[Title 6 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2008 Edition]
[From the U.S. Government Printing Office]



[[Page i]]


          6

                         As of January 1, 2008


          Domestic Security




________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2008
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                            Table of Contents



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

  Title 6:
          Chapter I--Department of Homeland Security, Office 
          of the Secretary                                           3
          Chapter X--Privacy and Civil Liberties Oversight 
          Board                                                    173
  Finding Aids:
      Material Approved for Incorporation by Reference........     183
      Table of CFR Titles and Chapters........................     185
      Alphabetical List of Agencies Appearing in the CFR......     203
      List of CFR Sections Affected...........................     213

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 6 CFR 5.1 refers to 
                       title 6, part 5, section 
                       1.

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

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                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2008), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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

OMB CONTROL NUMBERS

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

[[Page vi]]

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

OBSOLETE PROVISIONS

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

INCORPORATION BY REFERENCE

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

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

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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.gpoaccess.gov/nara (``GPO Access''). For more information, 
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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.
    January 1, 2008.







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                               THIS TITLE

    Title 6--Domestic Security is composed of one volume. This volume 
contains chapter I--Department of Homeland Security, Office of the 
Secretary, and Chapter X--Privacy and Civil Liberties Oversight Board. 
Chapter I contains the current Freedom of Information Act, Privacy Act 
and Classified National Security Information issued by the Department of 
Homeland Security. The contents of this volume represent all current 
regulations codified under this title of the CFR as of January 1, 2008.

    For this volume, Jonn V. Lilyea was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


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                       TITLE 6--DOMESTIC SECURITY




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

chapter i--Department of Homeland Security, Office of the 
  Secretary.................................................           5

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   CHAPTER I--DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY




  --------------------------------------------------------------------
Part                                                                Page
5               Disclosure of records and information.......           5
7               Classified national security information....          36
9               Restrictions upon lobbying..................          44
11              Claims......................................          55
13              Program fraud civil remedies................          61
15              Enforcement of nondiscrimination on the 
                    basis of disability in programs or 
                    activities conducted by the Department 
                    of Homeland Security....................          77
17              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..          83
21              Nondiscrimination on the basis of race, 
                    color, or national origin in programs or 
                    activities receiving Federal financial 
                    assistance from the Department of 
                    Homeland Security.......................         100
25              Regulations to support anti-terrorism by 
                    fostering effective technologies........         110
27              Chemical facility anti-terrorism standards..         126
29              Protected critical infrastructure 
                    information.............................         161

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PART 5_DISCLOSURE OF RECORDS AND INFORMATION--Table of Contents




                  Subpart A_Freedom of Information Act

Sec.
5.1 General provisions.
5.2 Public reading rooms.
5.3 Requirements for making requests.
5.4 Responsibility for responding to requests.
5.5 Timing of responses to requests.
5.6 Responses to requests.
5.7 Classified information.
5.8 Business information.
5.9 Appeals.
5.10 Preservation of records.
5.11 Fees.
5.12 Other rights and services.

                          Subpart B_Privacy Act

5.20 General provisions.
5.21 Requests for access to records.
5.22 Responsibility for responding to requests for access to records.
5.23 Responses to requests for access to records.
5.24 Classified information.
5.25 Appeals.
5.26 Requests for amendment or correction of records.
5.27 Requests for an accounting of record disclosures.
5.28 Preservation of records.
5.29 Fees.
5.30 Notice of court-ordered and emergency disclosures.
5.31 Security of systems of records.
5.32 Contracts for the operation of record systems.
5.33 Use and collection of social security numbers.
5.34 Standards of conduct for administration of the Privacy Act.
5.35 Sanctions and penalties.
5.36 Other rights and services.

            Subpart C_Disclosure of Information in Litigation

5.41 Purpose and scope; definitions.
5.42 Service of summonses and complaints.
5.43 Service of subpoenas, court orders, and other demands or requests 
          for official information or action.
5.44 Testimony and production of documents prohibited unless approved by 
          appropriate Department officials.
5.45 Procedure when testimony or production of documents is sought; 
          general.
5.46 Procedure when response to demand is required prior to receiving 
          instructions.
5.47 Procedure in the event of an adverse ruling.
5.48 Considerations in determining whether the Department will comply 
          with a demand or request.
5.49 Prohibition on providing expert or opinion testimony.

Appendix A to Part 5--FOIA/Privacy Act Offices of the Department of 
          Homeland Security
Appendix B to Part 5--Public Reading Rooms of the Department of Homeland 
          Security
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy Act

    Authority: Pub. L. 107-296, 116 Stat. 2135; (6 U.S.C. 101 et seq.); 
5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. Subpart B also 
issued under 5 U.S.C. 552a.

    Source: 68 FR 4056, Jan. 27, 2003, unless otherwise noted.



                  Subpart A_Freedom of Information Act



Sec. 5.1  General provisions.

    (a)(1) This subpart A contains the rules that the Department of 
Homeland Security (Department) follows in processing requests for 
records under the Freedom of Information Act (FOIA) (5 U.S.C. 552). 
These rules should be read together with the FOIA, which provides 
additional information about access to records maintained by the 
Department. Requests made by individuals for records about themselves 
under the Privacy Act of 1974 (5 U.S.C. 552a), which are processed under 
subpart B of this part, are processed under this subpart also. 
Information routinely provided to the public as part of a regular 
Department activity (for example, press releases issued by the Assistant 
Secretary for Public Affairs may be provided to the public without 
following this subpart).
    (2) The provisions established by this subpart shall apply to all 
Department components that are transferred to the Department. Except to 
the extent a Department component has adopted separate guidance under 
FOIA, the provisions of this subpart shall apply to each component of 
the Department. Departmental components may issue their own guidance 
under this subpart pursuant to approval by the Department.

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    (b) As used in this subpart, component means each separate bureau, 
office, board, division, commission, service, or administration of the 
Department.



Sec. 5.2  Public reading rooms.

    (a) Records that are required to be maintained by the Department in 
a public reading room will be made available electronically at 
www.dhs.gov/foia. Each Department component will be responsible for 
determining which of the records it generates are required to be made 
available and to make those records available either in its own reading 
room or in the Department's central reading room. Each component shall 
maintain and make available for public inspection and copying a current 
subject-matter index of its reading room records. Each index shall be 
updated regularly, at least quarterly, with respect to newly included 
records.
    (b) The Department components maintain public reading rooms or areas 
at the locations listed below:
    (1) Animal and Plant Health Inspection Service Library, 4700 River 
Road, Riverdale, MD 20737-1232;
    (2) Plum Island Animal Disease Center, the APHIS address above or, 
USDA-ARS, 5601 Sunnyside Avenue, Building 1, Room 2248, Beltsville, MD 
20705-5128;
    (3) Critical Infrastructure Assurance Office (A former office of the 
Bureau of Industry and Security) does not maintain a conventional public 
reading room. Records that are required to be in the public reading room 
are available electronically at http://www.bis.doc.gov/FOIA/Default.htm;
    (4) FIRESTAT (formerly the Integrated Hazard Information System of 
the National Oceanic and Atmospheric Administration), NOAA Public 
Reference Facility, 1305 East-West Highway (SSMC4), Room 8627, Silver 
Spring, MD 20910;
    (5) National Communication Service (a former component of the 
Defense Information Systems Agency) does not maintain a conventional 
public reading room. Records that are required to be in the public 
reading room are available electronically at http://disa.mil/gc/foia/
foia.html;
    (6) The address for each component and program listed below is: U.S. 
Department of Energy; 1000 Independence Avenue, SW., Washington, DC 
20585:
    (i) Energy Assurance Office;
    (ii) Environmental Measurements Laboratory;
    (iii) Nuclear Incident Response Team;
    (iv) The chemical and biological national security and supporting 
programs and activities of the non-proliferation and verification 
research and development program;
    (v) The life sciences activities related to microbial pathogens of 
Biological and Environmental Research Program;
    (vi) The nuclear smuggling programs and activities within the 
proliferation detection program of the non-proliferation and 
verification research and development program;
    (vii) The nuclear assessment program and activities of the 
assessment, detection, and cooperation program of the international 
materials protection and cooperation program, and the advanced 
scientific computing research program and activities at Lawrence 
Livermore National Laboratory; and
    (viii) The National Infrastructure Simulation and Analysis Center;
    (7) The address for each component and program listed below is: 
Freedom of Information Act Officer at: Department of Health and Human 
Services, Freedom of Information Officer, Room 645-F, Hubert H. Humphrey 
Building, Independence Avenue, SW., Washington, DC 20201:
    (i) Metropolitan Medical Response System;
    (ii) National Disaster Medical System;
    (8) Office of Emergency Preparedness please contact the Strategic 
National Stockpile Centers for Disease Control and Agency for Toxic 
Substances and Disease Registry, 1600 Clifton Road, NE., Room 4103, 
Building 1, Atlanta, GA 30333;
    (9) Immigration and Naturalization Service, 111 Massachusetts 
Avenue, NW., 2nd Floor, ULLICO Building, Washington, DC 20536;
    (10) For the National Infrastructure Protection Center, the National 
Domestic Preparedness Office, and the Domestic Emergency Support Team:

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Federal Bureau of Investigation, 935 Pennsylvania Avenue, NW., 
Department of Justice, Washington, DC 20535-0001;
    (11) Office of Domestic Preparedness, U.S. Department of Justice, 
Office of Justice Programs, 810 7th Street, NW., Room 5430, Washington, 
DC 20531;
    (12) Visa Office, Department of State, 2201 C Street, NW., 
Washington, DC 20520;
    (13) Federal Aviation Administration, 800 Independence Avenue, SW., 
Washington, DC 20591;
    (14) Transportation Security Administration, 400 Seventh Street, 
SW., Washington, DC 20590;
    (15) United States Coast Guard Headquarters, 2100 Second Street, 
SW., Washington, DC 20593-0001 (for district offices, consult your phone 
book);
    (16) The Federal Law Enforcement Training Center does not maintain a 
conventional public reading room. Records that are required to be in the 
public reading room are available electronically at http://
www.fletc.gov/irm/foia/readingroom.htm;
    (17) U.S. Customs Service, Freedom of Information Request, 1300 
Pennsylvania Avenue, NW., Mint Annex, Washington, DC 20229-0001 (for a 
list of field office reading room locations please consult 19 CFR 
103.1);
    (18) U.S. Secret Service, Main Treasury, Freedom of Information 
Request, 950 H Street, NW., Suite 3000, Washington, DC;
    (19) Federal Emergency Management Agency, Federal Center Plaza, 500 
C Street, SW., Room 840, Washington, DC 20472 (for regional offices, 
consult your phone book);
    (20) For the Federal Computer Incident Response Center and the 
Federal Protective Service: Central Office, GSA Headquarters, 1800 F 
Street, NW (CAI), Washington, DC 20405 (for regional offices, consult 
the phone book);
    (c) Components shall also make reading room records created by the 
Department on or after November 1, 1996, available electronically via 
the component web-site. This includes each component's index of its 
reading room records, which will indicate which records are available 
electronically.



Sec. 5.3  Requirements for making requests.

    (a) How made and addressed. You may make a request for records of 
the Department by writing directly to the Department component that 
maintains those records. For additional information about the FOIA, you 
may refer directly to the statute. If you are making a request for 
records about yourself, see Sec. 5.21(d) for additional requirements. 
If you are making a request for records about another individual, either 
a written authorization signed by that individual permitting disclosure 
of those records to you or proof that that individual is deceased (for 
example, a copy of a death certificate or an obituary) must be 
submitted. Your request should be sent to the component's FOIA office at 
the address listed in appendix A to part 5. In most cases, your FOIA 
request should be sent to a component's central FOIA office. (The 
functions of each component are summarized elsewhere in this title and 
in the description of the Department and its components in the ``United 
States Government Manual,'' which is issued annually and is available in 
most libraries, as well as for sale from the Government Printing 
Office's Superintendent of Documents. This manual also can be accessed 
electronically at the Government Printing Office's World Wide Web site 
(which can be found at http://www.access.gpo.gov/su--docs).) If you 
cannot determine where within the Department to send your request, you 
may send it to the Departmental Disclosure Officer, Department of 
Homeland Security, Washington, DC 20528. That office will forward your 
request to the component(s) it believes most likely to have the records 
that you want. Your request will be considered received as of the date 
it is received by the proper component's FOIA office. For the quickest 
possible handling, you should mark both your request letter and the 
envelope ``Freedom of Information Act Request.''
    (b) Description of records sought. You must describe the records 
that you seek in enough detail to enable Department personnel to locate 
them with a reasonable amount of effort. Whenever possible, your request 
should include

[[Page 8]]

specific information about each record sought, such as the date, title 
or name, author, recipient, and subject matter of the record. If known, 
you should include any file designations or descriptions for the records 
that you want. As a general rule, the more specific you are about the 
records or type of records that you want, the more likely the Department 
will be able to locate those records in response to your request. If a 
component determines that your request does not reasonably describe 
records, it shall tell you either what additional information is needed 
or why your request is otherwise insufficient. The component also shall 
give you an opportunity to discuss your request so that you may modify 
it to meet the requirements of this section. If your request does not 
reasonably describe the records you seek, the agency's response to your 
request may be delayed.
    (c) Agreement to pay fees. If you make a FOIA request, it shall be 
considered a firm commitment by you to pay all applicable fees charged 
under Sec. 5.11 up to $ 25.00, unless you seek a waiver of fees. In 
making your FOIA request, please indicate whether you are willing to pay 
for the request or desire a waiver. The component responsible for 
responding to your request ordinarily will confirm this commitment in an 
acknowledgement letter. When making a request, you may specify a 
willingness to pay a greater or lesser amount. If you are seeking a 
waiver of fees you must provide a justification for your fee waiver 
request in accordance with the requirements of Sec. 5.11(k). If your 
request for a fee waiver is denied, the component will notify you of 
that decision and will request an agreement from you to pay fees up to 
$25, or a greater or lesser amount specified by you. Your request shall 
not be considered received and further work shall not be done on it 
until you agree to pay fees. If you do not provide a firm commitment to 
pay the anticipated fee within the time period specified by the 
component, the request will be administratively closed.



Sec. 5.4  Responsibility for responding to requests.

    (a) In general. Except as stated in paragraphs (c), (d), and (e) of 
this section, the component that first receives a request for a record 
and has possession of that record is the component responsible for 
responding to the request. In determining which records are responsive 
to a request, a component ordinarily will include only records in its 
possession as of the date the component begins its search for them. If 
any other date is used, the component shall inform the requester of that 
date.
    (b) Authority to grant or deny requests. The head of a component, or 
the component head's designee, is authorized to grant or deny any 
request for a record of that component.
    (c) Consultations and referrals. When a component receives a request 
for a record in its possession, it shall determine whether another 
component, or another agency of the Federal Government, is better able 
to determine whether the record is exempt from disclosure under the FOIA 
and, if so, whether it should be disclosed as a matter of administrative 
discretion. If the receiving component determines that it is best able 
to process the record in response to the request, then it shall do so. 
If the receiving component determines that it is not best able to 
process the record, then it shall either:
    (1) Respond to the request regarding that record, after consulting 
with the component or agency best able to determine whether to disclose 
it and with any other component or agency that has a substantial 
interest in it; or
    (2) Refer the responsibility for responding to the request regarding 
that record to the component best able to determine whether to disclose 
it, or to another agency that originated the record (but only if that 
agency is subject to the FOIA). Ordinarily, the component or agency that 
originated a record will be presumed to be best able to determine 
whether to disclose it.
    (d) Law enforcement information. Whenever a request is made for a 
record containing information that relates to an investigation of a 
possible violation of law and was originated by another component or 
agency, the receiving component shall either refer the responsibility 
for responding to the request regarding that information to

[[Page 9]]

that other component or agency or consult with that other component or 
agency.
    (e) Classified information. Whenever a request is made for a record 
containing information that has been classified, or may be appropriate 
for classification, by another component or agency under Executive Order 
12958 or any other executive order concerning the classification of 
records, the receiving component shall refer the responsibility for 
responding to the request regarding that information to the component or 
agency that classified the information, or which should consider the 
information for classification, or which has the primary interest in it, 
as appropriate. Whenever a record contains information that has been 
derivatively classified by a component because it contains information 
classified by another component or agency, the component shall refer the 
responsibility for responding to the request regarding that information 
to the component or agency that classified the underlying information.
    (f) Notice of referral. Whenever a component refers all or any part 
of the responsibility for responding to a request to another component 
or agency, it ordinarily shall notify the requester of the referral and 
inform the requester of the name of each component or agency to which 
the request has been referred and of the part of the request that has 
been referred.
    (g) Timing of responses to consultations and referrals. All 
consultations and referrals will be handled according to the date the 
FOIA request initially was received by the first component or agency, 
not any later date.
    (h) Agreements regarding consultations and referrals. Components may 
make agreements with other components or agencies to eliminate the need 
for consultations or referrals for particular types of records.



Sec. 5.5  Timing of responses to requests.

    (a) In general. Components ordinarily shall respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) A component may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request, including through limits based on the number of pages involved. 
If a component does so, it shall advise requesters in its slower 
track(s) of the limits of its faster track(s).
    (2) A component using multitrack processing may provide requesters 
in its slower track(s) with an opportunity to limit the scope of their 
requests in order to qualify for faster processing within the specified 
limits of the component's faster track(s). A component doing so will 
contact the requester either by telephone or by letter, whichever is 
more efficient in each case.
    (c) Unusual circumstances. (1) Where the statutory time limits for 
processing a request cannot be met because of ``unusual circumstances,'' 
as defined in the FOIA, and the component determines to extend the time 
limits on that basis, the component shall as soon as practicable notify 
the requester in writing of the unusual circumstances and of the date by 
which processing of the request can be expected to be completed. Where 
the extension is for more than ten working days, the component shall 
provide the requester with an opportunity either to modify the request 
so that it may be processed within the time limits or to arrange an 
alternative time period with the component for processing the request or 
a modified request.
    (2) Where a component 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.
    (d) Expedited processing. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever it is determined that 
they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person

[[Page 10]]

primarily engaged in disseminating information.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. A request for 
expedited processing must be submitted to the component that maintains 
the record requested. Requests based on the categories in paragraphs 
(d)(1)(i), (ii), and (iii) of this section must be submitted to the 
component that maintains the records requested.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requester within the category in 
paragraph (d)(1)(ii) of this section, if not a full-time member of the 
news media, must establish that he or she is a person whose main 
professional activity or occupation is information dissemination, though 
it need not be his or her sole occupation. A requester within the 
category in paragraph (d)(1)(ii) of this section also must establish a 
particular urgency to inform the public about the government activity 
involved in the request, beyond the public's right to know about 
government activity generally. The formality of certification may be 
waived as a matter of administrative discretion.
    (4) Within ten calendar days of its receipt of a request for 
expedited processing, the proper component shall decide whether to grant 
it and shall notify the requester of the decision. If a request for 
expedited treatment is granted, the request shall be given priority and 
shall be processed as soon as practicable. If a request for expedited 
processing is denied, any appeal of that decision shall be acted on 
expeditiously.



Sec. 5.6  Responses to requests.

    (a) Acknowledgements of requests. On receipt of a request, a 
component ordinarily shall send an acknowledgement letter to the 
requester which shall confirm the requester's agreement to pay fees 
under Sec. 5.3(c) and provide an assigned request number for further 
reference.
    (b) Grants of requests. Ordinarily, a component shall have twenty 
business days from when a request is received to determine whether to 
grant or deny the request. Once a component makes a determination to 
grant a request in whole or in part, it shall notify the requester in 
writing. The component shall inform the requester in the notice of any 
fee charged under Sec. 5.11 and shall disclose records to the requester 
promptly on payment of any applicable fee. Records disclosed in part 
shall be marked or annotated to show the amount of information deleted 
unless doing so would harm an interest protected by an applicable 
exemption. The location of the information deleted also shall be 
indicated on the record, if technically feasible.
    (c) Adverse determinations of requests. A component making an 
adverse determination denying a request in any respect shall notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, consist of: A determination to withhold any 
requested record in whole or in part; a determination that a requested 
record does not exist or cannot be located; a determination that a 
record is not readily reproducible in the form or format sought by the 
requester; a determination that what has been requested is not a record 
subject to the FOIA; a determination on any disputed fee matter, 
including a denial of a request for a fee waiver; and a denial of a 
request for expedited processing. The denial letter shall be signed by 
the head of the component, or the component head's designee, and shall 
include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reason(s) for the denial, including any 
FOIA exemption applied by the component in denying the request;
    (3) An estimate of the volume of records or information withheld, in 
number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through deletions on records disclosed in part, or if 
providing an estimate would harm an interest protected by an applicable 
exemption; and

[[Page 11]]

    (4) A statement that the denial may be appealed under Sec. 5.9(a) 
and a description of the requirements of Sec. 5.9(a).



Sec. 5.7  Classified information.

    In processing a request for information that is classified under 
Executive Order 12958 (3 CFR, 1996 Comp., p. 333) or any other executive 
order, the originating component shall review the information to 
determine whether it should remain classified. Information determined to 
no longer require classification shall not be withheld on the basis of 
Exemption 1 of the FOIA. On receipt of any appeal involving classified 
information, the Associate General Counsel (General Law) shall take 
appropriate action to ensure compliance with Part 7 of this title.



Sec. 5.8  Business information.

    (a) In general. Business information obtained by the Department from 
a submitter will be disclosed under the FOIA, if otherwise allowable, 
only under this section.
    (b) Definitions. For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by the Department from a submitter that may be protected from 
disclosure under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom the Department 
obtains business information, directly or indirectly. The term includes, 
but is not limited to, corporations; state, local, and tribal 
governments; and foreign governments.
    (c) Designation of business information. A submitter of business 
information will 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. A component shall provide a submitter with 
prompt written notice of a FOIA request or administrative appeal that 
seeks its business information wherever required under paragraph (e) of 
this section, except as provided in paragraph (h) of 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. When notification of a voluminous number of 
submitters is required, notification may be made by posting or 
publishing the notice in a place reasonably likely to accomplish it.
    (e) Where notice is required. Notice shall 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 component has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. A component will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (d) of this section and will specify that time period within 
the notice. If a submitter has any objection to disclosure, it is 
required to 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, it 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 to the notice within the time specified in 
it, the submitter will be considered to have no objection to disclosure 
of the information. Information provided by the submitter that is not 
received by the component until after its disclosure decision has been 
made shall not be considered by the component. Information provided by a 
submitter under this paragraph may itself be subject to disclosure under 
the FOIA.
    (g) Notice of intent to disclose. A component shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever a

[[Page 12]]

component decides to disclose business information over the objection of 
a submitter, the component shall give the submitter written notice, 
which shall include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The component determines that the information should not be 
disclosed pursuant to exemption four and/or any other exemption of the 
FOIA;
    (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, except that in such a case the 
component shall, 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 component 
shall promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever a component 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraph (d) of this section, the component shall also 
notify the requester(s). Whenever a component notifies a submitter of 
its intent to disclose requested information under paragraph (g) of this 
section, the component shall also notify the requester(s). Whenever a 
submitter files a lawsuit seeking to prevent the disclosure of business 
information, the component shall notify the requester(s).



Sec. 5.9  Appeals.

    (a) Appeals of adverse determinations. (1) If you are dissatisfied 
with a component's response to your request, you may appeal an adverse 
determination denying your request, in any respect, to the Associate 
General Counsel (General Law), Department of Homeland Security, 
Washington, DC 20528. You must make your appeal in writing and it must 
be received by the Associate General Counsel (General Law) within 60 
days of the date of the letter denying your request. Your appeal letter 
may include as much or as little related information as you wish, as 
long as it clearly identifies the component determination (including the 
assigned request number, if known) that you are appealing. For the 
quickest possible handling, you should mark your appeal letter and the 
envelope ``Freedom of Information Act Appeal.''
    (2) An adverse determination by the Associate General Counsel 
(General Law) will be the final action of the Department; and
    (3) An appeal ordinarily will not be acted on if the request becomes 
a matter of FOIA litigation.
    (b) Responses to appeals. The decision on your appeal will be made 
in writing. A decision affirming an adverse determination in whole or in 
part shall 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 adverse determination, you must first appeal it under this 
section.



Sec. 5.10  Preservation of records.

    Each component shall preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records

[[Page 13]]

will not be disposed of while they are the subject of a pending request, 
appeal, or lawsuit under the FOIA.



Sec. 5.11  Fees.

    (a) In general. Components shall 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. A component ordinarily shall collect all applicable fees before 
sending copies of requested records to a requester. Requesters must pay 
fees by check or money order made payable to the Treasury of the United 
States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include furthering 
those interests through litigation. Components shall determine, whenever 
reasonably possible, the use to which a requester will put the requested 
records. 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 a component has reasonable cause to doubt a requester's stated 
use, the component shall 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 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. 
Components shall honor a requester's specified preference of form or 
format of disclosure if the record is readily reproducible with 
reasonable efforts in the requested form or format by the office 
responding to the request.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To be in this category, a 
requester must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are 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 is 
made under the auspices of a qualifying institution and that the records 
are not sought for a commercial use 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

[[Page 14]]

would be the clearest proof, but components shall also look to the past 
publication record of a requester in making this determination. To be in 
this category, a requester must not be seeking the requested records for 
a commercial use. However, a request for records supporting the news-
dissemination function of the requester shall not be considered to be 
for a commercial use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt from 
disclosure. It also includes processing any record for disclosure (for 
example, 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. 5.8, 
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. Components shall ensure 
that searches are done in the most efficient and least expensive manner 
reasonably possible. For example, components shall not search line-by-
line where duplicating an entire document would be quicker and less 
expensive.
    (c) Fees. In responding to FOIA requests, components shall 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 shall be charged for all requests other 
than requests made by educational institutions, noncommercial scientific 
institutions, or representatives of the news media, subject to the 
limitations of paragraph (d) of this section. Components may charge for 
time spent searching even if they do not locate any responsive record or 
if they withhold the record(s) located as entirely exempt from 
disclosure.
    (ii) Fees for search time are assessed by the hourly wage of the 
personnel filling the request. These fees are subject to change. 
Currently, for each quarter hour spent by clerical personnel in 
searching for and retrieving a requested record, the fee will be $4.00. 
Where a search and retrieval cannot be performed entirely by clerical 
personnel (for example, where the identification of records within the 
scope of a request requires the use of professional personnel) the fee 
will be $7.00 for each quarter hour of search time spent by professional 
personnel. Where the time of managerial personnel is required, the fee 
will be $10.25 for each quarter hour of time spent by those personnel.
    (iii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, although certain requesters 
(as provided in paragraph (d)(1) of this section) will be charged no 
search fee and certain other requesters (as provided in paragraph (d)(3) 
of this section) will be entitled to the cost equivalent of two hours of 
manual search time without charge. These direct costs will include the 
cost of operating a central processing unit for that portion of 
operating time that is directly attributable to searching for responsive 
records, as well as the costs of operator/programmer salary 
apportionable to the search.
    (iv) For requests requiring the retrieval of records from any 
Federal Records Center, certain additional costs may be incurred in 
accordance with the Transactional Billing Rate Schedule established by 
the National Archives and Records Administration, effective October 1, 
2002.
    (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 ten cents per page. For copies produced by computer, 
such as tapes or printouts, components will charge the direct costs, 
including operator time, of producing the copy. For other forms of 
duplication, components will charge the direct costs of that 
duplication.

[[Page 15]]

    (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 (the review done when a component determines whether an 
exemption applies to a particular record or record portion at the 
initial request level). 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 such a 
change of circumstances. Review fees will be charged at the same rates 
as those charged for a search under paragraph (c)(1)(ii) of this 
section.
    (d) Restrictions 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) No search fee or review fee will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, 
components 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).
    (4) No fee will be charged whenever a total fee calculated under 
paragraph (c) of this section is less than the agency's cost to process 
the check. Currently, whenever a total fee calculated under paragraph 
(c) of this section is $14.00 or less for any request, no fee will be 
charged.
    (5) The provisions of paragraphs (d) (3) and (d)(4) of this section 
work together. This means that for requesters other than those seeking 
records for a commercial use, no fee will be charged unless the cost of 
search in excess of two hours plus the cost of duplication in excess of 
100 pages totals more than $14.00.
    (e) Notice of anticipated fees in excess of $25.00. When a component 
determines or estimates that the fees to be charged under this section 
will amount to more than $25.00, the component shall 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, the 
component shall 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 amount to more than $25.00, the 
request shall not be considered received and further work shall not be 
done on it until the requester makes a firm commitment to pay the 
anticipated total fee. Any such agreement should be memorialized by the 
requester in writing and must be received by the component within a time 
period specified by the component in its notice to the requester. If the 
requester does not provide a firm commitment to pay the anticipated fee 
within the time period specified by the component, the request will be 
administratively closed. A notice under this paragraph will offer the 
requester an opportunity to discuss the matter with Department personnel 
in order to reformulate the request to meet the requester's needs at a 
lower cost.
    (f) Charges for other services. Apart from the other provisions of 
this section, when a component chooses as a matter of administrative 
discretion to provide a 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 ordinarily will be charged.
    (g) Charging interest. Components 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 the component. Components 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.

[[Page 16]]

    (h) Aggregating requests. Where a component reasonably believes that 
a requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, the component may aggregate those requests and charge accordingly. 
Components 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, components 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, a component shall not require 
the requester to make an advance payment before work is begun or 
continued on a request. Payment owed for work already completed (such as 
a prepayment before copies are sent to a requester) is not an advance 
payment.
    (2) Where a component 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 FOIA fee to any component or agency within 30 days of the date 
of billing, a component 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 the component begins to 
process a new request or continues to process a pending request from 
that requester.
    (4) In cases in which a component requires advance payment, the 
request shall not be considered received 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 
schedule programs, components will inform requesters of the steps for 
obtaining records from those sources so that they may do so most 
economically.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request will be furnished without charge or at a charge 
reduced below that established under paragraph (c) of this section where 
a component determines, based on all available information, that the 
requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government; and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
components 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 the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding where nothing new would be 
added to the public's understanding.

[[Page 17]]

    (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 shall be considered. It shall be presumed that 
a representative of the news media will satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
enhanced by the disclosure to a significant extent. Components shall not 
make 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, 
components 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. Components shall 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 shall 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. Components ordinarily 
shall 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 who merely compile and market government information for direct 
economic return shall not be presumed to primarily serve the public 
interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k)(2) and (3) of this section, insofar as 
they apply to each request. Components will exercise their discretion to 
consider the cost-effectiveness of their investment of administrative 
resources in this decisionmaking process, however, in deciding to grant 
waivers or reductions of fees.
    (l) Payment of outstanding fees. The Department shall not process a 
FOIA request from persons with an unpaid fee from any previous FOIA 
request to any Federal agency until that outstanding fee has been paid 
in full to the agency.



Sec. 5.12  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 FOIA.



                          Subpart B_Privacy Act



Sec. 5.20  General provisions.

    (a) Purpose and scope. (1) This subpart contains the rules that the 
Department of Homeland Security (Department) follows under the Privacy 
Act of 1974 (5 U.S.C. 552a). These rules should be read together with 
the Privacy Act, which provides additional information about records 
maintained on individuals. The rules in this subpart apply to all

[[Page 18]]

records in systems of records maintained by the Department 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, request amendment or correction of those records, and 
request an accounting of disclosures of those by the Department. In 
addition, the Department processes all Privacy Act requests for access 
to records under the Freedom of Information Act (FOIA) ( 5 U.S.C. 552), 
following the rules contained in subpart A of this part, which gives 
requests the benefit of both statutes.
    (2) The provisions established by this subpart shall apply to all 
Department components that are transferred to the Department. Except to 
the extent a Department component has adopted separate guidance under 
the Privacy Act, the provisions of this subpart shall apply to each 
component of the Department. Departmental components may issue their own 
guidance under this subpart pursuant to approval by the Department.
    (b) Definitions. As used in this subpart:
    (1) Component means each separate bureau, office, board, division, 
commission, service, or administration of the Department.
    (2) Request for access to a record means a request made under 
Privacy Act subsection (d)(1).
    (3) Request for amendment or correction of a record means a request 
made under Privacy Act subsection (d)(2).
    (4) Request for an accounting means a request made under Privacy Act 
subsection (c)(3).
    (5) Requester means an individual who makes a request for access, a 
request for amendment or correction, or a request for an accounting 
under the Privacy Act.
    (c) Authority to request records for a law enforcement purpose. The 
head of a component or designee thereof is authorized to make written 
requests under subsection (b)(7) of the Privacy Act for records 
maintained by other agencies that are necessary to carry out an 
authorized law enforcement activity.
    (d) Notice on Departmental use of (b)(1) exemption. As a general 
matter, when applying the (b)(1) exemption for disclosures within an 
agency on a need to know basis, the Department will consider itself a 
single entity, meaning that information may be disclosed between 
components of the Department under the (b)(1) exemption.
    (e) Interim Retention of Authorities. As an interim solution, all 
agencies and components under the Department will retain the necessary 
authority from their original purpose in order to conduct these 
necessary activities. This includes the authority to maintain Privacy 
Act systems of records, disseminate information pursuant to existing or 
new routine uses, and retention of exemption authorities under sections 
(j) and (k) of the Privacy Act, where applicable. This retention of an 
agency or component's authorities and information practices will remain 
in effect until this regulation is promulgated as a final rule, or the 
Department revises all systems of records notices. This retention of 
authority is necessary to allow components to fulfill their mission and 
purpose during the transition period of the establishment of the 
Department. During this transition period, the Department shall evaluate 
with the components the existing authorities and information practices 
and determine what revisions (if any) are appropriate and should be made 
to these existing authorities and practices. The Department anticipates 
that such revisions will be made either through the issuance of a 
revised system of records notices or through subsequent final 
regulations.



Sec. 5.21  Requests for access to records.

    (a) How made and addressed. You may make a request for access to a 
Department of Homeland Security record about yourself by appearing in 
person or by writing directly to the Department component that maintains 
the record. Your request should be sent or delivered to the component's 
Privacy Act office at the address listed in appendix A to this part. In 
most cases, a component's central Privacy Act office is the place to 
send a Privacy Act request. For records held by a field office

[[Page 19]]

of the U.S. Customs Service, U.S. Secret Service, U.S. Coast Guard, or 
any other Department component with field offices, however, you must 
write directly to that Customs, Secret Service, Coast Guard, or other 
field office address, which can be found in most telephone books or by 
calling the component's central Privacy Act office. (The functions of 
each component are summarized elsewhere in this title and in the 
description of the Department and its components in the ``United States 
Government Manual,'' which is issued annually and is available in most 
libraries, as well as for sale from the Government Printing Office's 
Superintendent of Documents. This manual also can be accessed 
electronically at the Government Printing Office's World Wide Web site 
(which can be found at http://www.access.gpo.gov/su--docs). Some records 
are maintained under a government-wide systems of records notice, for 
example, Official Personnel Files are maintained under the authority of 
the Office of Personnel Management. In order to access records 
maintained under a government-wide notice, please send your request to 
the Privacy Act office of the original department or agency from which 
the component was transferred to the Department. If you cannot determine 
where within the Department to send your request, you may send it to the 
Departmental Disclosure Officer, Department of Homeland Security, 
Washington, DC 20528, and that office will forward it to the 
component(s) it believes most likely to have the records that you seek. 
For the quickest possible handling, you should mark both your request 
letter and the envelope ``Privacy Act Request.''
    (b) Description of records sought. You must describe the records 
that you want in enough detail to enable Department personnel to locate 
the system of records containing them with a reasonable amount of 
effort. Whenever possible, your request should describe the records 
sought, the time periods in which you believe they were compiled, and 
the name or identifying number of each system of records in which you 
believe they are kept. The Department publishes notices in the Federal 
Register that describe its components' systems of records. A description 
of the Department's systems of records also may be found as part of the 
``Privacy Act Compilation'' published by the National Archives and 
Records Administration's Office of the Federal Register. This 
compilation is available in most large reference and university 
libraries. This compilation also can be accessed electronically at the 
Government Printing Office's World Wide Web site (which can be found at 
http://www.access.gpo.gov/su--docs).
    (c) Agreement to pay fees. If you make a Privacy Act request for 
access to records, it shall be considered an agreement by you to pay all 
applicable fees charged under Sec. 5.29, up to $25.00. The component 
responsible for responding to your request ordinarily shall confirm this 
agreement in an acknowledgement letter. When making a request, you may 
specify a willingness to pay a greater or lesser amount.
    (d) Verification of identity. When you make a request for access to 
records about yourself, you must verify your identity. You must state 
your full name, current address, and date and place of birth. 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 statements to 
be made under penalty of perjury as a substitute for notarization. While 
no specific form is required, you may obtain forms for this purpose from 
the Departmental Disclosure Officer, Department of Homeland Security, 
Washington, DC 20528. In order to help the identification and location 
of requested records, you may also, at your option, include your social 
security number.
    (e) 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 to be incompetent, for access to records about that 
individual, you must establish:
    (1) The identity of the individual who is the subject of the record, 
by stating the name, current address, date and place of birth, and, at 
your option, the social security number of the individual;
    (2) Your own identity, as required in paragraph (d) of this section;

[[Page 20]]

    (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.
    (f) Verification in the case of third party information requests. If 
you are making a request for records concerning an individual on behalf 
of that individual, you must provide a statement from the individual 
verifying the identity of the individual as provided in paragraph (d) of 
this section. You must also provide a statement from the individual 
certifying the individual's agreement that records concerning the 
individual may be released to you.



Sec. 5.22  Responsibility for responding to requests for access to records.

    (a) In general. Except as stated in paragraphs (c), (d), and (e) of 
this section, the component that first receives a request for access to 
a record, and has possession of that record, is the component 
responsible for responding to the request. In determining which records 
are responsive to a request, a component ordinarily shall include only 
those records in its possession as of the date the component begins its 
search for them. If any other date is used, the component shall inform 
the requester of that date.
    (b) Authority to grant or deny requests. The head of a component, or 
the component head's designee, is authorized to grant or deny any 
request for access or amendment to a record of that component.
    (c) Consultations and referrals. When a component receives a request 
for access to a record in its possession, it shall determine whether 
another component, or another agency of the Federal Government, is 
better able to determine whether the record is exempt from access under 
the Privacy Act. If the receiving component determines that it is best 
able to process the record in response to the request, then it shall do 
so. If the receiving component determines that it is not best able to 
process the record, then it shall either:
    (1) Respond to the request regarding that record, after consulting 
with the component or agency best able to determine whether the record 
is exempt from access and with any other component or agency that has a 
substantial interest in it; or
    (2) Refer the responsibility for responding to the request regarding 
that record to the component best able to determine whether it is exempt 
from access, or to another agency that originated the record (but only 
if that agency is subject to the Privacy Act). Ordinarily, the component 
or agency that originated a record will be presumed to be best able to 
determine whether it is exempt from access.
    (d) Law enforcement information. Whenever a request is made for 
access to a record containing information that relates to an 
investigation of a possible violation of law and that was originated by 
another component or agency, the receiving component shall either refer 
the responsibility for responding to the request regarding that 
information to that other component or agency or shall consult with that 
other component or agency.
    (e) Classified information. Whenever a request is made for access to 
a record containing information that has been classified by or may be 
appropriate for classification by another component or agency under 
Executive Order 12958 or any other executive order concerning the 
classification of records, the receiving component shall refer the 
responsibility for responding to the request regarding that information 
to the component or agency that classified the information, should 
consider the information for classification, or has the primary interest 
in it, as appropriate. Whenever a record contains information that has 
been derivatively classified by a component because it contains 
information classified by another component or agency, the component 
shall refer the responsibility for responding to the request regarding 
that information to the component or agency that classified the 
underlying information.
    (f) Release of Medical Records. Pursuant to 5 U.S.C. 552a(f)(3), 
where requests are made for access to medical records, including 
psychological

[[Page 21]]

records, the decision to release directly to the individual, or to 
withhold direct release, shall be made by a medical practitioner. Where 
the medical practitioner has ruled that direct release will cause harm 
to the individual who is requesting access, normal release through the 
individual's chosen medical practitioner will be recommended. Final 
review and decision on appeals of disapprovals of direct release will 
rest with the General Counsel.
    (g) Notice of referral. Whenever a component refers all or any part 
of the responsibility for responding to a request to another component 
or agency, it ordinarily shall notify the requester of the referral and 
inform the requester of the name of each component or agency to which 
the request has been referred and of the part of the request that has 
been referred.
    (h) Timing of responses to consultations and referrals. All 
consultations and referrals shall be handled according to the date the 
Privacy Act access request was initially received by the first component 
or agency, not any later date.
    (i) Agreements regarding consultations and referrals. Components may 
make agreements with other components or agencies to eliminate the need 
for consultations or referrals for particular types of records.



Sec. 5.23  Responses to requests for access to records.

    (a) Acknowledgements of requests. On receipt of a request, a 
component ordinarily shall send an acknowledgement letter to the 
requester which shall confirm the requester's agreement to pay fees 
under Sec. 5.21(c) and provide an assigned request number for further 
reference.
    (b) Grants of requests for access. Once a component makes a 
determination to grant a request for access in whole or in part, it 
shall notify the requester in writing. The component shall inform the 
requester in the notice of any fee charged under Sec. 5.29 and shall 
disclose records to the requester promptly on payment of any applicable 
fee. If a request is made in person, the component may disclose records 
to the requester directly, in a manner not unreasonably disruptive of 
its operations, on payment of any applicable fee and with a written 
record made of the grant 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.
    (c) Adverse determinations of requests for access. A component 
making an adverse determination denying a request for access in any 
respect shall notify the requester of that determination in writing. 
Adverse determinations, or denials of requests, consist of: a 
determination to withhold any requested record in whole or in part; a 
determination that a requested record does not exist or cannot be 
located; a determination that what has been requested is not a record 
subject to the Privacy Act; a determination on any disputed fee matter; 
and a denial of a request for expedited treatment. The notification 
letter shall be signed by the head of the component, or the component 
head's designee, and shall include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reason(s) for the denial, including any 
Privacy Act exemption(s) applied by the component in denying the 
request; and
    (3) A statement that the denial may be appealed under Sec. 5.25(a) 
and a description of the requirements of Sec. 5.25(a).



Sec. 5.24  Classified information.

    In processing a request for access to a record containing 
information that is classified under Executive Order 12958 or any other 
executive order, the originating component shall review the information 
to determine whether it should remain classified. Information determined 
to no longer require classification shall not be withheld from a 
requester on the basis of Exemption (k)(1) of the Privacy Act. On 
receipt of any appeal involving classified information, the Associate 
General Counsel (General Law), shall take appropriate action to ensure 
compliance with Part 7 of this title.



Sec. 5.25  Appeals.

    (a) Appeals. If you are dissatisfied with a component's response to 
your request for access to records, you may

[[Page 22]]

appeal an adverse determination denying your request in any respect to 
the Associate General Counsel (General Law), Department of Homeland 
Security, Washington, DC 20528. You must make your appeal in writing and 
it must be received by the Associate General Counsel (General Law) 
within 60 days of the date of the letter denying your request. Your 
appeal letter may include as much or as little related information as 
you wish, as long as it clearly identifies the component determination 
(including the assigned request number, if known) that you are 
appealing. For the quickest possible handling, you should mark both your 
appeal letter and the envelope ``Privacy Act Appeal.''
    (b) Responses to appeals. The decision on your appeal will be made 
in writing. A decision affirming an adverse determination in whole or in 
part will include a brief statement of the reason(s) for the affirmance, 
including any Privacy Act exemption applied, and will inform you of the 
Privacy Act 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. An adverse 
determination by the Associate General Counsel (General Law) will be the 
final action of the Department.
    (c) When appeal is required. If you wish to seek review by a court 
of any adverse determination or denial of a request, you must first 
appeal it under this section. An appeal will not be acted on if the 
request becomes a matter of litigation.



Sec. 5.26  Requests for amendment or correction of records.

    (a) How made and addressed. Unless the record is not subject to 
amendment or correction as stated in paragraph (f) of this section, you 
may make a request for amendment or correction of a record of the 
Department about you by writing directly to the Department component 
that maintains the record, following the procedures in Sec. 5.21. Your 
request should identify each particular record in question, state the 
amendment or correction that you want, and state why you believe that 
the record is not accurate, relevant, timely, or complete. You may 
submit any documentation that you think would be helpful. If you believe 
that the same record is in more than one system of records, you should 
state that and address your request to each component that maintains a 
system of records containing the record.
    (b) Component responses. Within ten working days of receiving your 
request for amendment or correction of records, a component shall send 
you a written acknowledgment of its receipt of your request, and it 
shall promptly notify you whether your request is granted or denied. If 
the component grants your request in whole or in part, it shall describe 
the amendment or correction made and shall advise you of your right to 
obtain a copy of the corrected or amended record, in disclosable form. 
If the component denies your request in whole or in part, it shall send 
you a letter signed by the head of the component, or the component 
head's designee, that shall state:
    (1) The reason(s) for the denial; and
    (2) The procedure for appeal of the denial under paragraph (c) of 
this section, including the name and business address of the official 
who will act on your appeal.
    (c) Appeals. You may appeal a denial of a request for amendment or 
correction to the Associate General Counsel (General Law) in the same 
manner as a denial of a request for access to records (see Sec. 5.25) 
and the same procedures shall be followed. If your appeal is denied, you 
shall be advised of your right to file a Statement of Disagreement as 
described in paragraph (d) of this section and of your right under the 
Privacy Act for court review of the decision.
    (d) Statements of Disagreement. If your appeal under this section is 
denied in whole or in part, you have the right to file a Statement of 
Disagreement that states your reason(s) for disagreeing with the 
Department's denial of your request for amendment or correction. 
Statements of Disagreement must be concise, must clearly identify each 
part of any record that is disputed, and should be no longer than one 
typed page for each fact disputed. Your

[[Page 23]]

Statement of Disagreement must be sent to the component involved, which 
shall place it in the system of records in which the disputed record is 
maintained and shall mark the disputed record to indicate that a 
Statement of Disagreement has been filed and where in the system of 
records it may be found.
    (e) Notification of amendment/correction or disagreement. Within 30 
working days of the amendment or correction of a record, the component 
that maintains the record shall notify all persons, organizations, or 
agencies to which it previously disclosed the record, if an accounting 
of that disclosure was made, that the record has been amended or 
corrected. If an individual has filed a Statement of Disagreement, the 
component shall append a copy of it to the disputed record whenever the 
record is disclosed and may also append a concise statement of its 
reason(s) for denying the request to amend or correct the record.
    (f) Records not subject to amendment or correction. The following 
records are not subject to amendment or correction:
    (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) Presentence records that originated with the courts; and
    (4) Records in systems of records that have been exempted from 
amendment and correction under Privacy Act (5 U.S.C. 552a(j) or (k)) by 
notice published in the Federal Register.



Sec. 5.27  Requests for an accounting of record disclosures.

    (a) How made and addressed. Except where accountings of disclosures 
are not required to be kept (as stated in paragraph (b) of this 
section), you may make a request for an accounting of any disclosure 
that has been made by the Department to another person, organization, or 
agency of any record about you. This accounting contains the date, 
nature, and purpose of each disclosure, as well as the name and address 
of the person, organization, or agency to which the disclosure was made. 
Your request for an accounting should identify each particular record in 
question and should be made by writing directly to the Department 
component that maintains the record, following the procedures in Sec. 
5.21.
    (b) Where accountings are not required. Components are not required 
to provide accountings to you where they relate to:
    (1) Disclosures for which accountings are not required to be kept, 
such as disclosures that are made to employees within the agency and 
disclosures that are made under the FOIA;
    (2) Disclosures made to law enforcement agencies for authorized law 
enforcement activities in response to written requests from those law 
enforcement agencies specifying the law enforcement activities for which 
the disclosures are sought; or
    (3) Disclosures made from law enforcement systems of records that 
have been exempted from accounting requirements.
    (c) Appeals. You may appeal a denial of a request for an accounting 
to the Associate General Counsel (General Law) in the same manner as a 
denial of a request for access to records (see Sec. 5.25) and the same 
procedures will be followed.



Sec. 5.28  Preservation of records.

    Each component will preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the Act.



Sec. 5.29  Fees.

    (a) Components shall charge fees for duplication of records under 
the Privacy Act in the same way in which they charge duplication fees 
under Sec. 5.11.
    (b) The Department shall not process a request under the Privacy Act 
from persons with an unpaid fee from any previous Privacy Act request to 
any

[[Page 24]]

Federal agency until that outstanding fee has been paid in full to the 
agency.



Sec. 5.30  Notice of court-ordered and emergency disclosures.

    (a) Court-ordered disclosures. When a record pertaining to an 
individual is required to be disclosed by a court order, the component 
shall make reasonable efforts to provide notice of this to the 
individual. Notice shall be given within a reasonable time after the 
component's receipt of the order, except that in a case in which the 
order is not a matter of public record, the notice shall be given only 
after the order becomes public. This notice shall be mailed to the 
individual's last known address and shall contain a copy of the order 
and a description of the information disclosed. Notice shall not be 
given if disclosure is made from a criminal law enforcement system of 
records that has been exempted from the notice requirement.
    (b) Emergency disclosures. Upon disclosing a record pertaining to an 
individual made under compelling circumstances affecting health or 
safety, the component shall notify that individual of the disclosure. 
This notice shall be mailed to the individual's last known address and 
shall state the nature of the information disclosed; the person, 
organization, or agency to which it was disclosed; the date of 
disclosure; and the compelling circumstances justifying the disclosure.



Sec. 5.31  Security of systems of records.

    (a) In general. Each component shall establish administrative and 
physical controls to prevent unauthorized access to its systems of 
records, to prevent unauthorized disclosure of records, and to prevent 
physical damage to or destruction of records. The stringency of these 
controls shall correspond to the sensitivity of the records that the 
controls protect. At a minimum, each component's administrative and 
physical controls shall ensure that:
    (1) Records are protected from public view;
    (2) The area in which records are kept is supervised during business 
hours to prevent unauthorized persons from having access to them;
    (3) Records are inaccessible to unauthorized persons outside of 
business hours; and
    (4) Records are not disclosed to unauthorized persons or under 
unauthorized circumstances in either oral or written form.
    (b) Procedures required. Each component shall have procedures that 
restrict access to records to only those individuals within the 
Department who must have access to those records in order to perform 
their duties and that prevent inadvertent disclosure of records.



Sec. 5.32  Contracts for the operation of record systems.

    Under 5 U.S.C. 552a(m), any approved contract for the operation of a 
record system will contain the standard contract requirements issued by 
the General Services Administration to ensure compliance with the 
requirements of the Privacy Act for that record system. The contracting 
component will be responsible for ensuring that the contractor complies 
with these contract requirements.



Sec. 5.33  Use and collection of social security numbers.

    Each component shall ensure that employees authorized to collect 
information are aware:
    (a) That individuals may not be denied any right, benefit, or 
privilege as a result of refusing to provide their social security 
numbers, unless the collection is authorized either by a statute or by a 
regulation issued prior to 1975; and
    (b) That individuals requested to provide their social security 
numbers must be informed of:
    (1) Whether providing social security numbers is mandatory or 
voluntary;
    (2) Any statutory or regulatory authority that authorizes the 
collection of social security numbers; and
    (3) The uses that will be made of the numbers.



Sec. 5.34  Standards of conduct for administration of the Privacy Act.

    Each component will inform its employees of the provisions of the 
Privacy Act, including the Act's civil liability and criminal penalty 
provisions. Unless

[[Page 25]]

otherwise permitted by law, the Department shall:
    (a) Collect from individuals only the information that is relevant 
and necessary to discharge the responsibilities of the Department;
    (b) Collect information about an individual directly from that 
individual whenever practicable and when the information may result in 
adverse determinations about an individual's rights, benefits, and 
privileges under federal programs;
    (c) Inform each individual from whom information is collected of:
    (1) The legal authority to collect the information and whether 
providing it is mandatory or voluntary;
    (2) The principal purpose for which the Department intends to use 
the information;
    (3) The routine uses the Department may make of the information; and
    (4) The effects on the individual, if any, of not providing the 
information;
    (d) Ensure that the component maintains no system of records without 
public notice and that it notifies appropriate Department officials of 
the existence or development of any system of records that is not the 
subject of a current or planned public notice;
    (e) Maintain all records that are used by the Department in making 
any determination about an individual with such accuracy, relevance, 
timeliness, and completeness as is reasonably necessary to ensure 
fairness to the individual in the determination;
    (f) Except as to disclosures made to an agency or made under the 
FOIA, make reasonable efforts, prior to disseminating any record about 
an individual, to ensure that the record is accurate, relevant, timely, 
and complete;
    (g) Maintain no record describing how an individual exercises his or 
her First Amendment rights, unless it is expressly authorized by statute 
or by the individual about whom the record is maintained, or is 
pertinent to and within the scope of an authorized law enforcement 
activity;
    (h) When required by the Privacy Act, maintain an accounting in the 
specified form of all disclosures of records by the Department to 
persons, organizations, or agencies;
    (i) Maintain and use records with care to prevent the unauthorized 
or inadvertent disclosure of a record to anyone.



Sec. 5.35  Sanctions and penalties.

    Under the provisions of the Privacy Act, 5 U.S.C. 552a, civil and 
criminal penalties may be assessed.



Sec. 5.36  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.



            Subpart C_Disclosure of Information in Litigation

    Source: 68 FR 4070, Jan. 27, 2003, unless otherwise noted.



Sec. 5.41  Purpose and scope; definitions.

    (a) This subpart C sets forth the procedures to be followed with 
respect to:
    (1) Service of summonses and complaints or other requests or demands 
directed to the Department of Homeland Security (Department) or to any 
Department employee or former employee in connection with federal or 
state litigation arising out of or involving the performance of official 
activities of the Department; and
    (2) The oral or written disclosure, in response to subpoenas, 
orders, or other requests or demands of federal or state judicial or 
quasi-judicial or administrative authority as well as state legislative 
authorities (collectively, ``demands''), whether civil or criminal in 
nature, or in response to requests for depositions, affidavits, 
admissions, responses to interrogatories, document production, 
interviews, or other litigation-related matters, including pursuant to 
the Federal Rules of Civil Procedure, the Federal Rules of Criminal 
Procedure, or applicable state rules (collectively, ``requests''), of 
any material contained in the files of the Department, any information 
relating to material contained in the files of the Department, or any 
information acquired while the subject of the demand or request is or 
was employed by the Department, or served as Secretary of

[[Page 26]]

the Department, as part of the performance of that person's duties or by 
virtue of that person's official status.
    (b) The provisions established by this subpart shall apply to all 
Department components that are transferred to the Department. Except to 
the extent a Department component has adopted separate guidance 
governing the subject matter of a provision of this subpart, the 
provisions of this subpart shall apply to each component of the 
Department. Departmental components may issue their own guidance under 
this subpart subject to the approval of the General Counsel of the 
Department.
    (c) For purposes of this subpart, and except as the Department may 
otherwise determine in a particular case, the term employee includes all 
former Secretaries of Homeland Security and all employees of the 
Department of Homeland Security or other federal agencies who are or 
were appointed by, or subject to the supervision, jurisdiction, or 
control of the Secretary of Homeland Security, whether residing or 
working in the United States or abroad, including United States 
nationals, foreign nationals, and contractors. The procedures 
established within this subpart also apply to former employees of the 
Department where specifically noted.
    (d) For purposes of this subpart, the term litigation encompasses 
all pre-trial, trial, and post-trial stages of all judicial or 
administrative actions, hearings, investigations, or similar proceedings 
before courts, commissions, boards (including the Board of Appellate 
Review), grand juries, or other judicial or quasi-judicial bodies or 
tribunals, whether criminal, civil, or administrative in nature. This 
subpart governs, inter alia, responses to discovery requests, 
depositions, and other pre-trial, trial, or post-trial proceedings, as 
well as responses to informal requests by attorneys or others in 
situations involving litigation. However, this subpart shall not apply 
to any claims against the Department by Department of Homeland Security 
employees (present or former), or applicants for Department employment, 
for which jurisdiction resides with the U.S. Equal Employment 
Opportunity Commission; the U.S. Merit Systems Protection Board; the 
Office of Special Counsel; the Federal Labor Relations Authority; the 
Foreign Service Labor Relations Board; the Foreign Service Grievance 
Board; or a labor arbitrator operating under a collective bargaining 
agreement between the Department and a labor organization representing 
Department employees; or their successor agencies or entities.
    (e) For purposes of this subpart, official information means all 
information of any kind, however stored, that is in the custody and 
control of the Department, relates to information in the custody and 
control of the Department, or was acquired by Department employees, or 
former employees, as part of their official duties or because of their 
official status within the Department while such individuals were 
employed by or served on behalf of the Department.
    (f) Nothing in this subpart affects disclosure of information under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5 
U.S.C. 552a, Executive Order 12958 on national security information (3 
CFR, 1995 Comp., p. 333), the Government in the Sunshine Act, 5 U.S.C. 
552b, the Department's implementing regulations or pursuant to 
congressional subpoena. Nothing in this subpart permits disclosure of 
information by the Department, its present and former employees, or the 
Secretary, that is protected or prohibited by statute or other 
applicable law.
    (g) This subpart is intended only to inform the public about 
Department procedures concerning the service of process and responses to 
demands or requests and is not intended to and does not create, and may 
not be relied upon to create any right or benefit, substantive or 
procedural, enforceable at law by a party against the Department or the 
United States.
    (h) Nothing in this subpart affects the rules and procedures, under 
applicable U.S. law and international conventions, governing diplomatic 
and consular immunity.
    (i) Nothing in this subpart affects the disclosure of official 
information to other federal agencies or Department of Justice attorneys 
in connection with litigation conducted on behalf or in defense of the 
United States, its agencies,

[[Page 27]]

officers, and employees, or litigation in which the United States has an 
interest; or to federal, state, local, or foreign prosecuting and law 
enforcement authorities in conjunction with criminal law enforcement 
investigations, prosecutions, or other proceedings, e.g., extradition, 
deportation.



Sec. 5.42  Service of summonses and complaints.

    (a) Only the Office of the General Counsel is authorized to receive 
and accept on behalf of the Department summonses or complaints sought to 
be served upon the Department, the Secretary, or Department employees. 
All such documents should be delivered or addressed to the Office of the 
General Counsel, United States Department of Homeland Security, 
Washington, DC, 20258. The authorization for receipt shall in no way 
affect the requirements of service elsewhere provided in applicable 
rules and regulations.
    (b) In the event any summons or complaint described in Sec. 5.41(a) 
is delivered to an employee of the Department other than in the manner 
specified in this part, the recipient thereof shall decline to accept 
the proffered service and may notify the person attempting to make 
service of the Departmental regulations set forth herein.
    (c) Except as otherwise provided Sec. Sec. 5.42(d) and 5.43(c), the 
Department is not an authorized agent for service of process with 
respect to civil litigation against Department employees purely in their 
personal, non-official capacity. Copies of summonses or complaints 
directed to Department employees in connection with legal proceedings 
arising out of the performance of official duties may, however, be 
served upon the Office of the General Counsel.
    (d) Although the Department is not an agent for the service of 
process upon its employees with respect to purely personal, non-official 
litigation, the Department recognizes that its employees should not use 
their official positions to evade their personal obligations and will, 
therefore, counsel and encourage Department employees to accept service 
of process in appropriate cases.
    (e) Documents for which the Office of the General Counsel accepts 
service in official capacity only shall be stamped ``Service Accepted in 
Official Capacity Only''. Acceptance of service shall not constitute an 
admission or waiver with respect to jurisdiction, propriety of service, 
improper venue, or any other defense in law or equity available under 
applicable laws or rules.



Sec. 5.43  Service of subpoenas, court orders, and other demands or requests for official information or action.

    (a) Except in cases in which the Department is represented by legal 
counsel who have entered an appearance or otherwise given notice of 
their representation, only the Office of the General Counsel is 
authorized to receive and accept subpoenas, or other demands or requests 
directed to the Secretary, the Department, or any component thereof, or 
its employees, whether civil or criminal in nature, for:
    (1) Material, including documents, contained in the files of the 
Department;
    (2) Information, including testimony, affidavits, declarations, 
admissions, responses to interrogatories, or informal statements, 
relating to material contained in the files of the Department or which 
any Department employee acquired in the course and scope of the 
performance of his official duties;
    (3) Garnishment or attachment of compensation of current or former 
employees; or
    (4) The performance or non-performance of any official Department 
duty.
    (b) In the event that any subpoena, demand, or request is sought to 
be delivered to a Department employee other than in the manner 
prescribed in paragraph (a) of this section, such employee shall, after 
consultation with the Office of the General Counsel, decline service and 
direct the server of process to the Departmental regulations. If the 
subpoena, demand, or other request is nonetheless delivered to the 
employee, the employee shall immediately forward a copy of that document 
to the Office of the General Counsel.
    (c) Except as otherwise provided in this subpart, the Department is 
not an

[[Page 28]]

agent for service, or otherwise authorized to accept on behalf of its 
employees, any subpoenas, show-cause orders, or similar compulsory 
process of federal or state courts, or requests from private individuals 
or attorneys, which are not related to the employees' official duties 
except upon the express, written authorization of the individual 
Department employee to whom such demand or request is directed.
    (d) Acceptance of such documents by the Office of the General 
Counsel does not constitute a waiver of any defenses that might 
otherwise exist with respect to service under the Federal Rules of Civil 
or Criminal Procedure or other applicable rules.
    (e) Copies of any subpoenas, show cause orders, or similar 
compulsory process of federal or state courts, or requests from private 
individuals or attorneys, directed to former employees of the Department 
in connection with legal proceedings arising out of the performance of 
official duties shall also be served upon the Office of the General 
Counsel. The Department shall not, however, serve as an agent for 
service for the former employee, nor is the Department otherwise 
authorized to accept service on behalf of its former employees. If the 
demand involves their official duties, former employees who receive 
subpoenas, show cause orders, or similar compulsory process of federal 
or state courts should also notify in the component of the Department in 
which they were employed if the service involves their official duties 
while so employed.
    (f) If the subpoena, demand, or other request is nonetheless 
delivered to the employee, the employee shall immediately forward a copy 
of that document to the Office of the General Counsel.



Sec. 5.44  Testimony and production of documents prohibited unless approved by appropriate Department officials.

    (a) No employee, or former employee, of the Department shall, in 
response to a demand or request, including in connection with any 
litigation, provide oral or written testimony by deposition, 
declaration, affidavit, or otherwise concerning any information acquired 
while such person is or was an employee of the Department as part of the 
performance of that person's official duties or by virtue of that 
person's official status, unless authorized to do so by the Office of 
the General Counsel, or as authorized in Sec. 5.44(b).
    (b) No employee, or former employee, shall, in response to a demand 
or request, including in connection with any litigation, produce any 
document or any material acquired as part of the performance of that 
employee's duties or by virtue of that employee's official status, 
unless authorized to do so by the Office of the General Counsel or the 
delegates thereof, as appropriate.



Sec. 5.45  Procedure when testimony or production of documents is sought; general.

    (a) If official information is sought, through testimony or 
otherwise, by a request or demand, the party seeking such release or 
testimony must (except as otherwise required by federal law or 
authorized by the Office of the General Counsel) set forth in writing, 
and with as much specificity as possible, the nature and relevance of 
the official information sought. Where documents or other materials are 
sought, the party should provide a description using the types of 
identifying information suggested in Sec. 5.3(b). Subject to Sec. 
5.47, Department employees may only produce, disclose, release, comment 
upon, or testify concerning those matters which were specified in 
writing and properly approved by the appropriate Department official 
designated in Sec. 5.44. See United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951). The Office of the General Counsel may waive the 
requirement of this subsection in appropriate circumstances.
    (b) To the extent it deems necessary or appropriate, the Department 
may also require from the party seeking such testimony or documents a 
plan of all reasonably foreseeable demands, including but not limited to 
the names of all employees and former employees from whom discovery will 
be sought, areas of inquiry, expected duration of proceedings requiring 
oral testimony, and identification of potentially relevant documents.

[[Page 29]]

    (c) The appropriate Department official designated in Sec. 5.42 
will notify the Department employee and such other persons as 
circumstances may warrant of its decision regarding compliance with the 
request or demand.
    (d) The Office of the General Counsel will consult with the 
Department of Justice regarding legal representation for Department 
employees in appropriate cases.



Sec. 5.46  Procedure when response to demand is required prior to receiving instructions.

    (a) If a response to a demand is required before the appropriate 
Department official designated in Sec. 5.44 renders a decision, the 
Department, if necessary, will request that the Department of Justice or 
the appropriate Department attorney take appropriate steps to stay, 
postpone, or obtain relief from the demand pending decision. If 
necessary, the attorney will:
    (1) Appear with the employee upon whom the demand has been made;
    (2) Furnish the court or other authority with a copy of the 
regulations contained in this subpart;
    (3) Inform the court or other authority that the demand has been, or 
is being, as the case may be, referred for the prompt consideration of 
the appropriate Department official; and
    (4) Respectfully request the court or authority to stay the demand 
pending receipt of the requested instructions.
    (b) In the event that an immediate demand for production or 
disclosure is made in circumstances which would preclude the proper 
designation or appearance of a Department of Justice or appropriate 
Department attorney on the employee's behalf, the employee, if 
necessary, shall respectfully request from the demanding court or 
authority for a reasonable stay of proceedings for the purpose of 
obtaining instructions from the Department.



Sec. 5.47  Procedure in the event of an adverse ruling.

    If a stay of, or other relief from, the effect of the demand in 
response to a request made pursuant to Sec. 5.46 is declined or not 
obtained, or if the court or other judicial or quasi-judicial authority 
declines to stay the effect of the demand in response to a request made 
pursuant to Sec. 5.46, or if the court or other authority rules that 
the demand must be complied with irrespective of the Department's 
instructions not to produce the material or disclose the information 
sought, the employee upon whom the demand has been made shall 
respectfully decline to comply with the demand, citing this subpart and 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).



Sec. 5.48  Considerations in determining whether the Department will comply with a demand or request

    (a) In deciding whether to comply with a demand or request, 
Department officials and attorneys shall consider, among any other 
pertinent considerations:
    (1) Whether such compliance would be unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand arose;
    (2) Whether compliance is appropriate under the relevant substantive 
law concerning privilege or disclosure of information;
    (3) The public interest;
    (4) The need to conserve the time of Department employees for the 
conduct of official business;
    (5) The need to avoid spending the time and money of the United 
States for private purposes;
    (6) The need to maintain impartiality between private litigants in 
cases where a substantial government interest is not implicated;
    (7) Whether compliance would have an adverse effect on performance 
by the Department of its mission and duties; and
    (8) The need to avoid involving the Department in controversial 
issues not related to its mission.
    (b) Among those demands and requests in response to which compliance 
will not ordinarily be authorized are those with respect to which any of 
the following factors, inter alia, exist:
    (1) Compliance would violate a statute or a rule of procedure;
    (2) Compliance would violate a specific regulation or Executive 
order;

[[Page 30]]

    (3) Compliance would reveal information properly classified in the 
interest of national security;
    (4) Compliance would reveal confidential commercial or financial 
information or trade secrets without the owner's consent;
    (5) Compliance would reveal the internal deliberative processes of 
the Executive Branch; or
    (6) Compliance would potentially impede or prejudice an on-going law 
enforcement investigation.



Sec. 5.49  Prohibition on providing expert or opinion testimony.

    (a) Except as provided in this section, and subject to 5 CFR 
2635.805, Department employees shall not provide opinion or expert 
testimony based upon information which they acquired in the scope and 
performance of their official Department duties, except on behalf of the 
United States or a party represented by the Department of Justice.
    (b) Any expert or opinion testimony by a former employee of the 
Department shall be excepted from 5.49(a) where the testimony involves 
only general expertise gained while employed at the Department.
    (c) Upon a showing by the requestor of exceptional need or unique 
circumstances and that the anticipated testimony will not be adverse to 
the interests of the United States, the appropriate Department official 
designated in Sec. 5.44 may, consistent with 5 CFR 2635.805, in their 
discretion and with the concurrence of the Office of the General 
Counsel, grant special, written authorization for Department employees, 
or former employees, to appear and testify as expert witnesses at no 
expense to the United States.
    (d) If, despite the final determination of the appropriate 
Department official designated in Sec. 5.44, a court of competent 
jurisdiction or other appropriate authority orders the appearance and 
expert or opinion testimony of a current or former Department employee, 
that person shall immediately inform the Office of the General Counsel 
of such order. If the Office of the General Counsel determines that no 
further legal review of or challenge to the court's order will be made, 
the Department employee, or former employee, shall comply with the 
order. If so directed by the Office of the General Counsel, however, the 
employee, or former employee, shall respectfully decline to testify.



Sec. Appendix A to Part 5--FOIA/Privacy Act Offices of the Department of 
                            Homeland Security

    I. For the following Headquarters components of the Department of 
Homeland Security, FOIA and Privacy Act requests should be sent to the 
Departmental Disclosure Office, Department of Homeland Security, 
Washington, DC 20528. The Headquarters components are:

                                    A

Office of the Secretary
Office of the Deputy Secretary
Office of the Under Secretary for Management

                                    B

Office of the General Counsel
Office of the Inspector General
Office of International Affairs
Office of Legislative Affairs
Office of Public Affairs
Office of National Capital Region Coordination
Office of Professional Responsibility
Office for State and Local Government Coordination

                                    C

Directorate of Border and Transportation Security
Directorate of Emergency Preparedness and Response
Directorate of Information Analysis and Infrastructure Protection
Directorate of Science and Technology
    II. Requests made to components that have transferred or will 
transfer into the Department of Homeland Security, should be sent as 
follows:
    A. Former components of the Department of Agriculture:

1. Animal and Plant Health Inspection Service, USDA, APHIS, LPA, FOIA, 
4700 River Road, Unit 50, Riverdale, MD 20737-1232
2. Plum Island Animal Disease Center; Submit request to the APHIS 
address above or, FOIA Coordinator, USDA-REE-ARS-Information Staff, 5601 
Sunnyside Avenue, Bldg. 1, Room 2248, Mail Stop 5128, Beltsville, MD 
20705-5128

    B. Former components of the Department of Commerce:

1. Critical Infrastructure Assurance Office (A former office of the 
Bureau of Industry and Security); Freedom of Information Coordinator, 
Bureau of Industry and Security,

[[Page 31]]

Room 6883, U.S. Department of Commerce, Washington, DC 20230
2. FIRESTAT (formerly the Integrated Hazard Information System of the 
National Oceanic and Atmospheric Administration), National Oceanic and 
Atmospheric Administration, Public Reference Facility (OFAx2), 1315 
East-West Highway (SSMC3), Room 10703, Silver Spring, MD 20910
    C. Former components of the Department of Defense:

1. National Communications Service (A former component of the Defense 
Information Systems Agency), Defense Information Systems Agency, ATTN: 
RGC/FOIA Officer, 701 S. Courthouse Rd., Arlington, VA 22204-2199

    D. Former components and programs of the Department of Energy:

    The address for each component and program listed below is: U.S. 
Department of Energy, 1000 Independence Avenue, SW., Washington, DC 
20585
    1. Energy Assurance Office
    2. Environmental Measurements Laboratory
    3. Nuclear Incident Response Team
    4. The chemical and biological national security and supporting 
programs and activities of the non-proliferation and verification 
research and development program.
    5. The life sciences activities related to microbial pathogens of 
Biological and Environmental Research Program.
    6. The nuclear smuggling programs and activities within the 
proliferation detection program of the non-proliferation and 
verification research and development program.
    7. The nuclear assessment program and activities of the assessment, 
detection, and cooperation program of the international materials 
protection and cooperation program, and the advanced scientific 
computing research program and activities at Lawrence Livermore National 
Laboratory.
    8. National Infrastructure Simulation and Analysis Center
    E. Former components of the Department of Health and Human Services:

    1. The address for each component and program listed below is: 
Department of Health and Human Services, Freedom of Information Officer, 
Room 645-F, Hubert H. Humphrey Building, Independence Avenue, SW., 
Washington, DC 20201;
    a. Metropolitan Medical Response System,
    b. National Disaster Medical System, and
    c. Office of Emergency Preparedness
    d. Strategic National Stockpile
    2. Centers for Disease Control and Agency for Toxic Substances and 
Disease Registry, Attn: FOI Office, MS-D54, 1600 Clifton Road, NE., 
Atlanta, GA 30333.
    F. Former components of the Department of Justice:

    1. Immigration and Naturalization Service, Director, Freedom of 
Information/Privacy Act Program, Department of Justice, 425 Eye Street, 
NW., 2nd Floor, ULLICO Building, Washington, DC 20536 (for field 
offices, consult your phone book).
    2. The address for each component and program listed below is: 
Federal Bureau of Investigation, Chief, FOIPA Section, 935 Pennsylvania 
Avenue, NW., Department of Justice, Washington, DC 20535-0001;
    a. National Infrastructure Protection Center,
    b. National Domestic Preparedness Office, and
    c. Domestic Emergency Support Team.
    3. Office of Domestic Preparedness, U.S. Department of Justice, 
Office of Justice Programs, Office of the General Counsel, Attention: 
FOIA Staff, 810 7th Street, NW., Room 5400, Washington, DC 20531.
    G. Former components of the Department of State:

Visa Office, Information and Privacy Coordinator, Office of Information 
Resources, Management Programs and Services, A/RPS/IPS, SA-2, Department 
of State, Washington, DC 20522-6001, Re: Freedom of Information Act 
Request.
    H. Former components of the Department of Transportation:

1. Federal Aviation Administration, National Freedom of Information Act 
Staff, ARC-40, 800 Independence Avenue, SW., Washington, DC 20591 (for 
regional centers, consult your phone book).
2. Transportation Security Administration, TSA-1, FOIA Division, 400 
Seventh Street, SW., Washington, DC 20590
3. United States Coast Guard, HQ USCG Commandant, G-CIM, 2100 Second 
Street, SW., Washington, DC 20593-0001 (for district offices, consult 
your phone book).

    I. Former components of the Department of Treasury:

1. Federal Law Enforcement Training Center, Freedom of Information Act 
Officer, Townhouse 389, Glynco, GA 31524
2. U.S. Customs Service, Freedom of Information Act Request, Mint Annex, 
1300 Pennsylvania Avenue, NW., Washington, DC 20229 (for field offices, 
consult your phone book).
3. U.S. Secret Service, Freedom of Information Act Request, 950 H 
Street, NW., Suite 3000, Washington, DC 20223, e-mail 
[email protected]. Appeals should be addressed to the Deputy Director, 
United States Secret Service, Freedom of Information and Privacy Act 
Appeal Officer, at these same contact points.

    J. Federal Emergency Management Agency: Federal Emergency Management 
Agency, Office of General Counsel, 500 C Street, SW., Room 840, 
Washington, DC 20472 (for regional offices, consult your phone book).

[[Page 32]]

    K. Former components of the General Services Administration:

1. For the Federal Computer Incident Response Center and the Federal 
Protective Service: Chief, FOIA Information Management Branch, GSA 
(CAIM), 1800 F Street, NW., Washington, DC 20405 (for regional offices, 
consult your phone book).



Sec. Appendix B to Part 5--Public Reading Rooms of the Department of

                            Homeland Security

    The Headquarters components of the Department of Homeland Security 
do not maintain a conventional public reading room. Records that are 
required to be in the public reading room are available electronically 
at http://www.dhs.gov/FOIA.
    Entities that will transfer into the Department of Homeland Security 
maintain public reading rooms as follows:
    1. Former components of the Department of Agriculture:

Animal and Plant Health Inspection Service Library, 4700 River Road, 
Riverdale, MD 20737-1232
Plum Island Animal Disease Center, the APHIS address above or, USDA-ARS, 
5601 Sunnyside Avenue, Building 1, Room 2248, Beltsville, MD 20705-5128
    2. Former components of the Department of Commerce:

    The Critical Infrastructure Assurance Office (A former office of the 
Bureau of Industry and Security) does not maintain a conventional public 
reading room. Records that are required to be in the public reading room 
are available electronically at http://www.bis.doc.gov/FOIA/Default.htm
    FIRESTAT (formerly the Integrated Hazard Information System of the 
National Oceanic and Atmospheric Administration), NOAA Public Reference 
Facility, 1305 East-West Highway (SSMC4), Room 8627, Silver Spring, MD 
20910
    3. Former components of the Department of Defense:
    The National Communication Service (A former component of the 
Defense Information Systems Agency) does not maintain a conventional 
public reading room. Records that are required to be in the public 
reading room are available electronically at http://disa.mil/gc/foia/
foia.html
    4. Former components and programs of the Department of Energy:

The address for each component and program listed below is: U.S. 
Department of Energy; 1000 Independence Avenue, SW., Washington, DC 
20585

Energy Assurance Office
Environmental Measurements Laboratory
Nuclear Incident Response Team

    The chemical and biological national security and supporting 
programs and activities of the non-proliferation and verification 
research and development program.
    The life sciences activities related to microbial pathogens of 
Biological and Environmental Research Program.
    The nuclear smuggling programs and activities within the 
proliferation detection program of the non-proliferation and 
verification research and development program.
    The nuclear assessment program and activities of the assessment, 
detection, and cooperation program of the international materials 
protection and cooperation program, and the advanced scientific 
computing research program and activities at Lawrence Livermore National 
Laboratory.

       The National Infrastructure Simulation and Analysis Center

    5. Former components of the Department of Health and Human Services:
    For the Metropolitan Medical Response System, the National Disaster 
Medical System, and the Office of Emergency Preparedness please contact 
the Freedom of Information Act Officer at: Department of Health and 
Human Services, Freedom of Information Officer, Room 645-F, Hubert H. 
Humphrey Building, Independence Avenue, SW., Washington, DC 20201
    Strategic National Stockpile, Centers for Disease Control and Agency 
for Toxic Substances and Disease Registry, 1600 Clifton Road, NE., Room 
4103, Building 1, Atlanta, GA 30333
    6. Former components of the Department of Justice:
    Immigration and Naturalization Service, 111 Massachusetts Avenue, 
NW., 2nd Floor, ULLICO Building, Washington, DC 20536
    For the National Infrastructure Protection Center, the National 
Domestic Preparedness Office, and the Domestic Emergency Support Team: 
Federal Bureau of Investigation, 935 Pennsylvania Avenue, NW., 
Department of Justice, Washington, DC 20535-0001
    Office of Domestic Preparedness, U.S. Department of Justice, Office 
of Justice Programs, 810 7th Street, NW., Room 5430, Washington, DC 
20531
    7. Former components of the Department of State:
    Visa Office, Department of State, 2201 C Street, NW., Washington, DC 
20520
    8. Former components of the Department of Transportation:
    Federal Aviation Administration, 800 Independence Avenue, SW., 
Washington, DC 20591
    Transportation Security Administration, 400 Seventh Street, SW., 
Washington, DC 20590
    United States Coast Guard Headquarters, 2100 Second Street, SW., 
Washington, DC

[[Page 33]]

20593-0001 (for district offices, consult your phone book).
    9. Former components of the Department of Treasury:
    The Federal Law Enforcement Training Center does not maintain a 
conventional public reading room. Records that are required to be in the 
public reading room are available electronically at http://
www.fletc.gov/irm/foia/readingroom.htm
    U.S. Customs Service, 1300 Pennsylvania Avenue, NW., Washington, DC 
20229 (for a list of field office public reading rooms please consult 19 
CFR 103.1).
    U.S. Secret Service, Main Treasury, 1500 Pennsylvania Avenue, NW., 
Washington, DC 20220
    10. Federal Emergency Management Agency:
    Federal Emergency Management Agency, Federal Center Plaza, 500 C 
Street, SW., Room 840 Washington, DC 20472 (for regional offices, 
consult your phone book)
    11. Former components of the General Services Administration:
    For the Federal Computer Incident Response Center and the Federal 
Protective Service: Central Office, GSA Headquarters, 1800 F Street, 
NW., (CAI), Washington, DC 20405 (for regional offices, consult your 
phone book).



Sec. Appendix C to Part 5--DHS Systems of Records Exempt From the

                               Privacy Act

    This Appendix implements provisions of the Privacy Act of 1974 that 
permit the Department of Homeland Security (DHS) to exempt its systems 
of records from provisions of the Act. During the course of normal 
agency operations, exempt materials from other systems of records may 
become part of the records in these and other DHS systems. To the extent 
that copies of records from other exempt systems of records are entered 
into any DHS system, DHS hereby claims the same exemptions for those 
records that are claimed for the original primary systems of records 
from which they originated and claims any additional exemptions in 
accordance with this rule.
    Portions of the following DHS systems of records are exempt from 
certain provisions of the Privacy Act pursuant to 5 U.S.C. 552(j) and 
(k):
    1. DHS/ALL 001, Department of Homeland Security (DHS) Freedom of 
Information Act (FOIA) and Privacy Act (PA) Record System allows the DHS 
and its components to maintain and retrieve FOIA and Privacy Act files 
by personal identifiers associated with the persons submitting requests 
for information under each statute. Pursuant to exemptions (j)(2), 
(k)(1), (k)(2) and (k)(5) of the Privacy Act, portions of this system 
are exempt from 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and (I) 
and (f). Exemptions from the particular subsections are justified, on a 
case by case basis to be determined at the time a request is made, for 
the following reasons:
    (a) From subsection (c)(3) (Accounting for Disclosures) because 
release of the accounting of disclosures could alert the subject of an 
investigation of an actual or potential criminal, civil, or regulatory 
violation to the existence of the investigation and reveal investigative 
interest on the part of DHS as well as the recipient agency. Disclosure 
of the accounting would therefore present a serious impediment to law 
enforcement efforts and/or efforts to preserve national security. 
Disclosure of the accounting would also permit the individual who is the 
subject of a record to impede the investigation and avoid detection or 
apprehension, which undermines the entire system.
    (b) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of the investigation and reveal 
investigative interest on the part of DHS or another agency. Access to 
the records would permit the individual who is the subject of a record 
to impede the investigation and avoid detection or apprehension. 
Amendment of the records would interfere with ongoing investigations and 
law enforcement activities and impose an impossible administrative 
burden by requiring investigations to be continuously reinvestigated. 
The information contained in the system may also include properly 
classified information, the release of which would pose a threat to 
national defense and/or foreign policy. In addition, permitting access 
and amendment to such information also could disclose security-sensitive 
information that could be detrimental to homeland security.
    (c) From subsection (e)(1) (Relevancy and Necessity of Information) 
because in the course of investigations into potential violations of 
federal law, the accuracy of information obtained or introduced, 
occasionally may be unclear or the information may not be strictly 
relevant or necessary to a specific investigation. In the interests of 
effective enforcement of federal laws, it is appropriate to retain all 
information that may aid in establishing patterns of unlawful activity.
    (d) From subsections (e)(4)(G), (H) and (I) (Agency Requirements), 
and (f) (Agency Rules), because portions of this system are exempt from 
the access provisions of subsection (d).
    2. DHS-CRCL-001, Civil Rights and Civil Liberties Matters, which 
will cover allegations of abuses of civil rights and civil liberties 
that are submitted to the Office of CRCL. Pursuant to exemptions (k)(1), 
(k)(2) and (k)(5) of the Privacy Act, portions of this system are exempt 
from 5 U.S.C. 552a(c)(3);

[[Page 34]]

(d); (e)(1); (e)(4)(G), (H) and (I) and (f). Exemptions from the 
particular subsections are justified, on a case by case basis to be 
determined at the time a request is made, for the following reasons:
    (a) From subsection (c)(3) (Accounting for Disclosures) because 
release of the accounting of disclosures could alert the subject of an 
investigation of an actual or potential criminal, civil, or regulatory 
violation to the existence of the investigation and reveal investigative 
interest on the part of DHS or another agency. Disclosure of the 
accounting would therefore present a serious impediment to law 
enforcement efforts and efforts to preserve national security. 
Disclosure of the accounting would also permit the individual who is the 
subject of a record to impede the investigation and avoid detection or 
apprehension, which undermines the entire system.
    (b) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of the investigation and reveal 
investigative interest on the part of DHS as well as the recipient 
agency. Access to the records would permit the individual who is the 
subject of a record to impede the investigation and avoid detection or 
apprehension. Amendment of the records would interfere with ongoing 
investigations and law enforcement activities and impose an impossible 
administrative burden by requiring investigations to be continuously 
reinvestigated. The information contained in the system may also include 
properly classified information, the release of which would pose a 
threat to national defense and/or foreign policy. In addition, 
permitting access and amendment to such information also could disclose 
security-sensitive information that could be detrimental to homeland 
security.
    (c) From subsection (e)(1) (Relevancy and Necessity of Information) 
because in the course of investigations into potential violations of 
federal law, the accuracy of information obtained or introduced, 
occasionally may be unclear or the information may not be strictly 
relevant or necessary to a specific investigation. In the interests of 
effective enforcement of federal laws, it is appropriate to retain all 
information that may aid in establishing patterns of unlawful activity.
    (d) From subsections (e)(4)(G), (H) and (I) (Agency Requirements), 
and (f) (Agency Rules), because this system is exempt from the access 
provisions of subsection (d).
    3. DHS-ALL-005, Redress and Response Records System. A portion of 
the following system of records is exempt from 5 U.S.C. 552a(c)(3) and 
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), 
(5), and (8); (f), and (g); however, these exemptions apply only to the 
extent that information in this system records is recompiled or is 
created from information contained in other systems of records subject 
to such exemptions pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), and 
(k)(5). Further, no exemption shall be asserted with respect to 
information submitted by and collected from the individual or the 
individual's representative in the course of any redress process 
associated with this system of records. After conferring with the 
appropriate component or agency, DHS may waive applicable exemptions in 
appropriate circumstances and where it would not appear to interfere 
with or adversely affect the law enforcement or national security 
purposes of the systems from which the information is recompiled or in 
which it is contained. Exemptions from the above particular subsections 
are justified, on a case-by-case basis to be determined at the time a 
request is made, when information in this system records is recompiled 
or is created from information contained in other systems of records 
subject to exemptions for the following reasons:
    (a) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him or her 
would specifically reveal any investigative interest in the individual. 
Revealing this information could reasonably be expected to compromise 
ongoing efforts to investigate a known or suspected terrorist by 
notifying the record subject that he or she is under investigation. This 
information could also permit the record subject to take measures to 
impede the investigation, e.g., destroy evidence, intimidate potential 
witnesses, or flee the area to avoid or impede the investigation.
    (b) From subsection (c)(4) because portions of this system are 
exempt from the access and amendment provisions of subsection (d).
    (c) From subsections (d)(1), (2), (3), and (4) because these 
provisions concern individual access to and amendment of certain records 
contained in this system, including law enforcement counterterrorism, 
investigatory, and intelligence records. Compliance with these 
provisions could alert the subject of an investigation of the fact and 
nature of the investigation, and/or the investigative interest of 
intelligence or law enforcement agencies; compromise sensitive 
information related to national security; interfere with the overall law 
enforcement process by leading to the destruction of evidence, improper 
influencing of witnesses, fabrication of testimony, and/or flight of the 
subject; could

[[Page 35]]

identify a confidential source or disclose information which would 
constitute an unwarranted invasion of another's personal privacy; reveal 
a sensitive investigative or intelligence technique; or constitute a 
potential danger to the health or safety of law enforcement personnel, 
confidential informants, and witnesses. Amendment of these records would 
interfere with ongoing counterterrorism, law enforcement, or 
intelligence investigations and analysis activities and impose an 
impossible administrative burden by requiring investigations, analyses, 
and reports to be continuously reinvestigated and revised.
    (d) From subsection (e)(1) because it is not always possible for DHS 
or other agencies to know in advance what information is relevant and 
necessary for it to complete an identity comparison between the 
individual seeking redress and a known or suspected terrorist. Also, 
because DHS and other agencies may not always know what information 
about an encounter with a known or suspected terrorist will be relevant 
to law enforcement for the purpose of conducting an operational 
response.
    (e) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism, law enforcement, 
or intelligence efforts in that it would put the subject of an 
investigation, study, or analysis on notice of that fact, thereby 
permitting the subject to engage in conduct designed to frustrate or 
impede that activity. The nature of counterterrorism, law enforcement, 
or intelligence investigations is such that vital information about an 
individual frequently can be obtained only from other persons who are 
familiar with such individual and his/her activities. In such 
investigations it is not feasible to rely upon information furnished by 
the individual concerning his own activities.
    (f) From subsection (e)(3), to the extent that this subsection is 
interpreted to require DHS to provide notice to an individual if DHS or 
another agency receives or collects information about that individual 
during an investigation or from a third party. Should the subsection be 
so interpreted, exemption from this provision is necessary to avoid 
impeding counterterrorism, law enforcement, or intelligence efforts by 
putting the subject of an investigation, study, or analysis on notice of 
that fact, thereby permitting the subject to engage in conduct intended 
to frustrate or impede that activity.
    (g) From subsections (e)(4)(G), (H) and (I) (Agency Requirements) 
because portions of this system are exempt from the access and amendment 
provisions of subsection (d).
    (h) From subsection (e)(5) because many of the records in this 
system coming from other system of records are derived from other 
domestic and foreign agency record systems and therefore it is not 
possible for DHS to vouch for their compliance with this provision; 
however, the DHS has implemented internal quality assurance procedures 
to ensure that data used in the redress process is as thorough, 
accurate, and current as possible. In addition, in the collection of 
information for law enforcement, counterterrorism, and intelligence 
purposes, it is impossible to determine in advance what information is 
accurate, relevant, timely, and complete. With the passage of time, 
seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light. The 
restrictions imposed by (e)(5) would limit the ability of those 
agencies' trained investigators and intelligence analysts to exercise 
their judgment in conducting investigations and impede the development 
of intelligence necessary for effective law enforcement and 
counterterrorism efforts. The DHS has, however, implemented internal 
quality assurance procedures to ensure that the data used in the redress 
process is as thorough, accurate, and current as possible.
    (i) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on DHS and other agencies and could 
alert the subjects of counterterrorism, law enforcement, or intelligence 
investigations to the fact of those investigations when not previously 
known.
    (j) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of subsection 
(d).
    (k) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.
    4. The Department of Homeland Security Automated Biometric 
Identification System (IDENT) consists of electronic and paper records 
and will be used by DHS and its components. IDENT is the primary 
repository of biometric information held by DHS in connection with its 
several and varied missions and functions, including, but not limited 
to: The enforcement of civil and criminal laws (including the 
immigration law); investigations, inquiries, and proceedings thereunder; 
and national security and intelligence activities. IDENT is a 
centralized and dynamic DHS-wide biometric database that also contains 
limited biographic and encounter history information needed to place the 
biometric information in proper context. The information is collected 
by, on behalf of, in support of, or in cooperation with DHS and its 
components and may contain personally identifiable information collected 
by other Federal, State, local, tribal, foreign, or international 
government agencies.
    Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act, 
portions of this system

[[Page 36]]

are exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), 
(e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f)(2) through (5); and 
(g). Pursuant to 5 U.S.C. 552a(k)(2), this system is exempt from the 
following provisions of the Privacy Act, subject to the limitations set 
forth in those subsections: 5 U.S.C. 552a (c)(3), (d), (e)(1), 
(e)(4)(G), and (e)(4)(H). Exemptions from these particular subsections 
are justified, on a case-by-case basis to be determined at the time a 
request is made, for the following reasons:
    (a) From subsection (c)(3) and (4) (Accounting for Disclosures) 
because release of the accounting of disclosures could alert the subject 
of an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of the investigation; and reveal 
investigative interest on the part of DHS as well as the recipient 
agency. Disclosure of the accounting would therefore present a serious 
impediment to law enforcement efforts and/or efforts to preserve 
national security. Disclosure of the accounting would also permit the 
individual who is the subject of a record to impede the investigation, 
to tamper with witnesses or evidence, and to avoid detection or 
apprehension, which would undermine the entire investigative process.
    (b) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation, to the existence of the investigation, and reveal 
investigative interest on the part of DHS or another agency. Access to 
the records could permit the individual who is the subject of a record 
to impede the investigation, to tamper with witnesses or evidence, and 
to avoid detection or apprehension. Amendment of the records could 
interfere with ongoing investigations and law enforcement activities and 
would impose an impossible administrative burden by requiring 
investigations to be continuously reinvestigated. In addition, 
permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to homeland 
security.
    (c) From subsection (e)(1) (Relevancy and Necessity of Information) 
because in the course of investigations into potential violations of 
Federal law, the accuracy of information obtained or introduced 
occasionally may be unclear or the information may not be strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of unlawful activity.
    (d) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from the 
subject of an investigation would alert the subject to the nature or 
existence of an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G) and (H) (Agency Requirements), and 
(f)(2 through 5) (Agency Rules) because portions of this system are 
exempt from the individual access provisions of subsection (d) and 
thereby would not require DHS to establish requirements or rules for 
records which are exempted from access.
    (g) From subsection (e)(5) (Collection of Information) because in 
the collection of information for law enforcement purposes it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' ability to obtain, serve, and issue 
subpoenas, warrants, and other law enforcement mechanisms that may be 
filed under seal, and could result in disclosure of investigative 
techniques, procedures, and evidence.
    (i) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.

[71 FR 20523, Apr. 21, 2006, as amended at 72 FR 38749, 38752, July 16, 
2007]



PART 7_CLASSIFIED NATIONAL SECURITY INFORMATION--Table of Contents




Sec.
7.1 Purpose.
7.2 Scope.
7.3 Definitions.

                        Subpart A_Administration

7.10 Authority of the Chief Security Officer, Office of Security.
7.11 Components' responsibilities.
7.12 Violations of classified information requirements.
7.13 Judicial proceedings.

                    Subpart B_Classified Information

7.20 Classification and declassification authority.
7.21 Classification of information, limitations.
7.22 Classification pending review.

[[Page 37]]

7.23 Emergency release of classified information.
7.24 Duration of classification.
7.25 Identification and markings.
7.26 Derivative classification.
7.27 Declassification and downgrading.
7.28 Automatic declassification.
7.29 Documents of permanent historical value.
7.30 Classification challenges.
7.31 Mandatory review for declassification requests.

    Authority: 5 U.S.C. 301; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 
101); E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 13142, 64 
FR 66089, 3 CFR, 1999 Comp., p. 236; 32 CFR part 2001.

    Source: 70 FR 61213, Oct. 21, 2005, unless otherwise noted.



Sec. 7.1  Purpose.

    The purpose of this part is to ensure that information within the 
Department of Homeland Security (DHS) relating to the national security 
is classified, safeguarded, and declassified pursuant to the provisions 
of Executive Order 12958, as amended, and implementing directives from 
the Information Security Oversight Office (ISOO) of the National 
Archives and Records Administration (NARA).



Sec. 7.2  Scope.

    (a) This part applies to all employees, detailees and non-contractor 
personnel outside the Executive Branch who are granted access to 
classified information by the DHS, in accordance with the standards in 
Executive Order 12958, as amended, and its implementing directives.
    (b) This part does not apply to contractors, grantees and other 
categories of personnel falling under the purview of Executive Order 
12829, National Industrial Security Program, and its implementing 
directives.
    (c) This part is independent of and does not affect any 
classification procedures or requirements of the Atomic Energy Act of 
1954, as amended (42 U.S.C. 2011 et seq).
    (d) This part does not, and is not intended to, create any right to 
judicial review, or any other right or benefit or trust responsibility, 
substantive or procedural, enforceable by a party against the United 
States, its agencies or instrumentalities, its officers or employees, or 
any other person. This part creates limited rights to administrative 
review of decisions. This part does not, and is not intended to, create 
any right to judicial review of administrative action.



Sec. 7.3  Definitions.

    The terms defined or used in Executive Order 12958, as amended, and 
the implementing directives in 32 CFR parts 2001 and 2004, are 
applicable to this part.



                        Subpart A_Administration



Sec. 7.10  Authority of the Chief Security Officer, Office of Security.

    (a) The DHS Chief Security Officer (hereafter ``Chief Security 
Officer'') is designated as the Senior Agency Official as required by 
section 5.4(d) of Executive Order 12958, as amended, and, except as 
specifically provided elsewhere in this part, is authorized to 
administer the DHS Classified National Security Information program 
pursuant to Executive Order 12958, as amended.
    (b) The Chief Security Officer shall, among other actions:
    (1) Oversee and administer the DHS's program established under 
Executive Order 12958, as amended;
    (2) Promulgate implementing regulations;
    (3) Establish and maintain Department-wide security education and 
training programs;
    (4) Establish and maintain an ongoing self-inspection program 
including the periodic review and assessment of the DHS's classified 
product;
    (5) Establish procedures to prevent unnecessary access to classified 
information, including procedures that:
    (i) Require that a need for access to classified information is 
established before initiating administrative procedures to grant access; 
and
    (ii) Ensure that the number of persons granted access to classified 
information is limited to the minimum necessary for operational and 
security requirements and needs;
    (6) Develop special contingency plans for the safeguarding of 
classified information used in or near hostile or potentially hostile 
areas;

[[Page 38]]

    (7) Coordinate with the DHS Chief Human Capital Officer, as 
appropriate to ensure that the performance contract or other system used 
to rate personnel performance includes the management of classified 
information as a critical element or item to be evaluated in the rating 
of:
    (i) Original classification authorities;
    (ii) Security managers or security specialists; and
    (iii) All other personnel whose duties significantly involve the 
creation or handling of classified information;
    (8) Account for the costs associated with implementing this part and 
report the cost to the Director of ISOO;
    (9) Assign in a prompt manner personnel to respond to any request, 
appeal, challenge, complaint, or suggestion concerning Executive Order 
12958, as amended, that pertains to classified information that 
originated in a DHS component that no longer exists and for which there 
is no clear successor in function;
    (10) Report violations, take corrective measures and assess 
appropriate sanctions as warranted, in accordance with Executive Order 
12958, as amended;
    (11) Overseeing DHS participation in special access programs 
authorized under Executive Order 12958, as amended;
    (12) Direct and administer DHS's personnel security program in 
accordance with Executive Order 12968 and other applicable law;
    (13) Direct and administer DHS implementation and compliance with 
the National Industrial Security Program in accordance with Executive 
Order 12829 and other applicable guidance; and
    (14) Perform any other duties as the Secretary may designate.
    (c) The Chief Security Officer shall maintain a current list of all 
officials authorized pursuant to this part to originally classify or 
declassify documents.



Sec. 7.11  Components' responsibilities.

    Each DHS component shall appoint a security officer or security 
liaison to implement this part. the security officer/security liaison 
shall:
    (a) Implement, observe, and enforce security regulations or 
procedures within their component with respect to the classification, 
declassification, safeguarding, handling, and storage of classified 
national security information;
    (b) Report violations of the provisions of this regulation to the 
Chief Security Officer committed by employees of their component, as 
required;
    (c) Ensure that employees of their component acquire adequate 
security education and training, as required by the DHS classified 
information security procedures;
    (d) Continuously review the requirements for personnel access to 
classified information as a part of the continuous need-to-know 
evaluation, and initiate action to administratively withdraw or reduce 
the level of access authorized, as appropriate; and
    (e) Cooperate fully with any request from the Chief Security Officer 
for assistance in the implementation of this part.



Sec. 7.12  Violations of classified information requirements.

    (a) Any person who suspects or has knowledge of a violation of this 
part, including the known or suspected loss or compromise of classified 
information, shall promptly report such violations or possible 
violations, pursuant to requirements set forth in DHS directives.
    (b) DHS employees and detailees may be reprimanded, suspended 
without pay, terminated from classification authority, suspended from or 
denied access to classified information, or subject to other sanctions 
in accordance with applicable law and DHS regulations or directives if 
they:
    (1) Knowingly, willfully, or negligently disclose to unauthorized 
persons information properly classified under Executive Order 12958, as 
amended, or its predecessor orders;
    (2) Knowingly, willfully, or negligently classify or continue the 
classification of information in violation of Executive Order 12958, as 
amended, or its implementing directives; or
    (3) Knowingly, willfully, or negligently violate any other provision 
of

[[Page 39]]

Executive Order 12958, as amended, or DHS implementing directives, or;
    (4) Knowingly, willfully, or negligently grant eligibility for, or 
allow access to, classified information in violation of Executive Order 
12958, or its implementing directives, this part, or DHS implementing 
directives promulgated by the Chief Security Officer.



Sec. 7.13  Judicial proceedings.

    (a) Any DHS official or organization receiving an order or subpoena 
from a Federal or State court, or an administrative subpoena from a 
Federal agency, to produce classified information (see 6 CFR 5.41 
through 5.49), required to submit classified information for official 
DHS litigative purposes, or receiving classified information from 
another organization for production of such in litigation, shall notify 
the Office of the General Counsel, unless the demand for production is 
made by the Office of the General Counsel, and immediately determine 
from the agency originating the classified information whether the 
information can be declassified. If declassification is not possible, 
DHS representatives will take appropriate action to protect such 
information, pursuant to the provisions of this section.
    (b) If a determination is made to produce classified information in 
a judicial proceeding in any manner, the DHS General Counsel attorney, 
in conjunction with the Department of Justice, shall take appropriate 
steps to protect classified information in judicial proceedings and 
retrieve the information when the information is no longer required in 
such judicial proceedings, in accordance with the Department of Justice 
procedures, and in Federal criminal cases, pursuant to the requirements 
of Classified Information Procedures Act (CIPA), Public Law 96-456, 94 
Stat. 2025, (18 U.S.C. App.), and the ``Security Procedures Established 
Pursuant to Public Law 96-456, 94 Stat. 2025, by the Chief Justice of 
the United States for the Protection of Classified Information,'' and 
other applicable authorities.



                    Subpart B_Classified Information



Sec. 7.20  Classification and declassification authority.

    (a) Top Secret original classification authority may only be 
exercised by the Secretary of Homeland Security and by officials to whom 
such authority is delegated in writing by the Secretary. The Chief 
Security Officer, as the Senior Agency Official, is delegated authority 
to originally classify information up to and including Top Secret. No 
official who is delegated Top Secret original classification authority 
by the Secretary may further delegate such authority.
    (b) The Chief Security Officer may delegate Secret and Confidential 
original classification authority to other officials determined to have 
frequent need to exercise such authority. No official who is delegated 
original classification authority by the Secretary or the Chief Security 
Officer may further delegate such authority.
    (c) Officials authorized to classify information at a specified 
level are also authorized to classify information at a lower level. In 
the absence of an official authorized to exercise classification 
authority, the person designated to act in lieu of such official may 
exercise the official's classification authority.



Sec. 7.21  Classification of information, limitations.

    (a) Information may be originally classified only if all of the 
following standards are met:
    (1) An original classification authority is classifying the 
information;
    (2) The information is owned by, produced by or for, or is under the 
control of the United States Government;
    (3) The information falls within one or more of the categories of 
information specified in section 1.4 of Executive Order 12958, as 
amended; and
    (4) The original classification authority determines that the 
unauthorized disclosure of the information reasonably could be expected 
to result in damage to the national security and such official is able 
to identify or describe the damage.
    (b) Information shall be classified as Top Secret, Secret, or 
Confidential in

[[Page 40]]

accordance with and in compliance with the standards and criteria in 
Executive Order 12958, as amended. No other terms shall be used to 
identify United States classified information except as otherwise 
provided by statute.
    (c) Information shall not be classified in order to:
    (1) Conceal inefficiency, violations of law, or administrative 
error;
    (2) Prevent embarrassment to a person, organization, or agency;
    (3) Restrain competition;
    (4) Prevent or delay release of information that does not require 
protection in the interest of national security.
    (d) Information may be reclassified after it has been declassified 
and released to the public under proper authority only in accordance 
with the following conditions:
    (1) The reclassification action is taken under the personal 
authority and with the written approval of the Secretary or Deputy 
Secretary of Homeland Security, based on the determination that the 
reclassification of the information is necessary in the interest of the 
national security;
    (2) The reclassification of the information meets the standards and 
criteria for classification pursuant to Executive Order 12958, as 
amended;
    (3) The information may be reasonably recovered; and
    (4) The reclassification action is reported promptly to the Director 
of ISOO.
    (e) Information that has not previously been disclosed to the public 
under proper authority may be classified or reclassified after DHS has 
received a request for it under the Freedom of Information Act (5 U.S.C. 
552), the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review 
provisions of Executive Order 12958, as amended, section 3.5. When it is 
necessary to classify or reclassify such information, it shall be 
forwarded to the Chief Security Officer and classified or reclassified 
only at the direction of the Secretary or Deputy Secretary of Homeland 
Security.



Sec. 7.22  Classification pending review.

    (a) Whenever persons who do not have original classification 
authority originate or develop information that they believe requires 
immediate classification and safeguarding, and no authorized classifier 
is available, that person shall:
    (1) Safeguard the information in a manner appropriate for the 
classification level they believe it to be;
    (2) Apply the appropriate overall classification markings; and
    (3) Within five working days, securely transmit the information to 
the organization that has appropriate subject matter interest and 
classification authority.
    (b) When it is not clear which component would be the appropriate 
original classifier, the information shall be sent to the Chief Security 
Officer to determine the appropriate organization.
    (c) The organization with classification authority shall decide 
within 30 days whether to classify the information.



Sec. 7.23  Emergency release of classified information.

    (a) The Secretary of Homeland Security has delegated to certain DHS 
employees the authority to disclose classified information to an 
individual or individuals not otherwise routinely eligible for access in 
emergency situations when there is an imminent threat to life or in 
defense of the homeland.
    (b) In exercising this authority, the delegees shall adhere to the 
following conditions:
    (1) Limit the amount of classified information disclosed to a 
minimum to achieve the intended purpose;
    (2) Limit the number of individuals who receive it to only those 
persons with a specific need-to-know;
    (3) Transmit the classified information through approved 
communication channels by the most secure and expeditious method 
possible, or by other means deemed necessary in exigent circumstances;
    (4) Provide instructions about what specific information is 
classified and how it should be safeguarded. Physical custody of 
classified information must remain with an authorized Federal Government 
entity, in all but the most

[[Page 41]]

extraordinary circumstances as determined by the delegated official;
    (5) Provide appropriate briefings to the recipients on their 
responsibilities not to disclose the information and obtain from the 
recipients a signed DHS Emergency Release of Classified Information Non-
disclosure Form. In emergency situations requiring immediate verbal 
release of information, the signed nondisclosure agreement memorializing 
the briefing may be received after the emergency abates;
    (6) Within 72 hours of the disclosure of classified information, or 
the earliest opportunity that the emergency permits, but no later than 7 
days after the release, the disclosing authority must notify the DHS 
Chief Security Officer and the originating agency of the information 
disclosed. A copy of the signed nondisclosure agreements should be 
forwarded with the notification under this paragraph (b)(6), or as soon 
thereafter as practical.
    (7) Release of information pursuant to this authority does not 
constitute declassification of the information.
    (8) Authority to disclose classified information may not be further 
delegated.



Sec. 7.24  Duration of classification.

    (a) At the time of original classification, original classification 
authorities shall apply a date or event in which the information will be 
automatically declassified.
    (b) The original classification authority shall attempt to establish 
a specific date or event not more than 10 years after the date of 
origination in which the information will be automatically declassified. 
If the original classification authority cannot determine an earlier 
specific date or event it shall be marked for automatic declassification 
10 years from the date of origination.
    (c) If the original classification authority determines that the 
sensitivity of the information requires classification beyond 10 years, 
it may be marked for automatic declassification for up to 25 years from 
the date of original classification decision.
    (d) Original classification authorities do not have the authority to 
classify or retain the classification of information beyond 25 years 
from the date of origination. The only exception to this rule is when 
disclosure of the information could be expected to reveal the identity 
of a confidential human source or human intelligence source. In this 
instance, the information may be marked for declassification as ``25X1-
Human,'' indicating that the information is exempt from the ``25 Year 
Rule'' for automatic declassification. This marking is not authorized 
for use when the information pertains to non-human intelligence sources 
or intelligence methods. In all other instances, classification beyond 
25 years shall only be authorized in accordance with Sec. 7.28 of this 
part and Executive Order 12958, as amended.



Sec. 7.25  Identification and markings.

    (a) Classified information must be marked pursuant to the standards 
set forth in section 1.6 of Executive Order 12958, as amended; 32 CFR 
part 2001, subpart B; and internal DHS guidance provided by the Chief 
Security Officer.
    (b) Foreign government information shall retain its original 
classification markings or be assigned a U.S. classification that 
provides a degree of protection at least equivalent to that required by 
the entity that furnished the information.
    (c) Information assigned a level of classification under predecessor 
Executive Orders shall remain classified at that level of 
classification, except as otherwise provided herein, i.e., the 
information is reclassified or declassified.



Sec. 7.26  Derivative classification.

    (a) Derivative classification is defined as the incorporating, 
paraphrasing, restating, or generating in a new form information that is 
already classified, and marking the newly developed material consistent 
with the classification markings that apply to the source information. 
Information is also derivatively classified when classification is based 
on instructions provided in a security classification guide.
    (b) Persons need not possess original classification authority to 
derivatively classify information based on source documents or 
classification guides.

[[Page 42]]

    (c) Persons who apply derivative classification markings shall 
observe original classification decisions and carry forward to any newly 
created documents the pertinent classification markings.
    (d) Information classified derivatively from other classified 
information shall be classified and marked in accordance with the 
standards set forth in sections 2.1 and 2.2 of Executive Order 12958, as 
amended, 32 CFR 2001.22, and internal DHS guidance provided by the Chief 
Security Officer.



Sec. 7.27  Declassification and downgrading.

    (a) Classified information shall be declassified as soon as it no 
longer meets the standards for classification. Declassification and 
downgrading is governed by Part 3 of Executive Order 12958, as amended, 
implementing ISOO directives at 32 CFR part 2001, subpart C, and 
applicable internal DHS direction provided by the Chief Security 
Officer.
    (b) Information shall 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, or a 
supervisory official of either, or by officials delegated such authority 
in writing by the Secretary of Homeland Security or the Chief Security 
Officer.
    (c) It is presumed that information that continues to meet the 
classification requirements under Executive Order 12958, as amended, 
requires continued protection. In some exceptional cases during 
declassification reviews, the need to protect classified information may 
be outweighed by the public interest in disclosure of the information, 
and in these cases the information should be declassified. If it appears 
that the public interest in disclosure of the information may outweigh 
the need to protect the information, the declassification reviewing 
official shall refer the information with a recommendation for decision 
to the Chief Security Officer. The Chief Security Officer shall review 
the information and make a recommendation to the Secretary on whether 
the public interest in disclosure outweighs the damage to national 
security that might reasonably be expected from disclosure. The 
Secretary shall decide whether to declassify the information. The 
decision of the Secretary shall be final. This provision does not 
amplify or modify the substantive criteria or procedures for 
classification or create any substantive or procedural rights subject to 
judicial review.
    (d) Each component shall develop schedules for declassification of 
records in the National Archives.



Sec. 7.28  Automatic declassification.

    (a) Subject to paragraph (b) of this section, all classified 
information contained in records that are more than 25 years old that 
have been determined to have permanent historical value shall be 
declassified automatically on December 31, 2006. Subsequently, all 
classified information in such records shall be automatically 
declassified not later than 25 years after the date of its original 
classification with the exception of specific information exempt from 
automatic declassification pursuant to section 3.3 (b) through (d) of 
Executive Order 12958, as amended.
    (b) At least 180 days before information is declassified 
automatically under this section, the Chief Security Officer shall 
notify the ISOO of any specific information that DHS proposes to exempt 
from automatic declassification. The notification shall include:
    (1) A description of the information;
    (2) An explanation of why the information is exempt from automatic 
declassification and must remain classified for a longer period of time; 
and
    (3) A specific date or event for declassification of the information 
whenever the information exempted does not identify a confidential human 
source or human intelligence source.
    (c) Proposed exemptions under this section shall be forwarded to the 
Chief Security Officer. When the Chief Security Officer determines the 
exemption request is consistent with this section, he or she will submit 
the exemption request to the Executive Secretary of the Interagency 
Security Classification Appeals Panel (ISCAP) for approval.
    (d) Declassification guides that narrowly and precisely define 
exempted

[[Page 43]]

information may be used to exempt information from automatic 
declassification. Declassification guides must include the exemption 
notification information detailed in paragraph (b) of this section, and 
be approved pursuant to paragraph (c) of this section.



Sec. 7.29  Documents of permanent historical value.

    The original classification authority, to the greatest extent 
possible, shall declassify classified information contained in records 
determined to have permanent historical value under 44 U.S.C. 2107 
before they are accessioned into the National Archives.



Sec. 7.30  Classification challenges.

    (a) Authorized holders of information classified by DHS who, in good 
faith, believe that specific information is improperly or unnecessarily 
classified are encouraged and expected to challenge the classification 
status of that information pursuant to section 1.8 of Executive Order 
12958, as amended. Authorized holders may submit classification 
challenges in writing to the original classification authority with 
jurisdiction over the information in question. If an original 
classification authority cannot be determined, the challenge shall be 
submitted to the Chief Security Officer. The challenge need not be more 
specific than a question as to why the information is or is not 
classified, or is classified at a certain level.
    (b) If anonymity of the challenger is requested, the challenger may 
submit the challenge to the Office of Security. The Office of Security 
will act as an agent for the challenger and the identity of the 
challenger will be redacted.
    (c) The original classification authority shall promptly, and in no 
case later than 60 days, provide a written response to the submitter. 
The original classification authority may classify or declassify the 
information subject to the challenge and, if applicable, state specific 
reasons why the original classification determination was proper. If the 
original classification authority is not able to respond within 60 days, 
he or she shall inform the individual who filed the challenge in writing 
of that fact, and the anticipated determination date.
    (d) The individual challenging the classification will be notified 
of the determination made by the original classification authority and 
that the individual may appeal this determination to the Chief Security 
Officer. Upon receipt of such appeals, the Chief Security Officer shall 
convene a DHS Classification Appeals Panel (DHS/CAP). The DHS/CAP shall, 
at a minimum, consist of representatives from the Office of Security, 
the Office of General Counsel, and a representative from the component 
having jurisdiction over the information. Additional members may be 
added as determined by the DHS Chief Security Officer. The DHS/CAP shall 
be chaired by the Chief Security Officer.
    (e) If the requester files an appeal through the DHS/CAP, and the 
appeal is denied, the requester shall be notified of the right to appeal 
the denial to the Interagency Security Classification Appeals Panel 
(ISCAP) pursuant to section 5.3 of Executive Order 12958, as amended, 
and the rules issued by the ISCAP pursuant to section 5.3 of Executive 
Order 12958, as amended.
    (f) Any individual who challenges a classification and believes that 
any action has been taken against him or her in retaliation or 
retribution because of that challenge shall report the facts to the 
Office of the Inspector General or other appropriate office.
    (g) Nothing in this section shall prohibit a person from informally 
challenging the classified status of information directly to the 
original classification authority.
    (h) Requests for review of classified material for declassification 
by persons other than authorized holders are governed by 6 CFR 7.31.



Sec. 7.31  Mandatory review for declassification requests.

    (a) Any person may request that classified information be reviewed 
for declassification pursuant to the mandatory declassification review 
provisions of section 3.6 of Executive Order 12958, as amended. Such 
requests shall be sent to the Departmental Disclosure Officer, Privacy 
Office, 245 Murray Lane, SW., Building 410, Washington, DC 20528.

[[Page 44]]

    (b) The request must sufficiently describe the document or material 
with enough specificity to allow it to be located by the component with 
a reasonable amount of effort. When the description of the information 
in the request is deficient, the component shall solicit as much 
additional identifying information as possible from the requester. If 
the information or material requested cannot be obtained with a 
reasonable amount of effort, the component shall provide the requester, 
through the DHS Disclosure Officer, with written notification of the 
reasons why no action will be taken and of the requester's right to 
appeal.
    (c) Requests for review of information that has been subjected to a 
declassification review request within the preceding two years shall not 
be processed. The DHS Disclosure Officer will notify the requester of 
such denial.
    (d) Requests for information exempted from search or review under 
sections 701, 702, or 703 of the National Security Act of 1947, as added 
and amended (50 U.S.C. 431 through 433), or other provisions of law, 
shall not be processed. The DHS Disclosure Officer will notify the 
requester of such denial.
    (e) If documents or material being reviewed for declassification 
under this section contain information that has been originally 
classified by another government agency, the reviewing authority shall 
notify the DHS Disclosure Officer. Unless the association of that 
organization with the requested information is itself classified, the 
DHS Disclosure Officer will then notify the requester of the referral.
    (f) A DHS component may refuse to confirm or deny the existence, or 
non-existence, of requested information when its existence or non-
existence, is properly classified.
    (g) DHS components shall make a final determination on the request 
as soon as practicable but within one year from receipt. When 
information cannot be declassified in its entirety, components shall 
make reasonable efforts to redact those portions that still meet the 
standards for classification and release those declassified portions of 
the requested information that constitute a coherent segment.
    (h) DHS components shall notify the DHS Disclosure Officer of the 
determination made in the processing of a mandatory review request. Such 
notification shall include the number of pages declassified in full; the 
number of pages declassified in part; and the number of pages where 
declassification was denied.
    (i) The DHS Disclosure Officer shall maintain a record of all 
mandatory review actions for reporting in accordance with applicable 
Federal requirements.
    (j) The mandatory declassification review system shall provide for 
administrative appeal in cases where the review results in the 
information remaining classified. The requester shall be notified of the 
results of the review and of the right to appeal the denial of 
declassification. To address such appeals, the DHS Disclosure Office 
shall convene a DHS Classification Appeals Panel (DHS/CAP). The DHS/CAP 
shall, at a minimum, consist of representatives from the Disclosure 
Office, the Office of Security, the Office of General Counsel, and a 
representative from the component having jurisdiction over the 
information. Additional members may be added as determined by the DHS 
Disclosure Officer. The DHS/CAP shall be chaired by the DHS Disclosure 
Officer.
    (k) If the requester files an appeal through the DHS/CAP, and the 
appeal is denied, the requester shall be notified of the right to appeal 
the denial to the ISCAP pursuant to section 5.3 of Executive Order 
12958, as amended, and the rules issued by the ISCAP pursuant to section 
5.3 of Executive Order 12958, as amended.



PART 9_RESTRICTIONS UPON LOBBYING--Table of Contents




                            Subpart A_General

Sec.
9.1 Conditions on use of funds.
9.2 Definitions.
9.3 Certification and disclosure.

                  Subpart B_Activities by Own Employees

9.11 Agency and legislative liaison.
9.15 Professional and technical services.
9.20 Reporting.

[[Page 45]]

            Subpart C_Activities by Other than Own Employees

9.23 Professional and technical services.

                   Subpart D_Penalties and Enforcement

9.31 Penalties.
9.32 Penalty procedures.
9.33 Enforcement.

                          Subpart E_Exemptions

9.41 Secretary of Defense.

                        Subpart F_Agency Reports

9.51 Semi-annual compilation.
9.52 Inspector General report.

Appendix A to Part 9--Certification Regarding Lobbying
Appendix B to Part 9--Disclosure Form To Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121, 103 Stat. 750 (31 U.S.C. 
1352); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5 U.S.C. 
301.

    Source: 68 FR 10912, Mar. 6, 2003, unless otherwise noted.



                            Subpart A_General



Sec. 9.1  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative agreement 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 to this part, 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 to this part, if such 
person has made or has agreed to make any payment using non appropriated 
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 to this part, 
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 to this 
part, 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. 9.2  Definitions.

    For purposes of this part:
    (a) Agency has the same meaning as provided in 5 U.S.C. 552(f), and 
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) The term covered Federal action:
    (1) Means any of the following Federal actions:
    (i) The awarding of any Federal contract;
    (ii) The making of any Federal grant;
    (iii) The making of any Federal loan;
    (iv) The entering into of any cooperative agreement; and
    (v) The extension, continuation, renewal, amendment, or modification 
of

[[Page 46]]

any Federal contract, grant, loan, or cooperative agreement.
    (2) 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) (48 CFR Chapter 1) 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 that 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 definition 
of Indian tribe 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 or 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 appointed to a position in the Government pursuant 
to title 5 of the United States Code, including any position by 
temporary appointment or any appointment as an acting official as 
outlined in section 1511(c) of the Homeland Security Act;
    (2) A member of the uniformed services as defined in 37 U.S.C. 
101(3);
    (3) A special Government employee as defined in section 18 U.S.C. 
202; and
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act at 5 U.S.C. App. 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 professional 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 sub grantees 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 47]]

    (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. 9.3  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)(1) Each person shall file a certification, and a disclosure 
form, if required, upon receipt by such person of:
    (i) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (ii) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000.
    (2) A filing described in paragraph (b)(1) of this section shall not 
be required if such person previously filed a certification, and a 
disclosure form 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;
    (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)(1) The requirements of paragraph (d)(2) of this section apply to 
any person who requests or receives from a person referred to in 
paragraph (a) or (b) of this section:
    (i) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (ii) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (iii) A contract or subcontract exceeding $100,000 at any tier under 
a Federal loan exceeding $150,000; or
    (iv) A contract or subcontract exceeding $100,000 at any tier under 
a Federal cooperative agreement.
    (2) A person described in paragraph (d)(1) of this section shall 
file a certification, and a disclosure form, if required, to the next 
tier.
    (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

[[Page 48]]

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 31 U.S.C. 1352.
    (g) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C of this part.



                  Subpart B_Activities by Own Employees



Sec. 9.11  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
9.1(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.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 9.15  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
9.1(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

[[Page 49]]

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. 9.20  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. 9.23  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
9.1(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. 9.3(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 
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.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal action include those required by law or 
regulation, or reasonably expected to be required by

[[Page 50]]

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. 9.31  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 this part) to be filed or amended if required herein, 
shall be subject to a civil penalty of not less than $10,000 and not 
more than $100,000 for each such failure.
    (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. 9.32  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. 3803 
(except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar 
as these provisions are not inconsistent with the requirements in this 
part.



Sec. 9.33  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. 9.41  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. 9.51  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see Appendix B to this part) 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.

[[Page 51]]

    (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) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 9.52  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 an evaluation of the compliance of that agency 
with, and the effectiveness of, the requirements in this part. 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.



Sec. Appendix A to Part 9--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

 I. 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 sub awards 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 31 U.S.C. 1352. Any 
person who fails to file the required certification shall be subject to 
a civil

[[Page 52]]

penalty of not less than $10,000 and not more than $100,000 for each 
such failure.

II. 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 31 U.S.C. 1352. 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 53]]



Sec. Appendix B to Part 9--Disclosure Form To Report Lobbying

[GRAPHIC] [TIFF OMITTED] TR06MR03.021

[[Page 54]]

[GRAPHIC] [TIFF OMITTED] TR06MR03.022

[[Page 55]]


[GRAPHIC] [TIFF OMITTED] TR06MR03.023



PART 11_CLAIMS--Table of Contents




                        Subpart A_Debt Collection

Sec.
11.1 General application.
11.2 Definitions.
11.3 Demand for payment.
11.4 Collection by administrative offset.
11.5 Administrative wage garnishment.
11.6 Reporting debts.
11.7 Private collection agencies.
11.8 Suspension or revocation of eligibility for loans and loan 
          guarantees, licenses, permits, or privileges.
11.9 Collection in installments.
11.10 Interest, penalty charges, and administrative costs.
11.11 Compromise.
11.12 Suspending or terminating collection activity.
11.13 Referrals to the Department of Justice.
11.14 Receipt of offset requests by other Federal agencies.
11.15 Applying the debt against DHS payments.

    Authority: 5 U.S.C. 301, 5514; 26 U.S.C. 6402, 31 U.S.C. 3701, 3711, 
3716, 3717, 3718, 3720A, 3720B, 3720D; Pub. L. 107-296, 116 Stat. 2135 
(6 U.S.C. 1 et seq.).

[[Page 56]]


    Source: 72 FR 4190, Jan. 30, 2007, unless otherwise noted.



Sec. 11.1  General application.

    (a) Application of Debt Collection Standards. The provisions of 31 
CFR parts 285, 900-904, as amended by the Secretary of the Treasury and 
the Attorney General, are applicable to debts and debt procedures within 
the jurisdiction of the Department of Homeland Security.
    (b) Authority. The Chief Financial Officer of the Department of 
Homeland Security is delegated authority to administer this subpart and 
to redelegate authority under this subpart.
    (c) Application to DHS. This subpart provides procedures for the 
collection of DHS debts, and for collection of other debts owed to the 
United States when a request for offset of a DHS payment is received by 
the DHS from another federal agency. This subpart applies to all of DHS, 
including all of its components. It applies to the DHS when collecting a 
DHS debt, to persons who owe DHS debts, and to Federal agencies 
requesting offset of a payment issued by the DHS as a payment agency 
(including salary payments to DHS employees).
    (d) Exclusions. This subpart does not apply to debt arising from 
taxation under the Internal Revenue Act of 1986, as amended, or to any 
debt excepted from the FCCS, 31 CFR parts 900 through 904.
    (e) Non-exclusive procedure or remedy. Nothing in this subpart 
precludes collection or disposition of any debt under statutes and 
regulations other than those described in this subpart. To the extent 
that the provisions of laws or other regulations apply, including the 
remission or mitigation of fines, penalties, forfeitures and debts 
arising under the tariff laws of the United States, DHS components are 
authorized to collect debts under those laws and regulations. DHS 
components and other Federal agencies may simultaneously use multiple 
collection remedies to collect a debt, except as prohibited by law.
    (f) Additional policies and procedures. DHS components may, but are 
not required to, promulgate additional policies and procedures 
consistent with this subpart and other applicable Federal law, policies, 
and procedures.
    (g) Duplication not required. Nothing in this subpart requires DHS 
to duplicate notices or administrative proceedings required by contract, 
this subpart, or other laws or regulations.
    (h) No private rights created. This subpart does not create any 
right or benefit, substantive or procedural, enforceable at law or in 
equity by a party against the United States, its agencies, its officers, 
or any other person, nor shall the failure of any DHS component to 
comply with any of the provisions of this subpart or 31 CFR parts 285, 
900-904 be a defense to the collection of any debt or enforcement of any 
other law.



Sec. 11.2  Definitions.

    In addition to the definitions provided in 31 CFR parts 285, 900-
904, as used in this subpart:
    (a) Department of Homeland Security or DHS means the United States 
Department of Homeland Security and includes the Secretary and any DHS 
entity which reports directly or indirectly to the Secretary.
    (b) DHS debt means a debt owed to DHS by a person.
    (c) Secretary means the Secretary of Homeland Security.



Sec. 11.3  Demand for payment.

    (a) Notice requirements. Generally, before DHS starts the collection 
actions described in this subpart, DHS sends a written notice to the 
debtor under 31 CFR 901.2. The notice provided under this section 
includes notice of any and all actions DHS may take to offset the debt, 
including any notices required under 31 CFR parts 285, 900-904.
    (b) Exceptions to notice requirements. DHS may omit from any notice 
to a debtor any provision that is not legally required given the 
collection remedies to be applied to a particular debt.



Sec. 11.4  Collection by administrative offset.

    (a) General Provisions for Offset. DHS will collect debts by 
administrative offset pursuant to 31 CFR parts 900-904.
    (b) Centralized Offset through the Treasury Offset Program. DHS 
adopts the provisions of 31 CFR 901.3.

[[Page 57]]

    (c) Non-centralized Offset for DHS Debts. When centralized offset is 
not available or appropriate, DHS may collect delinquent DHS debts 
through non-centralized offset. In these cases, DHS may offset a payment 
internally or make a request directly to a Federal payment agency to 
offset a payment owed to the debtor. Before requesting a payment 
authorizing agency to conduct a non-centralized administrative offset, 
DHS will provide the debtor with the due process set forth in 31 CFR 
901.3(b)(4) and the notice requirements of 31 CFR 901.2 (unless the due 
process and notice requirements are not required under that part). DHS 
will provide the payment authorizing agency written certification that 
the debtor owes the past due, legally enforceable delinquent debt in the 
amount stated, and that DHS has fully complied with its regulations 
concerning administrative offset.
    (d) Hearing Procedures for Federal Employees--(1) Request for a 
hearing. A Federal employee who has received a notice that his or her 
DHS debt will be collected by means of salary offset may request a 
hearing concerning the existence or amount of the debt. The Federal 
employee also may request a hearing concerning the amount proposed to be 
deducted from the employee's pay each pay period. The employee must send 
any request for hearing, in writing, to the office designated in the 
notice described in section 11.4(c). The request must be received by the 
designated office on or before the 15th calendar day following the 
employee's receipt of the notice. The employee must sign the request and 
specify whether an oral or paper hearing is requested. If an oral 
hearing is requested, the employee must explain why the matter cannot be 
resolved by review of the documentary evidence alone. All travel 
expenses incurred by the Federal employee in connection with an in-
person hearing will be borne by the employee.
    (2) Failure to submit timely request for hearing. If the employee 
fails to submit a request for hearing within the time period described 
in paragraph (d)(1) of this section, the employee will have waived the 
right to a hearing, and salary offset may be initiated. However, DHS 
should accept a late request for hearing if the employee can show that 
the late request was the result of circumstances beyond the employee's 
control or because of a failure to receive actual notice of the filing 
deadline.
    (3) Hearing official. DHS must obtain the services of a hearing 
official who is not under the supervision or control of the Secretary. 
The DHS Chief Financial Officer will coordinate DHS efforts to obtain 
the services of a hearing official.
    (4) Notice of hearing. After the employee requests a hearing, the 
designated hearing official informs the employee of the form of the 
hearing to be provided. For oral hearings, the notice sets forth the 
date, time and location of the hearing. For paper hearings, the notice 
provides the employee the date by which he or she should submit written 
arguments to the designated hearing official. The hearing official gives 
the employee reasonable time to submit documentation in support of the 
employee's position. The hearing official schedules a new hearing date 
if requested by both parties. The hearing official gives both parties 
reasonable notice of the time and place of a rescheduled hearing.
    (5) Oral hearing. The hearing official conducts an oral hearing if 
he or she determines the matter cannot be resolved by review of 
documentary evidence alone (for example, when an issue of credibility or 
veracity is involved). The hearing need not take the form of an 
evidentiary hearing, but may be conducted in a manner determined by the 
hearing official, including but not limited to:
    (i) Informal conferences with the hearing official, in which the 
employee and agency representative will be given full opportunity to 
present evidence, witnesses and argument;
    (ii) Informal meetings with an interview of the employee by the 
hearing official; or
    (iii) Formal written submissions, with an opportunity for oral 
presentation.
    (6) Paper hearing. If the hearing official determines an oral 
hearing is not necessary, he or she makes the determination based upon a 
review of the available written record, including any

[[Page 58]]

documentation submitted by the employee in support of his or her 
position.
    (7) Failure to appear or submit documentary evidence. In the absence 
of good cause shown (for example, excused illness), if the employee 
fails to appear at an oral hearing or fails to submit documentary 
evidence as required for a paper hearing, the employee waives the right 
to a hearing, and salary offset may be initiated. Further, the employee 
is deemed to admit the existence and amount of the debt as described in 
the notice of intent to offset. If a DHS representative does not appear 
at an oral hearing, the hearing official shall proceed with the hearing 
as scheduled, and make his or her determination based upon the oral 
testimony presented and the documentary evidence submitted by both 
parties.
    (8) Burden of proof. DHS has the initial burden to prove the 
existence and amount of the debt. Thereafter, if the employee disputes 
the existence or amount of the debt, the employee must prove by a 
preponderance of the evidence that no debt exists or that the amount of 
the debt is incorrect. In addition, the employee may present evidence 
that the proposed terms of the repayment schedule are unlawful, would 
cause a financial hardship to the employee, or that collection of the 
debt may not be pursued due to operation of law.
    (9) Record. The hearing official maintains a summary record of any 
hearing provided by this subpart. Witnesses testify under oath or 
affirmation in oral hearings.
    (10) Date of decision. The hearing official issues a written opinion 
stating his or her decision, based upon documentary evidence and 
information developed at the hearing, as soon as practicable after the 
hearing but not later than 60 days after the date on which the request 
for hearing was received by DHS. If the employee requests a delay in the 
proceedings, the deadline for the decision may be postponed by the 
number of days by which the hearing was postponed. When a decision is 
not timely rendered, DHS waives penalties applied to the debt for the 
period beginning with the date the decision is due and ending on the 
date the decision is issued.
    (11) Content of decision. The written decision includes:
    (i) A statement of the facts presented to support the origin, 
nature, and amount of the debt;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, if applicable.
    (12) Final agency action. The hearing official's decision is final.
    (f) Waiver not precluded. Nothing in this subpart precludes an 
employee 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 authority.
    (g) Salary offset process--(1) Determination of disposable pay. The 
Chief Financial Officer consults with the appropriate DHS payroll office 
to determine the amount of a DHS employee's disposable pay and will 
implement salary offset when requested to do so by a DHS component or 
another federal agency. If the debtor is not employed by DHS, the agency 
employing the debtor will determine the amount of the employee's 
disposable pay and implement salary offset upon request.
    (2) Amount of salary offset. The amount to be offset from each 
salary payment will be up to 15 percent of a debtor's disposable pay, as 
follows:
    (i) If the amount of the debt is equal to or less than 15 percent of 
the disposable pay, such debt generally is collected in one lump sum 
payment; or
    (ii) Installment deductions are made over a period of no greater 
than the anticipated period of employment. An installment deduction will 
not exceed 15 percent of the disposable pay from which the deduction is 
made unless the employee has agreed in writing to the deduction of a 
greater amount or the creditor agency has determined that smaller 
deductions are appropriate based on the employee's ability to pay.
    (3) Final salary payment. After the employee has separated either 
voluntarily or involuntarily from the payment agency, the payment agency 
may make a lump sum deduction exceeding 15 percent of disposable pay 
from any final salary or other payments pursuant to 31 U.S.C. 3716 in 
order to satisfy a debt.

[[Page 59]]

    (h) Payment agency's responsibilities. (1) As required by 5 CFR 
550.1109, if the employee separates from the payment agency from which 
DHS requested salary offset, the payment agency must certify the total 
amount of its collection and notify DHS and the employee of the amounts 
collected. If the payment agency is aware that the employee is entitled 
to payments from the Civil Service Retirement Fund and Disability Fund, 
the Federal Employee Retirement System, or other similar payments, it 
must provide written notification to the agency responsible for making 
such retirement payments that the debtor owes a debt, the amount of the 
debt, and that DHS has complied with the provisions of this section. DHS 
must submit a properly certified claim to the new payment agency before 
the collection can be made.
    (2) If the employee is already separated from employment and all 
payments due from his or her former payment agency have been made, DHS 
may request that money due and payable to the employee from the Civil 
Service Retirement Fund and Disability Fund, the Federal Employee 
Retirement System, or other similar funds, is administratively offset to 
collect the debt. Generally, DHS will collect such monies through the 
Treasury Offset Program as described in this section.
    (3) When an employee transfers to another agency, DHS should resume 
collection with the employee's new payment agency in order to continue 
salary offset.



Sec. 11.5  Administrative wage garnishment.

    DHS may collect debts from a debtor's wages by means of 
administrative wage garnishment in accordance with the requirements of 
31 U.S.C. 3720D under the procedures established in 31 CFR 285.11.



Sec. 11.6  Reporting debts.

    DHS will report delinquent debts to credit bureaus and other 
automated databases in accordance with 31 U.S.C. 3711(e), 31 CFR 901.4, 
and the Office of Management and Budget Circular A-129, ``Policies for 
Federal Credit Programs and Non-tax Receivables,'' which may be found at 
http://www.fms.treas.gov/debt. At least sixty (60) days prior to 
reporting a delinquent debt to a consumer reporting agency, DHS sends a 
notice to the debtor in accordance with 6 CFR 11.3. DHS may authorize 
the Treasury Department's Financial Management Service to report to 
credit bureaus those delinquent debts that have been transferred to the 
Financial Management Service for administrative offset.



Sec. 11.7  Private collection agencies.

    DHS will transfer delinquent DHS debts to the Treasury Department's 
Financial Management Service to obtain debt collection services provided 
by private collection agencies.



Sec. 11.8  Suspension or revocation of eligibility for loans and loan guarantees, licenses, permits, or privileges.

    The authority to extend financial assistance in the form of a loan, 
loan guarantee, or loan insurance to any person delinquent on a nontax 
debt owed to DHS is delegated to the Chief Financial Officer.



Sec. 11.9  Collection in installments.

    DHS may accept payment of a DHS debt in regular installments, in 
accordance with the provisions of 31 CFR 901.8 and policies and 
procedures adopted by the Chief Financial Officer (CFO). The CFO will 
consult the Office of General Counsel regarding a legally enforceable 
written agreement from the debtor.



Sec. 11.10  Interest, penalty charges, and administrative costs.

    (a) Assessment and notice. DHS shall assess interest, penalties and 
administrative costs on DHS debts in accordance with 31 U.S.C. 3717 and 
31 CFR 901.9. Administrative costs of processing and handling a 
delinquent debt shall be determined by DHS.
    (b) Waiver of interest, penalties, and administrative costs. DHS may 
waive interest, penalties, and administrative costs, or any portion 
thereof, under the criteria in the FCCS, or when it determines the 
collection of these charges would be against equity and good conscience 
or not in the best interests of the United States. The authority to

[[Page 60]]

waive interest, penalties and administrative costs is delegated to the 
Chief Financial Officer. The DHS Chief Financial Officer shall issue 
written guidance on maintaining records of waivers.
    (c) Accrual during suspension of debt collection. Interest and 
related charges will not accrue during the period a hearing official 
does not render a timely decision.



Sec. 11.11  Compromise.

    DHS may compromise a debt in accordance with the provisions of 31 
CFR part 902. The Chief Financial Officer is authorized to compromise 
debts owed to DHS. No debt over $10,000 may be compromised without the 
concurrence of the Office of the General Counsel.



Sec. 11.12  Suspending or terminating collection activity.

    DHS will suspend or terminate collection activity, or discharge 
indebtedness, in accordance with 31 CFR part 903. The Chief Financial 
Officer is delegated authority to suspend or terminate collection 
activity, or to discharge indebtedness regarding debts owed to DHS, but 
for any such action involving a debt over $10,000, the Chief Financial 
Officer must obtain the concurrence of the Office of the General 
Counsel. The Chief Financial Officer is authorized to act on behalf of 
the Secretary in selling a debt, and in determining whether or not it is 
in the best interests of the United States to do so.



Sec. 11.13  Referrals to the Department of Justice.

    Referrals of debts to the Department of Justice for collection will 
be by the General Counsel.



Sec. 11.14  Receipt of offset requests by other Federal agencies.

    Other Federal agencies send non-centralized offset requests to DHS 
at: U.S. Department of Homeland Security, Attn: Chief Financial Officer, 
Mail Stop 0200, Washington, DC 20528-0200. Those agencies must comply 
with 31 CFR 901.3 when forwarding the requests to DHS. DHS does not 
review the merits of the creditor agency's determination with regard to 
the existence or the amount of the debt. When two or more agencies are 
seeking offsets from payments made to the same person, or when two or 
more debts are owed to a single creditor agency, DHS may determine the 
order in which the debts will be collected or whether one or more debts 
should be collected by offset simultaneously. For the purposes of this 
section, debts owed to DHS generally take precedence over debts owed to 
other agencies, but DHS may pay a debt to another agency prior to 
collecting for DHS. DHS determines the order of debt collection based 
upon the best interests of the United States.



Sec. 11.15  Applying the debt against DHS payments.

    (a) Notice to the Debtor. DHS sends a written notice to the debtor 
indicating a certified debt claim was received from the creditor agency, 
the amount of the debt claimed to be owed by the creditor agency, the 
estimated date the offset will begin (if more than one payment), and the 
amount of the deduction(s). For employees, DHS generally begins 
deductions from pay at the next officially established pay interval. 
Deductions continue until DHS knows the debt is paid in full or until 
otherwise instructed by the creditor agency. Alternatively, the amount 
offset may be an amount agreed upon, in writing, by the debtor and the 
creditor agency. If a DHS employee retires or resigns, or if his or her 
employment ends before collection of the debt is complete, DHS continues 
to offset, under 31 U.S.C. 3716, up to 100% of an employee's subsequent 
payments until the debt is paid or otherwise resolved. Such payments 
include a debtor's final salary payment, lump-sum leave payment, and 
other payments payable to the debtor by DHS. See 31 U.S.C. 3716 and 5 
CFR 550.1104(l) and 550.1104(m). If the employee is separated from DHS 
before the debt is paid in full, DHS will certify to the creditor agency 
the total amount of its collection. If DHS is aware the employee is 
entitled to payments from the Civil Service Retirement and Disability 
Fund, Federal Employee Retirement System, or other similar payments, DHS 
provides written notice to the agency making such retirement payments 
that the debtor owes a debt (including the amount) and

[[Page 61]]

that the provisions of 5 CFR 550.1109 have been fully complied with. The 
creditor agency is responsible for submitting a certified claim to the 
agency responsible for making such payments before collection may begin. 
Generally, creditor agencies will collect such monies through the 
Treasury Offset Program as described in section 11.4.
    (b) Notice to the debtor. DHS provides to the debtor a copy of any 
notices sent to the creditor agency under this subpart.
    (c) Transfer of employee debtor to another Federal agency. If an 
employee debtor transfers to another Federal agency before the debt is 
paid in full, DHS notifies the creditor agency and provides it a 
certification of the total amount of its collection on the debt. The 
creditor agency is responsible for submitting a certified claim to the 
debtor's new employing agency before collection may begin.



PART 13_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents




Sec.
13.1 Basis, purpose, scope and effect.
13.2 Definitions.
13.3 Basis for civil penalties and assessments.
13.4 Investigation.
13.5 Review by the Reviewing Official.
13.6 Prerequisites for issuing a Complaint.
13.7 Complaint.
13.8 Service of Complaint.
13.9 Answer.
13.10 Default upon failure to answer.
13.11 Referral of Complaint and answer to the ALJ.
13.12 Notice of hearing.
13.13 Parties to the hearing.
13.14 Separation of functions.
13.15 Ex parte contacts.
13.16 Disqualification of Reviewing Official or ALJ.
13.17 Rights of parties.
13.18 Authority of the ALJ.
13.19 Prehearing conferences.
13.20 Disclosure of Documents.
13.21 Discovery.
13.22 Exchange of witness lists, Statements, and exhibits.
13.23 Subpoenas for attendance at hearing.
13.24 Protective order.
13.25 Fees.
13.26 Filing, form and service of papers.
13.27 Computation of time.
13.28 Motions.
13.29 Sanctions.
13.30 The hearing and burden of proof.
13.31 Determining the amount of penalties and assessments.
13.32 Location of hearing.
13.33 Witnesses.
13.34 Evidence.
13.35 The record.
13.36 Post-hearing briefs.
13.37 Initial Decision.
13.38 Reconsideration of Initial Decision.
13.39 Appeal to Authority Head.
13.40 Stays ordered by the Department of Justice.
13.41 Stay pending appeal.
13.42 Judicial review.
13.43 Collection of civil penalties and assessments.
13.44 Right to administrative offset.
13.45 Deposit in Treasury of United States.
13.46 Compromise or settlement.
13.47 Limitations.

    Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C., Ch. 1, 
sections 101 et seq.); 5 U.S.C. 301; 31 U.S.C. 3801-3812.

    Source: 70 FR 59211, Oct. 12, 2005, unless otherwise noted.



Sec. 13.1  Basis, purpose, scope and effect.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, 31 U.S.C. 3801-3812. Section 3809 of title 31, United States 
Code, requires each authority to promulgate regulations necessary to 
implement the provisions of the statute.
    (b) Purpose. This part:
    (1) Establishes administrative procedures for imposing civil 
penalties and assessments against Persons who Make, submit, or present, 
or cause to be Made, submitted, or presented, false, fictitious, or 
fraudulent Claims or written Statements to the Authority or to certain 
others; and
    (2) Specifies the hearing and appeal rights of Persons subject to 
allegations of liability for such penalties and assessments.
    (c) Scope. This part applies to all components of the Department of 
Homeland Security.
    (d) Effect. (1) This part applies to program fraud cases initiated 
by any component of the Department of Homeland Security on or after 
October 12, 2005.
    (2) Program fraud cases initiated by any component of the Department 
of Homeland Security before October 12, 2005, but not completed before 
October 12, 2005, will continue to completion under the rules and 
procedures in effect before this part.

[[Page 62]]



Sec. 13.2  Definitions.

    The following definitions have general applicability throughout this 
part:
    (a) ALJ means an Administrative Law Judge in the Authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the Authority pursuant to 5 
U.S.C. 3344. An ALJ will preside at any hearing convened under the 
regulations in this part.
    (b) Authority means the Department of Homeland Security.
    (c) Authority Head means the Deputy Secretary, Department of 
Homeland Security, or another officer designated by the Deputy 
Secretary.
    (d) Benefit means, in the context of a Statement, anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status, or loan guarantee.
    (e) Claim means any request, demand, or submission:
    (1) Made to the Authority for property, services, or money 
(including money representing grants, loans, insurance, or Benefits);
    (2) Made to a recipient of property, services, or money from the 
Authority or to a party to a contract with the Authority:
    (i) For property or services if the United States:
    (A) Provided such property or services;
    (B) Provided any portion of the funds for the purchase of such 
property or services; or
    (C) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (ii) For the payment of money (including money representing grants, 
loans, insurance, or Benefits) if the United States:
    (A) Provided any portion of the money requested or demanded; or
    (B) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to the Authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    (f) Complaint means the administrative Complaint served by the 
Reviewing Official on the Defendant under Sec. 13.7.
    (g) Defendant means any Person alleged in a Complaint under Sec. 
13.7 to be liable for a civil penalty or assessment under Sec. 13.3.
    (h) Government means the Government of the United States.
    (i) Individual means a natural Person.
    (j) Initial Decision means the written decision of the ALJ required 
by Sec. 13.10 or Sec. 13.37, and includes a revised Initial Decision 
issued following a remand or a motion for reconsideration.
    (k) Investigating Official means the Inspector General of the 
Department of Homeland Security or an officer or employee of the Office 
of the Inspector General designated by the Inspector General and 
eligible under 31 U.S.C. 3801(a)(4)(B).
    (l) Knows or Has Reason to Know, means that a Person, with respect 
to a Claim or Statement:
    (1) Has actual knowledge that the Claim or Statement is false, 
fictitious, or fraudulent;
    (2) Acts in deliberate ignorance of the truth or falsity of the 
Claim or Statement; or
    (3) Acts in reckless disregard of the truth or falsity of the Claim 
or Statement.
    (m) Makes includes presents, submits, and causes to be made, 
presented, or submitted. As the context requires, Making or Made will 
likewise include the corresponding forms of such terms.
    (n) Person means any Individual, partnership, corporation, 
association, or private organization, and includes the plural of that 
term.
    (o) Representative means an attorney who is a member in good 
standing of the bar of any State, Territory, or possession of the United 
States, the District of Columbia, or the Commonwealth of Puerto Rico. 
This definition is not intended to foreclose pro se appearances. That 
is, an Individual may appear for himself or herself, and a corporation 
or other entity may appear by an owner, officer, or employee of the 
corporation or entity.
    (p) Reviewing Official means the General Counsel of the Department 
of Homeland Security, or other officer or employee of the Department who 
is designated by the General Counsel and eligible under 31 U.S.C. 
3801(a)(8).

[[Page 63]]

    (q) Statement means any representation, certification, affirmation, 
Document, record, or accounting or bookkeeping entry Made:
    (1) With respect to a Claim or to obtain the approval or payment of 
a Claim (including relating to eligibility to Make a Claim); or
    (2) With respect to (including relating to eligibility for):
    (i) A contract with, or bid or proposal for a contract with the 
Authority, or any State, political subdivision of a State, or other 
party, if the United States Government provides any portion of the money 
or property under such contract or for such grant, loan, or Benefit, or 
if the Government will reimburse such State, political subdivision, or 
party for any portion of the money or property under such contract or 
for such grant, loan, or Benefit; or
    (ii) A grant, loan, or Benefit from, the Authority, or any State, 
political subdivision of a State, or other party, if the United States 
Government provides any portion of the money or property under such 
contract or for such grant, loan, or Benefit, or if the Government will 
reimburse such State, political subdivision, or party for any portion of 
the money or property under such contract or for such grant, loan, or 
Benefit.



Sec. 13.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
a Person will be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,500 for each 
Claim (as adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Public Law 101-140), as amended by the 
Debt Collection Improvement Act of 1996 (Public Law 104-134)) if such 
Person Makes a Claim that such Person Knows or Has Reason to Know:
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written Statement that asserts 
a material fact that is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written Statement that:
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a Statement in which the Person Making such Statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services that 
the Person has not provided as claimed.
    (2) Each voucher, invoice, Claim form, or other Individual request 
or demand for property, services, or money constitutes a separate Claim.
    (3) A Claim will be considered Made to the Authority, recipient, or 
party when such Claim is actually Made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the Authority, recipient, or party.
    (4) Each Claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has Made any payment (including transferred 
property or provided services) on a Claim, a Person subject to a civil 
penalty under paragraph (a)(1) of this section will also be subject to 
an assessment of not more than twice the amount of such Claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment will be in lieu of damages 
sustained by the Government because of such Claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, a Person will be subject, in addition to any other remedy that 
may be prescribed by law, to a civil penalty of not more than $5,500 (as 
adjusted in accordance with the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (Public Law 101-140), as amended by the Debt 
Collection Improvement Act of 1996 (Public Law 104-134)) if such Person 
Makes a written Statement that:
    (i) The Person Knows or Has Reason to Know:
    (A) Asserts a material fact that is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the Person Making the Statement has a duty to include in such 
Statement; and

[[Page 64]]

    (ii) Contains, or is accompanied by, an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
Statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate Statement.
    (3) A Statement will be considered Made to the Authority when such 
Statement is actually Made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the Authority.
    (c) Specific intent not required. No proof of specific intent to 
defraud is required to establish liability under this section.
    (d) More than one Person liable. (1) In any case in which it is 
determined that more than one Person is liable for Making a Claim or 
Statement under this section, each such Person may be held liable for a 
civil penalty under this section.
    (2) In any case in which it is determined that more than one Person 
is liable for Making a Claim under this section on which the Government 
has Made payment (including transferred property or provided services), 
an assessment may be imposed against any such Person or jointly and 
severally against any combination of such Persons.



Sec. 13.4  Investigation.

    (a) If an Investigating Official concludes that a subpoena pursuant 
to the Authority conferred by 31 U.S.C. 3804(a) is warranted:
    (1) The subpoena so issued will notify the Person to whom it is 
addressed of the Authority under which the subpoena is issued and will 
identify the records or Documents sought;
    (2) The Investigating Official may designate a Person to act on his 
or her behalf to receive the Documents sought; and
    (3) The Person receiving such subpoena will be required to tender to 
the Investigating Official or the Person designated to receive the 
Documents a certification that the Documents sought have been produced, 
or that such Documents are not available and the reasons therefore, or 
that such Documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the Investigating Official concludes that an action under the 
Act may be warranted, the Investigating Official will submit a report 
containing the findings and conclusions of such investigation to the 
Reviewing Official.
    (c) Nothing in this section will preclude or limit an Investigating 
Official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
defer or postpone a report or referral to the Reviewing Official to 
avoid interference with a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
Investigating Official to report violations of criminal law to the 
Attorney General.



Sec. 13.5  Review by the Reviewing Official.

    (a) If, based on the report of the Investigating Official under 
Sec. 13.4(b), the Reviewing Official determines that there is adequate 
evidence to believe that a Person is liable under Sec. 13.3, the 
Reviewing Official will transmit to the Attorney General a written 
notice of the Reviewing Official's intention to issue a Complaint under 
Sec. 13.7.
    (b) Such notice will include:
    (1) A Statement of the Reviewing Official's reasons for issuing a 
Complaint;
    (2) A Statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the Claims or Statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other Benefits requested or demanded in violation of Sec. 
13.3;
    (5) A Statement of any exculpatory or mitigating circumstances that 
may relate to the Claims or Statements known by the Reviewing Official 
or the Investigating Official; and
    (6) A Statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.

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Sec. 13.6  Prerequisites for issuing a Complaint.

    (a) The Reviewing Official may issue a Complaint under Sec. 13.7 
only if:
    (1) The Department of Justice approves the issuance of a Complaint 
in a written Statement described in 31 U.S.C. 3803(b)(1); and
    (2) In the case of allegations of liability under Sec. 13.3(a) with 
respect to a Claim, the Reviewing Official determines that, with respect 
to such Claim or a group of related Claims submitted at the same time 
such Claim is submitted (as defined in paragraph (b) of this section), 
the amount of money or the value of property or services demanded or 
requested in violation of Sec. 13.3(a) does not exceed $150,000.
    (b) For the purposes of this section, a related group of Claims 
submitted at the same time will include only those Claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section will be construed to limit the Reviewing 
Official's authority to join in a single Complaint against a Person's 
Claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec. 13.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a Complaint in accordance with 31 U.S.C. 3803(b)(1), the 
Reviewing Official may serve a Complaint on the Defendant, as provided 
in Sec. 13.8.
    (b) The Complaint will state:
    (1) The allegations of liability against the Defendant, including 
the statutory basis for liability, an identification of the Claims or 
Statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such Claims or Statements;
    (2) The maximum amount of penalties and assessments for which the 
Defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific Statement of the Defendant's right to request a 
hearing by filing an answer and to be represented by a Representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
Complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in Sec. 
13.10.
    (5) That the Defendant may obtain copies of relevant material and 
exculpatory information pursuant to the process outlined in Sec. 13.20.
    (c) At the same time the Reviewing Official serves the Complaint, he 
or she will serve the Defendant with a copy of the regulations in this 
part.



Sec. 13.8  Service of Complaint.

    (a) Service of a Complaint must be Made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service of a Complaint is complete upon 
receipt.
    (b) Proof of service, stating the name and address of the Person on 
whom the Complaint was served, and the manner and date of service, may 
be Made by:
    (1) Affidavit of the Individual serving the Complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the Defendant or his or her 
Representative; or
    (4) In case of service abroad, authentication in accordance with the 
Convention on Service Abroad of Judicial and Extrajudicial Documents in 
Commercial and Civil Matters.



Sec. 13.9  Answer.

    (a) The Defendant may request a hearing by serving an answer on the 
Reviewing Official within 30 days of service of the Complaint. Service 
of an answer will be Made by delivering a copy to the Reviewing Official 
or by placing a copy in the United States mail, postage prepaid and 
addressed to the Reviewing Official. Service of an answer is complete 
upon such delivery or mailing. An answer will be deemed to be a request 
for hearing.
    (b) In the answer, the Defendant:

[[Page 66]]

    (1) Will admit or deny each of the allegations of liability Made in 
the Complaint;
    (2) Will state any defense on which the Defendant intends to rely;
    (3) May state any reasons why the Defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Will state the name, address, and telephone number of the Person 
authorized by the Defendant to act as Defendant's Representative, if 
any.
    (c) If the Defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the Defendant may, before the expiration of 30 days from service of the 
Complaint, serve on the Reviewing Official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to serve an answer meeting the requirements of 
paragraph (b) of this section. The Reviewing Official will file promptly 
the Complaint, the general answer denying liability, and the request for 
an extension of time as provided in Sec. 13.11. For good cause shown, 
the ALJ may grant the Defendant up to 30 additional days from the 
original due date within which to serve an answer meeting the 
requirements of paragraph (b) of this section.



Sec. 13.10  Default upon failure to answer.

    (a) If the Defendant does not answer within the time prescribed in 
Sec. 13.9(a), the Reviewing Official may refer the Complaint to an ALJ 
by filing the Complaint and a Statement that Defendant has failed to 
answer on time.
    (b) Upon the referral of the Complaint, the ALJ will promptly serve 
on Defendant in the manner prescribed in Sec. 13.8, a notice that an 
Initial Decision will be issued under this section.
    (c) In addition, the ALJ will assume the facts alleged in the 
Complaint to be true, and, if such facts establish liability under Sec. 
13.3, the ALJ will issue an Initial Decision imposing the maximum amount 
of penalties and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to 
answer on time, the Defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the Initial Decision will become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an Initial Decision becomes final, the Defendant 
files a motion seeking to reopen on the grounds that extraordinary 
circumstances prevented the Defendant from answering, the Initial 
Decision will be stayed pending the ALJ's decision on the motion.
    (f) If, on such motion, the Defendant can demonstrate extraordinary 
circumstances excusing the failure to answer on time, the ALJ will 
withdraw the Initial Decision in paragraph (c) of this section, if such 
a decision has been issued, and will grant the Defendant an opportunity 
to answer the Complaint.
    (g) A decision of the ALJ denying a Defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec. 13.38.
    (h) The Defendant may appeal to the Authority Head the decision 
denying a motion to reopen by filing a notice of appeal in accordance 
with Sec. 13.26 within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal will stay the Initial Decision until 
the Authority Head decides the issue.
    (i) If the Defendant files a timely notice of appeal with the 
Authority Head, the ALJ will forward the record of the proceeding to the 
Authority Head.
    (j) The Authority Head will decide expeditiously whether 
extraordinary circumstances excuse the Defendant's failure to answer on 
time based solely on the record before the ALJ.
    (k) If the Authority Head decides that extraordinary circumstances 
excused the Defendant's failure to answer on time, the Authority Head 
will remand the case to the ALJ with instructions to grant the Defendant 
an opportunity to answer.
    (l) If the Authority Head decides that the Defendant's failure to 
answer on time is not excused, the Authority Head will reinstate the 
Initial Decision of the ALJ, which will become final and binding upon 
the parties 30 days after the Authority Head issues such decision.

[[Page 67]]



Sec. 13.11  Referral of Complaint and answer to the ALJ.

    Upon receipt of an answer, the Reviewing Official will refer the 
matter to an ALJ by filing the Complaint and answer in accordance with 
Sec. 13.26.



Sec. 13.12  Notice of hearing.

    (a) When the ALJ receives the Complaint and answer, the ALJ will 
promptly serve a notice of hearing upon the Defendant in the manner 
prescribed by Sec. 13.8.
    (b) Such notice will include:
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the Representative of 
the Government and of the Defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 13.13  Parties to the hearing.

    (a) The parties to the hearing will be the Defendant and the 
Authority.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 13.14  Separation of functions.

    (a) The Investigating Official, the Reviewing Official, and any 
employee or agent of the Authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case:
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the Initial Decision or the review of 
the Initial Decision by the Authority Head, except as a witness or a 
Representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ will not be responsible to, or subject to the 
supervision or direction of, the Investigating Official or the Reviewing 
Official.
    (c) Except as provided in paragraph (a) of this section, the 
Representative for the Government may be employed anywhere in the 
Authority, including in the offices of either the Investigating Official 
or the Reviewing Official.



Sec. 13.15  Ex parte contacts.

    No party or Person (except employees of the ALJ's office) will 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a Person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec. 13.16  Disqualification of Reviewing Official or ALJ.

    (a) A Reviewing Official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file a motion for disqualification of a Reviewing 
Official or an ALJ. Such motion will be accompanied by an affidavit 
alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit will be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections will be deemed waived.
    (d) Such affidavit will state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It will be accompanied by a certificate of the Representative of 
record that it is Made in good faith.
    (e)(1) If the ALJ determines that a Reviewing Official is 
disqualified, the ALJ will dismiss the Complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case will be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the Authority Head may 
determine the matter only as part of his or her review of the Initial 
Decision upon appeal, if any.

[[Page 68]]



Sec. 13.17  Rights of parties.

    Except as otherwise limited by this part, all parties may:
    (a) Be accompanied, represented, and advised by a Representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which will be Made part of 
the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 13.18  Authority of the ALJ.

    (a) The ALJ will conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is Made.
    (b) The ALJ has the authority to:
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of Documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
Representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
Person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to Make any determinations 
regarding the validity of treaties or other international agreements, 
Federal statutes or regulations, or Departmental Orders or Directives.



Sec. 13.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ will schedule at least one 
prehearing conference at a reasonable time in advance of the hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite Statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of Documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.



Sec. 13.20  Disclosure of Documents.

    (a) Upon written request to the Reviewing Official, the Defendant 
may review, at a time and place convenient to

[[Page 69]]

the Authority, any relevant and material Documents, transcripts, 
records, and other materials that relate to the allegations set out in 
the Complaint and upon which the findings and conclusions of the 
Investigating Official under Sec. 13.4(b) are based, unless such 
Documents are subject to a privilege under Federal law. Special 
arrangements as to confidentiality may be required by the Reviewing 
Official, who may also assert privilege or other related doctrines. Upon 
payment of fees for duplication, the Defendant may obtain copies of such 
Documents.
    (b) Upon written request to the Reviewing Official, the Defendant 
also may obtain a copy of all exculpatory information in the possession 
of the Reviewing Official or Investigating Official relating to the 
allegations in the Complaint, even if it is contained in a Document that 
would otherwise be privileged. If the Document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the Reviewing 
Official as described in Sec. 13.5 is not discoverable under any 
circumstances.
    (d) The Defendant may file a motion to compel disclosure of the 
Documents subject to the provisions of this section. Such a motion may 
only be filed following the serving of an answer pursuant to Sec. 13.9.



Sec. 13.21  Discovery.

    (a) In general. (1) The following types of discovery are authorized:
    (i) Requests for production of Documents for inspection and copying;
    (ii) Requests for admissions of the authenticity of any relevant 
Document or of the truth of any relevant fact;
    (iii) Written interrogatories; and
    (iv) Depositions.
    (2) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ will regulate the timing of 
discovery.
    (b) Documents defined. (1) For the purpose of this section and 
Sec. Sec. 13.22 and 13.23, the term Documents includes information, 
documents, reports, answers, records, accounts, papers, and other data 
and documentary evidence.
    (2) Nothing in this part will be interpreted to require the creation 
of a Document.
    (c) Motions for discovery. (1) A party seeking discovery may file a 
motion. Such a motion will be accompanied by a copy of the request for 
production of Documents, request for admissions, or interrogatories or, 
in the case of depositions, a summary of the scope of the proposed 
deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion or a motion for protective order as provided in Sec. 13.24.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought:
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 13.24.
    (d) Depositions. (1) If a motion for deposition is granted, the ALJ 
will issue a subpoena for the deponent, which may require the deponent 
to produce Documents. The subpoena will specify the time and place at 
which the deposition will be held. Deposition requests for senior level 
DHS officials (including career and non-career senior executive level 
employees) shall not be approved absent showing of compelling need that 
cannot be met by any other means.
    (2) The party seeking to depose will serve the subpoena in the 
manner prescribed in Sec. 13.8.
    (3) The deponent may file a motion to quash the subpoena or a motion 
for a protective order within ten days of service. If the ALJ has not 
acted on such a motion by the return date, such date will be suspended 
pending the ALJ's final action on the motion.
    (4) The party seeking to depose will provide for the taking of a 
verbatim transcript of the deposition, which it will Make available to 
all other parties for inspection and copying.

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    (e) Each party will bear its own costs of discovery.



Sec. 13.22  Exchange of witness lists, Statements, and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties will exchange witness lists, copies 
of prior Statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written Statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 13.33(b). At the time the above Documents are exchanged, any party 
that intends to rely on the transcript of deposition testimony in lieu 
of live testimony at the hearing, if permitted by the ALJ, will provide 
each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ will not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
of any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
Documents exchanged in accordance with paragraph (a) of this section 
will be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 13.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
Individual at the hearing may request that the ALJ issue a subpoena. 
Requests for witness testimony of senior level DHS officials (including 
career and non-career senior executive level employees) shall not be 
approved absent a showing of compelling need that cannot be met by any 
other means.
    (b) A subpoena requiring the attendance and testimony of an 
Individual may also require the Individual to produce Documents at the 
hearing.
    (c) A party seeking a subpoena will file a written request therefore 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request will be 
accompanied by a proposed subpoena, which will specify and Documents to 
be produced and will designate the witnesses and describe the address 
and location thereof with sufficient particularity to permit such 
witnesses to be found.
    (d) The subpoena will specify the time and place at which the 
witness is to appear and any Documents the witness is to produce.
    (e) The party seeking the subpoena will serve it in the manner 
prescribed in Sec. 13.8. A subpoena on a party or upon an Individual 
under the control of party may be served by first class mail.
    (f) A party or the Individual to whom the subpoena is directed may 
file a motion to quash the subpoena within ten days after service or on 
or before the time specified in the subpoena for compliance if it is 
less than ten days after service. If the ALJ has not acted on such a 
motion by the return date, such date will be suspended pending the ALJ's 
final action on the motion.



Sec. 13.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may Make any order that 
justice requires to protect a party or Person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except Persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;

[[Page 71]]

    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; and
    (9) That the parties simultaneously submit to the ALJ specified 
Documents or information enclosed in sealed envelopes to be opened as 
directed by the ALJ.



Sec. 13.25  Fees.

    The party requesting a subpoena will pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage will accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the Authority, a 
check for witness fees and mileage need not accompany the subpoena.



Sec. 13.26  Filing, form and service of papers.

    (a) Filing and form. (1) Documents filed with the ALJ will include 
an original and two copies.
    (2) Every pleading and paper filed in the proceeding will contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, and a designation of the paper (e.g., Motion to Quash 
Subpoena).
    (3) Every pleading and paper will be signed by, and will contain the 
address and telephone number of, the party or the Person on whose behalf 
the paper was filed, or his or her Representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
Representative or by proof that the Document was sent by certified or 
registered mail.
    (b) Service. A party filing a Document will, at the time of filing, 
serve a copy of such Document on every other party. Service upon any 
party of any Document other than those required to be served as 
prescribed in Sec. 13.8 will be Made by delivering a copy, or by 
placing a copy of the Document in the United States mail, postage 
prepaid and addressed, to the party's last known address. When a party 
is represented by a Representative, service will be Made upon such 
Representative in lieu of the actual party.
    (c) Proof of service. A certificate of the Individual serving the 
Document by Personal delivery or by mail, setting forth the manner of 
service, will be proof of service.



Sec. 13.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal Government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal Government will be excluded from the computation.
    (c) Where a Document has been served or issued by placing it in the 
United States mail, an additional five days will be added to the time 
permitted for any responses.



Sec. 13.28  Motions.

    (a) Any application to the ALJ for an order or ruling will be by 
motion. Motions will state the relief sought, the authority relied upon, 
and the facts alleged, and will be filed and served on all other 
parties.
    (b) Except for motions Made during a prehearing conference or at the 
hearing, all motions will be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing response thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ will Make a reasonable effort to dispose of all 
outstanding motions before the hearing begins.

[[Page 72]]

    (f) Except as provided by Sec. Sec. 13.21(e)(3) and 13.23(f), which 
concern subpoenas, the filing or pendency of a motion will not 
automatically alter or extend a deadline or return date.



Sec. 13.29  Sanctions.

    (a) The ALJ may sanction a Person, including any party or 
Representative, for:
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Sanctions include but are not limited to those specifically set 
forth in paragraphs (c), (d), and (e) of this section. Any such sanction 
will reasonably relate to the severity and nature of the failure or 
misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may:
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part begun by service of a notice of hearing, the ALJ may dismiss the 
action or may issue an Initial Decision imposition penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other Document that is not filed in a timely fashion.



Sec. 13.30  The hearing and burden of proof.

    (a) The ALJ will conduct a hearing on the record in order to 
determine whether the Defendant is liable for a civil penalty or 
assessment under Sec. 13.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The Authority will prove Defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The Defendant will prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing will be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec. 13.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the Authority Head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, ordinarily double damages 
and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the Authority Head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false fictitious, of fraudulent Claims or 
Statements) charged in the Complaint:
    (1) The number of false, fictitious, or fraudulent Claims or 
Statements;
    (2) The time period over which such Claims or Statements were Made;
    (3) The degree of the Defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
Benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;

[[Page 73]]

    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the Defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the Defendant attempted to conceal the misconduct;
    (10) The degree to which the Defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
Defendant, the extent to which the Defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the Defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the Defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the Defendant's sophistication with respect to it, including the extent 
of the Defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the Defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
State, directly or indirectly; and
    (16) The need to deter the Defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section will be construed to limit the ALJ or 
the Authority Head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 13.32  Location of hearing.

    (a) The hearing may be held:
    (1) In any judicial district of the United States in which the 
Defendant resides or transacts business;
    (2) In any judicial district of the United States in which the Claim 
or Statement in issue was Made; or
    (3) In such other place as may be agreed upon by the Defendant and 
the ALJ.
    (b) Each party will have the opportunity to present written and oral 
argument with respect to the location of the hearing.
    (c) The hearing will be held at the place and at the time ordered by 
the ALJ.



Sec. 13.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing will be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written Statement or deposition. Any such written Statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner that allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written Statements of witnesses proposed to testify at the hearing 
and deposition transcripts will be exchanged as provided in Sec. 
13.22(a).
    (c) The ALJ will exercise reasonable control over the mode and order 
of interrogating witnesses and presenting evidence so as to:
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth;
    (2) Avoid needless consumption of time; and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ will permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination will be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse

[[Page 74]]

party, or a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ will order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of:
    (1) A party who is an Individual;
    (2) In the case of a party that is not an Individual, an officer or 
employee of the party;
    (i) Appearing for the entity pro se; or
    (ii) Designated by the party's Representative; or
    (3) An Individual whose presence is shown by a party to be essential 
to the presentation of its case, including an Individual employed by the 
Government engaged in assisting the Representative for the Government.



Sec. 13.34  Evidence.

    (a) The ALJ will determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ will not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ will exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement will be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ will permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All Documents and other evidence offered or taken for the record 
will be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 13.24.



Sec. 13.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
Authority Head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 13.24.



Sec. 13.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ will fix the 
time for filing such briefs. Such briefs may be accompanied by proposed 
findings of fact and conclusions of law. The ALJ may permit the parties 
to file reply briefs.



Sec. 13.37  Initial Decision.

    (a) The ALJ will issue an Initial Decision based only on the record, 
which will contain findings of fact, conclusions of law, and the amount 
of any penalties and assessments imposed.
    (b) The findings of fact will include a finding on each of the 
following issues:
    (1) Whether the Claims or Statements identified in the Complaint, or 
any portions thereof, violate Sec. 13.3;
    (2) If the Person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 13.31.
    (c) The ALJ will promptly serve the Initial Decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ will at the same time 
serve all parties with a Statement describing the right of any Defendant 
determined to be liable for a civil penalty or assessment to file a 
motion for reconsideration with the ALJ or a notice of appeal with the 
Authority Head. If the ALJ fails to meet the deadline contained in this 
paragraph, he or she will notify the parties of the reason for the delay 
and will set a new deadline.

[[Page 75]]

    (d) Unless the Initial Decision of the ALJ is timely appealed to the 
Authority Head, or a motion for reconsideration of the Initial Decision 
is timely filed, the Initial Decision will constitute the final decision 
of the Authority Head and will be final and binding on the parties 30 
days after it is issued by the ALJ.



Sec. 13.38  Reconsideration of Initial Decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the Initial Decision within 20 
days of receipt of the Initial Decision. If service was Made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion will be accompanied by a supporting brief.
    (c) Responses to such motions will be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an Initial 
Decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised Initial Decision.
    (f) If the ALJ denies a motion for reconsideration, the Initial 
Decision will constitute the final decision of the Authority Head and 
will be final and binding on the parties 30 days after the ALJ denies 
the motion, unless the Initial Decision is timely appealed to the 
Authority Head in accordance with Sec. 13.39.
    (g) If the ALJ issues a revised Initial Decision, that decision will 
constitute the final decision of the Authority Head and will be final 
and binding on the parties 30 days after it is issued, unless it is 
timely appealed to the Authority Head in accordance with Sec. 13.39.



Sec. 13.39  Appeal to Authority Head.

    (a) Any Defendant who has served a timely answer and who is 
determined in an Initial Decision to be liable for a civil penalty or 
assessment may appeal such decision to the Authority Head by filing a 
notice of appeal in accordance with this section and Sec. 13.26.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an Initial Decision. However, if another party 
files a motion for reconsideration under Sec. 13.38, consideration of 
the appeal will be stayed automatically pending resolution of the motion 
for reconsideration.
    (2) If a Defendant files a timely motion for reconsideration, a 
notice of appeal may be filed within 30 days after the ALJ denies the 
motion or issues a revised Initial Decision, whichever applies.
    (3) The Authority Head may extend the initial 30-day period for an 
additional 30 days if the Defendant files with the Authority Head a 
request for an extension within the initial 30-day period and shows good 
cause.
    (c) If the Defendant files a timely notice of appeal and the time 
for filing motions for reconsideration under Sec. 13.38 has expired, 
the ALJ will forward two copies of the notice of appeal to the Authority 
Head, and will forward or Make available the record of the proceeding to 
the Authority Head.
    (d) A notice of appeal will be accompanied by a written brief 
specifying exceptions to the Initial Decision and reasons supporting the 
exceptions.
    (e) The Representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the Authority 
Head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the Initial Decision, the Authority Head will not 
consider any objection that was not raised before the ALJ unless a 
demonstration is Made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the Authority 
Head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the Authority Head will remand the matter to 
the ALJ for consideration of such additional evidence.
    (j) The Authority Head may affirm, reduce, reverse, compromise, 
remand,

[[Page 76]]

or settle any penalty or assessment determined by the ALJ in any Initial 
Decision.
    (k) The Authority Head will promptly serve each party to the appeal 
with a copy of the decision of the Authority Head and with a Statement 
describing the right of any Person determined to be liable for a penalty 
or assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a Defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the Authority Head 
serves the Defendant with a copy of the Authority Head's decision, a 
determination that a Defendant is liable under Sec. 13.3 is final and 
is not subject to judicial review.



Sec. 13.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the Authority Head a 
written finding that continuation of the administrative process 
described in this part with respect to a Claim or Statement may 
adversely affect any pending or potential criminal or civil action 
related to such Claim or Statement, the Authority Head will stay the 
process immediately. The Authority Head may order the process resumed 
only upon receipt of the written authorization of the Attorney General.



Sec. 13.41  Stay pending appeal.

    (a) An Initial Decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the Authority Head.
    (b) No administrative stay is available following a final decision 
of the Authority Head.



Sec. 13.42  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the Authority Head imposing penalties or assessments under 
this part and specifies the procedures for such review.



Sec. 13.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec. 13.44  Right to administrative offset.

    The amount of any penalty or assessment that has become final, or 
for which a judgment has been entered under Sec. 13.42 or Sec. 13.43, 
or any amount agreed upon in a compromise or settlement under Sec. 
13.46, may be collected by administrative offset under 31 U.S.C. 3716, 
except that an administrative offset may not be Made under that 
subsection against a refund of an overpayment of Federal taxes, then or 
later owing by the United States to the Defendant.



Sec. 13.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part will be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 13.46  Compromise or settlement.

    (a) Parties may Make offers of compromise or settlement at any time.
    (b) The Reviewing Official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
Reviewing Official is permitted to issue a Complaint and before the date 
on which the ALJ issues an Initial Decision.
    (c) The Authority Head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an Initial Decision, except during the pendency of any review 
under Sec. 13.42 or during the pendency of any action to collect 
penalties and assessments under Sec. 13.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 13.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The Investigating Official may recommend settlement terms to the

[[Page 77]]

Reviewing Official, the Authority Head, or the Attorney General, as 
appropriate. The Reviewing Official may recommend settlement terms to 
the Authority Head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing and signed by 
all parties and their Representatives.



Sec. 13.47  Limitations.

    (a) The notice of hearing with respect to a Claim or Statement must 
be served in the manner specified in Sec. 13.8 within 6 years after the 
date on which such Claim or Statement is Made.
    (b) If the Defendant fails to serve a timely answer, service of a 
notice under Sec. 13.10(b) will be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.



PART 15_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF HOMELAND SECURITY--Table of Contents




Sec.
15.1 Purpose.
15.2 Application.
15.3 Definitions.
15.10 Self-evaluation.
15.11 Notice.
15.30 General prohibitions against discrimination.
15.40 Employment.
15.49 Program accessibility; discrimination prohibited.
15.50 Program accessibility; existing facilities.
15.51 Program accessibility; new construction and alterations.
15.60 Communications.
15.70 Compliance procedures.

    Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5 
U.S.C. 301; 29 U.S.C. 794.

    Source: 68 FR 10886, Mar. 6, 2003, unless otherwise noted.



Sec. 15.1  Purpose.

    The purpose of this part is to effectuate section 504 of the 
Rehabilitation Act of 1973 (``Section 504''), as amended by section 119 
of the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978, which prohibits discrimination on the 
basis of disability in programs or activities conducted by Executive 
agencies. The provisions established by this part shall be effective for 
all components of the Department, including all Department components 
that are transferred to the Department, except to the extent that a 
Department component already has existing section 504 regulations.



Sec. 15.2  Application.

    This part applies to all programs or activities conducted by the 
Department of Homeland Security (Department), except for programs or 
activities conducted outside the United States that do not involve 
individuals with a disability in the United States.



Sec. 15.3  Definitions.

    For purposes of this part:
    (a) Auxiliary aids means services or devices that enable persons 
with impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Department. For example, auxiliary aids 
useful for persons with impaired vision include readers, materials in 
Braille, 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, 
telecommunications devices for deaf persons (TTYs), interpreters, 
notetakers, written materials and other similar services and devices.
    (b) Complete complaint means a written statement that contains the 
complainant's name and address, and describes the Department's alleged 
discriminatory action in sufficient detail to inform the Department of 
the nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes of individuals with 
disabilities shall also identify (where possible) the alleged victims of 
discrimination.
    (c) Facility means all or any portion of a building, structure, 
equipment, road, walk, parking lot, rolling stock, or other conveyance, 
or other real or personal property.

[[Page 78]]

    (d) Individual with a disability means any person who has a physical 
or mental impairment that substantially limits one or more of the 
individual's major life activities, has a record of such an impairment, 
or is regarded as having such an impairment. For purposes of this 
definition:
    (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, 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 of the individual's major life 
activities.
    (4) Is regarded as having an impairment means:
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Department as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (e)(1) of 
this section but is treated by the Department as having such an 
impairment.
    (e) Qualified individual with a disability means:
    (1) With respect to a Department program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, an individual with a disability who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
Department can demonstrate would result in a fundamental alteration in 
the nature of the program; and
    (2) With respect to any other program or activity, an individual 
with a disability who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) With respect to employment, an individual with a disability who 
satisfies the requisite skill, experience, education and other job-
related requirements of the employment position such individual holds or 
desires, and who, with or without reasonable accommodation, can perform 
the essential functions of such position.
    (f) Section 504 means section 504 of the Rehabilitation Act of 1973 
(29 U.S.C. 794), as amended. As used in this part, section 504 applies 
only to programs or activities conducted by Executive agencies and not 
to federally assisted programs.



Sec. 15.10  Self-evaluation.

    (a) Except as provided in paragraph (d) of this section, the 
Department shall, not later than March 7, 2005, evaluate its current 
policies and practices, and the effects thereof, to determine if they 
meet the requirements of this part. To the extent modification of any 
such policy and practice is required, the Department shall proceed to 
make the necessary modifications.
    (b) The Department shall provide an opportunity to interested 
persons, including individuals with a disability or organizations 
representing individuals with disabilities, to participate in the self-
evaluation process.
    (c) The Department shall, until three years following the completion 
of the self-evaluation, maintain on file and make available for public 
inspection:

[[Page 79]]

    (1) A description of areas examined and any problems identified;
    (2) A description of any modifications made; and
    (3) A list of participants in the self-evaluation process.
    (d) If a component within the Department has already complied with 
the self-evaluation requirement of a regulation implementing section 
504, then the requirements of this section shall apply to only those 
programs and activities conducted by that component that were not 
included in the previous self-evaluation.



Sec. 15.11  Notice.

    The Department shall make available to all Department employees and 
interested persons information regarding the provisions of this part and 
its applicability to the programs or activities conducted by the 
Department, and make such information available to them in such a manner 
as is necessary to apprise them of the protections against 
discrimination assured them by section 504 and this part.



Sec. 15.30  General prohibitions against discrimination.

    (a) No qualified individual with a disability in the United States, 
shall, by reason of his or her disability, be excluded from the 
participation in, be denied benefits of, or otherwise be subjected to 
discrimination under any program or activity conducted by the 
Department.
    (b)(1) The Department, in providing any aid, benefit, or service, 
may not directly or through contractual, licensing, or other 
arrangements, on the basis of disability:
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with a disability 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 a disability 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 a disability or to any class of individuals with a 
disability than is provided to others unless such action is necessary to 
provide qualified individuals with a disability with aid, benefits or 
services that are as effective as those provided to others;
    (v) Deny a qualified individual with a disability the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with a disability in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the 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 individuals with a disability and for 
nondisabled persons, but must afford individuals with a disability 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 individual's needs.
    (3) Even if the Department is permitted, under paragraph (b)(1)(iv) 
of this section, to operate a separate or different program for 
individuals with a disability or for any class of individuals with a 
disability, the Department must permit any qualified individual with a 
disability who wishes to participate in the program that is not separate 
or different to do so.
    (4) The Department may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would:
    (i) Subject qualified individuals with a disability 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 a disability.
    (5) The Department may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would:

[[Page 80]]

    (i) Exclude individuals with a disability from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the Department; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with a 
disability.
    (6) The Department, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with a disability to 
discrimination on the basis of disability.
    (7) The Department may not administer a licensing or certification 
program in a manner that subjects qualified individuals with a 
disability to discrimination on the basis of disability, nor may the 
Department establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
a disability to discrimination on the basis of disability. However, the 
programs or activities of entities that are licensed or certified by the 
Department are not, themselves, covered by this part.
    (c) The exclusion of nondisabled persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with a disability or the exclusion of a specific class of individuals 
with a disability from a program limited by Federal statute or Executive 
order to a different class of individuals with a disability is not 
prohibited by this part.
    (d) The Department shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with a disability.



Sec. 15.40  Employment.

    No qualified individual with a disability shall, on the basis of 
that disability, be subjected to discrimination in employment under any 
program or activity conducted by the Department. 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 1614, shall apply to employment of Federally 
conducted programs or activities.



Sec. 15.49  Program accessibility; discrimination prohibited.

    Except as otherwise provided in Sec. 15.50, no qualified individual 
with a disability shall, because the Department's facilities are 
inaccessible to or unusable by individuals with a disability, be denied 
the benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the Department.



Sec. 15.50  Program accessibility; existing facilities.

    (a) General. The Department shall operate each program or activity 
so that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with a disability. This 
paragraph (a) does not require the Department:
    (1) To make structural alterations in each of its existing 
facilities in order to make them accessible to and usable by individuals 
with a disability where other methods are effective in achieving 
compliance with this section; or
    (2) 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 
Department personnel believe that the proposed action would 
fundamentally alter the program or activity or would result in undue 
financial and administrative burdens, the Department has the burden of 
proving that compliance with this paragraph (a) of this section would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the Secretary of 
Homeland Security (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 Department shall 
take any other action that would not result in such an alteration or 
such burdens but would nevertheless ensure

[[Page 81]]

that individuals with a disability receive the benefits and services of 
the program or activity.
    (b) Methods. The Department may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with a disability. The Department, in making alterations to 
existing buildings, shall meet accessibility requirements to the extent 
required by the Architectural Barriers Act of 1968, as amended (42 
U.S.C. 4151-4157), and any regulations implementing it. In choosing 
among available methods for meeting the requirements of this section, 
the Department shall give priority to those methods that offer programs 
and activities to qualified individuals with a disability in the most 
integrated setting appropriate.
    (c) Time period for compliance. The Department shall comply with the 
obligations established under this section not later than May 5, 2003, 
except that where structural changes in facilities are undertaken, such 
changes shall be made not later than March 6, 2006, but in any event as 
expeditiously as possible. If a component within the Department has 
already complied with the accessibility requirements of a regulation 
implementing section 504, then the provisions of this paragraph shall 
apply only to facilities for that agency's programs and activities that 
were not previously made readily accessible to and usable by individuals 
with disabilities in compliance with that regulation.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Department shall develop not later than September 8, 2003, a transition 
plan setting forth the steps necessary to complete such changes. The 
Department shall provide an opportunity to interested persons, including 
individuals with disabilities or organizations representing individuals 
with disabilities, to participate in the development of the transition 
plan by submitting comments (both telephonic and written). A copy of the 
transition plan shall be made available for public inspection. If a 
component of the Department has already complied with the transition 
plan requirement of a regulation implementing section 504, then the 
requirements of this paragraph shall apply only to the agency's 
facilities for programs and activities that were not included in the 
previous transition plan. The plan shall at a minimum:
    (1) Identify physical obstacles in the Department's facilities that 
limit the physical accessibility of its programs or activities to 
individuals with disabilities;
    (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. 15.51  Program accessibility; new construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Department shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with a disability. The definitions, requirements, and 
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as 
established in 41 CFR 101-19.600 through 101-19.607 apply to buildings 
covered by this section.



Sec. 15.60  Communications.

    (a) The Department shall take appropriate steps to effectively 
communicate with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Department shall furnish appropriate auxiliary aids where 
necessary to afford an individual with a

[[Page 82]]

disability an equal opportunity to participate in, and enjoy the 
benefits of, a program or activity conducted by the Department.
    (i) In determining what type of auxiliary aid is necessary, the 
Department shall give primary consideration to the requests of the 
individual with a disability.
    (ii) The Department need not provide individually prescribed 
devices, readers for personal use or study, or other devices of a 
personal nature to applicants or participants in programs.
    (2) Where the Department communicates with applicants and 
beneficiaries by telephone, the Department shall use telecommunication 
devices for deaf persons (TTYs) or equally effective telecommunication 
systems to communicate with persons with impaired hearing.
    (b) The Department shall make available to interested persons, 
including persons with impaired vision or hearing, information as to the 
existence and location of accessible services, activities, and 
facilities.
    (c) The Department shall post notices at a primary entrance to each 
of its inaccessible facilities, directing users to an accessible 
facility, or 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 Department to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens.
    (e) In those circumstances where Department personnel believe that 
the proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the 
Department has the burden of proving that compliance with this section 
would result in such alteration or burdens. The decision that compliance 
would result in such alteration or burdens must be made by the Secretary 
of Homeland Security (or his or her designee) after considering all 
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 Department 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 a 
disability receive the benefits and services of the program or activity.



Sec. 15.70  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
disability in programs and activities conducted by the Department.
    (b) The Department shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1614.
    (c) All other complaints alleging violations of section 504 may be 
sent to the Officer for Civil Rights and Civil Liberties, Department of 
Homeland Security, Washington, DC 20528. The Officer for Civil Rights 
and Civil Liberties shall be responsible for coordinating implementation 
of this section.
    (d)(1) Any person who believes that he or she has been subjected to 
discrimination prohibited by this part may by him or herself, or by his 
or her authorized representative, file a complaint. Any person who 
believes that any specific class of persons has been subjected to 
discrimination prohibited by this part and who is a member of that class 
or the authorized representative of a member of that class may file a 
complaint.
    (2) The Department shall accept and investigate all complete 
complaints over which it has jurisdiction.
    (3) All complete complaints must be filed within 180 days of the 
alleged act of discrimination. The Department may extend this time 
period for good cause.
    (e) If the Department receives a complaint over which it does not 
have jurisdiction, it shall promptly notify the complainant and shall 
make reasonable efforts to refer the complaint to

[[Page 83]]

the appropriate entity of the Federal government.
    (f) The Department shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with disabilities.
    (g)(1) Not later than 180 days from the receipt of a complete 
complaint over which it has jurisdiction, the Department shall notify 
the complainant of the results of the investigation in a letter 
containing:
    (i) Findings of fact and conclusions of law;
    (ii) A description of a remedy for each violation found; and
    (iii) A notice of the right to appeal.
    (2) Department employees are required to cooperate in the 
investigation and attempted resolution of complaints. Employees who are 
required to participate in any investigation under this section shall do 
so as part of their official duties and during the course of regular 
duty hours.
    (3) If a complaint is resolved informally, the terms of the 
agreement shall be reduced to writing and made part of the complaint 
file, with a copy of the agreement provided to the complainant. The 
written agreement shall describe the subject matter of the complaint and 
any corrective action to which the parties have agreed.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant not later than 60 days after 
receipt from the Department of the letter required by paragraph (g)(1) 
of this section. The Department may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Officer 
for Civil Rights and Civil Liberties, or designee thereof, who will 
issue the final agency decision which may include appropriate corrective 
action to be taken by the Department.
    (j) The Department shall notify the complainant of the results of 
the appeal within 30 days of the receipt of the appeal. If the 
Department determines that it needs additional information from the 
complainant, it shall have 30 days from the date it received the 
additional information to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended for an individual case when the Officer for Civil Rights 
and Civil Liberties determines that there is good cause, based on the 
particular circumstances of that case, for the extension.
    (l) The Department may delegate its authority for conducting 
complaint investigations to other Federal agencies and may contract with 
nongovernment investigators to perform the investigation, but the 
authority for making the final determination may not be delegated to 
another agency.



PART 17_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A_Introduction

Sec.
17.100 Purpose and effective date.
17.105 Definitions.
17.110 Remedial and affirmative action and self-evaluation.
17.115 Assurance required.
17.120 Transfers of property.
17.125 Effect of other requirements.
17.130 Effect of employment opportunities.
17.135 Designation of responsible employee and adoption of grievance 
          procedures.
17.140 Dissemination of policy.

                           Subpart B_Coverage

17.200 Application.
17.205 Educational institutions and other entities controlled by 
          religious organizations.
17.210 Military and merchant marine educational institutions.
17.215 Membership practices of certain organizations.
17.220 Admissions.
17.225 Educational institutions eligible to submit transition plans.
17.230 Transition plans.
17.235 Statutory amendments.

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

17.300 Admission.

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17.305 Preference in admission.
17.310 Recruitment.

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

17.400 Education programs or activities.
17.405 Housing.
17.410 Comparable facilities.
17.415 Access to course offerings.
17.420 Access to schools operated by LEAs.
17.425 Counseling and use of appraisal and counseling materials.
17.430 Financial assistance.
17.435 Employment assistance to students.
17.440 Health and insurance benefits and services.
17.445 Marital or parental status.
17.450 Athletics.
17.455 Textbooks and curricular material.

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

17.500 Employment.
17.505 Employment criteria.
17.510 Recruitment.
17.515 Compensation.
17.520 Job classification and structure.
17.525 Fringe benefits.
17.530 Marital or parental status.
17.535 Effect of state or local law or other requirements.
17.540 Advertising.
17.545 Pre-employment inquiries.
17.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

17.600 Notice of covered programs.
17.605 Enforcement procedures.
17.635 Forms and instructions; coordination.

    Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5 
U.S.C. 301; 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 68 FR 10892, Mar. 6, 2003, unless otherwise noted.



                         Subpart A_Introduction



Sec. 17.100  Purpose and effective date.

    (a) 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 March 6, 2003.
    (b) The provisions established by this part shall be effective for 
all components of the Department, including all Department components 
that are transferred to the Department, except to the extent that a 
Department component already has existing Title IX regulations.



Sec. 17.105  Definitions.

    As used in these Title IX regulations, the term:
    (a) 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.
    (b) Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    (c) 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.
    (d) Department means Department of Homeland Security.
    (e) Designated agency official means the Officer for Civil Rights 
and Civil Liberties, or the designee thereof.
    (f) 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.
    (g) Federal financial assistance means any of the following, when 
authorized or extended under a law administered

[[Page 85]]

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.
    (h) 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.
    (i) 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.
    (j) 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;
    (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.
    (k) Institution of vocational education means a school or 
institution (except an institution of professional or graduate or 
undergraduate higher education) that has as its primary purpose 
preparation of students to pursue a technical, skilled, or semi-skilled 
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.
    (l) 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.
    (m) Reviewing authority means that component of the Department 
delegated authority to review the decisions of hearing officers in cases 
arising under these Title IX regulations.
    (n) Secretary means Secretary of the Department of Homeland 
Security.
    (o) Student means a person who has gained admission.

[[Page 86]]

    (p) 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).
    (q) Title IX regulations means the provisions of this part.
    (r) 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. 17.110  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 March 6, 2003:
    (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. 17.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec. 17.110(a) 
to eliminate existing discrimination on the basis of sex or to eliminate 
the effects of past discrimination whether

[[Page 87]]

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. 17.120  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. 17.205 through 17.235(a).



Sec. 17.125  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 the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec. 17.130  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. 17.135  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

[[Page 88]]

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. 17.140  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. 17.300 through 17.310 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. 17.135, 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 March 6, 2003 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 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. 17.200  Application.

    Except as provided in Sec. Sec. 17.205 through 17.235(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. 17.205  Educational institutions and other entities controlled by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of

[[Page 89]]

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. 17.210  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. 17.215  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 1986 (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. 17.220  Admissions.

    (a) General. 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. 17.225, 17.230, and 17.300 through 17.310, each 
administratively separate unit shall be deemed to be an educational 
institution.
    (c) Application of Sec. Sec. 17.300 through 17.310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec. 17.300 
through 17.310 apply to each recipient. A recipient to which Sec. Sec. 
17.300 through 17.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec. 17.300 through 
17.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec. 17.300 through 17.310 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. Sections 
17.300 through 17.310 do not apply to any public institution of 
undergraduate higher education that traditionally and continually from 
its establishment has had a policy of admitting students of only one 
sex.



Sec. 17.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec. 17.300 through 17.310 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. 17.300 through 
17.310.

[[Page 90]]



Sec. 17.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 17.225 
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. 17.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec. 17.300 through 
17.310 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. 17.225 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. 17.235  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, 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) For purposes of these Title IX regulations, program or activity 
or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i)

[[Page 91]]

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 20 U.S.C. 8801), 
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.



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



Sec. 17.300  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. 17.300 through 17.310 apply, except as 
provided in Sec. Sec. 17.225 and 17.230.
    (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. 17.300 through 17.310 
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

[[Page 92]]

    (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. 17.300 through 17.310 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. 17.235(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. 17.305  Preference in admission.

    A recipient to which Sec. Sec. 17.300 through 17.310 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. 17.300 through 17.310.



Sec. 17.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec. 
17.300 through 17.310 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. 17.110(a), and may choose to undertake 
such efforts as affirmative action pursuant to Sec. 17.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec. 17.300 through 17.310 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. 17.300 through 17.310.



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



Sec. 17.400  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 
17.400 through 17.455 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. 17.300 through 17.310 do not 
apply, or an entity, not a recipient, to which Sec. Sec. 17.300 through 
17.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec. 17.400 
through 17.455, 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

[[Page 93]]

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; or
    (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. 17.405  Housing.

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

[[Page 94]]

    (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. 17.410  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. 17.415  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 physical education classes and activities 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 March 6, 2003. 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 March 6, 2003.
    (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. 17.420  Access to schools operated by LEAs.

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



Sec. 17.425  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

[[Page 95]]

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. 17.430  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.
    (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. 17.450.



Sec. 17.435  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. 
17.500 through 17.550.



Sec. 17.440  Health and insurance benefits and services.

    Subject to Sec. 17.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall

[[Page 96]]

not discriminate on the basis of sex, or provide such benefit, service, 
policy, or plan in a manner that would violate Sec. Sec. 17.500 through 
17.550 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. 17.445  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. 17.235(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. 17.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the

[[Page 97]]

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; and
    (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 March 
6, 2003. 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 
March 6, 2003.



Sec. 17.455  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. 17.500  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 therefore, 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.
    (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. 17.500 
through 17.550, 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. Sections 17.500 through 17.550 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;

[[Page 98]]

    (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. 17.505  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. 17.510  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. 17.500 through 17.550.



Sec. 17.515  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. 17.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 17.550.



Sec. 17.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, the term 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 provisions of Sec. 17.515.
    (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;

[[Page 99]]

    (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. 17.530  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. 17.235(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. 17.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec. 17.500 through 17.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 17.540  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. 17.545  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. 17.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec. 
17.500 through 17.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of

[[Page 100]]

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. 17.600  Notice of covered programs.

    Within 60 days of March 6, 2003, each component of the Department 
that awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such component 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 Department's office 
that enforces Title IX.



Sec. 17.605  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 6 CFR part 21.



Sec. 17.635  Forms and instructions; coordination.

    (a) Forms and instructions. The designated agency official shall 
issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating these Title IX 
regulations.
    (b) Supervision and coordination. The designated agency official may 
from time to time assign to officials of the Department, or to officials 
of other departments or agencies of the Government with the consent of 
such departments or agencies, responsibilities in connection with the 
effectuation of the purposes of Title IX and these Title IX regulations 
(other than responsibility for review as provided in Sec. 17.625(e)), 
including the achievements of effective coordination and maximum 
uniformity within the Department and within the Executive Branch of the 
Government in the application of Title IX and these Title IX regulations 
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 section shall have the same effect as though such action had 
been taken by the designated official of this Department.



 PART 21_NONDISCRIMINATION ON THE BASIS OF RACE, COLOR, OR NATIONAL ORIGIN IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE DEPARTMENT 
OF HOMELAND SECURITY--Table of Contents




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

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

    Authority: 5 U.S.C. 310, 42 U.S.C. 2000d-2000d-7.

    Source: 68 FR 10904, Mar. 6, 2003, unless otherwise noted.



Sec. 21.1  Purpose.

    The purpose of this part is to effectuate the provisions of title VI 
of the Civil Rights Act of 1964 (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,

[[Page 101]]

or be otherwise subjected to discrimination under any program or 
activity receiving Federal financial assistance from the Department of 
Homeland Security. The provisions established by this part shall be 
effective for all components of the Department, including all Department 
components that are transferred to the Department, except to the extent 
that a Department component already has existing title VI regulations.



Sec. 21.3  Application.

    (a) This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the Department, 
including the types of Federal financial assistance listed in appendix A 
to this part. It also applies to money paid, property transferred, or 
other Federal financial assistance extended after the effective date of 
this part pursuant to an application approved before that effective 
date. This part does not apply to:
    (1) Any Federal financial assistance by way of insurance or guaranty 
contracts;
    (2) Money paid, property transferred, or other assistance extended 
before the effective date of this part, except where such assistance was 
subject to the title VI regulations of any agency whose responsibilities 
are now exercised by this Department;
    (3) Any assistance to any individual who is the ultimate 
beneficiary; or
    (4) Any employment practice, under any such program, of any 
employer, employment agency, or labor organization, except to the extent 
described in Sec. 21.5(c). The fact that a type of Federal financial 
assistance is not listed in appendix A to this part 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 appendix A to this part.
    (b) In any program receiving Federal financial assistance in the 
form, or for the acquisition, of real property or an interest in real 
property, to the extent that rights to space on, over, or under any such 
property are included as part of the program receiving that assistance, 
the nondiscrimination requirement of this part shall extend to any 
facility located wholly or in part in that space.



Sec. 21.4  Definitions.

    Unless the context requires otherwise, as used in this part:
    (a) Applicant means a person who submits an application, request, or 
plan required to be approved by the Secretary, or designee thereof, or 
by a primary recipient, as a condition to eligibility for Federal 
financial assistance, and application means such an application, 
request, or plan.
    (b) Facility includes all or any part of structures, equipment, or 
other real or personal property or interests therein, and the provision 
of facilities includes the construction, expansion, renovation, 
remodeling, alteration or acquisition of facilities.
    (c) Federal financial assistance includes:
    (1) Grants and loans of Federal funds;
    (2) The grant or donation of Federal property and interests in 
property;
    (3) The detail of Federal personnel;
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient; and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (d) Primary recipient means any recipient that is authorized or 
required to extend Federal financial assistance to another recipient.
    (e) Program or activity and program mean all of the operations of 
any entity described in paragraphs (e)(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

[[Page 102]]

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. 8801), 
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 (e)(1), (2), or (3) of this section.
    (f) Recipient may mean any State, territory, possession, the 
District of Columbia, or the Commonwealth of Puerto Rico, or any 
political subdivision thereof, or instrumentality thereof, any public or 
private agency, institution, or organization, or other entity, or any 
individual, in any State, territory, possession, the District of 
Columbia, or the Commonwealth of Puerto Rico, to whom Federal financial 
assistance is extended, directly or through another recipient, including 
any successor, assignee, or transferee thereof, but such term does not 
include any ultimate beneficiary.
    (g) Secretary means the Secretary of the Department of Homeland 
Security or, except in Sec. 21.17(e), any delegatee of the Secretary.



Sec. 21.5  Discrimination prohibited.

    (a) General. No person in the United States shall, on the grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under, any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this part applies may not, directly or through contractual or 
other arrangements, on the grounds of race, color, or national origin:
    (i) Deny a person any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to a 
person which is different, or is provided in a different manner, from 
that provided to others under the program;
    (iii) Subject a person to segregation or separate treatment in any 
matter related to his receipt of any service, financial aid, or other 
benefit under the program;
    (iv) Restrict a person in any way in the enjoyment of any advantage 
or privilege enjoyed by others receiving any service, financial aid, or 
other benefit under the program;
    (v) Treat a person differently from others in determining whether he 
satisfies any admission, enrollment, quota, eligibility, membership, or 
other requirement or condition which persons must meet in order to be 
provided any service, financial aid, or other benefit provided under the 
program;
    (vi) Deny a person an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program; or
    (vii) Deny a person the opportunity to participate as a member of a 
planning, advisory, or similar body which is an integral part of the 
program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of person to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of persons to be 
afforded an opportunity to participate in any such program; may not, 
directly or through contractual or other arrangements,

[[Page 103]]

utilize criteria or methods of administration which have the effect of 
subjecting persons to discrimination because of their race, color, or 
national origin or have the effect of defeating or substantially 
impairing accomplishment of the objectives of the program with respect 
to individuals of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding persons from, denying them the benefits of, or subjecting them 
to discrimination under any program to which this regulation applies, on 
the grounds of race, color, or national origin; or with the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of the Act or this part.
    (4) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
include any service, financial aid, or other benefit provided in or 
through a facility provided with the aid of Federal financial 
assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (6) This part does not prohibit the consideration of race, color, or 
national origin if the purpose and effect are to remove or overcome the 
consequences of practices or impediments which have restricted the 
availability of, or participation in, the program or activity receiving 
Federal financial assistance, on the grounds of race, color, or national 
origin. Where prior discriminatory practice or usage tends, on the 
grounds of race, color, or national origin to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program or activity to which this part applies, 
the applicant or recipient must take affirmative action to remove or 
overcome the effects of the prior discriminatory practice or usage. Even 
in the absence of prior discriminatory practice or usage, a recipient in 
administering a program or activity to which this part applies, may take 
affirmative action to assure that no person is excluded from 
participation in or denied the benefits of the program or activity on 
the grounds of race, color, or national origin.
    (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 subject to this part shall not, 
directly or through contractual or other arrangements, subject a person 
to discrimination on the ground of race, color, or national origin in 
its employment practices under such program (including recruitment or 
recruitment advertising, hiring, firing, upgrading, promotion, demotion, 
transfer, layoff, termination, rates of pay or other forms of 
compensation or benefits, selection for training or apprenticeship, and 
use of facilities). Such recipient shall take affirmative action to 
insure that applicants are employed, and employees are treated during 
employment, without regard to their race, color, or national origin. The 
requirements applicable to construction employment under any such 
program shall be those specified in or pursuant to Part III of Executive 
Order 11246 or any Executive order which supersedes it.
    (2) Federal financial assistance to programs under laws funded or 
administered by the Department which have as a primary objective the 
providing of employment include those set forth in appendix B to this 
part.
    (3) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the grounds of 
race, color, or national origin, to exclude individuals from 
participation in, deny them the benefits of, or subject them to 
discrimination under any program to which this regulation applies, the 
provisions of paragraph (c)(1) of this section shall apply to the 
employment practices of the recipient or other persons subject to the 
regulation, to the extent necessary to assure equality of opportunity 
to, and nondiscriminatory treatment of, beneficiaries.

[[Page 104]]

    (d) Facility location or site. A recipient may not make a selection 
of a site or location of a facility if the purpose of that selection, or 
its effect when made, is to exclude individuals from participation in, 
to deny them the benefits of, or to subject them to discrimination under 
any program or activity to which this rule applies, on the grounds of 
race, color, or national origin; or if the purpose is to, or its effect 
when made will substantially impair the accomplishment of the objectives 
of this part.



Sec. 21.7  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, except an application to which paragraph (b) 
of this section applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by, an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this part. Every award of Federal 
financial assistance shall require the submission of such an assurance. 
In the case where the Federal financial assistance is to provide or is 
in the form of personal property, or real property or interest therein 
or structures thereon, the assurance shall obligate the recipient, or, 
in the case of a subsequent transfer, the transferee, for the period 
during which the property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits, or for as long as the 
recipient retains ownership or possession of the property, whichever is 
longer. In all other cases the assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended to 
the program. The Secretary shall specify the form of the foregoing 
assurances, and the extent to which like assurances will be required of 
subgrantees, contractors and subcontractors, transferees, 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 Department to revert title to the 
property in the event of a breach of the covenant where, in the 
discretion of the Secretary, such a condition and right of reverter is 
appropriate to the 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 Secretary may agree, upon 
request of the transferee and if necessary to accomplish such financing, 
and upon such conditions as he deems appropriate, to subordinate such 
right of reversion to the lien of such mortgage or other encumbrance.
    (b) Continuing Federal financial assistance. Every application by a 
State or a State agency for continuing Federal financial assistance to 
which this part applies (including the types of Federal financial 
assistance listed in appendix A to this part) shall as a condition to 
its approval and the extension of any Federal financial assistance 
pursuant to the application:

[[Page 105]]

    (1) Contain or be accompanied by a statement that the program is 
(or, in the case of a new program, will be) conducted in compliance with 
all requirements imposed by or pursuant to this part; and
    (2) Provide or be accompanied by provision for such methods of 
administration for the program as are found by the Secretary to give 
reasonable guarantee that the applicant and all recipients of Federal 
financial assistance under such program will comply with all 
requirements imposed by or pursuant to this part.
    (c) Assurance 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 special 
training projects, for student loans 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.



Sec. 21.9  Compliance information.

    (a) Cooperation and assistance. The Secretary shall to the fullest 
extent practicable seek the cooperation of recipients in obtaining 
compliance with this part and shall provide assistance and guidance to 
recipients to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the Secretary timely, complete, and accurate compliance 
reports at such times, and in such form and containing such information, 
as the Secretary may determine to be necessary to enable him to 
ascertain whether the recipient has complied or is complying with this 
part. In the case 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. In general, recipients should have available for the 
Secretary racial and ethnic data showing the extent to which members of 
minority groups are beneficiaries of programs receiving Federal 
financial assistance.
    (c) Access to sources of information. Each recipient shall permit 
access by the Secretary during normal business hours to such of its 
books, records, accounts, and other sources of information, and its 
facilities as may be pertinent to ascertain compliance with this part. 
Where any information required of a recipient is in the exclusive 
possession of any other agency, institution, or person and this agency, 
institution, or person fails or refuses to furnish this information, the 
recipient shall so certify in its report and shall set forth what 
efforts it has made to obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the Secretary finds necessary to 
apprise such persons of the protections against discrimination assured 
them by the Act and this part.



Sec. 21.11  Conduct of investigations.

    (a) Periodic compliance reviews. The Secretary shall from time to 
time review the practices of recipients to determine whether they are 
complying with this part.
    (b) Complaints. Any person who believes that he or she, or any 
specific class of persons, has been subjected to discrimination 
prohibited by this part may by himself or herself, or by a 
representative, file with the Secretary a written complaint. A complaint 
must be filed not later than 180 days after the date of the alleged 
discrimination,

[[Page 106]]

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



Sec. 21.13  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to:
    (1) A referral to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States (including other titles 
of the Act), or any assurance or other contractual undertaking; and
    (2) Any applicable proceeding under State or local law.
    (b) Noncompliance with Sec. 21.7. If an applicant fails or refuses 
to furnish an assurance required under Sec. 21.7 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section, Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The Department shall 
not be required to provide assistance in such a case during the pendency 
of the administrative proceedings under such paragraph. However, subject 
to Sec. 21.21, the Department shall continue assistance during the 
pendency of such proceedings where such assistance is due and payable 
pursuant to an application approved prior to the effective date of this 
part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. (1) No order suspending, terminating, or refusing 
to grant or continue Federal financial assistance shall become effective 
until:
    (i) The Secretary has advised the applicant or recipient of his 
failure to comply and has determined that compliance cannot be secured 
by voluntary means;
    (ii) There has been an express finding on the record, after 
opportunity for hearing, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part;
    (iii) The action has been approved by the Secretary pursuant to 
Sec. 21.17(e); and
    (iv) The expiration of 30 days after the Secretary has filed with 
the committee of the House and the committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action.

[[Page 107]]

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



Sec. 21.15  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 21.13(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and 
either:
    (1) Fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the Secretary 
that the matter be scheduled for hearing; or
    (2) Advise the applicant or recipient that the matter in question 
has been set down for hearing at a stated place and time. The time and 
place so fixed shall be reasonable and shall be subject to change for 
cause. The complainant, if any, shall be advised of the time and place 
of the hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this paragraph or to 
appear at a hearing for which a date has been set shall be deemed to be 
a waiver of the right to a hearing under section 602 of the Act and 
Sec. 21.13(c) and consent to the making of a decision on the basis of 
such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department in Washington, DC, at a time fixed by the Secretary 
unless he determines that the convenience of the applicant or recipient 
or of the Department requires that another place be selected. Hearings 
shall be held before the Secretary, or at his discretion, before a 
hearing examiner appointed in accordance with section 3105 of title 5, 
United States Code, or detailed under section 3344 of title 5, United 
States Code.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
sections 554 through 557 of title 5, United States Code, and in 
accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both the Department 
and the applicant or recipient shall be entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting the hearing at the outset of or 
during the hearing.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most

[[Page 108]]

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 Secretary may, by agreement with such other 
departments or agencies, where applicable, provide for the conduct of 
consolidated or joint hearings, and for the application to such hearings 
of rules or procedures not inconsistent with this part. Final decisions 
in such cases, insofar as this regulation is concerned, shall be made in 
accordance with Sec. 21.17.



Sec. 21.17  Decisions and notices.

    (a) Procedure on decisions by hearing examiner. If the hearing is 
held by a hearing examiner, the hearing examiner shall either make an 
initial decision, if so authorized, or certify the entire record 
including his recommended findings and proposed decision to the 
Secretary for a final decision, and a copy of such initial decision or 
certification shall be mailed to the applicant or recipient. Where the 
initial decision is made by the hearing examiner the applicant or 
recipient may, within 30 days after the mailing of such notice of 
initial decision, file with the Secretary his exceptions to the initial 
decision, with his reasons therefor. In the absence of exceptions, the 
Secretary may, on his own motion, within 45 days after the initial 
decision, serve on the applicant or recipient a notice that he will 
review the decision. Upon the filing of such exceptions or of notice of 
review, the Secretary shall review the initial decision and issue his 
own decision thereon including the reasons therefor. In the absence of 
either exceptions or a notice of review the initial decision shall, 
subject to paragraph (e) of this section, constitute the final decision 
of the Secretary.
    (b) Decisions on record or review by the Secretary. Whenever a 
record is certified to the Secretary for decision or he reviews the 
decision of a hearing examiner pursuant to paragraph (a) of this 
section, or whenever the Secretary conducts the hearing, the applicant 
or recipient shall be given reasonable opportunity to file with him 
briefs or other written statements of its contentions, and a written 
copy of the final decision of the Secretary shall be sent to the 
applicant or recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 21.15, a decision shall be made by 
the Secretary on the record and a written copy of such decision shall be 
sent to the applicant or recipient, and to the complainant, if any.
    (d) Rulings required. Each decision of a hearing examiner or the 
Secretary shall set forth his ruling on each finding, conclusion, or 
exception presented, and shall identify the requirement or requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Approval by Secretary. Any final decision by an official of the 
Department, other than the Secretary personally, which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this part or the Act, shall promptly be transmitted to 
the Secretary personally, who may approve such decision, may vacate it, 
or remit or mitigate any sanction imposed.

[[Page 109]]

    (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 Secretary that it 
will fully comply with this part.
    (g) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this part and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the Secretary to restore fully its eligibility to receive 
Federal financial assistance. Any such request shall be supported by 
information showing that the applicant or recipient has met the 
requirements of paragraph (g)(1) of this section. If the Secretary 
determines that those requirements have been satisfied, he shall restore 
such eligibility.
    (3) If the Secretary denies any such request, the applicant or 
recipient may submit a request for a hearing in writing, specifying 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 or procedures issued by the Secretary. The 
applicant or recipient will be restored to such eligibility if it proves 
at such a hearing that it satisfied the requirements of paragraph (g)(1) 
of this section. While proceedings under this paragraph are pending, the 
sanctions imposed by the order issued under paragraph (f) of this 
section shall remain in effect.



Sec. 21.19  Judicial review.

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



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

    (a) Effect on other regulations. All regulations, orders, or like 
directions issued before the effective date of this part by any officer 
of the Department which impose requirements designed to prohibit any 
discrimination against individuals on the grounds of race, color, or 
national origin under any program to which this part applies, and which 
authorize the suspension or termination of or refusal to grant or to 
continue Federal financial assistance to any applicant for a 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 may be considered to 
relieve any person of any obligation assumed or imposed under any such 
superseded regulation, order, instruction, or like direction before the 
effective date of this part. Nothing in this part, however, supersedes 
any of the following (including future amendments thereof):
    (1) Executive Order 11246 (3 CFR, 1965 Supp., p. 167) and 
regulations issued thereunder; or
    (2) Any other orders, regulations, or instructions, insofar as such 
orders, regulations, or instructions prohibit discrimination on the 
ground of race, color, or national origin in any program or situation to 
which this part is inapplicable, or prohibit discrimination on any other 
ground.
    (b) Forms and instructions. The Secretary shall issue and promptly 
make available to all interested persons forms and detailed instructions 
and procedures for effectuating this part as applied to programs to 
which this part applies and for which he is responsible.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to officials of the Department, or to officials of other 
departments or

[[Page 110]]

agencies of the Government with the consent of such departments or 
agencies, responsibilities in connection with the effectuation of the 
purposes of title VI of the Act and this part (other than responsibility 
for final decision as provided in Sec. 21.17), including the 
achievement of effective coordination and maximum uniformity within the 
Department and within the Executive Branch of the Government in the 
application of title VI and this part to similar programs and in similar 
situations. Any action taken, determination made or requirement imposed 
by an official of another department or agency acting pursuant to an 
assignment of responsibility under this paragraph shall have the same 
effect as though such action had been taken by the Secretary of this 
Department.



Sec. Appendix A to Part 21--Activities to Which This Part Applies

    Note: Failure to list a type of Federal assistance in appendix A 
shall not mean, if title VI is otherwise applicable, that a program is 
not covered.
    1. Lease of real property and the grant of permits, licenses, 
easements and rights-of-way covering real property under control of the 
U.S. Coast Guard (14 U.S.C. 93 (n) and (o)).
    2. Utilization of U.S. Coast Guard personnel and facilities by any 
State, territory, possession, or political subdivision thereof (14 
U.S.C. 141(a)).
    3. Use of U.S. Coast Guard personnel for duty in connection with 
maritime instruction and training by the States, territories, and the 
Commonwealth of Puerto Rico (14 U.S.C. 148).
    4. Use of obsolete and other U.S. Coast Guard material by sea scout 
service of Boy Scouts of America, any incorporated unit of the U.S. 
Coast Guard auxiliary, and public body or private organization not 
organized for profit (14 U.S.C. 641(a)).
    5. U.S. Coast Guard Auxiliary Program (14 U.S.C. 821-832).
    6. U.S. Coast Guard Boating Safety Financial Assistance program.
    7. U.S. Coast Guard State Access to Oil Spill Liability Trust Fund.
    8. U.S. Coast Guard Bridge Alteration.
    9. Use of Customs personnel and facilities by any State, territory, 
possession, or political subdivision thereof.
    10. Use of Customs personnel for duty in connection with instruction 
and training by the States, territories and the Commonwealth of Puerto 
Rico.
    11. Grants to educational institutions, associations, States, or 
other entities for research, analysis, or programs or strategies 
relating to trade issues.



Sec. Appendix B to Part 21--Activities to Which This Part Applies When a 

  Primary Objective of the Federal Financial Assistance Is To Provide 
                               Employment

    Note: Failure to list a type of Federal assistance in appendix B 
shall not mean, if title VI is otherwise applicable, that a program is 
not covered.
[Reserved]



PART 25_REGULATIONS TO SUPPORT ANTI-TERRORISM BY FOSTERING EFFECTIVE TECHNOLOGIES--Table of Contents




Sec.
25.1 Purpose.
25.2 Definitions.
25.3 Delegation.
25.4 Designation of qualified anti-terrorism technologies.
25.5 Obligations of seller.
25.6 Procedures for designation of qualified anti-terrorism 
          technologies.
25.7 Litigation management.
25.8 Government contractor Defense.
25.9 Procedures for certification of approved products for Homeland 
          Security.
25.10 Confidentiality and protection of intellectual property.

    Authority: Subtitle G, of Title VIII, Public Law 107-296, 116 Stat. 
2238 (6 U.S.C. 441-444).

    Source: 71 FR 33159, June 8, 2006, unless otherwise noted.



Sec. 25.1  Purpose.

    This part implements the Support Anti-terrorism by Fostering 
Effective Technologies Act of 2002, sections 441-444 of title 6, United 
States Code (the ``SAFETY Act'' or ``the Act'').



Sec. 25.2  Definitions.

    Act of Terrorism--The term ``Act of Terrorism'' means any act 
determined to have met the following requirements or such other 
requirements as defined and specified by the Secretary:
    (1) Is unlawful;
    (2) Causes harm, including financial harm, to a person, property, or 
entity, in the United States, or in the case of a domestic United States 
air carrier or

[[Page 111]]

a United States-flag vessel (or a vessel based principally in the United 
States on which United States income tax is paid and whose insurance 
coverage is subject to regulation in the United States), in or outside 
the United States; and
    (3) Uses or attempts to use instrumentalities, weapons or other 
methods designed or intended to cause mass destruction, injury or other 
loss to citizens or institutions of the United States.
    Certification--The term ``Certification'' means (unless the context 
requires otherwise) the certification issued pursuant to section 25.9 
that a Qualified Anti-Terrorism Technology for which a Designation has 
been issued will perform as intended, conforms to the Seller's 
specifications, and is safe for use as intended.
    Contractor--The term ``contractor'' means any person, firm, or other 
entity with whom or with which a Seller has a contract or contractual 
arrangement relating to the manufacture, sale, use, or operation of 
anti-terrorism Technology for which a Designation is issued (regardless 
of whether such contract is entered into before or after the issuance of 
such Designation), including, without limitation, an independent 
laboratory or other entity engaged in testing or verifying the safety, 
utility, performance, or effectiveness of such Technology, or the 
conformity of such Technology to the Seller's specifications.
    Designation--The term ``Designation'' means the designation of a 
Qualified Anti-Terrorism Technology under the SAFETY Act issued by the 
Under Secretary under authority delegated to the Under Secretary by the 
Secretary of Homeland Security.
    Loss--The term ``loss'' means death, bodily injury, or loss of or 
damage to property, including business interruption loss (which is a 
component of loss of or damage to property).
    Noneconomic damages--The term ``noneconomic damages'' means damages 
for losses for physical and emotional pain, suffering, inconvenience, 
physical impairment, mental anguish, disfigurement, loss of enjoyment of 
life, loss of society and companionship, loss of consortium, hedonic 
damages, injury to reputation, and any other nonpecuniary losses.
    Office of SAFETY Act Implementation--The term ``Office of SAFETY Act 
Implementation'' or ``OSAI'' means the office within the Department of 
Homeland Security's Directorate of Science and Technology that assists 
with the implementation of the SAFETY Act. The responsibilities of the 
Office of SAFETY Act Implementation may include, without limitation, 
preparing the SAFETY Act Application Kit, receiving and facilitating the 
evaluation of applications, managing the SAFETY Act Web site and 
otherwise providing the public with information regarding the SAFETY Act 
and the application process.
    Physical harm--The term ``physical harm'' as used in the Act and 
this part means any physical injury to the body, including an injury 
that caused, either temporarily or permanently, partial or total 
physical disability, incapacity or disfigurement. In no event shall 
physical harm include mental pain, anguish, or suffering, or fear of 
injury.
    Qualified Anti-Terrorism Technology or QATT--The term ``'Qualified 
Anti-Terrorism Technology'' or ``QATT'' means any Technology (including 
information technology) designed, developed, modified, procured, or sold 
for the purpose of preventing, detecting, identifying, or deterring acts 
of terrorism or limiting the harm such acts might otherwise cause, for 
which a Designation has been issued pursuant to this part.
    SAFETY Act or Act--The term ``SAFETY Act'' or ``Act'' means the 
Support Anti-terrorism by Fostering Effective Technologies Act of 2002, 
sections 441-444 of title 6, United States Code.
    SAFETY Act Application Kit --The term ``SAFETY Act Application Kit'' 
means the Application Kit containing the instructions and forms 
necessary to apply for Designation or Certification. The SAFETY Act 
Application Kit shall be published at http://www.safetyact.gov or made 
available in hard copy upon written request to: Directorate of Science 
and Technology, SAFETY Act/room 4320, Department of Homeland Security, 
Washington, DC 20528.

[[Page 112]]

    SAFETY Act Confidential Information--Any and all information and 
data voluntarily submitted to the Department under this part (including 
Applications, Pre-Applications, other forms, supporting documents and 
other materials relating to any of the foregoing, and responses to 
requests for additional information), including, but not limited to, 
inventions, devices, Technology, know-how, designs, copyrighted 
information, trade secrets, confidential business information, analyses, 
test and evaluation results, manuals, videotapes, contracts, letters, 
facsimile transmissions, electronic mail and other correspondence, 
financial information and projections, actuarial calculations, liability 
estimates, insurance quotations, and business and marketing plans. 
Notwithstanding the foregoing, ``SAFETY Act Confidential Information'' 
shall not include any information or data that is in the public domain 
or becomes part of the public domain by any means other than the 
violation of this section.
    Secretary--The term ``Secretary'' means the Secretary of Homeland 
Security as established by section 102 of the Homeland Security Act of 
2002.
    Seller--The term ``Seller'' means any person, firm, or other entity 
that sells or otherwise provides Qualified Anti-Terrorism Technology to 
any customer(s) and to whom or to which (as appropriate) a Designation 
and/or Certification has been issued under this Part (unless the context 
requires otherwise).
    Technology--The term ``Technology'' means any product, equipment, 
service (including support services), device, or technology (including 
information technology) or any combination of the foregoing. Design 
services, consulting services, engineering services, software 
development services, software integration services, threat assessments, 
vulnerability studies, and other analyses relevant to homeland security 
may be deemed a Technology under this part.
    Under Secretary--The term ``Under Secretary'' means the Under 
Secretary for Science and Technology of the Department of Homeland 
Security.



Sec. 25.3  Delegation.

    All of the Secretary's responsibilities, powers, and functions under 
the SAFETY Act, except the authority to declare that an act is an Act of 
Terrorism for purposes of section 865(2) of the SAFETY Act, may be 
exercised by the Under Secretary for Science and Technology of the 
Department of Homeland Security or the Under Secretary's designees.



Sec. 25.4  Designation of qualified anti-terrorism technologies.

    (a) General. The Under Secretary may Designate as a Qualified Anti-
Terrorism Technology for purposes of the protections under the system of 
litigation and risk management set forth in sections 441-444 of Title 6, 
United States Code, any qualifying Technology designed, developed, 
modified, provided or procured for the specific purpose of preventing, 
detecting, identifying, or deterring acts of terrorism or limiting the 
harm such acts might otherwise cause.
    (b) Criteria to be Considered. (1) In determining whether to issue 
the Designation under paragraph (a) of this section, the Under Secretary 
may exercise discretion and judgment in considering the following 
criteria and evaluating the Technology:
    (i) Prior United States Government use or demonstrated substantial 
utility and effectiveness.
    (ii) Availability of the Technology for immediate deployment in 
public and private settings.
    (iii) Existence of extraordinarily large or extraordinarily 
unquantifiable potential third party liability risk exposure to the 
Seller or other provider of such anti-terrorism Technology.
    (iv) Substantial likelihood that such anti-terrorism Technology will 
not be deployed unless protections under the system of risk management 
provided under sections 441-444 of title 6, United States Code, are 
extended.
    (v) Magnitude of risk exposure to the public if such anti-terrorism 
Technology is not deployed.
    (vi) Evaluation of all scientific studies that can be feasibly 
conducted in order to assess the capability of the Technology to 
substantially reduce risks of harm.

[[Page 113]]

    (vii) Anti-terrorism Technology that would be effective in 
facilitating the defense against acts of terrorism, including 
Technologies that prevent, defeat or respond to such acts.
    (viii) A determination made by Federal, State, or local officials, 
that the Technology is appropriate for the purpose of preventing, 
detecting, identifying or deterring acts of terrorism or limiting the 
harm such acts might otherwise cause.
    (ix) Any other factor that the Under Secretary may consider to be 
relevant to the determination or to the homeland security of the United 
States.
    (2) The Under Secretary has discretion to give greater weight to 
some factors over others, and the relative weighting of the various 
criteria may vary depending upon the particular Technology at issue and 
the threats that the Technology is designed to address. The Under 
Secretary may, in his discretion, determine that failure to meet a 
particular criterion justifies denial of an application under the SAFETY 
Act. However, the Under Secretary is not required to reject an 
application that fails to meet one or more of the criteria. The Under 
Secretary may conclude, after considering all of the relevant criteria 
and any other relevant factors, that a particular Technology merits 
Designation as a Qualified Anti-Terrorism Technology even if one or more 
particular criteria are not satisfied. The Under Secretary's 
considerations will take into account evolving threats and conditions 
that give rise to the need for the anti-terrorism Technologies.
    (c) Use of Standards. From time to time, the Under Secretary may 
develop, issue, revise, adopt, and recommend technical standards for 
various categories or components of anti-terrorism Technologies 
(``Adopted Standards''). In the case of Adopted Standards that are 
developed by the Department or that the Department has the right or 
license to reproduce, the Department will make such standards available 
to the public consistent with necessary protection of sensitive homeland 
security information. In the case of Adopted Standards that the 
Department does not have the right or license to reproduce, the 
Directorate of Science and Technology will publish a list and summaries 
of such standards and may publish information regarding the sources for 
obtaining copies of such standards. Compliance with any Adopted Standard 
or other technical standards that are applicable to a particular anti-
terrorism Technology may be considered in determining whether a 
Technology will be Designated pursuant to paragraph (a) of this section. 
Depending on whether an Adopted Standard otherwise meets the criteria 
set forth in section 862 of the Homeland Security Act; 6 U.S.C. 441, the 
Adopted Standard itself may be deemed a Technology that may be 
Designated as a Qualified Anti-Terrorism Technology.
    (d) Consideration of Substantial Equivalence. In considering the 
criteria in paragraph (b) of this section, or evaluating whether a 
particular anti-terrorism Technology complies with any Adopted Standard 
referenced in paragraph (c) of this section, the Under Secretary may 
consider evidence that the Technology is substantially equivalent to 
other Technologies (``Predicate Technologies'') that previously have 
been Designated as Qualified Anti-Terrorism Technologies under the 
SAFETY Act. A Technology may be deemed to be substantially equivalent to 
a Predicate Technology if:
    (1) It has the same intended use as the Predicate Technology; and
    (2) It has the same or substantially similar performance or 
technological characteristics as the Predicate Technology.
    (e) Pre-Application Consultations. To the extent that he deems it to 
be appropriate, the Under Secretary may consult with prospective and 
current SAFETY Act applicants regarding their particular anti-terrorism 
Technologies. Prospective applicants may request such consultations 
through the Office of SAFETY Act Implementation. The confidentiality 
provisions in Sec. 25.10 shall be applicable to such consultations.
    (f) Developmental Testing & Evaluation (DT&E) Designations. With 
respect to any Technology that is being developed, tested, evaluated, 
modified or is otherwise being prepared for deployment for the purpose 
of preventing, detecting, identifying, or deterring acts

[[Page 114]]

of terrorism or limiting the harm such acts might otherwise cause, the 
Under Secretary may Designate such Technology as a Qualified Anti-
Terrorism Technology and make such Technology eligible for the 
protections under the system of litigation and risk management set forth 
in sections 441-444 of title 6, United States Code. A Designation made 
pursuant to this paragraph shall be referred to as a ``DT&E 
Designation,'' and shall confer all of the rights, privileges and 
obligations that accompany Designations made pursuant to paragraph (a) 
of this section except as modified by the terms of this paragraph or the 
terms of the particular DT&E Designation. The intent of this paragraph 
is to make eligible for SAFETY Act protections qualifying Technologies 
that are undergoing testing and evaluation and that may need to be 
deployed in the field either for developmental testing and evaluation 
purposes or on an emergency basis, including during a period of 
heightened risk. DT&E Designations shall describe the subject Technology 
(in such detail as the Under Secretary deems to be appropriate); 
identify the Seller of the subject Technology; be limited to the period 
of time set forth in the applicable DT&E Designation, which in no 
instance shall exceed a reasonable period for testing or evaluating the 
Technology (presumptively not longer than 36 months); be terminable by 
the Under Secretary at any time upon notice to the Seller; be subject to 
the limitations on the use or deployment of the QATT set forth in the 
DT&E Designation; and be subject to such other limitations as 
established by the Under Secretary. The protections associated with a 
DT&E Designation shall apply only during the period specified in the 
applicable DT&E Designation. Consent of the Seller of a QATT Designated 
pursuant to this paragraph will be a condition precedent to the 
establishment of any deployment or use condition and any other 
obligation established by the Under Secretary pursuant to this 
paragraph. Those seeking a DT&E Designation for a QATT pursuant to this 
paragraph (f) shall follow the procedures for DT&E Designations set 
forth in the SAFETY Act Application Kit.



Sec. 25.5  Obligations of seller.

    (a) Liability Insurance Required. The Seller shall obtain liability 
insurance of such types and in such amounts as shall be required in the 
applicable Designation, which shall be the amounts and types certified 
by the Under Secretary to satisfy otherwise compensable third-party 
claims arising out of, relating to, or resulting from an Act of 
Terrorism when Qualified Anti-Terrorism Technologies have been deployed 
in defense against, response to, or recovery from, such act. The Under 
Secretary may request at any time that the Seller of a Qualified Anti-
Terrorism Technology submit any information that would:
    (1) Assist in determining the amount of liability insurance 
required; or
    (2) Show that the Seller or any other provider of Qualified Anti-
Terrorism Technology otherwise has met all of the requirements of this 
section.
    (b) Amount of Liability Insurance. (1) The Under Secretary may 
determine the appropriate amounts and types of liability insurance that 
the Seller will be required to obtain and maintain based on criteria he 
may establish to satisfy compensable third-party claims arising from, 
relating to or resulting from an Act of Terrorism. In determining the 
amount of liability insurance required, the Under Secretary may consider 
any factor, including, but not limited to, the following:
    (i) The particular Technology at issue;
    (ii) The amount of liability insurance the Seller maintained prior 
to application;
    (iii) The amount of liability insurance maintained by the Seller for 
other Technologies or for the Seller's business as a whole;
    (iv) The amount of liability insurance typically maintained by 
Sellers of comparable Technologies;
    (v) Information regarding the amount of liability insurance offered 
on the world market;
    (vi) Data and history regarding mass casualty losses;
    (vii) The intended use of the Technology; and
    (viii) The possible effects of the cost of insurance on the price of 
the product, and the possible consequences

[[Page 115]]

thereof for development, production, or deployment of the Technology.
    (2) In determining the appropriate amounts and types of insurance 
that a particular Seller is obligated to carry, the Under Secretary may 
not require any type of insurance or any amount of insurance that is not 
available on the world market, and may not require any type or amount of 
insurance that would unreasonably distort the sales price of the 
Seller's anti-terrorism Technology
    (c) Scope of Coverage. (1) Liability insurance required to be 
obtained pursuant to this section shall, in addition to the Seller, 
protect the following, to the extent of their potential liability for 
involvement in the manufacture, qualification, sale, use, or operation 
of Qualified Anti-Terrorism Technologies deployed in defense against, 
response to, or recovery from, an Act of Terrorism:
    (i) Contractors, subcontractors, suppliers, vendors and customers of 
the Seller.
    (ii) Contractors, subcontractors, suppliers, and vendors of the 
customer.
    (2) Notwithstanding the foregoing, in appropriate instances the 
Under Secretary will specify in a particular Designation that, 
consistent with the Department's interpretation of the SAFETY Act, an 
action for the recovery of damages proximately caused by a Qualified 
Anti-Terrorism Technology that arises out of, relates to, or results 
from an Act of Terrorism may properly be brought only against the Seller 
and, accordingly, the liability insurance required to be obtained 
pursuant to this section shall be required to protect only the Seller.
    (d) Third Party Claims. To the extent available pursuant to the 
SAFETY Act, liability insurance required to be obtained pursuant to this 
section shall provide coverage against third party claims arising out 
of, relating to, or resulting from an Act of Terrorism when the 
applicable Qualified Anti-Terrorism Technologies have been deployed in 
defense against, response to, or recovery from such act.
    (e) Reciprocal Waiver of Claims. The Seller shall enter into a 
reciprocal waiver of claims with its contractors, subcontractors, 
suppliers, vendors, and customers, and contractors and subcontractors of 
the customers, involved in the manufacture, sale, use, or operation of 
Qualified Anti-Terrorism Technologies, under which each party to the 
waiver agrees to be responsible for losses, including business 
interruption losses, that it sustains, or for losses sustained by its 
own employees resulting from an activity resulting from an Act of 
Terrorism when Qualified Anti-Terrorism Technologies have been deployed 
in defense against, response to, or recovery from such act. 
Notwithstanding the foregoing, provided that the Seller has used 
diligent efforts in good faith to obtain all required reciprocal 
waivers, obtaining such waivers shall not be a condition precedent or 
subsequent for, nor shall the failure to obtain one or more of such 
waivers adversely affect, the issuance, validity, effectiveness, 
duration, or applicability of a Designation or a Certification. Nothing 
in this paragraph (e) shall be interpreted to render the failure to 
obtain one or more of such waivers a condition precedent or subsequent 
for the issuance, validity, effectiveness, duration, or applicability of 
a Designation or a Certification.
    (f) Information to be Submitted by the Seller. As part of any 
application for a Designation, the Seller shall provide all information 
that may be requested by the Under Secretary or his designee, regarding 
a Seller's liability insurance coverage applicable to third-party claims 
arising out of, relating to, or resulting from an Act of Terrorism when 
the Seller's Qualified Anti-Terrorism Technology has been deployed in 
defense against, response to, or recovery from such act, including:
    (1) Names of insurance companies, policy numbers, and expiration 
dates;
    (2) A description of the types and nature of such insurance 
(including the extent to which the Seller is self-insured or intends to 
self-insure);
    (3) Dollar limits per occurrence and annually of such insurance, 
including any applicable sublimits;
    (4) Deductibles or self-insured retentions, if any, that are 
applicable;
    (5) Any relevant exclusions from coverage under such policies or 
other factors that would affect the amount of

[[Page 116]]

insurance proceeds that would be available to satisfy third party claims 
arising out of, relating to, or resulting from an Act of Terrorism;
    (6) The price for such insurance, if available, and the per-unit 
amount or percentage of such price directly related to liability 
coverage for the Seller's Qualified Anti-Terrorism Technology deployed 
in defense against, or response to, or recovery from an Act of 
Terrorism;
    (7) Where applicable, whether the liability insurance, in addition 
to the Seller, protects contractors, subcontractors, suppliers, vendors 
and customers of the Seller and contractors, subcontractors, suppliers, 
vendors and customers of the customer to the extent of their potential 
liability for involvement in the manufacture, qualification, sale, use 
or operation of Qualified Anti-terrorism Technologies deployed in 
defense against, response to, or recovery from an Act of Terrorism; and
    (8) Any limitations on such liability insurance.
    (g) Under Secretary's Certification. For each Qualified Anti-
Terrorism Technology, the Under Secretary shall certify the amount of 
liability insurance the Seller is required to carry pursuant to section 
443(a) of title 6, United States Code, and paragraphs (a), (b), and (c) 
of this section. The Under Secretary shall include the insurance 
certification under this section as a part of the applicable 
Designation. The insurance certification may specify a period of time 
for which such insurance certification will apply. The Seller of a 
Qualified Anti-Terrorism Technology may at any time petition the Under 
Secretary for a revision of the insurance certification under this 
section, and the Under Secretary may revise such insurance certification 
in response to such a petition. The Under Secretary may at any time 
request information from the Seller regarding the insurance carried by 
the Seller or the amount of insurance available to the Seller.
    (h) Seller's Continuing Obligations. Within 30 days after the Under 
Secretary's insurance certification required by paragraph (g) of this 
section, the Seller shall certify to the Under Secretary in writing that 
the Seller has obtained the required insurance. Within 30 days of each 
anniversary of the issuance of a Designation or at any other time as he 
may determine, the Under Secretary may require, by written notice to the 
Seller, that the Seller certify to the Under Secretary in writing that 
the Seller has maintained the required insurance. The Under Secretary 
may terminate a Designation if the Seller fails to provide any of the 
insurance certifications required by this paragraph (h) or provides a 
false certification.



Sec. 25.6  Procedures for designation of qualified anti-terrorism technologies.

    (a) Application Procedure. Any person, firm or other entity seeking 
a Designation shall submit an application to the Under Secretary or such 
other official as may be named from time to time by the Under Secretary. 
Such applications shall be submitted according to the procedures set 
forth in and using the appropriate forms contained in the SAFETY Act 
Application Kit prescribed by the Under Secretary, which shall be made 
available at http://www.safetyact.gov and by mail upon written request 
to: Directorate of Science and Technology, SAFETY Act/room 4320, 
Department of Homeland Security, Washington, DC 20528. The burden is on 
the applicant to make timely submission of all relevant data requested 
in the SAFETY Act Application Kit to substantiate an application for 
Designation. An applicant may withdraw a submitted application at any 
time and for any reason by making a written request for withdrawal with 
the Department. Withdrawal of a SAFETY Act application shall have no 
prejudicial effect on any other application.
    (b) Initial Notification. Within 30 days after receipt of an 
application for a Designation, the Under Secretary his designee shall 
notify the applicant in writing that:
    (1) The application is complete and will be reviewed and evaluated, 
or
    (2) That the application is incomplete, in which case the missing or 
incomplete parts will be specified.

[[Page 117]]

    (c) Review Process. (1) The Under Secretary or his designee will 
review each complete application and any included supporting materials. 
In performing this function, the Under Secretary or his designee may but 
is not required to:
    (i) Request additional information from the Seller;
    (ii) Meet with representatives of the Seller;
    (iii) Consult with, and rely upon the expertise of, any other 
Federal or non-Federal entity;
    (iv) Perform studies or analyses of the subject Technology or the 
insurance market for such Technology; and
    (v) Seek information from insurers regarding the availability of 
insurance for such Technology.
    (2) For Technologies with which a Federal, State, or local 
government agency already has substantial experience or data (through 
the procurement process or through prior use or review), the review may 
rely in part upon such prior experience and, thus, may be expedited. The 
Under Secretary may consider any scientific studies, testing, field 
studies, or other experience with the Technology that he deems 
appropriate and that are available or can be feasibly conducted or 
obtained, including test results produced by an independent laboratory 
or other entity engaged to test or verify the safety, utility, 
performance, in order to assess the effectiveness of the Technology or 
the capability of the Technology to substantially reduce risks of harm. 
Such studies may, in the Under Secretary's discretion, include, without 
limitation:
    (i) Public source studies;
    (ii) Classified and otherwise confidential studies;
    (iii) Studies, tests, or other performance records or data provided 
by or available to the producer of the specific Technology; and
    (iv) Proprietary studies that are available to the Under Secretary.
    (3) In considering whether or the extent to which it is feasible to 
defer a decision on a Designation until additional scientific studies 
can be conducted on a particular Technology, the Under Secretary will 
bring to bear his expertise concerning the protection of the security of 
the United States and will consider the urgency of the need for the 
Technology.
    (d) Action by the Under Secretary. Within 90 days of notification to 
the Seller that an application for a Designation is complete in 
accordance with paragraph (b)(1) of this section, the Under Secretary 
shall take one of the following actions:
    (1) Approve the application and issue an appropriate Designation to 
the applicant for the Technology, which shall include the insurance 
certification required by Sec. 25.5(h) of this Part;
    (2) Notify the applicant in writing that the Technology is 
potentially eligible for a Designation, but that additional specified 
information is needed before a decision may be reached; or
    (3) Deny the application, and notify the applicant in writing of 
such decision. The Under Secretary may extend the 90-day time period for 
up to 45 days upon notice to the Seller. The Under Secretary is not 
required to provide a reason or cause for such extension. The Under 
Secretary's decision shall be final and not subject to review, except at 
the discretion of the Under Secretary.
    (e) Content of Designation. (1) A Designation shall:
    (i) Describe the Qualified Anti-Terrorism Technology (in such detail 
as the Under Secretary deems to be appropriate);
    (ii) Identify the Seller(s) of the Qualified Anti-Terrorism 
Technology;
    (iii) Specify the earliest date of sale of the Qualified Anti-
Terrorism Technology to which the Designation shall apply (which shall 
be determined by the Under Secretary in his discretion, and may be prior 
to, but shall not be later than, the effective date of the Designation);
    (iv) Set forth the insurance certification required by Sec. 
25.5(g); and
    (v) To the extent practicable, include such standards, 
specifications, requirements, performance criteria, limitations, or 
other information as the Department in its sole and unreviewable 
discretion may deem appropriate.
    (2) The Designation may, but need not, specify other entities that 
are required to be covered by the liability insurance required to be 
purchased by

[[Page 118]]

the Seller. The failure to specify a covered person, firm, or other 
entity in a Designation will not preclude the application or 
applicability of the Act's protections to that person, firm, or other 
entity.
    (f) Term of Designation; Renewal. A Designation shall be valid and 
effective for a term of five to eight years (as determined by the Under 
Secretary) commencing on the date of issuance, and the protections 
conferred by the Designation shall continue in full force and effect 
indefinitely to all sales of Qualified Anti-Terrorism Technologies 
covered by the Designation. At any time within two years prior to the 
expiration of the term of the Designation, the Seller may apply for 
renewal of the Designation. The Under Secretary shall make the 
application form for renewal available at http://www.safetyact.gov and 
by mail upon request sent to: Directorate of Science and Technology, 
SAFETY Act/room 4320, Department of Homeland Security, Washington, DC 
20528.
    (g) Government Procurements--(1) Overview. The Under Secretary may 
coordinate the review of a Technology for SAFETY Act purposes in 
connection with a Federal, State, or local government agency procurement 
of an anti-terrorism Technology in any manner he deems appropriate 
consistent with the Act and other applicable law. A determination by the 
Under Secretary to issue a Designation, or not to issue a Designation 
for a particular Technology as a QATT is not a determination that the 
Technology meets, or fails to meet, the requirements of any solicitation 
issued by any Federal government customer or non-Federal government 
customer. Determinations by the Under Secretary with respect to whether 
to issue a Designation for Technologies submitted for his review shall 
be based on the factors identified in Sec. 25.4(b).
    (2) Procedure. Any Federal, State, or local government agency that 
engages in or is planning to engage in the procurement of a Technology 
that potentially qualifies as a Qualified Anti-terrorism Technology, 
through the use of a solicitation of proposals or otherwise, may request 
that the Under Secretary issue a notice stating that the Technology to 
be procured either affirmatively or presumptively satisfies the 
technical criteria necessary to be deemed a Qualified Anti-Terrorism 
Technology (a ``Pre-Qualification Designation Notice''). The Pre-
Qualification Designation Notice will provide that the vendor(s) chosen 
to provide the Technology (the ``Selected Vendor(s)''), upon submitting 
an application for SAFETY Act Designation will: Receive expedited review 
of their application for Designation; either affirmatively or 
presumptively (as the case may be) be deemed to have satisfied the 
technical criteria for SAFETY Act Designation with respect to the 
Technology identified in the Pre-Qualification Designation Notice; and 
be authorized to submit a streamlined application as set forth in the 
Pre-Qualification Designation Notice. In instances in which the subject 
procurement involves Technology with respect to which a Block 
Designation or Block Certification has been issued, the Department may 
determine that the vendor providing such Technology will affirmatively 
receive Designation or Certification with respect to such Technology, 
provided the vendor satisfy each other applicable requirement for 
Designation or Certification. Government agencies seeking a Pre-
Qualification Designation Notice shall submit a written request using 
the ``Procurement Pre-Qualification Request'' form prescribed by the 
Under Secretary and made available at http://www.safetyact.gov and by 
mail upon request sent to: Directorate of Science and Technology, SAFETY 
Act/room 4320, Department of Homeland Security, Washington, DC 20528.
    (3) Actions. Within 60 days after the receipt of a complete 
Procurement Pre-Qualification Request, the Under Secretary shall take 
one of the following actions:
    (i) Approve the Procurement Pre-Qualification Request and issue an 
appropriate Pre-Qualification Designation Notice to the requesting 
agency that it may include in the government contract or in the 
solicitation materials, as appropriate; or
    (ii) Notify the requesting agency in writing that the relevant 
procurement

[[Page 119]]

is potentially eligible for a Pre-Qualification Designation Notice, but 
that additional information is needed before a decision may be reached; 
or
    (iii) Deny the Procurement Pre-Qualification Request and notify the 
requesting agency in writing of such decision, including the reasons for 
such denial.
    (4) Contents of Notice. A Pre-Qualification Designation Notice shall 
contain, at a minimum, the following:
    (i) A detailed description of and detailed specifications for the 
Technology to which the Pre-Qualification Designation Notice applies, 
which may incorporate by reference all or part of the procurement 
solicitation documents issued or to be issued by the requesting agency;
    (ii) A statement that the Technology to which the Pre-Qualification 
Designation Notice applies satisfies the technical criteria to be deemed 
a Qualified Anti-Terrorism Technology and that the Selected Vendor(s) 
may presumptively or will qualify for the issuance of a Designation for 
such Technology upon compliance with the terms and conditions set forth 
in such Pre-Qualification Designation Notice and the approval of the 
streamlined application;
    (iii) A list of the portions of the application referenced in Sec. 
25.6(a) that the Selected Vendor(s) must complete and submit to the 
Department in order to obtain Designation and the appropriate period of 
time for such submission;
    (iv) The period of time within which the Under Secretary will take 
action upon such submission;
    (v) The date of expiration of such Pre-Qualification Designation 
Notice; and
    (vi) Any other terms or conditions that the Under Secretary deems to 
be appropriate in his discretion.
    (5) Review of Completed Applications. The application for 
Designation from the Selected Vendor(s) shall be considered, processed, 
and acted upon in accordance with the procedures set forth in Sec. 25.6 
(which shall be deemed to be modified by the terms and conditions set 
forth in the applicable Pre-Qualification Designation Notice). However, 
the review and evaluation of the Technology to be procured from the 
Selected Vendor(s), in relation to the criteria set forth in Sec. 
25.4(b), shall ordinarily consist of a validation that that the 
Technology complies with the detailed description of and detailed 
specifications for the Technology set forth in the applicable Pre-
Qualification Designation Notice.
    (h) Block Designations. (1) From time to time, the Under Secretary, 
in response to an application submitted pursuant to Sec. 25.6(a) or 
upon his own initiative, may issue a Designation that is applicable to 
any person, firm, or other entity that is a qualified Seller of the QATT 
described in such Designation (a ``Block Designation''). A Block 
Designation will be issued only for Technology that relies on 
established performance standards or defined technical characteristics. 
All Block Designations shall be published by the Department within ten 
days after the issuance thereof at http://www.safetyact.gov, and copies 
may also be obtained by mail by sending a request to: Directorate of 
Science and Technology, SAFETY Act/room 4320, Department of Homeland 
Security, Washington, DC 20528. Any person, firm, or other entity that 
desires to qualify as a Seller of a QATT that has received a Block 
Designation shall complete only such portions of the application 
referenced in Sec. 25.6(a) as are specified in such Block Designation 
and shall submit an application to the Department in accordance with 
Sec. 25.6(a) and the terms of the Block Designation. Applicants seeking 
to be qualified Sellers of a QATT pursuant to a Block Designation will 
receive expedited review of their applications and shall not be required 
to provide information with respect to the technical merits of the QATT 
that has received Block Designation. Within 60 days (or such other 
period of time as may be specified in the applicable Block Designation) 
after the receipt by the Department of a complete application, the Under 
Secretary shall take one of the following actions:
    (i) Approve the application and notify the applicant in writing of 
such approval, which notification shall include the certification 
required by Sec. 25.5(g); or

[[Page 120]]

    (ii) Deny the application, and notify the applicant in writing of 
such decision, including the reasons for such denial.
    (2) If the application is approved, commencing on the date of such 
approval the applicant shall be deemed to be a Seller under the 
applicable Block Designation for all purposes under the SAFETY Act, this 
part, and such Block Designation. A Block Designation shall be valid and 
effective for a term of five to eight years (as determined by the Under 
Secretary in his discretion) commencing on the date of issuance, and may 
be renewed or extended by the Under Secretary at his own initiative or 
in response to an application for renewal submitted by a qualified 
Seller under such Block Designation in accordance with Sec. 25.6(h). 
Except as otherwise specifically provided in this paragraph, a Block 
Designation shall be deemed to be a Designation for all purposes under 
the SAFETY Act and this part.
    (i) Other Bases for Expedited Review of Applications. The Under 
Secretary may identify other categories or types of Technologies for 
which expedited processing may be granted. For example, the Under 
Secretary may conduct expedited processing for applications addressing a 
particular threat or for particular types of anti-terrorism 
Technologies. The Under Secretary shall notify the public of any such 
opportunities for expedited processing by publishing such notice in the 
Federal Register.
    (j) Transfer of Designation. Except as may be restricted by the 
terms and conditions of a Designation, any Designation may be 
transferred and assigned to any other person, firm, or other entity to 
which the Seller transfers and assigns all right, title, and interest in 
and to the Technology covered by the Designation, including the 
intellectual property rights therein (or, if the Seller is a licensee of 
the Technology, to any person, firm, or other entity to which such 
Seller transfers all of its right, title, and interest in and to the 
applicable license agreement). Such transfer and assignment of a 
Designation will not be effective unless and until the Under Secretary 
is notified in writing of the transfer using the ``Application for 
Transfer of Designation'' form issued by the Under Secretary (the Under 
Secretary shall make this application form available at http://
www.safetyact.gov and by mail by written request sent to: Directorate of 
Science and Technology, SAFETY Act/room 4320, Department of Homeland 
Security, Washington, DC 20528). Upon the effectiveness of such transfer 
and assignment, the transferee will be deemed to be a Seller in the 
place and stead of the transferor with respect to the applicable 
Technology for all purposes under the SAFETY Act, this part, and the 
transferred Designation. The transferred Designation will continue to 
apply to the transferor with respect to all transactions and occurrences 
that occurred through the time at which the transfer and assignment of 
the Designation became effective, as specified in the applicable 
Application for Transfer of Designation.
    (k) Application of Designation to Licensees. Except as may be 
restricted by the terms and conditions of a Designation, any Designation 
shall apply to any other person, firm, or other entity to which the 
Seller licenses (exclusively or nonexclusively) the right to 
manufacture, use, or sell the Technology, in the same manner and to the 
same extent that such Designation applies to the Seller, effective as of 
the date of commencement of the license, provided that the Seller 
notifies the Under Secretary of such license by submitting, within 30 
days after such date of commencement, a ``Notice of License of Qualified 
Anti-terrorism Technology'' form issued by the Under Secretary. The 
Under Secretary shall make this form available at http://
www.safetyact.gov and by mail upon request sent to: Directorate of 
Science and Technology, SAFETY Act/room 4320, Department of Homeland 
Security, Washington, DC 20528. Such notification shall not be required 
for any licensee listed as a Seller on the applicable Designation.
    (l) Significant Modification of Qualified Anti-terrorism 
Technologies. (1) The Department recognizes that Qualified

[[Page 121]]

Anti-Terrorism Technologies may routinely undergo changes or 
modifications in their manufacturing, materials, installation, 
implementation, operating processes, component assembly, or in other 
respects from time to time. When a Seller makes routine changes or 
modifications to a Qualified Anti-Terrorism Technology, such that the 
QATT remains within the scope of the description set forth in the 
applicable Designation or Certification, the Seller shall not be 
required to provide notice under this subsection, and the changes or 
modifications shall not adversely affect the force or effect of the 
Seller's QATT Designation or Certification.
    (2) A Seller shall promptly notify the Department and provide 
details of any change or modification to a QATT that causes the QATT no 
longer to be within the scope of the Designation or Certification by 
submitting to the Department a completed ``Notice of Modification to 
Qualified Anti-Terrorism Technology'' form issued by the Under Secretary 
(a ``Modification Notice''). A Seller is not required to notify the 
Department of any change or modification of a particular Qualified Anti-
Terrorism Technology that is made post-sale by a purchaser unless the 
Seller has consented expressly to the modification. The Under Secretary 
shall make an appropriate form available at http://www.safetyact.gov and 
by mail upon request sent to: Directorate of Science and Technology, 
SAFETY Act/room 4320, Department of Homeland Security, Washington, DC 
20528. The Department will promptly acknowledge receipt of a 
Modification Notice by providing the relevant Seller with written notice 
to that effect. Within 60 days of the receipt of a Modification Notice, 
the Under Secretary may, in his sole and unreviewable discretion:
    (i) Inform the submitting Seller that the QATT as changed or 
modified is consistent with, and is not outside the scope of, the 
Seller's Designation or Certification;
    (ii) Issue to the Seller a modified Designation or Certification 
incorporating some or all of the notified changes or modifications;
    (iii) Seek further information regarding the changes or 
modifications and temporarily suspend the 60-day period of review;
    (iv) Inform the submitting Seller that the changes or modifications 
might cause the QATT as changed or modified to be outside the scope of 
the Seller's Designation or Certification, and require further review 
and consideration by the Department;
    (v) Inform the submitting Seller that the QATT as changed or 
modified is outside the scope of the subject Seller's Designation or 
Certification, and require that the QATT be brought back into 
conformance with the Seller's Designation or Certification; or
    (vi) If the Seller fails to bring the subject QATT into conformance 
in accordance with the Under Secretary's direction pursuant to paragraph 
(l)(2)(v) of this section, issue a public notice stating that the QATT 
as changed or modified is outside the scope of the submitting Seller's 
Designation or Certification and, consequentially, that such Designation 
or Certification is not applicable to the QATT as changed or modified. 
If the Under Secretary does not take one or more of such actions within 
the 60-day period following the Department's receipt of a Seller's 
Modification Notice, the changes or modifications identified in the 
Modification Notice will be deemed to be approved by the Under Secretary 
and the QATT, as changed or modified, will be conclusively established 
to be within the scope of the description of the QATT in the Seller's 
Designation or Certification.
    (3) Notwithstanding anything to the contrary herein, a Seller's 
original QATT Designation or Certification will continue in full force 
and effect in accordance with its terms unless modified, suspended, or 
terminated by the Under Secretary in his discretion, including during 
the pendency of the review of the Seller's Modification Notice. In no 
event will any SAFETY Act Designation or Certification terminate 
automatically or retroactively under this section. A Seller is not 
required to notify the Under Secretary of any change or modification 
that is made post-sale by a purchaser or end-user of the QATT without 
the Seller's consent, but the Under Secretary may, in appropriate 
circumstances, require an end-

[[Page 122]]

user to provide periodic reports on modifications or permit inspections 
or audits.



Sec. 25.7  Litigation management.

    (a) Liability for all claims against a Seller arising out of, 
relating to, or resulting from an Act of Terrorism when such Seller's 
Qualified Anti-Terrorism Technology has been deployed in defense 
against, response to, or recovery from such act and such claims result 
or may result in loss to the Seller shall not be in an amount greater 
than the limits of liability insurance coverage required to be 
maintained by the Seller under this section or as specified in the 
applicable Designation.
    (b) In addition, in any action for damages brought under section 442 
of Title 6, United States Code:
    (1) No punitive damages intended to punish or deter, exemplary 
damages, or other damages not intended to compensate a plaintiff for 
actual losses may be awarded, nor shall any party be liable for interest 
prior to the judgment;
    (2) Noneconomic damages may be awarded against a defendant only in 
an amount directly proportional to the percentage of responsibility of 
such defendant for the harm to the plaintiff, and no plaintiff may 
recover noneconomic damages unless the plaintiff suffered physical harm; 
and
    (3) Any recovery by a plaintiff shall be reduced by the amount of 
collateral source compensation, if any, that the plaintiff has received 
or is entitled to receive as a result of such Acts of Terrorism that 
result or may result in loss to the Seller.
    (c) Without prejudice to the authority of the Under Secretary to 
terminate a Designation pursuant to paragraph (h) of Sec. 25.6, the 
liability limitations and reductions set forth in this section shall 
apply in perpetuity to all sales or deployments of a Qualified Anti-
Terrorism Technology in defense against, response to, or recovery from 
any Act of Terrorism that occurs on or after the effective date of the 
Designation applicable to such Qualified Anti-Terrorism Technology, 
regardless of whether any liability insurance coverage required to be 
obtained by the Seller is actually obtained or maintained or not, 
provided that the sale of such Qualified Anti-Terrorism Technology was 
consummated by the Seller on or after the earliest date of sale of such 
Qualified Anti-Terrorism Technology specified in such Designation and 
prior to the earlier of the expiration or termination of such 
Designation.
    (d) There shall exist only one cause of action for loss of property, 
personal injury, or death for performance or non-performance of the 
Seller's Qualified Anti-Terrorism Technology in relation to an Act of 
Terrorism. Such cause of action may be brought only against the Seller 
of the Qualified Anti-Terrorism Technology and may not be brought 
against the buyers, the buyers' contractors, or downstream users of the 
Technology, the Seller's suppliers or contractors, or any other person 
or entity. In addition, such cause of action must be brought in the 
appropriate district court of the United States.



Sec. 25.8  Government contractor Defense.

    (a) Criteria for Certification. The Under Secretary may issue a 
Certification for a Qualified Anti-Terrorism Technology as an Approved 
Product for Homeland Security for purposes of establishing a rebuttable 
presumption of the applicability of the government contractor defense. 
In determining whether to issue such Certification, the Under Secretary 
or his designee shall conduct a comprehensive review of the design of 
such Technology and determine whether it will perform as intended, 
conforms to the Seller's specifications, and is safe for use as 
intended. The Seller shall provide safety and hazard analyses and other 
relevant data and information regarding such Qualified Anti-Terrorism 
Technology to the Department in connection with an application. The 
Under Secretary or his designee may require that the Seller submit any 
information that the Under Secretary or his designee considers relevant 
to the application for approval. The Under Secretary or his designee may 
consult with, and rely upon the expertise of, any other governmental or 
non-governmental person, firm, or entity, and may consider test results 
produced by an independent laboratory or other person,

[[Page 123]]

firm, or other entity engaged by the Seller.
    (b) Extent of Liability. Should a product liability or other lawsuit 
be filed for claims arising out of, relating to, or resulting from an 
Act of Terrorism when Qualified Anti-Terrorism Technologies Certified by 
the Under Secretary as provided in Sec. Sec. 25.8 and 25.9 of this part 
have been deployed in defense against or response or recovery from such 
act and such claims result or may result in loss to the Seller, there 
shall be a rebuttable presumption that the government contractor defense 
applies in such lawsuit. This presumption shall only be overcome by 
clear and convincing evidence showing that the Seller acted fraudulently 
or with willful misconduct in submitting information to the Department 
during the course of the consideration of such Technology under this 
section and Sec. 25.9 of this part. A claimant's burden to show fraud 
or willful misconduct in connection with a Seller's SAFETY Act 
application cannot be satisfied unless the claimant establishes there 
was a knowing and deliberate intent to deceive the Department. This 
presumption of the government contractor defense shall apply regardless 
of whether the claim against the Seller arises from a sale of the 
product to Federal Government or non-Federal Government customers. Such 
presumption shall apply in perpetuity to all deployments of a Qualified 
Anti-Terrorism Technology (for which a Certification has been issued by 
the Under Secretary as provided in this section and Sec. 25.9 of this 
part) in defense against, response to, or recovery from any Act of 
Terrorism that occurs on or after the effective date of the 
Certification applicable to such Technology, provided that the sale of 
such Technology was consummated by the Seller on or after the earliest 
date of sale of such Technology specified in such Certification (which 
shall be determined by the Under Secretary in his discretion, and may be 
prior to, but shall not be later than, such effective date) and prior to 
the expiration or termination of such Certification.
    (c) Establishing Applicability of the Government Contractor Defense. 
The Under Secretary will be exclusively responsible for the review and 
approval of anti-terrorism Technology for purposes of establishing the 
government contractor defense in any product liability lawsuit for 
claims arising out of, relating to, or resulting from an Act of 
Terrorism when Qualified Anti-Terrorism Technologies approved by the 
Under Secretary, as provided in this final rule, have been deployed in 
defense against or response or recovery from such act and such claims 
result or may result in loss to the Seller. The Certification of a 
Technology as an Approved Product for Homeland Security shall be the 
only evidence necessary to establish that the Seller of the Qualified 
Anti-Terrorism Technology that has been issue a Certification is 
entitled to a presumption of dismissal from a cause of action brought 
against a Seller arising out of, relating to, or resulting from an Act 
of Terrorism when the Qualified Anti-Terrorism Technology was deployed 
in defense against or response to or recovery from such Act of 
Terrorism. This presumption of dismissal is based upon the statutory 
government contractor defense conferred by the SAFETY Act.



Sec. 25.9  Procedures for certification of approved products for Homeland Security.

    (a) Application Procedure. An applicant seeking a Certification of 
anti-terrorism Technology as an Approved Product for Homeland Security 
under Sec. 25.8 shall submit information supporting such request to the 
Under Secretary. The Under Secretary shall make application forms 
available at http://www.safetyact.gov, and copies may also be obtained 
by mail by sending a request to: Directorate of Science and Technology, 
SAFETY Act/room 4320, Department of Homeland Security, Washington, DC 
20528. An application for a Certification may not be filed unless the 
applicant has also filed an application for a Designation for the same 
Technology in accordance with Sec. 25.6(a). Such applications may be 
filed simultaneously and may be reviewed simultaneously by the 
Department.
    (b) Initial Notification. Within 30 days after receipt of an 
application for a Certification, the Under Secretary or his designee 
shall notify the applicant in writing that:

[[Page 124]]

    (1) The application is complete and will be reviewed, or
    (2) That the application is incomplete, in which case the missing or 
incomplete parts will be specified.
    (c) Review Process. The Under Secretary or his designee will review 
each complete application for a Certification and any included 
supporting materials. In performing this function, the Under Secretary 
or his designee may, but is not required to:
    (1) Request additional information from the Seller;
    (2) Meet with representatives of the Seller;
    (3) Consult with, and rely upon the expertise of, any other Federal 
or non-Federal entity; and
    (4) Perform or seek studies or analyses of the Technology.
    (d) Action by the Under Secretary.
    (1) Within 90 days after receipt of a complete application for a 
Certification, the Under Secretary shall take one of the following 
actions:
    (i) Approve the application and issue an appropriate Certification 
to the Seller;
    (ii) Notify the Seller in writing that the Technology is potentially 
eligible for a Certification, but that additional specified information 
is needed before a decision may be reached; or
    (iii) Deny the application, and notify the Seller in writing of such 
decision.
    (2) The Under Secretary may extend the time period one time for 45 
days upon notice to the Seller, and the Under Secretary is not required 
to provide a reason or cause for such extension. The Under Secretary's 
decision shall be final and not subject to review, except at the 
discretion of the Under Secretary.
    (e) Designation is a Pre-Condition. The Under Secretary may approve 
an application for a Certification only if the Under Secretary has also 
approved an application for a Designation for the same Technology in 
accordance with Sec. 25.4.
    (f) Content and Term of Certification; Renewal. (1) A Certification 
shall:
    (i) Describe the Qualified Anti-Terrorism Technology (in such detail 
as the Under Secretary deems to be appropriate);
    (ii) Identify the Seller(s) of the Qualified Anti-Terrorism 
Technology;
    (iii) Specify the earliest date of sale of the Qualified Anti-
Terrorism Technology to which the Certification shall apply (which shall 
be determined by the Under Secretary in his discretion, and may be prior 
to, but shall not be later than, the effective date of the 
Certification); and
    (iv) To the extent practicable, include such standards, 
specifications, requirements, performance criteria, limitations, or 
other information as the Department in its sole and unreviewable 
discretion may deem appropriate.
    (2) A Certification shall be valid and effective for the same period 
of time for which the related Designation is issued, and shall terminate 
upon the termination of such related Designation. The Seller may apply 
for renewal of the Certification in connection with an application for 
renewal of the related Designation. An application for renewal must be 
made using the ``Application for Certification of an Approved Product 
for Homeland Security'' form issued by the Under Secretary.
    (g) Application of Certification to Licensees. A Certification shall 
apply to any other person, firm, or other entity to which the applicable 
Seller licenses (exclusively or nonexclusively) the right to 
manufacture, use, or and sell the Technology, in the same manner and to 
the same extent that such Certification applies to the Seller, effective 
as of the date of commencement of the license, provided that the Seller 
notifies the Under Secretary of such license by submitting, within 30 
days after such date of commencement, a ``Notice of License of Approved 
Anti-terrorism Technology'' form issued by the Under Secretary. The 
Under Secretary shall make this form available at http://
www.safetyact.gov and by mail upon request sent to: Directorate of 
Science and Technology, SAFETY Act/room 4320, Department of Homeland 
Security, Washington, DC 20528. Such notification shall not be required 
for any licensee listed as a Seller on the applicable Certification.

[[Page 125]]

    (h) Transfer of Certification. In the event of any permitted 
transfer and assignment of a Designation, any related Certification for 
the same anti-terrorism Technology shall automatically be deemed to be 
transferred and assigned to the same transferee to which such 
Designation is transferred and assigned. The transferred Certification 
will continue to apply to the transferor with respect to all 
transactions and occurrences that occurred through the time at which 
such transfer and assignment of the Certification became effective.
    (i) Issuance of Certificate; Approved Product List. For anti-
terrorism Technology reviewed and approved by the Under Secretary and 
for which a Certification is issued, the Under Secretary shall issue a 
certificate of conformance to the Seller and place the anti-terrorism 
Technology on an Approved Product List for Homeland Security, which 
shall be published by the Department.
    (j) Block Certifications. (1) From time to time, the Under 
Secretary, in response to an application submitted pursuant to Sec. 
25.9(a) or at his own initiative, may issue a Certification that is 
applicable to any person, firm or other entity that is a qualified 
Seller of the Approved Product for Homeland Security described in such 
Certification (a ``Block Certification''). All Block Certifications 
shall be published by the Department within ten days after the issuance 
thereof at http://www.safetyact.gov, and copies may also be obtained by 
mail by sending a request to: Directorate of Science and Technology, 
SAFETY Act/room 4320, Department of Homeland Security, Washington, DC 
20528. Any person, firm, or other entity that desires to qualify as a 
Seller of an Approved Product for Homeland Security under a Block 
Certification shall complete only such portions of the application 
referenced in Sec. 25.9(a) as are specified in such Block Certification 
and shall submit such application to the Department in accordance with 
Sec. 9(a). Applicants seeking to be qualified Sellers of an Approved 
Product for Homeland Security pursuant to a Block Certification will 
receive expedited review of their applications and shall not be required 
to provide information with respect to the technical merits of the 
Approved Product for Homeland Security that has received Block 
Certification. Within 60 days (or such other period of time as may be 
specified in the applicable Block Certification) after the receipt by 
the Department of a complete application, the Under Secretary shall take 
one of the following actions:
    (i) Approve the application and notify the applicant in writing of 
such approval; or
    (ii) Deny the application, and notify the applicant in writing of 
such decision, including the reasons for such denial.
    (2) If the application is approved, commencing on the date of such 
approval, the applicant shall be deemed to be a Seller under the 
applicable Block Certification for all purposes under the SAFETY Act, 
this part, and such Block Certification. A Block Certification shall be 
valid and effective for the same period of time for which the related 
Block Designation is issued. A Block Certification may be renewed by the 
Under Secretary at his own initiative or in response to an application 
for renewal submitted by a qualified Seller under such Block 
Certification in accordance with Sec. 25.9(g). Except as otherwise 
specifically provided in this paragraph, a Block Certification shall be 
deemed to be a Certification for all purposes under the SAFETY Act and 
this part.



Sec. 25.10  Confidentiality and protection of intellectual property.

    (a) General. The Secretary, in consultation with the Office of 
Management and Budget and appropriate Federal law enforcement and 
intelligence officials, and in a manner consistent with existing 
protections for sensitive or classified information, shall establish 
confidentiality procedures for safeguarding, maintenance and use of 
information submitted to the Department under this part. Such protocols 
shall, among other things, ensure that the Department will utilize all 
appropriate exemptions from the Freedom of Information Act.
    (b) Non-Disclosure. Except as otherwise required by applicable law 
or regulation or a final order of a court of

[[Page 126]]

competent jurisdiction, or as expressly authorized in writing by the 
Under Secretary, no person, firm, or other entity may:
    (1) Disclose SAFETY Act Confidential Information (as defined above) 
to any person, firm, or other entity, or
    (2) Use any SAFETY Act Confidential Information for his, her, or its 
own benefit or for the benefit of any other person, firm, or other 
entity, unless the applicant has consented to the release of such SAFETY 
Act Confidential Information.
    (c) Legends. Any person, firm, or other entity that submits data or 
information to the Department under this Part may place a legend on such 
data or information indicating that the submission constitutes SAFETY 
Act Confidential Information. The absence of such a legend shall not 
prevent any data or information submitted to the Department under this 
Part from constituting or being considered by the Department to 
constitute SAFETY Act Confidential Information.



PART 27_CHEMICAL FACILITY ANTI-TERRORISM STANDARDS--Table of Contents




                            Subpart A_General

Sec.
27.100 Purpose.
27.105 Definitions.
27.110 Applicability.
27.115 Implementation.
27.120 Designation of a coordinating official; Consultations and 
          technical assistance.
27.125 Severability.

              Subpart B_Chemical Facility Security Program

27.200 Information regarding security risk for a chemical facility.
27.203 Calculating the screening threshold quantity by security issue.
27.204 Minimum concentration by security issue.
27.205 Determination that a chemical facility ``presents a high level of 
          security risk.''
27.210 Submissions schedule.
27.215 Security vulnerability assessments.
27.220 Tiering.
27.225 Site security plans.
27.230 Risk-based performance standards.
27.235 Alternative security program.
27.240 Review and approval of security vulnerability assessments.
27.245 Review and approval of site security plans.
27.250 Inspections and audits.
27.255 Recordkeeping requirements.

                   Subpart C_Orders and Adjudications

27.300 Orders.
27.305 Neutral adjudications.
27.310 Commencement of adjudication proceedings.
27.315 Presiding officers for proceedings.
27.320 Prohibition on ex parte communications during proceedings.
27.325 Burden of proof.
27.330 Summary decision procedures.
27.335 Hearing procedures.
27.340 Completion of adjudication proceedings.
27.345 Appeals.

                             Subpart D_Other

27.400 Chemical-terrorism vulnerability information.
27.405 Review and preemption of State laws and regulations.
27.410 Third party actions.

Appendix A to Part 27--DHS Chemicals of Interest

     Authority: Pub. L. 109-295, sec. 550.

    Source: 72 FR 17729, Apr. 9, 2007, unless otherwise noted.



                            Subpart A_General



Sec. 27.100  Purpose.

    The purpose of this Part is to enhance the security of our Nation by 
furthering the mission of the Department as provided in 6 U.S.C. Sec. 
111(b)(1) and by lowering the risk posed by certain chemical facilities.



Sec. 27.105  Definitions.

    As used in this part:
    A Commercial Grade (ACG) shall refer to any quality or concentration 
of a chemical of interest offered for commercial sale that a facility 
uses, stores, manufactures, or ships.
    A Placarded Amount (APA) shall refer to the STQ for a sabotage and 
contamination chemical of interest, as calculated in accordance with 
Sec. 27.203(d).
    Alternative Security Program or ASP shall mean a third-party or 
industry organization program, a local authority, state or Federal 
government program or any element or aspect thereof, that the Assistant 
Secretary has determined meets the requirements of this

[[Page 127]]

Part and provides for an equivalent level of security to that 
established by this Part.
    Assistant Secretary shall mean the Assistant Secretary for 
Infrastructure Protection, Department of Homeland Security or his 
designee.
    Chemical Facility or facility shall mean any establishment that 
possesses or plans to possess, at any relevant point in time, a quantity 
of a chemical substance determined by the Secretary to be potentially 
dangerous or that meets other risk-related criteria identified by the 
Department. As used herein, the term chemical facility or facility shall 
also refer to the owner or operator of the chemical facility. Where 
multiple owners and/or operators function within a common infrastructure 
or within a single fenced area, the Assistant Secretary may determine 
that such owners and/or operators constitute a single chemical facility 
or multiple chemical facilities depending on the circumstances.
    Chemical of Interest shall refer to a chemical listed in Appendix A 
to part 27.
    Chemical Security Assessment Tool or CSAT shall mean a suite of four 
applications, including User Registration, Top-Screen, Security 
Vulnerability Assessment, and Site Security Plan, through which the 
Department will collect and analyze key data from chemical facilities.
    Chemical-terrorism Vulnerability Information or CVI shall mean the 
information listed in Sec. 27.400(b).
    Coordinating Official shall mean the person (or his designee(s)) 
selected by the Assistant Secretary to ensure that the regulations are 
implemented in a uniform, impartial, and fair manner.
    Covered Facility or Covered Chemical Facility shall mean a chemical 
facility determined by the Assistant Secretary to present high levels of 
security risk, or a facility that the Assistant Secretary has determined 
is presumptively high risk under Sec. 27.200.
    CUM 100g shall refer to the cumulative STQ of 100 grams for 
designated theft/diversion-CW/CWP chemicals and which is located in 
Appendix A to part 27 as the entry for the STQ and Minimum Concentration 
of certain theft/diversion-CW/CWP chemicals.
    Department shall mean the Department of Homeland Security.
    Deputy Secretary shall mean the Deputy Secretary of the Department 
of Homeland Security or his designee.
    Director of the Chemical Security Division or Director shall mean 
the Director of the Chemical Security Division, Office of Infrastructure 
Protection, Department of Homeland Security or any successors to that 
position within the Department or his designee.
    General Counsel shall mean the General Counsel of the Department of 
Homeland Security or his designee.
    Operator shall mean a person who has responsibility for the daily 
operations of a facility or facilities subject to this Part.
    Owner shall mean the person or entity that owns any facility subject 
to this Part.
    Present high levels of security risk and high risk shall refer to a 
chemical facility that, in the discretion of the Secretary of Homeland 
Security, presents a high risk of significant adverse consequences for 
human life or health, national security and/or critical economic assets 
if subjected to terrorist attack, compromise, infiltration, or 
exploitation.
    Risk profiles shall mean criteria identified by the Assistant 
Secretary for determining which chemical facilities will complete the 
Top-Screen or provide other risk assessment information.
    Screening Threshold Quantity or STQ shall mean the quantity of a 
chemical of interest, upon which the facility's obligation to complete 
and submit the CSAT Top-Screen is based.
    Secretary or Secretary of Homeland Security shall mean the Secretary 
of the Department of Homeland Security or any person, officer or entity 
within the Department to whom the Secretary's authority under Section 
550 is delegated.
    Security Issue shall refer to the type of risks associated with a 
given chemical. For purposes of this part, there are four main security 
issues:
    (1) Release (including toxic, flammable, and explosive);
    (2)Theft and diversion (including chemical weapons and chemical 
weapons precursors, weapons of mass effect,

[[Page 128]]

and explosives and improvised explosive device precursors),
    (3) Sabotage and contamination, and
    (4) Critical to government mission and national economy.
    Terrorist attack or terrorist incident shall mean any incident or 
attempt that constitutes terrorism or terrorist activity under 6 U.S.C. 
101(15) or 18 U.S.C. 2331(5) or 8 U.S.C. 1182(a)(3)(B)(iii), including 
any incident or attempt that involves or would involve sabotage of 
chemical facilities or theft, misappropriation or misuse of a dangerous 
quantity of chemicals.
    Tier shall mean the risk level associated with a covered chemical 
facility and which is assigned to a facility by the Department. For 
purposes of this part, there are four risk-based tiers, ranging from 
highest risk at Tier 1 to lowest risk at Tier 4.
    Top-Screen shall mean an initial screening process designed by the 
Assistant Secretary through which chemical facilities provide 
information to the Department for use pursuant to Sec. 27.200 of these 
regulations.
    Under Secretary shall mean the Under Secretary for National 
Protection and Programs, Department of Homeland Security or any 
successors to that position within the Department or his designee.

[72 FR 17729, Apr. 9, 2007, as amended at 72 FR 65418, Nov. 20, 2007]



Sec. 27.110  Applicability.

    (a) This Part applies to chemical facilities and to covered 
facilities as set out herein.
    (b) This Part does not apply to facilities regulated pursuant to the 
Maritime Transportation Security Act of 2002, Pub. L. 107-295, as 
amended; Public Water Systems, as defined by Section 1401 of the Safe 
Drinking Water Act, Pub. L. 93-523, as amended; Treatment Works as 
defined in Section 212 of the Federal Water Pollution Control Act, Pub. 
L. 92-500, as amended; any facility owned or operated by the Department 
of Defense or the Department of Energy, or any facility subject to 
regulation by the Nuclear Regulatory Commission.



Sec. 27.115  Implementation.

    The Assistant Secretary may implement the Section 550 program in a 
phased manner, selecting certain chemical facilities for expedited 
initial processes under these regulations and identifying other chemical 
facilities or types or classes of chemical facilities for other phases 
of program implementation. The Assistant Secretary has flexibility to 
designate particular chemical facilities for specific phases of program 
implementation based on potential risk or any other factor consistent 
with this Part.



Sec. 27.120  Designation of a coordinating official; Consultations and technical assistance.

    (a) The Assistant Secretary will designate a Coordinating Official 
who will be responsible for ensuring that these regulations are 
implemented in a uniform, impartial, and fair manner.
    (b) The Coordinating Official and his staff shall provide guidance 
to covered facilities regarding compliance with this Part and shall, as 
necessary and to the extent that resources permit, be available to 
consult and to provide technical assistance to an owner or operator who 
seeks such consultation or assistance.
    (c) In order to initiate consultations or seek technical assistance, 
a covered facility shall submit a written request for consultation or 
technical assistance to the Coordinating Official or contact the 
Department in any other manner specified in any subsequent guidance. 
Requests for consultation or technical guidance do not serve to toll any 
of the applicable timelines set forth in this Part.
    (d) If a covered facility modifies its facility, processes, or the 
types or quantities of materials that it possesses, and believes that 
such changes may impact the covered facility's obligations under this 
Part, the covered facility may request a consultation with the 
Coordinating Official as specified in paragraph (c).



Sec. 27.125  Severability.

    If a court finds any portion of this Part to have been promulgated 
without proper authority, the remainder of this Part will remain in full 
effect.

[[Page 129]]



              Subpart B_Chemical Facility Security Program



Sec. 27.200  Information regarding security risk for a chemical facility.

    (a) Information to determine security risk. In order to determine 
the security risk posed by chemical facilities, the Secretary may, at 
any time, request information from chemical facilities that may reflect 
potential consequences of or vulnerabilities to a terrorist attack or 
incident, including questions specifically related to the nature of the 
business and activities conducted at the facility; information 
concerning the names, nature, conditions of storage, quantities, 
volumes, properties, customers, major uses, and other pertinent 
information about specific chemicals or chemicals meeting a specific 
criterion; information concerning facilities' security, safety, and 
emergency response practices, operations, and procedures; information 
regarding incidents, history, funding, and other matters bearing on the 
effectiveness of the security, safety and emergency response programs, 
and other information as necessary.
    (b) Obtaining information from facilities. (1) The Assistant 
Secretary may seek the information provided in paragraph (a) of this 
section by contacting chemical facilities individually or by publishing 
a notice in the Federal Register seeking information from chemical 
facilities that meet certain criteria, which the Department will use to 
determine risk profiles. Through any such individual or Federal Register 
notification, the Assistant Secretary may instruct such facilities to 
complete and submit a Top-Screen process, which may be completed through 
a secure Department Web site or through other means approved by the 
Assistant Secretary.
    (2) A facility must complete and submit a Top-Screen in accordance 
with the schedule provided in Sec. 27.210, the calculation provisions 
in Sec. 27.203, and the minimum concentration provisions in Sec. 
27.204 if it possesses any of the chemicals listed in Appendix A to this 
part at or above the STQ for any applicable Security Issue.
    (3) Where the Department requests that a facility complete and 
submit a Top-Screen, the facility must designate a person who is 
responsible for the submission of information through the CSAT system 
and who attests to the accuracy of the information contained in any CSAT 
submissions. Such submitter must be an officer of the corporation or 
other person designated by an officer of the corporation and must be 
domiciled in the United States.
    (c) Presumptively High Risk Facilities. (1) If a chemical facility 
subject to paragraph (a) or (b) of this section fails to provide 
information requested or complete the Top-Screen within the timeframe 
provided in Sec. 27.210, the Assistant Secretary may, after attempting 
to consult with the facility, reach a preliminary determination, based 
on the information then available, that the facility presumptively 
presents a high level of security risk. The Assistant Secretary shall 
then issue a notice to the entity of this determination and, if 
necessary, order the facility to provide information or complete the 
Top-Screen pursuant to these rules. If the facility then fails to do so, 
it may be subject to civil penalties pursuant to Sec. 27.300, audit and 
inspection under Sec. 27.250 or, if appropriate, an order to cease 
operations under Sec. 27.300.
    (2) If the facility deemed ``presumptively high risk'' pursuant to 
paragraph (c)(1) of this section completes the Top-Screen, and the 
Department determines that it does not present a high level of security 
risk under Sec. 27.205, its status as ``presumptively high risk'' will 
terminate, and the Department will issue a notice to the facility to 
that effect.

[72 FR 17729, Apr. 9, 2007, as amended at 72 FR 65418, Nov. 20, 2007]



Sec. 27.203  Calculating the screening threshold quantity by security issue.

    (a) General. In calculating whether a facility possesses a chemical 
of interest that meets the STQ for any security issue, a facility need 
not include chemicals of interest:
    (1) Used as a structural component;
    (2) Used as products for routine janitorial maintenance;
    (3) Contained in food, drugs, cosmetics, or other personal items 
used by employees;

[[Page 130]]

    (4) In process water or non-contact cooling water as drawn from 
environment or municipal sources;
    (5) In air either as compressed air or as part of combustion;
    (6) Contained in articles, as defined in 40 CFR 68.3;
    (7) In solid waste (including hazardous waste) regulated under the 
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et. seq., except 
for the waste described in 40 CFR 261.33;
    (8) in naturally occurring hydrocarbon mixtures prior to entry of 
the mixture into a natural gas processing plant or a petroleum refining 
process unit. Naturally occurring hydrocarbon mixtures include 
condensate, crude oil, field gas, and produced water as defined in 40 
CFR 68.3.
    (b) Release Chemicals.--(1) Release-Toxic, Release-Flammable, and 
Release-Explosive Chemicals. Except as provided in paragraphs (b)(2) and 
(b)(3), in calculating whether a facility possesses an amount that meets 
the STQ for release chemicals of interest, the facility shall only 
include release chemicals of interest:
    (i) In a vessel as defined in 40 CFR 68.3, in a underground storage 
facility, or stored in a magazine as defined in 27 CFR 555.11;
    (ii) In transportation containers used for storage not incident to 
transportation, including transportation containers connected to 
equipment at a facility for loading or unloading and transportation 
containers detached from the motive power that delivered the container 
to the facility;
    (iii) Present as process intermediates, by-products, or materials 
produced incidental to the production of a product if they exist at any 
given time;
    (iv) In natural gas or liquefied natural gas stored in peak shaving 
facilities; and
    (v) In gasoline, diesel, kerosene or jet fuel (including fuels that 
have flammability hazard ratings of 1, 2, 3, or 4, as determined by 
using National Fire Protection Association (NFPA) 704: Standard System 
for the Identification of the Hazards of Materials for Emergency 
Response [2007 ed.], which is incorporated by reference at 27.204(a)(2)) 
stored in aboveground tank farms, including tank farms that are part of 
pipeline systems;
    (2) Release-Toxic, Release-Flammable, and Release-Explosive 
Chemicals. Except as provided in paragraph (c)(2)(i), in calculating 
whether a facility possesses an amount that meets the STQ for release-
toxic, release-flammable, and release-explosive chemicals, a facility 
need not include release-toxic, release-flammable, or release-explosive 
chemicals of interest that a facility manufactures, processes or uses in 
a laboratory at the facility under the supervision of a technically 
qualified individual as defined in 40 CFR 720.3.
    (i) This exemption does not apply to specialty chemical production; 
manufacture, processing, or use of substances in pilot plant scale 
operations; or activities, including research and development, involving 
chemicals of interest conducted outside the laboratory.
    (ii) [Reserved]
    (3) Propane. In calculating whether a facility possesses an amount 
that meets the STQ for propane, a facility need not include propane in 
tanks of 10,000 pounds or less.
    (c) Theft and Diversion Chemicals. In calculating whether a facility 
possesses an amount of a theft/diversion chemical of interest that meets 
the STQ, the facility shall only include theft/diversion chemicals of 
interest in a transportation packaging, as defined in 49 CFR 171.8. 
Where a theft/diversion-Chemical Weapons (CW) chemical is designated by 
``CUM 100g,'' a facility shall total the quantity of all such designated 
chemicals in its possession to determine whether the facility possesses 
theft/diversion-CW chemicals that meet or exceed the STQ of 100 grams.
    (d) Sabotage and Contamination Chemicals. A facility meets the STQ 
for a sabotage/contamination chemical of interest if it ships the 
chemical and is required to placard the shipment of that chemical 
pursuant to the provisions of subpart F of 49 CFR part 172.

[72 FR 65419, Nov. 20, 2007]

[[Page 131]]



Sec. 27.204  Minimum concentration by security issue.

    (a) Release Chemicals--(1) Release-Toxic Chemicals. If a release-
toxic chemical of interest is present in a mixture, and the 
concentration of the chemical is equal to or greater than one percent 
(1%) by weight, the facility shall count the amount of the chemical of 
interest in the mixture toward the STQ. If a release-toxic chemical of 
interest is present in a mixture, and the concentration of the chemical 
is less than one percent (1%) by weight of the mixture, the facility 
need not count the amount of that chemical in the mixture in determining 
whether the facility possesses the STQ. Except for oleum, if the 
concentration of the chemical of interest in the mixture is one percent 
(1%) or greater by weight, but the facility can demonstrate that the 
partial pressure of the regulated substance in the mixture (solution) 
under handling or storage conditions in any portion of the process is 
less than 10 millimeters of mercury (mm Hg), the amount of the substance 
in the mixture in that portion of a vessel need not be considered when 
determining the STQ. The facility shall document this partial pressure 
measurement or estimate.
    (2) Release-Flammable Chemicals. If a release-flammable chemical of 
interest is present in a mixture in a concentration equal to or greater 
than one percent (1%) by weight of the mixture, and the mixture has a 
National Fire Protection Association (NFPA) flammability hazard rating 
of 4, the facility shall count the entire amount of the mixture toward 
the STQ. Except as provided in Sec. 27.203(b)(1)(v) for fuels that are 
stored in aboveground tank farms (including farms that are part of 
pipeline systems), if a release-flammable chemical of interest is 
present in a mixture in a concentration equal to or greater than one 
percent (1%) by weight of the mixture, and the mixture has a National 
Fire Protection Association (NFPA) flammability hazard rating of 1, 2, 
or 3, the facility need not count the mixture toward the STQ. The 
flammability hazard ratings are defined in NFPA 704: Standard System for 
the Identification of the Hazards of Materials for Emergency Response 
[2007 ed.]. The Director of the Federal Register approves the 
incorporation by reference of this standard in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. You may obtain a copy of the incorporated 
standard from the National Fire Protection Association at 1 Batterymarch 
Park, Quincy, MA 02169-7471 or http://www.nfpa.org. You may inspect a 
copy of the incorporated standard at the Department of Homeland 
Security, 1621 Kent Street, 9th Floor, Rosslyn VA (please call 703-235-
0709) to make an appointment or at the or at the National Archives and 
Records Administration (NARA). For information on the availability of 
material at NARA, call 202-741-6030, or go to http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html. If 
a release-flammable chemical of interest is present in a mixture, and 
the concentration of the chemical is less than one percent (1%) by 
weight, the facility need not count the mixture in determining whether 
the facility possesses the STQ.
    (3) Release-Explosive Chemicals. For each release-explosive chemical 
of interest, a facility shall count the total quantity of all commercial 
grades of the chemical of interest toward the STQ, unless a specific 
minimum concentration is assigned in the Minimum Concentration column of 
Appendix A to part 27, in which case the facility should count the total 
quantity of all commercial grades of the chemical at the specified 
minimum concentration.
    (b) Theft and Diversion Chemicals. (1) Theft/Diversion-Chemical 
Weapons (CW) and Chemical Weapons Precursors (CWP Chemicals: Where a 
theft/diversion-CWC/CWP chemical of interest is not designated by ``CUM 
100g'' in Appendix A, and the chemical is present in a mixture at or 
above the minimum concentration amount listed in the Minimum 
Concentration column of Appendix A to part 27, the facility shall count 
the entire amount of the mixture toward the STQ.
    (2) Theft/Diversion-Weapon of Mass Effect (WME) Chemicals: If a 
theft/diversion-WME chemical of interest is present in a mixture at or 
above the minimum concentration amount listed in the Minimum 
Concentration column of Appendix A to part 27, the facility

[[Page 132]]

shall count the entire amount of the mixture toward the STQ.
    (3) Theft/Diversion-Explosives/Improvised Explosive Device Precursor 
(EXP/IEDP) Chemicals. For each theft/diversion-EXP/IEDP chemical of 
interest, a facility shall count the total quantity of all commercial 
grades of the chemical toward the STQ, unless a specific minimum 
concentration is assigned in the Minimum Concentration column of 
Appendix A to part 27, in which case the facility should count the total 
quantity of all commercial grades of the chemical at the specified 
minimum concentration.
    (c) Sabotage and Contamination Chemicals. For each sabotage/
contamination chemical of interest, a facility shall count the total 
quantity of all commercial grades of the chemical toward the STQ.

[72 FR 65419, Nov. 20, 2007]



Sec. 27.205  Determination that a chemical facility ``presents a high level of security risk.''

    (a) Initial Determination. The Assistant Secretary may determine at 
any time that a chemical facility presents a high level of security risk 
based on any information available (including any information submitted 
to the Department under Sec. 27.200) that, in the Secretary's 
discretion, indicates the potential that a terrorist attack involving 
the facility could result in significant adverse consequences for human 
life or health, national security or critical economic assets. Upon 
determining that a facility presents a high level of security risk, the 
Department shall notify the facility in writing of such initial 
determination and may also notify the facility of the Department's 
preliminary determination of the facility's placement in a risk-based 
tier pursuant to Sec. 27.220(a).
    (b) Redetermination. If a covered facility previously determined to 
present a high level of security risk has materially altered its 
operations, it may seek a redetermination by filing a Request for 
Redetermination with the Assistant Secretary, and may request a meeting 
regarding the Request. Within 45 calendar days of receipt of such a 
Request, or within 45 calendar days of a meeting under this paragraph, 
the Assistant Secretary shall notify the covered facility in writing of 
the Department's decision on the Request for Redetermination.



Sec. 27.210  Submissions schedule.

    (a) Initial Submission. The timeframes in paragraphs (a)(2) and 
(a)(3) of this section also apply to covered facilities that submit an 
Alternative Security Program pursuant to Sec. 27.235.
    (1) Top-Screen. Facilities shall complete and submit a Top-Screen 
within the following time frames:
    (i) Unless otherwise notified, within 60 calendar days of November 
20, 2007 for facilities that possess any of the chemicals listed in 
Appendix A at or above the STQ for any applicable Security Issue, or 
within 60 calendar days for facilities that come into possession of any 
of the chemicals listed in Appendix A at or above the STQ for any 
applicable Security Issue; or
    (ii) Within the time frame provided in any written notification from 
the Department or specified in any subsequent Federal Register notice.
    (2) Security Vulnerability Assessment. Unless otherwise notified, a 
covered facility must complete and submit a Security Vulnerability 
Assessment within 90 calendar days of written notification from the 
Department or within the time frame specified in any subsequent Federal 
Register notice.
    (3) Site Security Plan. Unless otherwise notified, a covered 
facility must complete and submit a Site Security Plan within 120 
calendar days of written notification from the Department or within the 
time frame specified in any subsequent Federal Register notice.
    (b) Resubmission Schedule for Covered Facilities. The timeframes in 
this subsection also apply to covered facilities who submit an 
Alternative Security Program pursuant to Sec. 27.235.
    (1) Top-Screen. Unless otherwise notified, Tier 1 and Tier 2 covered 
facilities must complete and submit a new Top-Screen no less than two 
years, and no more than two years and 60 calendar days, from the date of 
the Department's approval of the facility's Site Security Plan; and Tier 
3 and Tier 4 covered facilities must complete and submit a Top-Screen no 
less than 3

[[Page 133]]

years, and no more than 3 years and 60 calendar days, from the date of 
the Department's approval of the facility's Site Security Plan.
    (2) Security Vulnerability Assessment. Unless otherwise notified and 
following a Top-Screen resubmission pursuant to paragraph (b)(1) of this 
section, a covered facility must complete and submit a new Security 
Vulnerability Assessment within 90 calendar days of written notification 
from the Department or within the time frame specified in any subsequent 
Federal Register notice.
    (3) Site Security Plan. Unless otherwise notified and following a 
Security Vulnerability Assessment resubmission pursuant to paragraph 
(b)(2) of this section , a covered facility must complete and submit a 
new Site Security Plan within 120 calendar days of written notification 
from the Department or within the time frame specified in any subsequent 
Federal Register notice.
    (c) The Assistant Secretary retains the authority to modify the 
schedule in this Part as needed. The Assistant Secretary may shorten or 
extend these time periods based on the operations at the facility, the 
nature of the covered facility's vulnerabilities, the level and 
immediacy of security risk, or for other reasons. If the Department 
alters the time periods for a specific facility, the Department will do 
so in written notice to the facility.
    (d) If a covered facility makes material modifications to its 
operations or site, the covered facility must complete and submit a 
revised Top-Screen to the Department within 60 days of the material 
modification. In accordance with the resubmission requirements in Sec. 
27.210(b)(2) and (3), the Department will notify the covered facility as 
to whether the covered facility must submit a revised Security 
Vulnerability Assessment, Site Security Plan, or both.

[72 FR 17729, Apr. 9, 2007, as amended at 72 FR 65420, Nov. 20, 2007]



Sec. 27.215  Security vulnerability assessments.

    (a) Initial Assessment. If the Assistant Secretary determines that a 
chemical facility is high-risk, the facility must complete a Security 
Vulnerability Assessment. A Security Vulnerability Assessment shall 
include:
    (1) Asset Characterization, which includes the identification and 
characterization of potential critical assets; identification of hazards 
and consequences of concern for the facility, its surroundings, its 
identified critical asset(s), and its supporting infrastructure; and 
identification of existing layers of protection;
    (2) Threat Assessment, which includes a description of possible 
internal threats, external threats, and internally-assisted threats;
    (3) Security Vulnerability Analysis, which includes the 
identification of potential security vulnerabilities and the 
identification of existing countermeasures and their level of 
effectiveness in both reducing identified vulnerabilities and in meeting 
the applicable Risk-Based Performance Standards;
    (4) Risk Assessment, including a determination of the relative 
degree of risk to the facility in terms of the expected effect on each 
critical asset and the likelihood of a success of an attack; and
    (5) Countermeasures Analysis, including strategies that reduce the 
probability of a successful attack or reduce the probable degree of 
success, strategies that enhance the degree of risk reduction, the 
reliability and maintainability of the options, the capabilities and 
effectiveness of mitigation options, and the feasibility of the options.
    (b) Except as provided in Sec. 27.235, a covered facility must 
complete the Security Vulnerability Assessment through the CSAT process, 
or through any other methodology or process identified or issued by the 
Assistant Secretary.
    (c) Covered facilities must submit a Security Vulnerability 
Assessment to the Department in accordance with the schedule provided in 
Sec. 27.210.
    (d) Updates and Revisions. (1) A covered facility must update and 
revise its Security Vulnerability Assessment in accordance with the 
schedule provided in Sec. 27.210.
    (2) Notwithstanding paragraph (d)(1) of this section, a covered 
facility must

[[Page 134]]

update, revise or otherwise alter its Security Vulnerability Assessment 
to account for new or differing modes of potential terrorist attack or 
for other security-related reasons, if requested by the Assistant 
Secretary.



Sec. 27.220  Tiering.

    (a) Preliminary Determination of Risk-Based Tiering. Based on the 
information the Department receives in accordance with Sec. Sec. 27.200 
and 27.205 (including information submitted through the Top-Screen 
process) and following its initial determination in Sec. 27.205(a) that 
a facility presents a high level of security risk, the Department shall 
notify a facility of the Department's preliminary determination of the 
facility's placement in a risk-based tier.
    (b) Confirmation or Alteration of Risk-Based Tiering. Following 
review of a covered facility's Security Vulnerability Assessment, the 
Assistant Secretary shall notify the covered facility of its final 
placement within a risk-based tier, or for covered facilities previously 
notified of a preliminary tiering, confirm or alter such tiering.
    (c) The Department shall place covered facilities in one of four 
risk-based tiers, ranging from highest risk facilities in Tier 1 to 
lowest risk facilities in Tier 4.
    (d) The Assistant Secretary may provide the facility with guidance 
regarding the risk-based performance standards and any other necessary 
guidance materials applicable to its assigned tier.



Sec. 27.225  Site security plans.

    (a) The Site Security Plan must meet the following standards:
    (1) Address each vulnerability identified in the facility's Security 
Vulnerability Assessment, and identify and describe the security 
measures to address each such vulnerability;
    (2) Identify and describe how security measures selected by the 
facility will address the applicable risk-based performance standards 
and potential modes of terrorist attack including, as applicable, 
vehicle-borne explosive devices, water-borne explosive devices, ground 
assault, or other modes or potential modes identified by the Department;
    (3) Identify and describe how security measures selected and 
utilized by the facility will meet or exceed each applicable performance 
standard for the appropriate risk-based tier for the facility; and
    (4) Specify other information the Assistant Secretary deems 
necessary regarding chemical facility security.
    (b) Except as provided in Sec. 27.235, a covered facility must 
complete the Site Security Plan through the CSAT process, or through any 
other methodology or process identified or issued by the Assistant 
Secretary.
    (c) Covered facilities must submit a Site Security Plan to the 
Department in accordance with the schedule provided in Sec. 27.210.
    (d) Updates and Revisions. (1) When a covered facility updates, 
revises or otherwise alters its Security Vulnerability Assessment 
pursuant to Sec. 27.215(d), the covered facility shall make 
corresponding changes to its Site Security Plan.
    (2) A covered facility must also update and revise its Site Security 
Plan in accordance with the schedule in Sec. 27.210.
    (e) A covered facility must conduct an annual audit of its 
compliance with its Site Security Plan.



Sec. 27.230  Risk-based performance standards.

    (a) Covered facilities must satisfy the performance standards 
identified in this section. The Assistant Secretary will issue guidance 
on the application of these standards to risk-based tiers of covered 
facilities, and the acceptable layering of measures used to meet these 
standards will vary by risk-based tier. Each covered facility must 
select, develop in their Site Security Plan, and implement appropriately 
risk-based measures designed to satisfy the following performance 
standards:
    (1) Restrict Area Perimeter. Secure and monitor the perimeter of the 
facility;
    (2) Secure Site Assets. Secure and monitor restricted areas or 
potentially critical targets within the facility;
    (3) Screen and Control Access. Control access to the facility and to 
restricted areas within the facility by screening and/or inspecting 
individuals and vehicles as they enter, including,

[[Page 135]]

    (i) Measures to deter the unauthorized introduction of dangerous 
substances and devices that may facilitate an attack or actions having 
serious negative consequences for the population surrounding the 
facility; and
    (ii) Measures implementing a regularly updated identification system 
that checks the identification of facility personnel and other persons 
seeking access to the facility and that discourages abuse through 
established disciplinary measures;
    (4) Deter, Detect, and Delay. Deter, detect, and delay an attack, 
creating sufficient time between detection of an attack and the point at 
which the attack becomes successful, including measures to:
    (i) Deter vehicles from penetrating the facility perimeter, gaining 
unauthorized access to restricted areas or otherwise presenting a hazard 
to potentially critical targets;
    (ii) Deter attacks through visible, professional, well maintained 
security measures and systems, including security personnel, detection 
systems, barriers and barricades, and hardened or reduced value targets;
    (iii) Detect attacks at early stages, through countersurveillance, 
frustration of opportunity to observe potential targets, surveillance 
and sensing systems, and barriers and barricades; and
    (iv) Delay an attack for a sufficient period of time so to allow 
appropriate response through on-site security response, barriers and 
barricades, hardened targets, and well-coordinated response planning;
    (5) Shipping, Receipt, and Storage. Secure and monitor the shipping, 
receipt, and storage of hazardous materials for the facility;
    (6) Theft and Diversion. Deter theft or diversion of potentially 
dangerous chemicals;
    (7) Sabotage. Deter insider sabotage;
    (8) Cyber. Deter cyber sabotage, including by preventing 
unauthorized onsite or remote access to critical process controls, such 
as Supervisory Control and Data Acquisition (SCADA) systems, Distributed 
Control Systems (DCS), Process Control Systems (PCS), Industrial Control 
Systems (ICS), critical business system, and other sensitive 
computerized systems;
    (9) Response. Develop and exercise an emergency plan to respond to 
security incidents internally and with assistance of local law 
enforcement and first responders;
    (10) Monitoring. Maintain effective monitoring, communications and 
warning systems, including,
    (i) Measures designed to ensure that security systems and equipment 
are in good working order and inspected, tested, calibrated, and 
otherwise maintained;
    (ii) Measures designed to regularly test security systems, note 
deficiencies, correct for detected deficiencies, and record results so 
that they are available for inspection by the Department; and
    (iii) Measures to allow the facility to promptly identify and 
respond to security system and equipment failures or malfunctions;
    (11) Training. Ensure proper security training, exercises, and 
drills of facility personnel;
    (12) Personnel Surety. Perform appropriate background checks on and 
ensure appropriate credentials for facility personnel, and as 
appropriate, for unescorted visitors with access to restricted areas or 
critical assets, including,
    (i) Measures designed to verify and validate identity;
    (ii) Measures designed to check criminal history;
    (iii) Measures designed to verify and validate legal authorization 
to work; and
    (iv) Measures designed to identify people with terrorist ties;
    (13) Elevated Threats. Escalate the level of protective measures for 
periods of elevated threat;
    (14) Specific Threats, Vulnerabilities, or Risks. Address specific 
threats, vulnerabilities or risks identified by the Assistant Secretary 
for the particular facility at issue;
    (15) Reporting of Significant Security Incidents. Report significant 
security incidents to the Department and to local law enforcement 
officials;
    (16) Significant Security Incidents and Suspicious Activities. 
Identify, investigate, report, and maintain records of

[[Page 136]]

significant security incidents and suspicious activities in or near the 
site;
    (17) Officials and Organization. Establish official(s) and an 
organization responsible for security and for compliance with these 
standards;
    (18) Records. Maintain appropriate records; and
    (19) Address any additional performance standards the Assistant 
Secretary may specify.
    (b) [Reserved]



Sec. 27.235  Alternative security program.

    (a) Covered facilities may submit an Alternate Security Program 
(ASP) pursuant to the requirements of this section. The Assistant 
Secretary may approve an Alternate Security Program, in whole, in part, 
or subject to revisions or supplements, upon a determination that the 
Alternate Security Program meets the requirements of this Part and 
provides for an equivalent level of security to that established by this 
Part.
    (1) A Tier 4 facility may submit an ASP in lieu of a Security 
Vulnerability Assessment, Site Security Plan, or both.
    (2) Tier 1, Tier 2, or Tier 3 facilities may submit an ASP in lieu 
of a Site Security Plan. Tier 1, Tier 2, and Tier 3 facilities may not 
submit an ASP in lieu of a Security Vulnerability Assessment.
    (b) The Department will provide notice to a covered facility about 
the approval or disapproval, in whole or in part, of an ASP, using the 
procedure specified in Sec. 27.240 if the ASP is intended to take the 
place of a Security Vulnerability Assessment or using the procedure 
specified in Sec. 27.245 if the ASP is intended to take the place of a 
Site Security Plan.



Sec. 27.240  Review and approval of security vulnerability assessments.

    (a) Review and Approval. The Department will review and approve in 
writing all Security Vulnerability Assessments that satisfy the 
requirements of Sec. 27.215, including Alternative Security Programs 
submitted pursuant to Sec. 27.235.
    (b) If a Security Vulnerability Assessment does not satisfy the 
requirements of Sec. 27.215, the Department will provide the facility 
with a written notification that includes a clear explanation of 
deficiencies in the Security Vulnerability Assessment. The facility 
shall then enter further consultations with the Department and resubmit 
a sufficient Security Vulnerability Assessment by the time specified in 
the written notification provided by the Department under this section. 
If the resubmitted Security Vulnerability Assessment does not satisfy 
the requirements of Sec. 27.215, the Department will provide the 
facility with written notification (including a clear explanation of 
deficiencies in the SVA) of the Department's disapproval of the SVA.



Sec. 27.245  Review and approval of site security plans.

    (a) Review and Approval. (1) The Department will review and approve 
or disapprove all Site Security Plans that satisfy the requirements of 
Sec. 27.225, including Alternative Security Programs submitted pursuant 
to Sec. 27.235.
    (i) The Department will review Site Security Plans through a two-
step process. Upon receipt of Site Security Plan from the covered 
facility, the Department will review the documentation and make a 
preliminary determination as to whether it satisfies the requirements of 
Sec. 27.225. If the Department finds that the requirements are 
satisfied, the Department will issue a Letter of Authorization to the 
covered facility.
    (ii) Following issuance of the Letter of Authorization, the 
Department will inspect the covered facility in accordance with Sec. 
27.250 for purposes of determining compliance with the requirements of 
this Part.
    (iii) If the Department approves the Site Security Plan in 
accordance with Sec. 27.250, the Department will issue a Letter of 
Approval to the facility, and the facility shall implement the approved 
Site Security Plan.
    (2) The Department will not disapprove a Site Security Plan 
submitted under this Part based on the presence or absence of a 
particular security measure. The Department may disapprove a Site 
Security Plan that fails to satisfy the risk-based performance standards 
established in Sec. 27.230.

[[Page 137]]

    (b) When the Department disapproves a preliminary Site Security Plan 
issued prior to inspection or a Site Security Plan following inspection, 
the Department will provide the facility with a written notification 
that includes a clear explanation of deficiencies in the Site Security 
Plan. The facility shall then enter further consultations with the 
Department and resubmit a sufficient Site Security Plan by the time 
specified in the written notification provided by the Department under 
this section. If the resubmitted Site Security Plan does not satisfy the 
requirements of Sec. 27.225, the Department will provide the facility 
with written notification (including a clear explanation of deficiencies 
in the SSP) of the Department's disapproval of the SSP.



Sec. 27.250  Inspections and audits.

    (a) Authority. In order to assess compliance with the requirements 
of this Part, authorized Department officials may enter, inspect, and 
audit the property, equipment, operations, and records of covered 
facilities.
    (b) Following preliminary approval of a Site Security Plan in 
accordance with Sec. 27.245, the Department will inspect the covered 
facility for purposes of determining compliance with the requirements of 
this Part.
    (1) If after the inspection, the Department determines that the 
requirements of Sec. 27.225 have been met, the Department will issue a 
Letter of Approval to the covered facility.
    (2) If after the inspection, the Department determines that the 
requirements of Sec. 27.225 have not been met, the Department will 
proceed as directed by Sec. 27.245(b) in ``Review and Approval of Site 
Security Plans.''
    (c) Time and Manner. Authorized Department officials will conduct 
audits and inspections at reasonable times and in a reasonable manner. 
The Department will provide covered facility owners and/or operators 
with 24-hour advance notice before inspections, except
    (1) If the Under Secretary or Assistant Secretary determines that an 
inspection without such notice is warranted by exigent circumstances and 
approves such inspection; or
    (2) If any delay in conducting an inspection might be seriously 
detrimental to security, and the Director of the Chemical Security 
Division determines that an inspection without notice is warranted, and 
approves an inspector to conduct such inspection.
    (d) Inspectors. Inspections and audits are conducted by personnel 
duly authorized and designated for that purpose as ``inspectors'' by the 
Secretary or the Secretary's designee.
    (1) An inspector will, on request, present his or her credentials 
for examination, but the credentials may not be reproduced by the 
facility.
    (2) An inspector may administer oaths and receive affirmations, with 
the consent of any witness, in any matter.
    (3) An inspector may gather information by reasonable means 
including, but not limited to, interviews, statements, photocopying, 
photography, and video- and audio-recording. All documents, objects and 
electronically stored information collected by each inspector during the 
performance of that inspector's duties shall be maintained for a 
reasonable period of time in the files of the Department of Homeland 
Security maintained for that facility or matter.
    (4) An inspector may request forthwith access to all records 
required to be kept pursuant to Sec. 27.255. An inspector shall be 
provided with the immediate use of any photocopier or other equipment 
necessary to copy any such record. If copies can not be provided 
immediately upon request, the inspector shall be permitted immediately 
to take the original records for duplication and prompt return.
    (e) Confidentiality. In addition to the protections provided under 
CVI in Sec. 27.400, information received in an audit or inspection 
under this section, including the identity of the persons involved in 
the inspection or who provide information during the inspection, shall 
remain confidential under the investigatory file exception, or other 
appropriate exception, to the public disclosure requirements of 5 U.S.C. 
552.
    (f) Guidance. The Assistant Secretary shall issue guidance 
identifying appropriate processes for such inspections, and specifying 
the type and nature of

[[Page 138]]

documentation that must be made available for review during inspections 
and audits.



Sec. 27.255  Recordkeeping requirements.

    (a) Except as provided in Sec. 27.255(b), the covered facility must 
keep records of the activities as set out below for at least three years 
and make them available to the Department upon request. A covered 
facility must keep the following records:
    (1) Training. For training, the date and location of each session, 
time of day and duration of session, a description of the training, the 
name and qualifications of the instructor, a clear, legible list of 
attendees to include the attendee signature, at least one other unique 
identifier of each attendee receiving the training, and the results of 
any evaluation or testing.
    (2) Drills and exercises. For each drill or exercise, the date held, 
a description of the drill or exercise, a list of participants, a list 
of equipment (other than personal equipment) tested or employed in the 
exercise, the name(s) and qualifications of the exercise director, and 
any best practices or lessons learned which may improve the Site 
Security Plan;
    (3) Incidents and breaches of security. Date and time of occurrence, 
location within the facility, a description of the incident or breach, 
the identity of the individual to whom it was reported, and a 
description of the response;
    (4) Maintenance, calibration, and testing of security equipment. The 
date and time, name and qualifications of the technician(s) doing the 
work, and the specific security equipment involved for each occurrence 
of maintenance, calibration, and testing;
    (5) Security threats. Date and time of occurrence, how the threat 
was communicated, who received or identified the threat, a description 
of the threat, to whom it was reported, and a description of the 
response;
    (6) Audits. For each audit of a covered facility's Site Security 
Plan (including each audit required under Sec. 27.225(e)) or Security 
Vulnerability Assessment, a record of the audit, including the date of 
the audit, results of the audit, name(s) of the person(s) who conducted 
the audit, and a letter certified by the covered facility stating the 
date the audit was conducted.
    (7) Letters of Authorization and Approval. All Letters of 
Authorization and Approval from the Department, and documentation 
identifying the results of audits and inspections conducted pursuant to 
Sec. 27.250.
    (b) A covered facility must retain records of submitted Top-Screens, 
Security Vulnerability Assessments, Site Security Plans, and all related 
correspondence with the Department for at least six years and make them 
available to the Department upon request.
    (c) To the extent necessary for security purposes, the Department 
may request that a covered facility make available records kept pursuant 
to other Federal programs or regulations.
    (d) Records required by this section may be kept in electronic 
format. If kept in an electronic format, they must be protected against 
unauthorized access, deletion, destruction, amendment, and disclosure.



                   Subpart C_Orders and Adjudications



Sec. 27.300  Orders.

    (a) Orders Generally. When the Assistant Secretary determines that a 
facility is in violation of any of the requirements of this Part, the 
Assistant Secretary may take appropriate action including the issuance 
of an appropriate Order.
    (b) Orders Assessing Civil Penalty and Orders to Cease Operations. 
(1) Where the Assistant Secretary determines that a facility is in 
violation of an Order issued pursuant to paragraph (a) of this section, 
the Assistant may enter an Order Assessing Civil Penalty, Order to Cease 
Operations, or both.
    (2) Following the issuance of an Order by the Assistant Secretary 
pursuant to paragraph (b)(1) of this section, the facility may enter 
further consultations with Department.
    (3) Where the Assistant Secretary determines that a facility is in 
violation of an Order issued pursuant to paragraph (a) of this section 
and issues an Order Assessing Civil Penalty pursuant to paragraph (b)(1) 
of this section, a chemical facility is liable to the United

[[Page 139]]

States for a civil penalty of not more than $25,000 for each day during 
which the violation continues.
    (c) Procedures for Orders. (1) At a minimum, an Order shall be 
signed by the Assistant Secretary, shall be dated, and shall include:
    (i) The name and address of the facility in question;
    (ii) A listing of the provision(s) that the facility is alleged to 
have violated;
    (iii) A statement of facts upon which the alleged instances of 
noncompliance are based;
    (iv) A clear explanation of deficiencies in the facility's chemical 
security program, including, if applicable, any deficiencies in the 
facility's Security Vulnerability Assessment, Site Security Plan, or 
both; and
    (v) A statement, indicating what action(s) the chemical must take to 
remedy the instance(s) of noncompliance; and
    (vi) The date by which the facility must comply with the terms of 
the Order.
    (2) The Assistant Secretary may establish procedures for the 
issuance of Orders.
    (d) A facility must comply with the terms of the Order by the date 
specified in the Order unless the facility has filed a timely Notice for 
Application for Review under Sec. 27.310.
    (e) Where a facility or other person contests the determination of 
the Assistant Secretary to issue an Order, a chemical facility may seek 
an adjudication pursuant to Sec. 27.310.
    (f) An Order issued under this section becomes final agency action 
when the time to file a Notice of Application of Review under Sec. 
27.310 has passed without such a filing or upon the conclusion of 
adjudication or appeal proceedings under this subpart.



Sec. 27.305  Neutral adjudications.

    (a) Any facility or other person who has received a Finding pursuant 
to Sec. 27.230(a)(12)(iv), a Determination pursuant to Sec. 27.245(b), 
or an Order pursuant to Sec. 27.300 is entitled to an adjudication, by 
a neutral adjudications officer, of any issue of material fact relevant 
to any administrative action which deprives that person of a cognizable 
interest in liberty or property.
    (b) A neutral adjudications officer appointed pursuant to Sec. 
27.315 shall issue an Initial Decision on any material factual issue 
related to a Finding pursuant to Sec. 27.230(a)(12)(iv), a 
Determination pursuant to Sec. 27.245, or an Order pursuant to Sec. 
27.300 before any such administrative action is reviewed on appeal 
pursuant to Sec. 27.345.



Sec. 27.310  Commencement of adjudication proceedings.

    (a) Proceedings Instituted by Facilities or other Persons. A 
facility or other person may institute proceedings to review a 
determination by the Assistant Secretary:
    (1) Finding, pursuant to the Sec. 27.230(a)(12)(iv), that an 
individual is a potential security threat;
    (2) Disapproving a Site Security Plan pursuant to Sec. 27.245(b); 
or
    (3) Issuing an Order pursuant to Sec. 27.300(a) or (b).
    (b) Procedure for Applications by Facilities or other Persons. A 
facility or other person may institute Proceedings by filing a Notice of 
Application for Review specifying that the facility or other person 
requests a Proceeding to review a determination specified in paragraph 
(a) of this section.
    (1) An Applicant institutes a Proceeding by filing a Notice of 
Application for Review with the office of the Department hereinafter 
designated by the Secretary.
    (2) An Applicant must file a Notice of Application for Review within 
seven calendar days of notification to the facility or other person of 
the Assistant Secretary's Finding, Determination, or Order.
    (3) The Applicant shall file and simultaneously serve each Notice of 
Application for Review and all subsequent filings on the Assistant 
Secretary and the General Counsel.
    (4) An Order is stayed from the timely filing of a Notice of 
Application for Review until the Presiding Officer issues an Initial 
Decision, unless the Secretary has lifted the stay due to exigent 
circumstances pursuant to paragraph (d) of this section.
    (5) The Applicant shall file and serve an Application for Review 
within fourteen calendar days of the notification to the facility or 
other person of the

[[Page 140]]

Assistant Secretary's Finding, Determination, or Order.
    (6) Each Application for Review shall be accompanied by all legal 
memoranda, other documents, declarations, affidavits, and other evidence 
supporting the position asserted by the Applicant.
    (c) Response. The Assistant Secretary, through the Office of General 
Counsel, shall file and serve a Response, accompanied by all legal 
memoranda, other documents, declarations, affidavits and other evidence 
supporting the position asserted by the Assistant Secretary within 
fourteen calendar days of the filing and service of the Application for 
Review and all supporting papers.
    (d) Procedural Modifications. The Secretary may, in exigent 
circumstances (as determined in his sole discretion):
    (1) Lift any stay applicable to any Order under Sec. 27.300;
    (2) Modify the time for a response;
    (3) Rule on the sufficiency of Applications for Review; or
    (4) Otherwise modify these procedures with respect to particular 
matters.



Sec. 27.315  Presiding officers for proceedings.

    (a) Immediately upon the filing of any Application for Review, the 
Secretary shall appoint an attorney, who is employed by the Department 
and who has not performed any investigative or prosecutorial function 
with respect to the matter, to act as a neutral adjudications officer or 
Presiding Officer for the compilation of a factual record and the 
recommendation of an Initial Decision for each Proceeding.
    (b) Notwithstanding paragraph (a) of this section, the Secretary may 
appoint one or more attorneys who are employed by the Department and who 
do not perform any investigative or prosecutorial function with respect 
to this subpart, to serve generally in the capacity as Presiding 
Officer(s) for such matters pursuant to such procedures as the Secretary 
may hereafter establish.



Sec. 27.320  Prohibition on ex parte communications during proceedings.

    (a) At no time after the designation of a Presiding Officer for a 
Proceeding and prior to the issuance of a Final Decision pursuant to 
Sec. 27.345 with respect to a facility or other person, shall the 
appointed Presiding Officer, or any person who will advise that official 
in the decision on the matter, discuss ex parte the merits of the 
proceeding with any interested person outside the Department, with any 
Department official who performs a prosecutorial or investigative 
function in such proceeding or a factually related proceeding, or with 
any representative of such person.
    (b) If, after appointment of a Presiding Officer and prior to the 
issuance of a Final Decision pursuant to Sec. 27.345 with respect to a 
facility or other person, the appointed Presiding Officer, or any person 
who will advise that official in the decision on the matter, receives 
from or on behalf of any party, by means of an ex parte communication, 
information which is relevant to the decision of the matter and to which 
other parties have not had an opportunity to respond, a summary of such 
information shall be served on all other parties, who shall have an 
opportunity to reply to the ex parte communication within a time set by 
the Presiding Officer.
    (c) The consideration of classified information or CVI pursuant to 
an in camera procedure does not constitute a prohibited ex parte 
communication for purposes of this subpart.



Sec. 27.325  Burden of proof.

    The Assistant Secretary bears the initial burden of proving the 
facts necessary to support the challenged administrative action at every 
proceeding instituted under this subpart.



Sec. 27.330  Summary decision procedures.

    (a) The Presiding Officer appointed for each Proceeding shall 
immediately consider whether the summary adjudication of the Application 
for Review is appropriate based on the Application for Review, the 
Response, and all the supporting filings of the parties pursuant to 
Sec. Sec. 27.310(b)(5) and 27.310(c).

[[Page 141]]

    (1) The Presiding Officer shall promptly issue any necessary 
scheduling order for any additional briefing of the issue of summary 
adjudication on the Application for Review and Response.
    (2) The Presiding Officer may conduct scheduling conferences and 
other proceedings that the Presiding Officer determines to be 
appropriate.
    (b) If the Presiding Officer determines that there is no genuine 
issue of material fact and that one party or the other is entitled to 
decision as a matter of law, then the record shall be closed and the 
Presiding Officer shall issue an Initial Decision on the Application for 
Review pursuant to Sec. 27.340.
    (c) If a Presiding Officer determines that any factual issues 
require the cross-examination of one or more witnesses or other 
proceedings at a hearing, the Presiding Officer, in consultation with 
the parties, shall promptly schedule a hearing to be conducted pursuant 
to Sec. 27.335.



Sec. 27.335  Hearing procedures.

    (a) Any hearing shall be held as expeditiously as possible at the 
location most conducive to a prompt presentation of any necessary 
testimony or other proceedings.
    (1) Videoconferencing and teleconferencing may be used where 
appropriate at the discretion of the Presiding Officer.
    (2) Each party offering the affirmative testimony of a witness shall 
present that testimony by declaration, affidavit, or other sworn 
statement submitted in advance as ordered by the Presiding Officer.
    (3) Any witness presented for further examination shall be asked to 
testify under an oath or affirmation.
    (4) The hearing shall be recorded verbatim.
    (b)(1) A facility or other person may appear and be heard on his own 
behalf or through any counsel of his choice who is qualified to possess 
CVI.
    (2) A facility of other person individually, or through counsel, may 
offer relevant and material information including written direct 
testimony which he believes should be considered in opposition to the 
administrative action or which may bear on the sanction being sought.
    (3) The facility or other person individually, or through counsel, 
may conduct such cross-examination as may be specifically allowed by the 
Presiding Officer for a full determination of the facts.



Sec. 27.340  Completion of adjudication proceedings.

    (a) The Presiding Officer shall close and certify the record of the 
adjudication promptly upon the completion of:
    (1) Summary judgment proceedings,
    (2) A hearing, if necessary,
    (3) The submission of post hearing briefs, if any are ordered by the 
Presiding Officer, and
    (4) The conclusion of oral arguments, if any are permitted by the 
Presiding Officer.
    (b) The Presiding Officer shall issue an Initial Decision based on 
the certified record, and the decision shall be subject to appeal 
pursuant to Sec. 27.345.
    (c) An Initial Decision shall become a final agency action on the 
expiration of the time for an Appeal pursuant to Sec. 27.345.



Sec. 27.345  Appeals.

    (a) Right to Appeal. A facility or any person who has received an 
Initial Decision under Sec. 27.340(b) has the right to appeal to the 
Under Secretary acting as a neutral appeals officer.
    (b) Procedure for Appeals. (1) The Assistant Secretary, a facility 
or other person, or a representative on behalf of a facility or person, 
may institute an Appeal by filing a Notice of Appeal with the office of 
the Department hereinafter designated by the Secretary.
    (2) The Assistant Secretary, a facility, or other person must file a 
Notice of Appeal within seven calendar days of the service of the 
Presiding Officer's Initial Decision.
    (3) The Appellant shall file with the designated office and 
simultaneously serve each Notice of Appeal and all subsequent filings on 
the General Counsel.
    (4) An Initial Decision is stayed from the timely filing of a Notice 
of Appeal until the Under Secretary issues a Final Decision, unless the 
Secretary

[[Page 142]]

lifts the stay due to exigent circumstances pursuant to Sec. 27.310(d).
    (5) The Appellant shall file and serve a Brief within 28 calendar 
days of the notification of the service of the Presiding Officer's 
Initial Decision.
    (6) The Appellee shall file and serve its Opposition Brief within 28 
calendar days of the service of the Appellant's Brief.
    (c) The Under Secretary may provide for an expedited appeal for 
appropriate matters.
    (d) Ex Parte Communications. (1) At no time after the filing of a 
Notice of Appeal pursuant to paragraph (b)(1) of this section and prior 
to the issuance of a Final Decision on an Appeal pursuant to paragraph 
(f) of this section with respect to a facility or other person shall the 
Under Secretary, his designee, or any person who will advise that 
official in the decision on the matter, discuss ex parte the merits of 
the proceeding with any interested person outside the Department, with 
any Department official who performs a prosecutorial or investigative 
function in such proceeding or a factually related proceeding, or with 
any representative of such person.
    (2) If, after the filing of a Notice of Appeal pursuant to paragraph 
(b)(1) of this section and prior to the issuance of a Final Decision on 
an Appeal pursuant to paragraph (f) of this section with respect to a 
facility or other person, the Under Secretary, his designee, or any 
person who will advise that official in the decision on the matter, 
receives from or on behalf of any party, by means of an ex parte 
communication, information which is relevant to the decision of the 
matter and to which other parties have not had an opportunity to 
respond, a summary of such information shall be served on all other 
parties, who shall have an opportunity to reply to the ex parte 
communication within a time set by the Under Secretary or his designee.
    (3) The consideration of classified information or CVI pursuant to 
an in camera procedure does not constitute a prohibited ex parte 
communication for purposes of this subpart.
    (e) A facility or other person may elect to have the Under Secretary 
participate in any mediation or other resolution process by expressly 
waiving, in writing, any argument that such participation has 
compromised the Appeal process.
    (f) The Under Secretary shall issue a Final Decision and serve it 
upon the parties. A Final Decision made by the Under Secretary 
constitutes final agency action.
    (g) The Secretary may establish procedures for the conduct of 
Appeals pursuant to this section.



                             Subpart D_Other



Sec. 27.400  Chemical-terrorism vulnerability information.

    (a) Applicability. This section governs the maintenance, 
safeguarding, and disclosure of information and records that constitute 
Chemical-terrorism Vulnerability Information (CVI), as defined in Sec. 
27.400(b). The Secretary shall administer this section consistent with 
Section 550(c) of the Homeland Security Appropriations Act of 2007, 
including appropriate sharing with Federal, State and local officials.
    (b) Chemical-terrorism Vulnerability Information. In accordance with 
Section 550(c) of the Department of Homeland Security Appropriations Act 
of 2007, the following information, whether transmitted verbally, 
electronically, or in written form, shall constitute CVI:
    (1) Security Vulnerability Assessments under Sec. 27.215;
    (2) Site Security Plans under Sec. 27.225;
    (3) Documents relating to the Department's review and approval of 
Security Vulnerability Assessments and Site Security Plans, including 
Letters of Authorization, Letters of Approval and responses thereto; 
written notices; and other documents developed pursuant to Sec. Sec. 
27.240 or 27.245;
    (4) Alternate Security Programs under Sec. 27.235;
    (5) Documents relating to inspection or audits under Sec. 27.250;
    (6) Any records required to be created or retained under Sec. 
27.255;
    (7) Sensitive portions of orders, notices or letters under Sec. 
27.300;
    (8) Information developed pursuant to Sec. Sec. 27.200 and 27.205; 
and
    (9) Other information developed for chemical facility security 
purposes that the Secretary, in his discretion,

[[Page 143]]

determines is similar to the information protected in Sec. 27.400(b)(1) 
through (8) and thus warrants protection as CVI.
    (c) Covered Persons. Persons subject to the requirements of this 
section are:
    (1) Each person who has a need to know CVI, as specified in Sec. 
27.400(e);
    (2) Each person who otherwise receives or gains access to what they 
know or should reasonably know constitutes CVI.
    (d) Duty to protect information. A covered person must--
    (1) Take reasonable steps to safeguard CVI in that person's 
possession or control, including electronic data, from unauthorized 
disclosure. When a person is not in physical possession of CVI, the 
person must store it in a secure container, such as a safe, that limits 
access only to covered persons with a need to know;
    (2) Disclose, or otherwise provide access to, CVI only to persons 
who have a need to know;
    (3) Refer requests for CVI by persons without a need to know to the 
Assistant Secretary;
    (4) Mark CVI as specified in Sec. 27.400(f);
    (5) Dispose of CVI as specified in Sec. 27.400(k);
    (6) If a covered person receives a record or verbal transmission 
containing CVI that is not marked as specified in Sec. 27.400(f), the 
covered person must--
    (i) Mark the record as specified in Sec. 27.400(f) of this section; 
and
    (ii) Inform the sender of the record that the record must be marked 
as specified in Sec. 27.400(f); or
    (iii) If received verbally, make reasonable efforts to memorialize 
such information and mark the memorialized record as specified in Sec. 
27.400(f) of this section, and inform the speaker of any determination 
that such information warrants CVI protection.
    (7) When a covered person becomes aware that CVI has been released 
to persons without a need to know (including a covered person under 
Sec. 27.400(c)(2)), the covered person must promptly inform the 
Assistant Secretary.
    (8) In the case of information that is CVI and also has been 
designated as critical infrastructure information under Section 214 of 
the Homeland Security Act, any covered person in possession of such 
information must comply with the disclosure restrictions and other 
requirements applicable to such information under Section 214 and any 
implementing regulations.
    (e) Need to know. (1) A person, including a State or local official, 
has a need to know CVI in each of the following circumstances:
    (i) When the person requires access to specific CVI to carry out 
chemical facility security activities approved, accepted, funded, 
recommended, or directed by the Department.
    (ii) When the person needs the information to receive training to 
carry out chemical facility security activities approved, accepted, 
funded, recommended, or directed by the Department.
    (iii) When the information is necessary for the person to supervise 
or otherwise manage individuals carrying out chemical facility security 
activities approved, accepted, funded, recommended, or directed by the 
Department.
    (iv) When the person needs the information to provide technical or 
legal advice to a covered person, who has a need to know the 
information, regarding chemical facility security requirements of 
Federal law.
    (v) When the Department determines that access is required under 
Sec. Sec. 27.400(h) or 27.400(i) in the course of a judicial or 
administrative proceeding.
    (2) Federal employees, contractors, and grantees. (i) A Federal 
employee has a need to know CVI if access to the information is 
necessary for performance of the employee's official duties.
    (ii) A person acting in the performance of a contract with or grant 
from the Department has a need to know CVI if access to the information 
is necessary to performance of the contract or grant. Contractors or 
grantees may not further disclose CVI without the consent of the 
Assistant Secretary.
    (iii) The Department may require that non-Federal persons seeking 
access to CVI complete a non-disclosure agreement before such access is 
granted.
    (3) Background check. The Department may make an individual's access

[[Page 144]]

to the CVI contingent upon satisfactory completion of a security 
background check or other procedures and requirements for safeguarding 
CVI that are satisfactory to the Department.
    (4) Need to know further limited by the Department. For some 
specific CVI, the Department may make a finding that only specific 
persons or classes of persons have a need to know.
    (5) Nothing in Sec. 27.400(e) shall prevent the Department from 
determining, in its discretion, that a person not otherwise listed in 
Sec. 27.400(e) has a need to know CVI in a particular circumstance.
    (f) Marking of paper records. (1) In the case of paper records 
containing CVI, a covered person must mark the record by placing the 
protective marking conspicuously on the top, and the distribution 
limitation statement on the bottom, of--
    (i) The outside of any front and back cover, including a binder 
cover or folder, if the document has a front and back cover;
    (ii) Any title page; and
    (iii) Each page of the document.
    (2) Protective marking. The protective marking is: CHEMICAL-
TERRORISM VULNERABILITY INFORMATION.
    (3) Distribution limitation statement. The distribution limitation 
statement is: WARNING: This record contains Chemical-terrorism 
Vulnerability Information controlled by 6 CFR 27.400. Do not disclose to 
persons without a ``need to know'' in accordance with 6 CFR 27.400(e). 
Unauthorized release may result in civil penalties or other action. In 
any administrative or judicial proceeding, this information shall be 
treated as classified information in accordance with 6 CFR 27.400(h) and 
(i).
    (4) Other types of records. In the case of non-paper records that 
contain CVI, including motion picture films, videotape recordings, audio 
recording, and electronic and magnetic records, a covered person must 
clearly and conspicuously mark the records with the protective marking 
and the distribution limitation statement such that the viewer or 
listener is reasonably likely to see or hear them when obtaining access 
to the contents of the record.
    (g) Disclosure by the Department--In general. (1) Except as 
otherwise provided in this section, and notwithstanding the Freedom of 
Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), and 
other laws, records containing CVI are not available for public 
inspection or copying, nor does the Department release such records to 
persons without a need to know.
    (2) Disclosure of Segregatable Information under the Freedom of 
Information Act and the Privacy Act. If a record is marked to signify 
both CVI and information that is not CVI, the Department, on a proper 
Freedom of Information Act or Privacy Act request, may disclose the 
record with the CVI redacted, provided the record is not otherwise 
exempt from disclosure under the Freedom of Information Act or Privacy 
Act.
    (h) Disclosure in administrative enforcement proceedings. (1) The 
Department may provide CVI to a person governed by Section 550, and his 
counsel, in the context of an administrative enforcement proceeding of 
Section 550 when, in the sole discretion of the Department, as 
appropriate, access to the CVI is necessary for the person to prepare a 
response to allegations contained in a legal enforcement action document 
issued by the Department.
    (2) Security background check. Prior to providing CVI to a person 
under Sec. 27.400(h)(1), the Department may require the individual or, 
in the case of an entity, the individuals representing the entity, and 
their counsel, to undergo and satisfy, in the judgment of the 
Department, a security background check.
    (i) Disclosure in judicial proceedings. (1) In any judicial 
enforcement proceeding of Section 550, the Secretary, in his sole 
discretion, may, subject to Sec. 27.400(i)(1)(i), authorize access to 
CVI for persons necessary for the conduct of such proceedings, including 
such persons' counsel, provided that no other persons not so authorized 
shall have access to or be present for the disclosure of such 
information.
    (i) Security background check. Prior to providing CVI to a person 
under Sec. 27.400(i)(1), the Department may require the individual to 
undergo and satisfy, in the judgment of the Department, a security 
background check.
    (ii) [Reserved]

[[Page 145]]

    (2) In any judicial enforcement proceeding of Section 550 where a 
person seeks to disclose CVI to a person not authorized to receive it 
under paragraph (i)(1) of this section, or where a person not authorized 
to receive CVI under paragraph (i)(1) of this section seeks to compel 
its disclosure through discovery, the United States may make an ex parte 
application in writing to the court seeking authorization to--
    (i) Redact specified items of CVI from documents to be introduced 
into evidence or made available to the defendant through discovery under 
the Federal Rules of Civil Procedure;
    (ii) Substitute a summary of the information for such CVI; or
    (iii) Substitute a statement admitting relevant facts that the CVI 
would tend to prove.
    (3) The court shall grant a request under paragraph (i)(2) of this 
section if, after in camera review, the court finds that the redacted 
item, stipulation, or summary is sufficient to allow the defendant to 
prepare a defense.
    (4) If the court enters an order granting a request under paragraph 
(i)(2) of this section, the entire text of the documents to which the 
request relates shall be sealed and preserved in the records of the 
court to be made available to the appellate court in the event of an 
appeal.
    (5) If the court enters an order denying a request of the United 
States under paragraph (i)(2) of this section, the United States may 
take an immediate, interlocutory appeal of the court's order in 
accordance with 18 U.S.C. 2339B(f)(4), (5). For purposes of such an 
appeal, the entire text of the documents to which the request relates, 
together with any transcripts of arguments made ex parte to the court in 
connection therewith, shall be maintained under seal and delivered to 
the appellate court.
    (6) Except as provided otherwise at the sole discretion of the 
Secretary, access to CVI shall not be available in any civil or criminal 
litigation unrelated to the enforcement of Section 550.
    (7) Taking of trial testimony--
    (i) Objection--During the examination of a witness in any judicial 
proceeding, the United States may object to any question or line of 
inquiry that may require the witness to disclose CVI not previously 
found to be admissible.
    (ii) Action by court--In determining whether a response is 
admissible, the court shall take precautions to guard against the 
compromise of any CVI, including--
    (A) Permitting the United States to provide the court, ex parte, 
with a proffer of the witness's response to the question or line of 
inquiry; and
    (B) Requiring the defendant to provide the court with a proffer of 
the nature of the information that the defendant seeks to elicit.
    (iii) Obligation of defendant--In any judicial enforcement 
proceeding, it shall be the defendant's obligation to establish the 
relevance and materiality of any CVI sought to be introduced.
    (8) Construction. Nothing in this subsection shall prevent the 
United States from seeking protective orders or asserting privileges 
ordinarily available to the United States to protect against the 
disclosure of classified information, including the invocation of the 
military and State secrets privilege.
    (j) Consequences of Violation. Violation of this section is grounds 
for a civil penalty and other enforcement or corrective action by the 
Department, and appropriate personnel actions for Federal employees. 
Corrective action may include issuance of an order requiring retrieval 
of CVI to remedy unauthorized disclosure or an order to cease future 
unauthorized disclosure.
    (k) Destruction of CVI. (1) The Department of Homeland Security. 
Subject to the requirements of the Federal Records Act (5 U.S.C. 105), 
including the duty to preserve records containing documentation of a 
Federal agency's policies, decisions, and essential transactions, the 
Department destroys CVI when no longer needed to carry out the agency's 
function.
    (2) Other covered persons--(i) In general. A covered person must 
destroy CVI completely to preclude recognition or reconstruction of the 
information when the covered person no longer needs the CVI to carry out 
security measures under paragraph (e) of this section.

[[Page 146]]

    (ii) Exception. Section 27.400(k)(2) does not require a State or 
local government agency to destroy information that the agency is 
required to preserve under State or local law.



Sec. 27.405  Review and preemption of State laws and regulations.

    (a) As per current law, no law, regulation, or administrative action 
of a State or political subdivision thereof, or any decision or order 
rendered by a court under state law, shall have any effect if such law, 
regulation, or decision conflicts with, hinders, poses an obstacle to or 
frustrates the purposes of this regulation or of any approval, 
disapproval or order issued there under.
    (1) Nothing in this part is intended to displace other federal 
requirements administered by the Environmental Protection Agency, U.S. 
Department of Justice, U.S. Department of Labor, U.S. Department of 
Transportation, or other federal agencies.
    (2) [Reserved]
    (b) State law, regulation or administrative action defined. For 
purposes of this section, the phrase ``State law, regulation or 
administrative action'' means any enacted law, promulgated regulation, 
ordinance, administrative action, order or decision, or common law 
standard of a State or any of its political subdivisions.
    (c) Submission for review. Any chemical facility covered by these 
regulations and any State may petition the Department by submitting a 
copy of a State law, regulation, or administrative action, or decision 
or order of a court for review under this section.
    (d) Review and opinion--(1) Review. The Department may review State 
laws, administrative actions, or opinions or orders of a court under 
State law and regulations submitted under this section, and may offer an 
opinion whether the application or enforcement of the State law or 
regulation would conflict with, hinder, pose an obstacle to or frustrate 
the purposes of this Part.
    (2) Opinion. The Department may issue a written opinion on any 
question regarding preemption. If the question was submitted under 
subsection (c) of this part, the Assistant Secretary will notify the 
affected chemical facility and the Attorney General of the subject State 
of any opinion under this section.
    (3) Consultation with States. In conducting a review under this 
section, the Department will seek the views of the State or local 
jurisdiction whose laws may be affected by the Department's review.



Sec. 27.410  Third party actions.

    (a) Nothing in this Part shall confer upon any person except the 
Secretary a right of action, in law or equity, for any remedy including, 
but not limited to, injunctions or damages to enforce any provision of 
this Part.
    (b) An owner or operator of a chemical facility may petition the 
Assistant Secretary to provide the Department's view in any litigation 
involving any issues or matters regarding this Part.



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[72 FR 65420, Nov. 20, 2007]



PART 29_PROTECTED CRITICAL INFRASTRUCTURE INFORMATION--Table of Contents




Sec.
29.1 Purpose and scope.
29.2 Definitions.
29.3 Effect of provisions.
29.4 Protected Critical Infrastructure Information Program 
          administration.
29.5 Requirements for protection.
29.6 Acknowledgment of receipt, validation, and marking.
29.7 Safeguarding of Protected Critical Infrastructure Information.
29.8 Disclosure of Protected Critical Infrastructure Information.
29.9 Investigation and reporting of violation of PCII procedures.

    Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5 
U.S.C. 301.

    Source: 71 FR 52271, Sept. 1, 2006, unless otherwise noted.



Sec. 29.1  Purpose and scope.

    (a) Purpose of this Part. This Part implements sections 211 through 
215 of the Homeland Security Act of 2002 (HSA) through the establishment 
of uniform procedures for the receipt, care, and storage of Critical 
Infrastructure Information (CII) voluntarily submitted to the Department 
of Homeland Security (DHS). Title II, Subtitle B, of the Homeland 
Security Act is referred to herein as the Critical Infrastructure 
Information Act of 2002 (CII Act). Consistent with the statutory mission 
of DHS to prevent terrorist attacks within the United States and reduce 
the vulnerability of the United States to terrorism, DHS will encourage 
the voluntary submission of CII by safeguarding and protecting that 
information from unauthorized disclosure and by ensuring that such 
information is, as necessary, securely shared with State and local 
government pursuant to section 214(a) through (g) of the CII Act. As 
required by the CII Act, these rules establish procedures regarding:
    (1) The acknowledgement of receipt by DHS of voluntarily submitted 
CII;
    (2) The receipt, validation, handling, storage, proper marking and 
use of information as PCII;
    (3) The safeguarding and maintenance of the confidentiality of such 
information, appropriate sharing of such information with State and 
local governments pursuant to section 214(a) through (g) of the HSA.
    (4) The issuance of advisories, notices and warnings related to the 
protection of critical infrastructure or protected systems in such a 
manner as to protect from unauthorized disclosure the source of critical 
infrastructure information that forms the basis of the warning, and any 
information that is proprietary or business sensitive, might be used to 
identify the submitting person or entity, or is otherwise not 
appropriately in the public domain.
    (b) Scope. The regulations in this Part apply to all persons and 
entities that are authorized to handle, use, or store PCII or that 
otherwise accept receipt of PCII.



Sec. 29.2  Definitions.

    For purposes of this part:
    (a) Critical Infrastructure has the meaning stated in section 2 of 
the Homeland Security Act of 2002 (referencing the term used in section 
1016(e) of Public Law 107-56 (42 U.S.C. 5195c(e)).
    (b) Critical Infrastructure Information, or CII, has the same 
meaning as established in section 212 of the CII Act of 2002 and means 
information not customarily in the public domain and related to the 
security of critical infrastructure or protected systems, including 
documents, records or other information concerning:
    (1) Actual, potential, or threatened interference with, attack on, 
compromise of, or incapacitation of critical infrastructure or protected 
systems by either physical or computer-based attack or other similar 
conduct (including the misuse of or unauthorized access to all types of 
communications and data transmission systems) that violates Federal, 
State, local, or tribal law, harms interstate commerce of the United 
States, or threatens public health or safety;
    (2) The ability of any critical infrastructure or protected system 
to resist such interference, compromise, or incapacitation, including 
any planned or

[[Page 162]]

past assessment, projection, or estimate of the vulnerability of 
critical infrastructure or a protected system, including security 
testing, risk evaluation thereto, risk-management planning, or risk 
audit; or
    (3) Any planned or past operational problem or solution regarding 
critical infrastructure or protected systems, including repair, 
recovery, reconstruction, insurance, or continuity, to the extent it is 
related to such interference, compromise, or incapacitation.
    (c) Information Sharing and Analysis Organization, or ISAO, has the 
same meaning as is established in section 212 of the CII Act of 2002 and 
means any formal or informal entity or collaboration created or employed 
by public or private sector organizations for purposes of:
    (1) Gathering and analyzing CII in order to better understand 
security problems and interdependencies related to critical 
infrastructure and protected systems, so as to ensure the availability, 
integrity, and reliability thereof;
    (2) Communicating or disclosing CII to help prevent, detect, 
mitigate, or recover from the effects of an interference, compromise, or 
an incapacitation problem related to critical infrastructure or 
protected systems; and
    (3) Voluntarily disseminating CII to its members, Federal, State, 
and local governments, or any other entities that may be of assistance 
in carrying out the purposes specified in paragraphs (c)(1) and (2) of 
this section.
    (d) In the public domain means information lawfully, properly and 
regularly disclosed generally or broadly to the public. Information 
regarding system, facility or operational security is not ``in the 
public domain.'' Information submitted with CII that is proprietary or 
business sensitive, or which might be used to identify a submitting 
person or entity will not be considered ``in the public domain.'' 
Information may be ``business sensitive'' for this purpose whether or 
not it is commercial in nature, and even if its release could not 
demonstrably cause substantial harm to the competitive position of the 
submitting person or entity.
    (e) Local government has the same meaning as is established in 
section 2 of the Homeland Security Act of 2002 and means:
    (1) A county, municipality, city, town, township, local public 
authority, school district, special district, intrastate district, 
council of governments (regardless of whether the council of governments 
is incorporated as a nonprofit corporation under State law), regional or 
interstate government entity, or agency or instrumentality of a local 
government;
    (2) An Indian tribe or authorized tribal organization, or in Alaska 
a Native village or Alaska Regional Native Corporation; and
    (3) A rural community, unincorporated town or village, or other 
public entity.
    (f) Program Manager's Designee means a Federal employee outside of 
the PCII Program Office, whether employed by DHS or another Federal 
agency, to whom certain functions of the PCII Program Office are 
delegated by the Program Manager, as determined on a case-by-case basis.
    (g) Protected Critical Infrastructure Information, or PCII, means 
validated CII, including information covered by 6 CFR 29.6(b) and (f), 
including the identity of the submitting person or entity and any person 
or entity on whose behalf the submitting person or entity submits the 
CII, that is voluntarily submitted, directly or indirectly, to DHS, for 
its use regarding the security of critical infrastructure and protected 
systems, analysis, warning, interdependency study, recovery, 
reconstitution, or other appropriate purpose, and any information, 
statements, compilations or other materials reasonably necessary to 
explain the CII, put the CII in context, describe the importance or use 
of the CII, when accompanied by an express statement as described in 6 
CFR 29.5.
    (h) Protected Critical Infrastructure Information Program, or PCII 
Program, means the program implementing the CII Act, including the 
maintenance, management, and review of the information provided in 
furtherance of the protections provided by the CII Act.
    (i) Protected system has the meaning set forth in section 212(6) of 
the CII

[[Page 163]]

Act, and means any service, physical or computer-based system, process, 
or procedure that directly or indirectly affects the viability of a 
facility of critical infrastructure and includes any physical or 
computer-based system, including a computer, computer system, computer 
or communications network, or any component hardware or element thereof, 
software program, processing instructions, or information or data in 
transmission or storage therein, irrespective of the medium of 
transmission or storage.
    (j) Purposes of the CII Act has the meaning set forth in section 
214(a)(1) of the CII Act and includes the security of critical 
infrastructure and protected systems, analysis, warning, interdependency 
study, recovery, reconstitution, or other informational purpose.
    (k) Regulatory proceeding, as used in Section 212(7) of the CII Act 
and these rules, means administrative proceedings in which DHS is the 
adjudicating entity, and does not include any form or type of regulatory 
proceeding or other matter outside of DHS.
    (l) State has the same meaning set forth in section 2 of the 
Homeland Security Act of 2002 and means any State of the United States, 
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana 
Islands, and any possession of the United States.
    (m) Submission as referenced in these procedures means any 
transmittal, either directly or indirectly, of CII to the DHS PCII 
Program Manager or the PCII Program Manager's designee, as set forth 
herein.
    (n) Submitted in good faith means any submission of information that 
could reasonably be defined as CII or PCII under this section. Upon 
validation of a submission as PCII, DHS has conclusively established the 
good faith of the submission. Any information qualifying as PCII by 
virtue of a categorical inclusion identified by the Program Manager 
pursuant to section 214 of the CII Act and this Part is submitted in 
good faith.
    (o) Voluntary or voluntarily, when used in reference to any 
submission of CII, means the submittal thereof in the absence of an 
exercise of legal authority by DHS to compel access to or submission of 
such information. Voluntary submission of CII may be accomplished by 
(i.e., come from) a single state or local governmental entity; private 
entity or person; or by an ISAO acting on behalf of its members or 
otherwise. There are two exclusions from this definition. In the case of 
any action brought under the securities laws--as is defined in section 
3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47))--
the term ``voluntary'' or ``voluntarily'' does not include information 
or statements contained in any documents or materials filed, pursuant to 
section 12(i) of the Securities Exchange Act of 1934 (15 U.S.C. 781(i)), 
with the U.S. Securities and Exchange Commission or with Federal banking 
regulators or a writing that accompanied the solicitation of an offer or 
a sale of securities. Information or statements previously submitted to 
DHS in the course of a regulatory proceeding or a licensing or 
permitting determination are not ``voluntarily submitted.'' In addition, 
the submission of information to DHS for purposes of seeking a Federal 
preference or benefit, including CII submitted to support an application 
for a DHS grant to secure critical infrastructure will be considered a 
voluntary submission of information. Applications for SAFETY Act 
Designation or Certification under 6 CFR Part 25 will also be considered 
a voluntary submission.
    (p) The term used directly by such agency, any other Federal, State, 
or local authority, or any third party, in any civil action arising 
under Federal or State law in section 214(a)(1)(C) of the CII Act means 
any use in any proceeding other than a criminal prosecution before any 
court of the United States or of a State or otherwise, of any PCII, or 
any drafts or copies of PCII retained by the submitter, including the 
opinions, evaluations, analyses and conclusions prepared and submitted 
as CII, as evidence at trial or in any pretrial or other discovery, 
notwithstanding whether the United States, its agencies, officers, or 
employees is or are a party to such proceeding.

[[Page 164]]



Sec. 29.3  Effect of provisions.

    (a) Freedom of Information Act disclosure exemptions. Information 
that is separately exempt from public disclosure under the Freedom of 
Information Act or applicable State, local, or tribal law does not lose 
its separate exemption from public disclosure due to the applicability 
of these procedures or any failure to follow them.
    (b) Restriction on use of PCII by regulatory and other Federal, 
State, and Local agencies. A Federal, State or local agency that 
receives PCII may utilize the PCII only for purposes appropriate under 
the CII Act, including securing critical infrastructure or protected 
systems. Such PCII may not be utilized for any other collateral 
regulatory purposes without the written consent of the PCII Program 
Manager and of the submitting person or entity. The PCII Program Manager 
or the PCII Program Manager's designee shall not share PCII with 
Federal, State or local government agencies without instituting 
appropriate measures to ensure that PCII is used only for appropriate 
purposes.



Sec. 29.4  Protected Critical Infrastructure Information Program administration.

    (a) Preparedness Directorate Program Management. The Secretary of 
Homeland Security hereby designates the Under Secretary for Preparedness 
as the senior DHS official responsible for the direction and 
administration of the PCII Program. He shall administer this program 
through the Assistant Secretary for Infrastructure Protection.
    (b) Appointment of a PCII Program Manager. The Under Secretary for 
Preparedness shall:
    (1) Appoint a PCII Program Manager serving under the Assistant 
Secretary for Infrastructure Protection who is responsible for the 
administration of the PCII Program;
    (2) Commit resources necessary for the effective implementation of 
the PCII Program;
    (3) Ensure that sufficient personnel, including such detailees or 
assignees from other Federal national security, homeland security, or 
law enforcement entities as the Under Secretary deems appropriate, are 
assigned to the PCII Program to facilitate secure information sharing 
with appropriate authorities.
    (4) Promulgate implementing directives and prepare training 
materials as ppropriate for the proper treatment of PCII.
    (c) Appointment of PCII Officers. The PCII Program Manager shall 
establish procedures to ensure that each DHS component and each Federal, 
State, or local entity that works with PCII appoint one or more 
employees to serve as a PCII Officer in order to carry out the 
responsibilities stated in paragraph (d) of this section. Persons 
appointed to serve as PCII Officers shall be fully familiar with these 
procedures.
    (d) Responsibilities of PCII Officers. PCII Officers shall:
    (1) Oversee the handling, use, and storage of PCII;
    (2) Ensure the secure sharing of PCII with appropriate authorities 
and individuals, as set forth in 6 CFR 29.1(a), and paragraph (b)(3) of 
this section;
    (3) Establish and maintain an ongoing self-inspection program, to 
include periodic review and assessment of the compliance with handling, 
use, and storage of PCII;
    (4) Establish additional procedures, measures and penalties as 
necessary to prevent unauthorized access to PCII; and
    (5) Ensure prompt and appropriate coordination with the PCII Program 
Manager regarding any request, challenge, or complaint arising out of 
the implementation of these regulations.
    (e) Protected Critical Infrastructure Information Management System 
(PCIIMS). The PCII Program Manager shall develop, for use by the PCII 
Program Manager and the PCII Manager's designees, an electronic 
database, to be known as the ``Protected Critical Infrastructure 
Information Management System'' (PCIIMS), to record the receipt, 
acknowledgement, validation, storage, dissemination, and destruction of 
PCII. This compilation of PCII shall be safeguarded and protected in 
accordance with the provisions of the CII Act. The PCII Program Manager 
may require the completion of appropriate background investigations of 
an individual before granting that individual access to any PCII.

[[Page 165]]



Sec. 29.5  Requirements for protection.

    (a) CII shall receive the protections of section 214 of the CII Act 
when:
    (1) Such information is voluntarily submitted, directly or 
indirectly, to the PCII Program Manager or the PCII Program Manager's 
designee;
    (2) The information is submitted for protected use regarding the 
security of critical infrastructure or protected systems, analysis, 
warning, interdependency study, recovery, reconstitution, or other 
appropriate purposes including, without limitation, for the 
identification, analysis, prevention, preemption, disruption, defense 
against and/or mitigation of terrorist threats to the homeland;
    (3) The information is labeled with an express statement as follows:
    (i) In the case of documentary submissions, written marking on the 
information or records substantially similar to the following: ``This 
information is voluntarily submitted to the Federal government in 
expectation of protection from disclosure as provided by the provisions 
of the Critical Infrastructure Information Act of 2002''; or
    (ii) In the case of oral information:
    (A) Through an oral statement, made at the time of the oral 
submission or within a reasonable period thereafter, indicating an 
expectation of protection from disclosure as provided by the provisions 
of the CII Act; and
    (B) Through a written statement substantially similar to the one 
specified above accompanied by a document that memorializes the nature 
of oral information initially provided received by the PCII Program 
Manager or the PCII Program Manager's designee within a reasonable 
period after using oral submission; and
    (iii) In the case of electronic information:
    (A) Through an electronically submitted statement within a 
reasonable period of the electronic submission indicating an expectation 
of protection from disclosure as provided by the provisions of the CII 
Act; and
    (B) Through a non-electronically submitted written statement 
substantially similar to the one specified above accompanied by a 
document that memorializes the nature of e-mailed information initially 
provided, to be received by the PCII Program Manager or the PCII Program 
Manager's designee within a reasonable period after using e-mail 
submission.
    (4) The submitted information additionally is accompanied by a 
statement, signed by the submitting person or an authorized person on 
behalf of an entity identifying the submitting person or entity, 
containing such contact information as is considered necessary by the 
PCII Program Manager, and certifying that the information being 
submitted is not customarily in the public domain;
    (b) Information that is not submitted to the PCII Program Manager or 
the PCII Program Manager's designees will not qualify for protection 
under the CII Act. Only the PCII Program Manager or the PCII Program 
Manager's designees are authorized to acknowledge receipt of information 
being submitted for consideration of protection under the Act.
    (c) All Federal, State and local government entities shall protect 
and maintain information as required by these rules or by the provisions 
of the CII Act when that information is provided to the entity by the 
PCII Program Manager or the PCII Program Manager's designee and is 
marked as required in 6 CFR 29.6(c).
    (d) All submissions seeking PCII status shall be presumed to have 
been submitted in good faith until validation or a determination not to 
validate pursuant to these rules.



Sec. 29.6  Acknowledgment of receipt, validation, and marking.

    (a) Authorized officials. Only the DHS PCII Program Manager is 
authorized to validate, and mark information as PCII. The PCII Program 
Manager or the Program Manager's designees, may mark information 
qualifying under categorical inclusions pursuant to 6 CFR 29.6(f).
    (b) Presumption of protection. All information submitted in 
accordance with the procedures set forth hereby will be presumed to be 
and will be treated as PCII, enjoying the protections of section 214 of 
the CII Act, from the time the information is received by the PCII 
Program Office or the PCII

[[Page 166]]

Program Manager's designee. The information shall remain protected 
unless and until the PCII Program Office renders a final decision that 
the information is not PCII. The PCII Program Office will, with respect 
to information that is not properly submitted, inform the submitting 
person or entity within thirty days of receipt, by a means of 
communication to be prescribed by the PCII Program Manager, that the 
submittal was procedurally defective. The submitter will then have an 
additional 30 days to remedy the deficiency from receipt of such notice. 
If the submitting person or entity does not cure the deficiency within 
thirty calendar days of the date of receipt of the notification provided 
in this paragraph, the PCII Program Office may determine that the 
presumption of protection is terminated. Under such circumstances, the 
PCII Program Office may cure the deficiency by labeling the submission 
with the information required in 6 CFR 29.5 or may notify the applicant 
that the submission does not qualify as PCII. No CII submission will 
lose its presumptive status as PCII except as provided in 6 CFR 29.6(g).
    (c) Marking of information. All PCII shall be clearly identified 
through markings made by the PCII Program Office. The PCII Program 
Office shall mark PCII materials as follows: ``This document contains 
PCII. In accordance with the provisions of 6 CFR Part 29, this document 
is exempt from release under the Freedom of Information Act (5 U.S.C. 
552(b)(3)) and similar laws requiring public disclosure. Unauthorized 
release may result in criminal and administrative penalties. This 
document is to be safeguarded and disseminated in accordance with the 
CII Act and the PCII Program requirements.'' When distributing PCII, the 
distributing person shall ensure that the distributed information 
contains this marking.
    (d) Acknowledgement of receipt of information. The PCII Program 
Office or the PCII Program Manager's designees shall acknowledge receipt 
of information submitted as CII and accompanied by an express statement, 
and in so doing shall:
    (1) Contact the submitting person or entity, within thirty calendar 
days of receipt of the submission of CII, by the means of delivery 
prescribed in procedures developed by the PCII Program Manager. In the 
case of oral submissions, receipt will be acknowledged in writing within 
thirty calendar days after receipt by the PCII Program Office or the 
PCII Program Manager's designee of a written statement, certification, 
and documents that memorialize the oral submission, as referenced in 6 
CFR 29.5(a)(3)(ii);
    (2) Enter the appropriate data into the PCIIMS as required in 6 CFR 
29.4(e); and
    (3) Provide the submitting person or entity with a unique tracking 
number that will accompany the information from the time it is received 
by the PCII Program Office or the PCII Program Manager's designees.
    (e) Validation of information. (1) The PCII Program Manager shall be 
responsible for reviewing all submissions that request protection under 
the CII Act. The PCII Program Manager shall review the submitted 
information as soon as practicable. If a final determination is made 
that the submitted information meets the requirements for protection, 
the PCII Program Manager shall ensure that the information has been 
marked as required in paragraph (c) of this section, notify the 
submitting person or entity of the determination, and disclose it only 
pursuant to 6 CFR 29.8.
    (2) If the PCII Program Office makes an initial determination that 
the information submitted does not meet the requirements for protection 
under the CII Act, the PCII Program Office shall:
    (i) Notify the submitting person or entity of the initial 
determination that the information is not considered to be PCII. This 
notification also shall, as necessary:
    (A) Request that the submitting person or entity complete the 
requirements of 6 CFR 29.5(a)(4) or further explain the nature of the 
information and the submitting person or entity's basis for believing 
the information qualifies for protection under the CII Act;
    (B) Advise the submitting person or entity that the PCII Program 
Office will review any further information provided before rendering a 
final determination;

[[Page 167]]

    (C) Advise the submitting person or entity that the submission can 
be withdrawn at any time before a final determination is made;
    (D) Notify the submitting person or entity that until a final 
determination is made the submission will be treated as PCII;
    (E) Notify the submitting person or entity that any response to the 
notification must be received by the PCII Program Office no later than 
thirty calendar days after the date of the notification; and
    (F) Request the submitting person or entity to state whether, in the 
event the PCII Program Office makes a final determination that any such 
information is not PCII, the submitting person or entity prefers that 
the information be maintained without the protections of the CII Act or 
returned to the submitter or destroyed. If a request for withdrawal is 
made, all such information shall be returned to the submitting person or 
entity.
    (ii) If the information submitted has not been withdrawn by the 
submitting person or entity, and the PCII Program Office, after 
following the procedures set forth in paragraph (e)(2)(i) of this 
section, makes a final determination that the information is not PCII, 
the PCII Program Office, in accordance with the submitting person or 
entity's written preference, shall, within thirty calendar days of 
making a final determination, return the information to the submitter. 
If return to the submitter is impractical, the PCII Program Office shall 
destroy the information within 30 days. This process is consistent with 
the appropriate National Archives and Records Administration-approved 
records disposition schedule. If the submitting person or entity cannot 
be notified or the submitting person or entity's response is not 
received within thirty calendar days of the date of the notification as 
provided in paragraph (e)(2)(i) of this section, the PCII Program Office 
shall make the initial determination final and return the information to 
the submitter.
    (f) Categorical Inclusions of Certain Types of Infrastructure as 
PCII. The PCII Program Manager has discretion to declare certain subject 
matter or types of information categorically protected as PCII and to 
set procedures for receipt and processing of such information. 
Information within a categorical inclusion will be considered validated 
upon receipt by the Program Office or any of the Program Manager's 
designees without further review, provided that the submitter provides 
the express statement required by section 214(a)(1). Designees shall 
provide to the Program Manager information submitted under a categorical 
inclusion.
    (g) Changing the status of PCII to non-PCII. Once information is 
validated, only the PCII Program Office may change the status of PCII to 
that of non-PCII and remove its PCII markings. Status changes may only 
take place when the submitting person or entity requests in writing that 
the information no longer be protected under the CII Act; or when the 
PCII Program Office determines that the information was, at the time of 
the submission, customarily in the public domain. Upon making an initial 
determination that a change in status may be warranted, but prior to a 
final determination, the PCII Program Office, using the procedures in 
paragraph (e)(2) of this section, shall inform the submitting person or 
entity of the initial determination of a change in status. Notice of the 
final change in status of PCII shall be provided to all recipients of 
that PCII under 6 CFR 29.8.



Sec. 29.7  Safeguarding of Protected Critical Infrastructure Information.

    (a) Safeguarding. All persons granted access to PCII are responsible 
for safeguarding such information in their possession or control. PCII 
shall be protected at all times by appropriate storage and handling. 
Each person who works with PCII is personally responsible for taking 
proper precautions to ensure that unauthorized persons do not gain 
access to it.
    (b) Background Checks on Persons with Access to PCII. For those who 
require access to PCII, DHS will, to the extent practicable and 
consistent with the purposes of the Act, undertake appropriate 
background checks to ensure that individuals with access to PCII do not 
pose a threat to national security.

[[Page 168]]

These checks may also be waived in exigent circumstances.
    (c) Use and Storage. When PCII is in the physical possession of a 
person, reasonable steps shall be taken, in accordance with procedures 
prescribed by the PCII Program Manager, to minimize the risk of access 
to PCII by unauthorized persons. When PCII is not in the physical 
possession of a person, it shall be stored in a secure environment.
    (d) Reproduction. Pursuant to procedures prescribed by the PCII 
Program Manager, a document or other material containing PCII may be 
reproduced to the extent necessary consistent with the need to carry out 
official duties, provided that the reproduced documents or material are 
marked and protected in the same manner as the original documents or 
material.
    (e) Disposal of information. Documents and material containing PCII 
may be disposed of by any method that prevents unauthorized retrieval, 
such as shredding or incineration.
    (f) Transmission of information. PCII shall be transmitted only by 
secure means of delivery as determined by the PCII Program Manager, and 
in conformance with appropriate federal standards.
    (g) Automated Information Systems. The PCII Program Manager shall 
establish security requirements designed to protect information to the 
maximum extent practicable, and consistent with the Act, for Automated 
Information Systems that contain PCII. Such security requirements will 
be in conformance with the information technology security requirements 
in the Federal Information Security Management Act and the Office of 
Management and Budget's implementing policies.



Sec. 29.8  Disclosure of Protected Critical Infrastructure Information.

    (a) Authorization of access. The Under Secretary for Preparedness, 
the Assistant Secretary for Infrastructure Protection, or either's 
designee may choose to provide or authorize access to PCII under one or 
more of the subsections below when it is determined that this access 
supports a lawful and authorized government purpose as enumerated in the 
CII Act or other law, regulation, or legal authority.
    (b) Federal, State and Local government sharing. The PCII Program 
Manager or the PCII Program Manager's designees may provide PCII to an 
employee of the Federal government, provided, subject to subsection (f) 
of this section, that such information is shared for purposes of 
securing the critical infrastructure or protected systems, analysis, 
warning, interdependency study, recovery, reconstitution, or for another 
appropriate purpose including, without limitation, the identification, 
analysis, prevention, preemption, and/or disruption of terrorist threats 
to the homeland. PCII may not be used, directly or indirectly, for any 
collateral regulatory purpose. PCII may be provided to a State or local 
government entity for the purpose of protecting critical infrastructure 
or protected systems, or in furtherance of an investigation or the 
prosecution of a criminal act. The provision of PCII to a State or local 
government entity will normally be made only pursuant to an arrangement 
with the PCII Program Manager providing for compliance with the 
requirements of paragraph (d) of this section and acknowledging the 
understanding and responsibilities of the recipient. State and local 
governments receiving such information will acknowledge in such 
arrangements the primacy of PCII protections under the CII Act; agree to 
assert all available legal defenses to disclosure of PCII under State, 
or local public disclosure laws, statutes or ordinances; and will agree 
to treat breaches of the agreements by their employees or contractors as 
matters subject to the criminal code or to the applicable employee code 
of conduct for the jurisdiction.
    (c) Disclosure of information to Federal, State and local government 
contractors. Disclosure of PCII to Federal, State, and local contractors 
may be made when necessary for an appropriate purpose under the CII Act, 
and only after the PCII Program Manager or a PCII Officer certifies that 
the contractor is performing services in support of the purposes of the 
CII Act. The contractor's employees who will be handling PCII must sign 
individual nondisclosure agreements in a form prescribed

[[Page 169]]

by the PCII Program Manager, and the contractor must agree by contract, 
whenever and to whatever extent possible, to comply with all relevant 
requirements of the PCII Program. The contractor shall safeguard PCII in 
accordance with these procedures and shall not remove any ``PCII'' 
markings. An employee of the contractor may, in the performance of 
services in support of the purposes of the CII Act and when authorized 
to do so by the PCII Program Manager or the PCII Program Manager's 
designee, communicate with a submitting person or an authorized person 
of a submitting entity, about a submittal of information by that person 
or entity. Contractors shall not further disclose PCII to any other 
party not already authorized to receive such information by the PCII 
Program Manager or PCII Program Manager's Designee, without the prior 
written approval of the PCII Program Manager or the PCII Program 
Manager's designee.
    (d) Further use or disclosure of information by State, and local 
governments. (1) State and local governments receiving information 
marked ``Protected Critical Infrastructure Information'' shall not share 
that information with any other party not already authorized to receive 
such information by the PCII Program Manager or PCII Program Manager's 
designee, with the exception of their contractors after complying with 
the requirements of paragraph (c) of this section, or remove any PCII 
markings, without first obtaining authorization from the PCII Program 
Manager or the PCII Program Manager's designees, who shall be 
responsible for requesting and obtaining written consent from the 
submitter of the information.
    (2) State and local governments may use PCII only for the purpose of 
protecting critical infrastructure or protected systems, or as set forth 
elsewhere in these rules.
    (e) Disclosure of information to appropriate entities or to the 
general public. PCII may be used to prepare advisories, alerts, and 
warnings to relevant companies, targeted sectors, governmental entities, 
ISAOs or the general public regarding potential threats and 
vulnerabilities to critical infrastructure as appropriate pursuant to 
the CII Act. Unless exigent circumstances require otherwise, any such 
warnings to the general public will be authorized by the Secretary, 
Under Secretary for Preparedness, Assistant Secretary for Cyber Security 
and Telecommunications, or Assistant Secretary for Infrastructure 
Protection. Such exigent circumstances exist only when approval of the 
Secretary, the Under Secretary for Preparedness, Assistant Secretary for 
Cyber Security and Telecommunications, or the Assistant Secretary for 
Infrastructure Protection cannot be obtained within a reasonable time 
necessary to issue an effective advisory, alert, or warning. In issuing 
advisories, alerts and warnings, DHS shall consider the exigency of the 
situation, the extent of possible harm to the public or to critical 
infrastructure, and the necessary scope of the advisory or warning; and 
take appropriate actions to protect from disclosure any information that 
is proprietary, business sensitive, relates specifically to, or might be 
used to identify, the submitting person or entity, or any persons or 
entities on whose behalf the CII was submitted, or is not otherwise 
appropriately in the public domain. Depending on the exigency of the 
circumstances, DHS may consult or cooperate with the submitter in making 
such advisories, alerts or warnings.
    (f) Disclosure for law enforcement purposes and communication with 
submitters; access by Congress, the Comptroller General, and the 
Inspector General; and whistleblower protection.--(1) Exceptions for 
disclosure. (i) PCII shall not, without the written consent of the 
person or entity submitting such information, be used or disclosed for 
purposes other than the purposes of the CII Act, except--
    (A) In furtherance of an investigation or the prosecution of a 
criminal act by the Federal government, or by a State, local, or foreign 
government, when such disclosure is coordinated by a Federal law 
enforcement official;
    (B) To communicate with a submitting person or an authorized person 
on behalf of a submitting entity, about a submittal of information by 
that person or entity when authorized to do so by the PCII Program 
Manager or the PCII Program Manager's designee; or

[[Page 170]]

    (C) When disclosure of the information is made by any officer or 
employee of the United States--
    (1) To either House of Congress, or to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee thereof or subcommittee of any such joint committee; or
    (2) To the Comptroller General, or any authorized representative of 
the Comptroller General, in the course of the performance of the duties 
of the Government Accountability Office.
    (ii) If any officer or employee of the United States makes any 
disclosure pursuant to these exceptions, contemporaneous written 
notification must be provided to DHS through the PCII Program Manager.
    (2) Consistent with the authority to disclose information for any of 
the purposes of the CII Act, disclosure of PCII may be made, without the 
written consent of the person or entity submitting such information, to 
the DHS Inspector General.
    (g) Responding to requests made under the Freedom of Information Act 
or State, local, and tribal information access laws. PCII shall be 
treated as exempt from disclosure under the Freedom of Information Act 
and any State or local law requiring disclosure of records or 
information. Any Federal, State, local, or tribal government agency with 
questions regarding the protection of PCII from public disclosure shall 
contact the PCII Program Manager, who shall in turn consult with the DHS 
Office of the General Counsel.
    (h) Ex parte communications with decisionmaking officials. Pursuant 
to section 214(a)(1)(B) of the Homeland Security Act of 2002, PCII is 
not subject to any agency rules or judicial doctrine regarding ex parte 
communications with a decisionmaking official.
    (i) Restriction on use of PCII in civil actions. Pursuant to section 
214(a)(1)(C) of the Homeland Security Act of 2002, PCII shall not, 
without the written consent of the person or entity submitting such 
information, be used directly by any Federal, State or local authority, 
or by any third party, in any civil action arising under Federal, State, 
local, or tribal law.



Sec. 29.9  Investigation and reporting of violation of PCII procedures.

    (a) Reporting of possible violations. Persons authorized to have 
access to PCII shall report any suspected violation of security 
procedures, the loss or misplacement of PCII, and any suspected 
unauthorized disclosure of PCII immediately to the PCII Program Manager 
or the PCII Program Manager's designees. Suspected violations may also 
be reported to the DHS Inspector General. The PCII Program Manager or 
the PCII Program Manager's designees shall in turn report the incident 
to the appropriate Security Officer and to the DHS Inspector General.
    (b) Review and investigation of written report. The PCII Program 
Manager, or the appropriate Security Officer shall notify the DHS 
Inspector General of their intent to investigate any alleged violation 
of procedures, loss of information, and/or unauthorized disclosure, 
prior to initiating any such investigation. Evidence of wrongdoing 
resulting from any such investigations by agencies other than the DHS 
Inspector General shall be reported to the Department of Justice, 
Criminal Division, through the DHS Office of the General Counsel. The 
DHS Inspector General also has authority to conduct such investigations, 
and shall report any evidence of wrongdoing to the Department of 
Justice, Criminal Division, for consideration of prosecution.
    (c) Notification to originator of PCII. If the PCII Program Manager 
or the appropriate Security Officer determines that a loss of 
information or an unauthorized disclosure has occurred, the PCII Program 
Manager or the PCII Program Manager's designees shall notify the person 
or entity that submitted the PCII, unless providing such notification 
could reasonably be expected to hamper the relevant investigation or 
adversely affect any other law enforcement, national security, or 
homeland security interest.
    (d) Criminal and administrative penalties. (1) As established in 
section 214(f) of the CII Act, whoever, being an officer or employee of 
the United States or of any department or agency thereof, knowingly 
publishes, divulges, discloses, or makes known in any manner or to any 
extent not authorized by

[[Page 171]]

law, any information protected from disclosure by the CII Act coming to 
the officer or employee in the course of his or her employment or 
official duties or by reason of any examination or investigation made 
by, or return, report, or record made to or filed with, such department 
or agency or officer or employee thereof, shall be fined under title 18 
of the United States Code, imprisoned not more than one year, or both, 
and shall be removed from office or employment.
    (2) In addition to the penalties set forth in paragraph (d)(1) of 
this section, if the PCII Program Manager determines that an entity or 
person who has received PCII has violated the provisions of this Part or 
used PCII for an inappropriate purpose, the PCII Program Manager may 
disqualify that entity or person from future receipt of any PCII or 
future receipt of any sensitive homeland security information under 
section 892 of the Homeland Security Act, provided, however, that any 
such decision by the PCII Program Manager may be appealed to the Office 
of the Under Secretary for Preparedness.

[[Page 173]]



         CHAPTER X--PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD




  --------------------------------------------------------------------
Part                                                                Page
1000            Disclosure of records and information.......         175

[[Page 175]]



PART 1000_DISCLOSURE OF RECORDS AND INFORMATION--Table of Contents






    Effective Date Note: At 72 FR 66041, Nov. 27, 2007, Chapter X was 
removed in its entirety, effective January 30, 2008.

                       Freedom of Information Act

Sec.
1000.1 Definitions.
1000.2 Purpose.
1000.3 Authority and functions of Board.
1000.4 Other information.
1000.5 Public reference.
1000.6 How to request records.
1000.7 Initial determination.
1000.8 Response to FOIA request.
1000.9 Administrative appeal.
1000.10 Charges for search, review, and reproduction.
1000.11 Annual report.

    Authority: Public Law 108-408; 5 U.S.C. 552 et seq.

    Source: 72 FR 17789, Apr. 10, 2007, unless otherwised noted.

                       Freedom of Information Act



Sec. 1000.1  Definitions.

    Agency means Agency as defined in 5 U.S.C. 552(f)(1). The Privacy 
and Civil Liberties Oversight Board shall not be considered as an agency 
for any other purpose, except as referred to in this Regulation, and for 
Freedom of Information Act (FOIA) purposes.
    Board or PCLOB means the Privacy and Civil Liberties Oversight 
Board.
    Calendar Days means all days, including Saturday, Sunday, or Federal 
holidays.
    Commercial Use Request refers to 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 requestor or the person on whose 
behalf the request is made.
    Compelling need means that a failure to obtain requested Records on 
an expedited basis under this paragraph could reasonably be expected to 
pose an imminent threat to the life or physical safety of an individual; 
or with respect to a request made by a person primarily engaged in 
disseminating information, an urgency to inform the public concerning 
actual or alleged Federal Government activity.
    Computer search means the actual direct cost of providing the 
service. This will include the cost of operating the central processing 
unit for that portion of operating time that is directly attributable to 
Searching for potentially responsive records to a FOIA request and the 
portion of the salary of the operators/programmers attributable to the 
search.
    Days means ``work days'' not including Saturday, Sunday, Federal 
holidays, or other days the Board is closed.
    Direct costs means those expenditures that the Board actually incurs 
in searching for and duplicating (and in the case of commercial 
requestors, reviewing) documents to respond to a FOIA request. Direct 
costs include, for example, the salary of the employee performing work 
(the basic rate of pay for the employee 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.
    Duplication means the making of a copy of a document, or of the 
information contained in it, necessary to respond to a FOIA request. 
Such copies can take the form of paper, microform, audiovisual 
materials, or electronic Records (e.g., magnetic tape or disk), among 
others.
    Educational institution refers to a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education that operates a program or programs of scholarly research.
    FOIA means the Freedom of Information Act (5 U.S.C. 552).
    Head of the agency means the Chairman of the Privacy and Civil 
Liberties Oversight Board or the Chairman's designee.
    Non-commercial scientific institution refers to 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.

[[Page 176]]

    Record means a record as defined in 5 U.S.C. 552(f)(2). A Record 
must exist and be in the Board's custody and control at the time of the 
request to be considered subject to this part and FOIA.
    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. As traditional methods of news delivery evolve (e.g., electronic 
dissemination of newspapers through telecommunications services and Web 
sites), such media would be included in this category. In the case of 
freelance journalists, they may be regarded as working for a news 
organization if they can demonstrate a solid basis for expecting 
publication through that organization, even though they are not actually 
employed by it.
    Review means the process of examining documents located in response 
to a request that is for a commercial use to determine whether any 
portion of any document located is exempt from release or otherwise 
permitted to be withheld. It also includes processing any documents for 
disclosure (doing 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.
    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.



Sec. 1000.2  Purpose.

    These regulations describe how the Board implements the requirements 
of the Freedom of Information Act, 5 U.S.C. 552 et seq., and the 
procedures by which records may be obtained from the Board. Official 
records of the Board made available pursuant to FOIA shall be furnished 
to members of the public only pursuant to statute and as prescribed in 
these regulations.



Sec. 1000.3  Authority and functions of Board.

    The Board advises the President and other senior Executive Branch 
officials to ensure that concerns with respect to privacy and civil 
liberties are appropriately considered in the implementation of all 
laws, regulations, and Executive Branch policies related to efforts to 
protect the Nation against terrorism. This includes advising on whether 
adequate guidelines, supervision, and oversight exist to protect these 
important legal rights of all Americans. The Board was established by 
the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 
No. 108-458).



Sec. 1000.4  Other information.

    Additional information regarding the Board, including its members, 
organization, public statements, and relevant legislation, may be 
located on its Web site: http://www.privacyboard.gov.



Sec. 1000.5  Public reference.

    (a) The Board will make available for public inspection a copy of 
all material required to be made public by 5 U.S.C. 552(a)(2), including 
all documents published by the Board in the Federal Register and 
currently in effect. This material will also be available on the Board's 
Web site, http://www.privacyboard.gov.
    (b) In order to view documents maintained pursuant to Sec. 
1000.5(a), members of the public should contact the Board at (202) 456-
1240 or by e-mail at [email protected].
    (c) The FOIA Officer shall also maintain a file open to the public, 
which shall contain copies of all grants or denials of appeals by the 
Board.
    (d) The public may contact the Board's Chief FOIA Officer and the 
Public Liaison by writing to the address listed in Sec. 1000.6(a) or by 
calling (202) 456-1240.



Sec. 1000.6  How to request records.

    (a) A request for records pursuant to FOIA must be submitted in 
writing. An individual may submit a request via mail: FOIA Officer, 
Privacy and Civil

[[Page 177]]

Liberties Oversight Board, The White House, Washington, DC 20502; or via 
fax: (202) 456-1066. To ensure prompt receipt, the Board recommends 
sending a request via fax, as security procedures may delay requests 
sent through the mail. The words ``FOIA REQUEST'' should be clearly 
marked on the envelope or cover page, as well as on the actual request. 
The request must contain a means of contacting the requestor via mail 
and via telephone. The Board does not accept FOIA requests by e-mail.
    (b) Each request must reasonably describe the record(s) sought, 
including when known: The organization or individual originating the 
Record; subject matter; type of record; location; and any other 
pertinent information which would assist in promptly locating the 
Record. Requests shall also contain a description of their purpose so 
that a determination may be made regarding the appropriate fee structure 
that should be applied to the request. See Sec. 1000.10(i). Requests 
that do not meet these requirements will not be considered a proper 
request.
    (c) When a request is not considered reasonably descriptive, or 
requires the production of voluminous records, or places an 
extraordinary burden on the FOIA Officer or other members of the Board 
staff that would seriously interfere with its normal functioning, the 
Board shall provide the person an opportunity to limit the scope of the 
request so that it may be processed within that time limit or an 
opportunity to arrange with the Board an alternative time frame for 
processing the request or a modified request. Refusal by the person 
reasonably to modify the request or arrange such an alternative time 
frame shall be considered as a factor in determining whether exceptional 
circumstances exist for purposes of 5 U.S.C. 552(a)(6)(C).



Sec. 1000.7  Initial determination.

    References to the FOIA Officer shall, unless otherwise stated, 
include the FOIA Officer's designee. The FOIA Officer shall have the 
authority to approve or deny requests received pursuant to these 
regulations. The decision of the FOIA Officer shall be final, subject 
only to administrative appeal as provided in Sec. 1000.9.



Sec. 1000.8  Response to FOIA request.

    (a) When a requested record has been identified and is available, 
the FOIA Officer shall notify the person making the request as to where 
and when the record is available for inspection or the copies will be 
available. The notification shall also advise the person making the 
request of any fees pursuant to Sec. 1000.10.
    (b) The FOIA Officer shall approve or deny, in whole or in part, a 
request for Records as soon as reasonably possible. Such a response will 
be given in writing and will occur within 20 days after the Officer 
receives the request. The FOIA Officer may grant or deny a portion of a 
request if it appears that other, separate elements of the request will 
require additional time to complete. Pursuant to 5 U.S.C. 552(a)(6)(B), 
the FOIA Officer may extend these time limits by written notice to the 
person making such request. Such written notice shall set forth the 
unusual circumstances for such extension and the date on which a 
determination is expected to be dispatched. Such a notice shall not 
specify a date that would result in an extension for more than 10 days, 
except as provided in Sec. 1000.6(c). Additional time may be required 
because:

    (1) It is necessary to search for, collect, and appropriately 
examine a voluminous amount of separate and distinct records which are 
demanded in a single request;
    (2) It is necessary to consult with another organization having a 
substantial interest in the determination of the request or among two or 
more components of the organization having substantial subject matter 
interest therein; or
    (3) For other reasons discussed in 5 U.S.C. 552(a)(6)(B).

    (c) If the request is denied, the written notification to the person 
making the request shall include the names of the individuals who 
participated in the determination, the reasons for the denial, and a 
notice that an appeal may be lodged with the head of the agency within 
30 calendar days of receipt of the denial or partial denial.
    (d) The FOIA officer may grant expedited consideration of a FOIA 
request

[[Page 178]]

or appeal if the requestor shows a compelling need for such expedited 
consideration. The requestor must submit such a request in writing. A 
demonstration of a compelling need by a person making a request for 
expedited processing shall be made by a statement certified by such 
person to be true and correct to the best of such person's knowledge and 
belief. The FOIA officer will respond to such a request within 10 days 
of receipt of the request.



Sec. 1000.9  Administrative appeal.

    Appeals shall be set forth in writing within 30 calendar days of 
receipt of a denial and addressed to the head of the agency via mail or 
fax pursuant to the contact information listed in Sec. 1000.6(a). The 
words ``FOIA APPEAL'' must be clearly marked on the envelope or cover 
page, as well as the actual appeal. The appeal shall include a statement 
explaining the basis for the appeal. Determinations of appeals will be 
set forth in writing and signed by the head of the agency, or his 
designee, within 20 days of receipt of the appeal. If, on appeal, the 
denial is in whole or in part upheld, the written determination will 
also contain a notification of the provisions for judicial review, where 
a challenge may be filed, and the names of the persons who participated 
in the determination.



Sec. 1000.10  Charges for search, review, and reproduction.

    (a) The Board will charge fees that recoup the full allowable direct 
costs it incurs. This may also include costs incurred by another 
organization to search for, review, and produce potentially responsive 
records. Moreover, it shall use the most efficient and least costly 
methods to comply with requests for records made under FOIA.
    (b) With regard to manual searches for records, the Board will 
charge at the salary rate(s) (i.e., basic pay plus 16 percent) of the 
employee(s) making the search.
    (c) In calculating charges for computer searches for records, the 
Board will charge at the actual direct cost of providing the service. 
This will include the cost of operating the central processing unit for 
that portion of operating time that is directly attributable to 
searching for records potentially responsive to a FOIA request and the 
portion of the salary of the operators/programmers attributable to the 
search.
    (d) Only requestors who are seeking documents for commercial use may 
be charged for time spent reviewing records to determine whether they 
are exempt from mandatory disclosure. Charges may be assessed only for 
the initial review--that is, the review undertaken the first time the 
Board analyzes the applicability of a specific exemption to a particular 
record or portion of a record. Records or portions of records withheld 
in full under an exemption that is subsequently determined not to apply 
may be reviewed again to determine the applicability of other exemptions 
not previously considered. The Board may assess the costs for such a 
subsequent review.
    (e) Records will be duplicated at a rate of $.15 per page, except 
that the Board may adjust that rate from time to time by notice 
published in the Federal Register. For copies prepared by computer, such 
as tapes or printouts, the Board shall charge the actual cost, including 
operator time, of production of the tape or printout. For other methods 
of reproduction or duplication, the Board will charge the actual direct 
costs of producing the document(s). If the Board estimates that 
duplication charges are likely to exceed $25, it shall notify the 
requestor of the estimated amount of fees, unless the requestor has 
indicated in advance his willingness to pay fees as high as those 
anticipated. Such a notice shall offer a requestor the opportunity to 
confer with PCLOB personnel with the object of reformulating the request 
to meet his or her needs at a lower cost.
    (f) Remittances shall be in the form either of a personal check or 
bank draft drawn on a bank in the United States, or a postal money 
order. Remittances shall be made payable to the order of the Treasury of 
the United States and mailed to the FOIA Officer, Privacy and Civil 
Liberties Oversight Board, The White House, Washington, DC 20502.
    (g) A receipt for fees paid will be given upon request. Refund of 
fees paid

[[Page 179]]

for services actually rendered will not be made.
    (h) With the exception of requestors seeking documents for a 
Commercial Use, the Board will provide the first 100 pages of 
duplication and the first two hours of search time without charge.
    (1) For purposes of these restrictions on assessment of fees, the 
word ``pages'' refers to 8\1/2\[sec] x 11[sec] or 11[sec] x 14[sec] 
paper copies. Thus, requestors are not entitled to 100 microfiche or 100 
computer disks, for example. By contrast, a microfiche containing the 
equivalent of 100 pages or 100 pages of computer printout does meet the 
terms of the restriction.
    (2) Similarly, the term ``Search time'' in this context applies to a 
manual search. To apply this term to searches made by computer, the 
Board will determine the hourly cost of operating the central processing 
unit and the operator's hourly salary plus 16 percent. When the cost of 
search (including the operator time and the cost of operating the 
computer to process a request) equals the equivalent dollar amount of 
two hours of the salary of the person performing the search, the Board 
will begin assessing charges for computer searches.
    (i) The Board divides FOIA requestors into four categories: 
Commercial use requestors; educational and non-commercial scientific 
institutions; representatives of the news media; and all other 
requestors. The specific levels of fees for each of these categories 
are:
    (1) Commercial use requestors. When the Board receives a request for 
documents for commercial use, it will assess charges that recover the 
full direct costs of searching for, reviewing for release, and 
duplicating the record sought. Requestors must reasonably describe the 
records sought. Commercial use requestors are entitled neither to two 
hours of free search time nor to 100 free pages of reproduction of 
documents. The Board may recover the cost of searching for and Reviewing 
Records even if there is ultimately no disclosure of Records.
    (2) Educational and non-commercial scientific institution 
requestors. The Board shall provide documents to requestors in this 
category for the cost of reproduction alone, excluding charges for the 
first 100 pages. To be eligible for inclusion in this category, 
requestors must show that the request is being made as authorized by and 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use, but are sought in furtherance of 
scholarly (if the request is from an Educational Institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research. Requestors must reasonably describe the records 
sought.
    (3) Requestors who are representatives of the news media. The Board 
will provide documents to requestors in this category for the cost of 
reproduction alone, excluding charges for the first 100 pages. To be 
eligible for inclusion in this category, a requestor must satisfy the 
definition of representatives of the news media in Sec. 1000.1, and his 
or her request must not be made for a commercial use. In reference to 
this class of requestor, a request for Records supporting the news 
dissemination function of the requestor shall not be considered to be a 
request that is for a commercial use. Requestors must reasonably 
describe the Records sought.
    (4) All other requestors. The Board shall charge requestors who do 
not fit into any of the categories above fees that recover the full 
reasonable Direct Cost of Searching for and reproducing Records that are 
responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of Search time shall be furnished 
without charge. Requestors must reasonably describe the Records sought.
    (j) The Board may assess interest charges on an unpaid bill starting 
on the 31st Calendar Day following the day on which the billing was 
sent. The fact that the fee has been received within the thirty Calendar 
Day grace period, even if the fee has not been processed, will suffice 
to stay the accrual of interest. Interest will be at the rate prescribed 
in section 3717 of title 31 of the United States Code and will accrue 
from the date of the billing.
    (k) The Board may assess charges for time spent searching, even if 
it fails to locate the Records or if Records located are determined to 
be exempt from disclosure. If the Board estimates

[[Page 180]]

that Search charges are likely to exceed $25, it shall notify the 
requestor of the estimated amount of fees, unless the requestor has 
indicated in advance his willingness to pay fees as high as those 
anticipated.
    (l) A requestor may not file multiple requests, each seeking 
portions of a document or documents, solely in order to avoid payment of 
fees. When the Board reasonably believes that a requestor, or a group of 
requestors acting in concert, has submitted requests that constitute a 
single request, involving clearly related matters, it may aggregate 
those requests and charge accordingly.
    (m)(1) The Board may not require a requestor to make payment before 
work is commenced or continued on a request, unless:
    (i) The Board estimates or determines that allowable charges that a 
requestor may be required to pay are likely to exceed $250; or
    (ii) A requestor has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 Days of the date of the billing).
    (2) When the Board acts under paragraph (m)(1)(i) or (ii) of this 
section, the administrative time limits prescribed in FOIA, 5 U.S.C. 
Sec. 552(a)(6) will begin only after the Board has received fee 
payments described in paragraphs (m)(1)(i) and (ii) of this section.
    (n) Fees otherwise chargeable in connection with a request for 
disclosure of a record shall be waived or reduced where 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 requestor.



Sec. 1000.11  Annual report.

    The FOIA Officer or the FOIA Officer's designee shall annually, on 
or before February 1, submit a FOIA report addressing the preceding 
fiscal year to the Attorney General. The report shall include those 
matters required by 5 U.S.C. 552(e)(1). The Board will make the annual 
report available to the public pursuant to 5 U.S.C. 552(e)(2).


[[Page 181]]



                              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 183]]

            Material Approved for Incorporation by Reference

                     (Revised as of January 1, 2008)

  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.


6 CFR (PARTS 1-99)

DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY
                                                                   6 CFR


National Fire Protection Association (NFPA)

  1 Batterymarch Park, Quincy, MA 02169-7471;
  Telephone 617-770-3000; http://www.nfpa.org/
NFPA 704: Standard System for the Identification          27.203; 27.204
  of the hazards of materials for Emergency 
  Response 2007 Edition.

[[Page 185]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 2008)

                      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  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

[[Page 186]]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability 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 (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      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 (Parts 4300--
                4399)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)

[[Page 187]]

       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         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)

[[Page 188]]

        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, 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)

[[Page 189]]

     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)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      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)

[[Page 190]]

         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)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

[[Page 191]]

        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  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)

[[Page 192]]

        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 Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)

[[Page 193]]

        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]
       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)

[[Page 194]]

       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 (Parts 1200--1299)

                      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)

                   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)

[[Page 195]]

        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)
        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)

[[Page 196]]

        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)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     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)
        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)

[[Page 197]]

        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 [Reserved]

             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 (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        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)

[[Page 198]]

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory 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)
       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
            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 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

[[Page 199]]

                        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
        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)

[[Page 200]]

       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)
       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  Defense Acquisition Regulations System, 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  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)

[[Page 201]]

        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)
        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 [RESERVED]
        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  Pipeline and Hazardous Materials Safety 
                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)

[[Page 202]]

         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  Research and Innovative Technology Administration, 
                Department of Transportation [RESERVED]
       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)
         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 203]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 2008)

                                                  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              22, II
  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                               2, IX; 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 204]]

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
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 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 205]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, II
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 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                   2, XV; 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

[[Page 206]]

  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 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 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 Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 207]]

  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 Accountability Office                  4, I
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          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
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, 2, 
                                                  XXIV; 2424
  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
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
[[Page 208]]

Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  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            2, XIV; 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                                2, XXVII; 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

[[Page 209]]

  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
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, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
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     2, XVIII; 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      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
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 Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
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 Intelligence, Office of Director of      32, XVII
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                       2, XXV; 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
Natural Resources Conservation Service            7, VI

[[Page 210]]

Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
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
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory 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
Privacy and Civil Liberties Oversight Board       6, X
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
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
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                     2, XXVII; 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                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III

[[Page 211]]

Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  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
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  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 Claims Collection Standards             31, IX
  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                       2, VIII; 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 213]]



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 2003, 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.

                                  2003

6 CFR
                                                                   68 FR
                                                                    Page
Chapter I
Chapter I Established; interim......................................4056
5 Added.............................................................4056
5.41--5.49 (Subpart C) Added; interim...............................4070
7 Added; interim....................................................4074
9 Added; interim...................................................10912
15 Added; interim..................................................10886
17 Added; interim..................................................10892
21 Added; interim..................................................10904
25 Added; interim..................................................59698

                                  2004

6 CFR
                                                                   69 FR
                                                                    Page
Chapter I
29 Added; interim...................................................8083

                                  2005

6 CFR
                                                                   70 FR
                                                                    Page
Chapter I
7 Revised..........................................................61213
13 Added; interim..................................................59211

                                  2006

6 CFR
                                                                   71 FR
                                                                    Page
Chapter I
5 Appendix C added.................................................20523
25 Revised.........................................................33159
29 Revised.........................................................52271

                                  2007

6 CFR
                                                                   72 FR
                                                                    Page
Chapter I
5 Appendix C amended........................................38749, 38752
11 Added; interim...................................................4190
13 Regulation at 70 FR 59211 confirmed..............................6144
27 Added; interim; eff. date pending in part.......................17729
    Policy statement...............................................20423
27.105 Amended.....................................................65418
27.200 (b)(2) revised..............................................65418
27.203 Added.......................................................65419
27.204 Added.......................................................65419
27.210 (a)(1)(i) revised...........................................65420
27 Appendix A revised..............................................65420
 Chapter X
Chapter X Established; interim.....................................17789
    Removed; eff. 1-30-08..........................................66041
1000 Added; interim................................................17789


                                  [all]
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