ii) The amount and basis of the debt;
    (iii) The date the Endowment's right to collect the debt first 
accrued; and
    (iv) That the Endowment's regulations in this subpart have been 
approved by OPM under 5 CFR part 550, subpart K.
    (2) If the collection must be made in installments, the Endowment's 
claim will also advise the paying agency of the amount or percentage of 
disposable pay to be collected in each installment. The Endowment may 
also advise the paying agency of the number of installments to be 
collected and the date of the first installment, if that date is

[[Page 380]]

other than the next officially established pay period.
    (3) The Endowment shall also include in its claim:
    (i) The employee's written consent to the salary offset;
    (ii) The employee's signed statement acknowledging receipt of the 
procedures required by 5 U.S.C. 5514; or
    (iii) Information regarding the completion of procedures required by 
5 U.S.C. 5514, including the actions taken and the dates of those 
actions.
    (4) If the employee is in the process of separating and has not 
received a final salary check or other final payment(s) from the paying 
agency, the Endowment must submit its claim to the paying agency for 
collection under 31 U.S.C. 3716. The paying agency will (under its 
regulations adopted under 5 U.S.C. 5514 and 5 CFR part 550, subpart K), 
certify the total amount of its collection on the debt and notify the 
employee and the Endowment. If the paying agency's collection does not 
fully satisfy the debt, and the paying agency is aware that the debtor 
is entitled to payments from the Civil Service Retirement and Disability 
Fund or other similar payments that may be due the debtor employee from 
other Federal government sources, then (under its regulations adopted 
under 5 U.S.C. 5514 and 5 CFR part 550, subpart K), the paying agency 
will provide written notice of the outstanding debt to the agency 
responsible for making the other payments to the debtor employee. The 
written notice will state that the employee owes a debt, the amount of 
the debt, and that the provisions of this section have been fully 
complied with. However, the Endowment must submit a properly certified 
claim under this paragraph (a)(4) to the agency responsible for making 
the payments before the collection can be made.
    (5) Separated employee. If the employee is already separated and all 
payments due from his or her former paying agency have been paid, the 
Endowment may request, unless otherwise prohibited, that money due and 
payable to the employee from the Civil Service Retirement and Disability 
Fund or other similar funds be administratively offset to collect the 
debt.
    (6) Employee transfer. When an employee transfers from one paying 
agency to another paying agency, the Endowment will not repeat the due 
process procedures described in 5 U.S.C. 5514 and this subpart to resume 
the collection. The Endowment will submit a properly certified claim to 
the new paying agency and will subsequently review the debt to ensure 
that the collection is resumed by the new paying agency.
    (b) Responsibilities of the Endowment as the paying agency. (1) 
Complete claim. When the Endowment receives a certified claim from a 
creditor agency (under the creditor agency's regulations adopted under 5 
U.S.C. 5514 and 5 CFR part 550, subpart K), deductions should be 
scheduled to begin within three officially established pay intervals. 
Before deductions can begin, the employee will receive a written notice 
from the Endowment including:
    (i) A statement that the Endowment has received a certified claim 
from the creditor agency;
    (ii) The amount of the claim;
    (iii) The date salary offset deductions will begin; and
    (iv) The amount of such deductions.
    (2) Incomplete claim. When the Endowment receives an incomplete 
certification of debt from a creditor agency, the Endowment will return 
the claim with a notice that the creditor agency must comply with the 
procedures required under 5 U.S.C. 5514 and 5 CFR part 550, subpart K, 
and must properly certify a claim to the Endowment before the Endowment 
will take action to collect from the employee's current pay account.
    (3) The Endowment is not authorized to review the merits of the 
creditor agency's determination with respect to the amount or validity 
of the debt certified by the creditor agency.
    (4) Employees who transfer from the Endowment to another paying 
agency. If, after the creditor agency has submitted the claim to the 
Endowment, the employee transfers from the Endowment to a different 
paying agency before the debt is collected in full, the Endowment will 
certify the total amount collected on the debt and notify the employee 
and the creditor agency in writing. The notification to

[[Page 381]]

the creditor agency will include information on the employee's transfer.



Sec. 1150.24  Under what conditions will the Endowment make a refund of 
amounts collected by salary offset?

    (a) If the Endowment is the creditor agency, it will promptly refund 
any amount deducted under the authority of 5 U.S.C. 5514, when:
    (1) The debt is waived or all or part of the funds deducted are 
otherwise found not to be owed (unless expressly prohibited by statute 
or regulation); or
    (2) An administrative or judicial order directs the Endowment to 
make a refund.
    (b) Unless required or permitted by law or contract, refunds under 
this section will not bear interest.



Sec. 1150.25  Will the collection of a claim by salary offset act as a 
waiver of my rights to dispute the claimed debt?

    Your involuntary payment of all or any portion of a debt under this 
subpart will not be construed as a waiver of any rights that you may 
have under 5 U.S.C. 5514 or other provisions of a law or written 
contract, unless there are statutory or contractual provisions to the 
contrary.



                       Subpart C_Tax Refund Offset



Sec. 1150.30  Which debts can the Endowment refer to the Treasury for 
collection by offsetting tax refunds?

    (a) The regulations in this subpart implement 31 U.S.C. 3720A, which 
authorizes the Treasury to reduce a tax refund by the amount of a past-
due, legally enforceable debt owed to a Federal agency.
    (b) For purposes of this section, a past-due, legally enforceable 
debt referable to the Treasury for tax refund offset is a debt that is 
owed to the Endowment and:
    (1) Is at least $25.00;
    (2) Except in the case of a judgment debt, has been delinquent for 
at least three months and will not have been delinquent more than 10 
years at the time the offset is made;
    (3) Cannot currently be collected under the salary offset provisions 
of 5 U.S.C. 5514;
    (4) 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 Endowment against 
amounts payable to the debtor by the Endowment;
    (5) With respect to which the Endowment has
    (i) given the debtor at least 60 days to present evidence that all 
or part of the debt is not past due or legally enforceable,
    (ii) considered evidence presented by the debtor, and
    (iii) determined that an amount of the debt is past due and legally 
enforceable;
    (6) Has been disclosed by the Endowment to a credit reporting agency 
as authorized by 31 U.S.C. 3711(e) and Sec. 1150.12 of this part, 
unless the credit reporting agency would be prohibited from reporting 
information concerning the debt by reason of 15 U.S.C. 1681c;
    (7) With respect to which the Endowment has notified or has made a 
reasonable attempt to notify the debtor that:
    (i) The debt is past due, and
    (ii) Unless repaid within 60 days of the date of the Notice, the 
debt may be referred to the Treasury for offset against any refund of 
overpayment of tax; and
    (8) All other requirements of 31 U.S.C. 3720A and the Treasury 
regulations relating to the eligibility of a debt for tax return offset 
(31 CFR 285.2) have been satisfied.



Sec. 1150.31  What are the Endowment's procedures for collecting debts by 
tax refund offset?

    (a) The Chairperson will be the point of contact with the Treasury 
for administrative matters regarding the offset program.
    (b) The Endowment will ensure that the procedures prescribed by the 
Treasury are followed in developing information about past-due debts and 
submitting the debts to the Treasury.
    (c) The Endowment will submit to the Treasury a notification of a 
taxpayer's liability for past-due legally enforceable debt. This 
notification will contain the following:

[[Page 382]]

    (1) The name and taxpayer identification number of the debtor;
    (2) The amount of the past-due and legally enforceable debt;
    (3) The date on which the original debt became past due; and
    (4) A statement certifying that, with respect to each debt reported, 
all of the requirements of Sec. 1150.30(b) have been satisfied.
    (d) For purposes of this section, notice that collection of the debt 
is affected by a bankruptcy proceeding involving the debtor will bar 
referral of the debt to the Treasury.
    (e) The Endowment shall promptly notify the Treasury to correct data 
when it:
    (1) Determines that an error has been made with respect to a debt 
that has been referred;
    (2) Receives or credits a payment on the debt; or
    (3) Receives notice that the person owing the debt has filed for 
bankruptcy under Title 11 of the United States Code or has been 
adjudicated bankrupt and the debt has been discharged.
    (f) When advising debtors of an intent to refer a debt to the 
Treasury for offset, the Endowment will also advise debtors of remedial 
actions available to defer the offset or prevent it from taking place.



                     Subpart D_Administrative Offset



Sec. 1150.40  Under what circumstances will the Endowment collect amounts 

that I owe to the Endowment (or some other Federal agency) by offsetting 
the debt 
          against payments that the Endowment (or some other Federal 
          agency) owes me?

    (a) The regulations in this subpart apply to the collection of any 
debts you owe to the Endowment, or to any request from another Federal 
agency that the Endowment collect a debt you owe by offsetting your debt 
against a payment the Endowment owes you. Administrative offset is 
authorized under Section 5 of the Federal Claims Collection Act of 1966, 
as amended (31 U.S.C. 3716). The Endowment shall carry out 
administrative offset in accordance with the provisions of the Federal 
Claims Collection Standards; the regulations in this subpart are 
intended only to supplement the provisions of the Federal Claims 
Collection Standards.
    (b) The Chairperson, after attempting to collect a debt you owe to 
the Endowment under Section 3(a) of the Federal Claims Collection Act of 
1966, as amended (31 U.S.C. 3711(a)), may collect the debt by 
administrative offset, subject to the following:
    (1) The debt you owe is certain in amount; and
    (2) It is in the best interest of the Endowment to collect your debt 
by administrative offset because of the decreased costs of collection 
and acceleration in the payment of the debt.
    (c) No collection by administrative offset will be made on any debt 
that has been outstanding for more than 10 years unless facts material 
to the Endowment or a federal agency's right to collect the debt were 
not known, and reasonably could not have been known, by the official or 
officials responsible for discovering and collecting the debt.
    (d) The regulations in this subpart do not apply to:
    (1) A case in which administrative offset of the type of debt 
involved is explicitly prohibited by statute; or
    (2) Debts owed to the Endowment by Federal agencies.



Sec. 1150.41  How will the Endowment request that my debt to the Endowment 

be collected by offset against some payment that another Federal agency 
owes me?

    The Chairperson may request that funds due and payable to you by 
another Federal agency instead be paid to the Endowment to satisfy a 
debt you owe to the Endowment. In requesting administrative offset, the 
Endowment will certify in writing to the Federal agency that is holding 
funds for you:
    (a) That you owe the debt;
    (b) The amount and basis of the debt; and
    (c) That the Endowment has complied with the requirements of 31 
U.S.C. 3716, its own administrative offset regulations in this subpart, 
and the applicable provisions of the Federal Claims Collection Standards 
with respect to providing you with due process.

[[Page 383]]



Sec. 1150.42  What procedures will the Endowment use to collect amounts 

I owe to a Federal agency by offsetting a payment that the Endowment 
would otherwise 
          make to me?

    (a) Any Federal agency may request that the Endowment 
administratively offset funds due and payable to you in order to collect 
a debt you owe to that agency. The Endowment will initiate the requested 
offset only upon:
    (1) Receipt of written certification from the creditor agency 
stating:
    (i) That you owe the debt;
    (ii) The amount and basis of the debt;
    (iii) That the agency has prescribed regulations for the exercise of 
administrative offset; and
    (iv) That the agency has complied with its own administrative offset 
regulations and with the applicable provisions of the Federal Claims 
Collection Standards, including providing you with any required hearing 
or review; and
    (2) A determination by the Chairperson that offsetting funds payable 
to you by the Endowment in order to collect a debt owed by you would be 
in the best interest of the United States as determined by the facts and 
circumstances of the particular case, and that such an offset would not 
otherwise be contrary to law.
    (b) Multiple debts. In instances where two or more creditor agencies 
are seeking administrative offsets, or where two or more debts are owed 
to a single creditor agency, the Endowment may, in its discretion, 
allocate the amount it owes to you to the creditor agencies in 
accordance with the best interest of the United States as determined by 
the facts and circumstances of the particular case, paying special 
attention to applicable statutes of limitations.



Sec. 1150.43  When may the Endowment make an offset in an expedited manner?

    The Endowment may effect an administrative offset against a payment 
to be made to you before completion of the procedures required by 
Sec. Sec. 1150.41 and 1150.42 if failure to take the offset would 
substantially jeopardize the Endowment's ability to collect the debt and 
the time before the payment is to be made does not reasonably permit the 
completion of those procedures. An expedited offset will be followed 
promptly by the completion of those procedures. Amounts recovered by 
offset, but later found not to be owed to the Endowment, will be 
promptly refunded.



Sec. 1150.44  Can a judgment I have obtained against the United States be 
used to satisfy a debt that I owe to the Endowment?

    Collection by offset against a judgment obtained by a debtor against 
the United States will be accomplished in accordance with 31 U.S.C. 
3728.



PART 1151_NONDISCRIMINATION ON THE BASIS OF HANDICAP--Table of Contents




                      Subpart A_General Provisions

Sec.
1151.1 Purpose.
1151.2 Application.
1151.3 Definitions.
1151.4 Notice.
1151.5 Inconsistent State laws and effect of employment opportunities.
1151.6-1151.10 [Reserved]

     Subpart B-Standards for Determining Who Are Handicapped Persons

1151.11 Handicapped person.
1151.12 Qualified handicapped person.
1151.13--1151.15 [Reserved]

                   Subpart C_Discrimination Prohibited

                                 General

1151.16 General prohibitions against discrimination.
1151.17 Specific discriminatory actions prohibited.
1151.18 Illustrative examples.
1151.19-1151.20 [Reserved]

                              Accessibility

1151.21 Discrimination prohibited.
1151.22 Existing facilities.
1151.23 New construction.
1151.24 Historic properties. [Reserved]
1151.25-1151.30 [Reserved]

                               Employment

1151.31 Discrimination prohibited.
1151.32 Reasonable accommodation.
1151.33 Employment criteria.
1151.34 Preemployment inquiries.
1151.35-1151.40 [Reserved]

[[Page 384]]

                          Subpart D_Enforcement

1151.41 Assurances required.
1151.42 Self evaluation.
1151.43 Adoption of grievance procedures.
1151.44 Endowment enforcement and compliance procedures.
1151.45-1151.50 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 44 FR 22734, Apr. 17, 1979, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1151.1  Purpose.

    The purpose of this part is to implement section 504 of the 
Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance.



Sec. 1151.2  Application.

    This part applies to each recipient of financial assistance from the 
National Endowment for the Arts and to each program or activity that 
receives such assistance.

[44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1151.3  Definitions.

    As used in this part, the term:
    (a) The Act means the Rehabilitation Act of 1973, Public Law 93-112, 
as amended by the Rehabilitation Act Amendments of 1974, (Pub. L. 93-
516, 29 U.S.C. 706 et seq.) and the Comprehensive Rehabilitation 
Services Amendments of 1978, (Pub. L. 95-602).
    (b) Section 504 means section 504 of the Act.
    (c) Endowment means the National Endowment for the Arts.
    (d) Chairman means the Chairman, National Endowment for the Arts.
    (e) Recipient means any state or its political subdivision, any 
instrumentality of a state or its political subdivision, 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, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    (f) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement by which the Endowment 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 of 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.
    (g) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (h) Program or activity means all of the operations of any entity 
described in paragraphs (h)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) 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;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or

[[Page 385]]

    (ii) 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
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (h)(1), (2), or (3) of this section.

[44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1151.4  Notice.

    (a) A recipient shall take appropriate initial and continuing steps 
to notify participants, beneficiaries, applicants, and employees, 
including those with impaired vision or hearing, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient that it does not discriminate on the basis 
of handicap in violation of section 504 and this part. The notification 
shall state, where appropriate, that the recipient does not discriminate 
in admission or access to, or employment in, its programs or activities. 
Methods of initial and continuing notification may include the posting 
of notices, publication in print, audio, and visual media, placement of 
notices in a recipient's publication, and distribution of other written 
and verbal communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.

[44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1151.5  Inconsistent State laws and effect of employment opportunities.

    (a) Recipients are not excused from complying with this part as a 
result of state or local laws which limit the eligibility of handicapped 
persons to receive services or to practice a profession or occupation.
    (b) The presence of limited employment opportunities in a particular 
profession does not excuse a recipient from complying with the 
regulation. For example, a music school receiving Endowment financial 
assistance could not deny admission to a qualified blind applicant 
because a blind singer may experience more difficulty than a 
nonhandicapped singer in finding a job.



Sec. Sec. 1151.6-1151.10  [Reserved]



     Subpart B_Standards for Determining Who Are Handicapped Persons



Sec. 1151.11  Handicapped person.

    (a) Handicapped person 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. For purposes of section 504, in connection with employment, 
this term does not include any individual who is an alcoholic or drug 
abuser whose current use of alcohol or drugs prevents such individual 
from performing the duties of the job in question or whose employment, 
by reason of such current alcohol or drug abuse, would constitute a 
direct threat to the property or safety of others.
    (b) As used in paragraph (a) of this section, the phrase:
    (1) Physical or mental impairment means:
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genito-urinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional and 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,

[[Page 386]]

muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, 
mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities means 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 that is treated by a recipient as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment;
    (iii) Has none of the impairments defined in paragraph (b)(1) of 
this section but is treated by a recipient as having such an impairment.



Sec. 1151.12  Qualified handicapped person.

    Qualified handicapped person means:
    (a) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question; and
    (b) With respect to services, a handicapped person who meets the 
essential eligibility requirements for the receipt of such services.



Sec. Sec. 1151.13-1151.15  [Reserved]



                   Subpart C_Discrimination Prohibited

                                 General



Sec. 1151.16  General prohibitions against discrimination.

    (a) No qualified handicapped person 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 
which receives federal financial assistance.
    (b) These regulations do not prohibit the exclusion of 
nonhandicapped persons or persons with a specific type of handicap from 
aid, benefits, or services limited by Federal statute or executive order 
to handicapped persons or persons with a different type of handicap.
    (c) Recipients shall take appropriate steps to insure that no 
handicapped individual is denied the benefits of, excluded from 
participation in, or otherwise subjected to discrimination in any 
program or activity receiving Endowment financial assistance because of 
the absence of appropriate auxiliary aids for individuals with impaired 
sensory, manual, or speaking skills.
    (d) Recipients shall take appropriate steps to insure that 
communications with their applicants, employees, and beneficiaries are 
available to persons with impaired vision and hearing.
    (e) Recipients shall administer programs or activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.

[44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1151.17  Specific discriminatory actions prohibited.

    (a) A recipient, in providing any aid, benefit, or service, either 
directly or through contractual, licensing, or other arrangements, shall 
not, on the basis of handicap:
    (1) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (2) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (3) Provide a qualified handicapped person with an aid, benefit, or 
service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (4) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons unless such 
action is necessary

[[Page 387]]

to provide qualified handicapped persons with aid, benefits, or services 
that are as effective as those provided to others;
    (5) Aid or perpetuate discrimination against a qualified handicapped 
person 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 or 
activity;
    (6) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (7) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving an aid, benefit, or service.
    (b) Despite the existence of separate or different aid, benefits, or 
services provided in accordance with this part, a recipient may not deny 
a qualified handicapped person the opportunity to participate in such 
aid, benefits, or services that are not separate or different.
    (c) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration:
    (1) That have the effect of subjecting qualified handicapped persons 
to discrimination on the basis of handicap;
    (2) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program or 
activity with respect to handicapped persons; or
    (3) That perpetuate the discrimination of another recipient if both 
recipients are subject to common administrative control or are agencies 
of the same state.
    (d) A recipient may not, in determining the site or location of a 
facility, make selections:
    (1) That have the effect of excluding handicapped persons from, 
denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives federal 
financial assistance; or
    (2) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (e) As used in this section, the aid, benefit, or service provided 
under a program or activity receiving federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole or in part, with federal financial 
assistance.

[44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1151.18  Illustrative examples.

    (a) The following examples will illustrate the application of the 
foregoing provisions to some of the activities funded by the National 
Endowment for the Arts.
    (1) A museum exhibition catalogue or small press editions supported 
by the Endowment may be made usable by the blind and the visually 
impaired through cassette tapes, records, discs, braille, readers and 
simultaneous publications;
    (2) A theatre performance supported by Federal funds may be made 
available to deaf and hearing impaired persons through the use of a sign 
language interpreter or by providing scripts in advance of the 
performance.
    (3) A performing arts organization receiving Federal funds and 
offering, for example, a specific event in an inaccessible facility may 
arrange to provide a reasonable opportunity for that specific event to 
be offered to the public at large in an alternative accessible space; 
e.g., a theatre offering four different plays a season may offer at 
least one performance of each play in an alternative accessible space.
    (4) Recipients of federal funds should make every effort to assure 
that they do not support organizations or individuals that discriminate;
    (5) A handicapped person with experience and expertise equal to 
qualification standards established by a planning or advisory board may 
not be excluded from participation on the board on the basis of 
handicap. This does not mean that every planning or advisory board 
necessarily must include a handicapped person.

[[Page 388]]

    (b) Despite the existence of permissible separate or different aid, 
benefits, or services, e.g., periodic performances in alternative 
accessible spaces, a physically handicapped person who wishes to be, and 
can be, escorted to a seat, may not be denied such access to an 
otherwise inaccessible theatre.
    (c) State arts agencies are obligated to develop methods of 
administering federal funds so as to ensure that handicapped persons are 
not subjected to discrimination on the basis of handicap either by sub-
grantees or by the manner in which the funds are distributed.
    (d) In the event Endowment funds are utilized to construct, expand, 
alter, lease or rent a facility, the aid, benefits, or services provided 
in or through that facility must be conducted in accordance with these 
regulations, e.g., a museum receiving a grant to renovate an existing 
facility must assure that all museum aid, benefits, or services 
conducted in that facility are accessible to handicapped persons.
    (e) In carrying out the mandate of section 504 and these 
implementing regulations recipients should make every effort to 
administer Endowment assisted programs or activities in a setting in 
which able-bodied and disabled persons are integrated, e.g., tours made 
available to the hearing impaired should be open to the public at large 
and everyone should be permitted to enjoy the benefits of a tactile 
experience in a museum.

[44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. Sec. 1151.19-1151.20  [Reserved]

                              Accessibility



Sec. 1151.21  Discrimination prohibited.

    No qualified handicapped person shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped persons, 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. 1151.22  Existing facilities.

    (a) A recipient shall operate each program or activity to which this 
part applies so that when each part is viewed in its entirety it is 
readily accessible to and usable by handicapped persons. This paragraph 
does not necessarily require a recipient to make each of its existing 
facilities or every part of a facility accessible to and usable by 
handicapped persons.
    (b) A recipient may comply with the requirement f paragraph (a) of 
this section through alteration of existing facilities, the construction 
of new facilities, or any other methods that result in making its 
program or activity accessible to handicapped persons. 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 serve handicapped persons in the most 
integrated setting appropriate.
    (c) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within sixty days of the effective date of 
this part except that where structural changes are necessary such 
changes shall be made as soon as possible but in no event later than 
three years after the effective date of this part.
    (d) Transition plan. In the event structural changes to facilities 
are necessary to meet the requirement of paragraph (a) of this section, 
a recipient shall develop, within one year 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. Upon request, the recipient shall make 
available for public inspection a copy of the transition plan. 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 handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;

[[Page 389]]

    (3) Specify the schedule for taking the steps necessary to achieve 
full accessibility under paragraph (a) of 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 person responsible for implementation of the plan.

[44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1151.23  New construction.

    (a) Design, construction, and alteration. New facilities shall be 
designed and constructed to be readily accessible to and usable by 
handicapped persons. Alterations to existing facilities shall, to the 
maximum extent feasible, be designed and constructed to be readily 
accessible to and usable by handicapped persons.
    (b) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of January 18, 1991, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (USAF) (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.

[44 FR 22734, Apr. 17, 1979, as amended at 55 FR 52138, 52142, Dec. 19, 
1990]



Sec. 1151.24  Historic properties. [Reserved]



Sec. Sec. 1151.25-1151.30  [Reserved]

                               Employment



Sec. 1151.31  Discrimination prohibited.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be subjected to discrimination in employment under any program or 
activity that receives federal financial assistance.
    (b) 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 or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (c) 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 paragraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipients, and with organizations providing training and 
apprenticeships.
    (d) The prohibition against discrimination in employment applies to 
the following activities:
    (1) Recruitment, advertising, and the processing of applications 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;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absences, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;

[[Page 390]]

    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including those that are social 
or recreational; and
    (9) Any other term, condition, or privilege of employment.
    (e) A recipient's obligation to comply with this subpart is not 
affected by any inconsistent term of any collective bargaining agreement 
to which it is a party.

[44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1151.32  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental 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 or activity.
    (b) Reasonable accommodation may include:
    (1) Making facilities used by employees 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, such as use of 
telecommunication devices and amplifiers on telephones, 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 or activity, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, 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.

[44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1151.33  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 
persons or any class of handicapped persons 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 are unavailable.
    (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 reflect the applicant's or 
employee's job skills, aptitude, or other factors relevant to adequate 
performance of the job in question.



Sec. 1151.34  Preemployment inquiries.

    A recipient may not, except as provided below, conduct a 
preemployment medical examination, make preemployment inquiry as to 
whether the applicant is a handicapped person, or inquire 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.
    (a) When a recipient is taking remedial action to correct the 
effects of past discrimination, 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, or when a 
recipient is taking affirmative action pursuant to section 504 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

[[Page 391]]

confidential as provided in paragraph (c) 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.
    (b) 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 entering employees are subjected 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.
    (c) 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 that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (3) Government officials investigating compliance with the Act shall 
be provided relevant information upon request.

[44 FR 22734, Apr. 17, 1979; 45 FR 57129, Aug. 27, 1980]



Sec. Sec. 1151.35-1151.40  [Reserved]



                          Subpart D_Enforcement



Sec. 1151.41  Assurances required.

    (a) An applicant for federal financial assistance to which this part 
applies shall submit an assurance, on a form specified by the Chairman, 
that the program or activity will be operated in compliance with this 
part. An applicant may incorporate these assurances by reference in 
subsequent applications to the Endowment.
    (b) Duration of obligation. (1) In the 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.
    (2) In all other cases the assurance will obligate the recipient for 
the period during which federal financial assistance is extended.
    (c) Covenants. Where property is purchased or improved with federal 
financial assistance, the recipient shall agree to include in any 
instrument effecting or recording any transfer of the property a 
covenant running with the property 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.

[44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003]



Sec. 1151.42  Self evaluation.

    (a) A recipient shall within six months of the effective date of 
this part:
    (1) Evaluate, with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices and the effects thereof that do not 
or may not meet the requirements of this part;
    (2) Modify, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
any policies and practices that do not meet the requirements of this 
part; and
    (3) Take, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (4) Maintain on file, make available for public inspection, and 
provide to the Endowment upon request, for at least three years 
following completion of the self-evaluation:
    (i) A list of the interested persons consulted;
    (ii) A description of areas examined and any problems identified; 
and,

[[Page 392]]

    (iii) A description of any modifications made and of any remedial 
steps taken.
    (5) The completed self-evaluation should be signed by a responsible 
official designated to coordinate the recipient's efforts in connection 
with this section.



Sec. 1151.43  Adoption of grievance procedures.

    A recipient may adopt an internal grievance procedure in order to 
provide for the prompt and equitable resolution of complaints alleging 
any action prohibited by this part. A responsible official should be 
designated to coordinate the recipient's efforts in connection with this 
section. Such procedures need not be established with respect to 
complaints from applicants for employment.



Sec. 1151.44  Endowment enforcement and compliance procedures.

    The procedural provisions applicable to title VI of the Civil Rights 
Act of 1964 apply to this part. These procedures are found in Sec. Sec. 
1110.8 through 1110.11 of part 1110 of this title.



Sec. Sec. 1151.45-1151.50  [Reserved]



PART 1152_INTERGOVERNMENTAL REVIEW OF NATIONAL ENDOWMENT FOR THE ARTS 
PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
1152.1 What is the purpose of these regulations?
1152.2 What definitions apply to these regulations?
1152.3 What programs and activities of the Endowment are subject to 
          these regulations?
1152.4 What are the Chairman's general responsibilities under the Order?
1152.5 What is the Chairman's obligation with respect to Federal 
          interagency coordination?
1152.6 What procedures apply to the selection of programs and activities 
          under these regulations?
1152.7 How does the Chairman communicate with state and local officials 
          concerning the Endowment's programs and activities?
1152.8 How does the Chairman provide states with an opportunity to 
          comment on proposed Federal financial assistance?
1152.9 How does the Chairman receive and respond to comments?
1152.10 How does the Chairman make efforts to accommodate 
          intergovernmental concerns?
1152.11 What are the Chairman's obligations in interstate situations?
1152.12 How may a state simplify, consolidate, or substitute federally 
          required state plans?
1152.13 May the Chairman waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 
8, 1983 (48 FR 15887); sec. 401 of the Intergovernmental Cooperation Act 
of 1968, as amended (31 U.S.C. 6506)

    Source: 48 FR 29352, June 24, 1983, unless otherwise noted.



Sec. 1152.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968.
    (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 improve the internal 
management of the Endowment, and are not intended to create any right or 
benefit enforceable at law by a party against the Endowment or its 
officers.



Sec. 1152.2  What definitions apply to these regulations?

    Chairman means the Chairman of the National Endowment for the Arts 
or an official or employee of the Endowment acting for the Chairman 
under a delegation of authority.
    Endowment means the National Endowment for the Arts.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''

[[Page 393]]

    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. 1152.3  What programs and activities of the Endowment are subject 
to these regulations?

    The Chairman publishes in the Federal Register a list of the 
Endowment's programs and activities that are subject to these 
regulations.



Sec. 1152.4  What are the Chairman's general responsibilities under the 
Order?

    (a) The Chairman 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 the Endowment.
    (b) If a state adopts a process under the Order to review and 
coordinate proposed Federal financial assistance the Chairman, 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 that is 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 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. 1152.5  What is the Chairman's obligation with respect to Federal 
interagency coordination?

    The Chairman 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 Endowment regarding programs and activities covered under these 
regulations.



Sec. 1152.6  What procedures apply to the selection of programs and 
activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 1152.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Chairman of 
the Endowment's programs and activities selected for that process.
    (c) A state may notify the Chairman of changes in its selections at 
any time. For each change, the state shall submit to the Chairman an 
assurance that the state has consulted with elected local officials 
regarding the change. The Endowment may establish deadlines by which 
states are required to inform the Chairman of changes in their program 
selections.
    (d) The Chairman uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Chairman is 
notified of its selections.



Sec. 1152.7  How does the Chairman communicate with state and local 
officials concerning the Endowment's programs and activities?

    (a) [Reserved]
    (b) The Chairman provides notice to directly affected state, 
areawide, regional, and local entities in a state of

[[Page 394]]

proposed Federal financial assistance if--
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development is under program or activity not 
selected for the state process.

This notice is made by the publication in the Federal Register or other 
appropriate means which the Endowment in its discretion deems 
appropriate.



Sec. 1152.8  How does the Chairman provide states with an opportunity 
to comment on proposed Federal financial assistance?

    (a) Except in unusual circumstance, the Chairman gives state 
processes or directly affected state, areawide, regional and local 
officials and entities--
    (1) [Reserved]
    (2) At least 60 days from the date established by the Chairman to 
comment on proposed Federal financial assistance.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Endowment have been 
delegated.



Sec. 1152.9  How does the Chairman receive and respond to comments?

    (a) The Chairman follows the procedures in Sec. 1152.10 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. 1152.6.
    (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 to the Endowment.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional and local officials and entities may submit 
comments to the Endowment. In addition, if a state process 
recommendation for a nonselected program or activity is transmitted to 
the Endowment by the single point of contact, the Chairman follows the 
procedure of Sec. 1152.10 of this part.
    (e) The Chairman considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Chairman is not required to apply the procedures of Sec. 1152.10 of 
this part, when such comments are provided by a single point of contact 
or directly to the Endowment by a commenting party.



Sec. 1152.10  How does the Chairman make efforts to accommodate 
intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Endowment through its single point of contact, the Chairman either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with such written 
explanation of the decision, as the Chairman in his or her discretion 
deems appropriate. The Chairman may supplement the written explanation 
by also 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 
Chairman informs the single point of contact that:
    (1) The Endowment will not implement its decision for ten days after 
the single point of contact receives the explanation; or
    (2) The Chairman has reviewed the decision and determined that, 
because of unusual circumstances, the ten-day waiting period 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.

[[Page 395]]



Sec. 1152.11  What are the Chairman's obligations in interstate situations?

    (a) The Chairman is responsible for:
    (1) Identifying proposed Gederal financial assistance that has an 
impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Endowment'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 
Endowment's program or activity;
    (4) Responding pursuant to Sec. 1152.10 of this part if the 
Chairman 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 Endowment have been delegated.
    (b) The Chairman uses the procedures in Sec. 1152.10 if a state 
process provides a state process recommendation to the Endowment through 
a single point of contact.



Sec. 1152.12  How may a state simplify, consolidate, or substitute 
federally required state plans?

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



Sec. 1152.13  May the Chairman waive any provision of these regulations?

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



PART 1153_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL ENDOWMENT FOR THE ARTS
--Table of Contents




Sec.
1153.101 Purpose.
1153.102 Application.
1153.103 Definitions.
1153.104-1153.109 [Reserved]
1153.110 Self-evaluation.
1153.111 Notice.
1153.112-153.129 [Reserved]
1153.130 General prohibitions against discrimination.
1153.131-1153.139 [Reserved]
1153.140 Employment.
1153.141-1153.148 [Reserved]
1153.149 Program accessibility: Discrimination prohibited.
1153.150 Program accessibility: Existing facilities.
1153.151 Program accessibility: New construction and alterations.
1153.152-1153.159 [Reserved]
1153.160 Communications.
1153.161-1153.169 [Reserved]
1153.170 Compliance procedures.
1153.171-1153.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22895 and 22896, June 23, 1986, unless otherwise 
noted.



Sec. 1153.101  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. 1153.102  Application.

    This part applies to all programs or activities conducted by the 
agency.

[[Page 396]]



Sec. 1153.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices 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 
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.
    Handicapped person 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 
alocoholism.
    (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 toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute,

[[Page 397]]

regulation, or agency policy to receive education services from the 
agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can acheive 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;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 1153.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 1153.104-1153.109  [Reserved]



Sec. 1153.110  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, 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. 1153.111  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 head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 1153.112-1153.129  [Reserved]



Sec. Sec. 1153.130  General prohibitions against discrimination.

    (a) No qualified handicapped person 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 handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;

[[Page 398]]

    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person 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 handicapped person 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 
arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (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 handicapped persons 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 of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons 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 handicapped persons 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 handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons 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 handicapped 
persons.



Sec. Sec. 1153.131-1153.139  [Reserved]



Sec. 1153.140  Employment.

    No qualified handicapped person 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. 1153.141-1153.148  [Reserved]



Sec. 1153.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1153.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, 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. 1153.150  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

[[Page 399]]

usable by handicapped persons. This paragraph does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) 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. 1153.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
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 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. 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, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. 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 through 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 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 1153.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to handicapped 
persons. In cases where a physical alteration to an historic property is 
not required because of Sec. 1153.150(a)(2) or (a)(3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, 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 February 23, 1987, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan

[[Page 400]]

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 programs or activities to handicapped 
persons;
    (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. 1153.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151 through 4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 1153.152-1153.159  [Reserved]



Sec. 1153.160  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 a handicapped person 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 
handicapped person.
    (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 applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (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 signage at a primary entrance to each 
of its inaccessible facilities, directing users to a 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 adminstrative 
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. 1153.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her 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, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 1153.161-1153.169  [Reserved]



Sec. 1153.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on

[[Page 401]]

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 Director, Office for Civil Rights, shall be responsible for 
coordinating implementation of this section. Complaints may be sent to 
the Office of General Counsel, National Endowment for the Arts, 1100 
Pennsylvania Avenue NW., Washington, DC 20506.
    (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), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (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. 1153.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The 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.

[51 FR 22895 and 22896, June 23, 1986, as amended at 51 FR 22895, June 
23, 1986]



Sec. Sec. 1153.171-1153.999  [Reserved]



PART 1154_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)--Table 
of Contents




Sec.
1154.25 How is this part organized?
1154.50 How is this part written?
1154.75 Do terms in this part have special meanings?

                            Subpart A_General

1154.100 What does this part do?
1154.105 Does this part apply to me?
1154.110 What is the purpose of the nonprocurement debarment and 
          suspension system?
1154.115 How does an exclusion restrict a person's involvement in 
          covered transactions?
1154.120 May we grant an exception to let an excluded person participate 
          in a covered transaction?
1154.125 Does an exclusion under the nonprocurement system affect a 
          person's eligibility for Federal procurement contracts?
1154.130 Does exclusion under the Federal procurement system affect a 
          person's eligibility to participate in nonprocurement 
          transactions?

[[Page 402]]

1154.135 May the National Endowment for the Arts exclude a person who is 
          not currently participating in a nonprocurement transaction?
1154.140 How do I know if a person is excluded?
1154.145 Does this part address persons who are disqualified, as well as 
          those who are excluded from nonprocurement transactions?

                     Subpart B_Covered Transactions

1154.200 What is a covered transaction?
1154.205 Why is it important to know if a particular transaction is a 
          covered transaction?
1154.210 Which nonprocurement transactions are covered transactions?
1154.215 Which nonprocurement transactions are not covered transactions?
1154.220 Are any procurement contracts included as covered transactions?
1154.225 How do I know if a transaction in which I may participate is a 
          covered transaction?

    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons

1154.300 What must I do before I enter into a covered transaction with 
          another person at the next lower tier?
1154.305 May I enter into a covered transaction with an excluded or 
          disqualified person?
1154.310 What must I do if a Federal agency excludes a person with whom 
          I am already doing business in a covered transaction?
1154.315 May I use the services of an excluded person as a principal 
          under a covered transaction?
1154.320 Must I verify that principals of my covered transactions are 
          eligible to participate?
1154.325 What happens if I do business with an excluded person in a 
          covered transaction?
1154.330 What requirements must I pass down to persons at lower tiers 
          with whom I intend to do business?

            Disclosing Information--Primary Tier Participants

1154.335 What information must I provide before entering into a covered 
          transaction with the National Endowment for the Arts?
1154.340 If I disclose unfavorable information required under Sec. 
          1154.335, will I be prevented from participating in the 
          transaction?
1154.345 What happens if I fail to disclose the information required 
          under Sec. 1154.335?
1154.350 What must I do if I learn of the information required under 
          Sec. 1154.335 after entering into a covered transaction with 
          the National Endowment for the Arts?

             Disclosing Information--Lower Tier Participants

1154.355 What information must I provide to a higher tier participant 
          before entering into a covered transaction with that 
          participant?
1154.360 What happens if I fail to disclose the information required 
          under Sec. 1154.355?
1154.365 What must I do if I learn of information required under Sec. 
          1154.355 after entering into a covered transaction with a 
          higher tier participant?

   Subpart D_Responsibilities of NEA Officials Regarding Transactions

1154.400 May I enter into a transaction with an excluded or disqualified 
          person?
1154.405 May I enter into a covered transaction with a participant if a 
          principal of the transaction is excluded?
1154.410 May I approve a participant's use of the services of an 
          excluded person?
1154.415 What must I do if a Federal agency excludes the participant or 
          a principal after I enter into a covered transaction?
1154.420 May I approve a transaction with an excluded or disqualified 
          person at a lower tier?
1154.425 When do I check to see if a person is excluded or disqualified?
1154.430 How do I check to see if a person is excluded or disqualified?
1154.435 What must I require of a primary tier participant?
1154.440 What method do I use to communicate those requirements to 
          participants?
1154.445 What action may I take if a primary tier participant knowingly 
          does business with an excluded or disqualified person?
1154.450 What action may I take if a primary tier participant fails to 
          disclose the information required under Sec. 1154.335?
1154.455 What may I do if a lower tier participant fails to disclose the 
          information required under Sec. 1154.355 to the next higher 
          tier?

                 Subpart E_Excluded Parties List System

1154.500 What is the purpose of the Excluded Parties List System (EPLS)?
1154.505 Who uses the EPLS?
1154.510 Who maintains the EPLS?
1154.515 What specific information is in the EPLS?
1154.520 Who places the information into the EPLS?
1154.525 Whom do I ask if I have questions about a person in the EPLS?

[[Page 403]]

1154.530 Where can I find the EPLS?

   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions

1154.600 How do suspension and debarment actions start?
1154.605 How does suspension differ from debarment?
1154.610 What procedures does the National Endowment for the Arts use in 
          suspension and debarment actions?
1154.615 How does the National Endowment for the Arts notify a person of 
          a suspension and debarment action?
1154.620 Do Federal agencies coordinate suspension and debarment 
          actions?
1154.625 What is the scope of a suspension or debarment action?
1154.630 May the National Endowment for the Arts impute the conduct of 
          one person to another?
1154.635 May the National Endowment for the Arts settle a debarment or 
          suspension action?
1154.640 May a settlement include a voluntary exclusion?
1154.645 Do other Federal agencies know if the National Endowment for 
          the Arts agrees to a voluntary exclusion?

                          Subpart G_Suspension

1154.700 When may the suspending official issue a suspension?
1154.705 What does the suspending official consider in issuing a 
          suspension?
1154.710 When does a suspension take effect?
1154.715 What notice does the suspending official give me if I am 
          suspended?
1154.720 How may I contest a suspension?
1154.725 How much time do I have to contest a suspension?
1154.730 What information must I provide to the suspending official if I 
          contest a suspension?
1154.735 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the suspension is based?
1154.740 Are suspension proceedings formal?
1154.745 How is fact-finding conducted?
1154.750 What does the suspending official consider in deciding whether 
          to continue or terminate my suspension?
1154.755 When will I know whether the suspension is continued or 
          terminated?
1154.760 How long may my suspension last?

                           Subpart H_Debarment

1154.800 What are the causes for debarment?
1154.805 What notice does the debarring official give me if I am 
          proposed for debarment?
1154.810 When does a debarment take effect?
1154.815 How may I contest a proposed debarment?
1154.820 How much time do I have to contest a proposed debarment?
1154.825 What information must I provide to the debarring official if I 
          contest a proposed debarment?
1154.830 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the proposed debarment is based?
1154.835 Are debarment proceedings formal?
1154.840 How is fact-finding conducted?
1154.845 What does the debarring official consider in deciding whether 
          to debar me?
1154.850 What is the standard of proof in a debarment action?
1154.855 Who has the burden of proof in a debarment action?
1154.860 What factors may influence the debarring official's decision?
1154.865 How long may my debarment last?
1154.870 When do I know if the debarring official debars me?
1154.875 May I ask the debarring official to reconsider a decision to 
          debar me?
1154.880 What factors may influence the debarring official during 
          reconsideration?
1154.885 May the debarring official extend a debarment?

                          Subpart I_Definitions

1154.900 Adequate evidence.
1154.905 Affiliate.
1154.910 Agency.
1154.915 Agent or representative.
1154.920 Civil judgment.
1154.925 Conviction.
1154.930 Debarment.
1154.935 Debarring official.
1154.940 Disqualified.
1154.945 Excluded or exclusion.
1154.950 Excluded Parties List System.
1154.955 Indictment.
1154.960 Ineligible or ineligibility.
1154.965 Legal proceedings.
1154.970 Nonprocurement transaction.
1154.975 Notice.
1154.980 Participant.
1154.985 Person.
1154.990 Preponderance of the evidence.
1154.995 Principal.
1154.1000 Respondent.
1154.1005 State.
1154.1010 Suspending official.
1154.1015 Suspension.
1154.1020 Voluntary exclusion or voluntarily excluded.

Subpart J [Reserved]

Appendix to Part 1154--Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.

[[Page 404]]


    Source: 68 FR 66557, 66635, Nov. 26, 2003, unless otherwise noted.



Sec. 1154.25  How is this part organized?

    (a) This part is subdivided into ten subparts. Each subpart contains 
information related to a broad topic or specific audience with special 
responsibilities, as shown in the following table:

------------------------------------------------------------------------
                                             You will find provisions
            In subpart . . .                     related to . . .
------------------------------------------------------------------------
A......................................  general information about this
                                          rule.
B......................................  the types of NEA transactions
                                          that are covered by the
                                          Governmentwide nonprocurement
                                          suspension and debarment
                                          system.
C......................................  the responsibilities of persons
                                          who participate in covered
                                          transactions.
D......................................  the responsibilities of NEA
                                          officials who are authorized
                                          to enter into covered
                                          transactions.
E......................................  the responsibilities of Federal
                                          agencies for the Excluded
                                          Parties List System
                                          (Disseminated by the General
                                          Services Administration).
F......................................  the general principles
                                          governing suspension,
                                          debarment, voluntary exclusion
                                          and settlement.
G......................................  suspension actions.
H......................................  debarment actions.
I......................................  definitions of terms used in
                                          this part.
J......................................  [Reserved]
------------------------------------------------------------------------

    (b) The following table shows which subparts may be of special 
interest to you, depending on who you are:

------------------------------------------------------------------------
             If you are . . .                   See subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a         A, B, C, and I.
 nonprocurement transaction.
(2) a respondent in a suspension action...  A, B, F, G and I.
(3) a respondent in a debarment action....  A, B, F, H and I.
(4) a suspending official.................  A, B, D, E, F, G and I.
(5) a debarring official..................  A, B, D, E, F, H and I.
(6) a (n) NEA official authorized to enter  A, B, D, E and I.
 into a covered transaction.
(7) Reserved..............................  J.
------------------------------------------------------------------------



Sec. 1154.50  How is this part written?

    (a) This part uses a ``plain language'' format to make it easier for 
the general public and business community to use. The section headings 
and text, often in the form of questions and answers, must be read 
together.
    (b) Pronouns used within this part, such as ``I'' and ``you,'' 
change from subpart to subpart depending on the audience being 
addressed. The pronoun ``we'' always is the National Endowment for the 
Arts.
    (c) The ``Covered Transactions'' diagram in the appendix to this 
part shows the levels or ``tiers'' at which the National Endowment for 
the Arts enforces an exclusion under this part.



Sec. 1154.75  Do terms in this part have special meanings?

    This part uses terms throughout the text that have special meaning. 
Those terms are defined in Subpart I of this part. For example, three 
important terms are--
    (a) Exclusion or excluded, which refers only to discretionary 
actions taken by a suspending or debarring official under this part or 
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
    (b) Disqualification or disqualified, which refers to prohibitions 
under specific statutes, executive orders (other than Executive Order 
12549 and Executive Order 12689), or other authorities. 
Disqualifications frequently are not subject to the discretion of an 
agency official, may have a different scope than exclusions, or have 
special conditions that apply to the disqualification; and
    (c) Ineligibility or ineligible, which generally refers to a person 
who is either excluded or disqualified.



                            Subpart A_General



Sec. 1154.100  What does this part do?

    This part adopts a governmentwide system of debarment and suspension 
for NEA nonprocurement activities. It also provides for reciprocal 
exclusion of persons who have been excluded under the Federal 
Acquisition Regulation, and provides for the consolidated listing of all 
persons who are excluded, or disqualified by statute, executive order, 
or other legal authority. This part satisfies the requirements in 
section 3 of Executive Order 12549, ``Debarment and Suspension'' (3 CFR 
1986 Comp., p. 189), Executive Order 12689, ``Debarment and Suspension'' 
(3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public 
Law 103-355, 108 Stat. 3327).



Sec. 1154.105  Does this part apply to me?

    Portions of this part (see table at Sec. 1154.25(b)) apply to you 
if you are a(n)--

[[Page 405]]

    (a) Person who has been, is, or may reasonably be expected to be, a 
participant or principal in a covered transaction;
    (b) Respondent (a person against whom the National Endowment for the 
Arts has initiated a debarment or suspension action);
    (c) NEA debarring or suspending official; or
    (d) NEA official who is authorized to enter into covered 
transactions with non-Federal parties.



Sec. 1154.110  What is the purpose of the nonprocurement debarment and 
suspension system?

    (a) To protect the public interest, the Federal Government ensures 
the integrity of Federal programs by conducting business only with 
responsible persons.
    (b) A Federal agency uses the nonprocurement debarment and 
suspension system to exclude from Federal programs persons who are not 
presently responsible.
    (c) An exclusion is a serious action that a Federal agency may take 
only to protect the public interest. A Federal agency may not exclude a 
person or commodity for the purposes of punishment.



Sec. 1154.115  How does an exclusion restrict a person's involvement in 
covered transactions?

    With the exceptions stated in Sec. Sec. 1154.120, 1154.315, and 
1154.420, a person who is excluded by the National Endowment for the 
Arts or any other Federal agency may not:
    (a) Be a participant in a(n) NEA transaction that is a covered 
transaction under subpart B of this part;
    (b) Be a participant in a transaction of any other Federal agency 
that is a covered transaction under that agency's regulation for 
debarment and suspension; or
    (c) Act as a principal of a person participating in one of those 
covered transactions.



Sec. 1154.120  May we grant an exception to let an excluded person 
participate in a covered transaction?

    (a) The NEA Chairman may grant an exception permitting an excluded 
person to participate in a particular covered transaction. If the NEA 
Chairman grants an exception, the exception must be in writing and state 
the reason(s) for deviating from the governmentwide policy in Executive 
Order 12549.
    (b) An exception granted by one agency for an excluded person does 
not extend to the covered transactions of another agency.



Sec. 1154.125  Does an exclusion under the nonprocurement system 
affect a person's eligibility for Federal procurement contracts?

    If any Federal agency excludes a person under its nonprocurement 
common rule on or after August 25, 1995, the excluded person is also 
ineligible to participate in Federal procurement transactions under the 
FAR. Therefore, an exclusion under this part has reciprocal effect in 
Federal procurement transactions.



Sec. 1154.130  Does exclusion under the Federal procurement system 

affect a person's eligibility to participate in nonprocurement 
transactions?

    If any Federal agency excludes a person under the FAR on or after 
August 25, 1995, the excluded person is also ineligible to participate 
in nonprocurement covered transactions under this part. Therefore, an 
exclusion under the FAR has reciprocal effect in Federal nonprocurement 
transactions.



Sec. 1154.135  May the National Endowment for the Arts exclude a person 
who is not currently participating in a nonprocurement transaction?

    Given a cause that justifies an exclusion under this part, we may 
exclude any person who has been involved, is currently involved, or may 
reasonably be expected to be involved in a covered transaction.



Sec. 1154.140  How do I know if a person is excluded?

    Check the Excluded Parties List System (EPLS) to determine whether a 
person is excluded. The General Services Administration (GSA) maintains 
the EPLS and makes it available, as detailed in subpart E of this part. 
When a Federal agency takes an action to exclude a person under the 
nonprocurement or procurement debarment and suspension system, the 
agency enters

[[Page 406]]

the information about the excluded person into the EPLS.



Sec. 1154.145  Does this part address persons who are disqualified, as 
well as those who are excluded from nonprocurement transactions?

    Except if provided for in Subpart J of this part, this part--
    (a) Addresses disqualified persons only to--
    (1) Provide for their inclusion in the EPLS; and
    (2) State responsibilities of Federal agencies and participants to 
check for disqualified persons before entering into covered 
transactions.
    (b) Does not specify the--
    (1) NEA transactions for which a disqualified person is ineligible. 
Those transactions vary on a case-by-case basis, because they depend on 
the language of the specific statute, Executive order, or regulation 
that caused the disqualification;
    (2) Entities to which the disqualification applies; or
    (3) Process that the agency uses to disqualify a person. Unlike 
exclusion, disqualification is frequently not a discretionary action 
that a Federal agency takes.



                     Subpart B_Covered Transactions



Sec. 1154.200  What is a covered transaction?

    A covered transaction is a nonprocurement or procurement transaction 
that is subject to the prohibitions of this part. It may be a 
transaction at--
    (a) The primary tier, between a Federal agency and a person (see 
appendix to this part); or
    (b) A lower tier, between a participant in a covered transaction and 
another person.



Sec. 1154.205  Why is it important if a particular transaction is a 
covered transaction?

    The importance of a covered transaction depends upon who you are.
    (a) As a participant in the transaction, you have the 
responsibilities laid out in Subpart C of this part. Those include 
responsibilities to the person or Federal agency at the next higher tier 
from whom you received the transaction, if any. They also include 
responsibilities if you subsequently enter into other covered 
transactions with persons at the next lower tier.
    (b) As a Federal official who enters into a primary tier 
transaction, you have the responsibilities laid out in subpart D of this 
part.
    (c) As an excluded person, you may not be a participant or principal 
in the transaction unless--
    (1) The person who entered into the transaction with you allows you 
to continue your involvement in a transaction that predates your 
exclusion, as permitted under Sec. 1154.310 or Sec. 1154.415; or
    (2) A(n) NEA official obtains an exception from the NEA Chairman to 
allow you to be involved in the transaction, as permitted under Sec. 
1154.120.



Sec. 1154.210  Which nonprocurement transactions are covered transactions?

    All nonprocurement transactions, as defined in Sec. 1154.970, are 
covered transactions unless listed in Sec. 1154.215. (See appendix to 
this part.)



Sec. 1154.215  Which nonprocurement transactions are not covered 
transactions?

    The following types of nonprocurement transactions are not covered 
transactions:
    (a) A direct award to--
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization;
    (3) An entity owned (in whole or in part) or controlled by a foreign 
government; or
    (4) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.
    (b) A benefit 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). For example, if 
a person receives social security benefits under the Supplemental 
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et 
seq., those benefits are not covered

[[Page 407]]

transactions and, therefore, are not affected if the person is excluded.
    (c) Federal employment.
    (d) A transaction that the National Endowment for the Arts needs to 
respond to a national or agency-recognized emergency or disaster.
    (e) A permit, license, certificate, or similar instrument issued as 
a means to regulate public health, safety, or the environment, unless 
the National Endowment for the Arts specifically designates it to be a 
covered transaction.
    (f) An incidental benefit that results from ordinary governmental 
operations.
    (g) Any other transaction if the application of an exclusion to the 
transaction is prohibited by law.



Sec. 1154.220  Are any procurement contracts included as covered 
transactions?

    (a) Covered transactions under this part--
    (1) Do not include any procurement contracts awarded directly by a 
Federal agency; but
    (2) Do include some procurement contracts awarded by non-Federal 
participants in nonprocurement covered transactions (see appendix to 
this part).
    (b) Specifically, a contract for goods or services is a covered 
transaction if any of the following applies:
    (1) The contract is awarded by a participant in a nonprocurement 
transaction that is covered under Sec. 1154.210, and the amount of the 
contract is expected to equal or exceed $25,000.
    (2) The contract requires the consent of a(n) NEA official. In that 
case, the contract, regardless of the amount, always is a covered 
transaction, and it does not matter who awarded it. For example, it 
could be a subcontract awarded by a contractor at a tier below a 
nonprocurement transaction, as shown in the appendix to this part.
    (3) The contract is for federally-required audit services.



Sec. 1154.225  How do I know if a transaction in which I may participate 
is a covered transaction?

    As a participant in a transaction, you will know that it is a 
covered transaction because the agency regulations governing the 
transaction, the appropriate agency official, or participant at the next 
higher tier who enters into the transaction with you, will tell you that 
you must comply with applicable portions of this part.



    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons



Sec. 1154.300  What must I do before I enter into a covered transaction 
with another person at the next lower tier?

    When you enter into a covered transaction with another person at the 
next lower tier, you must verify that the person with whom you intend to 
do business is not excluded or disqualified. You do this by:
    (a) Checking the EPLS; or
    (b) Collecting a certification from that person if allowed by this 
rule; or
    (c) Adding a clause or condition to the covered transaction with 
that person.



Sec. 1154.305  May I enter into a covered transaction with an excluded 
or disqualified person?

    (a) You as a participant may not enter into a covered transaction 
with an excluded person, unless the National Endowment for the Arts 
grants an exception under Sec. 1154.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you have obtained an 
exception under the disqualifying statute, Executive order, or 
regulation.



Sec. 1154.310  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?

    (a) You as a participant may continue covered transactions with an 
excluded person if the transactions were in existence when the agency 
excluded the person. However, you are not required to continue the 
transactions, and you may consider termination. You should make a 
decision about whether to terminate and the type of termination action, 
if any, only after a thorough review to ensure that the action is proper 
and appropriate.

[[Page 408]]

    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, unless the National 
Endowment for the Arts grants an exception under Sec. 1154.120.



Sec. 1154.315  May I use the services of an excluded person as a principal 
under a covered transaction?

    (a) You as a participant may continue to use the services of an 
excluded person as a principal under a covered transaction if you were 
using the services of that person in the transaction before the person 
was excluded. However, you are not required to continue using that 
person's services as a principal. You should make a decision about 
whether to discontinue that person's services only after a thorough 
review to ensure that the action is proper and appropriate.
    (b) You may not begin to use the services of an excluded person as a 
principal under a covered transaction unless the National Endowment for 
the Arts grants an exception under Sec. 1154.120.



Sec. 1154.320  Must I verify that principals of my covered transactions 
are eligible to participate?

    Yes, you as a participant are responsible for determining whether 
any of your principals of your covered transactions is excluded or 
disqualified from participating in the transaction. You may decide the 
method and frequency by which you do so. You may, but you are not 
required to, check the EPLS.



Sec. 1154.325  What happens if I do business with an excluded person in 
a covered transaction?

    If as a participant you knowingly do business with an excluded 
person, we may disallow costs, annul or terminate the transaction, issue 
a stop work order, debar or suspend you, or take other remedies as 
appropriate.



Sec. 1154.330  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

    Before entering into a covered transaction with a participant at the 
next lower tier, you must require that participant to--
    (a) Comply with this subpart as a condition of participation in the 
transaction. You may do so using any method(s), unless Sec. 1154.440 
requires you to use specific methods.
    (b) Pass the requirement to comply with this subpart to each person 
with whom the participant enters into a covered transaction at the next 
lower tier.

            Disclosing Information--Primary Tier Participants



Sec. 1154.335  What information must I provide before entering into a 
covered transaction with the National Endowment for the Arts?

    Before you enter into a covered transaction at the primary tier, you 
as the participant must notify the NEA office that is entering into the 
transaction with you, if you know that you or any of the principals for 
that covered transaction:
    (a) Are presently excluded or disqualified;
    (b) Have been convicted within the preceding three years of any of 
the offenses listed in Sec. 1154.800(a) or had a civil judgment 
rendered against you for one of those offenses within that time period;
    (c) Are presently indicted for or otherwise criminally or civilly 
charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses listed in Sec. 1154.800(a); or
    (d) Have had one or more public transactions (Federal, State, or 
local) terminated within the preceding three years for cause or default.



Sec. 1154.340  If I disclose unfavorable information required under 
Sec. 1154.335, will I be prevented from participating in the transaction?

    As a primary tier participant, your disclosure of unfavorable 
information about yourself or a principal under Sec. 1154.335 will not 
necessarily cause us to deny your participation in the covered 
transaction. We will consider the information when we determine whether 
to enter into the covered transaction. We also will consider any 
additional information or explanation that you elect to submit with the 
disclosed information.

[[Page 409]]



Sec. 1154.345  What happens if I fail to disclose information required 
under Sec. 1154.335?

    If we later determine that you failed to disclose information under 
Sec. 1154.335 that you knew at the time you entered into the covered 
transaction, we may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec. 1154.350  What must I do if I learn of information required under 

Sec. 1154.335 after entering into a covered transaction with the National 
Endowment for 
          the Arts?

    At any time after you enter into a covered transaction, you must 
give immediate written notice to the NEA office with which you entered 
into the transaction if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec. 
1154.335; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. 1154.335.

             Disclosing Information--Lower Tier Participants



Sec. 1154.355  What information must I provide to a higher tier participant 
before entering into a covered transaction with that participant?

    Before you enter into a covered transaction with a person at the 
next higher tier, you as a lower tier participant must notify that 
person if you know that you or any of the principals are presently 
excluded or disqualified.



Sec. 1154.360  What happens if I fail to disclose the information required 
under Sec. 1154.355?

    If we later determine that you failed to tell the person at the 
higher tier that you were excluded or disqualified at the time you 
entered into the covered transaction with that person, we may pursue any 
available remedies, including suspension and debarment.



Sec. 1154.365  What must I do if I learn of information required under 

Sec. 1154.355 after entering into a covered transaction with a higher 
tier participant?

    At any time after you enter into a lower tier covered transaction 
with a person at a higher tier, you must provide immediate written 
notice to that person if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec. 
1154.355; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. 1154.355.



   Subpart D_Responsibilities of NEA Officials Regarding Transactions



Sec. 1154.400  May I enter into a transaction with an excluded or 
disqualified person?

    (a) You as an agency official may not enter into a covered 
transaction with an excluded person unless you obtain an exception under 
Sec. 1154.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you obtain a waiver or 
exception under the statute, Executive order, or regulation that is the 
basis for the person's disqualification.



Sec. 1154.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?

    As an agency official, you may not enter into a covered transaction 
with a participant if you know that a principal of the transaction is 
excluded, unless you obtain an exception under Sec. 1154.120.



Sec. 1154.410  May I approve a participant's use of the services of an 
excluded person?

    After entering into a covered transaction with a participant, you as 
an agency official may not approve a participant's use of an excluded 
person as a principal under that transaction, unless you obtain an 
exception under Sec. 1154.120.

[[Page 410]]



Sec. 1154.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?

    (a) You as an agency official may continue covered transactions with 
an excluded person, or under which an excluded person is a principal, if 
the transactions were in existence when the person was excluded. You are 
not required to continue the transactions, however, and you may consider 
termination. You should make a decision about whether to terminate and 
the type of termination action, if any, only after a thorough review to 
ensure that the action is proper.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an 
excluded person is a principal, unless you obtain an exception under 
Sec. 1154.120.



Sec. 1154.420  May I approve a transaction with an excluded or disqualified 
person at a lower tier?

    If a transaction at a lower tier is subject to your approval, you as 
an agency official may not approve--
    (a) A covered transaction with a person who is currently excluded, 
unless you obtain an exception under Sec. 1154.120; or
    (b) A transaction with a person who is disqualified from that 
transaction, unless you obtain a waiver or exception under the statute, 
Executive order, or regulation that is the basis for the person's 
disqualification.



Sec. 1154.425  When do I check to see if a person is excluded or 
disqualified?

    As an agency official, you must check to see if a person is excluded 
or disqualified before you--
    (a) Enter into a primary tier covered transaction;
    (b) Approve a principal in a primary tier covered transaction;
    (c) Approve a lower tier participant if agency approval of the lower 
tier participant is required; or
    (d) Approve a principal in connection with a lower tier transaction 
if agency approval of the principal is required.



Sec. 1154.430  How do I check to see if a person is excluded or 
disqualified?

    You check to see if a person is excluded or disqualified in two 
ways:
    (a) You as an agency official must check the EPLS when you take any 
action listed in Sec. 1154.425.
    (b) You must review information that a participant gives you, as 
required by Sec. 1154.335, about its status or the status of the 
principals of a transaction.



Sec. 1154.435  What must I require of a primary tier participant?

    You as an agency official must require each participant in a primary 
tier covered transaction to--
    (a) Comply with subpart C of this part as a condition of 
participation in the transaction; and
    (b) Communicate the requirement to comply with Subpart C of this 
part to persons at the next lower tier with whom the primary tier 
participant enters into covered transactions.



Sec. 1154.440  What method do I use to communicate those requirements 
to participants?

    To communicate the requirements to participants, you must include a 
term or condition in the transaction requiring the participant's 
compliance with subpart C of this part, and requiring them to include a 
similar term or condition in lower tier covered transactions.



Sec. 1154.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?

    If a participant knowingly does business with an excluded or 
disqualified person, you as an agency official may refer the matter for 
suspension and debarment consideration. You may also disallow costs, 
annul or terminate the transaction, issue a stop work order, or take any 
other appropriate remedy.



Sec. 1154.450  What action may I take if a primary tier participant 
fails to disclose the information required under Sec. 1154.335?

    If you as an agency official determine that a participant failed to 
disclose information, as required by Sec. 1154.335, at the time it 
entered into a

[[Page 411]]

covered transaction with you, you may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec. 1154.455  What may I do if a lower tier participant fails to 

disclose the information required under Sec. 1154.355 to the next 
higher tier?

    If you as an agency official determine that a lower tier participant 
failed to disclose information, as required by Sec. 1154.355, at the 
time it entered into a covered transaction with a participant at the 
next higher tier, you may pursue any remedies available to you, 
including the initiation of a suspension or debarment action.



                 Subpart E_Excluded Parties List System



Sec. 1154.500  What is the purpose of the Excluded Parties List System 
(EPLS)?

    The EPLS is a widely available source of the most current 
information about persons who are excluded or disqualified from covered 
transactions.



Sec. 1154.505  Who uses the EPLS?

    (a) Federal agency officials use the EPLS to determine whether to 
enter into a transaction with a person, as required under Sec. 
1154.430.
    (b) Participants also may, but are not required to, use the EPLS to 
determine if--
    (1) Principals of their transactions are excluded or disqualified, 
as required under Sec. 1154.320; or
    (2) Persons with whom they are entering into covered transactions at 
the next lower tier are excluded or disqualified.
    (c) The EPLS is available to the general public.



Sec. 1154.510  Who maintains the EPLS?

    In accordance with the OMB guidelines, the General Services 
Administration (GSA) maintains the EPLS. When a Federal agency takes an 
action to exclude a person under the nonprocurement or procurement 
debarment and suspension system, the agency enters the information about 
the excluded person into the EPLS.



Sec. 1154.515  What specific information is in the EPLS?

    (a) At a minimum, the EPLS indicates--
    (1) The full name (where available) and address of each excluded or 
disqualified person, in alphabetical order, with cross references if 
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 the action;
    (6) The agency and name and telephone number of the agency point of 
contact for the action; and
    (7) The Dun and Bradstreet Number (DUNS), or other similar code 
approved by the GSA, of the excluded or disqualified person, if 
available.
    (b)(1) The database for the EPLS includes a field for the Taxpayer 
Identification Number (TIN) (the social security number (SSN) for an 
individual) of an excluded or disqualified person.
    (2) Agencies disclose the SSN of an individual to verify the 
identity of an individual, only if permitted under the Privacy Act of 
1974 and, if appropriate, the Computer Matching and Privacy Protection 
Act of 1988, as codified in 5 U.S.C. 552(a).



Sec. 1154.520  Who places the information into the EPLS?

    Federal officials who take actions to exclude persons under this 
part or officials who are responsible for identifying disqualified 
persons must enter the following information about those persons into 
the EPLS:
    (a) Information required by Sec. 1154.515(a);
    (b) The Taxpayer Identification Number (TIN) of the excluded or 
disqualified person, including the social security number (SSN) for an 
individual, if the number is available and may be disclosed under law;
    (c) Information about an excluded or disqualified person, generally 
within five working days, after--
    (1) Taking an exclusion action;

[[Page 412]]

    (2) Modifying or rescinding an exclusion action;
    (3) Finding that a person is disqualified; or
    (4) Finding that there has been a change in the status of a person 
who is listed as disqualified.



Sec. 1154.525  Whom do I ask if I have questions about a person in the EPLS?

    If you have questions about a person in the EPLS, ask the point of 
contact for the Federal agency that placed the person's name into the 
EPLS. You may find the agency point of contact from the EPLS.



Sec. 1154.530  Where can I find the EPLS?

    (a) You may access the EPLS through the Internet, currently at 
http://epls.arnet.gov.
    (b) As of November 26, 2003, you may also subscribe to a printed 
version. However, we anticipate discontinuing the printed version. Until 
it is discontinued, you may obtain the printed version by purchasing a 
yearly subscription from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402, or by calling the 
Government Printing Office Inquiry and Order Desk at (202) 783-3238.



   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions



Sec. 1154.600  How do suspension and debarment actions start?

    When we receive information from any source concerning a cause for 
suspension or debarment, we will promptly report and investigate it. We 
refer the question of whether to suspend or debar you to our suspending 
or debarring official for consideration, if appropriate.



Sec. 1154.605  How does suspension differ from debarment?

    Suspension differs from debarment in that--

------------------------------------------------------------------------
        A suspending official . . .          A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary       Imposes debarment for a
 status of ineligibility for procurement     specified period as a final
 and nonprocurement transactions, pending    determination that a person
 completion of an investigation or legal     is not presently
 proceedings.                                responsible.
(b) Must--................................  Must conclude, based on a
(1) Have adequate evidence that there may    preponderance of the
 be a cause for debarment of a person; and.  evidence, that the person
(2) Conclude that immediate action is        has engaged in conduct that
 necessary to protect the Federal interest.  warrants debarment.
(c) Usually imposes the suspension first,   Imposes debarment after
 and then promptly notifies the suspended    giving the respondent
 person, giving the person an opportunity    notice of the action and an
 to contest the suspension and have it       opportunity to contest the
 lifted.                                     proposed debarment.
------------------------------------------------------------------------



Sec. 1154.610  What procedures does the National Endowment for the Arts use 
in suspension and debarment actions?

    In deciding whether to suspend or debar you, we handle the actions 
as informally as practicable, consistent with principles of fundamental 
fairness.
    (a) For suspension actions, we use the procedures in this subpart 
and subpart G of this part.
    (b) For debarment actions, we use the procedures in this subpart and 
subpart H of this part.



Sec. 1154.615  How does the National Endowment for the Arts notify a person 
of a suspension or debarment action?

    (a) The suspending or debarring official sends a written notice to 
the last known street address, facsimile number, or e-mail address of--
    (1) You or your identified counsel; or
    (2) Your agent for service of process, or any of your partners, 
officers, directors, owners, or joint venturers.
    (b) The notice is effective if sent to any of these persons.



Sec. 1154.620  Do Federal agencies coordinate suspension and debarment 
actions?

    Yes, when more than one Federal agency has an interest in a 
suspension or debarment, the agencies may consider designating one 
agency as the lead agency for making the decision.

[[Page 413]]

Agencies are encouraged to establish methods and procedures for 
coordinating their suspension and debarment actions.



Sec. 1154.625  What is the scope of a suspension or debarment?

    If you are suspended or debarred, the suspension or debarment is 
effective as follows:
    (a) Your suspension or debarment constitutes suspension or debarment 
of all of your divisions and other organizational elements from all 
covered transactions, unless the suspension or debarment decision is 
limited--
    (1) By its terms to one or more specifically identified individuals, 
divisions, or other organizational elements; or
    (2) To specific types of transactions.
    (b) Any affiliate of a participant may be included in a suspension 
or debarment action if the suspending or debarring official--
    (1) Officially names the affiliate in the notice; and
    (2) Gives the affiliate an opportunity to contest the action.



Sec. 1154.630  May the National Endowment for the Arts impute conduct 
of one person to another?

    For purposes of actions taken under this rule, we may impute conduct 
as follows:
    (a) Conduct imputed from an individual to an organization. We may 
impute the fraudulent, criminal, or other improper conduct of any 
officer, director, shareholder, partner, employee, or other individual 
associated with an organization, to that organization when the improper 
conduct occurred in connection with the individual's performance of 
duties for or on behalf of that organization, or with the organization's 
knowledge, approval or acquiescence. The organization's acceptance of 
the benefits derived from the conduct is evidence of knowledge, approval 
or acquiescence.
    (b) Conduct imputed from an organization to an individual, or 
between individuals. We may impute the fraudulent, criminal, or other 
improper conduct of any organization to an individual, or from one 
individual to another individual, if the individual to whom the improper 
conduct is imputed either participated in, had knowledge of, or reason 
to know of the improper conduct.
    (c) Conduct imputed from one organization to another organization. 
We may impute the fraudulent, criminal, or other improper conduct of one 
organization to another organization when the improper conduct occurred 
in connection with a partnership, joint venture, joint application, 
association or similar arrangement, or when the organization to whom the 
improper conduct is imputed has the power to direct, manage, control or 
influence the activities of the organization responsible for the 
improper conduct. Acceptance of the benefits derived from the conduct is 
evidence of knowledge, approval or acquiescence.



Sec. 1154.635  May the National Endowment for the Arts settle a debarment 
or suspension action?

    Yes, we may settle a debarment or suspension action at any time if 
it is in the best interest of the Federal Government.



Sec. 1154.640  May a settlement include a voluntary exclusion?

    Yes, if we enter into a settlement with you in which you agree to be 
excluded, it is called a voluntary exclusion and has governmentwide 
effect.



Sec. 1154.645  Do other Federal agencies know if the National Endowment 
for the Arts agrees to a voluntary exclusion?

    (a) Yes, we enter information regarding a voluntary exclusion into 
the EPLS.
    (b) Also, any agency or person may contact us to find out the 
details of a voluntary exclusion.



                          Subpart G_Suspension



Sec. 1154.700  When may the suspending official issue a suspension?

    Suspension is a serious action. Using the procedures of this subpart 
and subpart F of this part, the suspending official may impose 
suspension only when that official determines that--
    (a) There exists an indictment for, or other adequate evidence to 
suspect, an offense listed under Sec. 1154.800(a), or

[[Page 414]]

    (b) There exists adequate evidence to suspect any other cause for 
debarment listed under Sec. 1154.800(b) through (d); and
    (c) Immediate action is necessary to protect the public interest.



Sec. 1154.705  What does the suspending official consider in issuing a 
suspension?

    (a) In determining the adequacy of the evidence to support the 
suspension, the suspending official considers 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. During this assessment, the suspending 
official may examine the basic documents, including grants, cooperative 
agreements, loan authorizations, contracts, and other relevant 
documents.
    (b) An indictment, conviction, civil judgment, or other official 
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of 
suspension actions.
    (c) In deciding whether immediate action is needed to protect the 
public interest, the suspending official has wide discretion. For 
example, the suspending official may infer the necessity for immediate 
action to protect the public interest either from the nature of the 
circumstances giving rise to a cause for suspension or from potential 
business relationships or involvement with a program of the Federal 
Government.



Sec. 1154.710  When does a suspension take effect?

    A suspension is effective when the suspending official signs the 
decision to suspend.



Sec. 1154.715  What notice does the suspending official give me if I am 
suspended?

    After deciding to suspend you, the suspending official promptly 
sends you a Notice of Suspension advising you--
    (a) That you have been suspended;
    (b) That your suspension is based on--
    (1) An indictment;
    (2) A conviction;
    (3) Other adequate evidence that you have committed irregularities 
which seriously reflect on the propriety of further Federal Government 
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your 
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on 
notice without disclosing the Federal Government's evidence;
    (d) Of the cause(s) upon which we relied under Sec. 1154.700 for 
imposing suspension;
    (e) That your suspension is for a temporary period pending the 
completion of an investigation or resulting legal or debarment 
proceedings;
    (f) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other NEA procedures governing suspension decision making; 
and
    (g) Of the governmentwide effect of your suspension from procurement 
and nonprocurement programs and activities.



Sec. 1154.720  How may I contest a suspension?

    If you as a respondent wish to contest a suspension, you or your 
representative must provide the suspending official with information in 
opposition to the suspension. You may do this orally or in writing, but 
any information provided orally that you consider important must also be 
submitted in writing for the official record.



Sec. 1154.725  How much time do I have to contest a suspension?

    (a) As a respondent you or your representative must either send, or 
make rrangements to appear and present, the information and argument to 
the suspending official within 30 days after you receive the Notice of 
Suspension.
    (b) We consider the notice to be received by you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or

[[Page 415]]

    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec. 1154.730  What information must I provide to the suspending official 
if I contest a suspension?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the suspending official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Suspension. A general denial is insufficient to raise a 
genuine dispute over facts material to the suspension;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, state, 
or local agencies, including administrative agreements that affect only 
those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Suspension that grew out of facts relevant to the cause(s) stated in the 
notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the National Endowment for the Arts may seek further 
criminal, civil or administrative action against you, as appropriate.



Sec. 1154.735  Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the suspending official determines that--
    (1) Your suspension is based upon an indictment, conviction, civil 
judgment, or other finding by a Federal, State, or local body for which 
an opportunity to contest the facts was provided;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Suspension;
    (3) The issues raised in your presentation in opposition to the 
suspension are not factual in nature, or are not material to the 
suspending official's initial decision to suspend, or the official's 
decision whether to continue the suspension; or
    (4) On the basis of advice from the Department of Justice, an office 
of the United States Attorney, a State attorney general's office, or a 
State or local prosecutor's office, that substantial interests of the 
government in pending or contemplated legal proceedings based on the 
same facts as the suspension would be prejudiced by conducting fact-
finding.
    (b) You will have an opportunity to challenge the facts if the 
suspending official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the suspension.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the suspending official or designee must conduct 
additional proceedings to resolve those facts.



Sec. 1154.740  Are suspension proceedings formal?

    (a) Suspension proceedings are conducted in a fair and informal 
manner. The suspending official may use flexible procedures to allow you 
to present matters in opposition. In so doing, the suspending official 
is not required to follow formal rules of evidence or procedure in 
creating an official record upon which the official will base a final 
suspension decision.
    (b) You as a respondent or your representative must submit any 
documentary evidence you want the suspending official to consider.



Sec. 1154.745  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the National Endowment for the Arts agree 
to waive it in advance. If you want a copy of the transcribed record, 
you may purchase it.

[[Page 416]]



Sec. 1154.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?

    (a) The suspending official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the suspending official's initial 
decision to suspend you;
    (2) Any further information and argument presented in support of, or 
opposition to, the suspension; and
    (3) Any transcribed record of fact-finding proceedings.
    (b) The suspending official may refer disputed material facts to 
another official for findings of fact. The suspending official may 
reject any resulting findings, in whole or in part, only after 
specifically determining them to be arbitrary, capricious, or clearly 
erroneous.



Sec. 1154.755  When will I know whether the suspension is continued or 
terminated?

    The suspending official must make a written decision whether to 
continue, modify, or terminate your suspension within 45 days of closing 
the official record. The official record closes upon the suspending 
official's receipt of final submissions, information and findings of 
fact, if any. The suspending official may extend that period for good 
cause.



Sec. 1154.760  How long may my suspension last?

    (a) If legal or debarment proceedings are initiated at the time of, 
or during your suspension, the suspension may continue until the 
conclusion of those proceedings. However, if proceedings are not 
initiated, a suspension may not exceed 12 months.
    (b) The suspending official may extend the 12 month limit under 
paragraph (a) of this section for an additional 6 months if an office of 
a U.S. Assistant Attorney General, U.S. Attorney, or other responsible 
prosecuting official requests an extension in writing. In no event may a 
suspension exceed 18 months without initiating proceedings under 
paragraph (a) of this section.
    (c) The suspending official must notify the appropriate officials 
under paragraph (b) of this section of an impending termination of a 
suspension at least 30 days before the 12 month period expires to allow 
the officials an opportunity to request an extension.



                           Subpart H_Debarment



Sec. 1154.800  What are the causes for debarment?

    We may debar a person 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, tax 
evasion, 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 your 
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, or a procurement debarment by any Federal agency taken 
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;

[[Page 417]]

    (2) Knowingly doing business with an ineligible person, except as 
permitted under Sec. 1154.120;
    (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. 1154.640 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it 
affects your present responsibility.



Sec. 1154.805  What notice does the debarring official give me if I am 
proposed for debarment?

    After consideration of the causes in Sec. 1154.800 of this subpart, 
if the debarring official proposes to debar you, the official sends you 
a Notice of Proposed Debarment, pursuant to Sec. 1154.615, advising 
you--
    (a) That the debarring official is considering debarring you;
    (b) Of the reasons for proposing to debar you in terms sufficient to 
put you on notice of the conduct or transactions upon which the proposed 
debarment is based;
    (c) Of the cause(s) under Sec. 1154.800 upon which the debarring 
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other NEA procedures governing debarment; and
    (e) Of the governmentwide effect of a debarment from procurement and 
nonprocurement programs and activities.



Sec. 1154.810  When does a debarment take effect?

    A debarment is not effective until the debarring official issues a 
decision. The debarring official does not issue a decision until the 
respondent has had an opportunity to contest the proposed debarment.



Sec. 1154.815  How may I contest a proposed debarment?

    If you as a respondent wish to contest a proposed debarment, you or 
your representative must provide the debarring official with information 
in opposition to the proposed debarment. You may do this orally or in 
writing, but any information provided orally that you consider important 
must also be submitted in writing for the official record.



Sec. 1154.820  How much time do I have to contest a proposed debarment?

    (a) As a respondent you or your representative must either send, or 
make arrangements to appear and present, the information and argument to 
the debarring official within 30 days after you receive the Notice of 
Proposed Debarment.
    (b) We consider the Notice of Proposed Debarment to be received by 
you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec. 1154.825  What information must I provide to the debarring official 
if I contest a proposed debarment?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the debarring official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Proposed Debarment. Include any information about any of the 
factors listed in Sec. 1154.860. A general denial is insufficient to 
raise a genuine dispute over facts material to the debarment;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, State, 
or local agencies, including administrative

[[Page 418]]

agreements that affect only those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Proposed Debarment that grew out of facts relevant to the cause(s) 
stated in the notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the National Endowment for the Arts may seek further 
criminal, civil or administrative action against you, as appropriate.



Sec. 1154.830  Under what conditions do I get an additional opportunity 
to challenge the facts on which a proposed debarment is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the debarring official determines that--
    (1) Your debarment is based upon a conviction or civil judgment;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Proposed Debarment; or
    (3) The issues raised in your presentation in opposition to the 
proposed debarment are not factual in nature, or are not material to the 
debarring official's decision whether to debar.
    (b) You will have an additional opportunity to challenge the facts 
if the debarring official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the proposed debarment.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the debarring official or designee must conduct 
additional proceedings to resolve those facts.



Sec. 1154.835  Are debarment proceedings formal?

    (a) Debarment proceedings are conducted in a fair and informal 
manner. The debarring official may use flexible procedures to allow you 
as a respondent to present matters in opposition. In so doing, the 
debarring official is not required to follow formal rules of evidence or 
procedure in creating an official record upon which the official will 
base the decision whether to debar.
    (b) You or your representative must submit any documentary evidence 
you want the debarring official to consider.



Sec. 1154.840  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the National Endowment for the Arts agree 
to waive it in advance. If you want a copy of the transcribed record, 
you may purchase it.



Sec. 1154.845  What does the debarring official consider in deciding 
whether to debar me?

    (a) The debarring official may debar you for any of the causes in 
Sec. 1154.800. However, the official need not debar you even if a cause 
for debarment exists. The official may consider the seriousness of your 
acts or omissions and the mitigating or aggravating factors set forth at 
Sec. 1154.860.
    (b) The debarring official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the debarring official's proposed 
debarment;
    (2) Any further information and argument presented in support of, or 
in opposition to, the proposed debarment; and
    (3) Any transcribed record of fact-finding proceedings.
    (c) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any resultant findings, in whole or in part, only after specifically 
determining them to be arbitrary, capricious, or clearly erroneous.

[[Page 419]]



Sec. 1154.850  What is the standard of proof in a debarment action?

    (a) In any debarment action, we must establish the cause for 
debarment by a preponderance of the evidence.
    (b) If the proposed debarment is based upon a conviction or civil 
judgment, the standard of proof is met.



Sec. 1154.855  Who has the burden of proof in a debarment action?

    (a) We have the burden to prove that a cause for debarment exists.
    (b) Once a cause for debarment is established, you as a respondent 
have the burden of demonstrating to the satisfaction of the debarring 
official that you are presently responsible and that debarment is not 
necessary.



Sec. 1154.860  What factors may influence the debarring official's decision?

    This section lists the mitigating and aggravating factors that the 
debarring official may consider in determining whether to debar you and 
the length of your debarment period. The debarring official may consider 
other factors if appropriate in light of the circumstances of a 
particular case. The existence or nonexistence of any factor, such as 
one of those set forth in this section, is not necessarily determinative 
of your present responsibility. In making a debarment decision, the 
debarring official may consider the following factors:
    (a) The actual or potential harm or impact that results or may 
result from the wrongdoing.
    (b) The frequency of incidents and/or duration of the wrongdoing.
    (c) Whether there is a pattern or prior history of wrongdoing. For 
example, if you have been found by another Federal agency or a State 
agency to have engaged in wrongdoing similar to that found in the 
debarment action, the existence of this fact may be used by the 
debarring official in determining that you have a pattern or prior 
history of wrongdoing.
    (d) Whether you are or have been excluded or disqualified by an 
agency of the Federal Government or have not been allowed to participate 
in State or local contracts or assistance agreements on a basis of 
conduct similar to one or more of the causes for debarment specified in 
this part.
    (e) Whether you have entered into an administrative agreement with a 
Federal agency or a State or local government that is not governmentwide 
but is based on conduct similar to one or more of the causes for 
debarment specified in this part.
    (f) Whether and to what extent you planned, initiated, or carried 
out the wrongdoing.
    (g) Whether you have accepted responsibility for the wrongdoing and 
recognize the seriousness of the misconduct that led to the cause for 
debarment.
    (h) Whether you have paid or agreed to pay all criminal, civil and 
administrative liabilities for the improper activity, including any 
investigative or administrative costs incurred by the government, and 
have made or agreed to make full restitution.
    (i) Whether you have cooperated fully with the government agencies 
during the investigation and any court or administrative action. In 
determining the extent of cooperation, the debarring official may 
consider when the cooperation began and whether you disclosed all 
pertinent information known to you.
    (j) Whether the wrongdoing was pervasive within your organization.
    (k) The kind of positions held by the individuals involved in the 
wrongdoing.
    (l) Whether your organization took appropriate corrective action or 
remedial measures, such as establishing ethics training and implementing 
programs to prevent recurrence.
    (m) Whether your principals tolerated the offense.
    (n) Whether you brought the activity cited as a basis for the 
debarment to the attention of the appropriate government agency in a 
timely manner.
    (o) Whether you have fully investigated the circumstances 
surrounding the cause for debarment and, if so, made the result of the 
investigation available to the debarring official.
    (p) Whether you had effective standards of conduct and internal 
control systems in place at the time the questioned conduct occurred.
    (q) Whether you have taken appropriate disciplinary action against 
the

[[Page 420]]

individuals responsible for the activity which constitutes the cause for 
debarment.
    (r) Whether you have had adequate time to eliminate the 
circumstances within your organization that led to the cause for the 
debarment.
    (s) Other factors that are appropriate to the circumstances of a 
particular case.



Sec. 1154.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of 
debarment will be based on the seriousness of the cause(s) upon which 
your debarment is based. Generally, debarment should not exceed three 
years. However, if circumstances warrant, the debarring official may 
impose a longer period of debarment.
    (b) In determining the period of debarment, the debarring official 
may consider the factors in Sec. 1154.860. If a suspension has preceded 
your debarment, the debarring official must consider the time you were 
suspended.
    (c) If the debarment is for a violation of the provisions of the 
Drug-Free Workplace Act of 1988, your period of debarment may not exceed 
five years.



Sec. 1154.870  When do I know if the debarring official debars me?

    (a) The debarring official must make a written decision whether to 
debar within 45 days of closing the official record. The official record 
closes upon the debarring official's receipt of final submissions, 
information and findings of fact, if any. The debarring official may 
extend that period for good cause.
    (b) The debarring official sends you written notice, pursuant to 
Sec. 1154.615 that the official decided, either--
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective 
dates; and
    (iv) Advises you that your debarment is effective for covered 
transactions and contracts that are subject to the Federal Acquisition 
Regulation (48 CFR chapter 1), throughout the executive branch of the 
Federal Government unless an agency head or an authorized designee 
grants an exception.



Sec. 1154.875  May I ask the debarring official to reconsider a decision 
to debar me?

    Yes, as a debarred person you may ask the debarring official to 
reconsider the debarment decision or to reduce the time period or scope 
of the debarment. However, you must put your request in writing and 
support it with documentation.



Sec. 1154.880  What factors may influence the debarring official during 
reconsideration?

    The debarring official may reduce or terminate your debarment based 
on--
    (a) Newly discovered material evidence;
    (b) A reversal of the conviction or civil judgment upon which your 
debarment was based;
    (c) A bona fide change in ownership or management;
    (d) Elimination of other causes for which the debarment was imposed; 
or
    (e) Other reasons the debarring official finds appropriate.



Sec. 1154.885  May the debarring official extend a debarment?

    (a) Yes, the debarring official may extend a debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest.
    (b) However, the debarring official may not extend a debarment 
solely on the basis of the facts and circumstances upon which the 
initial debarment action was based.
    (c) If the debarring official decides that a debarment for an 
additional period is necessary, the debarring official must follow the 
applicable procedures in this subpart, and subpart F of this part, to 
extend the debarment.

[[Page 421]]



                          Subpart I_Definitions



Sec. 1154.900  Adequate evidence.

    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.



Sec. 1154.905  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. The ways we use to 
determine control include, but are not limited to--
    (a) Interlocking management or ownership;
    (b) Identity of interests among family members;
    (c) Shared facilities and equipment;
    (d) Common use of employees; or
    (e) A business entity which has been organized following the 
exclusion of a person which has the same or similar management, 
ownership, or principal employees as the excluded person.



Sec. 1154.910  Agency.

    Agency means any United States executive department, military 
department, defense agency, or any other agency of the executive branch. 
Other agencies of the Federal government are not considered ``agencies'' 
for the purposes of this part unless they issue regulations adopting the 
governmentwide Debarment and Suspension system under Executive orders 
12549 and 12689.



Sec. 1154.915  Agent or representative.

    Agent or representative means any person who acts on behalf of, or 
who is authorized to commit, a participant in a covered transaction.



Sec. 1154.920  Civil judgment.

    Civil judgment means the disposition of a civil action by any court 
of competent jurisdiction, whether by verdict, decision, settlement, 
stipulation, other disposition which creates a civil liability for the 
complained of wrongful acts, or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).



Sec. 1154.925  Conviction.

    Conviction means--
    (a) A judgment or any other determination of guilt of a criminal 
offense by any court of competent jurisdiction, whether entered upon a 
verdict or plea, including a plea of nolo contendere; or
    (b) Any other resolution that is the functional equivalent of a 
judgment, including probation before judgment and deferred prosecution. 
A disposition without the participation of the court is the functional 
equivalent of a judgment only if it includes an admission of guilt.



Sec. 1154.930  Debarment.

    Debarment means an action taken by a debarring official under 
subpart H of this part to exclude a person from participating in covered 
transactions and transactions covered under the Federal Acquisition 
Regulation (48 CFR chapter 1). A person so excluded is debarred.



Sec. 1154.935  Debarring official.

    (a) Debarring official means an agency official who is authorized to 
impose debarment. A debarring official is either--
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 1154.940  Disqualified.

    Disqualified means that a person is prohibited from participating in 
specified Federal procurement or nonprocurement transactions as required 
under a statute, Executive order (other than Executive Orders 12549 and 
12689) or other authority. Examples of disqualifications include persons 
prohibited under--
    (a) The Davis-Bacon Act (40 U.S.C. 276(a));
    (b) The equal employment opportunity acts and Executive orders; or
    (c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C. 
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).



Sec. 1154.945  Excluded or exclusion.

    Excluded or exclusion means--
    (a) That a person or commodity is prohibited from being a 
participant in

[[Page 422]]

covered transactions, whether the person has been suspended; debarred; 
proposed for debarment under 48 CFR part 9, subpart 9.4; voluntarily 
excluded; or
    (b) The act of excluding a person.



Sec. 1154.950  Excluded Parties List System

    Excluded Parties List System (EPLS) means the list maintained and 
disseminated by the General Services Administration (GSA) containing the 
names and other information about persons who are ineligible. The EPLS 
system includes the printed version entitled, ``List of Parties Excluded 
or Disqualified from Federal Procurement and Nonprocurement Programs,'' 
so long as published.



Sec. 1154.955  Indictment.

    Indictment means an indictment for a criminal offense. A 
presentment, information, or other filing by a competent authority 
charging a criminal offense shall be given the same effect as an 
indictment.



Sec. 1154.960  Ineligible or ineligibility.

    Ineligible or ineligibility means that a person or commodity is 
prohibited from covered transactions because of an exclusion or 
disqualification.



Sec. 1154.965  Legal proceedings.

    Legal proceedings means any criminal proceeding or any civil 
judicial proceeding, including a proceeding under the Program Fraud 
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal 
Government or a State or local government or quasi-governmental 
authority is a party. The term also includes appeals from those 
proceedings.



Sec. 1154.970  Nonprocurement transaction.

    (a) Nonprocurement transaction means any transaction, regardless of 
type (except procurement contracts), including, but not limited to the 
following:
    (1) Grants.
    (2) Cooperative agreements.
    (3) Scholarships.
    (4) Fellowships.
    (5) Contracts of assistance.
    (6) Loans.
    (7) Loan guarantees.
    (8) Subsidies.
    (9) Insurances.
    (10) Payments for specified uses.
    (11) Donation agreements.
    (b) A nonprocurement transaction at any tier does not require the 
transfer of Federal funds.



Sec. 1154.975  Notice.

    Notice means a written communication served in person, sent by 
certified mail or its equivalent, or sent electronically by e-mail or 
facsimile. (See Sec. 1154. 615.)



Sec. 1154.980  Participant.

    Participant means any person who submits a proposal for or who 
enters into a covered transaction, including an agent or representative 
of a participant.



Sec. 1154.985  Person.

    Person means any individual, corporation, partnership, association, 
unit of government, or legal entity, however organized.



Sec. 1154.990  Preponderance of the evidence.

    Preponderance of the evidence means proof by information that, 
compared with information opposing it, leads to the conclusion that the 
fact at issue is more probably true than not.



Sec. 1154.995  Principal.

    Principal means--
    (a) An officer, director, owner, partner, principal investigator, or 
other person within a participant with management or supervisory 
responsibilities related to a covered transaction; or
    (b) A consultant or other person, whether or not employed by the 
participant or paid with Federal funds, who--
    (1) Is in a position to handle Federal funds;
    (2) Is in a position to influence or control the use of those funds; 
or,
    (3) Occupies a technical or professional position capable of 
substantially influencing the development or outcome of an activity 
required to perform the covered transaction.



Sec. 1154.1000  Respondent.

    Respondent means a person against whom an agency has initiated a 
debarment or suspension action.

[[Page 423]]



Sec. 1154.1005  State.

    (a) State means--
    (1) Any of the states of the United States;
    (2) The District of Columbia;
    (3) The Commonwealth of Puerto Rico;
    (4) Any territory or possession of the United States; or
    (5) Any agency or instrumentality of a state.
    (b) For purposes of this part, State does not include institutions 
of higher education, hospitals, or units of local government.



Sec. 1154.1010  Suspending official.

    (a) Suspending official means an agency official who is authorized 
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 1154.1015  Suspension.

    Suspension is an action taken by a suspending official under subpart 
G of this part that immediately prohibits a person from participating in 
covered transactions and transactions covered under the Federal 
Acquisition Regulation (48 CFR chapter 1) for a temporary period, 
pending completion of an agency investigation and any judicial or 
administrative proceedings that may ensue. A person so excluded is 
suspended.



Sec. 1154.1020  Voluntary exclusion or voluntarily excluded.

    (a) Voluntary exclusion means a person's agreement to be excluded 
under the terms of a settlement between the person and one or more 
agencies. Voluntary exclusion must have governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has agreed 
to a voluntary exclusion.

Subpart J--[Reserved]

[[Page 424]]

               Appendix to Part 1154--Covered Transactions
[GRAPHIC] [TIFF OMITTED] TR26NO03.000



PART 1155_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 
ASSISTANCE)--Table of Contents




                     Subpart A_Purpose and Coverage

Sec.
1155.100 What does this part do?
1155.105 Does this part apply to me?
1155.110 Are any of my Federal assistance awards exempt from this part?
1155.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

1155.200 What must I do to comply with this part?
1155.205 What must I include in my drug-free workplace statement?
1155.210 To whom must I distribute my drug-free workplace statement?
1155.215 What must I include in my drug-free awareness program?
1155.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
1155.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
1155.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

1155.300 What must I do to comply with this part if I am an individual 
          recipient?
1155.301 [Reserved]

[[Page 425]]

          Subpart D_Responsibilities of NEA Awarding Officials

1155.400 What are my responsibilities as an NEA awarding official?

           Subpart E_Violations of This Part and Consequences

1155.500 How are violations of this part determined for recipients other 
          than individuals?
1155.505 How are violations of this part determined for recipients who 
          are individuals?
1155.510 What actions will the Federal Government take against a 
          recipient determined to have violated this part?
1155.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

1155.605 Award.
1155.610 Controlled substance.
1155.615 Conviction.
1155.620 Cooperative agreement.
1155.625 Criminal drug statute.
1155.630 Debarment.
1155.635 Drug-free workplace.
1155.640 Employee.
1155.645 Federal agency or agency.
1155.650 Grant.
1155.655 Individual.
1155.660 Recipient.
1155.665 State.
1155.670 Suspension.

    Authority: 41 U.S.C. 701 et seq.

    Source: 68 FR 66557, 66637, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 1155.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec. 1155.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the National Endowment 
for the Arts; or
    (2) A(n) NEA awarding official. (See definitions of award and 
recipient in Sec. Sec. 1155.605 and 1155.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
             If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an individual..  A, B and E.
(2) A recipient who is an individual......  A, C and E.
(3) A(n) NEA awarding official............  A, D and E.
------------------------------------------------------------------------



Sec. 1155.110  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award that the NEA Chairman 
determines that the application of this part would be inconsistent with 
the international obligations of the United States or the laws or 
regulations of a foreign government.



Sec. 1155.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec. 1155. 510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 1155.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec. 1155.205 
through 1155.220); and

[[Page 426]]

    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec. 1155.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. 1155.230).



Sec. 1155.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec. 1155.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec. 
1155.205 be given to each employee who will be engaged in the 
performance of any Federal award.



Sec. 1155.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec. 1155.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec. 1155.205 and an ongoing awareness 
program as described in Sec. 1155.215, you must publish the statement 
and establish the program by the time given in the following table:

------------------------------------------------------------------------
                 If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award is  must have the policy
 less than 30 days.                          statement and program in
                                             place as soon as possible,
                                             but before the date on
                                             which performance is
                                             expected to be completed.
(b) The performance period of the award is  must have the policy
 30 days or more.                            statement and program in
                                             place within 30 days after
                                             award.
(c) You believe there are extraordinary     may ask the NEA awarding
 circumstances that will require more than   official to give you more
 30 days for you to publish the policy       time to do so. The amount
 statement and establish the awareness       of additional time, if any,
 program.                                    to be given is at the
                                             discretion of the awarding
                                             official.
------------------------------------------------------------------------



Sec. 1155.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. 1155.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--

[[Page 427]]

    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec. 1155.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each NEA award. A 
failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces--
    (1) To the NEA official that is making the award, either at the time 
of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by NEA officials or their 
designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award 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).
    (c) If you identified workplaces to the NEA awarding official at the 
time of application or award, as described in paragraph (a)(1) of this 
section, and any workplace that you identified changes during the 
performance of the award, you must inform the NEA awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 1155.300  What must I do to comply with this part if I am an 
individual recipient?

    As a condition of receiving a(n) NEA award, if you are an individual 
recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the NEA awarding official or other designee for each award 
that you currently have, unless Sec. 1155.301 or the award document 
designates a central point for the receipt of the notices. When notice 
is made to a central point, it must include the identification number(s) 
of each affected award.



Sec. 1155.301  [Reserved]



          Subpart D_Responsibilities of NEA Awarding Officials



Sec. 1155.400   What are my responsibilities as a(n) NEA awarding official?

    As a(n) NEA awarding official, you must obtain each recipient's 
agreement, as a condition of the award, to comply with the requirements 
in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec. 1155.500  How are violations of this part determined for recipients 
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the NEA Chairman determines, in writing, 
that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.

[[Page 428]]



Sec. 1155.505  How are violations of this part determined for recipients 
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the NEA Chairman determines, in writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec. 1155.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. 1155.500 or Sec. 1155.505, the National Endowment 
for the Arts may take one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 45 CFR Part 1154, 
for a period not to exceed five years.



Sec. 1155.515  Are there any exceptions to those actions?

    The NEA Chairman may waive with respect to a particular award, in 
writing, a suspension of payments under an award, suspension or 
termination of an award, or suspension or debarment of a recipient if 
the NEA Chairman determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



                          Subpart F_Definitions



Sec. 1155.605  Award.

    Award means an award of financial assistance by the National 
Endowment for the Arts or other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 45 
CFR Part 1157 that implements OMB Circular A-102 (for availability, see 
5 CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) 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).



Sec. 1155.610  Controlled substance.

    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.



Sec. 1155.615  Conviction.

    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.



Sec. 1155.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec. 1155.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec. 1155.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.

[[Page 429]]



Sec. 1155.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689.



Sec. 1155.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec. 1155.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (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).



Sec. 1155.645  Federal agency or agency.

    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.



Sec. 1155.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec. 1155.655  Individual.

    Individual means a natural person.



Sec. 1155.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec. 1155.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec. 1155.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order

[[Page 430]]

12689. Suspension of a recipient is a distinct and separate action from 
suspension of an award or suspension of payments under an award.



PART 1156_NONDISCRIMINATION ON THE BASIS OF AGE--Table of Contents




                            Subpart A_General

Sec.
1156.1 Purpose.
1156.2 Application.
1156.3 Definitions.
1156.4 [Reserved]

      Subpart B_Standards for Determining Discriminatory Practices

1156.5 Purpose.
1156.6 Rules against age discrimination.
1156.7 Exceptions to the rules against age discrimination.
1156.8 Burden of proof.

           Subpart C_Responsibilities of Endowment Recipients

1156.9 [Reserved]
1156.10 General responsibilities.
1156.11 Notice to subrecipients.
1156.12 Self-evaluation.
1156.13 Information requirements.

    Subpart D_Investigation, Conciliation, and Enforcement Procedures

1156.14 Compliance reviews.
1156.15 Complaints.
1156.16 Mediation.
1156.17 Investigation.
1156.18 Prohibition against intimidation or retaliation.
1156.19 Compliance procedure.
1156.20 Alternate funds disbursal procedure.
1156.21 Exhaustion of administrative remedies.

    Authority: 42 U.S.C. 6101 et seq.; 45 CFR part 90.

    Source: 63 FR 6876, Feb. 11, 1998, unless otherwise noted.



                            Subpart A_General



Sec. 1156.1  Purpose.

    The purpose of this part is to implement the Age Discrimination Act 
of 1975 (``Act''), as amended, and as required by the general age 
discrimination regulations at 45 CFR part 90. The Age Discrimination Act 
of 1975, as amended, is designed to prohibit discrimination on the basis 
of age in programs or activities receiving Federal financial assistance. 
The Act also permits federally assisted programs or activities, and 
recipients of Federal funds to continue to use certain age distinctions 
and factors other than age which meet the requirements of the Act and 
the regulations in this part.

[63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003]



Sec. 1156.2  Application.

    (a) The Age Discrimination Act of 1975 and the regulations in this 
part apply to any program or activity receiving financial assistance 
from the National Endowment for the Arts.
    (b) The Age Discrimination Act of 1975 does not apply to:
    (1) Any age distinction contained in that part of 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 of 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 under the Job 
Training Partnership Act (JTPA).

[63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003]



Sec. 1156.3  Definitions.

    As used in the regulation in this part, the term:
    (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 elapsed years 
from the date of a person's birth.
    (d) Age distinction means any action using age or any age-related 
term.

[[Page 431]]

    (e) Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, ``children,'' ``adult,'' 
``older person,'' but not ``student'').
    (f) 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;
    (2) Services of Federal personnel; or
    (3) Real and personal property including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; 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.
    (g) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (h) Program or activity means all of the operations of any entity 
described in paragraphs (h)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) 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;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) 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
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (h)(1), (2), or (3) of this section.
    (i) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, 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.
    (j) 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.
    (k) Sub-recipient means any of the entities in the definition of 
recipient to which a recipient extends or passes on Federal financial 
assistance and has all the duties of a recipient in the regulations in 
this part.
    (l) Endowment means the National Endowment for the Arts.
    (m) Chairperson means the Chairperson of the National Endowment for 
the Arts.
    (n) Secretary means the Secretary of the Department of Health and 
Human Services.
    (o) United States means the fifty States, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Somoa, Guam, Wake Island, the 
Canal Zone, the Federated States of Micronesia and the Republic of 
Palau, the Northern Marianas, and the territories and possessions of the 
United States.

[63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003]

[[Page 432]]



Sec. 1156.4  [Reserved]



      Subpart B_Standards for Determining Discriminatory Practices



Sec. 1156.5  Purpose.

    The purpose of this subpart is to set forth the prohibitions against 
age discrimination and the exceptions to those prohibitions.



Sec. 1156.6  Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec. 1156.7 (b) and (c).
    (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 paragraph (b) 
of this section do not necessarily constitute a complete list of 
discriminatory actions.



Sec. 1156.7  Exceptions to the rules against age discrimination.

    (a) Normal operation or statutory objective of any program or 
activity. A recipient is permitted to take an action otherwise 
prohibited by Sec. 1156.6 if the action reasonably takes into account 
age as a factor necessary to the normal operation or the achievement of 
any statutory objective of a program or activity, 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 of 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 basis.
    (b) Reasonable factors other than age. A recipient is permitted to 
take an action otherwise prohibited by Sec. 1156.6 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.
    (c) Remedial and affirmative action by recipients. If a recipient 
operating a program or activity which serves the elderly or children in 
addition to persons of other ages, provides special benefits to the 
elderly or to children the provision of those benefits shall be presumed 
to be voluntary affirmative action provided that it does not have the 
effect of excluding otherwise eligible persons from participation in the 
program or activity.

[63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003]



Sec. 1156.8  Burden of proof.

    The recipient of Federal financial assistance bears the burden of 
proving that an age distinction or other action falls within the 
exceptions outlined in Sec. 1156.7.



           Subpart C_Responsibilities of Endowment Recipients



Sec. 1156.9  [Reserved]



Sec. 1156.10  General responsibilities.

    A recipient has primary responsibility to ensure that its programs 
or activities are in compliance with the Age Discrimination Act, to take 
steps

[[Page 433]]

to eliminate violations of the Act, and to provide notice to 
beneficiaries of its programs and activities concerning protection 
against discrimination provided by the Act and the regulations in this 
part. A recipient also has responsibility to maintain records, provide 
information, and to afford access to its records to the Endowment to the 
extent required to determine whether it is in compliance with the Act.

[63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003]



Sec. 1156.11  Notice to subrecipients.

    Where a recipient passes on Federal financial assistance from the 
Endowment to subrecipients, the recipient shall provide the 
subrecipients with written notice regarding the subrecipient's 
obligations under the Act and the regulations in this part.



Sec. 1156.12  Self-evaluation.

    (a) Each recipient employing the equivalent of 15 or more full time 
employees may be required to complete a written self-evaluation, in a 
manner specified by the responsible Endowment official during the course 
of an investigation, of any age distinction imposed in its program or 
activity receiving Federal financial assistance from the Endowment to 
assess the recipient's compliance with the Act.
    (b) Each recipient shall take corrective and remedial action 
whenever a self-evaluation indicates a violation of the Act.
    (c) Each recipient shall make the self-evaluation available on 
request to the Endowment and to the public for a period of three years 
following its completion.



Sec. 1156.13  Information requirements.

    Each recipient shall:
    (a) Make available to the Endowment, upon request, information 
necessary to determine whether the recipient is complying with the 
regulations in this part.
    (b) Permit reasonable access by the Endowment to the books, accounts 
and other recipient facilities and sources of information to the extent 
necessary to determine whether the recipient is in compliance with the 
Act.



    Subpart D_Investigation, Conciliation, and Enforcement Procedures



Sec. 1156.14   Compliance reviews.

    The Endowment may conduct compliance reviews, pre-award reviews and 
other similar procedures in order to investigate and correct violations 
of the Act and regulations. The Endowment may conduct these reviews in 
the absence of a compliant against the recipient. In the event a 
compliance review or pre-award review indicates a violation of the 
regulations in this part, the Endowment will attempt to achieve 
voluntary compliance with the Act. If voluntary compliance cannot be 
achieved, enforcement efforts will proceed as described in Sec. 
1156.19.



Sec. 1156.15   Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with the Endowment, alleging 
discrimination prohibited by the Act and the regulations in this part 
based on an action occurring on or after July 1, 1979. A complainant 
shall file a complaint within 180 days from the date that the 
complainant first had knowledge of the alleged act of discrimination. 
However, for good cause, the Endowment may extend this time limit. The 
Endowment will consider the date a complaint is filed to be the date 
upon which the complaint is sufficient to be processed.
    (b) Complaints must include a written statement identifying the 
parties involved, describing the alleged violation, and stating the date 
on which the complainant first had knowledge of the alleged violation. 
Complaints must be signed by the complainant. The Endowment will return 
any complaint that does not contain the necessary information, that is 
not signed by the complainant, or that is not within the Endowment's 
jurisdiction for any other reason. The Endowment will provide an 
explanation for all such returned complaints.
    (c) The Endowment will attempt to facilitate the filing of 
complaints wherever possible, including taking the following measures:
    (1) Widely disseminating information regarding the obligations of 
recipients

[[Page 434]]

under the Act and the regulations in this part.
    (2) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedure.
    (3) Notifying the complainant and the recipient (or their 
representatives) of their right to contact the Endowment for information 
and assistance regarding the complaint resolution process.



Sec. 1156.16   Mediation.

    (a) Referral of complaints for mediation. The Endowment will 
promptly refer all complaints to the agency designated by the Secretary 
of HHS to manage the mediation process that:
    (1) Fall within the jurisdiction of the regulations in this part; 
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 make 
an informal judgment that an agreement is not possible. There must be at 
least one meeting with the mediator before the Endowment will accept a 
judgment that an agreement is not possible. However, the recipient and 
the complainant need not meet with the mediator at the same time.
    (c) If the complainant and recipient reach a mutually satisfactory 
resolution of the complaint during the mediation period, they shall 
reduce the agreement to wiring. The mediator shall send a copy of the 
settlement to the Endowment. No further action shall be taken by the 
Endowment based on that complaint unless it appears that the complainant 
or the recipient has failed to comply with the agreement.
    (d) The mediator shall 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 of the mediation 
agency.
    (e) Not more than 60 days after the Endowment receives the 
complaint, the mediator shall return a still unresolved complaint to the 
Endowment for initial investigation. The mediator may return a complaint 
at any time before the end of the 60-day period if it appears that the 
complaint cannot be resolved through mediation. The mediator may extend 
this 60-day period, provided the Endowment concurs, for not more than 30 
days, if the mediator determines that resolution is likely to occur 
within such period.



Sec. 1156.17  Investigation.

    (a) Informal investigation. (1) The Endowment will investigate 
complaints that are unresolved after mediation or are reopened because 
of a violation of a mediation agreement.
    (2) As part of the initial investigation, the Endowment will use 
informal fact-finding methods, including joint or separate discussions 
with the complainant and the recipient to establish the facts, and, if 
possible, resolve the complaint to the mutual satisfaction of the 
parties. The Endowment may seek the assistance of any involved State 
agency.
    (3) The Endowment will put any agreement in writing and have it 
signed by the parties and an authorized official at the Endowment.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of the Endowment, including compliance reviews and 
investigation of other complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation, conciliation, and hearing. If the 
Endowment cannot resolve the complaint during the early stages of the 
investigation, it shall:
    (1) Complete the investigation of the complaint.
    (2) Attempt to achieve voluntary compliance satisfactory to the 
Endowment, if the investigation indicates a violation.
    (3) Arrange for enforcement as described in Sec. 1156.19, if 
necessary.

[63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003]

[[Page 435]]



Sec. 1156.18  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
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of the Endowment's investigation, conciliation and enforcement 
process.



Sec. 1156.19  Compliance procedure.

    (a) The Endowment may enforce the Act and the regulations in this 
part through:
    (1) Termination of a recipient's Federal financial assistance from 
the Endowment under the program or activity involved where the recipient 
has violated the Act and the regulations in this part. 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. Therefore, a case which is settled in mediation, or prior to a 
hearing, will not involve termination of a recipient's Federal financial 
assistance from the Endowment unless it is reopened because of a 
violation of the agreement.
    (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 the regulations in this part.
    (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 the regulations in this part.
    (b) The Endowment will limit any termination under paragraph (a)(1) 
of this section to the particular recipient and particular program or 
activity or portion thereof that the Endowment finds in violation of the 
regulations in this part. The Endowment 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 the 
Endowment.
    (c) The Endowment will not take action under paragraph (a) of this 
section until:
    (1) The Chairperson has advised the recipient of its failure to 
comply with the Act and the regulations in this part and has determined 
that voluntary compliance cannot be obtained.
    (2) Thirty days have elapsed after the Chairperson has sent a 
written report of the circumstances and grounds of the action to the 
committees of the Congress having legislative jurisdiction over the 
program or activity involved. The Chairperson will file a report 
whenever any action is taken under paragraph (a) of this section.
    (d) The Chairperson also may defer granting new Federal financial 
assistance from the Endowment to a recipient when a hearing under 
paragraph (a)(1) of this section is initiated.
    (1) New Federal financial assistance from the Endowment includes all 
assistance for which the Endowment 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 the Endowment does not include assistance 
approved prior to the beginning of a termination hearing under paragraph 
(a)(1) of this section or increases in funding as a result of changed 
computation of formula awards.
    (2) The Endowment will not begin a deferral until the recipient has 
received a notice of an opportunity for a hearing under paragraph (a)(1) 
of this section. The Endowment 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 Chairperson. The Endowment 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. If the hearing 
results in a finding against the recipient, the Endowment must terminate 
funds.

[63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003]



Sec. 1156.20  Alternate funds disbursal procedure.

    (a) When the endowment withholds funds from a recipient under the 
regulations in this part, the Chairperson

[[Page 436]]

may disburse the withheld funds directly to an alternate recipient 
otherwise eligible for Endowment support: any public or nonprofit 
private organization or agency, or State or political subdivision of the 
State.
    (b) The Chairperson will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with the regulations in this part; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.

[63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003]



Sec. 1156.21  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 the Endowment has made no finding with regard to the complaint; or
    (2) The Endowment issues a finding in favor of the recipient.
    (b) If the Endowment fails to make a finding within 180 days or 
issues a finding in favor of the recipient, the Endowment will:
    (1) Promptly advise the complainant if either of the conditions of 
paragraph (a) of this section has been met;
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief that will effect the purpose of the Act;
    (3) Inform the complainant:
    (i) That the complainant may bring a civil action only in the United 
States district court for the district in which the recipient is located 
or transacts business;
    (ii) That 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) That before commencing the action the complainant shall give 
30 days notice by registered mail to the Chairperson of the Endowment, 
the Secretary, the Attorney General of the United States, and the 
recipient;
    (iv) That the notice must state: the alleged violation of the Act; 
the relief requested; the court in which the complainant is bringing the 
action; and whether or not the attorney's fees are demanded in the event 
the complainant prevails; and
    (v) That 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 1157_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE 
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                            Subpart A_General

Sec.
1157.1 Purpose and scope of this part.
1157.2 Scope of subpart.
1157.3 Definitions.
1157.4 Applicability.
1157.5 Effect on other issuances.
1157.6 Additions and exceptions.

                    Subpart B_Pre-Award Requirements

1157.10 Forms for applying for grants.
1157.11 State plans.
1157.12 Special grant or subgrant conditions for ``high-risk'' grantees.

                    Subpart C_Post-Award Requirements

                        Financial Administration

1157.20 Standards for financial management systems.
1157.21 Payment.
1157.22 Allowable costs.
1157.23 Period of availability of funds.
1157.24 Matching or cost sharing.
1157.25 Program income.
1157.26 Non-Federal audit.

                    Changes, Property, and Subawards

1157.30 Changes.
1157.31 Real property.
1157.32 Equipment.
1157.33 Supplies.
1157.34 Copyrights.
1157.35 Subawards to debarred and suspended parties.
1157.36 Procurement.
1157.37 Subgrants.

              Reports, Records, Retention, and Enforcement

1157.40 Monitoring and reporting program performance.
1157.41 Financial reporting.
1157.42 Retention and access requirements for records.

[[Page 437]]

1157.43 Enforcement.
1157.44 Termination for convenience.

                 Subpart D_After-the-Grant Requirements

1157.50 Closeout.
1157.51 Later disallowances and adjustments.
1157.52 Collection of amounts due.

Subpart E--Entitlements [Reserved]

    Authority: 20 U.S.C. 959(a)(1).

    Source: 53 FR 8081, 8087, Mar. 11, 1988, unless otherwise noted.



                            Subpart A_General



Sec. 1157.1  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. 1157.2  Scope of subpart.

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



Sec. 1157.3  Definitions.

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

[[Page 438]]

such definition would at least include all equipment defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
Financial Status Report (or other equivalent report); (2) for 
construction grants, the SF-271 Outlay Report and Request for 
Reimbursement (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 
688) certified by the Secretary of the Interior as eligible for the 
special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the United States Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's 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.

[[Page 439]]

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



Sec. 1157.4  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. 1157.6, 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

[[Page 440]]

Training Partnership Act of 1982 and under the Public Health Services 
Act (Section 1921), Alcohol and Drug Abuse Treatment and Rehabilitation 
Block Grant and Part C of Title V, Mental Health Service for the 
Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (Title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (Title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (Title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 1157.4(a) (3) through (8) are subject to Subpart E.



Sec. 1157.5  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. 1157.6.



Sec. 1157.6  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. 1157.10  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

[[Page 441]]

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. 1157.11  State plans.

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



Sec. 1157.12  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;

[[Page 442]]

    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grante or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.



                    Subpart C_Post-Award Requirements

                        Financial Administration



Sec. 1157.20  Standards for financial management systems.

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

[[Page 443]]

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. 1157.21  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for 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. 1157.43(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

[[Page 444]]

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. 1157.22  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.
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. 1157.23  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. 1157.24  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

[[Page 445]]

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. 1157.25, 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. 1157.25(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 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

[[Page 446]]

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 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. 1157.22, 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. 1157.25  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.

[[Page 447]]

    (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. 1157.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 
1157.31 and 1157.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (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. 1157.26  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

[[Page 448]]

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. 
1157.36 shall be followed.

[53 FR 8081, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45946, Aug. 
29, 1997]

                    Changes, Property, and Subawards



Sec. 1157.30  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. 1157.22) contain requirements for prior approval of certain types 
of costs. Except where waived, those requirements apply to all grants 
and subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct 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

[[Page 449]]

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. 1157.36 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. 1157.22) 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. 1157.31  Real property.

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



Sec. 1157.32  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.

[[Page 450]]

    (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. 1157.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (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.

[[Page 451]]

    (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. 1157.32(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. 1157.33  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. 1157.34  Copyrights.

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



Sec. 1157.35  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. 1157.36  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

[[Page 452]]

    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of 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:

[[Page 453]]

    (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. 1157.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name 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

[[Page 454]]

bids, is the lowest in price. The sealed bid method is the preferred 
method for procuring construction, if the conditions in Sec. 
1157.36(d)(2)(i) apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of 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.

[[Page 455]]

    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. 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. 1157.22). 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.

[[Page 456]]

    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, 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

[[Page 457]]

it will be effected and the basis for settlement. (All contracts in 
excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR Part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR Part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR Part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8081, 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19645, Apr. 
19, 1995]



Sec. 1157.37  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. 1157.42 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;

[[Page 458]]

    (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 1157.10;
    (2) Section 1157.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 1157.21; and
    (4) Section 1157.50.

              Reports, Records, Retention, and Enforcement



Sec. 1157.40  Monitoring and reporting program performance.

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

[[Page 459]]

    (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. 1157.41  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 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 paragraph Sec. 1157.41(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

[[Page 460]]

of the award exempt the grantee from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 1157.41(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. 1157.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 1157.41(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. 1157.41(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. 1157.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 1157.41(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. 1157.41(b)(2).



Sec. 1157.42  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

[[Page 461]]

    (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. 1157.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: Indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from 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

[[Page 462]]

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. 1157.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 1157.35).



Sec. 1157.44  Termination for convenience.

    Except as provided in Sec. 1157.43 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. 
1157.43 or paragraph (a) of this section.



                 Subpart D_After-the-Grant Requirements



Sec. 1157.50  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.

[[Page 463]]

    (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. 1157.32(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. 1157.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 1157.42;
    (d) Property management requirements in Sec. Sec. 1157.31 and 
1157.32; and
    (e) Audit requirements in Sec. 1157.26.



Sec. 1157.52  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 1158_NEW RESTRICTIONS ON LOBBYING--Table of Contents




                            Subpart A_General

Sec.
1158.100 Conditions on use of funds.
1158.105 Definitions.
1158.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

1158.200 Agency and legislative liaison.
1158.205 Professional and technical services.
1158.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

1158.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

1158.400 Penalties.
1158.405 Penalty procedures.
1158.410 Enforcement.

                          Subpart E_Exemptions

1158.500 Secretary of Defense.

                        Subpart F_Agency Reports

1158.600 Semi-annual compilation.
1158.605 Inspector General report.

[[Page 464]]


Appendix A to Part 1158--Certification Regarding Lobbying
Appendix B to Part 1158--Disclosure Form to Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 20 U.S.C. 
959.

    Source: 55 FR 6737, 6755, Feb. 26, 1990, unless otherwise noted.

    Cross reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.20



                            Subpart A_General



Sec. 1158.100  Conditions on use of funds.

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



Sec. 1158.105  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.

[[Page 465]]

    (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.
    (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

[[Page 466]]

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. 1158.110  Certification and disclosure.

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

unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraph (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 
paragraph (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 paragraph 
(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,

[[Page 467]]

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. 1158.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
1158.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Pub. L. 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 1158.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
1158.100 (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

[[Page 468]]

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 r 
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. 1158.210  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. 1158.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
1158.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 1158.110 (a) and (b) 
regarding filing a disclosure form by each person, if required, shall 
not apply with respect to professional or technical services rendered 
directly in the preparation, submission, or negotiation of any 
commitment providing for the United States to insure or guarantee a 
loan.
    (c) For purposes of paragraph (a) of this section, professional and 
technical services shall be limited to advice and analysis directly 
applying any professional or technical discipline. For example, drafting 
or a legal document accompanying a bid or proposal by a lawyer is 
allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.

[[Page 469]]

    (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. 1158.400  Penalties.

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



Sec. 1158.405  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. 1158.410  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. 1158.500  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. 1158.600  Semi-annual compilation.

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

[[Page 470]]

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



Sec. 1158.605  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 1158--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

[[Page 471]]

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

            Statement for Loan Guarantees and Loan Insurance

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

[[Page 472]]

       Appendix B to Part 1158--Disclosure Form to Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC01JA91.010


[[Page 473]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.011


[[Page 474]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.012


[[Page 475]]





PART 1159_IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents




Sec.
1159.1 What definitions apply to these regulations?
1159.2 What is the purpose of these regulations?
1159.3 Where should individuals send inquiries about the Endowment's 
          systems of records or implementation of the Privacy Act?
1159.4 How will the public receive notification of the Endowment's 
          systems of records?
1159.5 What government entities will the Endowment notify of proposed 
          changes to its systems of records?
1159.6 What limits exist as to the contents of the Endowment's systems 
          of records?
1159.7 Will the Endowment collect information from me for its records?
1159.8 How can I acquire access to Endowment records pertaining to me?
1159.9 What identification will I need to show when I request access to 
          Endowment records pertaining to me?
1159.10 How can I pursue amendments to or corrections of an Endowment 
          record?
1159.11 How can I appeal a refusal to amend or correct an Endowment 
          record?
1159.12 Will the Endowment charge me fees to locate, review, or copy 
          records?
1159.13 In what other situations will the Endowment disclose its 
          records?
1159.14 Will the Endowment maintain a written account of disclosures 
          made from its systems of records?
1159.15 Who has the responsibility for maintaining adequate technical, 
          physical, and security safeguards to prevent unauthorized 
          disclosure or destruction of manual and automatic record 
          systems?
1159.16 Will the Endowment take steps to ensure that its employees 
          involved with its systems of records are familiar with the 
          requirements and implications of the Privacy Act?
1159.17 Which of the Endowment's systems of records are covered by 
          exemptions in the Privacy Act?
1159.18 What are the penalties for obtaining an Endowment record under 
          false pretenses?
1159.19 What restrictions exist regarding the release of mailing lists?

    Authority: 5 U.S.C. 552a(f).

    Source: 65 FR 46371, July 28, 2000, unless otherwise noted.



Sec. 1159.1  What definitions apply to these regulations?

    The definitions of the Privacy Act apply to this part. In addition, 
as used in this part:
    (a) Agency means any executive department, military department, 
government corporation, or other establishment in the executive branch 
of the Federal government, including the Executive Office of the 
President or any independent regulatory agency.
    (b) Business day means a calendar day, excluding Saturdays, Sundays, 
and legal public holidays.
    (c) Chairperson means the Chairperson of the Endowment, or his or 
her designee;
    (d) Endowment means the National Endowment for the Arts;
    (e) Endowment system means a system of records maintained by the 
Endowment;
    (f) General Counsel means the General Counsel of the Endowment, or 
his or her designee.
    (g) Individual means any citizen of the United States or an alien 
lawfully admitted for permanent residence;
    (h) Maintain means to collect, use, store, or disseminate records, 
as well as any combination of these recordkeeping functions. The term 
also includes exercise of control over and, therefore, responsibility 
and accountability for, systems of records;
    (i) Privacy Act means the Privacy Act of 1974, as amended (5 U.S.C. 
552a);
    (j) Record means any item, collection, or grouping of information 
about an individual that is maintained by an agency and contains the 
individual's name or another identifying particular, such as a number or 
symbol assigned to the individual, or his or her fingerprint, voice 
print, or photograph. The term includes, but is not limited to, 
information regarding an individual's education, financial transactions, 
medical history, and criminal or employment history;
    (k) Routine use means, with respect to the disclosure of a record, 
the use of a record for a purpose that is compatible with the purpose 
for which it was collected;
    (l) Subject individual means the individual to whom a record 
pertains. Uses of the terms ``I'', ``you'', ``me'', and other

[[Page 476]]

references to the reader of the regulations in this part are meant to 
apply to subject individuals as defined in this paragraph (l); and
    (m) System of records means a group of records under the control of 
any agency from which information is retrieved by use of the name of the 
individual or by some number, symbol, or other identifying particular 
assigned to the individual.



Sec. 1159.2  What is the purpose of these regulations?

    The regulations in this part set forth the Endowment's procedures 
under the Privacy Act, as required by 5 U.S.C. 552a(f), with respect to 
systems of records maintained by the Endowment. These regulations 
establish procedures by which an individual may exercise the rights 
granted by the Privacy Act to determine whether an Endowment system 
contains a record pertaining to him or her; to gain access to such 
records; and to request correction or amendment of such records. These 
regulations also set identification requirements, prescribe fees to be 
charged for copying records, and establish exemptions from certain 
requirements of the Act for certain Endowment systems or components 
thereof.



Sec. 1159.3  Where should individuals send inquiries about the Endowment's 
systems of records or implementation of the Privacy Act?

    Inquiries about the Endowment's systems of records or implementation 
of the Privacy Act should be sent to the following address: National 
Endowment for the Arts; Office of the General Counsel; 1100 Pennsylvania 
Avenue, NW; Room 518; Washington, DC 20506.



Sec. 1159.4  How will the public receive notification of the Endowment's 
systems of records?

    (a) From time to time, the Endowment shall review its systems of 
records in the Federal Register, and publish, if necessary, any 
amendments to those systems of records. Such publication shall not be 
made for those systems of records maintained by other agencies while in 
the temporary custody of the Endowment.
    (b) At least 30 days prior to publication of information under 
paragraph (a) of this section, the Endowment shall publish in the 
Federal Register a notice of its intention to establish any new routine 
uses of any of its systems of records, thereby providing the public an 
opportunity to comment on such uses. This notice published by the 
Endowment shall contain the following:
    (1) The name of the system of records for which the routine use is 
to be established;
    (2) The authority for the system;
    (3) The purpose for which the record is to be maintained;
    (4) The proposed routine use(s);
    (5) The purpose of the routine use(s); and
    (6) The categories of recipients of such use.
    (c) Any request for additions to the routine uses of Endowment 
systems should be sent to the Office of the General Counsel (see Sec. 
1159.3 of this part).
    (d) Any individual who wishes to know whether an Endowment system 
contains a record pertaining to him or her should write to the Office of 
the General Counsel (see Sec. 1159.3 of this part). Such individuals 
may also call the Office of the General Counsel at (202) 682-5418 on 
business days, between the hours of 9 a.m. and 5:30 p.m., to schedule an 
appointment to make an inquiry in person. In either case, inquiries 
should be presented in writing and should specifically identify the 
Endowment systems involved. The Endowment will attempt to respond to an 
inquiry as to whether a record exists within 10 business days of 
receiving the inquiry.



Sec. 1159.5  What government entities will the Endowment notify of proposed 
changes to its systems of records?

    When the Endowment proposes to establish or significantly changes 
any of its systems of records, it shall provide adequate advance notice 
of such proposal to the Committee on Government Reform of the House of 
Representatives, the Committee on Governmental Affairs of the Senate, 
and the Office of Management and Budget (OMB), in order to permit an 
evaluation of the probable or potential effect of such proposal on the 
privacy or other rights

[[Page 477]]

of individuals. This report will be submitted in accordance with 
guidelines provided by the OMB.



Sec. 1159.6  What limits exist as to the contents of the Endowment's systems 
of records?

    (a) The Endowment shall maintain only such information about an 
individual as is relevant and necessary to accomplish a purpose of the 
agency required by statute or by executive order of the President. In 
addition, the Endowment shall maintain all records that are used in 
making determinations about any individual with such accuracy, 
relevance, timeliness, and completeness as is reasonably necessary to 
ensure fairness to that individual in the making of any determination 
about him or her. However, the Endowment shall not be required to update 
retired records.
    (b) The Endowment shall not maintain any record about any individual 
with respect to or describing how such individual exercises rights 
guaranteed by the First Amendment of the Constitution of the United 
States, unless expressly authorized by statute or by the subject 
individual, or unless pertinent to and within the scope of an authorized 
law enforcement activity.



Sec. 1159.7  Will the Endowment collect information from me for its records?

    The Endowment shall collect information, to the greatest extent 
practicable, directly from you when the information may result in 
adverse determinations about your rights, benefits, or privileges under 
Federal programs. In addition, the Endowment shall inform you of the 
following, either on the form it uses to collect the information or on a 
separate form that you can retain, when it asks you to supply 
information:
    (a) The statutory or executive order authority that authorizes the 
solicitation of the information;
    (b) Whether disclosure of such information is mandatory or 
voluntary;
    (c) The principal purpose(s) for which the information is intended 
to be used;
    (d) The routine uses that may be made of the information, as 
published pursuant to Sec. 1159.4 of this part; and
    (e) Any effects on you of not providing all or any part of the 
required or requested information.



Sec. 1159.8  How can I acquire access to Endowment records pertaining to me?

    The following procedures apply to records that are contained in an 
Endowment system:
    (a) You may request review of records pertaining to you by writing 
to the Office of the General Counsel (see Sec. 1159.3 of this part). 
You may also call the Office of the General Counsel at (202) 682-5418 on 
business days, between the hours of 9 a.m. and 5:30 p.m., to schedule an 
appointment to make such a request in person. In either case, your 
request should be presented in writing and should specifically identify 
the Endowment systems involved.
    (b) Access to the record, or to any other information pertaining to 
you that is contained in the system, shall be provided if the 
identification requirements of Sec. 1159.9 of this part are satisfied 
and the record is otherwise determined to be releasable under the 
Privacy Act and these regulations. The Endowment shall provide you an 
opportunity to have a copy made of any such record about you. Only one 
copy of each requested record will be supplied, based on the fee 
schedule in Sec. 1159.12 of this part.
    (c) The Endowment will comply promptly with requests made in person 
at scheduled appointments, if the requirements of this section are met 
and the records sought are immediately available. The Endowment will 
acknowledge mailed requests, or personal requests for documents that are 
not immediately available, within 10 business days, and the information 
requested will be provided promptly thereafter.
    (d) If you make your request in person at a scheduled appointment, 
you may, upon your request, be accompanied by a person of your choice to 
review your record. The Endowment may require that you furnish a written 
statement authorizing discussion of your record in the accompanying 
person's presence. A record may be disclosed to a representative chosen 
by you upon your proper written consent.

[[Page 478]]

    (e) Medical or psychological records pertaining to you shall be 
disclosed to you unless, in the judgment of the Endowment, access to 
such records might have an adverse effect upon you. When such 
determination has been made, the Endowment may refuse to disclose such 
information directly to you. The Endowment will, however, disclose this 
information to a licensed physician designated by you in writing.



Sec. 1159.9  What identification will I need to show when I request access 
to Endowment records pertaining to me?

    The Endowment shall require reasonable identification of all 
individuals who request access to records in an Endowment system to 
ensure that they are disclosed to the proper person.
    (a) The amount of personal identification required will of necessity 
vary with the sensitivity of the record involved. In general, if you 
request disclosure in person, you shall be required to show an 
identification card, such as a driver's license, containing your 
photograph and sample signature. However, with regard to records in 
Endowment systems that contain particularly sensitive and/or detailed 
personal information, the Endowment reserves the right to require 
additional means of identification as are appropriate under the 
circumstances. These means include, but are not limited to, requiring 
you to sign a statement under oath as to your identity, acknowledging 
that you are aware of the penalties for improper disclosure under the 
provisions of the Privacy Act.
    (b) If you request disclosure by mail, the Endowment will request 
such information as may be necessary to ensure that you are properly 
identified. Authorized means to achieve this goal include, but are not 
limited to, requiring that a mail request include certification that a 
duly commissioned notary public of any State or territory (or a similar 
official, if the request is made outside of the United States) received 
an acknowledgment of identity from you.
    (c) If you are unable to provide suitable documentation or 
identification, the Endowment may require a signed, notarized statement 
asserting your identity and stipulating that you understand that 
knowingly or willfully seeking or obtaining access to records about 
another person under false pretenses is punishable by a fine of up to 
$5,000.



Sec. 1159.10  How can I pursue amendments to or corrections of an Endowment 
record?

    (a) You are entitled to request amendments to or corrections of 
records pertaining to you pursuant to the provisions of the Privacy Act, 
including 5 U.S.C. 552a(d)(2). Such a request should be made in writing 
and addressed to the Office of the General Counsel (see Sec. 1159.3 of 
this part).
    (b) Your request for amendments or corrections should specify the 
following:
    (1) The particular record that you are seeking to amend or correct;
    (2) The Endowment system from which the record was retrieved;
    (3) The precise correction or amendment you desire, preferably in 
the form of an edited copy of the record reflecting the desired 
modification; and
    (4) Your reasons for requesting amendment or correction of the 
record.
    (c) The Endowment will acknowledge a request for amendment or 
correction of a record within 10 business days of its receipt, unless 
the request can be processed and the individual informed of the General 
Counsel's decision on the request within that 10-day period.
    (d) If after receiving and investigating your request, the General 
Counsel agrees that the record is not accurate, timely, or complete, 
based on a preponderance of the evidence, then the record will be 
corrected or amended promptly. The record will be deleted without regard 
to its accuracy, if the record is not relevant or necessary to 
accomplish the Endowment function for which the record was provided or 
is maintained. In either case, you will be informed in writing of the 
amendment, correction, or deletion. In addition, if accounting was made 
of prior disclosures of the record, all previous recipients of the 
record will be informed of the corrective action taken.
    (e) If after receiving and investigating your request, the General 
Counsel does not agree that the record

[[Page 479]]

should be amended or corrected, you will be informed promptly in writing 
of the refusal to amend or correct the record and the reason for this 
decision. You will also be informed that you may appeal this refusal in 
accordance with Sec. 1159.11 of this part.
    (f) Requests to amend or correct a record governed by the 
regulations of another agency will be forwarded to such agency for 
processing, and you will be informed in writing of this referral.



Sec. 1159.11  How can I appeal a refusal to amend or correct an Endowment 
record?

    (a) You may appeal a refusal to amend or correct a record to the 
Chairperson. Such appeal must be made in writing within 10 business days 
of your receipt of the initial refusal to amend or correct your record. 
Your appeal should be sent to the Office of the General Counsel (see 
Sec. 1159.3 of this part), should indicate that it is an appeal, and 
should include the basis for the appeal.
    (b) The Chairperson will review your request to amend or correct the 
record, the General Counsel's refusal, and any other pertinent material 
relating to the appeal. No hearing will be held.
    (c) The Chairperson shall render his or her decision on your appeal 
within 30 business days of its receipt by the Endowment, unless the 
Chairperson, for good cause shown, extends the 30-day period. Should the 
Chairperson extend the appeal period, you will be informed in writing of 
the extension and the circumstances of the delay.
    (d) If the Chairperson determines that the record that is the 
subject of the appeal should be amended or corrected, the record will be 
so modified, and you will be informed in writing of the amendment or 
correction. Where an accounting was made of prior disclosures of the 
record, all previous recipients of the record will be informed of the 
corrective action taken.
    (e) If your appeal is denied, you will be informed in writing of the 
following:
    (1) The denial and the reasons for the denial;
    (2) That you may submit to the Endowment a concise statement setting 
forth the reasons for your disagreement as to the disputed record. Under 
the procedures set forth in paragraph (f) of this section, your 
statement will be disclosed whenever the disputed record is disclosed; 
and
    (3) That you may seek judicial review of the Chairperson's 
determination under 5 U.S.C. 552a(g)(1)(a).
    (f) Whenever you submit a statement of disagreement to the Endowment 
in accordance with paragraph (e)(2) of this section, the record will be 
annotated to indicate that it is disputed. In any subsequent disclosure, 
a copy of your statement of disagreement will be disclosed with the 
record. If the Endowment deems it appropriate, a concise statement of 
the Chairperson's reasons for denying your appeal may also be disclosed 
with the record. While you will have access to this statement of the 
Chairperson's reasons for denying your appeal, such statement will not 
be subject to correction or amendment. Where an accounting was made of 
prior disclosures of the record, all previous recipients of the record 
will be provided a copy of your statement of disagreement, as well as 
any statement of the Chairperson's reasons for denying your appeal.



Sec. 1159.12  Will the Endowment charge me fees to locate, review, or copy 
records?

    (a) The Endowment shall charge no fees for search time or for any 
other time expended by the Endowment to review a record. However, the 
Endowment may charge fees where you request that a copy be made of a 
record to which you have been granted access. Where a copy of the record 
must be made in order to provide access to the record (e.g., computer 
printout where no screen reading is available), the copy will be made 
available to you without cost.
    (b) Copies of records made by photocopy or similar process will be 
charged to you at the rate of $0.10 per page. Where records are not 
susceptible to photocopying (e.g., punch cards, magnetic tapes, or 
oversize materials), you will be charged actual cost as determined on a 
case-by-case basis. A copying fee totaling $3.00 or less shall be

[[Page 480]]

waived, but the copying fees for contemporaneous requests by the same 
individual shall be aggregated to determine the total fee.
    (c) Special and additional services provided at your request, such 
as certification or authentication, postal insurance, and special 
mailing arrangement costs, will be charged to you.
    (d) A copying fee shall not be charged or, alternatively, it may be 
reduced, when the General Counsel determines, based on a petition, that 
the petitioning individual is indigent and that the Endowment's 
resources permit a waiver of all or part of the fee.
    (e) All fees shall be paid before any copying request is undertaken. 
Payments shall be made by check or money order payable to the ``National 
Endowment for the Arts.''



Sec. 1159.13  In what other situations will the Endowment disclose its 
records?

    (a) The Endowment shall not disclose any record that is contained in 
a system of records to any person or to another agency, except pursuant 
to a written request by or with the prior written consent of the subject 
individual, unless disclosure of the record is:
    (1) To those officers or employees of the Endowment who maintain the 
record and who have a need for the record in the performance of their 
official duties;
    (2) Required under the provisions of the Freedom of Information Act 
(5 U.S.C. 552). Records required to be made available by the Freedom of 
Information Act will be released in response to a request to the 
Endowment formulated in accordance with the National Foundation on the 
Arts and the Humanities regulations published at 45 CFR part 1100;
    (3) For a routine use as published in the annual notice in the 
Federal Register;
    (4) To the Census Bureau for purposes of planning or carrying out a 
census, survey, or related activity pursuant to the provisions of Title 
13 of the United States Code;
    (5) To a recipient who has provided the Endowment with adequate 
advance written assurance that the record will be used solely as a 
statistical research or reporting record, and the record is to be 
transferred in a form that is not individually identifiable;
    (6) To the National Archives 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 his or her designee, to determine 
whether the record has such value;
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity, if the activity is 
authorized by law, and if the head of the agency or instrumentality has 
made a written request to the Endowment for such records specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought. The Endowment may also disclose such a record to a 
law enforcement agency on its own initiative in situations in which 
criminal conduct is suspected, provided that such disclosure has been 
established as a routine use, or in situations in which the misconduct 
is directly related to the purpose for which the record is maintained;
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if, upon such 
disclosure, notification is transmitted to the last known address of 
such individual;
    (9) To either House of 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;
    (10) To the Comptroller General, or any of his or her authorized 
representatives, in the course of the performance of official duties of 
the General Accounting Office;
    (11) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(e); or
    (12) Pursuant to an order of a court of competent jurisdiction. In 
the event that any record is disclosed under such compulsory legal 
process, the Endowment shall make reasonable efforts to notify the 
subject individual after the

[[Page 481]]

process becomes a matter of public record.
    (b) Before disseminating any record about any individual to any 
person other than an Endowment employee, the Endowment shall make 
reasonable efforts to ensure that such records are, or at the time they 
were collected were, accurate, complete, timely, and relevant for 
Endowment purposes. This paragraph (b) does not apply to disseminations 
made pursuant to the provisions of the Freedom of Information Act (5 
U.S.C. 552) and paragraph (a)(2) of this section.



Sec. 1159.14  Will the Endowment maintain a written account of disclosures 
made from its systems of records?

    (a) The Office of the General Counsel shall maintain a written log 
containing the date, nature, and purpose of each disclosure of a record 
to any person or to another agency. Such accounting shall also contain 
the name and address of the person or agency to whom each disclosure was 
made. This log need not include disclosures made to Endowment employees 
in the course of their official duties, or pursuant to the provisions of 
the Freedom of Information Act (5 U.S.C. 552).
    (b) The Endowment shall retain the accounting of each disclosure for 
at least five years after the accounting is made or for the life of the 
record that was disclosed, whichever is longer.
    (c) The Endowment shall make the accounting of disclosures of a 
record pertaining to you available to you at your request. Such a 
request should be made in accordance with the procedures set forth in 
Sec. 1159.8 of this part. This paragraph (c) does not apply to 
disclosures made for law enforcement purposes under 5 U.S.C. 552a(b)(7) 
and Sec. 1159.13(a)(7) of this part.



Sec. 1159.15  Who has the responsibility for maintaining adequate 

technical, physical, and security safeguards to prevent unauthorized 
disclosure or 
          destruction of manual and automatic record systems?

    The Deputy Chairman for Management and Budget has the responsibility 
of maintaining adequate technical, physical, and security safeguards to 
prevent unauthorized disclosure or destruction of manual and automatic 
record systems. These security safeguards shall apply to all systems in 
which identifiable personal data are processed or maintained, including 
all reports and outputs from such systems that contain identifiable 
personal information. Such safeguards must be sufficient to prevent 
negligent, accidental, or unintentional disclosure, modification or 
destruction of any personal records or data, and must furthermore 
minimize, to the extent practicable, the risk that skilled technicians 
or knowledgeable persons could improperly obtain access to modify or 
destroy such records or data and shall further insure against such 
casual entry by unskilled persons without official reasons for access to 
such records or data.
    (a) Manual systems. (1) Records contained in a system of records as 
defined herein may be used, held or stored only where facilities are 
adequate to prevent unauthorized access by persons within or outside the 
Endowment.
    (2) All records, when not under the personal control of the 
employees authorized to use the records, must be stored in a locked 
metal filing cabinet. Some systems of records are not of such 
confidential nature that their disclosure would constitute a harm to an 
individual who is the subject of such record. However, records in this 
category shall also be maintained in locked metal filing cabinets or 
maintained in a secured room with a locking door.
    (3) Access to and use of a system of records shall be permitted only 
to persons whose duties require such access within the Endowment, for 
routine uses as defined in Sec. 1159.1 as to any given system, or for 
such other uses as may be provided herein.
    (4) Other than for access within the Endowment to persons needing 
such records in the performance of their official duties or routine uses 
as defined in Sec. 1159.1, or such other uses as provided herein, 
access to records within a system of records shall be permitted only to 
the individual to whom the record pertains or upon his or her written 
request to the General Counsel.
    (5) Access to areas where a system of records is stored will be 
limited to

[[Page 482]]

those persons whose duties require work in such areas. There shall be an 
accounting of the removal of any records from such storage areas 
utilizing a written log, as directed by the Deputy Chairman for 
Management and Budget. The written log shall be maintained at all times.
    (6) The Endowment shall ensure that all persons whose duties require 
access to and use of records contained in a system of records are 
adequately trained to protect the security and privacy of such records.
    (7) The disposal and destruction of records within a system of 
records shall be in accordance with rules promulgated by the General 
Services Administration.
    (b) Automated systems. (1) Identifiable personal information may be 
processed, stored or maintained by automated data systems only where 
facilities or conditions are adequate to prevent unauthorized access to 
such systems in any form. Whenever such data, whether contained in punch 
cards, magnetic tapes or discs, are not under the personal control of an 
authorized person, such information must be stored in a locked or 
secured room, or in such other facility having greater safeguards than 
those provided for herein.
    (2) Access to and use of identifiable personal data associated with 
automated data systems shall be limited to those persons whose duties 
require such access. Proper control of personal data in any form 
associated with automated data systems shall be maintained at all times, 
including maintenance of accountability records showing disposition of 
input and output documents.
    (3) All persons whose duties require access to processing and 
maintenance of identifiable personal data and automated systems shall be 
adequately trained in the security and privacy of personal data.
    (4) The disposal and disposition of identifiable personal data and 
automated systems shall be done by shredding, burning or in the case of 
tapes or discs, degaussing, in accordance with any regulations now or 
hereafter proposed by the General Services Administration or other 
appropriate authority.



Sec. 1159.16  Will the Endowment take steps to ensure that its employees 

involved with its systems of records are familiar with the requirements and 
          implications of the Privacy Act?

    (a) The Chairperson shall ensure that all persons involved in the 
design, development, operation or maintenance of any Endowment system 
are informed of all requirements necessary to protect the privacy of 
subject individuals. The Chairperson shall also ensure that all 
Endowment employees having access to records receive adequate training 
in their protection, and that records have adequate and proper storage 
with sufficient security to assure the privacy of such records.
    (b) All employees shall be informed of the civil remedies provided 
under 5 U.S.C. 552a(g)(1) and other implications of the Privacy Act, and 
the fact that the Endowment may be subject to civil remedies for failure 
to comply with the provisions of the Privacy Act and these regulations.



Sec. 1159.17  Which of the Endowment's systems of records are covered by 
exemptions in the Privacy Act?

    (a) Pursuant to and limited by 5 U.S.C. 552a(j)(2), the Endowment 
system entitled ``Office of the Inspector General Investigative Files'' 
shall be exempted from the provisions of 5 U.S.C. 552a, except for 
subsections (b); (c)(1) and (2); (e)(4)(A) through (F); (e)(6), (7), 
(9), (10), and (11); and (i), insofar as that Endowment system contains 
information pertaining to criminal law enforcement investigations.
    (b) Pursuant to and limited by 5 U.S.C. 552a(k)(2), the Endowment 
system entitled ``Office of the Inspector General Investigative Files'' 
shall be exempted from 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), 
and (I); and (f), insofar as that Endowment system consists of 
investigatory material compiled for law enforcement purposes, other than 
material within the scope of the exemption at 5 U.S.C. 552a(j)(2).
    (c) The Endowment system entitled ``Office of the Inspector General 
Investigative Files'' is exempt from the above-noted provisions of the 
Privacy Act because their application might

[[Page 483]]

alert investigation subjects to the existence or scope of 
investigations; lead to suppression, alteration, fabrication, or 
destruction of evidence; disclose investigative techniques or 
procedures; reduce the cooperativeness or safety of witnesses; or 
otherwise impair investigations.



Sec. 1159.18  What are the penalties for obtaining an Endowment record 
under false pretenses?

    (a) Under 5 U.S.C. 552a(i)(3), any person who knowingly and 
willfully requests or obtains any record concerning an individual from 
the Endowment under false pretenses shall be guilty of a misdemeanor and 
fined not more than $5,000.
    (b) A person who falsely or fraudulently attempts to obtain records 
under the Privacy Act may also be subject to prosecution under other 
statutes, including 18 U.S.C. 494, 495, and 1001.



Sec. 1159.19  What restrictions exist regarding the release of mailing 
lists?

    The Endowment may not sell or rent an individual's name and address 
unless such action is specifically authorized by law. This section shall 
not be construed to require the withholding of names and addresses 
otherwise permitted to be made public.

[[Page 484]]



       SUBCHAPTER C_FEDERAL COUNCIL ON THE ARTS AND THE HUMANITIES





PART 1160_INDEMNITIES UNDER THE ARTS AND ARTIFACTS INDEMNITY ACT--Table 
of Contents




Sec.
1160.1 Purpose and scope.
1160.2 Federal Council on the Arts and the Humanities.
1160.3 Definitions.
1160.4 Eligibility.
1160.5 Application for indemnification.
1160.6 Certificate of national interest.
1160.7 Indemnity agreement.
1160.8 Letter of intent.
1160.9 Loss adjustment.
1160.10 Certification of claim and amount of loss to the Congress.
1160.11 Appraisal procedures.
1160.12 Indemnification limits.

    Authority: 20 U.S.C. 971-977.

    Source: 56 FR 49848, Oct. 2, 1991, unless otherwise noted.



Sec. 1160.1  Purpose and scope.

    (a) This part sets forth the exhibition indemnity procedures of the 
Federal Council on the Arts and Humanities under the Arts and Artifacts 
Indemnity Act (Pub. L. 94-158) as required by section 2(a)(2) of the 
Act.
    (1) Eligible items from outside the United States while on 
exhibition in the United States or
    (2) Eligible items from the United States while on exhibition 
outside this country, preferably when they are part of an exchange of 
exhibitions.
    (b) Program guidelines and further information are available from 
the Indemnity Administrator, c/o Museum Program, National Endowment for 
the Arts, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.

[56 FR 49848, Oct. 2, 1991, as amended at 60 FR 42465, Aug. 16, 1995]



Sec. 1160.2  Federal Council on the Arts and the Humanities

    For the purposes of this part (45 CFR part 1160) the Federal Council 
on the Arts and the Humanities shall be composed of the Chairman of the 
National Endowment for the Arts, the Chairman of the National Endowment 
for the Humanities, the Secretary of Education, the Director of the 
National Science Foundation, the Librarian of Congress, the Chairman of 
the Commission of Fine Arts, the Archivist of the United States, the 
Commissioner, Public Buildings Service, General Services Administration, 
the Administrator of the General Services Administration, the Director 
of the United States Information Agency, the Secretary of the Interior, 
the Secretary of Commerce, the Secretary of Transportation, the Chairman 
of the National Museum Services Board, the Director of the Institute of 
Museum and Library Services, the Secretary of Housing and Urban 
Development, the Secretary of Labor, the Secretary of Veterans Affairs, 
and the Commissioner of the Administration on Aging.



Sec. 1160.3  Definitions.

    For the purposes of this part:
    (a) Council means the Federal Council on the Arts and the Humanities 
as defined in Sec. 1160.2.
    (b) Letter of Intent means an agreement by the Council to provide an 
indemnity covering a future exhibition subject to compliance with all 
requirements at the date the indemnity is to be effective.
    (c) Lender means the owner of an object.
    (d) Eligible item means an object which qualifies for coverage under 
the Arts and Artifacts Indemnity Act.
    (e) Exhibition means a public display of an indemnified items(s) at 
one or more locations, as approved by the Council, presented by any 
person, nonprofit agency or institution, or Government, in the United 
States or elsewhere.
    (f) On Exhibition means the period of time beginning on the date an 
indemnified item leaves the place designated by the lender and ending on 
the termination date.
    (g) Indemnity Agreement means the contract between the Council and 
the indemnitee covering loss or damage to indemnified items under the 
authority

[[Page 485]]

of the Arts and Artifacts Indemnity Act.
    (h) Indemnitee means the party or parties to an indemnity agreement 
issued by the Council, to whom the promise of indemnification is made.
    (i) Participating institution(s) means the location(s) where an 
exhibition indemnified under this part will be displayed.
    (j) Termination date means the date thirty (30) calendar days after 
the date specified in the indemnity Certificate by which an indemnified 
item is to be returned to the place designated by the lender or the date 
on which the item is actually so returned, whichever date is earlier. 
(In museum terms this means wall-to-wall coverage.) After 11:59 p.m. on 
the termination date, the item is no longer covered by the indemnity 
agreement unless an extension has theretofore been requested by the 
indemnitee and granted in writing by the Council.



Sec. 1160.4  Eligibility.

    An indemnity agreement made under these regulations shall cover:
    (a) Eligible items from outside the United States while on 
exhibition in the United States;
    (b) Eligible items from the United States while on exhibition 
outside this country, preferably when they are part of an exchange of 
exhibitions; and
    (c) Eligible items from the United States while on exhibition in the 
United States, in connection with other eligible items from outside the 
United States which are integral to the exhibition as a whole.

    Example 1 
    Museum A, an American art museum, is organizing a retrospective 
exhibition which will include more than 150 works of art by the 
Impressionist painter Auguste Renoir. The exhibition will present the 
full range of Renoir's production for the first time ever in an American 
museum. Museums B and C, large national museums in Paris and London, 
have agreed to lend 125 major works of art illustrating every aspect of 
Renoir's career. Museum A is also planning to include related works from 
other American public and private collections which have not been seen 
together since the artist's death in 1919. Museums D and E, major east 
coast American art museums, have agreed to lend 25 masterworks by 
Renoir. The exhibition will open in Chicago and travel to San Francisco 
and Washington.

                               Discussion

    Example 1 is a straightforward application of the amended indemnity 
regulations. Under the old regulations, only the works of art from 
Museums B and C, the foreign museums, would have been eligible for 
indemnification. Under the proposed Regulations, the works of art from 
American museums and other public and private collections also would be 
eligible for indemnification. In determining whether to indemnify the 
entire exhibition, the Federal Council will evaluate the exhibibition as 
a whole and whether the foreign loans are integral to the educational, 
cultural, historical or scientific significance of the exhibition. In 
this example, the Federal Council would likely approve indemnification 
of the entire exhibit.
    Example 2 Museum A in Massachusetts is organizing an exhibition 
celebrating 250 Years of Decorative Arts in America, to be held in 
conjunction with the state's celebration of the millennium. Included 
among the objects to be borrowed from museums and historical societies 
in the United States are furniture, textiles, metalwork, ceramics, glass 
and jewelry, illustrating the best examples of American design from 
colonial times to the present. The curator traveled abroad recently and 
saw an exhibition of American quilts which have been acquired by a 
British decorative arts museums. He intends to borrow several of the 
quilts for the exhibition.

                               Discussion

    Example 2 raises the question as to whether the American museum 
organizing the exhibition has included the British-owned American quilts 
merely to obtain insurance relief. In determining whether to indemnify 
the entire exhibition, the Federal Council will evaluate the exhibition 
as a whole and whether the foreign loans are integral to achieving its 
educational, cultural and historical purposes. Here, it is likely that 
the Federal Council will conclude that the foreign work are not an 
essential component of the exhibition. The Federal Council also may seek 
additional information from the applicant to determine whether the 
objectives of the exhibition could have been accomplished as 
satisfactorily by borrowing American quilts from U.S. collections. On 
these facts, the Federal Council in all likelihood would deny 
indemnification for the entire exhibition.
    Example 3 Museum A, an American museum, is organizing an exhibition 
of the works of James Watkins, a nineteenth century American painter, 
focusing on his studies of human anatomy. Museum A has the foremost 
collection of preparatory drawings related to Watkins' major painting, 
``The Surgeon and His Students.'' The painting is in the permanent 
collection of Museum B, located in the south of France, which has

[[Page 486]]

agreed to lend the painting for the exhibition. The exhibition will be 
shown at Museum B after the U.S. tour. American Universities, C and D, 
have also agreed to lend anatomical illustrations and drawings which 
show Watkins' development as a draughtsman. The exhibition and 
accompanying catalogue are expected to shed new light on Watkins 
contributions to art and scientific history.

                               Discussion

    Example 3 addresses the issue of whether the Federal Council will 
indemnify an exhibition even where the U.S. objects outnumber the 
foreign works. In determining whether to indemnify the entire 
exhibition, the Federal Council will evaluate the exhibition as a whole 
and the relationship of the foreign loans to the educational, cultural, 
historical and scientific significance of the exhibition. In this 
example, the exhibition promises to make important contributions not 
only to the history of art but also to the history of science. While 
there is only a single foreign work of art, it is clearly an essential 
component of the exhibition as a whole. The case for indemnification of 
the entire exhibition is further strengthened by the fact that a foreign 
masterpiece, which is closely related to the preparatory drawings and 
anatomical illustrations and drawings owned by American institutions, 
will be made available to the American public. Thus, the mere fact that 
the U.S. loans outnumber the foreign works will not in itself disqualify 
the entire exhibition for indemnification.

[60 FR 42466, Aug. 16, 1995]



Sec. 1160.5  Application for indemnification.

    An applicant for an indemnity shall submit an Application for 
Indemnification, addressed to the Indemnity Administrator, National 
Endowment for the Arts, Washington, DC 20506, which shall described as 
fully as possible:
    (a) The time, place, nature and Project Director/Curator of the 
exhibition for which the indemnity is sought;
    (b) Evidence that the owner and present possessor are willing to 
lend the eligible items, and both are prepared to be bound by the terms 
of the indemnity agreement;
    (c) The total value of all items to be indemnified, including a 
description of each item to be covered by the agreement and each item's 
value;
    (d) The source of valuations of each item, plus an opinion by a 
disinterested third party of the valuations established by lenders;
    (e) The significance, and the educational, cultural, historical, or 
scientific value of the items to be indemnified, and of the exhibition 
as a whole;
    (f) Statements describing policies, procedures, techniques, and 
methods to be employed with respect to:
    (1) Packing of items at the premises of, or the place designated by 
the lender;
    (2) Shipping arrangements;
    (3) Condition reports at lender's location;
    (4) Condition reports at borrower's location;
    (5) Condition reports upon return of items to lender's location;
    (6) Security during the exhibition and security during 
transportation, including couriers were applicable;
    (7) Maximum values to be transported in a single vehicle of 
transport.
    (g) Insurance arrangements, if any, which are proposed to cover the 
deductible amount provided by law or the excess over the amount 
indemnified;
    (h) Any loss incurred by the indemnitee or participating 
institutions during the three years prior to the Application for 
Indemnification which involved a borrowed or loaned item(s) or item(s) 
in their permanent collections where the amount of loss or damage 
exceeded $5,000. Details should include the date of loss, nature and 
cause of damage, and appraised value of the damaged items(s) both before 
and after loss;
    (i) If the application is for an exhibition of loans from the United 
States, which are being shown outside the United States, the applicant 
should describe in detail the nature of the exchange of exhibitions of 
which it is a part if any, including all circumstances surrounding the 
exhibition being shown in the United States, with particular emphasis on 
facts concerning insurance or indemnity arrangements.
    (j) Upon proper submission of the above required information an 
application will be selected or rejected for indemnification by the 
Council. The review criteria include:

[[Page 487]]

    (1) Review of educational, cultural, historical, or scientific value 
as required under the provisions of the Arts and Artifacts Indemnity 
Act;
    (2) Certification by the Director of the United States Information 
Agency that the exhibition is in the national interest; and
    (3) Review of the availability of indemnity obligational authority 
under section 5(b) of the Arts and Artifacts Indemnity Act (20 U.S.C. 
974).

(Approved under OMB control number 3135-0094)

[56 FR 49848, Oct. 2, 1991; 56 FR 51842, Oct. 16, 1991. Redesignated at 
60 FR 42465, Aug. 16, 1995]



Sec. 1160.6  Certificate of national interest.

    After preliminary review the application will be submitted to the 
Director of the United States Information Agency for determination of 
national interest and issuance of a Certificate of National Interest.

[56 FR 49848, Oct. 2, 1991. Redesignated at 60 FR 42465, Aug. 16, 1995]



Sec. 1160.7  Indemnity agreement.

    In cases where the requirements of Sec. Sec. 1160.4 and 1160.5 have 
been met to the satisfaction of the Council, an Indemnity Agreement 
pledging the full faith and credit of the United States for the agreed 
value of the exhibition in question may be issued to the indemnitee by 
the Council, subject to the provisions of Sec. 1160.7.

[56 FR 49848, Oct. 2, 1991. Redesignated at 60 FR 42465, Aug. 16, 1995]



Sec. 1160.8  Letter of intent.

    In cases where an exhibition proposed for indemnification is planned 
to begin on a date more than twelve (12) months after the submission of 
the application, the Council, upon approval of such a preliminary 
application, may provide a Letter of Intent stating that it will, 
subject to the conditions set forth therein, issue an Indemnity 
Agreement prior to commencement of the exhibition. In such cases, the 
Council will examine a final application during the twelve (12) month 
period prior to the date the exhibition is to commence, and shall, upon 
being satisfied that such conditions have been fulfilled, issue an 
Indemnity Agreement.

[56 FR 49848, Oct. 2, 1991. Redesignated at 60 FR 42465, Aug. 16, 1995]



Sec. 1160.9  Loss adjustment.

    (a) In the event of loss or damage covered by an Indemnity 
Agreement, the indemnitee without delay shall file a Notice of Loss or 
Damage with the Council and shall exercise reasonable care in order to 
minimize the amount of loss. Within a reasonable time after a loss has 
been sustained, the claimant shall file a Proof of Loss or Damage on 
forms provided by the Council. Failure to report such loss or damage and 
to file such Proof of Loss within sixty (60) days after the termination 
date as defined in Sec. 1160.3(k) shall invalidate any claim under the 
Indemnity Agreement.
    (b) In the event of total loss or destruction of an indemnified 
item, indemnification will be made on the basis of the amount specified 
in the Indemnity Agreement.
    (c) In the event of partial loss, or damage, and reduction in the 
fair market value, as a result thereof, to an indemnified item, 
indemnification will be made on the basis provided for in the Indemnity 
Agreement.
    (d) No loss or damage claim will be paid in excess of the 
Indemnification Limits specified in Sec. 1160.11.

[56 FR 49848, Oct. 2, 1991. Redesignated at 60 FR 42465, Aug. 16, 1995]



Sec. 1160.10  Certification of claim and amount of loss to the Congress.

    Upon receipt of a claim of total loss or a claim in which the 
Council is in agreement with respect to the amount of partial loss, or 
damage and reduction in fair market value as a result thereof, the 
Council shall certify the validity of the claim and the amount of such 
loss or damage and reduction in fair market value as a result thereof, 
to the Speaker of the House of Representatives and the President pro 
tempore of the Senate.

[56 FR 49848, Oct. 2, 1991. Redesignated at 60 FR 42465, Aug. 16, 1995]



Sec. 1160.11  Appraisal procedures.

    (a) In the event the Council and the indemnitee fail to agree on the 
amount

[[Page 488]]

of partial loss, or damage to, or any reduction in the fair market value 
as a result thereof, to the indemnified item(s), each shall select a 
competent appraiser(s) with evidence to be provided to show that the 
indemnitee's selection is satisfactory to the owner. The appraiser(s) 
selected by the Council and the indemnitee shall then select a competent 
and disinterested arbitrator.
    (b) After selection of an arbitrator, the appraisers shall assess 
the partial loss, or damage to, or where appropriate, any reduction in 
the fair market value of, the indemnified item(s). The appraisers' 
agreement with respect to these issues shall determine the dollar value 
of such loss or damage or repair costs, and where appropriate, such 
reduction in the fair market value. Disputes between the appraisers with 
respect to partial loss, damage repair costs, and fair market value 
reduction of any item shall be submitted to the arbitrator for 
determination. The appraisers' agreement or the arbitrator's 
determination shall be final and binding on the parties, and agreement 
on amount or such determination on amount shall be certified to the 
Speaker of the House and the President pro tempore of the Senate by the 
Council.
    (c) Each appraiser shall be paid by the party selecting him or her. 
The arbitrator and all other expenses of the appraisal shall be paid by 
the parties in equal shares.

[56 FR 49848, Oct. 2, 1991. Redesignated at 60 FR 42465, Aug. 16, 1995]



Sec. 1160.12  Indemnification limits.

    The dollar amounts of the limits described below are found in the 
guidelines referred to in Sec. 1160.1 and are based upon the statutory 
limits in the Arts and Artifacts Indemnity Act (20 U.S.C. 974).
    (a) There is a maximum amount of loss or damage covered in a single 
exhibition or an Indemnity Agreement.
    (b) A sliding scale deductible amount is applicable to loss or 
damage arising out of a single exhibition for which an indemnity is 
issued.
    (c) There is an aggregate amount of loss or damage covered by 
indemnity agreements at any one time.
    (d) The maximum value of eligible items carried in or upon any 
single instrumentality of transportation at any one time, is established 
by the Council.

[56 FR 49848, Oct. 2, 1991. Redesignated at 60 FR 42465, Aug. 16, 1995]

[[Page 489]]



           SUBCHAPTER D_NATIONAL ENDOWMENT FOR THE HUMANITIES





PART 1168_NEW RESTRICTIONS ON LOBBYING--Table of Contents




                            Subpart A_General

Sec.
1168.100 Conditions on use of funds.
1168.105 Definitions.
1168.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

1168.200 Agency and legislative liaison.
1168.205 Professional and technical services.
1168.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

1168.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

1168.400 Penalties.
1168.405 Penalty procedures.
1168.410 Enforcement.

                          Subpart E_Exemptions

1168.500 Secretary of Defense.

                        Subpart F_Agency Reports

1168.600 Semi-annual compilation.
1168.605 Inspector General report.

Appendix A to Part 1168--Certification Regarding Lobbying
Appendix B to Part 1168--Disclosure Form to Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 20 U.S.C. 959 
(a) (1).

    Source: 55 FR 6737, 6755, Feb. 26, 1990, unless otherwise noted.

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



                            Subpart A_General



Sec. 1168.100  Conditions on use of funds.

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

[[Page 490]]

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. 1168.105  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.
    (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.

[[Page 491]]

    (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. 1168.110  Certification and disclosure.

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

unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraph (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 
paragraph (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;

[[Page 492]]

    (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 paragraph 
(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. 1168.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
1168.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Pub. L. 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.

[[Page 493]]



Sec. 1168.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
1168.100 (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. 1168.210  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. 1168.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
1168.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 1168.110 (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.

[[Page 494]]

    (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. 1168.400  Penalties.

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

[[Page 495]]



Sec. 1168.405  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. 1168.410  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. 1168.500  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. 1168.600  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 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. 1168.605  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

[[Page 496]]

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 1168--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.

            Statement for Loan Guarantees and Loan Insurance

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

[[Page 497]]

       Appendix B to Part 1168--Disclosure Form to Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC01JA91.013


[[Page 498]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.014


[[Page 499]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.015


[[Page 500]]





PART 1169_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)--Table 
of Contents




Sec.
1169.25 How is this part organized?
1169.50 How is this part written?
1169.75 Do terms in this part have special meanings?

                            Subpart A_General

1169.100 What does this part do?
1169.105 Does this part apply to me?
1169.110 What is the purpose of the nonprocurement debarment and 
          suspension system?
1169.115 How does an exclusion restrict a person's involvement in 
          covered transactions?
1169.120 May we grant an exception to let an excluded person participate 
          in a covered transaction?
1169.125 Does an exclusion under the nonprocurement system affect a 
          person's eligibility for Federal procurement contracts?
1169.130 Does exclusion under the Federal procurement system affect a 
          person's eligibility to participate in nonprocurement 
          transactions?
1169.135 May the NEH exclude a person who is not currently participating 
          in a nonprocurement transaction?
1169.140 How do I know if a person is excluded?
1169.145 Does this part address persons who are disqualified, as well as 
          those who are excluded from nonprocurement transactions?

                     Subpart B_Covered Transactions

1169.200 What is a covered transaction?
1169.205 Why is it important to know if a particular transaction is a 
          covered transaction?
1169.210 Which nonprocurement transactions are covered transactions?
1169.215 Which nonprocurement transactions are not covered transactions?
1169.220 Are any procurement contracts included as covered transactions?
1169.225 How do I know if a transaction in which I may participate is a 
          covered transaction?

    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons

1169.300 What must I do before I enter into a covered transaction with 
          another person at the next lower tier?
1169.305 May I enter into a covered transaction with an excluded or 
          disqualified person?
1169.310 What must I do if a Federal agency excludes a person with whom 
          I am already doing business in a covered transaction?
1169.315 May I use the services of an excluded person as a principal 
          under a covered transaction?
1169.320 Must I verify that principals of my covered transactions are 
          eligible to participate?
1169.325 What happens if I do business with an excluded person in a 
          covered transaction?
1169.330 What requirements must I pass down to persons at lower tiers 
          with whom I intend to do business?

            Disclosing Information--Primary Tier Participants

1169.335 What information must I provide before entering into a covered 
          transaction with the NEH?
1169.340 If I disclose unfavorable information required under Sec. 
          1169.335, will I be prevented from participating in the 
          transaction?
1169.345 What happens if I fail to disclose the information required 
          under Sec. 1169.335?
1169.350 What must I do if I learn of the information required under 
          Sec. 1169.335 after entering into a covered transaction with 
          the NEH?

             Disclosing Information--Lower Tier Participants

1169.355 What information must I provide to a higher tier participant 
          before entering into a covered transaction with that 
          participant?
1169.360 What happens if I fail to disclose the information required 
          under Sec. 1169.355?
1169.365 What must I do if I learn of information required under Sec. 
          1169.355 after entering into a covered transaction with a 
          higher tier participant?

   Subpart D_Responsibilities of NEH Officials Regarding Transactions

1169.400 May I enter into a transaction with an excluded or disqualified 
          person?
1169.405 May I enter into a covered transaction with a participant if a 
          principal of the transaction is excluded?
1169.410 May I approve a participant's use of the services of an 
          excluded person?
1169.415 What must I do if a Federal agency excludes the participant or 
          a principal after I enter into a covered transaction?
1169.420 May I approve a transaction with an excluded or disqualified 
          person at a lower tier?
1169.425 When do I check to see if a person is excluded or disqualified?

[[Page 501]]

1169.430 How do I check to see if a person is excluded or disqualified?
1169.435 What must I require of a primary tier participant?
1169.440 What method do I use to communicate those requirements to 
          participants?
1169.445 What action may I take if a primary tier participant knowingly 
          does business with an excluded or disqualified person?
1169.450 What action may I take if a primary tier participant fails to 
          disclose the information required under Sec. 1169.335?
1169.455 What may I do if a lower tier participant fails to disclose the 
          information required under Sec. 1169.355 to the next higher 
          tier?

                 Subpart E_Excluded Parties List System

1169.500 What is the purpose of the Excluded Parties List System (EPLS)?
1169.505 Who uses the EPLS?
1169.510 Who maintains the EPLS?
1169.515 What specific information is in the EPLS?
1169.520 Who places the information into the EPLS?
1169.525 Whom do I ask if I have questions about a person in the EPLS?
1169.530 Where can I find the EPLS?

   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions

1169.600 How do suspension and debarment actions start?
1169.605 How does suspension differ from debarment?
1169.610 What procedures does the NEH use in suspension and debarment 
          actions?
1169.615 How does the NEH notify a person of a suspension and debarment 
          action?
1169.620 Do Federal agencies coordinate suspension and debarment 
          actions?
1169.625 What is the scope of a suspension or debarment action?
1169.630 May the NEH impute the conduct of one person to another?
1169.635 May the NEH settle a debarment or suspension action?
1169.640 May a settlement include a voluntary exclusion?
1169.645 Do other Federal agencies know if the NEH agrees to a voluntary 
          exclusion?

                          Subpart G_Suspension

1169.700 When may the suspending official issue a suspension?
1169.705 What does the suspending official consider in issuing a 
          suspension?
1169.710 When does a suspension take effect?
1169.715 What notice does the suspending official give me if I am 
          suspended?
1169.720 How may I contest a suspension?
1169.725 How much time do I have to contest a suspension?
1169.730 What information must I provide to the suspending official if I 
          contest a suspension?
1169.735 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the suspension is based?
1169.740 Are suspension proceedings formal?
1169.745 How is fact-finding conducted?
1169.750 What does the suspending official consider in deciding whether 
          to continue or terminate my suspension?
1169.755 When will I know whether the suspension is continued or 
          terminated?
1169.760 How long may my suspension last?

                           Subpart H_Debarment

1169.800 What are the causes for debarment?
1169.805 What notice does the debarring official give me if I am 
          proposed for debarment?
1169.810 When does a debarment take effect?
1169.815 How may I contest a proposed debarment?
1169.820 How much time do I have to contest a proposed debarment?
1169.825 What information must I provide to the debarring official if I 
          contest a proposed debarment?
1169.830 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the proposed debarment is based?
1169.835 Are debarment proceedings formal?
1169.840 How is fact-finding conducted?
1169.845 What does the debarring official consider in deciding whether 
          to debar me?
1169.850 What is the standard of proof in a debarment action?
1169.855 Who has the burden of proof in a debarment action?
1169.860 What factors may influence the debarring official's decision?
1169.865 How long may my debarment last?
1169.870 When do I know if the debarring official debars me?
1169.875 May I ask the debarring official to reconsider a decision to 
          debar me?
1169.880 What factors may influence the debarring official during 
          reconsideration?
1169.885 May the debarring official extend a debarment?

                          Subpart I_Definitions

1169.900 Adequate evidence.
1169.905 Affiliate.
1169.910 Agency.
1169.915 Agent or representative.
1169.920 Civil judgment.
1169.925 Conviction.
1169.930 Debarment.
1169.935 Debarring official.
1169.940 Disqualified.

[[Page 502]]

1169.945 Excluded or exclusion.
1169.950 Excluded Parties List System.
1169.955 Indictment.
1169.960 Ineligible or ineligibility.
1169.965 Legal proceedings.
1169.970 Nonprocurement transaction.
1169.975 Notice.
1169.980 Participant.
1169.985 Person.
1169.990 Preponderance of the evidence.
1169.995 Principal.
1169.1000 Respondent.
1169.1005 State.
1169.1010 Suspending official.
1169.1015 Suspension.
1169.1020 Voluntary exclusion or voluntarily excluded.

Subpart J [Reserved]

Appendix to Part 1169--Covered Transactions

    Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12698 (3 
CFR, 1989 Comp., p. 235); sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 
U.S.C. 6101 note); 20 U.S.C. 959(a)(1).

    Source: 68 FR 66544, 66637, Nov. 26, 2003, unless otherwise noted.



Sec. 1169.25  How is this part organized?

    (a) This part is subdivided into ten subparts. Each subpart contains 
information related to a broad topic or specific audience with special 
responsibilities, as shown in the following table:

------------------------------------------------------------------------
                                             You will find provisions
            In subpart . . .                     related to . . .
------------------------------------------------------------------------
A......................................  general information about this
                                          rule.
B......................................  the types of NEH transactions
                                          that are covered by the
                                          Governmentwide nonprocurement
                                          suspension and debarment
                                          system.
C......................................  the responsibilities of persons
                                          who participate in covered
                                          transactions.
D......................................  the responsibilities of NEH
                                          officials who are authorized
                                          to enter into covered
                                          transactions.
E......................................  the responsibilities of Federal
                                          agencies for the Excluded
                                          Parties List System
                                          (Disseminated by the General
                                          Services Administration).
F......................................  the general principles
                                          governing suspension,
                                          debarment, voluntary exclusion
                                          and settlement.
G......................................  suspension actions.
H......................................  debarment actions.
I......................................  definitions of terms used in
                                          this part.
J......................................  [Reserved]
------------------------------------------------------------------------

    (b) The following table shows which subparts may be of special 
interest to you, depending on who you are:

------------------------------------------------------------------------
             If you are . . .                   See subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a         A, B, C, and I.
 nonprocurement transaction.
(2) a respondent in a suspension action...  A, B, F, G and I.
(3) a respondent in a debarment action....  A, B, F, H and I.
(4) a suspending official.................  A, B, D, E, F, G and I.
(5) a debarring official..................  A, B, D, E, F, H and I.
(6) a (n) NEH official authorized to enter  A, B, D, E and I.
 into a covered transaction.
(7) Reserved..............................  J.
------------------------------------------------------------------------



Sec. 1169.50  How is this part written?

    (a) This part uses a ``plain language'' format to make it easier for 
the general public and business community to use. The section headings 
and text, often in the form of questions and answers, must be read 
together.
    (b) Pronouns used within this part, such as ``I'' and ``you,'' 
change from subpart to subpart depending on the audience being 
addressed. The pronoun ``we'' always is the NEH.
    (c) The ``Covered Transactions'' diagram in the appendix to this 
part shows the levels or ``tiers'' at which the NEH enforces an 
exclusion under this part.



Sec. 1169.75  Do terms in this part have special meanings?

    This part uses terms throughout the text that have special meaning. 
Those terms are defined in Subpart I of this part. For example, three 
important terms are--
    (a) Exclusion or excluded, which refers only to discretionary 
actions taken by a suspending or debarring official under this part or 
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
    (b) Disqualification or disqualified, which refers to prohibitions 
under specific statutes, executive orders (other than Executive Order 
12549 and Executive Order 12689), or other authorities. 
Disqualifications frequently are not subject to the discretion of an 
agency official, may have a different scope than exclusions, or have 
special conditions that apply to the disqualification; and
    (c) Ineligibility or ineligible, which generally refers to a person 
who is either excluded or disqualified.

[[Page 503]]



                            Subpart A_General



Sec. 1169.100  What does this part do?

    This part adopts a governmentwide system of debarment and suspension 
for NEH nonprocurement activities. It also provides for reciprocal 
exclusion of persons who have been excluded under the Federal 
Acquisition Regulation, and provides for the consolidated listing of all 
persons who are excluded, or disqualified by statute, executive order, 
or other legal authority. This part satisfies the requirements in 
section 3 of Executive Order 12549, ``Debarment and Suspension'' (3 CFR 
1986 Comp., p. 189), Executive Order 12689, ``Debarment and Suspension'' 
(3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public 
Law 103-355, 108 Stat. 3327).



Sec. 1169.105  Does this part apply to me?

    Portions of this part (see table at Sec. 1169.25(b)) apply to you 
if you are a(n)--
    (a) Person who has been, is, or may reasonably be expected to be, a 
participant or principal in a covered transaction;
    (b) Respondent (a person against whom the NEH has initiated a 
debarment or suspension action);
    (c) NEH debarring or suspending official; or
    (d) NEH official who is authorized to enter into covered 
transactions with non-Federal parties.



Sec. 1169.110  What is the purpose of the nonprocurement debarment and 
suspension system?

    (a) To protect the public interest, the Federal Government ensures 
the integrity of Federal programs by conducting business only with 
responsible persons.
    (b) A Federal agency uses the nonprocurement debarment and 
suspension system to exclude from Federal programs persons who are not 
presently responsible.
    (c) An exclusion is a serious action that a Federal agency may take 
only to protect the public interest. A Federal agency may not exclude a 
person or commodity for the purposes of punishment.



Sec. 1169.115  How does an exclusion restrict a person's involvement in 
covered transactions?

    With the exceptions stated in Sec. Sec. 1169.120, 1169.315, and 
1169.420, a person who is excluded by the NEH or any other Federal 
agency may not:
    (a) Be a participant in a(n) NEH transaction that is a covered 
transaction under subpart B of this part;
    (b) Be a participant in a transaction of any other Federal agency 
that is a covered transaction under that agency's regulation for 
debarment and suspension; or
    (c) Act as a principal of a person participating in one of those 
covered transactions.



Sec. 1169.120  May we grant an exception to let an excluded person 
participate in a covered transaction?

    (a) The NEH General Counsel may grant an exception permitting an 
excluded person to participate in a particular covered transaction. If 
the NEH General Counsel grants an exception, the exception must be in 
writing and state the reason(s) for deviating from the governmentwide 
policy in Executive Order 12549.
    (b) An exception granted by one agency for an excluded person does 
not extend to the covered transactions of another agency.



Sec. 1169.125  Does an exclusion under the nonprocurement system affect 
a person's eligibility for Federal procurement contracts?

    If any Federal agency excludes a person under its nonprocurement 
common rule on or after August 25, 1995, the excluded person is also 
ineligible to participate in Federal procurement transactions under the 
FAR. Therefore, an exclusion under this part has reciprocal effect in 
Federal procurement transactions.



Sec. 1169.130  Does exclusion under the Federal procurement system affect 
a person's eligibility to participate in nonprocurement transactions?

    If any Federal agency excludes a person under the FAR on or after 
August 25, 1995, the excluded person is also ineligible to participate 
in nonprocurement covered transactions under this part. Therefore, an 
exclusion under the

[[Page 504]]

FAR has reciprocal effect in Federal nonprocurement transactions.



Sec. 1169.135  May the NEH exclude a person who is not currently 
participating in a nonprocurement transaction?

    Given a cause that justifies an exclusion under this part, we may 
exclude any person who has been involved, is currently involved, or may 
reasonably be expected to be involved in a covered transaction.



Sec. 1169.140  How do I know if a person is excluded?

    Check the Excluded Parties List System (EPLS) to determine whether a 
person is excluded. The General Services Administration (GSA) maintains 
the EPLS and makes it available, as detailed in subpart E of this part. 
When a Federal agency takes an action to exclude a person under the 
nonprocurement or procurement debarment and suspension system, the 
agency enters the information about the excluded person into the EPLS.



Sec. 1169.145  Does this part address persons who are disqualified, as 
well as those who are excluded from nonprocurement transactions?

    Except if provided for in Subpart J of this part, this part--
    (a) Addresses disqualified persons only to--
    (1) Provide for their inclusion in the EPLS; and
    (2) State responsibilities of Federal agencies and participants to 
check for disqualified persons before entering into covered 
transactions.
    (b) Does not specify the--
    (1) NEH transactions for which a disqualified person is ineligible. 
Those transactions vary on a case-by-case basis, because they depend on 
the language of the specific statute, Executive order, or regulation 
that caused the disqualification;
    (2) Entities to which the disqualification applies; or
    (3) Process that the agency uses to disqualify a person. Unlike 
exclusion, disqualification is frequently not a discretionary action 
that a Federal agency takes.



                     Subpart B_Covered Transactions



Sec. 1169.200  What is a covered transaction?

    A covered transaction is a nonprocurement or procurement transaction 
that is subject to the prohibitions of this part. It may be a 
transaction at--
    (a) The primary tier, between a Federal agency and a person (see 
appendix to this part); or
    (b) A lower tier, between a participant in a covered transaction and 
another person.



Sec. 1169.205  Why is it important if a particular transaction is a covered 
transaction?

    The importance of a covered transaction depends upon who you are.
    (a) As a participant in the transaction, you have the 
responsibilities laid out in Subpart C of this part. Those include 
responsibilities to the person or Federal agency at the next higher tier 
from whom you received the transaction, if any. They also include 
responsibilities if you subsequently enter into other covered 
transactions with persons at the next lower tier.
    (b) As a Federal official who enters into a primary tier 
transaction, you have the responsibilities laid out in subpart D of this 
part.
    (c) As an excluded person, you may not be a participant or principal 
in the transaction unless--
    (1) The person who entered into the transaction with you allows you 
to continue your involvement in a transaction that predates your 
exclusion, as permitted under Sec. 1169.310 or Sec. 1169.415; or
    (2) A(n) NEH official obtains an exception from the NEH General 
Counsel to allow you to be involved in the transaction, as permitted 
under Sec. 1169.120.



Sec. 1169.210  Which nonprocurement transactions are covered transactions?

    All nonprocurement transactions, as defined in Sec. 1169.970, are 
covered transactions unless listed in Sec. 1169.215. (See appendix to 
this part.)

[[Page 505]]



Sec. 1169.215  Which nonprocurement transactions are not covered transactions?

    The following types of nonprocurement transactions are not covered 
transactions:
    (a) A direct award to--
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization;
    (3) An entity owned (in whole or in part) or controlled by a foreign 
government; or
    (4) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.
    (b) A benefit 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). For example, if 
a person receives social security benefits under the Supplemental 
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et 
seq., those benefits are not covered transactions and, therefore, are 
not affected if the person is excluded.
    (c) Federal employment.
    (d) A transaction that the NEH needs to respond to a national or 
agency-recognized emergency or disaster.
    (e) A permit, license, certificate, or similar instrument issued as 
a means to regulate public health, safety, or the environment, unless 
the NEH specifically designates it to be a covered transaction.
    (f) An incidental benefit that results from ordinary governmental 
operations.
    (g) Any other transaction if the application of an exclusion to the 
transaction is prohibited by law.



Sec. 1169.220  Are any procurement contracts included as covered transactions?

    (a) Covered transactions under this part--
    (1) Do not include any procurement contracts awarded directly by a 
Federal agency; but
    (2) Do include some procurement contracts awarded by non-Federal 
participants in nonprocurement covered transactions (see appendix to 
this part).
    (b) Specifically, a contract for goods or services is a covered 
transaction if any of the following applies:
    (1) The contract is awarded by a participant in a nonprocurement 
transaction that is covered under Sec. 1169.210, and the amount of the 
contract is expected to equal or exceed $25,000.
    (2) The contract requires the consent of a(n) NEH official. In that 
case, the contract, regardless of the amount, always is a covered 
transaction, and it does not matter who awarded it. For example, it 
could be a subcontract awarded by a contractor at a tier below a 
nonprocurement transaction, as shown in the appendix to this part.
    (3) The contract is for federally-required audit services.



Sec. 1169.225  How do I know if a transaction in which I may participate 
is a covered transaction?

    As a participant in a transaction, you will know that it is a 
covered transaction because the agency regulations governing the 
transaction, the appropriate agency official, or participant at the next 
higher tier who enters into the transaction with you, will tell you that 
you must comply with applicable portions of this part.



    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons



Sec. 1169.300  What must I do before I enter into a covered transaction 
with another person at the next lower tier?

    When you enter into a covered transaction with another person at the 
next lower tier, you must verify that the person with whom you intend to 
do business is not excluded or disqualified. You do this by:
    (a) Checking the EPLS; or
    (b) Collecting a certification from that person if allowed by this 
rule; or
    (c) Adding a clause or condition to the covered transaction with 
that person.

[[Page 506]]



Sec. 1169.305  May I enter into a covered transaction with an excluded 
or disqualified person?

    (a) You as a participant may not enter into a covered transaction 
with an excluded person, unless the NEH grants an exception under Sec. 
1169.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you have obtained an 
exception under the disqualifying statute, Executive order, or 
regulation.



Sec. 1169.310  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?

    (a) You as a participant may continue covered transactions with an 
excluded person if the transactions were in existence when the agency 
excluded the person. However, you are not required to continue the 
transactions, and you may consider termination. You should make a 
decision about whether to terminate and the type of termination action, 
if any, only after a thorough review to ensure that the action is proper 
and appropriate.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, unless the NEH grants an 
exception under Sec. 1169.120.



Sec. 1169.315  May I use the services of an excluded person as a principal 
under a covered transaction?

    (a) You as a participant may continue to use the services of an 
excluded person as a principal under a covered transaction if you were 
using the services of that person in the transaction before the person 
was excluded. However, you are not required to continue using that 
person's services as a principal. You should make a decision about 
whether to discontinue that person's services only after a thorough 
review to ensure that the action is proper and appropriate.
    (b) You may not begin to use the services of an excluded person as a 
principal under a covered transaction unless the NEH grants an exception 
under Sec. 1169.120.



Sec. 1169.320  Must I verify that principals of my covered transactions are 
eligible to participate?

    Yes, you as a participant are responsible for determining whether 
any of your principals of your covered transactions is excluded or 
disqualified from participating in the transaction. You may decide the 
method and frequency by which you do so. You may, but you are not 
required to, check the EPLS.



Sec. 1169.325  What happens if I do business with an excluded person in a 
covered transaction?

    If as a participant you knowingly do business with an excluded 
person, we may disallow costs, annul or terminate the transaction, issue 
a stop work order, debar or suspend you, or take other remedies as 
appropriate.



Sec. 1169.330  What requirements must I pass down to persons at lower tiers 
with whom I intend to do business?

    Before entering into a covered transaction with a participant at the 
next lower tier, you must require that participant to--
    (a) Comply with this subpart as a condition of participation in the 
transaction. You may do so using any method(s), unless Sec. 1169.440 
requires you to use specific methods.
    (b) Pass the requirement to comply with this subpart to each person 
with whom the participant enters into a covered transaction at the next 
lower tier.

            Disclosing Information--Primary Tier Participants



Sec. 1169.335  What information must I provide before entering into a 
covered transaction with the NEH?

    Before you enter into a covered transaction at the primary tier, you 
as the participant must notify the NEH office that is entering into the 
transaction with you, if you know that you or any of the principals for 
that covered transaction:
    (a) Are presently excluded or disqualified;
    (b) Have been convicted within the preceding three years of any of 
the offenses listed in Sec. 1169.800(a) or had a civil judgment 
rendered against you for

[[Page 507]]

one of those offenses within that time period;
    (c) Are presently indicted for or otherwise criminally or civilly 
charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses listed in Sec. 1169.800(a); or
    (d) Have had one or more public transactions (Federal, State, or 
local) terminated within the preceding three years for cause or default.



Sec. 1169.340  If I disclose unfavorable information required under 
Sec. 1169.335, will I be prevented from participating in the transaction?

    As a primary tier participant, your disclosure of unfavorable 
information about yourself or a principal under Sec. 1169.335 will not 
necessarily cause us to deny your participation in the covered 
transaction. We will consider the information when we determine whether 
to enter into the covered transaction. We also will consider any 
additional information or explanation that you elect to submit with the 
disclosed information.



Sec. 1169.345  What happens if I fail to disclose information required 
under Sec. 1169.335?

    If we later determine that you failed to disclose information under 
Sec. 1169.335 that you knew at the time you entered into the covered 
transaction, we may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec. 1169.350  What must I do if I learn of information required under 
Sec. 1169.335 after entering into a covered transaction with the NEH?

    At any time after you enter into a covered transaction, you must 
give immediate written notice to the NEH office with which you entered 
into the transaction if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec. 
1169.335; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. 1169.335.

             Disclosing Information--Lower Tier Participants



Sec. 1169.355  What information must I provide to a higher tier participant 
before entering into a covered transaction with that participant?

    Before you enter into a covered transaction with a person at the 
next higher tier, you as a lower tier participant must notify that 
person if you know that you or any of the principals are presently 
excluded or disqualified.



Sec. 1169.360  What happens if I fail to disclose the information required 
under Sec. 1169.355?

    If we later determine that you failed to tell the person at the 
higher tier that you were excluded or disqualified at the time you 
entered into the covered transaction with that person, we may pursue any 
available remedies, including suspension and debarment.



Sec. 1169.365  What must I do if I learn of information required under 

Sec. 1169.355 after entering into a covered transaction with a higher 
tier participant?

    At any time after you enter into a lower tier covered transaction 
with a person at a higher tier, you must provide immediate written 
notice to that person if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec. 
1169.355; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. 1169.355.



   Subpart D_Responsibilities of NEH Officials Regarding Transactions



Sec. 1169.400  May I enter into a transaction with an excluded or 
disqualified person?

    (a) You as an agency official may not enter into a covered 
transaction with an excluded person unless you obtain an exception under 
Sec. 1169.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you obtain a waiver or 
exception under the statute, Executive order, or regulation that is the 
basis for the person's disqualification.

[[Page 508]]



Sec. 1169.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?

    As an agency official, you may not enter into a covered transaction 
with a participant if you know that a principal of the transaction is 
excluded, unless you obtain an exception under Sec. 1169.120.



Sec. 1169.410  May I approve a participant's use of the services of an 
excluded person?

    After entering into a covered transaction with a participant, you as 
an agency official may not approve a participant's use of an excluded 
person as a principal under that transaction, unless you obtain an 
exception under Sec. 1169.120.



Sec. 1169.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?

    (a) You as an agency official may continue covered transactions with 
an excluded person, or under which an excluded person is a principal, if 
the transactions were in existence when the person was excluded. You are 
not required to continue the transactions, however, and you may consider 
termination. You should make a decision about whether to terminate and 
the type of termination action, if any, only after a thorough review to 
ensure that the action is proper.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an 
excluded person is a principal, unless you obtain an exception under 
Sec. 1169.120.



Sec. 1169.420  May I approve a transaction with an excluded or disqualified 
person at a lower tier?

    If a transaction at a lower tier is subject to your approval, you as 
an agency official may not approve--
    (a) A covered transaction with a person who is currently excluded, 
unless you obtain an exception under Sec. 1169.120; or
    (b) A transaction with a person who is disqualified from that 
transaction, unless you obtain a waiver or exception under the statute, 
Executive order, or regulation that is the basis for the person's 
disqualification.



Sec. 1169.425  When do I check to see if a person is excluded or 
disqualified?

    As an agency official, you must check to see if a person is excluded 
or disqualified before you--
    (a) Enter into a primary tier covered transaction;
    (b) Approve a principal in a primary tier covered transaction;
    (c) Approve a lower tier participant if agency approval of the lower 
tier participant is required; or
    (d) Approve a principal in connection with a lower tier transaction 
if agency approval of the principal is required.



Sec. 1169.430  How do I check to see if a person is excluded or disqualified?

    You check to see if a person is excluded or disqualified in two 
ways:
    (a) You as an agency official must check the EPLS when you take any 
action listed in Sec. 1169.425.
    (b) You must review information that a participant gives you, as 
required by Sec. 1169.335, about its status or the status of the 
principals of a transaction.



Sec. 1169.435  What must I require of a primary tier participant?

    You as an agency official must require each participant in a primary 
tier covered transaction to--
    (a) Comply with subpart C of this part as a condition of 
participation in the transaction; and
    (b) Communicate the requirement to comply with Subpart C of this 
part to persons at the next lower tier with whom the primary tier 
participant enters into covered transactions.



Sec. 1169.440  What method do I use to communicate those requirements to 
participants?

    To communicate the requirements, you must include a term or 
condition in the transaction requiring the participants' compliance with 
subpart C of this part and requiring them to include a similar term or 
condition in lower-tier covered transactions.

[[Page 509]]



Sec. 1169.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?

    If a participant knowingly does business with an excluded or 
disqualified person, you as an agency official may refer the matter for 
suspension and debarment consideration. You may also disallow costs, 
annul or terminate the transaction, issue a stop work order, or take any 
other appropriate remedy.



Sec. 1169.450  What action may I take if a primary tier participant 
fails to disclose the information required under Sec. 1169.335?

    If you as an agency official determine that a participant failed to 
disclose information, as required by Sec. 1169.335, at the time it 
entered into a covered transaction with you, you may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec. 1169.455  What may I do if a lower tier participant fails to 

disclose the information required under Sec. 1169.355 to the next 
higher tier?

    If you as an agency official determine that a lower tier participant 
failed to disclose information, as required by Sec. 1169.355, at the 
time it entered into a covered transaction with a participant at the 
next higher tier, you may pursue any remedies available to you, 
including the initiation of a suspension or debarment action.



                 Subpart E_Excluded Parties List System



Sec. 1169.500  What is the purpose of the Excluded Parties List System 
(EPLS)?

    The EPLS is a widely available source of the most current 
information about persons who are excluded or disqualified from covered 
transactions.



Sec. 1169.505  Who uses the EPLS?

    (a) Federal agency officials use the EPLS to determine whether to 
enter into a transaction with a person, as required under Sec. 
1169.430.
    (b) Participants also may, but are not required to, use the EPLS to 
determine if--
    (1) Principals of their transactions are excluded or disqualified, 
as required under Sec. 1169.320; or
    (2) Persons with whom they are entering into covered transactions at 
the next lower tier are excluded or disqualified.
    (c) The EPLS is available to the general public.



Sec. 1169.510  Who maintains the EPLS?

    In accordance with the OMB guidelines, the General Services 
Administration (GSA) maintains the EPLS. When a Federal agency takes an 
action to exclude a person under the nonprocurement or procurement 
debarment and suspension system, the agency enters the information about 
the excluded person into the EPLS.



Sec. 1169.515  What specific information is in the EPLS?

    (a) At a minimum, the EPLS indicates--
    (1) The full name (where available) and address of each excluded or 
disqualified person, in alphabetical order, with cross references if 
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 the action;
    (6) The agency and name and telephone number of the agency point of 
contact for the action; and
    (7) The Dun and Bradstreet Number (DUNS), or other similar code 
approved by the GSA, of the excluded or disqualified person, if 
available.
    (b)(1) The database for the EPLS includes a field for the Taxpayer 
Identification Number (TIN) (the social security number (SSN) for an 
individual) of an excluded or disqualified person.
    (2) Agencies disclose the SSN of an individual to verify the 
identity of an individual, only if permitted under the Privacy Act of 
1974 and, if appropriate, the Computer Matching and Privacy Protection 
Act of 1988, as codified in 5 U.S.C. 552(a).

[[Page 510]]



Sec. 1169.520  Who places the information into the EPLS?

    Federal officials who take actions to exclude persons under this 
part or officials who are responsible for identifying disqualified 
persons must enter the following information about those persons into 
the EPLS:
    (a) Information required by Sec. 1169.515(a);
    (b) The Taxpayer Identification Number (TIN) of the excluded or 
disqualified person, including the social security number (SSN) for an 
individual, if the number is available and may be disclosed under law;
    (c) Information about an excluded or disqualified person, generally 
within five working days, after--
    (1) Taking an exclusion action;
    (2) Modifying or rescinding an exclusion action;
    (3) Finding that a person is disqualified; or
    (4) Finding that there has been a change in the status of a person 
who is listed as disqualified.



Sec. 1169.525  Whom do I ask if I have questions about a person in the 
EPLS?

    If you have questions about a person in the EPLS, ask the point of 
contact for the Federal agency that placed the person's name into the 
EPLS. You may find the agency point of contact from the EPLS.



Sec. 1169.530  Where can I find the EPLS?

    (a) You may access the EPLS through the Internet, currently at 
http://epls.arnet.gov.
    (b) As of November 26, 2003, you may also subscribe to a printed 
version. However, we anticipate discontinuing the printed version. Until 
it is discontinued, you may obtain the printed version by purchasing a 
yearly subscription from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402, or by calling the 
Government Printing Office Inquiry and Order Desk at (202) 783-3238.



   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions



Sec. 1169.600  How do suspension and debarment actions start?

    When we receive information from any source concerning a cause for 
suspension or debarment, we will promptly report and investigate it. We 
refer the question of whether to suspend or debar you to our suspending 
or debarring official for consideration, if appropriate.



Sec. 1169.605  How does suspension differ from debarment?

    Suspension differs from debarment in that--

------------------------------------------------------------------------
        A suspending official . . .          A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary       Imposes debarment for a
 status of ineligibility for procurement     specified period as a final
 and nonprocurement transactions, pending    determination that a person
 completion of an investigation or legal     is not presently
 proceedings.                                responsible.
(b) Must--................................  Must conclude, based on a
(1) Have adequate evidence that there may    preponderance of the
 be a cause for debarment of a person; and.  evidence, that the person
(2) Conclude that immediate action is        has engaged in conduct that
 necessary to protect the Federal interest.  warrants debarment.
(c) Usually imposes the suspension first,   Imposes debarment after
 and then promptly notifies the suspended    giving the respondent
 person, giving the person an opportunity    notice of the action and an
 to contest the suspension and have it       opportunity to contest the
 lifted.                                     proposed debarment.
------------------------------------------------------------------------



Sec. 1169.610  What procedures does the NEH use in suspension and debarment 
actions?

    In deciding whether to suspend or debar you, we handle the actions 
as informally as practicable, consistent with principles of fundamental 
fairness.
    (a) For suspension actions, we use the procedures in this subpart 
and subpart G of this part.
    (b) For debarment actions, we use the procedures in this subpart and 
subpart H of this part.

[[Page 511]]



Sec. 1169.615  How does the NEH notify a person of a suspension or debarment 
action?

    (a) The suspending or debarring official sends a written notice to 
the last known street address, facsimile number, or e-mail address of--
    (1) You or your identified counsel; or
    (2) Your agent for service of process, or any of your partners, 
officers, directors, owners, or joint venturers.
    (b) The notice is effective if sent to any of these persons.



Sec. 1169.620  Do Federal agencies coordinate suspension and debarment 
actions?

    Yes, when more than one Federal agency has an interest in a 
suspension or debarment, the agencies may consider designating one 
agency as the lead agency for making the decision. Agencies are 
encouraged to establish methods and procedures for coordinating their 
suspension and debarment actions.



Sec. 1169.625  What is the scope of a suspension or debarment?

    If you are suspended or debarred, the suspension or debarment is 
effective as follows:
    (a) Your suspension or debarment constitutes suspension or debarment 
of all of your divisions and other organizational elements from all 
covered transactions, unless the suspension or debarment decision is 
limited--
    (1) By its terms to one or more specifically identified individuals, 
divisions, or other organizational elements; or
    (2) To specific types of transactions.
    (b) Any affiliate of a participant may be included in a suspension 
or debarment action if the suspending or debarring official--
    (1) Officially names the affiliate in the notice; and
    (2) Gives the affiliate an opportunity to contest the action.



Sec. 1169.630  May the NEH impute conduct of one person to another?

    For purposes of actions taken under this rule, we may impute conduct 
as follows:
    (a) Conduct imputed from an individual to an organization. We may 
impute the fraudulent, criminal, or other improper conduct of any 
officer, director, shareholder, partner, employee, or other individual 
associated with an organization, to that organization when the improper 
conduct occurred in connection with the individual's performance of 
duties for or on behalf of that organization, or with the organization's 
knowledge, approval or acquiescence. The organization's acceptance of 
the benefits derived from the conduct is evidence of knowledge, approval 
or acquiescence.
    (b) Conduct imputed from an organization to an individual, or 
between individuals. We may impute the fraudulent, criminal, or other 
improper conduct of any organization to an individual, or from one 
individual to another individual, if the individual to whom the improper 
conduct is imputed either participated in, had knowledge of, or reason 
to know of the improper conduct.
    (c) Conduct imputed from one organization to another organization. 
We may impute the fraudulent, criminal, or other improper conduct of one 
organization to another organization when the improper conduct occurred 
in connection with a partnership, joint venture, joint application, 
association or similar arrangement, or when the organization to whom the 
improper conduct is imputed has the power to direct, manage, control or 
influence the activities of the organization responsible for the 
improper conduct. Acceptance of the benefits derived from the conduct is 
evidence of knowledge, approval or acquiescence.



Sec. 1169.635  May the NEH settle a debarment or suspension action?

    Yes, we may settle a debarment or suspension action at any time if 
it is in the best interest of the Federal Government.



Sec. 1169.640  May a settlement include a voluntary exclusion?

    Yes, if we enter into a settlement with you in which you agree to be 
excluded, it is called a voluntary exclusion and has governmentwide 
effect.

[[Page 512]]



Sec. 1169.645  Do other Federal agencies know if the NEH agrees to a 
voluntary exclusion?

    (a) Yes, we enter information regarding a voluntary exclusion into 
the EPLS.
    (b) Also, any agency or person may contact us to find out the 
details of a voluntary exclusion.



                          Subpart G_Suspension



Sec. 1169.700  When may the suspending official issue a suspension?

    Suspension is a serious action. Using the procedures of this subpart 
and subpart F of this part, the suspending official may impose 
suspension only when that official determines that--
    (a) There exists an indictment for, or other adequate evidence to 
suspect, an offense listed under Sec. 1169.800(a), or
    (b) There exists adequate evidence to suspect any other cause for 
debarment listed under Sec. 1169.800(b) through (d); and
    (c) Immediate action is necessary to protect the public interest.



Sec. 1169.705  What does the suspending official consider in issuing a 
suspension?

    (a) In determining the adequacy of the evidence to support the 
suspension, the suspending official considers 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. During this assessment, the suspending 
official may examine the basic documents, including grants, cooperative 
agreements, loan authorizations, contracts, and other relevant 
documents.
    (b) An indictment, conviction, civil judgment, or other official 
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of 
suspension actions.
    (c) In deciding whether immediate action is needed to protect the 
public interest, the suspending official has wide discretion. For 
example, the suspending official may infer the necessity for immediate 
action to protect the public interest either from the nature of the 
circumstances giving rise to a cause for suspension or from potential 
business relationships or involvement with a program of the Federal 
Government.



Sec. 1169.710  When does a suspension take effect?

    A suspension is effective when the suspending official signs the 
decision to suspend.



Sec. 1169.715  What notice does the suspending official give me if I am 
suspended?

    After deciding to suspend you, the suspending official promptly 
sends you a Notice of Suspension advising you--
    (a) That you have been suspended;
    (b) That your suspension is based on--
    (1) An indictment;
    (2) A conviction;
    (3) Other adequate evidence that you have committed irregularities 
which seriously reflect on the propriety of further Federal Government 
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your 
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on 
notice without disclosing the Federal Government's evidence;
    (d) Of the cause(s) upon which we relied under Sec. 1169.700 for 
imposing suspension;
    (e) That your suspension is for a temporary period pending the 
completion of an investigation or resulting legal or debarment 
proceedings;
    (f) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other NEH procedures governing suspension decision making; 
and
    (g) Of the governmentwide effect of your suspension from procurement 
and nonprocurement programs and activities.



Sec. 1169.720  How may I contest a suspension?

    If you as a respondent wish to contest a suspension, you or your 
representative must provide the suspending official with information in 
opposition to the suspension. You may

[[Page 513]]

do this orally or in writing, but any information provided orally that 
you consider important must also be submitted in writing for the 
official record.



Sec. 1169.725  How much time do I have to contest a suspension?

    (a) As a respondent you or your representative must either send, or 
make rrangements to appear and present, the information and argument to 
the suspending official within 30 days after you receive the Notice of 
Suspension.
    (b) We consider the notice to be received by you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec. 1169.730  What information must I provide to the suspending official 
if I contest a suspension?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the suspending official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Suspension. A general denial is insufficient to raise a 
genuine dispute over facts material to the suspension;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, state, 
or local agencies, including administrative agreements that affect only 
those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Suspension that grew out of facts relevant to the cause(s) stated in the 
notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the NEH may seek further criminal, civil or administrative 
action against you, as appropriate.



Sec. 1169.735  Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the suspending official determines that--
    (1) Your suspension is based upon an indictment, conviction, civil 
judgment, or other finding by a Federal, State, or local body for which 
an opportunity to contest the facts was provided;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Suspension;
    (3) The issues raised in your presentation in opposition to the 
suspension are not factual in nature, or are not material to the 
suspending official's initial decision to suspend, or the official's 
decision whether to continue the suspension; or
    (4) On the basis of advice from the Department of Justice, an office 
of the United States Attorney, a State attorney general's office, or a 
State or local prosecutor's office, that substantial interests of the 
government in pending or contemplated legal proceedings based on the 
same facts as the suspension would be prejudiced by conducting fact-
finding.
    (b) You will have an opportunity to challenge the facts if the 
suspending official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the suspension.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the suspending official or designee must conduct 
additional proceedings to resolve those facts.



Sec. 1169.740  Are suspension proceedings formal?

    (a) Suspension proceedings are conducted in a fair and informal 
manner. The suspending official may use flexible procedures to allow you 
to present matters in opposition. In so doing, the suspending official 
is not required to follow formal rules of evidence or procedure in 
creating an official record

[[Page 514]]

upon which the official will base a final suspension decision.
    (b) You as a respondent or your representative must submit any 
documentary evidence you want the suspending official to consider.



Sec. 1169.745  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the NEH agree to waive it in advance. If 
you want a copy of the transcribed record, you may purchase it.



Sec. 1169.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?

    (a) The suspending official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the suspending official's initial 
decision to suspend you;
    (2) Any further information and argument presented in support of, or 
opposition to, the suspension; and
    (3) Any transcribed record of fact-finding proceedings.
    (b) The suspending official may refer disputed material facts to 
another official for findings of fact. The suspending official may 
reject any resulting findings, in whole or in part, only after 
specifically determining them to be arbitrary, capricious, or clearly 
erroneous.



Sec. 1169.755  When will I know whether the suspension is continued or 
terminated?

    The suspending official must make a written decision whether to 
continue, modify, or terminate your suspension within 45 days of closing 
the official record. The official record closes upon the suspending 
official's receipt of final submissions, information and findings of 
fact, if any. The suspending official may extend that period for good 
cause.



Sec. 1169.760  How long may my suspension last?

    (a) If legal or debarment proceedings are initiated at the time of, 
or during your suspension, the suspension may continue until the 
conclusion of those proceedings. However, if proceedings are not 
initiated, a suspension may not exceed 12 months.
    (b) The suspending official may extend the 12 month limit under 
paragraph (a) of this section for an additional 6 months if an office of 
a U.S. Assistant Attorney General, U.S. Attorney, or other responsible 
prosecuting official requests an extension in writing. In no event may a 
suspension exceed 18 months without initiating proceedings under 
paragraph (a) of this section.
    (c) The suspending official must notify the appropriate officials 
under paragraph (b) of this section of an impending termination of a 
suspension at least 30 days before the 12 month period expires to allow 
the officials an opportunity to request an extension.



                           Subpart H_Debarment



Sec. 1169.800  What are the causes for debarment?

    We may debar a person 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, tax 
evasion, 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 your 
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so 
serious as

[[Page 515]]

to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, or a procurement debarment by any Federal agency taken 
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
    (2) Knowingly doing business with an ineligible person, except as 
permitted under Sec. 1169.120;
    (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. 1169.640 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it 
affects your present responsibility.



Sec. 1169.805  What notice does the debarring official give me if I am 
proposed for debarment?

    After consideration of the causes in Sec. 1169.800 of this subpart, 
if the debarring official proposes to debar you, the official sends you 
a Notice of Proposed Debarment, pursuant to Sec. 1169.615, advising 
you--
    (a) That the debarring official is considering debarring you;
    (b) Of the reasons for proposing to debar you in terms sufficient to 
put you on notice of the conduct or transactions upon which the proposed 
debarment is based;
    (c) Of the cause(s) under Sec. 1169.800 upon which the debarring 
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other NEH procedures governing debarment; and
    (e) Of the governmentwide effect of a debarment from procurement and 
nonprocurement programs and activities.



Sec. 1169.810  When does a debarment take effect?

    A debarment is not effective until the debarring official issues a 
decision. The debarring official does not issue a decision until the 
respondent has had an opportunity to contest the proposed debarment.



Sec. 1169.815  How may I contest a proposed debarment?

    If you as a respondent wish to contest a proposed debarment, you or 
your representative must provide the debarring official with information 
in opposition to the proposed debarment. You may do this orally or in 
writing, but any information provided orally that you consider important 
must also be submitted in writing for the official record.



Sec. 1169.820  How much time do I have to contest a proposed debarment?

    (a) As a respondent you or your representative must either send, or 
make arrangements to appear and present, the information and argument to 
the debarring official within 30 days after you receive the Notice of 
Proposed Debarment.
    (b) We consider the Notice of Proposed Debarment to be received by 
you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.

[[Page 516]]



Sec. 1169.825  What information must I provide to the debarring official 
if I contest a proposed debarment?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the debarring official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Proposed Debarment. Include any information about any of the 
factors listed in Sec. 1169.860. A general denial is insufficient to 
raise a genuine dispute over facts material to the debarment;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, State, 
or local agencies, including administrative agreements that affect only 
those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Proposed Debarment that grew out of facts relevant to the cause(s) 
stated in the notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the NEH may seek further criminal, civil or administrative 
action against you, as appropriate.



Sec. 1169.830  Under what conditions do I get an additional opportunity 
to challenge the facts on which a proposed debarment is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the debarring official determines that--
    (1) Your debarment is based upon a conviction or civil judgment;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Proposed Debarment; or
    (3) The issues raised in your presentation in opposition to the 
proposed debarment are not factual in nature, or are not material to the 
debarring official's decision whether to debar.
    (b) You will have an additional opportunity to challenge the facts 
if the debarring official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the proposed debarment.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the debarring official or designee must conduct 
additional proceedings to resolve those facts.



Sec. 1169.835  Are debarment proceedings formal?

    (a) Debarment proceedings are conducted in a fair and informal 
manner. The debarring official may use flexible procedures to allow you 
as a respondent to present matters in opposition. In so doing, the 
debarring official is not required to follow formal rules of evidence or 
procedure in creating an official record upon which the official will 
base the decision whether to debar.
    (b) You or your representative must submit any documentary evidence 
you want the debarring official to consider.



Sec. 1169.840  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the NEH agree to waive it in advance. If 
you want a copy of the transcribed record, you may purchase it.



Sec. 1169.845  What does the debarring official consider in deciding 
whether to debar me?

    (a) The debarring official may debar you for any of the causes in 
Sec. 1169.800. However, the official need not debar you even if a cause 
for debarment exists. The official may consider the seriousness of your 
acts or omissions and the mitigating or aggravating factors set forth at 
Sec. 1169.860.
    (b) The debarring official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the debarring official's proposed 
debarment;

[[Page 517]]

    (2) Any further information and argument presented in support of, or 
in opposition to, the proposed debarment; and
    (3) Any transcribed record of fact-finding proceedings.
    (c) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any resultant findings, in whole or in part, only after specifically 
determining them to be arbitrary, capricious, or clearly erroneous.



Sec. 1169.850  What is the standard of proof in a debarment action?

    (a) In any debarment action, we must establish the cause for 
debarment by a preponderance of the evidence.
    (b) If the proposed debarment is based upon a conviction or civil 
judgment, the standard of proof is met.



Sec. 1169.855  Who has the burden of proof in a debarment action?

    (a) We have the burden to prove that a cause for debarment exists.
    (b) Once a cause for debarment is established, you as a respondent 
have the burden of demonstrating to the satisfaction of the debarring 
official that you are presently responsible and that debarment is not 
necessary.



Sec. 1169.860  What factors may influence the debarring official's decision?

    This section lists the mitigating and aggravating factors that the 
debarring official may consider in determining whether to debar you and 
the length of your debarment period. The debarring official may consider 
other factors if appropriate in light of the circumstances of a 
particular case. The existence or nonexistence of any factor, such as 
one of those set forth in this section, is not necessarily determinative 
of your present responsibility. In making a debarment decision, the 
debarring official may consider the following factors:
    (a) The actual or potential harm or impact that results or may 
result from the wrongdoing.
    (b) The frequency of incidents and/or duration of the wrongdoing.
    (c) Whether there is a pattern or prior history of wrongdoing. For 
example, if you have been found by another Federal agency or a State 
agency to have engaged in wrongdoing similar to that found in the 
debarment action, the existence of this fact may be used by the 
debarring official in determining that you have a pattern or prior 
history of wrongdoing.
    (d) Whether you are or have been excluded or disqualified by an 
agency of the Federal Government or have not been allowed to participate 
in State or local contracts or assistance agreements on a basis of 
conduct similar to one or more of the causes for debarment specified in 
this part.
    (e) Whether you have entered into an administrative agreement with a 
Federal agency or a State or local government that is not governmentwide 
but is based on conduct similar to one or more of the causes for 
debarment specified in this part.
    (f) Whether and to what extent you planned, initiated, or carried 
out the wrongdoing.
    (g) Whether you have accepted responsibility for the wrongdoing and 
recognize the seriousness of the misconduct that led to the cause for 
debarment.
    (h) Whether you have paid or agreed to pay all criminal, civil and 
administrative liabilities for the improper activity, including any 
investigative or administrative costs incurred by the government, and 
have made or agreed to make full restitution.
    (i) Whether you have cooperated fully with the government agencies 
during the investigation and any court or administrative action. In 
determining the extent of cooperation, the debarring official may 
consider when the cooperation began and whether you disclosed all 
pertinent information known to you.
    (j) Whether the wrongdoing was pervasive within your organization.
    (k) The kind of positions held by the individuals involved in the 
wrongdoing.
    (l) Whether your organization took appropriate corrective action or 
remedial measures, such as establishing ethics training and implementing 
programs to prevent recurrence.
    (m) Whether your principals tolerated the offense.

[[Page 518]]

    (n) Whether you brought the activity cited as a basis for the 
debarment to the attention of the appropriate government agency in a 
timely manner.
    (o) Whether you have fully investigated the circumstances 
surrounding the cause for debarment and, if so, made the result of the 
investigation available to the debarring official.
    (p) Whether you had effective standards of conduct and internal 
control systems in place at the time the questioned conduct occurred.
    (q) Whether you have taken appropriate disciplinary action against 
the individuals responsible for the activity which constitutes the cause 
for debarment.
    (r) Whether you have had adequate time to eliminate the 
circumstances within your organization that led to the cause for the 
debarment.
    (s) Other factors that are appropriate to the circumstances of a 
particular case.



Sec. 1169.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of 
debarment will be based on the seriousness of the cause(s) upon which 
your debarment is based. Generally, debarment should not exceed three 
years. However, if circumstances warrant, the debarring official may 
impose a longer period of debarment.
    (b) In determining the period of debarment, the debarring official 
may consider the factors in Sec. 1169.860. If a suspension has preceded 
your debarment, the debarring official must consider the time you were 
suspended.
    (c) If the debarment is for a violation of the provisions of the 
Drug-Free Workplace Act of 1988, your period of debarment may not exceed 
five years.



Sec. 1169.870  When do I know if the debarring official debars me?

    (a) The debarring official must make a written decision whether to 
debar within 45 days of closing the official record. The official record 
closes upon the debarring official's receipt of final submissions, 
information and findings of fact, if any. The debarring official may 
extend that period for good cause.
    (b) The debarring official sends you written notice, pursuant to 
Sec. 1169.615 that the official decided, either--
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective 
dates; and
    (iv) Advises you that your debarment is effective for covered 
transactions and contracts that are subject to the Federal Acquisition 
Regulation (48 CFR chapter 1), throughout the executive branch of the 
Federal Government unless an agency head or an authorized designee 
grants an exception.



Sec. 1169.875  May I ask the debarring official to reconsider a decision to 
debar me?

    Yes, as a debarred person you may ask the debarring official to 
reconsider the debarment decision or to reduce the time period or scope 
of the debarment. However, you must put your request in writing and 
support it with documentation.



Sec. 1169.880  What factors may influence the debarring official during 
reconsideration?

    The debarring official may reduce or terminate your debarment based 
on--
    (a) Newly discovered material evidence;
    (b) A reversal of the conviction or civil judgment upon which your 
debarment was based;
    (c) A bona fide change in ownership or management;
    (d) Elimination of other causes for which the debarment was imposed; 
or
    (e) Other reasons the debarring official finds appropriate.



Sec. 1169.885  May the debarring official extend a debarment?

    (a) Yes, the debarring official may extend a debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest.
    (b) However, the debarring official may not extend a debarment 
solely on

[[Page 519]]

the basis of the facts and circumstances upon which the initial 
debarment action was based.
    (c) If the debarring official decides that a debarment for an 
additional period is necessary, the debarring official must follow the 
applicable procedures in this subpart, and subpart F of this part, to 
extend the debarment.



                          Subpart I_Definitions



Sec. 1169.900  Adequate evidence.

    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.



Sec. 1169.905  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. The ways we use to 
determine control include, but are not limited to--
    (a) Interlocking management or ownership;
    (b) Identity of interests among family members;
    (c) Shared facilities and equipment;
    (d) Common use of employees; or
    (e) A business entity which has been organized following the 
exclusion of a person which has the same or similar management, 
ownership, or principal employees as the excluded person.



Sec. 1169.910  Agency.

    Agency means any United States executive department, military 
department, defense agency, or any other agency of the executive branch. 
Other agencies of the Federal government are not considered ``agencies'' 
for the purposes of this part unless they issue regulations adopting the 
governmentwide Debarment and Suspension system under Executive orders 
12549 and 12689.



Sec. 1169.915  Agent or representative.

    Agent or representative means any person who acts on behalf of, or 
who is authorized to commit, a participant in a covered transaction.



Sec. 1169.920  Civil judgment.

    Civil judgment means the disposition of a civil action by any court 
of competent jurisdiction, whether by verdict, decision, settlement, 
stipulation, other disposition which creates a civil liability for the 
complained of wrongful acts, or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).



Sec. 1169.925  Conviction.

    Conviction means--
    (a) A judgment or any other determination of guilt of a criminal 
offense by any court of competent jurisdiction, whether entered upon a 
verdict or plea, including a plea of nolo contendere; or
    (b) Any other resolution that is the functional equivalent of a 
judgment, including probation before judgment and deferred prosecution. 
A disposition without the participation of the court is the functional 
equivalent of a judgment only if it includes an admission of guilt.



Sec. 1169.930  Debarment.

    Debarment means an action taken by a debarring official under 
subpart H of this part to exclude a person from participating in covered 
transactions and transactions covered under the Federal Acquisition 
Regulation (48 CFR chapter 1). A person so excluded is debarred.



Sec. 1169.935  Debarring official.

    (a) Debarring official means an agency official who is authorized to 
impose debarment. A debarring official is either--
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 1169.940  Disqualified.

    Disqualified means that a person is prohibited from participating in 
specified Federal procurement or nonprocurement transactions as required 
under a statute, Executive order (other than Executive Orders 12549 and 
12689) or other authority. Examples of disqualifications include persons 
prohibited under--

[[Page 520]]

    (a) The Davis-Bacon Act (40 U.S.C. 276(a));
    (b) The equal employment opportunity acts and Executive orders; or
    (c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C. 
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).



Sec. 1169.945  Excluded or exclusion.

    Excluded or exclusion means--
    (a) That a person or commodity is prohibited from being a 
participant in covered transactions, whether the person has been 
suspended; debarred; proposed for debarment under 48 CFR part 9, subpart 
9.4; voluntarily excluded; or
    (b) The act of excluding a person.



Sec. 1169.950  Excluded Parties List System

    Excluded Parties List System (EPLS) means the list maintained and 
disseminated by the General Services Administration (GSA) containing the 
names and other information about persons who are ineligible. The EPLS 
system includes the printed version entitled, ``List of Parties Excluded 
or Disqualified from Federal Procurement and Nonprocurement Programs,'' 
so long as published.



Sec. 1169.955  Indictment.

    Indictment means an indictment for a criminal offense. A 
presentment, information, or other filing by a competent authority 
charging a criminal offense shall be given the same effect as an 
indictment.



Sec. 1169.960  Ineligible or ineligibility.

    Ineligible or ineligibility means that a person or commodity is 
prohibited from covered transactions because of an exclusion or 
disqualification.



Sec. 1169.965  Legal proceedings.

    Legal proceedings means any criminal proceeding or any civil 
judicial proceeding, including a proceeding under the Program Fraud 
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal 
Government or a State or local government or quasi-governmental 
authority is a party. The term also includes appeals from those 
proceedings.



Sec. 1169.970  Nonprocurement transaction.

    (a) Nonprocurement transaction means any transaction, regardless of 
type (except procurement contracts), including, but not limited to the 
following:
    (1) Grants.
    (2) Cooperative agreements.
    (3) Scholarships.
    (4) Fellowships.
    (5) Contracts of assistance.
    (6) Loans.
    (7) Loan guarantees.
    (8) Subsidies.
    (9) Insurances.
    (10) Payments for specified uses.
    (11) Donation agreements.
    (b) A nonprocurement transaction at any tier does not require the 
transfer of Federal funds.



Sec. 1169.975  Notice.

    Notice means a written communication served in person, sent by 
certified mail or its equivalent, or sent electronically by e-mail or 
facsimile. (See Sec. 1169. 615.)



Sec. 1169.980  Participant.

    Participant means any person who submits a proposal for or who 
enters into a covered transaction, including an agent or representative 
of a participant.



Sec. 1169.985  Person.

    Person means any individual, corporation, partnership, association, 
unit of government, or legal entity, however organized.



Sec. 1169.990  Preponderance of the evidence.

    Preponderance of the evidence means proof by information that, 
compared with information opposing it, leads to the conclusion that the 
fact at issue is more probably true than not.



Sec. 1169.995  Principal.

    Principal means--
    (a) An officer, director, owner, partner, principal investigator, or 
other person within a participant with management or supervisory 
responsibilities related to a covered transaction; or
    (b) A consultant or other person, whether or not employed by the 
participant or paid with Federal funds, who--

[[Page 521]]

    (1) Is in a position to handle Federal funds;
    (2) Is in a position to influence or control the use of those funds; 
or,
    (3) Occupies a technical or professional position capable of 
substantially influencing the development or outcome of an activity 
required to perform the covered transaction.



Sec. 1169.1000  Respondent.

    Respondent means a person against whom an agency has initiated a 
debarment or suspension action.



Sec. 1169.1005  State.

    (a) State means--
    (1) Any of the states of the United States;
    (2) The District of Columbia;
    (3) The Commonwealth of Puerto Rico;
    (4) Any territory or possession of the United States; or
    (5) Any agency or instrumentality of a state.
    (b) For purposes of this part, State does not include institutions 
of higher education, hospitals, or units of local government.



Sec. 1169.1010  Suspending official.

    (a) Suspending official means an agency official who is authorized 
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 1169.1015  Suspension.

    Suspension is an action taken by a suspending official under subpart 
G of this part that immediately prohibits a person from participating in 
covered transactions and transactions covered under the Federal 
Acquisition Regulation (48 CFR chapter 1) for a temporary period, 
pending completion of an agency investigation and any judicial or 
administrative proceedings that may ensue. A person so excluded is 
suspended.



Sec. 1169.1020  Voluntary exclusion or voluntarily excluded.

    (a) Voluntary exclusion means a person's agreement to be excluded 
under the terms of a settlement between the person and one or more 
agencies. Voluntary exclusion must have governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has agreed 
to a voluntary exclusion.

Subpart J--[Reserved]

[[Page 522]]

               Appendix to Part 1169--Covered Transactions
[GRAPHIC] [TIFF OMITTED] TR26NO03.000



PART 1170_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN FEDERALLY ASSISTED 
PROGRAMS OR ACTIVITIES--Table of Contents




                      Subpart A_General Provisions

Sec.
1170.1 Purpose.
1170.2 Application.
1170.3 Definitions.
1170.4 Effect of State or local law or other requirements and effect of 
          employment opportunities.
1170.5-1170.10 [Reserved]

                   Subpart B-Discrimination Prohibited

1170.11 General prohibition against discrimination.
1170.12 Discriminatory actions prohibited.
1170.13 Illustrative examples.
1170.14-1170.20 [Reserved]

                     Subpart C_Employment Practices

1170.21 Discrimination prohibited.
1170.22 Reasonable accommodation.
1170.23 Employment criteria.
1170.24 Preemployment inquiries.
1170.25-1170.30 [Reserved]

                         Subpart D_Accessibility

1170.31 Discrimination prohibited.
1170.32 Existing facilities.
1170.33 New construction.
1170.34 Historic properties. [Reserved]
1170.35-1170.40 [Reserved]

                    Subpart E_Postsecondary Education

1170.41 Application of this subpart.
1170.42 Admissions and recruitment.
1170.43 Treatment of students; general.

[[Page 523]]

1170.44 Academic adjustments.
1170.45 Housing.
1170.46 Financial and employment assistance to students.
1170.47 Nonacademic services.
1170.48-1170.50 [Reserved]

                          Subpart F_Enforcement

1170.51 Assurances required.
1170.52 Remedial action, voluntary action, and self-evaluation.
1170.53 Designation of responsible employee and adoption of grievance 
          procedures.
1170.54 Notice.
1170.55 Endowment enforcement and compliance procedures.
1170.56-1170.99 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 46 FR 55897, Nov. 12, 1981, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1170.1  Purpose.

    The purpose of this part is to implement section 504 of the 
Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance.



Sec. 1170.2  Application.

    This part applies to each recipient of Federal financial assistance 
from the National Endowment for the Humanities and to each program or 
activity that receives such assistance.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.3  Definitions.

    As used in this part:
    (a) Section 504 means section 504 of the Rehabilitation Act of 1973, 
Pub. L. 93-112, as amended by the Rehabilitation Act Amendments of 1974, 
Pub. L. 93-516, 29 U.S.C. 794 et seq. by the Rehabilitation, 
Comprehensive Services Developmental Disabilities Amendments of 1978, 
Pub. L. 95-602, and by the Civil Rights Restoration Act of 1987, Pub. L. 
100-259.
    (b) The term Endowment or the term agency means the National 
Endowment for the Humanities.
    (c) The term Chairman means the Chairman of the National Endowment 
for the Humanities.
    (d) The term responsible Endowment official with respect to any 
program or activity receiving Federal financial assistance means the 
Chairman of the Endowment, the Director of the Office of Equal 
Employment Opportunity, or other Endowment official designated by the 
Chairman.
    (e) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, the Northern Mariana Islands, Wake Island, the Canal Zone, 
and the territories and possessions of the United States, and the term 
State means any one of the foregoing.
    (f) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement by which the agency 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.
    (g) The term program or activity means all of the operations of any 
entity described in paragraphs (g)(1) through (4) of this section, any 
part of which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) 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;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or

[[Page 524]]

    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) 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
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (g)(1), (2), or (3) of this section.
    (h) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (i) Recipient means any state or its political subdivision, any 
instrumentality of a state or its political subdivision, 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, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    (j) Handicapped person 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. For purposes of section 504, in connection with employment, 
this term does not include any individual who is an alcoholic or drug 
abuser whose current use of alcohol or drugs prevents such individual 
from performing the duties of the job in question or whose employment, 
by reason of such current alcohol or drug abuse, would constitute a 
direct threat to the property or the safety of others. As used in this 
paragraph, the phrase:
    (1) Physical or mental impairment means:
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
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 means 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 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 a recipient as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (j)(1) of 
this section but is treated by a recipient as having such an impairment.
    (k) 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 and

[[Page 525]]

    (2) With respect to postsecondary 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 services, a handicapped person who meets the 
essential eligibility requirements for the receipt of such services.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.4  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 persons to receive 
services or to 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 persons than for 
nonhandicapped persons.



Sec. Sec. 1170.5-1170.10  [Reserved]



                   Subpart B_Discrimination Prohibited



Sec. 1170.11  General prohibition against discrimination.

    No qualified handicapped person 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 Federal financial assistance.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.12  Discriminatory actions prohibited.

    (a) A recipient, in providing any aid, benefit, or service, may not, 
directly or through contractual, licensing, or other arrangements, on 
the basis of handicap:
    (1) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (2) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (3) Provide a qualified handicapped person with an aid, benefit, or 
service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (4) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (5) Aid or perpetuate discrimination against a qualified handicapped 
person 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 or 
activity;
    (6) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (7) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (b) A recipient may not deny a qualified handicapped person the 
opportunity to participate in aid, benefits, or services that are not 
separate or different, despite the existence of permissibly separate or 
different aid, benefits, or services.
    (c) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration.
    (1) that have the effect of subjecting qualified handicapped persons 
to discrimination on the basis of handicap,
    (2) that have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of

[[Page 526]]

the recipient's program or activity with respect to handicapped persons, 
or
    (3) that perpetuate the discrimination of another recipient if both 
recipients are subject to common administrative control or are agencies 
of the same state.
    (d) A recipient may not, in determining the site or location of a 
facility, make selections
    (1) that have the effect of excluding handicapped persons from, 
denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives Federal 
financial assistance or
    (2) that have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (e) The exclusion of nonhandicapped persons from aid, benefits, or 
services limited by Federal statute or executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
aid, benefits, or services limited by Federal statute or executive order 
to a different class of handicapped persons is not prohibited by this 
part.
    (f) Recipients shall administer programs or activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.
    (g) Recipients shall take appropriate steps to ensure that 
communications with their applicants, employees, and beneficiaries are 
available to persons with impaired vision and hearing.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.13  Illustrative examples.

    (a) The following examples will illustrate the application of the 
foregoing provisions to some of the activities funded by the National 
Endowment for the Humanities.
    (1) A publication or a museum catalogue supported by the Endowment 
may be made usable by the blind and the visually impaired through 
cassette tapes, records, discs, braille, readers and simultaneous 
publications.
    (2) A lecture, meeting or symposium supported by Federal funds may 
be made available to deaf and hearing impaired persons through the use 
of a sign language interpreter or by providing scripts in advance of the 
performance.
    (3) Specific aid, benefits, or services supported by Federal funds 
may be offered in an inaccessible facility provided that the same aid, 
benefit, or service is also offered to the public at large in an 
accessible space.
    (4) A qualified handicapped person is one who is able to meet all 
requirements in spite of his handicap. An educational institution is not 
required to disregard the disabilities of handicapped individuals or to 
lower or to make substantial modifications of standards to accommodate a 
handicapped person.
    (b) State humanities committees are obligated to develop methods of 
administering Federal funds so as to ensure that handicapped persons are 
not subjected to discrimination on the basis of handicap either by sub-
grantees or by the manner in which the funds are distributed.
    (c) In the event Endowment funds are utilized to construct, expand, 
alter, lease or rent a facility, the benefits of the program or activity 
provided in or through that facility must be conducted in accordance 
with these regulations, e.g., a museum receiving a grant to renovate an 
existing facility must assure that all museum aid, benefits, or services 
conducted in that facility are accessible to handicapped persons.
    (d) In carrying out the mandate of section 504 and these 
implementing regulations recipients should administer Endowment assisted 
programs or activities in the most integrated setting appropriate, e.g., 
tours made available to the hearing impaired should be open to the 
public at large and everyone should be permitted to enjoy the benefits 
of a tactile experience in a museum.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. Sec. 1170.14-1170.20  [Reserved]



                     Subpart C_Employment Practices



Sec. 1170.21  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, on the basis of 
handicap,

[[Page 527]]

be subjected to discrimination in employment under any program or 
activity that receives Federal financial assistance.
    (b) 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 or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (c) 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 paragraph 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 
apprenticeships.
    (d) Specific activities. The provisions of this subpart apply to:
    (1) Recruitment, advertising, and the processing of applications 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;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including those that are social 
or recreational; and
    (9) Any other term, condition, or privilege of employment.
    (e) A recipient's obligation to comply with this subpart is not 
affected by any inconsistent term of any collective bargaining agreement 
to which it is a party.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.22  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental 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 or activity.
    (b) Reasonable accommodation may include:
    (1) Making facilities used by employees 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 or activity, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, 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.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.23  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 
persons or any class of handicapped persons 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 are unavailable.

[[Page 528]]

    (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 reflect the applicant's or 
employee's job skills, aptitude, or other factors relevant to adequate 
performance of the job in question.



Sec. 1170.24  Preemployment inquiries.

    (a) A recipient may not, except as provided below, conduct a 
preemployment medical examination, make preemployment inquiry as to 
whether the applicant is a handicapped person, or inquire 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) If a recipient is taking remedial action to correct the effects 
of past discrimination, if a recipient is taking voluntary action to 
overcome the effects of conditions that resulted in limited 
participation in its federally assisted program or activity, or if a 
recipient is taking affirmative action under section 503 of the 
Rehabilitation 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 entering employees are subjected 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 that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (3) Government officials investigating compliance with the Act shall 
be provided relevant information upon request.



Sec. Sec. 1170.25-1170.30  [Reserved]



                         Subpart D_Accessibility



Sec. 1170.31  Discrimination prohibited.

    No qualified handicapped person shall, because recipient's 
facilities are inaccessible to or unusable by handicapped persons, 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. 1170.32  Existing facilities.

    (a) Accessibility. A recipient shall operate each program or 
activity to which this part applies so that when each part is viewed in 
its entirety it is readily accessible to handicapped persons. This 
paragraph does not necessarily require a recipient to make each of its 
existing facilities or every part of a facility accessible to and usable 
by handicapped 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, alteration of existing facilities and construction of new 
facilities

[[Page 529]]

in conformance with the requirements of Sec. 1170.33, or any other 
methods that result in making its program or activity accessible to 
handicapped persons. 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 
serve handicapped persons in the most integrated setting appropriate.
    (c) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within sixty days of the effective date of 
this part except that 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.
    (d) 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 one year 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 upon request 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 handicapped 
persons;
    (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 accessibility under paragraph (a) of this section 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.
    (e) 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 handicapped persons.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.33  New construction.

    (a) Design, construction, and alteration. New facilities shall be 
designed and constructed to be readily accessible to and usable by 
handicapped persons. Alterations to existing facilities shall, to the 
maximum extent feasible, be designed and constructed to be readily 
accessible to and usable by handicapped persons.
    (b) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of January 18, 1991, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (USAF) (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.

[46 FR 55897, Nov. 12, 1981, as amended at 55 FR 52138, 52142, Dec. 19, 
1990]

[[Page 530]]



Sec. 1170.34  Historic properties. [Reserved]



Sec. Sec. 1170.35-1170.40  [Reserved]



                    Subpart E_Postsecondary Education



Sec. 1170.41  Application of this subpart.

    Subpart E applies to postsecondary education programs or activities, 
including postsecondary vocational education programs or activities, 
that receive Federal financial assistance and to recipients that 
operate, or that receive Federal financial assistance for the operation 
of, such programs or activities.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.42  Admissions and recruitment.

    (a) General. Qualified handicapped persons 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 persons who may be admitted;
    (2) May not make use of any test or criterion for admission that has 
a disproportionate, adverse effect on handicapped persons or any class 
of handicapped persons 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 Chairman 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 
or 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 persons; and
    (4) Except as provided in paragraph (c) of this section, may not 
make preadmission inquiry as to whether an applicant for admission is a 
handicapped person but, after admission, may make inquiries on a 
confidential basis as to handicaps that may require accommodation.
    (c) Preadmission inquiry exception. When a recipient is taking 
remedial action to correct the effects of past discrimination pursuant 
to Sec. 1170.52(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. 1170.52(b), the recipient may invite applicants for admission 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 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.

[[Page 531]]



Sec. 1170.43  Treatment of students; general.

    (a) 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, or other postsecondary education aid, benefit, or 
service 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, an 
education program or activity 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, 
course of study, or other part of its education program or activity.
    (d) A recipient to which this subpart applies shall operate its 
program or activity in the most integrated setting appropriate.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.44  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 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 prohibitation 
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 students' academic achievement, 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 take such steps as are necessary to ensure that no handicapped 
student is denied the benefits of, excluded from participation in, or 
otherwise subjected to discrimination because of the absence of 
educational auxiliary aids for students with impaired sensory, manual, 
or speaking skills.
    (2) Auxiliary aids may include taped texts, 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.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.45  Housing.

    (a) Housing provided by the recipient. A recipient that provides 
housing to its nonhandicapped students shall provide

[[Page 532]]

comparable, convenient, and accessible housing to handicapped students 
at the same cost as to others. At the end of the transition period 
provided for in Subpart D, 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. 1170.46  Financial and employment assistance to students.

    (a) Provision of financial assistance. (1) In providing financial 
assistance to qualified handicapped persons, 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 persons 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, trusts, bequests, 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 C if they were provided by the recipient.
    (c) Employment of students by recipients. A recipient that employs 
any of its students may not do so in a manner that violates Subpart C.



Sec. 1170.47  Nonacademic services.

    (a) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar aid, benefits, or services 
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 or differentiation is consistent with the requirements of 
Sec. 1170.43(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 
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.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]

[[Page 533]]



Sec. Sec. 1170.48-1170.50  [Reserved]



                          Subpart F_Enforcement



Sec. 1170.51  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance to 
which this part applies shall submit an assurance, on a form specified 
by the responsible Endowment official, that the program or activity will 
be operated in compliance with this part. An applicant may incorporate 
these assurances by reference in subsequent applications to the 
Endowment.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended in the form of real property or to provide 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 the 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.
    (c) Covenants. (1) Where Federal financial assistance is provided in 
the form of real property or interest in the property from the 
Endowment, 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 of property is involved but property is 
purchased or improved with Federal financial assistance, the recipient 
shall agree to include the covenant described in paragraph (b)(2) of 
this section in the instrument effecting or recording any subsequent 
transfer of the property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Endowment, the 
covenant shall also include a condition coupled with a right to be 
reserved by the Endowment to revert title to the property in the event 
of a breach of the covenant. If a transferee of real property proposes 
to mortgage or to otherwise encumber the real property as security for 
financing construction of new, or improvement of existing, facilities on 
the property for the purposes for which the property was transferred, 
the responsible Endowment official may, upon request of the transferee 
and if necessary to accomplish such financing and upon such conditions 
as he or she deems appropriate, 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.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.52  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Chairman 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 Chairman 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 Chairman, where appropriate, may require either or 
both recipients to take remedial action.
    (3) The Chairman 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 persons who are no longer 
participants in the recipient's program or activity but who were 
participants in the program or activity when such discrimination 
occurred, or
    (ii) With respect to handicapped persons who would have been 
participants

[[Page 534]]

in the program or activity had the discrimination not occurred.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped persons.
    (c) A recipient shall within one year of the effective date of this 
part:
    (1) Evaluate, with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices and the effects thereof that do not 
or may not meet the requirements of this part;
    (2) Modify, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
any policies and practices that do not meet the requirements of this 
part;
    (3) Take, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (4) A recipient that employs fifteen or more persons shall maintain 
on file, make available for public inspection, and provide to the 
Endowment upon request, for at least three years following completion of 
the self-evaluation:
    (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.
    (5) The completed self-evaluation should be signed by a responsible 
official designated to coordinate the recipient's efforts in connection 
with this section.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.53  Designation of responsible employee and adoption of grievance 
procedures.

    (a) Designation of responsible employee. A recipient that employs 
fifteen or more persons shall designate at least one person to 
coordinate its efforts to comply with this part.
    (b) Adoption of grievance procedures. A recipient that employs 
fifteen or more persons 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 postsecondary educational institutions.



Sec. 1170.54  Notice.

    (a) A recipient that employs fifteen or more persons 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 this part. The notification shall state, where 
appropriate, that the recipient does not discriminate in admission or 
access to, or treatment or employment in, its programs or activities. 
The notification shall also include an identification of the responsible 
employee designated pursuant to Sec. 1170.53(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, publication in 
newspapers and magazines, placement of notices in recipients' 
publication, and distribution of memoranda or other written 
communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising

[[Page 535]]

and reprinting the materials and publications.

[46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003]



Sec. 1170.55  Endowment enforcement and compliance procedures.

    The procedural provisions applicable to Title VI of the Civil Rights 
Act of 1964 apply to this part. These procedures are found in Sec. Sec. 
1110.6 through 1110.11 of part 1100 of this title.



Sec. Sec. 1170.56-1170.99  [Reserved]



PART 1173_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 
ASSISTANCE)--Table of Contents




                     Subpart A_Purpose and Coverage

Sec.
1173.100 What does this part do?
1173.105 Does this part apply to me?
1173.110 Are any of my Federal assistance awards exempt from this part?
1173.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

1173.200 What must I do to comply with this part?
1173.205 What must I include in my drug-free workplace statement?
1173.210 To whom must I distribute my drug-free workplace statement?
1173.215 What must I include in my drug-free awareness program?
1173.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
1173.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
1173.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

1173.300 What must I do to comply with this part if I am an individual 
          recipient?
1173.301 [Reserved]

          Subpart D_Responsibilities of NEH Awarding Officials

1173.400 What are my responsibilities as an NEH awarding official?

           Subpart E_Violations of This Part and Consequences

1173.500 How are violations of this part determined for recipients other 
          than individuals?
1173.505 How are violations of this part determined for recipients who 
          are individuals?
1173.510 What actions will the Federal Government take against a 
          recipient determined to have violated this part?
1173.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

1173.605 Award.
1173.610 Controlled substance.
1173.615 Conviction.
1173.620 Cooperative agreement.
1173.625 Criminal drug statute.
1173.630 Debarment.
1173.635 Drug-free workplace.
1173.640 Employee.
1173.645 Federal agency or agency.
1173.650 Grant.
1173.655 Individual.
1173.660 Recipient.
1173.665 State.
1173.670 Suspension.

    Authority: 41 U.S.C. 701, et seq.; 20 U.S.C. 959(a)(1).

    Source: 68 FR 66557, 66639, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 1173.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec. 1173.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the NEH; or
    (2) A(n) NEH awarding official. (See definitions of award and 
recipient in Sec. Sec. 1173.605 and 1173.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
             If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an individual..  A, B and E.

[[Page 536]]

 
(2) A recipient who is an individual......  A, C and E.
(3) A(n) NEH awarding official............  A, D and E.
------------------------------------------------------------------------



Sec. 1173.110  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award that the NEH General Counsel 
determines that the application of this part would be inconsistent with 
the international obligations of the United States or the laws or 
regulations of a foreign government.



Sec. 1173.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec. 1173. 510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 1173.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec. 1173.205 
through 1173.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec. 1173.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. 1173.230).



Sec. 1173.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec. 1173.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec. 
1173.205 be given to each employee who will be engaged in the 
performance of any Federal award.



Sec. 1173.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec. 1173.220  By when must I publish my drug-free workplace statement and 
establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec. 1173.205 and an ongoing awareness 
program as described in

[[Page 537]]

Sec. 1173.215, you must publish the statement and establish the program 
by the time given in the following table:

------------------------------------------------------------------------
                 If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award is  must have the policy
 less than 30 days.                          statement and program in
                                             place as soon as possible,
                                             but before the date on
                                             which performance is
                                             expected to be completed.
(b) The performance period of the award is  must have the policy
 30 days or more.                            statement and program in
                                             place within 30 days after
                                             award.
(c) You believe there are extraordinary     may ask the NEH awarding
 circumstances that will require more than   official to give you more
 30 days for you to publish the policy       time to do so. The amount
 statement and establish the awareness       of additional time, if any,
 program.                                    to be given is at the
                                             discretion of the awarding
                                             official.
------------------------------------------------------------------------



Sec. 1173.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. 1173.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec. 1173.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each NEH award. A 
failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces--
    (1) To the NEH official that is making the award, either at the time 
of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by NEH officials or their 
designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award 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).
    (c) If you identified workplaces to the NEH awarding official at the 
time of application or award, as described in paragraph (a)(1) of this 
section, and any workplace that you identified changes during the 
performance of the award, you must inform the NEH awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 1173.300  What must I do to comply with this part if I am an individual 
recipient?

    As a condition of receiving a(n) NEH award, if you are an individual 
recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:

[[Page 538]]

    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the NEH awarding official or other designee for each award 
that you currently have, unless Sec. 1173.301 or the award document 
designates a central point for the receipt of the notices. When notice 
is made to a central point, it must include the identification number(s) 
of each affected award.



Sec. 1173.301  [Reserved]



          Subpart D_Responsibilities of NEH Awarding Officials



Sec. 1173.400   What are my responsibilities as a(n) NEH awarding official?

    As a(n) NEH awarding official, you must obtain each recipient's 
agreement, as a condition of the award, to comply with the requirements 
in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec. 1173.500  How are violations of this part determined for recipients 
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the NEH General Counsel determines, in 
writing, that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec. 1173.505  How are violations of this part determined for recipients 
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the NEH General Counsel determines, in writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec. 1173.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. 1173.500 or Sec. 1173.505, the NEH may take one or 
more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 45 CFR Part 1169, 
for a period not to exceed five years.



Sec. 1173.515  Are there any exceptions to those actions?

    The NEH General Counsel may waive with respect to a particular 
award, in writing, a suspension of payments under an award, suspension 
or termination of an award, or suspension or debarment of a recipient if 
the NEH General Counsel determines that such a waiver would be in the 
public interest. This exception authority cannot be delegated to any 
other official.



                          Subpart F_Definitions



Sec. 1173.605  Award.

    Award means an award of financial assistance by the NEH or other 
Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 45 
CFR Part 1174 that implements OMB Circular A-102 (for availability, see 
5 CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.

[[Page 539]]

    (7) 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).



Sec. 1173.610  Controlled substance.

    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.



Sec. 1173.615  Conviction.

    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.



Sec. 1173.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec. 1173.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec. 1173.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec. 1173.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689.



Sec. 1173.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec. 1173.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (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).



Sec. 1173.645  Federal agency or agency.

    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.



Sec. 1173.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the

[[Page 540]]

Federal Government's direct benefit or use; and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec. 1173.655  Individual.

    Individual means a natural person.



Sec. 1173.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec. 1173.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec. 1173.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order 12689. Suspension of a recipient is a distinct and separate action 
from suspension of an award or suspension of payments under an award.



PART 1174_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE 
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                            Subpart A_General

Sec.
1174.1 Purpose and scope of this part.
1174.2 Scope of subpart.
1174.3 Definitions.
1174.4 Applicability.
1174.5 Effect on other issuances.
1174.6 Additions and exceptions.

                    Subpart B_Pre-Award Requirements

1174.10 Forms for applying for grants.
1174.11 State plans.
1174.12 Special grant or subgrant conditions for ``high-risk'' grantees.

                    Subpart C_Post-Award Requirements

                        Financial Administration

1174.20 Standards for financial management systems.
1174.21 Payment.
1174.22 Allowable costs.
1174.23 Period of availability of funds.
1174.24 Matching or cost sharing.
1174.25 Program income.
1174.26 Non-Federal audit.

                    Changes, Property, and Subawards

1174.30 Changes.
1174.31 Real property.
1174.32 Equipment.
1174.33 Supplies.
1174.34 Copyrights.
1174.35 Subawards to debarred and suspended parties.
1174.36 Procurement.
1174.37 Subgrants.

              Reports, Records, Retention, and Enforcement

1174.40 Monitoring and reporting program performance.
1174.41 Financial reporting.
1174.42 Retention and access requirements for records.
1174.43 Enforcement.
1174.44 Termination for convenience.

                 Subpart D_After-the-Grant Requirements

1174.50 Closeout.
1174.51 Later disallowances and adjustments.
1174.52 Collection of amounts due.

Subpart E--Entitlements [Reserved]

    Authority: 20 U.S.C. 959(a)(1).

    Source: 53 FR 8082, 8087, Mar. 11, 1988, unless otherwise noted.



                            Subpart A_General



Sec. 1174.1  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and

[[Page 541]]

cooperative agreements and subawards to State, local and Indian tribal 
governments.



Sec. 1174.2  Scope of subpart.

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



Sec. 1174.3  Definitions.

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

[[Page 542]]

    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the United States Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's 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.

[[Page 543]]

    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than equipment 
as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. Termination does not include: (1) Withdrawal 
of funds awarded on the basis of the grantee's underestimate of the 
unobligated balance in a prior period; (2) withdrawal of the unobligated 
balance as of the expiration of a grant; (3) refusal to extend a grant 
or award additional funds, to make a competing or noncompeting 
continuation, renewal, extension, or supplemental award; or (4) voiding 
of a grant upon determination that the award was obtained fraudulently, 
or was otherwise illegal or invalid from inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec. 1174.4  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. 1174.6, 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);

[[Page 544]]

    (iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (Title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 1174.4(a) (3) through (8) are subject to Subpart E.



Sec. 1174.5  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. 1174.6.



Sec. 1174.6  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. 1174.10  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

[[Page 545]]

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. 1174.11  State plans.

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



Sec. 1174.12  Special grant or subgrant conditions for ``high-risk'' 
grantees.

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

[[Page 546]]

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. 1174.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
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. 1174.21  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.

[[Page 547]]

    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR Part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for 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. 1174.43(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

[[Page 548]]

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. 1174.22  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.
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. 1174.23  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. 1174.24  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

[[Page 549]]

defined in Sec. 1174.25, 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. 1174.25(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 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:

[[Page 550]]

    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec. 1174.22, 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. 1174.25  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.

[[Page 551]]

    (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. 1174.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 
1174.31 and 1174.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (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. 1174.26  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

[[Page 552]]

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. 
1174.36 shall be followed.

[53 FR 8082, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45946, Aug. 
29, 1997]

                    Changes, Property, and Subawards



Sec. 1174.30  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. 1174.22) contain requirements for prior approval of certain types 
of costs. Except where waived, those requirements apply to all grants 
and subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct 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. 1174.36 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.

[[Page 553]]

    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 1174.22) 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. 1174.31  Real property.

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



Sec. 1174.32  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

[[Page 554]]

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. 1174.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (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. 1174.32(e).

[[Page 555]]

    (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. 1174.33  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. 1174.34  Copyrights.

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



Sec. 1174.35  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. 1174.36  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.

[[Page 556]]

    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of 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. 1174.36. 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,

[[Page 557]]

    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name 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. 1174.36(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;

[[Page 558]]

    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of 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;

[[Page 559]]

    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. 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. 1174.22). 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

[[Page 560]]

    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, 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)

[[Page 561]]

    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR Part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR Part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8082, 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19645, Apr. 
19, 1995]



Sec. 1174.37  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. 1174.42 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 1174.10;
    (2) Section 1174.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 1174.21; and
    (4) Section 1174.50.

[[Page 562]]

              Reports, Records, Retention, and Enforcement



Sec. 1174.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.
    (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.

[[Page 563]]



Sec. 1174.41  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 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 paragraph Sec. 1174.41(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

[[Page 564]]

advances in excess of three days' needs in the hands of their 
subgrantees or contractors and to provide short narrative explanations 
of actions taken by the grantee to reduce the excess balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 1174.41(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. 1174.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 1174.41(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. 1174.41(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. 1174.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 1174.41(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. 1174.41(b)(2).



Sec. 1174.42  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. 1174.36(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

[[Page 565]]

end of the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from 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. 1174.43  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

[[Page 566]]

take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under Executive Order 12549 (see Sec. 
1174.35).



Sec. 1174.44  Termination for convenience.

    Except as provided in Sec. 1174.43 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. 
1174.43 or paragraph (a) of this section.



                 Subpart D_After-the-Grant Requirements



Sec. 1174.50  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:

[[Page 567]]


In accordance with Sec. 1174.32(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. 1174.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 1174.42;
    (d) Property management requirements in Sec. Sec. 1174.31 and 
1174.32; and
    (e) Audit requirements in Sec. 1174.26.



Sec. 1174.52  Collection of amounts due.

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

Subpart E--Entitlements [Reserved]



PART 1175_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL ENDOWMENT FOR THE 
HUMANITIES--Table of Contents




Sec.
1175.101 Purpose.
1175.102 Application.
1175.103 Definitions.
1175.104-1175.109 [Reserved]
1175.110 Self-evaluation.
1175.111 Notice.
1175.112-1175.129 [Reserved]
1175.130 General prohibitions against discrimination.
1175.131-1175.139 [Reserved]
1175.140 Employment.
1175.141-1175.148 [Reserved]
1175.149 Program accessibility: Discrimination prohibited.
1175.150 Program accessibility: Existing facilities.
1175.151 Program accessibility: New construction and alterations.
1175.152-1175.159 [Reserved]
1175.160 Communications.
1175.161-1175.169 [Reserved]
1175.170 Compliance procedures.
1175.171-1175.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 4578 and 4579, Feb. 5, 1986, unless otherwise noted.



Sec. 1175.101  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. 1175.102  Application.

    This part applies to all programs or activities conducted by the 
agency.

[[Page 568]]



Sec. 1175.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices 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 
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.
    Handicapped person 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 of 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 addition and 
alcholism.
    (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 toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified handicapped person 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, a handicapped person 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; or
    (2) With respect to any other program or activity, a handicapped 
person

[[Page 569]]

who meets the essential eligibility requirements for participation in, 
or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 1175.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[51 FR 4578 and 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. Sec. 1175.104-1175.109  [Reserved]



Sec. 1175.110  Self-evaluation.

    (a) The agency shall, by April 9, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, 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 
inspections:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 1175.111  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 head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 1175.112-1175.129  [Reserved]



Sec. 1175.130  General prohibitions against discrimination.

    (a) No qualified handicapped person 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 handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualfied handicapped person 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 handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.

[[Page 570]]

    (2) The agency may not deny a qualified handicapped person 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 handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (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 handicapped persons 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 of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons 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 handicapped 
persons.



Sec. Sec. 1175.131-1175.139  [Reserved]



Sec. 1175.140  Employment.

    No qualified handicapped person 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. 1175.141-1175.148  [Reserved]



Sec. 1175.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1175.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, 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. 1175.150  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 handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons; 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 Sec. 1175.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
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

[[Page 571]]

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 handicapped persons 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, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is nor 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 through 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 handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by June 6, 1986, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by April 7, 1989, 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 October 7, 1986, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, 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 programs or activities to handicapped 
persons;
    (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.

[51 FR 4578 and 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. 1175.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151 through 4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 1175.152-1175.159  [Reserved]



Sec. 1175.160  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 a handicapped person 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 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for

[[Page 572]]

personal use or study, or other devices of a personal nature.
    (2) Where the agency communicates with applicants 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 signage at a primary entrance to each 
of its inaccessible facilities, directing users to a 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. 1175.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her 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, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 1175.161-1175.169  [Reserved]



Sec. 1175.170  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 Director, Office of Equal Opportunity shall be responsible 
for coordinating implementation of this section. Complaints may be sent 
to Director, Office of Equal Opportunity, National Endowment for the 
Humanities, 1100 Pennsylvania Avenue, NW., Room 419, Washington, DC 
20506.
    (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 through 4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (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;
    (3) A notice of the right to appeal.

[[Page 573]]

    (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. 1175.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The 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.

[51 FR 4578 and 4579, Feb. 5, 1986, as amended at 51 FR 4578, Feb. 5, 
1986]



Sec. Sec. 1175.171-1175.999  [Reserved]



PART 1176_PART-TIME CAREER EMPLOYMENT--Table of Contents




Sec.
1176.1 General.
1176.2 Definitions.
1176.3 Criteria.
1176.4 Establishing and converting part-time positions.
1176.5 Annual plan.
1176.6 Review and evaluation.
1176.7 Publicizing vacancies.
1176.8 Exceptions.
1176.9-1176.99 [Reserved]

    Authority: Federal Employees Part-Time Career Employment Act of 
1978, Pub. L. 95-437, 92 Stat. 1055, 5 U.S.C. 3401-3408.

    Source: 46 FR 35647, July 10, 1981, unless otherwise noted.



Sec. 1176.1  General.

    (a) Purpose. Many individuals in society possess great productive 
potential which goes unrealized because they cannot meet the 
requirements of a standard workweek. Permanent part-time employment also 
provides benefits to other individuals in a variety of ways, such as 
providing older individuals with a gradual transition into retirement, 
providing employment opportunities to handicapped individuals or others 
who require a reduced workweek, providing parents with opportunities to 
balance family responsibilities with the need for added income, and 
assisting students who must finance their own education or vocational 
training. In view of this, the National Endowment for the Humanities 
will operate a part-time career employment program, consistent with its 
responsibilities and in accordance with Public Law 95-437, the Federal 
Employees' Part-Time Career Employment Act of 1978.
    (b) Program Coordinator. The Personnel Officer is responsible for 
program operation and coordination.



Sec. 1176.2  Definitions.

    (a) Part-time employment means employment of 16 to 32 hours a week 
under a schedule consisting of an equal or varied number of hours per 
day, whether in a position which would be part-time without regard to 
the Act or one established to allow job-sharing or comparable 
arrangements, but does not include employment on a temporary or 
intermittent basis.
    (b) Career employment includes competitive and excepted service 
employees in tenure groups I and II.



Sec. 1176.3  Criteria.

    Positions becoming vacant, unless excepted as provided by Sec. 
1176.8, will be reviewed to determine the feasibility of converting them 
to part-time. Among the criteria which may be used when conducting this 
review are:
    (a) Mission requirements.
    (b) Workload.
    (c) Employment ceilings and budgetary considerations.
    (d) Availability of qualified applicants willing to work part-time.



Sec. 1176.4  Establishing and converting part-time positions.

    Position management and other internal reviews may indicate that 
positions may be either converted from full-time or initially 
established as

[[Page 574]]

part-time positions. Criteria listed in Sec. 1176.3 may be used during 
these reviews. If a decision is made to convert to or to establish a 
part-time position, regular position management and classification 
procedures will be followed.



Sec. 1176.5  Annual plan.

    (a) An agencywide plan for promoting part-time employment 
opportunities will be developed annually. This plan will establish 
annual goals and set interim and final deadlines for achieving these 
goals. This plan will be applicable throughout the agency, and will be 
transmitted to the Office of Personnel Management with the required 
report to OPM on the status of the program as of September 30 of each 
year.
    (b) Beginning in FY 1981 in administering personnel ceilings, part-
time career employees shall be counted against ceiling authorizations as 
a fraction. This will be determined by dividing 40 hours into the 
average number of hours of such employee's regularly scheduled workweek.



Sec. 1176.6  Review and evaluation.

    Regular employment reports will be used to determine levels of part-
time employment. This program will also be designated an item of special 
interest to be reviewed during personnel management reviews.



Sec. 1176.7  Publicizing vacancies.

    When applicants from outside the Federal service are desired, part-
time vacanies may be publicized through various recruiting means, such 
as:
    (a) Federal Job Information Centers.
    (b) State Employment Offices.
    (c) Veterans' Administration Recruiting Bulletins.



Sec. 1176.8  Exceptions.

    (a) The Personnel Officer may except positions from inclusion in 
this program to provide fewer than 16 hours per week. This will normally 
be done in furtherance of special hiring programs such as the Stay-in-
School or Handicapped Employment Program.
    (b) On occasions when it becomes necessary to allow supervisors and 
managers to temporarily increase the hours of duty of employees above 32 
hours per week for limited and specific periods of time to meet heavy 
workloads, perform special assignments, permit employee training, etc., 
the Endowment policy is as follows:
    (1) Requests to work NEH employees on a 32 hour/week appointment 
more than 32 hours must be submitted in advance to the Personnel Office;
    (2) Justification should be concise but specific and must state the 
exact time frame for the increase in hours above 32 hours per week; and
    (3) The Program Coordinator will decide if the request meets the 
intent of the law and this agency's policy.



Sec. Sec. 1176.9-1176.99  [Reserved]



PART 1177_CLAIMS COLLECTION--Table of Contents




Sec.
1177.1 Purpose and scope.
1177.2 Definitions.
1177.3 Other remedies.
1177.4 Claims involving criminal activity or misconduct.
1177.5 Collection.
1177.6 Notice to debtor.
1177.7 Interest, penalties, and administrative costs.
1177.8 Administrative offset.
1177.9 Use of credit reporting agencies.
1177.10 Collection services.
1177.11 Referral to the Department of Justice or the General Accounting 
          Office.
1177.12 Compromise, suspension and termination.
1177.13 Omissions not a defense.
1177.14-1177.99 [Reserved]

    Authority: 31 U.S.C. 3711, 3716-3719.

    Source: 51 FR 20484, June 5, 1986, unless otherwise noted.



Sec. 1177.1  Purpose and scope.

    This part prescribes standards and procedures for officers and 
employees of the National Endowment for the Humanities who are 
responsible for the collection and disposition of debts owed to the 
United States. The authority for this part is the Federal Claims 
Collection Act of 1966, as amended, 31 U.S.C. 3711 and 3716 through 
3719; the Federal Claims Collection Standards at 4 CFR parts 101 through 
105, as amended by 49 FR 8889, 5 U.S.C. 552a, and Office of Management 
and Budget Circular A-129. The activities covered include: collecting 
claims in any amount; compromising claims, or suspending or terminating 
the collection of claims

[[Page 575]]

that do not exceed $20,000 exclusive of interest and charges, and 
referring debts that cannot be disposed of by the Endowment to the 
Department of Justice or to the General Accounting Office for further 
administrative action or litigation.



Sec. 1177.2  Definitions.

    For the purpose of this part the following definitions will apply:
    (a) Claim or debt means an amount of property owed to the United 
States. These include but are not limited to: Overpayments to program 
beneficiaries; overpayments to contractors and grantees, including 
overpayments arising from audit disallowances; excessive cash advances 
to grantees and contractors; and civil penalties and assessments. A debt 
is overdue or delinquent if it is not paid by the due date specified in 
the initial notice of the debt (see Sec. 1177.6 of this part) or if the 
debtor fails to satisfy his or her obligation under a repayment 
agreement.
    (b) Debtor means an individual, organization, group, association, 
partnership, or corporation indebted to the United States, or the person 
or entity with legal responsibility for assuming the debtor's 
obligation.
    (c) Endowment means the National Endowment for the Humanities.
    (d) Administrative offset means satisfying a debt by withholding 
money payable by the United States to or held by the United States for a 
debtor.



Sec. 1177.3  Other remedies.

    The remedies and sanctions available to the National Endowment for 
the Humanities under this part are not intended to be exclusive. The 
Chairperson of the National Endowment for the Humanities or his designee 
may impose other appropriate sanctions upon a debtor for prolonged or 
repeated failure to pay a debt. For example, the Chairperson or his 
designee may place the debtor's name on a list of debarred, suspended, 
or ineligible grantees and contractors, convert the method of payment 
under a grant from an advance to a reimbursement method, or revoke a 
grantee's letter of credit. In such cases the debtor will be advised of 
the Endowment's action.



Sec. 1177.4  Claims involving criminal activity or misconduct.

    (a) A debtor whose indebtedness involves criminal activity such as 
fraud, embezzlement, theft, or misuse of government funds or property is 
subject to punishment by fine or imprisonment as well as to a civil 
claim by the United States for compensation for the misappropriated 
funds. The Endowment will refer these cases to the appropriate law 
enforcement agency for prosecution.
    (b) Debts involving fraud, false, claims, or misrepresentation shall 
not be compromised, terminated, suspended, or otherwise disposed of 
under this rule. Only the Department of Justice is authorized to 
compromise, terminate, suspend, or otherwise dispose of such debts.



Sec. 1177.5  Collection.

    (a) The Endowment will take aggressive action to collect debts and 
reduce delinquencies. Collection efforts shall include sending to the 
debtor's last known address a total of three progressively stronger 
written demands for payment at not more than 30 day intervals. When 
necessary to protect the Government's interest, written demand may be 
preceded by other appropriate action, including immediate referral for 
litigation. Other contact with the debtor or his or her representative 
or guarantor by telephone, in person and/or in writing may be 
appropriate to demand prompt payment, to discuss the debtor's position 
regarding the existence, amount and repayment of the debt, and to inform 
the debtor of his or her rights and the effect of nonpayment or delayed 
payment. A debtor who disputes a debt must promptly provide available 
supporting evidence.
    (b) If a debtor is involved in insolvency proceedings, the debt will 
be referred to the appropriate United States Attorney to file a claim. 
The United States may have a priority over other creditors under 31 
U.S.C. 3713.



Sec. 1177.6  Notice to debtor.

    The first written demand for payment must inform the debtor of the 
following:
    (a) The amount and nature of the debt:

[[Page 576]]

    (b) The date payment is due, which will generally be 30 days from 
the date the notice was mailed;
    (c) The assessment of interest under Sec. 1177.7 from the date the 
notice was mailed if payment is not received within the 30 days;
    (d) The right to dispute the debt;
    (e) The office, address and telphone number that the debtor should 
contact to discuss repayment and reconsideration of the debt and;
    (f) The sanctions available to the National Endowment for the 
Humanities to collect a delinquent debt including, but not limited to, 
referral of the debt to a credit reporting agency, a private collection 
bureau, or the Department of Justice for litigation.



Sec. 1177.7  Interest, penalties, and administrative costs.

    (a) Interest will accrue on all debts from the date when the first 
notice of the debt and the interest requirement is mailed to the last 
known address or hand-delivered to the debtor if the debt is not paid 
within 30 days from the date the first notice was mailed. The Endowment 
will charge an annual rate of interest that is equal to the average 
investment rate for the Treasury tax and loan accounts on September 30 
of each year, rounded to the nearest whole per centum. This rate, which 
represents the current value of funds to the United States Treasury, may 
be revised quarterly by the Secretary of the Treasury and is published 
by the Secretary of the Treasury annually or quarterly in the Federal 
Register and the Treasury Financial Manual Bulletins.
    (b) The rate of interest initially assessed will remain fixed for 
the duration of the indebtedness, except that if a debtor defaults on a 
repayment agreement interest may be set at the Treasury rate in effect 
on the date a new agreement is executed.
    (c) The Endowment shall charge debtors for administrative costs 
incurred in handling overdue debts.
    (d) Interest will not be charged on administrative costs.
    (e) The Endowment shall assess a penalty charge, not to exceed 6 per 
cent per year on debts which have been delinquent for more than 90 days. 
This charge shall accrue from the date that the debt became delinquent.
    (f) The Chairperson or his designee may waive in whole or in part 
the collection of interest and administrative and penalty charges if 
determined that collection would be against equity or not in the best 
interests of the United States. The Endowment shall waive the collection 
of interest on the debt or any part of the debt which is paid within 30 
days after the date on which interest began to accrue.



Sec. 1177.8  Administrative offset.

    (a) The Endowment may collect debts owed by administrative offset 
if:
    (1) The debt is certain in amount;
    (2) Efforts to obtain direct payment have been, or would most likely 
be unsuccessful, or the Endowment and the debtor agree to the offset;
    (3) Offset is cost effective or has significant deterrent value; and
    (4) Offset is best suited to further and protect the Government's 
interest.
    (b) The Endowment may offset a debt owed to another Federal agency 
from amounts due or payable by the Endowment to the debtor or request 
another Federal agency to offset a debt owed to the Endowment;
    (c) Prior to initiating administrative offset, the National 
Endowment for the Humanities will send the debtor written notice of the 
following:
    (1) The nature and amount of the debt and the agency's intention to 
collect the debt by offset 30 days from the date the notice was mailed 
if neither payment nor a satisfactory response is received by that date;
    (2) The debtor's right to an opportunity to submit a good faith 
alternative repayment schedule to inspect and copy agency records 
pertaining to the debt, to request a review of the determination of 
indebtedness; and to enter into a written agreement to repay the debt 
and;
    (3) The applicable interest.
    (d) The National Endowment for the Humanities may effect an 
administrative offset against a payment to be made to a debtor prior to 
the completion of the procedures required by paragraph (c) of this 
section if:

[[Page 577]]

    (1) Failure to offset would substantially prejudice the Government's 
ability to collect the debt and
    (2) The time before the payment is to be made does not reasonably 
permit completion of those procedures.



Sec. 1177.9  Use of credit reporting agencies.

    (a) The Endowment may report delinquent accounts to credit reporting 
agencies consistent with the notice requirements contained in the Sec. 
1177.6 of this part. Individual debtors must be given at least 60 days 
written notice that the debt is overdue and will be reported to a credit 
reporting agency.
    (b) Debts may be reported to consumer or commercial reporting 
agencies. Consumer reporting agencies are defined in 31 U.S.C. 
3701(a)(3) pursuant to 5 U.S.C. 552a(b)(12) and 31 U.S.C. 3711(f). The 
Endowment may disclose only an individual's name, address, social 
security number, and the nature, amount, status and history of the debt 
and the program under which the claim arose.



Sec. 1177.10  Collection services.

    (a) The Endowment may contract for collection services to recover 
outstanding debts. The Endowment may refer delinquent debts to private 
collection agencies listed on the schedule compiled by the General 
Services Administration. In such contracts, the National Endowment for 
the Humanities will retain the authority to resolve disputes, compromise 
claims, terminate or suspend collection, and refer the matter to the 
Department of Justice or the General Accounting Office.
    (b) The contractor shall be subject to the disclosure provisions of 
the Privacy Act of 1974, as amended (5 U.S.C. 552a(m)), and to 
applicable federal and state laws and regulations pertaining to debt 
collection practices, including the Fair Debt Collection Practices Act, 
15 U.S.C. 1692. The contractor shall be strictly accountable for all 
amounts collected.
    (c) The contractor shall be required to provide to the Endowment any 
data contained in its files relating to the debt account upon agency 
request or upon returning an account to the Endowment for referral to 
the Department of Justice for litigation.



Sec. 1177.11  Referral to the Department of Justice or the General 
Accounting Office.

    Debts over $600 but less than $100,000 which the Endowment 
determines can neither be collected nor otherwise disposed of will be 
referred for litigation to the United States Attorney in whose judicial 
district the debtor is located. Claims for amounts exceeding $100,000 
shall be referred for litigation to the Commercial Litigation Branch, 
Civil Division of the Department of Justice.



Sec. 1177.12  Compromise, suspension and termination.

    (a) The Chairperson of the National Endowment for the Humanities or 
his designee may compromise, suspend or terminate the collection of 
debts where the outstanding principal is not greater than $20,000. 
Endowment procedures for writing off outstanding accounts are available 
to the public.
    (b) The Chairperson of the National Endowment for the Humanities may 
compromise, suspend or terminate collection of debts where the 
outstanding principal is greater than $20,000 only with the approval of, 
or by referral to the United States Attorney or the Department of 
Justice.
    (c) The Chairman of the National Endowment for the Humanities will 
refer to the General Accounting Office (GAO) debts arising from GAO 
audit exceptions.



Sec. 1177.13  Omissions not a defense.

    Failure to comply with any provisions of this rule may not serve as 
a defense to any debtor.



Sec. 1177.14-1177.99  [Reserved]



PART 1178_USE OF PENALTY MAIL IN THE LOCATION AND RECOVERY OF MISSING 
CHILDREN--Table of Contents




Sec.
1178.1 Purpose and scope.
1178.2 Withdrawal of information.

    Authority: 39 U.S.C. 3220.

    Source: 

[[Page 578]]



Sec. 1178.1  Purpose and scope.

    (a) The Chairperson of the National Endowment for the Humanities 
(NEH) may direct the agency to use penalty mail to assist in the 
location and recovery of missing children. When determined to be 
appropriate and cost-effective, the National Endowment for the 
Humanities may print, insert or use any other effective method to affix 
pictures and biographical data relating to missing children on NEH mail. 
The contact person for matters related to the implementation of this 
part is Tracy J. Joselson, Esq. Office of the General Counsel, National 
Endowment for the Humanities, 1100 Pennsylvania Avenue, NW., Washington, 
DC 20506, (202) 786-0322.
    (b) The National Center for Missing and Exploited Children will be 
the exclusive source from which the National Endowment for the 
Humanities will obtain photographic and biographical information for 
dissemination to the public.
    (c) It is estimated that the National Endowment for the Humanities 
will incur no additional costs to implement this program during its 
initial year. This estimate is based on a review of Endowment mailings 
that would maximize dissemination of this information.

[51 FR 20974, June 10, 1986]



Sec. 1178.2  Withdrawal of information.

    The National Endowment for the Humanities will withdraw or exhaust 
the supply of all materials bearing the photograph and biographical 
information of a missing child within a three month period from the date 
the National Center for Missing and Exploited Children receives notice 
that the child has been recovered or that the parents or guardian of the 
child have revoked permission to use the information. The National 
Center for Missing and Exploited Children will be responsible for 
immediately notifying the agency contact, in writing, of the need to 
withdraw or remove this material.

[51 FR 20974, June 10, 1986]



PART 1179_SALARY OFFSET--Table of Contents




Sec.
1179.1 Purpose and scope.
1179.2 Definitions.
1179.3 Applicability.
1179.4 Notice requirements.
1179.5 Hearing.
1179.6 Written decision.
1179.7 Coordinating offset with another Federal agency.
1179.8 Procedures for salary offset.
1179.9 Refunds.
1179.10 Statute of limitations.
1179.11 Non-waiver of rights.
1179.12 Interest, penalties, and administrative costs.

    Authority: 5 U.S.C. 5514, E.O. 11809 (redesignated E.O. 12107), and 
5 CFR part 550, subpart K.

    Source: 52 FR 28472, July 30, 1987, unless otherwise noted.



Sec. 1179.1  Purpose and scope.

    (a) This regulation provides procedures for the collection by 
administrative offset of a Federal employee's salary without his/her 
consent to satisfy certain debts owed to the Federal government. These 
regulations apply to all Federal employees who owe debts to the National 
Endowment for the Humanities (NEH) and to current employees of the 
National Endowment for the Humanities who owe debts to other Federal 
agencies. This regulation does not apply when the employee consents to 
recovery from his/her current pay account.
    (b) This regulation does not apply to debts or claims arising under:
    (1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et 
seq;
    (2) The Social Security Act, 42 U.S.C. 301 et seq;
    (3) The tariff laws of the United States; or
    (4) Any case where a collection of a debt by salary offset is 
explicitly provided for or prohibited by another statute.
    (c) This regulation does not apply to any adjustment to pay arising 
out of an employee's selection 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.

[[Page 579]]

    (d) This regulation does not preclude the compromise, suspension, or 
termination of collection action where appropriate under the standards 
implementing the Federal Claims Collection Act 31 U.S.C. 3711 et seq. 4 
CFR parts 101 through 105 45 CFR part 1177.
    (e) This regulation does not preclude an employee from requesting 
waiver of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774 or 32 
U.S.C. 716 or in any way questioning the amount or validity of the debt 
by submitting a subsequent claim to the General Accounting Office. This 
regulation does not preclude an employee from requesting a waiver 
pursuant to other statutory provisions applicable to the particular debt 
being collected.
    (f) Matters not addressed in these regulations should be reviewed in 
accordance with the Federal Claims Collection Standards at 4 CFR 101.1 
et seq.



Sec. 1179.2  Definitions.

    For the purposes of the part the following definitions will apply:
    Agency means an executive agency as is defined at 5 U.S.C. 105 
including the U.S. Postal Service, the U.S. Postal Commission, a 
military department as defined at 5 U.S.C. 102, an agency or court in 
the judicial branch, an agency of the legislative branch including the 
U.S. Senate and House of Representatives and other independent 
establishments that are entities of the Federal government.
    Chairperson means the Chairperson of the National Endowment for the 
Humanities or the Chairperson's designee.
    Creditor agency means the agency to which the debt is owed.
    Debt means an amount owed to the United States from sources which 
include loans insured or guaranteed by the United States and all other 
amounts due the United States from fees, leases, rents, royalties, 
services, sales or real or personal property, overpayments, penalties, 
damages, interests, fines, forfeitures, (except those arising under the 
Uniform Code of Military Justice) and all other similar sources.
    Disposable pay means the amount that remains from an employee's 
Federal pay after required deductions for social security, Federal, 
state or local income tax, health insurance premiums, retirement 
contributions, life insurance premiums, Federal employment taxes, and 
any other deductions that are required to be withheld by law.
    Hearing official means an individual responsible for conducting any 
hearing with respect to the existence or amount of a debt claimed, and 
who renders a decision on the basis of such hearing. A hearing official 
may not be under the supervision or control of the Chairperson of the 
National Endowment for the Humanities.
    Paying Agency means the agency that employes the individual who owes 
the debt and authorizes the payment of his/her current pay.
    Salary offset means an administrative offset to collect a debt 
pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially 
established pay intervals from the current pay account of an employee 
without his/her consent.



Sec. 1179.3  Applicability.

    (a) These regulations are to be followed when:
    (1) The National Endowment for the Humanities is owed a debt by an 
individual currently employed by another Federal agency;
    (2) The National Endowment for the Humanities is owed a debt by an 
individual who is a current employee of the National Endowment for the 
Humanities; or
    (3) The National Endowment for the Humanities employs an individual 
who owes a debt to another Federal agency.



Sec. 1179.4  Notice requirements.

    (a) Deductions shall not be made unless the employee is provided 
with written notice signed by the Chairperson of the debt at least 30 
days before salary offset commences.
    (b) The written notice shall contain:
    (1) A statement that the debt is owed and an explanation of its 
nature, and amount;
    (2) The agency's intention to collect the debt by deducting from the 
employee's current disposable pay account;
    (3) The amount, frequency proposed beginning date, and duration of 
the intended deduction(s);

[[Page 580]]

    (4) An explanation of interest, penalties, and administrative 
charges, including a statement that such charges will be assessed unless 
excused in accordance with the Federal Claims Collections Standards at 4 
CFR 101.1 et seq.;
    (5) The employee's right to inspect, request, or receive a copy of 
government records relating to the debt;
    (6) The opportunity to establish a written schedule for the 
voluntary repayment of the debt;
    (7) The right to a hearing conducted by an impartial hearing 
official;
    (8) The methods and time period for petitioning for hearings;
    (9) A statement that the timely filing of a petition for a hearing 
will stay the commencement of collection proceedings;
    (10) A statement that a final decision on the hearing will be issued 
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;
    (11) A statement that knowingly false or frivolous statements, 
representations, or evidence may subject the employee to appropriate 
disciplinary procedures;
    (12) A statement of other rights and remedies available to the 
employee under statutes or regulations governing the program for which 
the collection is being made; and
    (13) Unless there are contractual or statutory provisions to the 
contrary, a statement that amounts paid on or deducted for the debt 
which are later waived or found not owed to the United States will be 
prompty refunded to the employee.



Sec. 1179.5  Hearing.

    (a) Request for hearing. (1) An employee must file a petition for a 
hearing in accordance with the instructions outlined in the agency's 
notice to offset. (2) A hearing may be requested by filing a written 
petition addressed to the Chairperson of the National Endowment for the 
Humanities stating why the employee disputes the existence or amount of 
the debt. The petition for a hearing must be received by the Chairperson 
no later than fifteen (15) calendar days after the date of the notice to 
offset unless the employee can show good cause for failing to meet the 
deadline date.
    (b) Hearing procedures. (1) The hearing will be presided over by an 
impartial hearing official. (2) The hearing shall conform to procedures 
contained in the Federal Claims Collection Standards 4 CFR 102.3(c). The 
burden shall be on the employee to demonstrate that the existence or the 
amount of the debt is in error.



Sec. 1179.6  Written decision.

    (a) The hearing official shall issue a written opinion no later than 
60 days after the hearing.
    (b) The written opinion will include: a statement of the facts 
presented to demonstrate the nature and origin of the alleged debt; the 
hearing official's analysis, findings and conclusions; the amount and 
validity of the debt, and the repayment schedule.



Sec. 1179.7  Coordinating offset with another Federal agency.

    (a) The Endowment as the creditor agency. (1) When the Chairperson 
determines that an employee of a Federal agency owes a delinquent debt 
to the National Endowment for the Humanities, the Chairperson shall as 
appropriate:
    (i) Arrange for a hearing upon the proper petitioning by the 
employee;
    (ii) Certify in writing that the employee owes the debt, the amount 
and basis of the debt, the date on which payment is due, the date the 
Government's right to collect the debt accrued, and that Endowment 
regulations for salary offset have been approved by the Office of 
Personnel Management;
    (iii) If collection must be made in installments, the Chairperson 
must advise the paying agency of the amount or percentage of disposable 
pay to be collected in each installment;
    (iv) Advise the paying agency of the actions taken under 5 U.S.C. 
5514(b) and provide the dates on which action was taken unless the 
employee has consented to salary offset in writing or signed a statement 
acknowledging receipt of procedures required by law.

[[Page 581]]

The written consent or acknowledgment must be sent to the paying agency;
    (v) If the employee is in the process of separating, the Endowment 
must submit its debt claim to the paying agency as provided in this 
part. The paying agency must certify any amounts already collected, 
notify the employee, and send a copy of the certification and notice of 
the employee's separation to the creditor agency. If the paying agency 
is aware that the employee is entitled to Civil Service Retirement and 
Disability Fund or similar payments, it must certify to the agency 
responsible for making such payments the amount of the debt and that the 
provisions of this part have been followed; and
    (vi) If the employee has already separated and all payments due from 
the paying agency have been paid, the Chairperson may request unless 
otherwise prohibited, that money payable to the employee from the Civil 
Service Retirement and Disability Fund or other similar funds be 
collected by administrative offset.
    (b) The Endowment as the paying agency. (1) Upon receipt of a 
properly certified debt claim from another agency, deductions will be 
scheduled to begin at the next established pay interval. The employee 
must receive written notice that the National Endowment for the 
Humanities has received a certified debt claim from the creditor agency, 
the amount of the debt, the date salary offset will begin, and the 
amount of the deduction(s). The National Endowment for the Humanities 
shall not review the merits of the creditor agency's determination of 
the validity or the amount of the certified claim.
    (2) If the employee transfers to another agency after the creditor 
agency has submitted its debt claim to the National Endowment for the 
Humanities and before the debt is collected completely, the National 
Endowment for the Humanities must certify the total amount collected. 
One copy of the certification must be furnished to the employee. A copy 
must be furnished the creditor agency with notice of the employee's 
transfer.



Sec. 1179.8  Procedures for salary offset.

    (a) Deductions to liquidate an employee's debt will be by the method 
and in the amount stated in the Chairperson's notice of intention to 
offset as provided in Sec. 1179.4. Debts will be collected in one lump 
sum where possible. If the employee is financially unable to pay in one 
lump sum, collection must be made in installments.
    (b) Debts will be collected by deduction at officially established 
pay intervals from an employee's current pay account unless alternative 
arrangements for repayment are made.
    (c) Installment deductions will be made over a period not greater 
than the anticipated period of employment. The size of installment 
deductions must bear a reasonable relationship to the size of the debt 
and the employee's ability to pay. The deduction for the pay intervals 
for any period must not exceed 15% of disposable pay unless the employee 
has agreed in writing to a deduction of a greater amount.
    (d) Unliquidated debts may be offset against any financial payment 
due to a separated employee including but not limited to final salary 
payment or leave in accordance with 31 U.S.C. 3716.



Sec. 1179.9  Refunds.

    (a) The National Endowment for the Humanities will refund promptly 
any amounts deducted to satisfy debts owed to the NEH when the debt is 
waived, found not owed to the NEH, or when directed by an administrative 
or judicial order.
    (b) The creditor agency will promptly return any amounts deducted by 
NEH to satisfy debts owed to the creditor agency when the debt is 
waived, found not owed, or when directed by an administrative or 
judicial order.
    (c) Unless required by law, refunds under this section shall not 
bear interest.



Sec. 1179.10  Statute of limitations.

    If a debt has been outstanding for more than 10 years after the 
agency's right to collect the debt first accrued, the agency may not 
collect by salary offset unless facts material to the Government's right 
to collect were not known and could not reasonably have been known by 
the official or officials

[[Page 582]]

who were charged with the responsibility for discovery and collection of 
such debts.



Sec. 1179.11  Non-waiver of rights.

    An employee's involuntary payment of all or any part of a debt 
collected under these regulations will not be construed as a waiver of 
any rights that employee may have under 5 U.S.C. 5514 or any other 
provision of contract law unless there are statutes or contract(s) to 
the contrary.



Sec. 1179.12  Interest, penalties, and administrative costs.

    Charges may be assessed for interest, penalties, and administrative 
costs in accordance with the Federal Claims Collection Standards, 4 CFR 
102.13.

[[Page 583]]



          SUBCHAPTER E_INSTITUTE OF MUSEUM AND LIBRARY SERVICES





PART 1180_GRANTS REGULATIONS--Table of Contents




        Subpart A_General Operating Support; Conservation Grants

Sec.
1180.1 Purpose of museum services program.
1180.2 Scope of this document.
1180.3 Definition of museum.
1180.4 Other definitions.
1180.5 Eligibility and burden of proof--Who may apply.
1180.6 Related institutions.
1180.7 General Operating Support.
1180.8 Two-year grant period.
1180.9 Limitation on amount of General Operating Support grants.
1180.10 Allowable costs.
1180.11 Basic requirements which a museum must meet to be considered for 
          funding.
1180.12 How applications are judged.
1180.13 Criteria for evaluation of applications for General Operating 
          Support.
1180.14 [Reserved]
1180.15 Duration of grants.
1180.16 Contributions, restricted accounts.
1180.17 Reports.
1180.18 Maintenance of effort.
1180.19 [Reserved]
1180.20 Guidelines and standards for conservation projects.

     Subpart B_General Application, Selection and Award Procedures 
                              Applications

                              Applications

1180.30 Publication of an application notice; content of the notice.
1180.31 Information in the application notice.
1180.32 Deadline date for applications.
1180.33 Applicants must meet procedural rules.
1180.34 Number of copies.
1180.35 Group applications.

                     Selection and Award Procedures

1180.36 Rejection of an application.
1180.37 Rejection for technical deficiency--appeal; reconsideration; 
          waiver.
1180.38 How grants are processed.
1180.39 Applications not selected for funding.
1180.40 [Reserved]
1180.41 The cost analysis; basis for grant amount.
1180.42 The notification of grant award.
1180.43 Effect of the grant.

       Subpart C_General Conditions Which Must Be Met by a Grantee

                            Nondiscrimination

1180.44 Federal statutes and regulations on nondiscrimination.
1180.45 Use of consultants in Special Projects.

                               Evaluation

1180.46 Evaluation by the grantee.
1180.47 Federal evaluation--Cooperation by a grantee.

                       Publications and Copyrights

1180.48 General conditions on publications.
1180.49 Copyright policy for grantees.
1180.50 Definition of ``materials.''

                 General Administrative Responsibilities

1180.51 Compliance with statutes, regulations, and its approved grant 
          application.
1180.52 The grantee administers or supervises the grant.
1180.53 Fiscal control and fund accounting procedures.
1180.54 Obligation of funds during the grant period.
1180.55 Prohibition of subgrants.

                                 Records

1180.56 Records related to grant funds.
1180.57 Records related to compliance.
1180.58 Records related to performance.
1180.59 Applicability.

                       Subpart D_Museum Assessment

1180.70 Purpose of program.
1180.71 Eligibility.
1180.72 Allowable costs.
1180.73 Form of assistance; limitation on amount.
1180.74 Conditions of participation.
1180.75 Funding and award procedures.
1180.76 Responsibility of a museum.

        Subpart E_Assistance to Professional Museum Organizations

1180.77 Contracts and cooperative agreements with professional museum 
          organizations.
1180.78 Technical training and implementation grants to museums.

Subpart F [Reserved]

[[Page 584]]

        Subpart G_Meetings of the National Museum Services Board

                                 General

1180.80 Scope.
1180.81 General rule.
1180.82 Application to NMSB committees.
1180.83 Record vote.

                        Announcement of Meetings

1180.84 Public announcement of meetings.
1180.85 Changes in time or place of meeting.
1180.86 Changes in subject matter of meeting.
1180.87 Publication of announcements.

                             Closed Meetings

1180.88 Reasons and procedures for closing meetings.
1180.89 Requests to close meetings.
1180.90 Materials related to closed portions of meetings.
1180.91 Opening of transcript or recording of closed meeting.

Appendix A to Part 1180

    Authority: 20 U.S.C. 961-968; Pub. L. 97-100, 95 Stat. 1414; Pub. L. 
97-394, 96 Stat. 1994; 29 U.S.C. 794.

    Source: 48 FR 27728, June 17, 1983, unless otherwise noted.



        Subpart A_General Operating Support; Conservation Grants



Sec. 1180.1  Purpose of museum services program.

    The purpose of this program of Federal financial assistance is to 
ease the financial burden borne by museums as a result of their 
increasing use by the public and to encourage and assist them to carry 
out their educational and conservation roles as well as other functions 
and to modernize their methods and facilities.



Sec. 1180.2  Scope of this document.

    This document establishes rules for the award of grants to museums 
from funds appropriated under the Museum and Library Services Act 
including rules governing the eligibility of applicant institutions, the 
type of assistance which may be provided, requirements which applicants 
must meet and criteria to be used in judging applications.

[48 FR 27728, June 17, 1983, as amended at 66 FR 47096, Sept. 11, 2001]



Sec. 1180.3  Definition of museum.

    For the purpose of this part:
    (a) Museum means a public or private nonprofit institution which is 
organized on a permanent basis for essentially educational or aesthetic 
purposes and which, using a professional staff:
    (1) Owns or uses tangible objects, either animate or inanimate;
    (2) Cares for these objects; and
    (3) Exhibits them to the general public on a regular basis.
    (i) An institution which exhibits objects to the general public for 
at least 120 days a year shall be deemed to meet this requirement.
    (ii) An institution which exhibits objects by appointment may meet 
this requirement if it can establish, in light of the facts under all 
the relevant circumstances, that this method of exhibition does not 
unreasonably restrict the accessibility of the institution's exhibits to 
the general public.
    (b) Museum includes (but is not limited to) the following 
institutions if they satisfy the provisions of this section:
    (1) Aquariums and zoological parks;
    (2) Botanical gardens and arboretums;
    (3) Nature Centers;
    (4) Museums relating to art, history (including historic buildings), 
natural history, science and technology; and
    (5) Planetariums.
    (c) For the purposes of this section, an institution uses a 
professional staff if it employs at least one staff member, or the 
fulltime equivalent, whether paid or unpaid primarily engaged in the 
acquisition, care, or exhibition to the public of objects owned or used 
by the institution.
    (d)(1) Except as set forth in paragraph (d)(2) of this section, an 
institution exhibits objects to the general public for the purposes of 
this section if such exhibition is a primary purpose of the institution.
    (2) An institution which does not have as a primary purpose the 
exhibition of objects to the general public but which can demonstrate 
that it exhibits objects to the general public on a regular basis as a 
significant, separate, distinct, and continuing portion of its 
activities, and that it otherwise meets the requirements of this 
section,

[[Page 585]]

may be determined to be a museum under this section. In order to 
establish its eligibility, such an institution must provide information 
regarding the following:
    (i) The number of staff members devoted to museum functions as 
described in paragraph (a) of this section.
    (ii) The period of time that such museum functions have been carried 
out by the institution over the course of the institution's history.
    (iii) Appropriate financial information for such functions presented 
separately from the financial information of the institution as a whole.
    (iv) The percentage of the institution's total space devoted to such 
museum functions.
    (v) Such other information as the Director requests.
    (3) The Director uses the information furnished under paragraph 
(d)(2) of this section in making a determination regarding the 
eligibility of such an institution under this section.
    (e) For the purpose of this section, an institution exhibits objects 
to the public if it exhibits the objects through facilities which it 
owns or operates.

[48 FR 27728, June 17, 1983, as amended at 50 FR 27587, July 5, 1985]



Sec. 1180.4  Other definitions.

    The following other definitions apply in this document:
    Act means the Museum and Library Services Act, Public Law 104-208 
(20 U.S.C. 9101-9176).
    Board means the National Museum Services Board established under 
Section 204 of the Act.
    Collection includes objects owned, used or loaned by a museum as 
well as those literary, archival and documentary resources specifically 
required for the study and interpretation of these objects.
    Foundation means the National Foundation on the Arts and the 
Humanities.
    Director means the Director of the Institute of Museum and Library 
Services.
    Grantee means the recipient of a grant under the Act.
    Institute means the Institute of Museum and Library Services (IMLS) 
established under Section 203 of the Act.
    Museum services means services provided by a museum, primarily 
exhibiting objects to the general public, and including but not limited 
to preserving and maintaining its collections, and providing educational 
and other programs to the public through the use of its collections and 
other resources.



Sec. 1180.5  Eligibility and burden of proof--Who may apply.

    (a) A museum located in any of the fifty States of the Union, the 
Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, the 
Northern Mariana Islands, the Trust Territory of the Pacific Islands, 
Guam, or the District of Columbia may apply for a grant under the Act.
    (b) No museum is eligible to apply for funding available under the 
Act unless it has provided museum services, including exhibiting objects 
to the general public on a regular basis, for at least two years prior 
to application.
    (c) A public or private nonprofit agency which is responsible for 
the operation of a museum may, if necessary, apply on behalf of the 
museum.
    (d) A museum operated by a department or agency of the Federal 
Government is not eligible to apply.
    (e) An applicant has the burden of establishing that it is eligible 
for assistance under these regulations.
    (f) In a given year, a museum that has not received two consecutive 
General Operating Support awards in the immediately preceding two-year 
cycles is eligible to apply for General Operating Support.

[50 FR 27588, July 5, 1985, as amended at 60 FR 63964, Dec. 13, 1995]



Sec. 1180.6  Related institutions.

    (a) If two or more institutions are under the common control of one 
agency or institution or are otherwise organizationally related and 
apply for assistance under the Act, the Director determines under all 
the relevant circumstances whether they are separate museums for the 
purposes of establishing eligibility for assistance under these 
regulations. See Sec. Sec. 1180.5 and 1180.9.
    (b) IMLS regards the following factors, among others, as showing 
that a

[[Page 586]]

related institution is a separate museum:
    (1) The institution has its own governing body;
    (2) The institution has budgetary autonomy; and
    (3) The institution has administrative autonomy.



Sec. 1180.7  General Operating Support.

    In order to maintain, increase or improve museum services, a museum 
may apply for a grant under the Act to meet administrative, staff and 
operating costs, except as otherwise provided in these regulations.



Sec. 1180.8  Two-year grant period.

    (a) IMLS makes General Operating Support grants for a period of 
twenty-four months beginning with the first month of the grant period.
    (b) A museum that receives a General Operating Support grant in a 
Federal fiscal year may not apply for an additional General Operating 
Support grant in the succeeding Federal fiscal year.

    Example. A museum applies for a General Operating Support grant in 
Federal fiscal year 1993. The museum receives a grant that it may use 
during the applicable 24-month grant period. The museum may not apply 
for an additional General Operating Support grant in Federal fiscal year 
1994.

[57 FR 36905, Aug. 17, 1992]



Sec. 1180.9  Limitation on amount of General Operating Support grants.

    (a) General rule. IMLS makes General Operating Support grants in an 
amount not to exceed the lesser of:
    (1) the ceiling amount established under paragraph (b);
    (2)(i) 15 percent of the applicant museum's non-Federal operating 
income for its most recently completed fiscal year that is prior to the 
Federal fiscal year in which the application is filed; or
    (ii) $7,500, if larger.
    (b) Ceiling amount. The ceiling amount of a General Operating 
Support grant will be established through a notice published in the 
Federal Register. Beginning in FY 1993, the ceiling amount is $112,500.
    (c) Statutory requirement. Under section 206(c) of the Act, IMLS may 
not make a grant in excess of 50 percent of the annual cost of the 
program for which the grant is made. If the application of the $7,500 
limitation in paragraph (a)(2) of this section causes a General 
Operating Support grant to exceed 50 percent of the museum's annual 
operating income for the grant period in question, IMLS reduces the 
grant to that level in order to satisfy the statutory requirement.
    (d) Computation of non-Federal operating income. For the purposes of 
this section, a museum may include in non-Federal operating income an 
amount reflecting the reasonable and conservative value of non-cash 
contributions to the museum in the applicable fiscal year.


Examples. The application of these rules is set forth in the following 
examples:
    (1) In fiscal year 1993, a museum with calendar year 1991 operating 
income of $5,000,000 applies to IMLS for a General Operating Support 
grant. Its application is approved. It may receive a grant of no more 
than $112,500, the lesser of $112,500 and $750,000 which is 15 percent 
of the museum's non-Federal operating income.
    (2) In fiscal year 1993, a museum with calendar 1991 operating 
income of $700,000 applies to IMLS for a General Operating Support 
grant. Its application is approved. It may receive a grant of no more 
than $105,000 the lesser of $112,500 and 15 percent of the operating 
income which is $105,000.
    (3) In fiscal year 1993, a museum with calendar 1991 operating 
income of $40,000 applies to IMLS for a General Operating Support grant. 
Its application is approved. It may receive a grant of no more than 
$7,500, the larger of $7,500 or 15 percent of the museum's operating 
income which is $6,000. The grant satisfies the requirement of paragraph 
(c) (and the statute) that it not exceed 50 percent of the museum's 
operating income for that year.

[57 FR 36905, Aug. 17, 1992]



Sec. 1180.10  Allowable costs.

    (a) Determination of costs allowable under a grant is made in 
accordance with government-wide cost principles

[[Page 587]]

in applicable OMB circulars. (OMB circular A-21 (educational 
institutions) February 26, 1979, published in 44 FR 12368 (March 6, 
1979); OMB circular A-87 (State and local governments) January 15, 1981 
published in 46 FR 9548 (January 28, 1981); and OMB circular A-122 
(Nonprofit organizations) June 27, 1980, published in 45 FR 46022 (July 
8, 1980)).
    (b) No costs shall be allowed for the purchase of any object to be 
included in the collection of a museum, except library, literary, or 
archival material specifically required for a designated activity under 
a grant under the Act.



Sec. 1180.11  Basic requirements which a museum must meet to be considered 
for funding.

    (a) Application. To apply for a grant, a museum must submit the 
designated application form containing the information requested in the 
form. Failure to submit the information required by the application at 
the time of filing can subject an applicant to rejection of the 
application without consideration on its merits.
    (b) IRS letter. A museum applying as a private, nonprofit 
institution must submit a copy of the letter from the Internal Revenue 
Service indicating the applicant's eligibility for nonprofit status 
under the applicable provision of the Internal Revenue Code of 1954, as 
amended.
    (c) Financial statements. (1) Each applicant museum must submit, 
with its application at the time of filing, its financial statements for 
the two fiscal years immediately preceding the fiscal year for which 
application is made or, if not available, for the second and third 
immediately preceding years. Each financial statement must include a 
statement of financial operations and if applicable, a balance sheet. 
Examples of a financial statement and a balance sheet may be found in 
the Museum Accounting Guidelines of the Association of Science-
Technology Centers (1976) or in the Museum Accounting Handbook of the 
American Association of Museums (1978).
    (2)(i) Every applicant which has previously received an IMLS award 
must submit its audited financial statement for the last fiscal year 
immediately preceding the fiscal year in which application is made or 
the immediately preceding fiscal year, prepared by an individual or 
organization meeting the qualifications of the Comptroller General of 
the United States for individuals or organizations conducting Government 
audits. Reference is made to GAO, Standards for Audit of Governmental 
Organizations, Programs and Functions (1981 revision).
    (ii) In the case of a museum which does not use cash basis 
accounting, the individual or organization performing the audit must 
offer an opinion that the financial statement of the museum presents 
fairly the financial position and the results of financial operations in 
accordance with generally accepted accounting principles. In the case of 
a museum which uses cash basis accounting, the individual or 
organization performing the audit must offer an opinion that the 
statement presents fairly (A) revenues collected and expenditures made 
and (B), where a balance sheet is involved, the assets, liabilities, and 
fund balances of the museum arising from cash transactions.
    (3) If a museum is part of an organization such as a university, 
State or municipality and does not receive audits separate from those of 
the organization of which it is a part, it may submit its financial 
statement as drawn from and containing only audited figures of the 
organization of which the museum is a part. This financial statement, so 
prepared, must present fairly the financial position and the results of 
financial operations of the museum, and must clearly indicate that it 
has been so prepared and the Director may, upon written request filed at 
the time of the application, waive the requirement of a separate audit 
and proceed to process the application on its merits. Where the 
organization is not audited on an annual basis, the financial statement 
may be drawn from the most recent audited figures of the organization.
    (4) The Director is authorized to defer the audit requirement set 
forth in paragraph (c)(2) of this section in the case of a museum with 
non-federal operating income of $250,000 or less, exclusive of the value 
of non-cash contributions (in the fiscal period preceding the fiscal 
period for which the

[[Page 588]]

deferral is requested) if the Director finds that circumstances justify 
a deferral and that the grant of the deferral will not be inequitable to 
other applicants. A deferral may be granted only upon those conditions 
and in light of those assurances which the Director deems appropriate in 
order to ensure that the purposes of this paragraph are achieved. If the 
museum receives an award, the museum must submit audited financial 
statements no later than the end of the grant period for which the 
deferral is requested.
    (d) Long-range plans. Each applicant museum must include long-range 
plans for program and financial development.

(Museum Services Act, sec. 206, as amended, 20 U.S.C. 965)

(Approved by the Office of Management and Budget under control number 
3137-0015)

[48 FR 27728, June 17, 1983, as amended at 49 FR 14110, Apr. 10, 1984; 
50 FR 27588, July 5, 1985; 51 FR 43354, Dec. 2, 1986; 55 FR 10461, Mar. 
21, 1990; 59 FR 55593, Nov. 8, 1994]



Sec. 1180.12  How applications are judged.

    (a) To select grantees and determine the amount of their awards. 
IMLS rates competitive applications under the applicable criteria stated 
in Sec. 1180.13. Normally, these applications are first evaluated by 
field reviewers, panels of experts, or both. Final determinations as to 
the award of grants are made by the Director after review by the Board.
    (b) To achieve diversity in the distribution of assistance, the 
Institute may consider the location, size and discipline of the 
applicant in addition to the criteria in Sec. 1180.13.

[50 FR 27588, July 5, 1985]



Sec. 1180.13  Criteria for evaluation of applications for General Operating 
Support.

    The following criteria apply to the evaluation of all applications 
for General Operating Support. In applying these criteria, the total 
operation of the applicant museum is assessed, including the museum's 
operation as it would be if the General Operating Support is granted. 
This assessment is based primarily on the information supplied in the 
museum's application.
    (a) Museum services. Are the applicant's museum services of high 
quality? IMLS considers factors such as:
    (1) The quality of the museum's educational and interpretive 
services and their relevance to the collections and audience including 
the special constituencies which the museum serves;
    (2) The quality of the museum's physical facilities and the manner 
in which space is allocated to various museum activities; and
    (3) The qualifications of the professional staff (both full-time and 
part-time; paid and volunteer) and the quality of the opportunities for 
professional staff development and in-service training afforded by the 
museum.
    (b) Collections and exhibits. Are the museum's collections and 
exhibits of high quality and significance? IMLS takes into account such 
factors as:
    (1) The intrinsic value of the collections and exhibits;
    (2) The significance of the museum's collections to the community; 
and
    (3) The quality of the care and conservation of the collections; the 
quality of exhibit designs.
    (c) Accessibility. How accessible to the general public are the 
museum's services, collections and exhibits? IMLS considers such factors 
as:
    (1) The percentage of the museum's collections on view to the 
general public on a regular basis; the extent of the museum's regular 
program for outreach, loans, and other means of exhibiting its 
collections to the public;
    (2) The annual schedule of open hours for the museum; and
    (3) The appropriateness of this schedule to the museum's audience.
    (d) Population served. To what extent does the museum serve a 
general public which otherwise would have limited access to the type of 
museum services which it provides or to museum services of any type? To 
what extent does the public seek access to the museum's services? IMLS 
considers such factors as:
    (1) The characteristics of the audience and the community which the 
museum serves;
    (2) The availability of other museums (or types of museums) which 
serve this audience and this community; and

[[Page 589]]

    (3) The museum's annual attendance by calendar quarters.
    (e) Financial Management. What is the quality of the financial 
management of the museum? In how many of the last five years has the 
museum shown an excess of revenues over expenditures? IMLS considers 
such factors as:
    (1) The financial condition of the museum as reflected in its 
financial statements;
    (2) The quality of the museum's plans for remedying any financial 
weaknesses in the museum's operations; and
    (3) The qualifications of the museum staff assigned to financial 
management activities.
    (f) Long-range plans. What is the quality of the museum's long-range 
plans for financial and program development? What are the museum's plans 
for the expenditure of the grant funds? IMLS considers such factors as:
    (1) The quality of the museum's long-range plans; how the museum 
proposes to implement them; how practical are the steps the museum plans 
to take to implement them?
    (2) The probability that the General Operating Support grant, if 
awarded, will assist the museum in carrying out its long-range plans;
    (3) In what manner will this grant, if awarded, contribute to 
maintaining, increasing or improving the museum's services?
    (g) Community commitment. How committed to the museum are its users 
and supporters? Does the museum have a substantial base of non-Federal 
support? Does it have a strong volunteer program? IMLS considers such 
factors as:
    (1) The quality and extent of the financial support that the museum 
receives from the private sector and other non-Federal sources and the 
extent to which this support is stable, broad-based and indicative of 
continuing community commitment;
    (2) The quality of the museum's volunteer program and its program of 
in-kind contributions and their importance to the museum's annual 
operations; and
    (3) The commitment of its users to the museum as evidenced by such 
factors as participation in membership and docent programs, fund raising 
and other supportive activities.
    (h) Non-Federal support. To what extent, if any, will the General 
Operating Support requested enable the museum to increase its base of 
State, local and private funding in the year for which assistance is 
requested and beyond?
    (i) Past use of IMLS funds (when applicable). Has the museum used 
its IMLS funds effectively? How and in what amounts and in what manner 
have they been used?



Sec. 1180.14  [Reserved]



Sec. 1180.15  Duration of grants.

    The grantee may use grant funds during the period specified in the 
grant document unless the grant is suspended or terminated. If the 
grantee needs additional time to complete the grant, the grantee may 
apply for an extension of the grant period without additional funds. The 
Director may approve this extension at his or her discretion.

[57 FR 36905, Aug. 17, 1992]



Sec. 1180.16  Contributions, restricted accounts.

    (a) For a particular fiscal year, and for one or more programs, the 
Director may determine that an amount equal to the amount to be awarded 
(or a percentage thereof) to an applicant under the Act must consist of 
non-Federal funds contributed to the museum in excess of the non-Federal 
funds contributed to the museum for its immediately preceding fiscal 
year.
    (b) A museum shall maintain a restricted account for funds received 
under the Act.

[57 FR 36905, Aug. 17, 1992, as amended at 66 FR 47096, Sept. 11, 2001]



Sec. 1180.17  Reports.

    In its final reports a grantee shall briefly detail how the 
expenditure of the grant funds has satisfied the proposed use of the 
funds as stated in its General Operating Support application or has 
accomplished the proposal as set forth in its application and has served 
the purpose of the Act as reflected in the applicable evaluation 
criteria in Sec. 1180.13.

[60 FR 63964, Dec. 13, 1995]

[[Page 590]]



Sec. 1180.18  Maintenance of effort.

    A grantee must be able to demonstrate a continuing effort to 
maintain or increase its base of financial support during the fiscal 
year for which it receives a grant from IMLS. A grantee successfully 
demonstrates maintenance of effort if its non-federal operating income 
during the fiscal year of its award is at least equal to its non-federal 
operating income for its immediately preceding fiscal year.

[49 FR 14111, Apr. 10, 1984]



Sec. 1180.19  [Reserved]



Sec. 1180.20  Guidelines and standards for conservation projects.

    (a) Scope. The guidelines and standards in this document apply to 
all aspects of the IMLS conservation grant program including the 
submission of applications by museums for conservation grants, to the 
award, review and approval of such applications by IMLS, and to the 
carrying out of conservation grants awarded by IMLS.
    (b) Applicability of regulations. (1) Except as otherwise provided 
in these guidelines, subparts A-C of this part, part 1180 of Title 45 
CFR, (45 CFR 1180.1-1180.58) (IMLS Grants Regulations), as amended, 
including Sec. Sec. 1180.35, 1180.41, 1180.45, 1180.48, and 1180.49, 
apply to the IMLS conservation grant program.
    (2) Sections 1180.11(d) does not apply. A museum which applies for a 
conservation grant need not submit a long-range plan.
    (3) Section 1180.16(b), which provides for the maintenance of a 
restricted account, does apply to conservation grants.
    (4) Section 1180.18 (relating to maintenance of effort) does not 
apply.
    (5) In addition to submitting the final report required by Sec. 
1180.17, a grantee must submit an interim report in accordance with a 
schedule set forth in the grant award document. An applicant that has 
received a prior conservation grant from IMLS the performance of which 
has not been completed may be required to submit an additional 
performance report or submit an interim report early.
    (c) Definition. As used in these guidelines, the term conservation 
includes, but is not limited to, the following functions, as applied to 
art, history, natural history, science and technology, and living 
collections:
    (1) Technical examination of materials and surveys of environmental 
and collection conditions;
    (2) Provision, insofar as practicable, of optimum environmental 
conditions for housing, exhibition, monitoring, reformating, nurturing 
and transportation of objects;
    (3) Physical treatment of objects, specimens and organisms, for the 
purpose of stabilizing, conserving and preserving their condition, 
removal of inauthentic additions or accretions, and physical 
compensation for losses; species survival activities; and
    (4) Research and training in conservation.
    (d) Applicants. Under the Museum and Library Services Act only a 
museum may receive a grant. (20 U.S.C. 9173(a)). See Sec. 1180.3 of the 
IMLS regulations for the definition of ``museum''. A museum may apply 
for and receive only one conservation grant under this program in a 
fiscal year.
    (e) Types of conservation projects funded. IMLS considers 
applications to carry out conservation projects such as:
    (1) Projects to develop improved or less costly methods of 
conservation, or to maintain or improve conservation with respect to one 
or more collections, including--
    (i) Projects involving surveys of conservation needs and
    (ii) Projects to establish or maintain optimum environmental 
conditions.
    (2) Projects to conduct research in conservation (including 
developmental and basic research).
    (3) Projects to conduct or obtain training in conservation 
(including training of persons for careers as professional conservators; 
training or upgrading of practicing conservators and conservation 
technicians in the use of new materials and techniques; and training of 
persons to become conservation technicians).
    (4) Projects related to museum conservation needs not regularly 
addressed by other Federal funding agencies.
    (5) Projects to meet the conservation needs of museums which are 
unable to

[[Page 591]]

maintain their own individual conservation facilities. Because grants 
are made only to museums, organizations which operate regional 
conservation centers but which are not museums are ineligible for a 
direct grant. However, a museum or a group of museums may use a grant to 
obtain services from such a center.
    (6) Projects to conserve particular objects in a museum's collection 
(including plants and animals) or to meet the conservation needs of a 
particular museum (through such activities as the employment of 
conservators and the procurement of conservation services or equipment).
    (f) Limits for Federal funding. (1) The normal amount of a 
Conservation Project Support grant will be established through a notice 
published in the Federal Register. Beginning in FY 1996, the normal 
maximum amount is $50,000. Unless otherwise provided by law, if the 
Director determines that exceptional circumstance warrant, the Director, 
consistent with the policy direction of the Board, may award a 
conservation grant which obligates an amount in Federal funds in excess 
of the normal maximum award. IMLS may establish a maximum award level 
for exceptional project grants for a particular fiscal year through 
information made available in guidelines or other material distributed 
to all applicants.
    (2) A conservation grant is not included in the maximum amount which 
a museum may expect to receive from IMLS for a fiscal year, as set forth 
pursuant to Sec. 1180.9 of the regulations. Therefore, a museum may 
receive, for example, a General Operating Support grant for the amount 
specified pursuant to that section and an additional amount for a 
conservation grant in a fiscal year.
    (3) IMLS makes conservation grants only on a matching basis. This 
means that at least 50 per cent of the costs of a conservation project 
must be met from non-federal funds. Principles in applicable OMB 
circulars regarding costs sharing or matching apply. See, e.g., OMB 
Circular A-102, Attachment F.
    (g) Application requirements; priorities; survey required in certain 
cases. (1) Application requirements in Sec. 1180.11 (a), (b), and (c) 
apply. An application shall describe when, during the term of the grant, 
the applicant plans to complete each objective or phase of the project. 
Where appropriate, IMLS may require an applicant to submit a 
dissemination plan.
    (2) The Director, by notice published in the Federal Register, may 
establish priorities with respect to all or part of the funds available 
to IMLS for conservation for a fiscal year among the types of projects 
specified in paragraph (e) of this section. If the Board establishes one 
or more types of projects as a priority for a fiscal year, applications 
proposing projects of that type (or types) are evaluated, ranked and (if 
recommended for funding) approved before applications proposing other 
types of projects.
    (3) The Director may, to the extent appropriate, require (by 
instructions in the application materials) that an applicant which 
proposes a project to conserve particular objects must show that, prior 
to the submission of the application, it has carried out a general 
survey of its conservation needs and priorities and that the project in 
question is consistent with such survey. In exceptional circumstances, 
the Director may adjust this requirement, consistent with the policy 
direction of the Board. The Director may also (through such 
instructions) require an applicant for a conservation project to submit 
additional information, material, or undertakings to carry out the 
purposes of this part.
    (h) Procedures for review of applications. (1) IMLS uses the 
procedures stated in this paragraph to review applications for 
conservation projects.
    (2) IMLS evaluates all eligible applications for conservation 
projects in accordance with applicable criteria. (See paragraph (i) of 
this section.) The Director expects to use panels of experts to review 
at least a portion of the applications for conservation grants. 
Depending upon the number of applications received as well as other 
factors, the Director may also use field reviewers to evaluate 
applications before submission of applications to the panels. In 
addition, the Director may use technical experts to provide technical 
advice regarding certain applications.

[[Page 592]]

See generally Sec. 1180.12 of the IMLS regulations.
    (3) IMLS evaluates applications for conservation projects separately 
from applications for general operating support.
    (i) Criteria. This paragraph sets forth the criteria which IMLS uses 
in evaluating and reviewing applications for conservation grants. 
Panelists and field reviewers are instructed to use only these criteria 
in the evaluation and review of these applications.
    (1) The following programmatic criteria apply to the evaluation and 
review of conservation grants:
    (i) What is the importance of the object or objects to be conserved? 
What is the significance of the object or objects to the museum's 
collection and/or audience?
    (ii) What is the need for the project, including the relationship of 
the project to the conservation needs and priorities of the applicant 
museum as reflected in a survey of conservation needs or similar needs 
assessment?
    (iii) What are the applicant's plans to use and maintain the 
anticipated results or benefits of the project after the expiration of 
Federal support?
    (iv) Does the applicant plan to devote adequate financial and other 
resources to the project without inhibiting its ongoing activities?
    (2) The following technical criteria apply to the evaluation and 
review of applications for conservation grants:
    (i) What is the nature of the proposed project with respect to 
project design and management plan?
    (ii) To what extent does the application exhibit knowledge of the 
technical area to which the conservation project relates and employ the 
most promising or appropriate methods or techniques of conservation? To 
what extent is the conservation project likely to use, develop or 
demonstrate improved, more efficient, or more economic methods of 
conservation?
    (iii) Does the project have an adequate budget to achieve its 
purpose? Is the budget reasonable and adequate in relation to the 
objectives of the project?
    (iv) What are the qualifications of the personnel the applicant 
plans to use on the project and the proposed time that each such person 
is obligated to commit to the project?
    (j) Duration of grant. IMLS makes a conservation grant under this 
section for a period of not to exceed two years.
    (k) Grant condition. An applicant which has received a grant in a 
prior fiscal year under the IMLS conservation grant program may not 
receive a grant in a subsequent fiscal year under this section until 
required reports have been submitted regarding the performance of the 
previous grant.
    (l) Allowable and unallowable costs. (1) Section 1180.10 of the IMLS 
regulations, which applies to conservation grants, sets forth the rules 
applicable to determining the allowability of costs under IMLS grants 
and refers readers to the OMB circulars containing applicable cost 
principles which govern Federal grants generally.
    (2) In general such costs as compensation for personal services, 
costs of materials and supplies, rental costs, and other administrative 
costs specifically related to a conservation project are allowable under 
a conservation grant in accordance with applicable cost principles.
    (3) Costs of alterations, repairs and restoration to an existing 
facility are allowable when they are related to a conservation project 
under a conservation grant in accordance with applicable cost 
principles.
    (4) Costs of equipment are generally allowable if related to a 
conservation project but do require the specific approval of the 
Director as indicated in the grant award document.
    (5) A grantee may award a stipend to an individual for training in 
connection with a conservation project. Stipends and allowances may be 
paid at rates and under conditions established by the Director 
consistent with policies of other agencies in the Foundation or other 
agencies or instrumentalities of the United States providing comparable 
assistance with respect to conservation.
    (6) Costs of new construction are unallowable. For example, a museum 
may not a use a conservation grant to construct a new building or an 
addition to

[[Page 593]]

an existing building to improve the environment in which its collections 
are housed.

[50 FR 27585, July 5, 1985, as amended at 51 FR 43353, Dec. 2, 1986; 56 
FR 10178, Mar. 11, 1991; 57 FR 36905, Aug. 17, 1992; 60 FR 63964, Dec. 
13, 1995; 66 FR 47096, Sept. 11, 2001]



     Subpart B_General Application, Selection and Award Procedures 
                              Applications

                              Applications



Sec. 1180.30  Publication of an application notice; content of the notice.

    Each fiscal year the Director publishes application notices in the 
Federal Register that explain what kind of assistance is available that 
fiscal year under the Act.



Sec. 1180.31  Information in the application notice.

    (a) The application notice usually includes:
    (1) How an applicant can get an application packet containing 
detailed information about the program including an application form;
    (2) Where an applicant must send its application;
    (3) The amount of funds available for grants;
    (4) The approximate number of grants the Institute expects to make 
under the program;
    (5) The expected cap on grant(s) that may be applied for;
    (6) Any priorities established by the Institute for that year;
    (7) A reference to the applicable regulations.
    (b) [Reserved]



Sec. 1180.32  Deadline date for applications.

    (a) The application notice sets deadline date for applications to be 
postmarked or hand delivered to the Institute. The applicant shall:
    (1) Mail the application to the address specified in the application 
notice on or before the deadline date; or
    (2) Hand deliver the application to the address specified in the 
application notice by 4:30 p.m. (Washington, DC time) on deadline date.
    (b) An applicant must be prepared to show one of the following as 
proof of timely mailing:
    (1) A legibly dated U.S. Postal Service postmark.
    (2) A legible mail receipt with the date of mailing stamped by the 
U.S. Postal Service.
    (3) A dated shipping label, invoice, or receipt from a commercial 
carrier.
    (4) Any other dated proof of mailing acceptable to the Director.
    (c) If an application is mailed through the U.S. Postal Service, the 
Director does not accept either of the following as proof of mailing:
    (1) A private metered postmark.
    (2) A mail receipt that is not date cancelled by the U.S. Postal 
Service.



Sec. 1180.33  Applicants must meet procedural rules.

    The Director is authorized to make a grant only to an eligible 
applicant that submits a complete application, including attachments, on 
or before the deadline.



Sec. 1180.34  Number of copies.

    Each applicant shall submit an original and four copies of its 
application to the Institute.



Sec. 1180.35  Group applications.

    (a) Eligible museums may apply as a group for a project grant.
    (b) If a group of museums applies for a grant, the members of the 
group shall either:
    (1) Designate one member of the group to apply for the grant; or
    (2) Establish a separate, eligible legal entity, consisting solely 
of the museum group, to apply for the grant.
    (c) The members of the group, or entity, shall enter into an 
agreement that:
    (1) Details the activities that each member of the group plans to 
perform; and
    (2) Binds each member of the group to every statement and assurance 
made by the applicant in the application.
    (d) The applicant shall submit the agreement together with its 
application.

[[Page 594]]

    (e) If the Director makes a grant to a group of eligible museums, 
the applicant for the group is the grantee and is legally responsible 
for:
    (1) The use of all grant funds; and
    (2) Ensuring that the project is carried out by the group in 
accordance with applicable Federal laws, regulations, and requirements.
    (f) Each member of the group is legally responsible for:
    (1) Carrying out the activities it agrees to perform; and
    (2) Using the funds it receives under the agreement in accordance 
with applicable Federal laws, regulations, and requirements.

[48 FR 27728, June 17, 1983, as amended at 60 FR 63964, Dec. 13, 1995]

                     Selection and Award Procedures



Sec. 1180.36  Rejection of an application.

    (a) The Director rejects an application if:
    (1) The applicant is not eligible;
    (2) The applicant fails to comply with procedural rules that govern 
the submission of the application;
    (3) The application does not contain the information required;
    (4) The application cannot be funded under the authorizing statute 
or implementing regulations.
    (b) If the Director rejects an application under this section, the 
Director informs the applicant and explains why the application was 
rejected.



Sec. 1180.37  Rejection for technical deficiency--appeal; reconsideration; 
waiver.

    (a) An applicant whose application is rejected because of technical 
deficiency may appeal such rejection in writing to the Director within 
10 days of postmark of notice of rejection.
    (b) If an application was rejected because material did not 
accompany the application, the Director shall reconsider the application 
upon receipt of material in a timely manner.
    (c) As has always been the practice of IMLS, the Director waives the 
requirement in these regulations of certain records under circumstances 
which would require such waivers where the regulations specifically 
provide for waiver. (See Sec. 1180.51(b) (Pub. L. 97-394))



Sec. 1180.38  How grants are processed.

    (a)(1) The Director may use one or more groups of experts or readers 
to evaluate eligible applications.
    (2) Each group consists of three or more qualified persons.
    (3) In each group there must be at least one person who is not an 
employee of the Federal Government.
    (4) A person may not serve as a member of a group of experts or 
readers if the person is an employee of the Institute who is regularly 
involved in grants processing; however, the Director may sign a waiver 
for such person and that person may serve as a member of a group of 
experts or readers.
    (b) When the director uses a group of experts or readers, the group 
of experts or readers uses the applicable evaluation criteria set forth 
in the Regulations to evaluate each application.
    (c) After the groups of experts or readers have evaluated the 
applications, a rank ordering of the application is prepared. The rank 
ordering of the eligible applications is based solely on the evaluations 
of the applications by the groups of experts.
    (d) Subject to Sec. 1180.12, the Director, in consultation with the 
Board, then determines the order in which applications will be selected. 
The Director makes these determinations on the basis of the evaluation 
criteria and any priorities or other program requirements that have been 
published in the Federal Register. The Director may consider the 
following in making these determinations:
    (1) The application.
    (2) The rank ordering of the applications.
    (3) Any other information relevant to applicable criteria, 
priorities, or any other applicable information or requirements. (Cross 
reference. See Sec. 1180.12)



Sec. 1180.39  Applications not selected for funding.

    If an application is not selected for funding, the Director informs 
the applicant.

[[Page 595]]



Sec. 1180.40  [Reserved]



Sec. 1180.41  The cost analysis; basis for grant amount.

    Before the Director sets the amount of a grant, a cost analysis of 
the project is made which involves an examination of:
    (a) The cost data in the detailed budget for the project;
    (b) Specific elements of cost; and
    (c) The necessity, reasonableness, and allowability under applicable 
statutes and regulations.

[60 FR 63964, Dec. 13, 1995]



Sec. 1180.42  The notification of grant award.

    (a) The Director furnishes a notification of grant award to the 
grantee.
    (b) The notification of grant award sets the amount of the grant and 
gives other information about the grant.



Sec. 1180.43  Effect of the grant.

    The grant obligates both the Federal Government and the grantee to 
all of the requirements, regulations and statutes that apply to the 
grant.



       Subpart C_General Conditions Which Must Be Met by a Grantee

                            Nondiscrimination



Sec. 1180.44  Federal statutes and regulations on nondiscrimination.

    (a) Each grantee shall comply with the following statutes:

------------------------------------------------------------------------
                  Subject                              Statute
------------------------------------------------------------------------
Discrimination on the basis of race, color  Title VI of the Civil Rights
 or national origin.                         Act of 1964 (42 U.S.C.
                                             2000d through 2000d-4)
Discrimination on the basis of sex........  Title IX of the Education
                                             Amendments of 1972 (20
                                             U.S.C. 1681-1683).
Discrimination on the basis of handicap...  Section 504 of the
                                             Rehabilitation Act of 1973
                                             (29 U.S.C. 794).
Discrimination on the basis of age........  The Age Discrimination Act
                                             (420 U.S.C. 8101 et. seq).
------------------------------------------------------------------------

    (b)-(c) [reserved]
    (d) Regulations under section 504 of the Rehabilitation Act of 1973. 
The Institute applies the regulations in 45 CFR part 1170, issued by the 
National Endowment for the Humanities and relating to nondiscrimination 
on the basis of handicap in federally assisted programs and activities, 
in determining the compliance of museums with section 504 of the 
Rehabilitation Act of 1973 as it applies to recipients of Federal 
financial assistance from the Institute. These regulations apply to each 
program or activity that receives such assistance. In applying these 
regulations, references to the Endowment of the agency shall be deemed 
to be references to the Institute and references to the Chairman shall 
be deemed to be references to the Director.

[55 FR 51104, Dec. 12, 1990]



Sec. 1180.45  Use of consultants in Special Projects.

    (a) Subject to Federal statutes and regulations, a grantee shall 
adhere to its general policies and practices when it hires, uses, and 
pays a consultant as part of the staff.
    (b) The grantee may not use its grant to pay a consultant unless:
    (1) There is a need in the project for the services of that 
consultant; and
    (2) The grantee cannot meet that need through using an employee 
rather than a consultant.

[48 FR 27728, June 17, 1983, as amended at 60 FR 63964, Dec. 13, 1995]

                               Evaluation



Sec. 1180.46  Evaluation by the grantee.

    A grantee shall evaluate at least semi-annually:
    (a) The grantee's progress in achieving the objectives set forth in 
its approved application: and
    (b) The contribution of the grant toward meeting the purposes of the 
Act.



Sec. 1180.47  Federal evaluation--Cooperation by a grantee.

    A grantee shall cooperate in any evaluation by the Director of the 
particular grant program in which grantee has participated.

                       Publications and Copyrights



Sec. 1180.48  General conditions on publications.

    (a) Content of materials. Subject to any specific requirements that 
apply to its grant, a grantee may decide the format and content of 
materials that it

[[Page 596]]

publishes or arranges to have published.
    (b) Required Statement. The grantee shall ensure that any 
publication that contains materials also contains the following 
statement:

    The contents of this (insert type of publication, e.g., book, 
report, film) were developed in whole or in part under a grant from the 
Institute of Museum and Library Services. However, the contents do not 
necessarily represent the policy of the Institute, and endorsement by 
the Federal Government should not be assumed.

[60 FR 63964, Dec. 13, 1995]



Sec. 1180.49  Copyright policy for grantees.

    A grantee may copyright materials in accordance with government-wide 
policy applicable to copyright of publications developed under Federal 
grants.

[60 FR 63964, Dec. 13, 1995]



Sec. 1180.50  Definition of ``materials.''

    As used in Sec. Sec. 1180.48 through 1180.49, materials means a 
copyrightable work developed in whole or in part with funds from a grant 
from the Institute.

[60 FR 63964, Dec. 13, 1995]

                 General Administrative Responsibilities



Sec. 1180.51  Compliance with statutes, regulations, and its approved grant 
application.

    (a) A grantee shall comply with applicable statutes, regulations, 
and the approved grant application, and shall use Federal funds in 
accordance therewith.
    (b) No official, agent, or employee of the Institute may waive any 
regulation unless the regulation specifically provides for waiver.
    (c) No act or failure to act by an official, agent, or employee of 
the Institute can affect the authority of the Director to enforce 
regulations.
    (d) In any circumstance for which waiver is provided, the 
determination of the Director shall be final.



Sec. 1180.52  The grantee administers or supervises the grant.

    A grantee shall directly administer or supervise the administration 
of the grant and be answerable therefor.



Sec. 1180.53  Fiscal control and fund accounting procedures.

    A grantee shall exert fiscal control and employ fund accounting 
procedures that ensure proper disbursement of and accounting for Federal 
funds in accordance with OMB circulars A-102 and A-110.



Sec. 1180.54  Obligation of funds during the grant period.

    A grantee may use grant funds for obligations it makes only during 
the grant period.



Sec. 1180.55  Prohibition of subgrants.

    (a) A grantee may not make a subgrant.
    (b) A grantee may contract for supplies, equipment, and services 
subject to Sec. 1180.45(a).

                                 Records



Sec. 1180.56  Records related to grant funds.

    A grantee shall, in accordance with OMB circular A-102 and A-110, 
keep records that show accurately and in full:
    (a) The amount of funds awarded under the grant;
    (b) The exact uses of the funds;
    (c) The total amount expended under the grant;
    (d) The amount expended under the grant during the grant period 
provided from non-Federal sources; and
    (e) Other records necessary to facilitate an effective audit.



Sec. 1180.57  Records related to compliance.

    A grantee shall, in accordance with OMB circulars A-102 and A-110, 
keep accurate and full records to show its compliance with specific 
requirements set forth in the regulations and published notices, or 
contained in the grant award documents.

[[Page 597]]



Sec. 1180.58  Records related to performance.

    (a) A grantee shall keep records revealing progress and results 
under the grant.
    (b) The grantee shall use the records under paragraph (a) of this 
section to:
    (1) Determine progress in accomplishing objectives; and
    (2) Revise those objectives, if necessary and authorized under the 
grant.

[60 FR 63965, Dec. 13, 1995]



Sec. 1180.59  Applicability.

    Subparts B and C (Sec. Sec. 1180.30 through 1180.58) apply to 
General Operating Support assistance, except as otherwise provided in 
these regulations.

[60 FR 63965, Dec. 13, 1995]



                       Subpart D_Museum Assessment

    Source: 50 FR 27588, July 5, 1985, unless otherwise noted.



Sec. 1180.70  Purpose of program.

    The Director of the Institute of Museum and Library Services makes 
grants under this subpart to assist museums in carrying out 
institutional assessments. The grants enable museums to obtain technical 
assistance in order to evaluate their programs and operations by 
generally accepted professional standards. The Director may make grants 
for separate categories of assessment activities and establish 
conditions for receipt of assistance for such separate categories. Such 
categories may include assessment activities relating to--
    (a) General operations;
    (b) Collections;
    (c) Museum security, and
    (d) Other aspects of museum services, as specified by the Board.

[51 FR 43354, Dec. 2, 1986]



Sec. 1180.71  Eligibility.

    (a) A museum as defined in Sec. 1180.3 may apply for assessment 
assistance under this subpart.
    (b) A museum which receives a grant for assessment assistance under 
this subpart for a fiscal year may not receive another grant for the 
same category of assessment assistance in the same or a subsequent 
fiscal year.



Sec. 1180.72  Allowable costs.

    A museum may use a grant under this subpart for expenses of 
institutional assessment, such as registration fees, surveyor 
honorariums, travel and other expense of a surveyor, and technical 
assistance materials.



Sec. 1180.73  Form of assistance; limitation on amount.

    (a) The Director makes payments to a museum under this subpart in 
advance.
    (b) The amount of a grant to a museum under this subpart will be 
determined by the Director, in accordance with the policy direction of 
the Board regarding the maximum amount of a grant to be awarded for the 
various categories of assistance under this subpart and in consultation 
with the appropriate professional organization arranging for the 
assessment in question.

[50 FR 27588, July 5, 1985, as amended at 55 FR 10461, Mar. 21, 1990]



Sec. 1180.74  Conditions of participation.

    The Director considers an application by a museum on a form supplied 
by IMLS for a grant under this subpart for assessment assistance only 
if:
    (a) The museum requests assessment from an appropriate professional 
organization as defined in this section, and
    (b) That organization notifies IMLS that the request for the 
assessment assistance is complete and that the museum is eligible to 
participate. An appropriate professional organization for purposes of 
this subpart means: (1) The American Association of Museums or (2) other 
professional organizations that are determined to be capable of 
arranging for a program of assessment services for a category of museums 
and are so designated by notice published in the Federal Register.



Sec. 1180.75  Funding and award procedures.

    (a) The Director approves applications meeting the requirements of 
this subpart on first-come, first-served basis, in the order in which it 
is determined by IMLS that such requirements

[[Page 598]]

(including all application requirements) have been met.
    (b) There are no selection criteria.
    (c) Section 1180.16 (IMLS share of the cost of a proposal) does not 
apply to grants under this subpart.
    (d) A museum receiving assistance under this subpart must submit a 
final financial and narrative report that evaluates the success of the 
assessment and actions taken by the museum as a result of the 
assessment. IMLS may request that the report be submitted up to 12 
months after the close of the grant period.
    (e)(1) Except as provided in Sec. 1180.71 and paragraph (e)(2) of 
this section subparts A, B, and C of part 1180 of title 45 CFR do not 
apply to the Museum Assessment Program.
    (2) The following sections do apply to the Museum Assessment 
Program: Sections 1180.5(a); 1180.5(c); 1180.5(d); 1180.5(e); 1180.15; 
1180.44; 1180.47; and 1180.51-1180.57.

[50 FR 27588, July 5, 1985, as amended at 60 FR 63965, Dec. 13, 1995]



Sec. 1180.76  Responsibility of a museum.

    Except in unusual circumstances, a museum which receives a grant 
under this subpart must take the steps normally expected of it to 
complete the assessment process for which it has received assistance. 
Section 1180.13(i) (a criterion for evaluation of general operating 
support applications) applies to the use of funds under this subpart.



        Subpart E_Assistance To Professional Museum Organizations



Sec. 1180.77  Contracts and cooperative agreements with professional museum 
organizations.

    (a) Scope. The guidelines and standards in this section apply to all 
aspects of the Institute's program to provide financial assistance, 
through contracts and cooperative agreements, to professional museum 
organizations for the carrying out of certain projects pursuant to 
section 206(b) of the Act.
    (b) Definitions. For the purposes of this subpart, the term 
professional museum organization means a private, non-profit 
professional museum services-related organization, institution, or 
association which engages in activities designed to advance the well-
being of museums eligible for assistance under this part and the museum 
profession through such activities as technical assistance, 
dissemination of information, professional development activities, and 
professional services.
    (c) Applicability of other regulations. The following IMLS 
regulations apply to assistance under this subpart:
    (1) Section 1180.3; Sec. 1180.4; and Sec. 1180.5(e) of subpart A 
and
    (2) Sections 1180.30-1180.33 and Sec. Sec. 1180.36-1180.39 of 
subpart B; and
    (3) Section 1180.44, Sec. 1180.46 and Sec. Sec. 1180.51-1180.59 of 
subpart C.
    (d) Applicants. (1) A professional museum organization may apply for 
assistance through a contract or cooperative agreement under this 
subpart.
    (2) A professional museum organization that serves museums or museum 
professionals at the national, regional, state, or local level may 
apply.
    (3) An entity eligible for assistance under other subparts of this 
part 1180 may not apply.
    (e) Types of projects. The Institute considers applications under 
this subpart to carry out projects designed to strengthen museum 
services such as:
    (1) Programs to educate professionals in improved or innovative 
standards of museum operations or other matters relating to museum 
management;
    (2) Research or surveys to determine effective and innovative 
methods to provide museum services or conduct operations;
    (3) Projects to investigate the feasibility of cooperative methods 
for the carrying out by museums of management, storage, and information 
gathering and sharing, or other museum functions; or
    (4) Research projects to help museums and museum associations serve 
their publics more effectively.
    (f) Limitation. No financial assistance may be provided under this 
subpart to pay for the operational expenses of any professional museum 
organization.
    (g) Amount of contract or cooperative agreement. The amount of 
contracts or cooperative agreements shall be subject to the availability 
of appropriations. Guidance on probable award ranges will be provided 
with application materials each year.

[[Page 599]]

    (h) Matching. A contract or cooperative agreement under this subpart 
for any fiscal year may not normally exceed 50 per centum of the cost of 
the project for which the contract or cooperative agreement is made. In 
exceptional circumstances applicable to a particular applicant, the 
Director, upon consultation with the Board, may waive this requirement 
pursuant to section 206(c) of the Act.
    (i) Application requirements. (1) An applicant under this subpart 
must submit an application in such time and such manner, and containing 
such information, as requested by the Institute.
    (2) An applicant must submit with its application its financial 
statements for the two most recent fiscal years for which information is 
available. For applications requesting in excess of $20,000, the 
Institute requests that one of those statements be audited.
    (j) Procedures for review of applications. To evaluate applications 
and determine the amount of their awards, the Institute rates 
competitive applications under the applicable criteria stated in 
paragraph (k) of this section. Normally, these applications are 
evaluated by field reviewers, panels of experts, or both. The Director 
may also use technical experts in the review of applications. Final 
determinations as to the award of contracts or cooperative agreements 
are made by the Director after consultation with the Board with respect 
to policy matters.
    (k) Criteria. This paragraph sets forth the criteria that the 
Institute uses in evaluating and reviewing applications for contracts or 
cooperative agreements under this subpart. Panelists and field reviewers 
are instructed to use only these criteria in the evaluation and review 
of these applications:
    (1) To what extent is the project likely to strengthen museum 
services?
    (2) To what extent does the project hold promise of exploring or 
developing effective and innovative solutions to problems affecting the 
provision of museum services or operations?
    (3) Has the need for the project been adequately documented?
    (4) What is the quality of the project design?
    (5) Does the project have an adequate budget to achieve its purpose?
    (6) What are the qualifications of the personnel the applicant plans 
to utilize in the project?
    (7) What are the anticipated long-term benefits of the project?
    (l) Limitation on number of applications. An applicant may submit 
only one application with respect to each deadline.

[53 FR 31338, Aug. 18, 1988, as amended at 56 FR 10178, Mar. 11, 1991]



Sec. 1180.78  Technical training and implementation grants to museums.

    (a) Purpose of program. The Director of the Institute of Museum and 
Library Services makes two-part grants under this subpart to assist 
those who work in museums (paid or volunteer) to obtain training in 
technical areas of museum operations and to implement the training to 
improve museum services to the public.
    (b) Eligibility. (1) To be eligible to apply for a grant under this 
subpart, a museum must:
    (i) Be a public or private nonprofit institution that is organized 
on a permanent basis for essentially educational or aesthetic purposes; 
and
    (ii) Care for, and own or use tangible objects, whether animate or 
inanimate, and exhibit these objects to the public on a regular basis 
through facilities which it owns or operates, and
    (iii) Have at least one staff member, whether paid or unpaid, full-
time or part-time, whose primary responsibility is the acquisition, care 
or exhibition to the public of objects owned or used by the museum; and
    (iv) Be open and providing museum services to the general public on 
a regular basis; and
    (v) Be located in one of the fifty States of the Union, the District 
of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the 
Virgin Islands, the Northern Mariana Islands, or Palau (until its 
compact of free association is approved.)
    (2) A museum must have an operating budget for the fiscal year 
immediately preceding the deadline to which the museum applies of no 
more than $250,000 exclusive of non-cash support.
    (3) Museum includes (but is not limited to) the following 
institutions if

[[Page 600]]

they satisfy the provisions of this section:
    (i) Aquariums and zoological parks;
    (ii) Botanical gardens and arboretums;
    (iii) Nature centers;
    (iv) Museums relating to art, history (including historic buildings 
and sites);
    (v) Natural history, science and technology, planetariums, and 
specialized subject.
    (4) A museum that receives a grant for training and implementation 
under this subpart for a fiscal year may not receive another grant under 
this subpart for the same or subsequent fiscal years.
    (5) Preference for funding will be given to a museum that has not 
received any grants from the Institute within two years of the deadline 
to which it applies over funding for a museum that has received a grant 
from the Institute within two years of application.
    (c) Applicability of other regulations. The following sections in 
part 1180 do apply to grants for training and implementation under this 
subpart: Sections 1180.3(d), 1180.4, 1180.5(c)-(e), 1180.6, 1180.10, 
1180.11(a)-(b), 1180.16(b), 1180.30-34, 1180.36-37, 1180.39, 1180.42-44, 
1180.47-48, 1180.51-57, part 1183, part 1185.
    (d) Application requirements. (1) An applicant under this subpart 
must submit an application in such time and such manner, and containing 
such information, as requested by the Institute.
    (2) An applicant must submit with its application financial 
information for its most recently completed fiscal year for which 
satisfactory information is available and projected financial 
information for the fiscal year(s) that includes the time of the grant 
period.
    (e) Procedures and criteria for review of applications. (1) To 
evaluate applications and determine the amount of their awards, the 
Institute rates competitive applications under the criteria stated in 
paragraph (e)(2) of this section. Normally, these applications are 
evaluated by field reviewers, panels of experts, or both. The Director 
may also use technical experts in the review of applications.
    (2) This paragraph sets forth the criteria the Institute uses in 
evaluating and reviewing applications for technical training and 
implementation grants under this subpart. Evaluators are instructed to 
use only these criteria in the evaluation of these applications.
    (i) Does the museum demonstrate its importance to the community it 
serves?
    (ii) Is the type of training requested appropriate to the purpose or 
mission of the museum?
    (iii) Are the costs requested to obtain the training reasonable and 
necessary?
    (iv) Is the training needed at the museum?
    (v) Is the staff member(s) (paid or volunteer) identified to receive 
the training the appropriate person(s) within the museum's 
organizational structure?
    (vi) Does the individual(s) identified for training demonstrate at 
least a two-year commitment to the museum field?
    (vii) Does the museum demonstrate a commitment to implement the 
training?
    (f) Allowable costs. (1) A museum may use a grant under this subpart 
for expenses to obtain training in areas of museum operations and for 
activities to implement the training.
    (2) Funds may be used to pay for registration or tuition fees for 
training courses or workshops. Individual(s) may use the grant funds to 
pay for a course that is part of a degree-granting program only for non-
credit such as to audit the course.) Funds are generally not intended to 
support attendance at association annual meetings unless a specific 
training session or workshop is part of the meeting (or as a pre or post 
conference activity). A course of study that is identified by clearly 
and specifically named sessions that are part of an annual meeting 
program and that clearly and specifically address the area of training 
need will be considered.
    (3) Funds may be used for travel to and from training activities and 
expenses incurred during travel, such as housing and meals.
    (4) Funds may be used to purchase instructional materials.
    (5) Funds may not be used to pay the salary of the person(s) 
receiving the training. The time the staff member(s)

[[Page 601]]

expends to obtain the training and to implement the training is 
considered a matching, in-kind contribution to the grant activities.
    (6) Funds may not be used for consulting fees. (In special cases 
where training is not available otherwise, the Institute may consider an 
individually designed training agenda that includes the use of a 
consultant clearly serving as a trainer to the applicant in specific 
areas of museum operations.)
    (7) Funds may be used to purchase supplies, materials, and equipment 
for areas of museum operations for which training was received.
    (8) Funds may support additional travel as needed to implement 
training (eg. travel to libraries, archives, etc. to document 
collections).
    (g) Conditions of participation. Following the completion of the 
training activity the museum must submit an implementation plan to the 
Institute for review before implementation funds are released. The 
implementation plan must indicate the time frame for implementation 
activities, the personnel involved, the activities to be completed, 
where the activities will take place, and the costs for implementing the 
plan.
    (h) Form of assistance: Limitation of amount. (1) The Director makes 
payments to a museum under this subpart in advance.
    (2) The amount of the grant to a museum will be determined by the 
Director, in accordance with the policy direction of the Board, 
regarding the maximum amount available for each part of the grant. The 
amount of the grant will be subject to the availability of funds.
    (i) Reporting requirements. The museum receiving a grant for 
training and implementation under this subpart must submit a final 
financial and narrative report that evaluates the success of the 
applicant in meeting the stated goals and any plans to continue 
activities in the area of training.
    (j) Limitation on number of applications. A museum may submit only 
one application for each deadline.
    (k) Duration of grant. (1) Grants made under this subpart generally 
permit the grantee to use the funds for a period of up to 24 months from 
the start of the grant period. The grantee may use grant funds during 
the period specified in the grant document unless the grant is suspended 
or terminated.
    (2) If the grantee needs additional time to complete the grant, the 
grantee may apply for an extension of the grant period without 
additional funds. The Director may approve this extension at his or her 
discretion.

[59 FR 15344, Apr. 1, 1994, as amended at 66 FR 47086, Sept. 11, 2001]

Subpart F [Reserved]



        Subpart G_Meetings of the National Museum Services Board

                                 General

    Authority: Museum Services Act (20 U.S.C. 961-68), as amended, and 
Pub. L. 97-100, 95 Stat. 1414; Pub. L. 97-394, 96 Stat. 1994; 5 U.S.C. 
552b.

    Source: 49 FR 3184, Jan. 26, 1984, unless otherwise noted.



Sec. 1180.80  Scope.

    5 U.S.C. 552b, added to the United States Code by the Government in 
the Sunshine Act, Public Law 94-409 (1976), provides that collegial 
bodies which head Federal agencies must, with certain exceptions, hold 
their meetings in public. Section 552b applies to meetings of the 
National Museum Services Board (``NMSB''). The regulations in this 
document (subpart G of part 1180, title 45 CFR) set forth procedures for 
the conduct of meetings of the NMSB in accordance with Section 552b.



Sec. 1180.81  General rule.

    Unless properly closed under Sec. 1180.88, every portion of every 
meeting of the NMSB is open to public observation. For the purposes of 
this document a meeting means the deliberations of at least the number 
of members of the NMSB required to take action on behalf of the NMSB, 
where these deliberations determine, or result in the joint conduct or 
disposition of official IMLS business. (A meeting does not include 
deliberations required or permitted by subsection (d) or (e) of section 
552b.)

[[Page 602]]



Sec. 1180.82  Application to NMSB committees.

    This document applies to committees of the NMSB when they are 
authorized to make final policy decisions on the NMSB's behalf. This 
document does not apply to committees or informal working groups of the 
NMSB which are authorized to make recommendations or reports to the NMSB 
or to perform technical or ministerial functions on its behalf.



Sec. 1180.83  Record vote.

    (a) Certain action of the NMSB with regard to meetings under these 
regulations may be taken only by ``record vote.'' For purposes of this 
document, a vote of the NMSB is a record vote if--
    (1) It carries by a majority of all those holding offices as NMSB 
members at the time of the vote;
    (2) No proxies are counted toward the necessary majority; and
    (3) The individual vote of each member voting is recorded.
    (b) Within one day of a record vote to close, or withhold 
information about a meeting, or any record vote for this purpose that 
does not achieve the necessary majority, the NMSB makes available to the 
public a written record showing the vote of each member.
    (c) The NMSB may take a vote with respect to matters governed by 
this part (without convening) by means of circulation of a written 
ballot, tally sheet, or other notation procedures.

                        Announcement of Meetings



Sec. 1180.84  Public announcement of meetings.

    (a) Except as stated in paragraphs (b) and (c) this section, the 
NMSB makes a public announcement of each meeting at least one week 
before the meeting. The announcement covers:
    (1) The time, place, and subject matter of the meeting;
    (2) What portions of the meeting, if any, are to be closed to the 
public; and
    (3) The name and phone number of the official designated to respond 
to requests for information on the meeting.
    (b) The announcement may be made less than a week before the meeting 
it announces or after the meeting only if--
    (1) The NMSB by record vote determines that agency business requires 
the meeting to be called on such short or after-the-fact notice and (2) 
a public announcement is made at the earliest practicable time.
    (c) All or any portion of the announcement of any meeting may be 
omitted if the NMSB by record vote determines that the announcement 
would disclose information which should be withheld under the same 
standards as apply for closing meetings under Sec. 1180.88.



Sec. 1180.85  Changes in time or place of meeting.

    The time or place of a meeting of the NMSB that has been publicly 
announced as provided in Sec. 1180.84 may subsequently be changed. 
However, the change must be publicly announced at the earliest 
practicable time.



Sec. 1180.86  Changes in subject matter of meeting.

    The subject matter of any portion of any meeting of the NMSB that 
has been publicly announced as provided in Sec. 1180.84 (or the 
determination whether any portion of any meeting so publicly announced 
will be open or closed) may subsequently be changed if--
    (a) The NMSB determines by record vote that agency business so 
requires and that no earlier announcement of change was possible; and
    (b) The NMSB publicly announces the change and the vote of each 
member on the change at the earliest practicable time. (Deletion or 
postponement of agenda items are not subject to the requirements of this 
section.)



Sec. 1180.87  Publication of announcements.

    Promptly following a public announcement required by these 
regulations, the NMSB submits, for publication in the Federal Register, 
a notice containing information regarding the announcement as required 
by section 552b.

[[Page 603]]

                             Closed Meetings



Sec. 1180.88  Reasons and procedures for closing meetings.

    (a) The NMSB may, by record vote in accordance with section 552b, 
close any portion of a meeting if it determines that the portion falls 
within one of the exceptions stated in 5 U.S.C. section 552(c). (These 
exceptions are listed in Appendix A.)
    (b) In making a determination under paragraph (a) of this section, 
the NMSB considers whether the public interest merits keeping the 
meeting open although an exception applies.
    (c) The Board addresses requests for the certification required by 
section 552b to the individual responsible for providing legal services 
to the Institute with respect to section 552b.
    (d) Within one day of a record vote closing a portion of a NMSB 
meeting, the NMSB makes available a full written explanation of the 
NMSB's action and a list of all persons it expects to attend the meeting 
and their affiliations.



Sec. 1180.89  Requests to close meetings.

    A person who believes his or her interests may be directly affected 
by a meeting or a portion of a meeting may request the NMSB to close it 
to the public for a reason cited in paragraphs (5), (6), or (7) of 
Appendix A. Such requests are handled under procedures established by 
the NMSB in accordance with section 552b. This information collection 
has been assigned OMB No. 3137-0005.



Sec. 1180.90  Materials related to closed portions of meetings.

    If a portion or portions of any meeting of the NMSB are closed to 
the public--
    (a) The presiding officer of the meeting (usually the Chairman of 
the NMSB) furnishes a statement setting forth the time and place of the 
meeting and the persons present (including staff).
    (b) Except where the Act authorizes minutes to be kept, the NMSB 
makes a complete transcript or electronic recording adequate to record 
fully the proceedings of each portion of the meeting that is closed to 
the public.
    (c) The NMSB maintains the presiding officer's statement, the 
certificate described in Sec. 1180.88(c) as required by section 552b, 
and the transcript, recording, or minutes of the meeting for at least 
two years after the meeting and at least one year after the NMSB 
completes consideration of any proposal, report, resolution, or similar 
matter discussed in any closed portion of the meeting.



Sec. 1180.91  Opening of transcript or recording of closed meeting.

    (a) Except as stated in paragraph (b) of this section, the NMSB 
makes available for inspection the transcript, electronic recording or 
minutes of every portion of a very closed meeting on request tm any 
member of the public. The transcript or recording is made available in 
an easily accessible place. The NMSB furnishes to any member of the 
public on request copies of the transcript (or of a transcription of the 
recording) disclosing the identity of each speaker. The NMSB charges for 
the copies or transcriptions no more than the actual cost of duplication 
or transcription.
    (b) The NMSB withholds the transcripts or recording of the 
discussion of any agenda item if the Chairman of the NMSB (or a NMSB 
member designated by the Chairman) determines that the discussion 
contains information which should be withheld under the same standards 
which apply for closing meetings under Sec. 1180.88. The NMSB releases 
the transcript or recording so withheld when the Chairman (or the 
Chairman's designee) determines that the grounds for withholding no 
longer apply.

                         Appendix A to Part 1180

    A meeting may be closed if:
    (1) It is likely to disclose matters that (1) are specifically 
authorized under criteria established by Executive Order to be kept 
secret in the interest of national defense or foreign policy and (ii) 
are in fact properly classified pursuant to the Executive Order;
    (2) It is likely to relate solely to the internal personnel rules 
and practices of the IMLS or another Federal agency;
    (3) It is likely to disclose matters specifically exempted from 
disclosure by statute (other than 5 U.S.C. 552): Provided, That the

[[Page 604]]

statute (i) requires that the matter be withheld from the public in such 
a manner as to leave no discretion on the issue, or (ii) establishes 
particular criteria for withholding or refers to particular types of 
matters to be withheld;
    (4) It is likely to disclose trade secrets and commercial or 
financial information obtained from the person and privileged or 
confidential;
    (5) It is likely to involve accusing any person of a crime, or 
formally censuring any person;
    (6) It is likely to disclose personal information where the 
disclosure would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) It is likely to disclose investigatory law-enforcement records, 
or information which, if written, would be contained in such records, 
but only to the extent provided in 5 U.S.C. 552b(7);
    (8) It is likely to disclose information contained in or related to 
examination, operating, or condition reports prepared by, on behalf of, 
or for the use of an agency responsible for the regulation or 
supervision of financial institutions;
    (9) It is likely to disclose information, the premature disclosure 
of which (i) in the case of information received from an agency which 
regulates currencies, securities, commodities, or financial 
institutions, be likely to (A) lead to significant financial speculation 
in currencies, securities, or commodities, or (B) significantly endanger 
the stability of any financial institution: or (ii) be likely to 
significantly frustrate implementation of a proposed IMLS action unless 
the IMLS has already disclosed to the public the content or nature of 
its proposed action or is required by law to make such disclosure on its 
own initiative before taking final action; or
    (10) Is likely to specifically concern the IMLS participation in a 
civil action or proceeding, or action in a foreign court or 
international tribunal, or an arbitration.



PART 1181_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE INSTITUTE OF MUSEUM AND LIBRARY 
SERVICES--Table of Contents




Sec.
1181.101 Purpose.
1181.102 Application.
1181.103 Definitions.
1181.104-1181.109 [Reserved]
1181.110 Self-evaluation.
1181.111 Notice.
1181.112-1181.129 [Reserved]
1181.130 General prohibitions against discrimination.
1181.131-1181.139 [Reserved]
1181.140 Employment.
1181.141-1181.148 [Reserved]
1181.149 Program accessibility: Discrimination prohibited.
1181.150 Program accessibility: Existing facilities.
1181.151 Program accessibility: New construction and alterations.
1181.152-1175.159 [Reserved]
1181.160 Communications.
1181.161-1181.169 [Reserved]
1181.170 Compliance procedures.
1181.171-1181.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 4578 and 4579, Feb. 5, 1986, unless otherwise noted.



Sec. 1181.101  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. 1181.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 1181.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices 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,

[[Page 605]]

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 
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.
    Handicapped person 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 of 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 addition and 
alcholism.
    (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 toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified handicapped person 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, a handicapped person 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; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 1181.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[51 FR 4578 and 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]

[[Page 606]]



Sec. Sec. 1181.104-1181.109  [Reserved]



Sec. 1181.110  Self-evaluation.

    (a) The agency shall, by April 9, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, 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 
inspections:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 1181.111  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 head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 1181.112-1181.129  [Reserved]



Sec. 1181.130  General prohibitions against discrimination.

    (a) No qualified handicapped person 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 handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualfied handicapped person 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 handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person 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 handicapped person 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 handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (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 handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination

[[Page 607]]

under any program or activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons 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 handicapped 
persons.



Sec. Sec. 1181.131-1181.139  [Reserved]



Sec. 1181.140  Employment.

    No qualified handicapped person 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. 1181.141-1181.148  [Reserved]



Sec. 1181.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1181.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, 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. 1181.150  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 handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons; 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 Sec. 1181.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
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 
handicapped persons 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, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is nor 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

[[Page 608]]

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 
handicapped persons in the most integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by June 6, 1986, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by April 7, 1989, 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 October 7, 1986, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, 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 programs or activities to handicapped 
persons;
    (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.

[51 FR 4578 and 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. 1181.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. 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. 1181.152-1181.159  [Reserved]



Sec. 1181.160  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 a handicapped person 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 
handicapped person.
    (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 applicants 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 signage at a primary entrance to each 
of its inaccessible facilities, directing users to a 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

[[Page 609]]

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. 1181.160 would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
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, 
handicapped persons receive the benefits and services of the program or 
activity.



Sec. Sec. 1181.161-1181.169  [Reserved]



Sec. 1181.170  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 Director shall be responsible for coordinating 
implementation of this section. Complaints may be sent to Director, 
Institute of Museum and Library Services, 1100 Pennsylvania Ave., NW., 
room 510, Washington, DC 20506.
    (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), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (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;
    (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. 1181.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The 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.

[51 FR 4578 and 4579, Feb. 5, 1986, as amended at 51 FR 4578, Feb. 5, 
1986]

[[Page 610]]



Sec. Sec. 1181.171-1181.999  [Reserved]



PART 1183_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE 
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                            Subpart A_General

Sec.
1183.1 Purpose and scope of this part.
1183.2 Scope of subpart.
1183.3 Definitions.
1183.4 Applicability.
1183.5 Effect on other issuances.
1183.6 Additions and exceptions.

                    Subpart B_Pre-Award Requirements

1183.10 Forms for applying for grants.
1183.11 State plans.
1183.12 Special grant or subgrant conditions for ``high-risk'' grantees.

                    Subpart C_Post-Award Requirements

                        Financial Administration

1183.20 Standards for financial management systems.
1183.21 Payment.
1183.22 Allowable costs.
1183.23 Period of availability of funds.
1183.24 Matching or cost sharing.
1183.25 Program income.
1183.26 Non-Federal audit.

                    Changes, Property, and Subawards

1183.30 Changes.
1183.31 Real property.
1183.32 Equipment.
1183.33 Supplies.
1183.34 Copyrights.
1183.35 Subawards to debarred and suspended parties.
1183.36 Procurement.
1183.37 Subgrants.

              Reports, Records, Retention, and Enforcement

1183.40 Monitoring and reporting program performance.
1183.41 Financial reporting.
1183.42 Retention and access requirements for records.
1183.43 Enforcement.
1183.44 Termination for convenience.

                 Subpart D_After-the-Grant Requirements

1183.50 Closeout.
1183.51 Later disallowances and adjustments.
1183.52 Collection of amounts due.

Subpart E--Entitlements [Reserved]

    Authority: 20 U.S.C. 961--968.

    Source: 53 FR 8083, 8087, Mar. 11, 1988, unless otherwise noted.



                            Subpart A_General



Sec. 1183.1  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. 1183.2  Scope of subpart.

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



Sec. 1183.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.

[[Page 611]]

    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.
    OMB means the United States Office of Management and Budget.

[[Page 612]]

    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, whether in statute, regulations, or the award document.

[[Page 613]]

    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. 1183.4  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. 1183.6, 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 614]]

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. 1183.4(a) (3) through (8) are subject to subpart E.



Sec. 1183.5  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. 1183.6.



Sec. 1183.6  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. 1183.10  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. 1183.11  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.

[[Page 615]]

    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.



Sec. 1183.12  Special grant or subgrant conditions for ``high-risk'' 
grantees.

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



                    Subpart C_Post-Award Requirements

                        Financial Administration



Sec. 1183.20  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.

[[Page 616]]

    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
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. 1183.21  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

[[Page 617]]

grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for 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. 1183.43(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. 1183.22  Allowable costs.

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

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

[[Page 618]]

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



Sec. 1183.23  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. 1183.24  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. 1183.25, 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. 1183.25(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.

[[Page 619]]

    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (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

[[Page 620]]

land, and only depreciation or use allowances may be counted for donated 
equipment and buildings. The depreciation or use allowances for this 
property are not treated as third party in-kind contributions. Instead, 
they are treated as costs incurred by the grantee or subgrantee. They 
are computed and allocated (usually as indirect costs) in accordance 
with the cost principles specified in Sec. 1183.22, 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. 1183.25  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. 1183.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 
1183.31 and 1183.32.
    (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

[[Page 621]]

used for current costs unless the Federal agency authorizes otherwise. 
Program income which the grantee did not anticipate at the time of the 
award shall be used to reduce the Federal agency and grantee 
contributions rather than to increase the funds committed to the 
project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (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. 1183.26  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. 
1183.36 shall be followed.

[53 FR 8083, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45946, Aug. 
29, 1997]

                    Changes, Property, and Subawards



Sec. 1183.30  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. 1183.22) contain requirements for prior approval of certain types 
of costs. Except where waived, those requirements

[[Page 622]]

apply to all grants and subgrants even if paragraphs (c) through (f) of 
this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct 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. 1183.36 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. 1183.22) 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. 1183.31  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.

[[Page 623]]

    (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.



Sec. 1183.32  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. 1183.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use

[[Page 624]]

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. 1183.32(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. 1183.33  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. 1183.34  Copyrights.

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

[[Page 625]]



Sec. 1183.35  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. 1183.36  Procurement.

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

[[Page 626]]

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. 1183.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly

[[Page 627]]

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. 1183.36(d)(2)(i) 
apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;

[[Page 628]]

    (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.
    (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,

[[Page 629]]

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. 1183.22). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.

[[Page 630]]

    (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 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.

[[Page 631]]

    (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 8083, 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19645, Apr. 
19, 1995]



Sec. 1183.37  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. 1183.42 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 1183.10;
    (2) Section 1183.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 1183.21; and
    (4) Section 1183.50.

              Reports, Records, Retention, and Enforcement



Sec. 1183.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a

[[Page 632]]

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. 1183.41  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 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

[[Page 633]]

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 paragraph Sec. 1183.41(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 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. 1183.41(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs. (1) Grants that support construction activities paid by 
reimbursement method.

[[Page 634]]

    (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. 1183.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 1183.41(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. 1183.41(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. 1183.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 1183.41(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. 1183.41(b)(2).



Sec. 1183.42  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. 1183.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income

[[Page 635]]

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. 1183.43  Enforcement.

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

[[Page 636]]

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. 1183.35).



Sec. 1183.44  Termination for convenience.

    Except as provided in Sec. 1183.43 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. 
1183.43 or paragraph (a) of this section.



                 Subpart D_After-the-Grant Requirements



Sec. 1183.50  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. 1183.32(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. 1183.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 1183.42;
    (d) Property management requirements in Sec. Sec. 1183.31 and 
1183.32; and
    (e) Audit requirements in Sec. 1183.26.



Sec. 1183.52  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

[[Page 637]]

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

Subpart E--Entitlements [Reserved]



PART 1185_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
--Table of Contents




Sec.
1185.25 How is this part organized?
1185.50 How is this part written?
1185.75 Do terms in this part have special meanings?

                            Subpart A_General

1185.100 What does this part do?
1185.105 Does this part apply to me?
1185.110 What is the purpose of the nonprocurement debarment and 
          suspension system?
1185.115 How does an exclusion restrict a person's involvement in 
          covered transactions?
1185.120 May we grant an exception to let an excluded person participate 
          in a covered transaction?
1185.125 Does an exclusion under the nonprocurement system affect a 
          person's eligibility for Federal procurement contracts?
1185.130 Does exclusion under the Federal procurement system affect a 
          person's eligibility to participate in nonprocurement 
          transactions?
1185.135 May the Institute of Museum and Library Services exclude a 
          person who is not currently participating in a nonprocurement 
          transaction?
1185.140 How do I know if a person is excluded?
1185.145 Does this part address persons who are disqualified, as well as 
          those who are excluded from nonprocurement transactions?

                     Subpart B_Covered Transactions

1185.200 What is a covered transaction?
1185.205 Why is it important to know if a particular transaction is a 
          covered transaction?
1185.210 Which nonprocurement transactions are covered transactions?
1185.215 Which nonprocurement transactions are not covered transactions?
1185.220 Are any procurement contracts included as covered transactions?
1185.225 How do I know if a transaction in which I may participate is a 
          covered transaction?

    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons

1185.300 What must I do before I enter into a covered transaction with 
          another person at the next lower tier?
1185.305 May I enter into a covered transaction with an excluded or 
          disqualified person?
1185.310 What must I do if a Federal agency excludes a person with whom 
          I am already doing business in a covered transaction?
1185.315 May I use the services of an excluded person as a principal 
          under a covered transaction?
1185.320 Must I verify that principals of my covered transactions are 
          eligible to participate?
1185.325 What happens if I do business with an excluded person in a 
          covered transaction?
1185.330 What requirements must I pass down to persons at lower tiers 
          with whom I intend to do business?

            Disclosing Information--Primary Tier Participants

1185.335 What information must I provide before entering into a covered 
          transaction with the Institute of Museum and Library Services?
1185.340 If I disclose unfavorable information required under Sec. 
          1185.335, will I be prevented from participating in the 
          transaction?
1185.345 What happens if I fail to disclose the information required 
          under Sec. 1185.335?
1185.350 What must I do if I learn of the information required under 
          Sec. 1185.335 after entering into a covered transaction with 
          the Institute of Museum and Library Services?

             Disclosing Information--Lower Tier Participants

1185.355 What information must I provide to a higher tier participant 
          before entering

[[Page 638]]

          into a covered transaction with that participant?
1185.360 What happens if I fail to disclose the information required 
          under Sec. 1185.355?
1185.365 What must I do if I learn of information required under Sec. 
          1185.355 after entering into a covered transaction with a 
          higher tier participant?

 Subpart D_Responsibilities of Institute of Museum and Library Services 
                    Officials Regarding Transactions

1185.400 May I enter into a transaction with an excluded or disqualified 
          person?
1185.405 May I enter into a covered transaction with a participant if a 
          principal of the transaction is excluded?
1185.410 May I approve a participant's use of the services of an 
          excluded person?
1185.415 What must I do if a Federal agency excludes the participant or 
          a principal after I enter into a covered transaction?
1185.420 May I approve a transaction with an excluded or disqualified 
          person at a lower tier?
1185.425 When do I check to see if a person is excluded or disqualified?
1185.430 How do I check to see if a person is excluded or disqualified?
1185.435 What must I require of a primary tier participant?
1185.440 What method do I use to communicate those requirements to 
          participants?
1185.445 What action may I take if a primary tier participant knowingly 
          does business with an excluded or disqualified person?
1185.450 What action may I take if a primary tier participant fails to 
          disclose the information required under Sec. 1185.335?
1185.455 What may I do if a lower tier participant fails to disclose the 
          information required under Sec. 1185.355 to the next higher 
          tier?

                 Subpart E_Excluded Parties List System

1185.500 What is the purpose of the Excluded Parties List System (EPLS)?
1185.505 Who uses the EPLS?
1185.510 Who maintains the EPLS?
1185.515 What specific information is in the EPLS?
1185.520 Who places the information into the EPLS?
1185.525 Whom do I ask if I have questions about a person in the EPLS?
1185.530 Where can I find the EPLS?

   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions

1185.600 How do suspension and debarment actions start?
1185.605 How does suspension differ from debarment?
1185.610 What procedures does the Institute of Museum and Library 
          Services use in suspension and debarment actions?
1185.615 How does the Institute of Museum and Library Services notify a 
          person of a suspension and debarment action?
1185.620 Do Federal agencies coordinate suspension and debarment 
          actions?
1185.625 What is the scope of a suspension or debarment action?
1185.630 May the Institute of Museum and Library Services impute the 
          conduct of one person to another?
1185.635 May the Institute of Museum and Library Services settle a 
          debarment or suspension action?
1185.640 May a settlement include a voluntary exclusion?
1185.645 Do other Federal agencies know if the Institute of Museum and 
          Library Services agrees to a voluntary exclusion?

                          Subpart G_Suspension

1185.700 When may the suspending official issue a suspension?
1185.705 What does the suspending official consider in issuing a 
          suspension?
1185.710 When does a suspension take effect?
1185.715 What notice does the suspending official give me if I am 
          suspended?
1185.720 How may I contest a suspension?
1185.725 How much time do I have to contest a suspension?
1185.730 What information must I provide to the suspending official if I 
          contest a suspension?
1185.735 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the suspension is based?
1185.740 Are suspension proceedings formal?
1185.745 How is fact-finding conducted?
1185.750 What does the suspending official consider in deciding whether 
          to continue or terminate my suspension?
1185.755 When will I know whether the suspension is continued or 
          terminated?
1185.760 How long may my suspension last?

                           Subpart H_Debarment

1185.800 What are the causes for debarment?
1185.805 What notice does the debarring official give me if I am 
          proposed for debarment?
1185.810 When does a debarment take effect?
1185.815 How may I contest a proposed debarment?
1185.820 How much time do I have to contest a proposed debarment?
1185.825 What information must I provide to the debarring official if I 
          contest a proposed debarment?
1185.830 Under what conditions do I get an additional opportunity to 
          challenge the

[[Page 639]]

          facts on which the proposed debarment is based?
1185.835 Are debarment proceedings formal?
1185.840 How is fact-finding conducted?
1185.845 What does the debarring official consider in deciding whether 
          to debar me?
1185.850 What is the standard of proof in a debarment action?
1185.855 Who has the burden of proof in a debarment action?
1185.860 What factors may influence the debarring official's decision?
1185.865 How long may my debarment last?
1185.870 When do I know if the debarring official debars me?
1185.875 May I ask the debarring official to reconsider a decision to 
          debar me?
1185.880 What factors may influence the debarring official during 
          reconsideration?
1185.885 May the debarring official extend a debarment?

                          Subpart I_Definitions

1185.900 Adequate evidence.
1185.905 Affiliate.
1185.910 Agency.
1185.915 Agent or representative.
1185.920 Civil judgment.
1185.925 Conviction.
1185.930 Debarment.
1185.935 Debarring official.
1185.940 Disqualified.
1185.945 Excluded or exclusion.
1185.950 Excluded Parties List System.
1185.955 Indictment.
1185.960 Ineligible or ineligibility.
1185.965 Legal proceedings.
1185.970 Nonprocurement transaction.
1185.975 Notice.
1185.980 Participant.
1185.985 Person.
1185.990 Preponderance of the evidence.
1185.995 Principal.
1185.1000 Respondent.
1185.1005 State.
1185.1010 Suspending official.
1185.1015 Suspension.
1185.1020 Voluntary exclusion or voluntarily excluded.

Subpart J [Reserved]

Appendix to Part 1185--Covered Transactions

    Authority: 20 U.S.C. 9101 et seq.; Sec. 2455 Pub. L. 103-355, 108 
Stat. 311867 (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: 68 FR 66544, 66639, Nov. 26, 2003, unless otherwise noted.



Sec. 1185.25  How is this part organized?

    (a) This part is subdivided into ten subparts. Each subpart contains 
information related to a broad topic or specific audience with special 
responsibilities, as shown in the following table:

------------------------------------------------------------------------
                                             You will find provisions
            In subpart . . .                     related to . . .
------------------------------------------------------------------------
A......................................  general information about this
                                          rule.
B......................................  the types of IMLS transactions
                                          that are covered by the
                                          Governmentwide nonprocurement
                                          suspension and debarment
                                          system.
C......................................  the responsibilities of persons
                                          who participate in covered
                                          transactions.
D......................................  the responsibilities of IMLS
                                          officials who are authorized
                                          to enter into covered
                                          transactions.
E......................................  the responsibilities of Federal
                                          agencies for the Excluded
                                          Parties List System
                                          (Disseminated by the General
                                          Services Administration).
F......................................  the general principles
                                          governing suspension,
                                          debarment, voluntary exclusion
                                          and settlement.
G......................................  suspension actions.
H......................................  debarment actions.
I......................................  definitions of terms used in
                                          this part.
J......................................  [Reserved]
------------------------------------------------------------------------

    (b) The following table shows which subparts may be of special 
interest to you, depending on who you are:

------------------------------------------------------------------------
             If you are . . .                   See subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a         A, B, C, and I.
 nonprocurement transaction.
(2) a respondent in a suspension action...  A, B, F, G and I.
(3) a respondent in a debarment action....  A, B, F, H and I.
(4) a suspending official.................  A, B, D, E, F, G and I.
(5) a debarring official..................  A, B, D, E, F, H and I.
(6) a (n) IMLS official authorized to       A, B, D, E and I.
 enter into a covered transaction.
(7) Reserved..............................  J.
------------------------------------------------------------------------



Sec. 1185.50  How is this part written?

    (a) This part uses a ``plain language'' format to make it easier for 
the general public and business community to use. The section headings 
and text, often in the form of questions and answers, must be read 
together.
    (b) Pronouns used within this part, such as ``I'' and ``you,'' 
change from subpart to subpart depending on the audience being 
addressed. The pronoun ``we'' always is the Institute of Museum and 
Library Services.
    (c) The ``Covered Transactions'' diagram in the appendix to this 
part shows the levels or ``tiers'' at which the Institute of Museum and 
Library Services enforces an exclusion under this part.

[[Page 640]]



Sec. 1185.75  Do terms in this part have special meanings?

    This part uses terms throughout the text that have special meaning. 
Those terms are defined in Subpart I of this part. For example, three 
important terms are--
    (a) Exclusion or excluded, which refers only to discretionary 
actions taken by a suspending or debarring official under this part or 
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
    (b) Disqualification or disqualified, which refers to prohibitions 
under specific statutes, executive orders (other than Executive Order 
12549 and Executive Order 12689), or other authorities. 
Disqualifications frequently are not subject to the discretion of an 
agency official, may have a different scope than exclusions, or have 
special conditions that apply to the disqualification; and
    (c) Ineligibility or ineligible, which generally refers to a person 
who is either excluded or disqualified.



                            Subpart A_General



Sec. 1185.100  What does this part do?

    This part adopts a governmentwide system of debarment and suspension 
for IMLS nonprocurement activities. It also provides for reciprocal 
exclusion of persons who have been excluded under the Federal 
Acquisition Regulation, and provides for the consolidated listing of all 
persons who are excluded, or disqualified by statute, executive order, 
or other legal authority. This part satisfies the requirements in 
section 3 of Executive Order 12549, ``Debarment and Suspension'' (3 CFR 
1986 Comp., p. 189), Executive Order 12689, ``Debarment and Suspension'' 
(3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public 
Law 103-355, 108 Stat. 3327).



Sec. 1185.105  Does this part apply to me?

    Portions of this part (see table at Sec. 1185.25(b)) apply to you 
if you are a(n)--
    (a) Person who has been, is, or may reasonably be expected to be, a 
participant or principal in a covered transaction;
    (b) Respondent (a person against whom the Institute of Museum and 
Library Services has initiated a debarment or suspension action);
    (c) IMLS debarring or suspending official; or
    (d) IMLS official who is authorized to enter into covered 
transactions with non-Federal parties.



Sec. 1185.110  What is the purpose of the nonprocurement debarment and 
suspension system?

    (a) To protect the public interest, the Federal Government ensures 
the integrity of Federal programs by conducting business only with 
responsible persons.
    (b) A Federal agency uses the nonprocurement debarment and 
suspension system to exclude from Federal programs persons who are not 
presently responsible.
    (c) An exclusion is a serious action that a Federal agency may take 
only to protect the public interest. A Federal agency may not exclude a 
person or commodity for the purposes of punishment.



Sec. 1185.115  How does an exclusion restrict a person's involvement in 
covered transactions?

    With the exceptions stated in Sec. Sec. 1185.120, 1185.315, and 
1185.420, a person who is excluded by the Institute of Museum and 
Library Services or any other Federal agency may not:
    (a) Be a participant in a(n) IMLS transaction that is a covered 
transaction under subpart B of this part;
    (b) Be a participant in a transaction of any other Federal agency 
that is a covered transaction under that agency's regulation for 
debarment and suspension; or
    (c) Act as a principal of a person participating in one of those 
covered transactions.



Sec. 1185.120  May we grant an exception to let an excluded person 
participate in a covered transaction?

    (a) The Director, Institute of Museum and Library Services may grant 
an exception permitting an excluded person to participate in a 
particular covered transaction. If the Director, Institute of Museum and 
Library Services grants an exception, the exception

[[Page 641]]

must be in writing and state the reason(s) for deviating from the 
governmentwide policy in Executive Order 12549.
    (b) An exception granted by one agency for an excluded person does 
not extend to the covered transactions of another agency.



Sec. 1185.125  Does an exclusion under the nonprocurement system affect 
a person's eligibility for Federal procurement contracts?

    If any Federal agency excludes a person under its nonprocurement 
common rule on or after August 25, 1995, the excluded person is also 
ineligible to participate in Federal procurement transactions under the 
FAR. Therefore, an exclusion under this part has reciprocal effect in 
Federal procurement transactions.



Sec. 1185.130  Does exclusion under the Federal procurement system affect 
a person's eligibility to participate in nonprocurement transactions?

    If any Federal agency excludes a person under the FAR on or after 
August 25, 1995, the excluded person is also ineligible to participate 
in nonprocurement covered transactions under this part. Therefore, an 
exclusion under the FAR has reciprocal effect in Federal nonprocurement 
transactions.



Sec. 1185.135  May the Institute of Museum and Library Services exclude 
a person who is not currently participating in a nonprocurement transaction?

    Given a cause that justifies an exclusion under this part, we may 
exclude any person who has been involved, is currently involved, or may 
reasonably be expected to be involved in a covered transaction.



Sec. 1185.140  How do I know if a person is excluded?

    Check the Excluded Parties List System (EPLS) to determine whether a 
person is excluded. The General Services Administration (GSA) maintains 
the EPLS and makes it available, as detailed in subpart E of this part. 
When a Federal agency takes an action to exclude a person under the 
nonprocurement or procurement debarment and suspension system, the 
agency enters the information about the excluded person into the EPLS.



Sec. 1185.145  Does this part address persons who are disqualified, as well 
as those who are excluded from nonprocurement transactions?

    Except if provided for in Subpart J of this part, this part--
    (a) Addresses disqualified persons only to--
    (1) Provide for their inclusion in the EPLS; and
    (2) State responsibilities of Federal agencies and participants to 
check for disqualified persons before entering into covered 
transactions.
    (b) Does not specify the--
    (1) IMLS transactions for which a disqualified person is ineligible. 
Those transactions vary on a case-by-case basis, because they depend on 
the language of the specific statute, Executive order, or regulation 
that caused the disqualification;
    (2) Entities to which the disqualification applies; or
    (3) Process that the agency uses to disqualify a person. Unlike 
exclusion, disqualification is frequently not a discretionary action 
that a Federal agency takes.



                     Subpart B_Covered Transactions



Sec. 1185.200  What is a covered transaction?

    A covered transaction is a nonprocurement or procurement transaction 
that is subject to the prohibitions of this part. It may be a 
transaction at--
    (a) The primary tier, between a Federal agency and a person (see 
appendix to this part); or
    (b) A lower tier, between a participant in a covered transaction and 
another person.



Sec. 1185.205  Why is it important if a particular transaction is a covered 
transaction?

    The importance of a covered transaction depends upon who you are.
    (a) As a participant in the transaction, you have the 
responsibilities laid out in Subpart C of this part. Those include 
responsibilities to the person or Federal agency at the next

[[Page 642]]

higher tier from whom you received the transaction, if any. They also 
include responsibilities if you subsequently enter into other covered 
transactions with persons at the next lower tier.
    (b) As a Federal official who enters into a primary tier 
transaction, you have the responsibilities laid out in subpart D of this 
part.
    (c) As an excluded person, you may not be a participant or principal 
in the transaction unless--
    (1) The person who entered into the transaction with you allows you 
to continue your involvement in a transaction that predates your 
exclusion, as permitted under Sec. 1185.310 or Sec. 1185.415; or
    (2) A(n) IMLS official obtains an exception from the Director, 
Institute of Museum and Library Services to allow you to be involved in 
the transaction, as permitted under Sec. 1185.120.



Sec. 1185.210  Which nonprocurement transactions are covered transactions?

    All nonprocurement transactions, as defined in Sec. 1185.970, are 
covered transactions unless listed in Sec. 1185.215. (See appendix to 
this part.)



Sec. 1185.215  Which nonprocurement transactions are not covered 
transactions?

    The following types of nonprocurement transactions are not covered 
transactions:
    (a) A direct award to--
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization;
    (3) An entity owned (in whole or in part) or controlled by a foreign 
government; or
    (4) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.
    (b) A benefit 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). For example, if 
a person receives social security benefits under the Supplemental 
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et 
seq., those benefits are not covered transactions and, therefore, are 
not affected if the person is excluded.
    (c) Federal employment.
    (d) A transaction that the Institute of Museum and Library Services 
needs to respond to a national or agency-recognized emergency or 
disaster.
    (e) A permit, license, certificate, or similar instrument issued as 
a means to regulate public health, safety, or the environment, unless 
the Institute of Museum and Library Services specifically designates it 
to be a covered transaction.
    (f) An incidental benefit that results from ordinary governmental 
operations.
    (g) Any other transaction if the application of an exclusion to the 
transaction is prohibited by law.



Sec. 1185.220  Are any procurement contracts included as covered 
transactions?

    (a) Covered transactions under this part--
    (1) Do not include any procurement contracts awarded directly by a 
Federal agency; but
    (2) Do include some procurement contracts awarded by non-Federal 
participants in nonprocurement covered transactions (see appendix to 
this part).
    (b) Specifically, a contract for goods or services is a covered 
transaction if any of the following applies:
    (1) The contract is awarded by a participant in a nonprocurement 
transaction that is covered under Sec. 1185.210, and the amount of the 
contract is expected to equal or exceed $25,000.
    (2) The contract requires the consent of a(n) IMLS official. In that 
case, the contract, regardless of the amount, always is a covered 
transaction, and it does not matter who awarded it. For example, it 
could be a subcontract awarded by a contractor at a tier below a 
nonprocurement transaction, as shown in the appendix to this part.
    (3) The contract is for federally-required audit services.



Sec. 1185.225  How do I know if a transaction in which I may participate 
is a covered transaction?

    As a participant in a transaction, you will know that it is a 
covered

[[Page 643]]

transaction because the agency regulations governing the transaction, 
the appropriate agency official, or participant at the next higher tier 
who enters into the transaction with you, will tell you that you must 
comply with applicable portions of this part.



    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons



Sec. 1185.300  What must I do before I enter into a covered transaction 
with another person at the next lower tier?

    When you enter into a covered transaction with another person at the 
next lower tier, you must verify that the person with whom you intend to 
do business is not excluded or disqualified. You do this by:
    (a) Checking the EPLS; or
    (b) Collecting a certification from that person if allowed by this 
rule; or
    (c) Adding a clause or condition to the covered transaction with 
that person.



Sec. 1185.305  May I enter into a covered transaction with an excluded 
or disqualified person?

    (a) You as a participant may not enter into a covered transaction 
with an excluded person, unless the Institute of Museum and Library 
Services grants an exception under Sec. 1185.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you have obtained an 
exception under the disqualifying statute, Executive order, or 
regulation.



Sec. 1185.310  What must I do if a Federal agency excludes a person with 
whom I am already doing business in a covered transaction?

    (a) You as a participant may continue covered transactions with an 
excluded person if the transactions were in existence when the agency 
excluded the person. However, you are not required to continue the 
transactions, and you may consider termination. You should make a 
decision about whether to terminate and the type of termination action, 
if any, only after a thorough review to ensure that the action is proper 
and appropriate.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, unless the Institute of 
Museum and Library Services grants an exception under Sec. 1185.120.



Sec. 1185.315  May I use the services of an excluded person as a principal 
under a covered transaction?

    (a) You as a participant may continue to use the services of an 
excluded person as a principal under a covered transaction if you were 
using the services of that person in the transaction before the person 
was excluded. However, you are not required to continue using that 
person's services as a principal. You should make a decision about 
whether to discontinue that person's services only after a thorough 
review to ensure that the action is proper and appropriate.
    (b) You may not begin to use the services of an excluded person as a 
principal under a covered transaction unless the Institute of Museum and 
Library Services grants an exception under Sec. 1185.120.



Sec. 1185.320  Must I verify that principals of my covered transactions 
are eligible to participate?

    Yes, you as a participant are responsible for determining whether 
any of your principals of your covered transactions is excluded or 
disqualified from participating in the transaction. You may decide the 
method and frequency by which you do so. You may, but you are not 
required to, check the EPLS.



Sec. 1185.325  What happens if I do business with an excluded person in 
a covered transaction?

    If as a participant you knowingly do business with an excluded 
person, we may disallow costs, annul or terminate the transaction, issue 
a stop work order, debar or suspend you, or take other remedies as 
appropriate.



Sec. 1185.330  What requirements must I pass down to persons at lower 
tiers with whom I intend to do business?

    Before entering into a covered transaction with a participant at the 
next

[[Page 644]]

lower tier, you must require that participant to--
    (a) Comply with this subpart as a condition of participation in the 
transaction. You may do so using any method(s), unless Sec. 1185.440 
requires you to use specific methods.
    (b) Pass the requirement to comply with this subpart to each person 
with whom the participant enters into a covered transaction at the next 
lower tier.

            Disclosing Information--Primary Tier Participants



Sec. 1185.335  What information must I provide before entering into a 
covered transaction with the Institute of Museum and Library Services?

    Before you enter into a covered transaction at the primary tier, you 
as the participant must notify the IMLS office that is entering into the 
transaction with you, if you know that you or any of the principals for 
that covered transaction:
    (a) Are presently excluded or disqualified;
    (b) Have been convicted within the preceding three years of any of 
the offenses listed in Sec. 1185.800(a) or had a civil judgment 
rendered against you for one of those offenses within that time period;
    (c) Are presently indicted for or otherwise criminally or civilly 
charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses listed in Sec. 1185.800(a); or
    (d) Have had one or more public transactions (Federal, State, or 
local) terminated within the preceding three years for cause or default.



Sec. 1185.340  If I disclose unfavorable information required under 
Sec. 1185.335, will I be prevented from participating in the transaction?

    As a primary tier participant, your disclosure of unfavorable 
information about yourself or a principal under Sec. 1185.335 will not 
necessarily cause us to deny your participation in the covered 
transaction. We will consider the information when we determine whether 
to enter into the covered transaction. We also will consider any 
additional information or explanation that you elect to submit with the 
disclosed information.



Sec. 1185.345  What happens if I fail to disclose information required 
under Sec. 1185.335?

    If we later determine that you failed to disclose information under 
Sec. 1185.335 that you knew at the time you entered into the covered 
transaction, we may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec. 1185.350  What must I do if I learn of information required under 

Sec. 1185.335 after entering into a covered transaction with the 
Institute of Museum 
          and Library Services?

    At any time after you enter into a covered transaction, you must 
give immediate written notice to the IMLS office with which you entered 
into the transaction if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec. 
1185.335; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. 1185.335.

             Disclosing Information--Lower Tier Participants



Sec. 1185.355  What information must I provide to a higher tier participant 
before entering into a covered transaction with that participant?

    Before you enter into a covered transaction with a person at the 
next higher tier, you as a lower tier participant must notify that 
person if you know that you or any of the principals are presently 
excluded or disqualified.



Sec. 1185.360  What happens if I fail to disclose the information required 
under Sec. 1185.355?

    If we later determine that you failed to tell the person at the 
higher tier that you were excluded or disqualified at the time you 
entered into the covered transaction with that person, we may pursue any 
available remedies, including suspension and debarment.

[[Page 645]]



Sec. 1185.365  What must I do if I learn of information required under 

Sec. 1185.355 after entering into a covered transaction with a higher 
tier participant?

    At any time after you enter into a lower tier covered transaction 
with a person at a higher tier, you must provide immediate written 
notice to that person if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec. 
1185.355; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. 1185.355.



   Subpart D_Responsibilities of IMLS Officials Regarding Transactions



Sec. 1185.400  May I enter into a transaction with an excluded or 
disqualified person?

    (a) You as an agency official may not enter into a covered 
transaction with an excluded person unless you obtain an exception under 
Sec. 1185.120.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you obtain a waiver or 
exception under the statute, Executive order, or regulation that is the 
basis for the person's disqualification.



Sec. 1185.405  May I enter into a covered transaction with a participant 
if a principal of the transaction is excluded?

    As an agency official, you may not enter into a covered transaction 
with a participant if you know that a principal of the transaction is 
excluded, unless you obtain an exception under Sec. 1185.120.



Sec. 1185.410  May I approve a participant's use of the services of an 
excluded person?

    After entering into a covered transaction with a participant, you as 
an agency official may not approve a participant's use of an excluded 
person as a principal under that transaction, unless you obtain an 
exception under Sec. 1185.120.



Sec. 1185.415  What must I do if a Federal agency excludes the participant 
or a principal after I enter into a covered transaction?

    (a) You as an agency official may continue covered transactions with 
an excluded person, or under which an excluded person is a principal, if 
the transactions were in existence when the person was excluded. You are 
not required to continue the transactions, however, and you may consider 
termination. You should make a decision about whether to terminate and 
the type of termination action, if any, only after a thorough review to 
ensure that the action is proper.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an 
excluded person is a principal, unless you obtain an exception under 
Sec. 1185.120.



Sec. 1185.420  May I approve a transaction with an excluded or disqualified 
person at a lower tier?

    If a transaction at a lower tier is subject to your approval, you as 
an agency official may not approve--
    (a) A covered transaction with a person who is currently excluded, 
unless you obtain an exception under Sec. 1185.120; or
    (b) A transaction with a person who is disqualified from that 
transaction, unless you obtain a waiver or exception under the statute, 
Executive order, or regulation that is the basis for the person's 
disqualification.



Sec. 1185.425  When do I check to see if a person is excluded or 
disqualified?

    As an agency official, you must check to see if a person is excluded 
or disqualified before you--
    (a) Enter into a primary tier covered transaction;
    (b) Approve a principal in a primary tier covered transaction;
    (c) Approve a lower tier participant if agency approval of the lower 
tier participant is required; or
    (d) Approve a principal in connection with a lower tier transaction 
if agency approval of the principal is required.

[[Page 646]]



Sec. 1185.430  How do I check to see if a person is excluded or 
disqualified?

    You check to see if a person is excluded or disqualified in two 
ways:
    (a) You as an agency official must check the EPLS when you take any 
action listed in Sec. 1185.425.
    (b) You must review information that a participant gives you, as 
required by Sec. 1185.335, about its status or the status of the 
principals of a transaction.



Sec. 1185.435  What must I require of a primary tier participant?

    You as an agency official must require each participant in a primary 
tier covered transaction to--
    (a) Comply with subpart C of this part as a condition of 
participation in the transaction; and
    (b) Communicate the requirement to comply with Subpart C of this 
part to persons at the next lower tier with whom the primary tier 
participant enters into covered transactions.



Sec. 1185.440  What method do I use to communicate those requirements 
to participants?

    To communicate the requirements, you must include a term or 
condition in the transaction requiring the participant's compliance with 
subpart C of this part and requiring them to include a similar term or 
condition in lower-tier covered transactions.



Sec. 1185.445  What action may I take if a primary tier participant 
knowingly does business with an excluded or disqualified person?

    If a participant knowingly does business with an excluded or 
disqualified person, you as an agency official may refer the matter for 
suspension and debarment consideration. You may also disallow costs, 
annul or terminate the transaction, issue a stop work order, or take any 
other appropriate remedy.



Sec. 1185.450  What action may I take if a primary tier participant 
fails to disclose the information required under Sec. 1185.335?

    If you as an agency official determine that a participant failed to 
disclose information, as required by Sec. 1185.335, at the time it 
entered into a covered transaction with you, you may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec. 1185.455  What may I do if a lower tier participant fails to 

disclose the information required under Sec. 1185.355 to the next 
higher tier?

    If you as an agency official determine that a lower tier participant 
failed to disclose information, as required by Sec. 1185.355, at the 
time it entered into a covered transaction with a participant at the 
next higher tier, you may pursue any remedies available to you, 
including the initiation of a suspension or debarment action.



                 Subpart E_Excluded Parties List System



Sec. 1185.500  What is the purpose of the Excluded Parties List 
System (EPLS)?

    The EPLS is a widely available source of the most current 
information about persons who are excluded or disqualified from covered 
transactions.



Sec. 1185.505  Who uses the EPLS?

    (a) Federal agency officials use the EPLS to determine whether to 
enter into a transaction with a person, as required under Sec. 
1185.430.
    (b) Participants also may, but are not required to, use the EPLS to 
determine if--
    (1) Principals of their transactions are excluded or disqualified, 
as required under Sec. 1185.320; or
    (2) Persons with whom they are entering into covered transactions at 
the next lower tier are excluded or disqualified.
    (c) The EPLS is available to the general public.



Sec. 1185.510  Who maintains the EPLS?

    In accordance with the OMB guidelines, the General Services 
Administration (GSA) maintains the EPLS. When

[[Page 647]]

a Federal agency takes an action to exclude a person under the 
nonprocurement or procurement debarment and suspension system, the 
agency enters the information about the excluded person into the EPLS.



Sec. 1185.515  What specific information is in the EPLS?

    (a) At a minimum, the EPLS indicates--
    (1) The full name (where available) and address of each excluded or 
disqualified person, in alphabetical order, with cross references if 
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 the action;
    (6) The agency and name and telephone number of the agency point of 
contact for the action; and
    (7) The Dun and Bradstreet Number (DUNS), or other similar code 
approved by the GSA, of the excluded or disqualified person, if 
available.
    (b)(1) The database for the EPLS includes a field for the Taxpayer 
Identification Number (TIN) (the social security number (SSN) for an 
individual) of an excluded or disqualified person.
    (2) Agencies disclose the SSN of an individual to verify the 
identity of an individual, only if permitted under the Privacy Act of 
1974 and, if appropriate, the Computer Matching and Privacy Protection 
Act of 1988, as codified in 5 U.S.C. 552(a).



Sec. 1185.520  Who places the information into the EPLS?

    Federal officials who take actions to exclude persons under this 
part or officials who are responsible for identifying disqualified 
persons must enter the following information about those persons into 
the EPLS:
    (a) Information required by Sec. 1185.515(a);
    (b) The Taxpayer Identification Number (TIN) of the excluded or 
disqualified person, including the social security number (SSN) for an 
individual, if the number is available and may be disclosed under law;
    (c) Information about an excluded or disqualified person, generally 
within five working days, after--
    (1) Taking an exclusion action;
    (2) Modifying or rescinding an exclusion action;
    (3) Finding that a person is disqualified; or
    (4) Finding that there has been a change in the status of a person 
who is listed as disqualified.



Sec. 1185.525  Whom do I ask if I have questions about a person in the EPLS?

    If you have questions about a person in the EPLS, ask the point of 
contact for the Federal agency that placed the person's name into the 
EPLS. You may find the agency point of contact from the EPLS.



Sec. 1185.530  Where can I find the EPLS?

    (a) You may access the EPLS through the Internet, currently at 
http://epls.arnet.gov.
    (b) As of November 26, 2003, you may also subscribe to a printed 
version. However, we anticipate discontinuing the printed version. Until 
it is discontinued, you may obtain the printed version by purchasing a 
yearly subscription from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402, or by calling the 
Government Printing Office Inquiry and Order Desk at (202) 783-3238.



   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions



Sec. 1185.600  How do suspension and debarment actions start?

    When we receive information from any source concerning a cause for 
suspension or debarment, we will promptly report and investigate it. We 
refer the question of whether to suspend or debar you to our suspending 
or debarring official for consideration, if appropriate.



Sec. 1185.605  How does suspension differ from debarment?

    Suspension differs from debarment in that--

[[Page 648]]



------------------------------------------------------------------------
        A suspending official . . .          A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary       Imposes debarment for a
 status of ineligibility for procurement     specified period as a final
 and nonprocurement transactions, pending    determination that a person
 completion of an investigation or legal     is not presently
 proceedings.                                responsible.
(b) Must--................................  Must conclude, based on a
(1) Have adequate evidence that there may    preponderance of the
 be a cause for debarment of a person; and.  evidence, that the person
(2) Conclude that immediate action is        has engaged in conduct that
 necessary to protect the Federal interest.  warrants debarment.
(c) Usually imposes the suspension first,   Imposes debarment after
 and then promptly notifies the suspended    giving the respondent
 person, giving the person an opportunity    notice of the action and an
 to contest the suspension and have it       opportunity to contest the
 lifted.                                     proposed debarment.
------------------------------------------------------------------------



Sec. 1185.610  What procedures does the Institute of Museum and Library 
Services use in suspension and debarment actions?

    In deciding whether to suspend or debar you, we handle the actions 
as informally as practicable, consistent with principles of fundamental 
fairness.
    (a) For suspension actions, we use the procedures in this subpart 
and subpart G of this part.
    (b) For debarment actions, we use the procedures in this subpart and 
subpart H of this part.



Sec. 1185.615  How does the Institute of Museum and Library Services 
notify a person of a suspension or debarment action?

    (a) The suspending or debarring official sends a written notice to 
the last known street address, facsimile number, or e-mail address of--
    (1) You or your identified counsel; or
    (2) Your agent for service of process, or any of your partners, 
officers, directors, owners, or joint venturers.
    (b) The notice is effective if sent to any of these persons.



Sec. 1185.620  Do Federal agencies coordinate suspension and debarment actions?

    Yes, when more than one Federal agency has an interest in a 
suspension or debarment, the agencies may consider designating one 
agency as the lead agency for making the decision. Agencies are 
encouraged to establish methods and procedures for coordinating their 
suspension and debarment actions.



Sec. 1185.625  What is the scope of a suspension or debarment?

    If you are suspended or debarred, the suspension or debarment is 
effective as follows:
    (a) Your suspension or debarment constitutes suspension or debarment 
of all of your divisions and other organizational elements from all 
covered transactions, unless the suspension or debarment decision is 
limited--
    (1) By its terms to one or more specifically identified individuals, 
divisions, or other organizational elements; or
    (2) To specific types of transactions.
    (b) Any affiliate of a participant may be included in a suspension 
or debarment action if the suspending or debarring official--
    (1) Officially names the affiliate in the notice; and
    (2) Gives the affiliate an opportunity to contest the action.



Sec. 1185.630  May the Institute of Museum and Library Services impute 
conduct of one person to another?

    For purposes of actions taken under this rule, we may impute conduct 
as follows:
    (a) Conduct imputed from an individual to an organization. We may 
impute the fraudulent, criminal, or other improper conduct of any 
officer, director, shareholder, partner, employee, or other individual 
associated with an organization, to that organization when the improper 
conduct occurred in connection with the individual's performance of 
duties for or on behalf of that organization, or with the organization's 
knowledge, approval or acquiescence. The organization's acceptance of 
the benefits derived from the conduct is evidence of knowledge, approval 
or acquiescence.
    (b) Conduct imputed from an organization to an individual, or 
between individuals. We may impute the fraudulent, criminal, or other 
improper conduct of any organization to an individual, or from one 
individual to another individual, if the individual to whom the improper 
conduct is imputed either

[[Page 649]]

participated in, had knowledge of, or reason to know of the improper 
conduct.
    (c) Conduct imputed from one organization to another organization. 
We may impute the fraudulent, criminal, or other improper conduct of one 
organization to another organization when the improper conduct occurred 
in connection with a partnership, joint venture, joint application, 
association or similar arrangement, or when the organization to whom the 
improper conduct is imputed has the power to direct, manage, control or 
influence the activities of the organization responsible for the 
improper conduct. Acceptance of the benefits derived from the conduct is 
evidence of knowledge, approval or acquiescence.



Sec. 1185.635  May the Institute of Museum and Library Services settle a 
debarment or suspension action?

    Yes, we may settle a debarment or suspension action at any time if 
it is in the best interest of the Federal Government.



Sec. 1185.640  May a settlement include a voluntary exclusion?

    Yes, if we enter into a settlement with you in which you agree to be 
excluded, it is called a voluntary exclusion and has governmentwide 
effect.



Sec. 1185.645  Do other Federal agencies know if the Institute of Museum 
and Library Services agrees to a voluntary exclusion?

    (a) Yes, we enter information regarding a voluntary exclusion into 
the EPLS.
    (b) Also, any agency or person may contact us to find out the 
details of a voluntary exclusion.



                          Subpart G_Suspension



Sec. 1185.700  When may the suspending official issue a suspension?

    Suspension is a serious action. Using the procedures of this subpart 
and subpart F of this part, the suspending official may impose 
suspension only when that official determines that--
    (a) There exists an indictment for, or other adequate evidence to 
suspect, an offense listed under Sec. 1185.800(a), or
    (b) There exists adequate evidence to suspect any other cause for 
debarment listed under Sec. 1185.800(b) through (d); and
    (c) Immediate action is necessary to protect the public interest.



Sec. 1185.705  What does the suspending official consider in issuing a 
suspension?

    (a) In determining the adequacy of the evidence to support the 
suspension, the suspending official considers 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. During this assessment, the suspending 
official may examine the basic documents, including grants, cooperative 
agreements, loan authorizations, contracts, and other relevant 
documents.
    (b) An indictment, conviction, civil judgment, or other official 
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of 
suspension actions.
    (c) In deciding whether immediate action is needed to protect the 
public interest, the suspending official has wide discretion. For 
example, the suspending official may infer the necessity for immediate 
action to protect the public interest either from the nature of the 
circumstances giving rise to a cause for suspension or from potential 
business relationships or involvement with a program of the Federal 
Government.



Sec. 1185.710  When does a suspension take effect?

    A suspension is effective when the suspending official signs the 
decision to suspend.



Sec. 1185.715  What notice does the suspending official give me if I am 
suspended?

    After deciding to suspend you, the suspending official promptly 
sends you a Notice of Suspension advising you--
    (a) That you have been suspended;
    (b) That your suspension is based on--
    (1) An indictment;
    (2) A conviction;

[[Page 650]]

    (3) Other adequate evidence that you have committed irregularities 
which seriously reflect on the propriety of further Federal Government 
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your 
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on 
notice without disclosing the Federal Government's evidence;
    (d) Of the cause(s) upon which we relied under Sec. 1185.700 for 
imposing suspension;
    (e) That your suspension is for a temporary period pending the 
completion of an investigation or resulting legal or debarment 
proceedings;
    (f) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other IMLS procedures governing suspension decision 
making; and
    (g) Of the governmentwide effect of your suspension from procurement 
and nonprocurement programs and activities.



Sec. 1185.720  How may I contest a suspension?

    If you as a respondent wish to contest a suspension, you or your 
representative must provide the suspending official with information in 
opposition to the suspension. You may do this orally or in writing, but 
any information provided orally that you consider important must also be 
submitted in writing for the official record.



Sec. 1185.725  How much time do I have to contest a suspension?

    (a) As a respondent you or your representative must either send, or 
make rrangements to appear and present, the information and argument to 
the suspending official within 30 days after you receive the Notice of 
Suspension.
    (b) We consider the notice to be received by you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec. 1185.730  What information must I provide to the suspending official 
if I contest a suspension?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the suspending official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Suspension. A general denial is insufficient to raise a 
genuine dispute over facts material to the suspension;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, state, 
or local agencies, including administrative agreements that affect only 
those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Suspension that grew out of facts relevant to the cause(s) stated in the 
notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the Institute of Museum and Library Services may seek 
further criminal, civil or administrative action against you, as 
appropriate.



Sec. 1185.735  Under what conditions do I get an additional opportunity 
to challenge the facts on which the suspension is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the suspending official determines that--
    (1) Your suspension is based upon an indictment, conviction, civil 
judgment, or other finding by a Federal, State, or local body for which 
an opportunity to contest the facts was provided;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Suspension;
    (3) The issues raised in your presentation in opposition to the 
suspension are not factual in nature, or are not material to the 
suspending official's initial decision to suspend, or the official's 
decision whether to continue the suspension; or

[[Page 651]]

    (4) On the basis of advice from the Department of Justice, an office 
of the United States Attorney, a State attorney general's office, or a 
State or local prosecutor's office, that substantial interests of the 
government in pending or contemplated legal proceedings based on the 
same facts as the suspension would be prejudiced by conducting fact-
finding.
    (b) You will have an opportunity to challenge the facts if the 
suspending official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the suspension.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the suspending official or designee must conduct 
additional proceedings to resolve those facts.



Sec. 1185.740  Are suspension proceedings formal?

    (a) Suspension proceedings are conducted in a fair and informal 
manner. The suspending official may use flexible procedures to allow you 
to present matters in opposition. In so doing, the suspending official 
is not required to follow formal rules of evidence or procedure in 
creating an official record upon which the official will base a final 
suspension decision.
    (b) You as a respondent or your representative must submit any 
documentary evidence you want the suspending official to consider.



Sec. 1185.745  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the Institute of Museum and Library 
Services agree to waive it in advance. If you want a copy of the 
transcribed record, you may purchase it.



Sec. 1185.750  What does the suspending official consider in deciding 
whether to continue or terminate my suspension?

    (a) The suspending official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the suspending official's initial 
decision to suspend you;
    (2) Any further information and argument presented in support of, or 
opposition to, the suspension; and
    (3) Any transcribed record of fact-finding proceedings.
    (b) The suspending official may refer disputed material facts to 
another official for findings of fact. The suspending official may 
reject any resulting findings, in whole or in part, only after 
specifically determining them to be arbitrary, capricious, or clearly 
erroneous.



Sec. 1185.755  When will I know whether the suspension is continued or 
terminated?

    The suspending official must make a written decision whether to 
continue, modify, or terminate your suspension within 45 days of closing 
the official record. The official record closes upon the suspending 
official's receipt of final submissions, information and findings of 
fact, if any. The suspending official may extend that period for good 
cause.



Sec. 1185.760  How long may my suspension last?

    (a) If legal or debarment proceedings are initiated at the time of, 
or during your suspension, the suspension may continue until the 
conclusion of those proceedings. However, if proceedings are not 
initiated, a suspension may not exceed 12 months.
    (b) The suspending official may extend the 12 month limit under 
paragraph (a) of this section for an additional 6 months if an office of 
a U.S. Assistant Attorney General, U.S. Attorney, or other responsible 
prosecuting official requests an extension in writing. In no event may a 
suspension exceed 18 months without initiating proceedings under 
paragraph (a) of this section.

[[Page 652]]

    (c) The suspending official must notify the appropriate officials 
under paragraph (b) of this section of an impending termination of a 
suspension at least 30 days before the 12 month period expires to allow 
the officials an opportunity to request an extension.



                           Subpart H_Debarment



Sec. 1185.800  What are the causes for debarment?

    We may debar a person 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, tax 
evasion, 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 your 
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, or a procurement debarment by any Federal agency taken 
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
    (2) Knowingly doing business with an ineligible person, except as 
permitted under Sec. 1185.120;
    (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. 1185.640 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it 
affects your present responsibility.



Sec. 1185.805  What notice does the debarring official give me if I am 
proposed for debarment?

    After consideration of the causes in Sec. 1185.800 of this subpart, 
if the debarring official proposes to debar you, the official sends you 
a Notice of Proposed Debarment, pursuant to Sec. 1185.615, advising 
you--
    (a) That the debarring official is considering debarring you;
    (b) Of the reasons for proposing to debar you in terms sufficient to 
put you on notice of the conduct or transactions upon which the proposed 
debarment is based;
    (c) Of the cause(s) under Sec. 1185.800 upon which the debarring 
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other IMLS procedures governing debarment; and
    (e) Of the governmentwide effect of a debarment from procurement and 
nonprocurement programs and activities.



Sec. 1185.810  When does a debarment take effect?

    A debarment is not effective until the debarring official issues a 
decision. The debarring official does not issue a decision until the 
respondent has had

[[Page 653]]

an opportunity to contest the proposed debarment.



Sec. 1185.815  How may I contest a proposed debarment?

    If you as a respondent wish to contest a proposed debarment, you or 
your representative must provide the debarring official with information 
in opposition to the proposed debarment. You may do this orally or in 
writing, but any information provided orally that you consider important 
must also be submitted in writing for the official record.



Sec. 1185.820  How much time do I have to contest a proposed debarment?

    (a) As a respondent you or your representative must either send, or 
make arrangements to appear and present, the information and argument to 
the debarring official within 30 days after you receive the Notice of 
Proposed Debarment.
    (b) We consider the Notice of Proposed Debarment to be received by 
you--
    (1) When delivered, if we mail the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if we send the notice by facsimile or five days after 
we send it if the facsimile is undeliverable; or
    (3) When delivered, if we send the notice by e-mail or five days 
after we send it if the e-mail is undeliverable.



Sec. 1185.825  What information must I provide to the debarring official 
if I contest a proposed debarment?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the debarring official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Proposed Debarment. Include any information about any of the 
factors listed in Sec. 1185.860. A general denial is insufficient to 
raise a genuine dispute over facts material to the debarment;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing E.O. 12549 and all similar actions taken by Federal, State, 
or local agencies, including administrative agreements that affect only 
those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Proposed Debarment that grew out of facts relevant to the cause(s) 
stated in the notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the Institute of Museum and Library Services may seek 
further criminal, civil or administrative action against you, as 
appropriate.



Sec. 1185.830  Under what conditions do I get an additional opportunity 
to challenge the facts on which a proposed debarment is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the debarring official determines that--
    (1) Your debarment is based upon a conviction or civil judgment;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Proposed Debarment; or
    (3) The issues raised in your presentation in opposition to the 
proposed debarment are not factual in nature, or are not material to the 
debarring official's decision whether to debar.
    (b) You will have an additional opportunity to challenge the facts 
if the debarring official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the proposed debarment.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the debarring official or designee must conduct 
additional proceedings to resolve those facts.



Sec. 1185.835  Are debarment proceedings formal?

    (a) Debarment proceedings are conducted in a fair and informal 
manner. The debarring official may use flexible procedures to allow you 
as a respondent to present matters in opposition. In so doing, the 
debarring official is not

[[Page 654]]

required to follow formal rules of evidence or procedure in creating an 
official record upon which the official will base the decision whether 
to debar.
    (b) You or your representative must submit any documentary evidence 
you want the debarring official to consider.



Sec. 1185.840  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the Institute of Museum and Library 
Services agree to waive it in advance. If you want a copy of the 
transcribed record, you may purchase it.



Sec. 1185.845  What does the debarring official consider in deciding 
whether to debar me?

    (a) The debarring official may debar you for any of the causes in 
Sec. 1185.800. However, the official need not debar you even if a cause 
for debarment exists. The official may consider the seriousness of your 
acts or omissions and the mitigating or aggravating factors set forth at 
Sec. 1185.860.
    (b) The debarring official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the debarring official's proposed 
debarment;
    (2) Any further information and argument presented in support of, or 
in opposition to, the proposed debarment; and
    (3) Any transcribed record of fact-finding proceedings.
    (c) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any resultant findings, in whole or in part, only after specifically 
determining them to be arbitrary, capricious, or clearly erroneous.



Sec. 1185.850  What is the standard of proof in a debarment action?

    (a) In any debarment action, we must establish the cause for 
debarment by a preponderance of the evidence.
    (b) If the proposed debarment is based upon a conviction or civil 
judgment, the standard of proof is met.



Sec. 1185.855  Who has the burden of proof in a debarment action?

    (a) We have the burden to prove that a cause for debarment exists.
    (b) Once a cause for debarment is established, you as a respondent 
have the burden of demonstrating to the satisfaction of the debarring 
official that you are presently responsible and that debarment is not 
necessary.



Sec. 1185.860  What factors may influence the debarring official's decision?

    This section lists the mitigating and aggravating factors that the 
debarring official may consider in determining whether to debar you and 
the length of your debarment period. The debarring official may consider 
other factors if appropriate in light of the circumstances of a 
particular case. The existence or nonexistence of any factor, such as 
one of those set forth in this section, is not necessarily determinative 
of your present responsibility. In making a debarment decision, the 
debarring official may consider the following factors:
    (a) The actual or potential harm or impact that results or may 
result from the wrongdoing.
    (b) The frequency of incidents and/or duration of the wrongdoing.
    (c) Whether there is a pattern or prior history of wrongdoing. For 
example, if you have been found by another Federal agency or a State 
agency to have engaged in wrongdoing similar to that found in the 
debarment action, the existence of this fact may be used by the 
debarring official in determining that you have a pattern or prior 
history of wrongdoing.
    (d) Whether you are or have been excluded or disqualified by an 
agency of the Federal Government or have not been allowed to participate 
in State or local contracts or assistance agreements on a basis of 
conduct similar to

[[Page 655]]

one or more of the causes for debarment specified in this part.
    (e) Whether you have entered into an administrative agreement with a 
Federal agency or a State or local government that is not governmentwide 
but is based on conduct similar to one or more of the causes for 
debarment specified in this part.
    (f) Whether and to what extent you planned, initiated, or carried 
out the wrongdoing.
    (g) Whether you have accepted responsibility for the wrongdoing and 
recognize the seriousness of the misconduct that led to the cause for 
debarment.
    (h) Whether you have paid or agreed to pay all criminal, civil and 
administrative liabilities for the improper activity, including any 
investigative or administrative costs incurred by the government, and 
have made or agreed to make full restitution.
    (i) Whether you have cooperated fully with the government agencies 
during the investigation and any court or administrative action. In 
determining the extent of cooperation, the debarring official may 
consider when the cooperation began and whether you disclosed all 
pertinent information known to you.
    (j) Whether the wrongdoing was pervasive within your organization.
    (k) The kind of positions held by the individuals involved in the 
wrongdoing.
    (l) Whether your organization took appropriate corrective action or 
remedial measures, such as establishing ethics training and implementing 
programs to prevent recurrence.
    (m) Whether your principals tolerated the offense.
    (n) Whether you brought the activity cited as a basis for the 
debarment to the attention of the appropriate government agency in a 
timely manner.
    (o) Whether you have fully investigated the circumstances 
surrounding the cause for debarment and, if so, made the result of the 
investigation available to the debarring official.
    (p) Whether you had effective standards of conduct and internal 
control systems in place at the time the questioned conduct occurred.
    (q) Whether you have taken appropriate disciplinary action against 
the individuals responsible for the activity which constitutes the cause 
for debarment.
    (r) Whether you have had adequate time to eliminate the 
circumstances within your organization that led to the cause for the 
debarment.
    (s) Other factors that are appropriate to the circumstances of a 
particular case.



Sec. 1185.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of 
debarment will be based on the seriousness of the cause(s) upon which 
your debarment is based. Generally, debarment should not exceed three 
years. However, if circumstances warrant, the debarring official may 
impose a longer period of debarment.
    (b) In determining the period of debarment, the debarring official 
may consider the factors in Sec. 1185.860. If a suspension has preceded 
your debarment, the debarring official must consider the time you were 
suspended.
    (c) If the debarment is for a violation of the provisions of the 
Drug-Free Workplace Act of 1988, your period of debarment may not exceed 
five years.



Sec. 1185.870  When do I know if the debarring official debars me?

    (a) The debarring official must make a written decision whether to 
debar within 45 days of closing the official record. The official record 
closes upon the debarring official's receipt of final submissions, 
information and findings of fact, if any. The debarring official may 
extend that period for good cause.
    (b) The debarring official sends you written notice, pursuant to 
Sec. 1185.615 that the official decided, either--
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective 
dates; and
    (iv) Advises you that your debarment is effective for covered 
transactions and contracts that are subject to the

[[Page 656]]

Federal Acquisition Regulation (48 CFR chapter 1), throughout the 
executive branch of the Federal Government unless an agency head or an 
authorized designee grants an exception.



Sec. 1185.875  May I ask the debarring official to reconsider a decision to 
debar me?

    Yes, as a debarred person you may ask the debarring official to 
reconsider the debarment decision or to reduce the time period or scope 
of the debarment. However, you must put your request in writing and 
support it with documentation.



Sec. 1185.880  What factors may influence the debarring official during 
reconsideration?

    The debarring official may reduce or terminate your debarment based 
on--
    (a) Newly discovered material evidence;
    (b) A reversal of the conviction or civil judgment upon which your 
debarment was based;
    (c) A bona fide change in ownership or management;
    (d) Elimination of other causes for which the debarment was imposed; 
or
    (e) Other reasons the debarring official finds appropriate.



Sec. 1185.885  May the debarring official extend a debarment?

    (a) Yes, the debarring official may extend a debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest.
    (b) However, the debarring official may not extend a debarment 
solely on the basis of the facts and circumstances upon which the 
initial debarment action was based.
    (c) If the debarring official decides that a debarment for an 
additional period is necessary, the debarring official must follow the 
applicable procedures in this subpart, and subpart F of this part, to 
extend the debarment.



                          Subpart I_Definitions



Sec. 1185.900  Adequate evidence.

    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.



Sec. 1185.905  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. The ways we use to 
determine control include, but are not limited to--
    (a) Interlocking management or ownership;
    (b) Identity of interests among family members;
    (c) Shared facilities and equipment;
    (d) Common use of employees; or
    (e) A business entity which has been organized following the 
exclusion of a person which has the same or similar management, 
ownership, or principal employees as the excluded person.



Sec. 1185.910  Agency.

    Agency means any United States executive department, military 
department, defense agency, or any other agency of the executive branch. 
Other agencies of the Federal government are not considered ``agencies'' 
for the purposes of this part unless they issue regulations adopting the 
governmentwide Debarment and Suspension system under Executive orders 
12549 and 12689.



Sec. 1185.915  Agent or representative.

    Agent or representative means any person who acts on behalf of, or 
who is authorized to commit, a participant in a covered transaction.



Sec. 1185.920  Civil judgment.

    Civil judgment means the disposition of a civil action by any court 
of competent jurisdiction, whether by verdict, decision, settlement, 
stipulation, other disposition which creates a civil liability for the 
complained of wrongful acts, or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).



Sec. 1185.925  Conviction.

    Conviction means--
    (a) A judgment or any other determination of guilt of a criminal 
offense by any court of competent jurisdiction,

[[Page 657]]

whether entered upon a verdict or plea, including a plea of nolo 
contendere; or
    (b) Any other resolution that is the functional equivalent of a 
judgment, including probation before judgment and deferred prosecution. 
A disposition without the participation of the court is the functional 
equivalent of a judgment only if it includes an admission of guilt.



Sec. 1185.930  Debarment.

    Debarment means an action taken by a debarring official under 
subpart H of this part to exclude a person from participating in covered 
transactions and transactions covered under the Federal Acquisition 
Regulation (48 CFR chapter 1). A person so excluded is debarred.



Sec. 1185.935  Debarring official.

    (a) Debarring official means an agency official who is authorized to 
impose debarment. A debarring official is either--
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 1185.940  Disqualified.

    Disqualified means that a person is prohibited from participating in 
specified Federal procurement or nonprocurement transactions as required 
under a statute, Executive order (other than Executive Orders 12549 and 
12689) or other authority. Examples of disqualifications include persons 
prohibited under--
    (a) The Davis-Bacon Act (40 U.S.C. 276(a));
    (b) The equal employment opportunity acts and Executive orders; or
    (c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C. 
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).



Sec. 1185.945  Excluded or exclusion.

    Excluded or exclusion means--
    (a) That a person or commodity is prohibited from being a 
participant in covered transactions, whether the person has been 
suspended; debarred; proposed for debarment under 48 CFR part 9, subpart 
9.4; voluntarily excluded; or
    (b) The act of excluding a person.



Sec. 1185.950  Excluded Parties List System

    Excluded Parties List System (EPLS) means the list maintained and 
disseminated by the General Services Administration (GSA) containing the 
names and other information about persons who are ineligible. The EPLS 
system includes the printed version entitled, ``List of Parties Excluded 
or Disqualified from Federal Procurement and Nonprocurement Programs,'' 
so long as published.



Sec. 1185.955  Indictment.

    Indictment means an indictment for a criminal offense. A 
presentment, information, or other filing by a competent authority 
charging a criminal offense shall be given the same effect as an 
indictment.



Sec. 1185.960  Ineligible or ineligibility.

    Ineligible or ineligibility means that a person or commodity is 
prohibited from covered transactions because of an exclusion or 
disqualification.



Sec. 1185.965  Legal proceedings.

    Legal proceedings means any criminal proceeding or any civil 
judicial proceeding, including a proceeding under the Program Fraud 
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal 
Government or a State or local government or quasi-governmental 
authority is a party. The term also includes appeals from those 
proceedings.



Sec. 1185.970  Nonprocurement transaction.

    (a) Nonprocurement transaction means any transaction, regardless of 
type (except procurement contracts), including, but not limited to the 
following:
    (1) Grants.
    (2) Cooperative agreements.
    (3) Scholarships.
    (4) Fellowships.
    (5) Contracts of assistance.
    (6) Loans.
    (7) Loan guarantees.
    (8) Subsidies.
    (9) Insurances.
    (10) Payments for specified uses.
    (11) Donation agreements.
    (b) A nonprocurement transaction at any tier does not require the 
transfer of Federal funds.

[[Page 658]]



Sec. 1185.975  Notice.

    Notice means a written communication served in person, sent by 
certified mail or its equivalent, or sent electronically by e-mail or 
facsimile. (See Sec. 1185. 615.)



Sec. 1185.980  Participant.

    Participant means any person who submits a proposal for or who 
enters into a covered transaction, including an agent or representative 
of a participant.



Sec. 1185.985  Person.

    Person means any individual, corporation, partnership, association, 
unit of government, or legal entity, however organized.



Sec. 1185.990  Preponderance of the evidence.

    Preponderance of the evidence means proof by information that, 
compared with information opposing it, leads to the conclusion that the 
fact at issue is more probably true than not.



Sec. 1185.995  Principal.

    Principal means--
    (a) An officer, director, owner, partner, principal investigator, or 
other person within a participant with management or supervisory 
responsibilities related to a covered transaction; or
    (b) A consultant or other person, whether or not employed by the 
participant or paid with Federal funds, who--
    (1) Is in a position to handle Federal funds;
    (2) Is in a position to influence or control the use of those funds; 
or,
    (3) Occupies a technical or professional position capable of 
substantially influencing the development or outcome of an activity 
required to perform the covered transaction.



Sec. 1185.1000  Respondent.

    Respondent means a person against whom an agency has initiated a 
debarment or suspension action.



Sec. 1185.1005  State.

    (a) State means--
    (1) Any of the states of the United States;
    (2) The District of Columbia;
    (3) The Commonwealth of Puerto Rico;
    (4) Any territory or possession of the United States; or
    (5) Any agency or instrumentality of a state.
    (b) For purposes of this part, State does not include institutions 
of higher education, hospitals, or units of local government.



Sec. 1185.1010  Suspending official.

    (a) Suspending official means an agency official who is authorized 
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 1185.1015  Suspension.

    Suspension is an action taken by a suspending official under subpart 
G of this part that immediately prohibits a person from participating in 
covered transactions and transactions covered under the Federal 
Acquisition Regulation (48 CFR chapter 1) for a temporary period, 
pending completion of an agency investigation and any judicial or 
administrative proceedings that may ensue. A person so excluded is 
suspended.



Sec. 1185.1020  Voluntary exclusion or voluntarily excluded.

    (a) Voluntary exclusion means a person's agreement to be excluded 
under the terms of a settlement between the person and one or more 
agencies. Voluntary exclusion must have governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has agreed 
to a voluntary exclusion.

Subpart J--[Reserved]

[[Page 659]]

               Appendix to Part 1185--Covered Transactions
[GRAPHIC] [TIFF OMITTED] TR26NO03.000



PART 1186_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 
ASSISTANCE)--Table of Contents




                     Subpart A_Purpose and Coverage

Sec.
1186.100 What does this part do?
1186.105 Does this part apply to me?
1186.110 Are any of my Federal assistance awards exempt from this part?
1186.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

1186.200 What must I do to comply with this part?
1186.205 What must I include in my drug-free workplace statement?
1186.210 To whom must I distribute my drug-free workplace statement?
1186.215 What must I include in my drug-free awareness program?
1186.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
1186.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
1186.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

1186.300 What must I do to comply with this part if I am an individual 
          recipient?

[[Page 660]]

1186.301 [Reserved]

 Subpart D_Responsibilities of Institute of Museum and Library Services 
                           Awarding Officials

1186.400 What are my responsibilities as an Institute of Museum and 
          Library Services awarding official?

           Subpart E_Violations of This Part and Consequences

1186.500 How are violations of this part determined for recipients other 
          than individuals?
1186.505 How are violations of this part determined for recipients who 
          are individuals?
1186.510 What actions will the Federal Government take against a 
          recipient determined to have violated this part?
1186.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

1186.605 Award.
1186.610 Controlled substance.
1186.615 Conviction.
1186.620 Cooperative agreement.
1186.625 Criminal drug statute.
1186.630 Debarment.
1186.635 Drug-free workplace.
1186.640 Employee.
1186.645 Federal agency or agency.
1186.650 Grant.
1186.655 Individual.
1186.660 Recipient.
1186.665 State.
1186.670 Suspension.

    Authority: 41 U.S.C. 701 et seq.

    Source: 68 FR 66557, 66641, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 1186.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec. 1186.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the Institute of Museum 
and Library Services; or
    (2) A(n) IMLS awarding official. (See definitions of award and 
recipient in Sec. Sec. 1186.605 and 1186.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
             If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an individual..  A, B and E.
(2) A recipient who is an individual......  A, C and E.
(3) A(n) IMLS awarding official...........  A, D and E.
------------------------------------------------------------------------



Sec. 1186.110  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award that the Director, Institute 
of Museum and Library Services or designee determines that the 
application of this part would be inconsistent with the international 
obligations of the United States or the laws or regulations of a foreign 
government.



Sec. 1186.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec. 1186. 510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 1186.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of

[[Page 661]]

this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec. 1186.205 
through 1186.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec. 1186.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. 1186.230).



Sec. 1186.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec. 1186.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec. 
1186.205 be given to each employee who will be engaged in the 
performance of any Federal award.



Sec. 1186.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec. 1186.220  By when must I publish my drug-free workplace statement 
and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec. 1186.205 and an ongoing awareness 
program as described in Sec. 1186.215, you must publish the statement 
and establish the program by the time given in the following table:

------------------------------------------------------------------------
                 If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award is  must have the policy
 less than 30 days.                          statement and program in
                                             place as soon as possible,
                                             but before the date on
                                             which performance is
                                             expected to be completed.
(b) The performance period of the award is  must have the policy
 30 days or more.                            statement and program in
                                             place within 30 days after
                                             award.
(c) You believe there are extraordinary     may ask the IMLS awarding
 circumstances that will require more than   official to give you more
 30 days for you to publish the policy       time to do so. The amount
 statement and establish the awareness       of additional time, if any,
 program.                                    to be given is at the
                                             discretion of the awarding
                                             official.
------------------------------------------------------------------------



Sec. 1186.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. 1186.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.

[[Page 662]]

    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec. 1186.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each IMLS award. A 
failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces--
    (1) To the IMLS official that is making the award, either at the 
time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by IMLS officials or their 
designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award 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).
    (c) If you identified workplaces to the IMLS awarding official at 
the time of application or award, as described in paragraph (a)(1) of 
this section, and any workplace that you identified changes during the 
performance of the award, you must inform the IMLS awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 1186.300  What must I do to comply with this part if I am an individual 
recipient?

    As a condition of receiving a(n) IMLS award, if you are an 
individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the IMLS awarding official or other designee for each award 
that you currently have, unless Sec. 1186.301 or the award document 
designates a central point for the receipt of the notices. When notice 
is made to a central point, it must include the identification number(s) 
of each affected award.



Sec. 1186.301  [Reserved]



          Subpart D_Responsibilities of IMLS Awarding Officials



Sec. 1186.400   What are my responsibilities as a(n) IMLS awarding official?

    As a(n) IMLS awarding official, you must obtain each recipient's 
agreement, as a condition of the award, to comply with the requirements 
in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec. 1186.500  How are violations of this part determined for recipients 
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Director, Institute of Museum and 
Library Services or designee determines, in writing, that--

[[Page 663]]

    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec. 1186.505  How are violations of this part determined for recipients 
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Director, Institute of Museum and Library Services or 
designee determines, in writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec. 1186.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. 1186.500 or Sec. 1186.505, the Institute of Museum 
and Library Services may take one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 45 CFR Part 1185, 
for a period not to exceed five years.



Sec. 1186.515  Are there any exceptions to those actions?

    The Director, Institute of Museum and Library Services may waive 
with respect to a particular award, in writing, a suspension of payments 
under an award, suspension or termination of an award, or suspension or 
debarment of a recipient if the Director, Institute of Museum and 
Library Services determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



                          Subpart F_Definitions



Sec. 1186.605  Award.

    Award means an award of financial assistance by the Institute of 
Museum and Library Services or other Federal agency directly to a 
recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 45 
CFR Part 1183 that implements OMB Circular A-102 (for availability, see 
5 CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) 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).



Sec. 1186.610  Controlled substance.

    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.



Sec. 1186.615  Conviction.

    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.



Sec. 1186.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec. 1186.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when

[[Page 664]]

carrying out the activity contemplated by the award. The term does not 
include cooperative research and development agreements as defined in 15 
U.S.C. 3710a.



Sec. 1186.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec. 1186.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689.



Sec. 1186.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec. 1186.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (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).



Sec. 1186.645  Federal agency or agency.

    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.



Sec. 1186.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec. 1186.655  Individual.

    Individual means a natural person.



Sec. 1186.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec. 1186.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec. 1186.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of

[[Page 665]]

an investigation and any judicial or administrative proceedings that may 
ensue. A recipient so prohibited is suspended, in accordance with the 
Federal Acquisition Regulation for procurement contracts (48 CFR part 9, 
subpart 9.4) and the common rule, Government-wide Debarment and 
Suspension (Nonprocurement), that implements Executive Order 12549 and 
Executive Order 12689. Suspension of a recipient is a distinct and 
separate action from suspension of an award or suspension of payments 
under an award.

                       PARTS 1187-1199 [RESERVED]

[[Page 667]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 669]]

            Material Approved for Incorporation by Reference

                     (Revised as of October 1, 2004)

  The Director of the Federal Register has approved under 5 U.S.C. 
552(a) and 1 CFR part 51 the incorporation by reference of the following 
publications. This list contains only those incorporations by reference 
effective as of the revision date of this volume. Incorporations by 
reference found within a regulation are effective upon the effective 
date of that regulation. For more information on incorporation by 
reference, see the preliminary pages of this volume.


45 CFR (PARTS 500-1199)

NATIONAL SCIENCE FOUNDATION
                                                                  45 CFR


American National Standards Institute (ANSI)

  25 West 43rd Street, Fourth floor, New York, NY 
  10036 Telephone: (212) 642-4900
ANSI A117.1-61 (R 71) Specifications for Making                605.23(c)
  Buildings and Facilities Accessible to, and 
  Usable by, the Physically Handicapped.

[[Page 671]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2004)

                      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--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  [Reserved]
        II  Office of Management and Budget Circulars and Guidance 
                [Reserved]
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [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)

[[Page 672]]

        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)
    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)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      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)
     LXVII  Institute of Museum and Library Services (Part 7701)
      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)

[[Page 673]]

     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         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)
        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)

[[Page 674]]

      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)
     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  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 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)

[[Page 675]]

       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)
        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, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (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)

[[Page 676]]

       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)
        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)

[[Page 677]]

          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  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     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)

[[Page 678]]

        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 Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       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)

                          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]

[[Page 679]]

       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)

                           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  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

[[Page 680]]

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       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)
        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  Employee Benefits Security 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)

[[Page 681]]

        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)

                      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 Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)

[[Page 682]]

        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)

                        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)

[[Page 683]]

             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--1099)
        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)
       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)

[[Page 684]]

       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 of Travel Expenses from a Non-Federal Source 
                (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)

                   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--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (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

[[Page 685]]

        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)
     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 Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (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)

[[Page 686]]

       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)
        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)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        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)

[[Page 687]]

        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        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 Homeland Security (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)
        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   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)

[[Page 688]]

         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 689]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2004)

                                                  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
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
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

[[Page 690]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
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 and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 691]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  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
Employee Benefits Security Administration         29, XXV
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

[[Page 692]]

  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
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

[[Page 693]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  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; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
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 Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
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; 42, I
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

[[Page 694]]

  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
  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
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  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 Review, Executive Office for        8, V
  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
  Employee Benefits Security Administration       29, XXV
  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
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A

[[Page 695]]

  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
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
[[Page 696]]

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
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
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

[[Page 697]]

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
  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
  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 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 and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            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 699]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that 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 volumes.

                                  2001

45 CFR
                                                                   66 FR
                                                                    Page
Chapter V
Chapter V Revised..................................................49844
506.18 Heading corrected...........................................54061
    Corrected......................................................56383
Chapter VI
670.20 Revised.....................................................46739
670.25 Amended.....................................................46740
670.29 Amended.....................................................46740
672 Heading revised................................................42451
672.3 (h) removed; (i) redesignated as new (h).....................42451
673 Added..........................................................42451
673.1 OMB number...................................................42451
Chapter X
1000 Revised.......................................................48972
Chapter XI
1180--1199 (Subchapter E) Nomenclature change......................47096
1180.2 Amended.....................................................47096
1180.4 Amended.....................................................47096
1180.16 (a) amended................................................47096
1180.20 (d) and (g)(2) amended.....................................47096
1180.78 (e)(1) amended.............................................47096

                                  2002

45 CFR
                                                                   67 FR
                                                                    Page
Chapter VI
672.24 Revised.....................................................55729
689 Revised........................................................11937
Chapter X
1000.2 Amended.....................................................19518

                                  2003

45 CFR
                                                                   68 FR
                                                                    Page
Chapter VI
605 Heading revised................................................51380
605.0 Amended......................................................51381
605.2 Amended......................................................51381
605.3 (k)(5) amended; (m) added....................................51380
605.4 (a), (b)(1)(v), (3), (4)(ii), (5)(i), (6) and (c) amended....51381
605.5 (a) amended..................................................51381
605.6 (a)(3)(i) and (ii) amended...................................51381
605.8 (a) amended..................................................51381
605.11 (a)(2), (4) and (b)(8) amended..............................51381
605.12 (a), (c) introductory text and (1) amended..................51381
605.21--605.30 (Subpart C) Heading amended.........................51381
605.22 (a) heading revised; (a), (b) and (e)(3) amended............51381
605.31 Amended.....................................................51381
605.33 (b)(2), (3) and (c)(1) through (4) amended..................51381
605.35 (a) amended.................................................51381
605.37 (c)(1) amended..............................................51381
605.38 Amended.....................................................51381
605.39 Heading, (a) and (c) amended................................51381
605.41 Amended.....................................................51381
605.43 (a) and (d) amended.........................................51381
605.44 (a) and (c) amended.........................................51381
605.47 (a)(1) amended..............................................51381
605.51 Amended.....................................................51381
605.54 Amended.....................................................51381
611.2 Amended......................................................51382
611.3 (b)(1) introductory text and (c)(2) amended..................51382

[[Page 700]]

611.4 (a)(1) and (2) amended; (c)(2) revised.......................51382
611.5 Introductory text and Examples 1 and 4 amended; Example 2 
        revised....................................................51382
611.6 (b) and (d) amended..........................................51382
611.9 (e) amended..................................................51382
611.10 (f) amended.................................................51382
611.12 (a) amended.................................................51382
611.13 (f), (h) and (i) revised....................................51382
617.1 Amended......................................................51383
617.2 Amended......................................................51383
617.8 Amended......................................................51383
617.11 (a)(2) amended..............................................51383
617.12 (a), (c), (e) and (f)(2)(ii) amended........................51383
620.440 Added......................................................66634
630 Added...................................................66557, 66634
630.510 (c) amended................................................66635
630.605 (a)(2) amended.............................................66635
674 Added..........................................................15379
Chapter X
1050 Added; eff. 10-30-03..........................................56469
Chapter XI
1105 Revised; interim..............................................52702
1110 Authority citation revised....................................51383
1110.2 Amended.....................................................51384
1110.4 (b) heading and (d)(2) revised..............................51383
    (a)(1), (2) and (b) amended....................................51384
1110.5 (a) revised.................................................51383
1110.6 (b) and (d) amended.........................................51384
1110.9 (e) amended.................................................51384
1110.10 (f) amended................................................51384
1110.13 (g) revised................................................51383
    (i) and (j) amended............................................51384
1151.2 Amended.....................................................51385
1151.3 (h) added...................................................51384
1151.4 (a) amended.................................................51385
1151.16 (a), (b), (c) and (e) amended..............................51385
1151.17 (a) introductory text, (1), (5), (b), (c)(2), (d)(1) and 
        (e) amended................................................51385
1151.18 (a)(3), (b), (d) and (e) amended...........................51385
1151.21 Undesignated center heading amended........................51384
1151.22 (a), (b), (c) and (d)(3) amended...........................51384
1151.31 (a), (c) and (d)(8) amended................................51385
1151.32 (a), (c) introductory text and (1) amended.................51385
1151.41 (a) amended................................................51385
1154 Revised................................................66544, 66635
1154.440 Added.....................................................66636
1155 Added..................................................66557, 66637
1155.510 (c) amended...............................................66637
1155.605 (a)(2) amended............................................66637
1156.1 Amended.....................................................51385
1156.2 (a) amended.................................................51385
1156.3 (h) through (n) redesignated as (i) through (o); new (h) 
        added......................................................51385
1156.7 (c) amended.................................................51385
1156.10 Amended....................................................51385
1156.17 (a)(2) amended.............................................51385
1156.19 (c)(2) amended.............................................51385
1156.20 (b)(2) amended.............................................51385
1169 Revised................................................66544, 66637
1169.440 Added.....................................................66639
1170 Heading revised...............................................51386
1170.2 Amended.....................................................51386
1170.3 (a) and (d) amended; (g) revised............................51386
1170.11 Amended....................................................51386
1170.12 (a)(5), (b), (c)(2), (d)(1), (e) and (f) amended...........51386
1170.13 (a)(3), (4), (c) and (d) amended...........................51386
1170.21 (a), (c) and (d)(8) amended................................51386
1170.22 (a), (c) introductory text and (1) amended.................51386
1170.31--1170.40 (Subpart D) Heading amended.......................51386
1170.32 Heading revised; (a), (b) and (d)(3) amended...............51386
1170.41 Amended....................................................51386
1170.43 (a) and (d) amended........................................51386
1170.44 (a), (c) and (d)(1) amended................................51386
1170.47 (a)(1) amended.............................................51386
1170.51 (a) amended................................................51386
1170.52 (a)(3)(i) and (ii) amended.................................51386
1170.54 (a) amended................................................51386
1173 Added..................................................66557, 66639
1173.510 (c) amended...............................................66639
1173.605 (a)(2) amended............................................66639
1185 Revised................................................66544, 66639
    Correctly revised..............................................70184
1185.440 Added.....................................................66641
1186 Added..................................................66557, 66641
1186.510 (c) amended...............................................66641
1185.605 (a)(2) amended............................................66641

[[Page 701]]

                                  2004

(No regulations published from January 1, 2004, through October 1, 2004)


                                  [all]