[Title 36 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2009 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          36


          Part 300 to End

                         Revised as of July 1, 2009


          Parks, Forests, and Public Property
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2009
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................      vi

  Title 36:
          Chapter III--Corps of Engineers, Department of the 
          Army                                                       3
          Chapter IV--American Battle Monuments Commission          35
          Chapter V--Smithsonian Institution                        53
          Chapter VI [Reserved]
          Chapter VII--Library of Congress                          61
          Chapter VIII--Advisory Council on Historic 
          Preservation                                              83
          Chapter IX--Pennsylvania Avenue Development 
          Corporation                                              135
          Chapter X--Presidio Trust                                201
          Chapter XI--Architectural and Transportation 
          Barriers Compliance Board                                271
          Chapter XII--National Archives and Records 
          Administration                                           685
          Chapter XV--Oklahoma City National Memorial Trust       1009
          Chapter XVI--Morris K. Udall Scholarship and 
          Excellence in National Environmental Policy 
          Foundation                                              1013
  Finding Aids:
      Table of CFR Titles and Chapters........................    1031
      Alphabetical List of Agencies Appearing in the CFR......    1051

[[Page iv]]

      List of CFR Sections Affected...........................    1061

[[Page v]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 36 CFR 312.1 refers 
                       to title 36, part 312, 
                       section 1.

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

[[Page vi]]



                               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, July 1, 2009), 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 vii]]

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

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

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

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, 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 viii]]



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 
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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2009.







[[Page ix]]



                               THIS TITLE

    Title 36--Parks, Forests, and Public Property is composed of three 
volumes. The parts in these volumes are arranged in the following order: 
parts 1--199, parts 200--299, and part 300 to end. The contents of these 
volumes represent all current regulations codified under this title of 
the CFR as of July 1, 2009.

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

[[Page 1]]



              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY




                  (This book contains part 300 to End)

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

chapter iii--Corps of Engineers, Department of the Army.....         312

chapter iv--American Battle Monuments Commission............         400

chapter v--Smithsonian Institution..........................         504
chapter vi [Reserved]

chapter vii--Library of Congress............................         701

chapter viii--Advisory Council on Historic Preservation.....         800

chapter ix--Pennsylvania Avenue Development Corporation.....         901

chapter x--Presidio Trust...................................        1001

chapter xi--Architectural and Transportation Barriers 
  Compliance Board..........................................        1120

chapter xii--National Archives and Records Administration...        1200

chapter xv--Oklahoma City National Memorial Trust...........        1501

chapter xvi--Morris K. Udall Scholarship and Excellence in 
  National Environmental Policy Foundation..................        1600

[[Page 3]]



         CHAPTER III--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY




  --------------------------------------------------------------------
Part                                                                Page
300-311         [Reserved]

312             Prohibition of discriminatory practices in 
                    water resource development projects.....           5
327             Rules and regulations governing public use 
                    of water resource development projects 
                    administered by the Chief of Engineers..           5
328             Regulation of seaplane operations at civil 
                    works water resource development 
                    projects administered by the Chief of 
                    Engineers...............................          24
330             Regulation of law enforcement services 
                    contracts at civil works water resource 
                    projects administered by the Chief of 
                    Engineers...............................          27
331             Regulations governing the protection, use 
                    and management of the falls of the Ohio 
                    National Wildlife Conservation Area, 
                    Kentucky and Indiana....................          30
332-399         [Reserved]

[[Page 5]]

                        PARTS 300-311 [RESERVED]



PART 312_PROHIBITION OF DISCRIMINATORY PRACTICES IN WATER RESOURCE DEVELOPMENT 

PROJECTS--Table of Contents




Sec.
312.1 Areas covered.
312.2 Discriminatory practices prohibited.

    Authority: Sec. 4, 58 Stat. 889, as amended; 16 U.S.C. 460d.



Sec. 312.1  Areas covered.

    The regulation covered in this part shall be applicable to all water 
resource project lands under the supervision of the Secretary of the 
Army not covered in parts 311 and 326, of this title.

[29 FR 9710, July 18, 1964]



Sec. 312.2  Discriminatory practices prohibited.

    All project land and water areas which are open to the public shall 
be available for use and enjoyment by the public without regard to race, 
creed, color or national origin. Each lessee or licensee of a project 
area under lease or license providing for a public or quasi-public use, 
including group camp activities, and each concessionaire of a lessee or 
licensee providing a service to the public including facilities and 
accommodations, shall not discriminate against any person or persons 
because of race, creed, color or national origin in the conduct of its 
operations under the lease, license or concession agreement.

[29 FR 9710, July 18, 1964]



PART 327_RULES AND REGULATIONS GOVERNING PUBLIC USE OF WATER RESOURCE 

DEVELOPMENT PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS--Table of Contents




Sec.
327.0 Applicability.
327.1 Policy.
327.2 Vehicles.
327.3 Vessels.
327.4 Aircraft.
327.5 Swimming.
327.6 Picnicking.
327.7 Camping.
327.8 Hunting, fishing, and trapping.
327.9 Sanitation.
327.10 Fires.
327.11 Control of animals.
327.12 Restrictions.
327.13 Explosives, firearms, other weapons and fireworks.
327.14 Public property.
327.15 Abandonment and impoundment of personal property.
327.16 Lost and found articles.
327.17 Advertisement.
327.18 Commercial activities.
327.19 Permits.
327.20 Unauthorized structures.
327.21 Special events.
327.22 Unauthorized occupation.
327.23 Recreation use fees.
327.24 Interference with Government employees.
327.25 Violations of rules and regulations.
327.26 State and local laws.
327.27-327.29 [Reserved]
327.30 Shoreline Management on Civil Works Projects.
327.31 Shoreline management fee schedule.

    Authority: 16 U.S.C. 460d; 16 U.S.C. 4601-6a; Sec. 210, Pub. L. 90-
483, 82 Stat. 746.; 33 U.S.C. 1, 28 Stat. 362.

    Source: 50 FR 35556, Sept. 3, 1985, unless otherwise noted.



Sec. 327.0  Applicability.

    The regulations covered in this part 327 shall be applicable to 
water resources development projects, completed or under construction, 
administered by the Chief of Engineers, and to those portions of jointly 
administered water resources development projects which are under the 
administrative jurisdiction of the Chief of Engineers. All other 
Federal, state and local laws and regulations remain in full force and 
effect where applicable to those water resources development projects.

[65 FR 6898, Feb. 11, 2000]



Sec. 327.1  Policy.

    (a) It is the policy of the Secretary of the Army, acting through 
the Chief of Engineers, to manage the natural, cultural and developed 
resources of each project in the public interest, providing the public 
with safe and healthful recreational opportunities while protecting and 
enhancing these resources.
    (b) Unless otherwise indicated in this part, the term ``District 
Commander'' shall include the authorized representatives of the District 
Commander.

[[Page 6]]

    (c) The term ``project'' or ``water resources development project'' 
refers to the water areas of any water resources development project 
administered by the Chief of Engineers, without regard to ownership of 
underlying land, to all lands owned in fee by the Federal Government and 
to all facilities therein or thereon of any such water resources 
development project.
    (d) All water resources development projects open for public use 
shall be available to the public without regard to sex, race, color, 
creed, age, nationality or place of origin. No lessee, licensee, or 
concessionaire providing a service to the public shall discriminate 
against any person because of sex, race, creed, color, age, nationality 
or place of origin in the conduct of the operations under the lease, 
license or concession contract.
    (e) In addition to the regulations in this part 327, all applicable 
Federal, state and local laws and regulations remain in full force and 
effect on project lands or waters which are outgranted by the District 
Commander by lease, license or other written agreement.
    (f) The regulations in this part 327 shall be deemed to apply to 
those lands and waters which are subject to treaties and Federal laws 
and regulations concerning the rights of Indian Nations and which lands 
and waters are incorporated, in whole or in part, within water resources 
development projects administered by the Chief of Engineers, to the 
extent that the regulations in this part 327 are not inconsistent with 
such treaties and Federal laws and regulations.
    (g) Any violation of any section of this part 327 shall constitute a 
separate violation for each calendar day in which it occurs.
    (h) For the purposes of this part 327, the operator of any vehicle, 
vessel or aircraft as described in this part, shall be presumed to be 
responsible for its use on project property. In the event where an 
operator cannot be determined, the owner of the vehicle, vessel, or 
aircraft, whether attended or unattended, will be presumed responsible. 
Unless proven otherwise, such presumption will be sufficient to issue a 
citation for the violation of regulations applicable to the use of such 
vehicle, vessel or aircraft as provided for in Sec. 327.25.
    (i) For the purposes of this part 327, the registered user of a 
campsite, picnic area, or other facility shall be presumed to be 
responsible for its use. Unless proven otherwise, such presumption will 
be sufficient to issue a citation for the violation of regulations 
applicable to the use of such facilities as provided for in Sec. 
327.25.

[65 FR 6898, Feb. 11, 2000]



Sec. 327.2  Vehicles.

    (a) This section pertains to all vehicles, including, but not 
limited to, automobiles, trucks, motorcycles, mini-bikes, snowmobiles, 
dune buggies, all-terrain vehicles, and trailers, campers, bicycles, or 
any other such equipment.
    (b) Vehicles shall not be parked in violation of posted restrictions 
and regulations, or in such a manner as to obstruct or impede normal or 
emergency traffic movement or the parking of other vehicles, create a 
safety hazard, or endanger any person, property or environmental 
feature. Vehicles so parked are subject to removal and impoundment at 
the owner's expense.
    (c) The operation and/or parking of a vehicle off authorized 
roadways is prohibited except at locations and times designated by the 
District Commander. Taking any vehicle through, around or beyond a 
restrictive sign, recognizable barricade, fence, or traffic control 
barrier is prohibited.
    (d) Vehicles shall be operated in accordance with posted 
restrictions and regulations.
    (e) No person shall operate any vehicle in a careless, negligent or 
reckless manner so as to endanger any person, property or environmental 
feature.
    (f) At designated recreation areas, vehicles shall be used only to 
enter or leave the area or individual sites or facilities unless 
otherwise posted.
    (g) Except as authorized by the District Commander, no person shall 
operate any motorized vehicle without a proper and effective exhaust 
muffler as defined by state and local laws, or with an exhaust muffler 
cutout open, or in any other manner which renders the exhaust muffler 
ineffective in muffling the sound of engine exhaust.

[[Page 7]]

    (h) Vehicles shall be operated in accordance with applicable 
Federal, state and local laws, which shall be regulated by authorized 
enforcement officials as prescribed in Sec. 327.26.

[65 FR 6899, Feb. 11, 2000]



Sec. 327.3  Vessels.

    (a) This section pertains to all vessels or watercraft, including, 
but not limited to, powerboats, cruisers, houseboats, sailboats, 
rowboats, canoes, kayaks, personal watercraft, and any other such 
equipment capable of navigation on water or ice, whether in motion or at 
rest.
    (b) The placement and/or operation of any vessel or watercraft for a 
fee or profit upon project waters or lands is prohibited except as 
authorized by permit, lease, license, or concession contract with the 
Department of the Army. This paragraph shall not apply to the operation 
of commercial tows or passenger carrying vessels not based at a Corps 
project which utilize project waters as a link in continuous transit 
over navigable waters of the United States.
    (c) Vessels or other watercraft may be operated on the project 
waters, except in prohibited or restricted areas, in accordance with 
posted regulations and restrictions, including buoys. All vessels or 
watercraft so required by applicable Federal, state and local laws shall 
display an appropriate registration on board whenever the vessel is on 
project waters.
    (d) No person shall operate any vessel or other watercraft in a 
careless, negligent, or reckless manner so as to endanger any person, 
property, or environmental feature.
    (e) All vessels, when on project waters, shall have safety 
equipment, including personal flotation devices, on board in compliance 
with U.S. Coast Guard boating safety requirements and in compliance with 
boating safety laws issued and enforced by the state in which the vessel 
is located. Owners or operators of vessels not in compliance with this 
section may be requested to remove the vessel immediately from project 
waters until such time as items of non-compliance are corrected.
    (f) Unless otherwise permitted by Federal, state or local law, 
vessels or other watercraft, while moored in commercial facilities, 
community or corporate docks, or at any fixed or permanent mooring 
point, may only be used for overnight occupancy when such use is 
incidental to recreational boating. Vessels or other watercraft are not 
to be used as a place of habitation or residence.
    (g) Water skis, parasails, ski-kites and similar devices are 
permitted in nonrestricted areas except that they may not be used in a 
careless, negligent, or reckless manner so as to endanger any person, 
property or environmental feature.
    (h) Vessels shall not be attached or anchored to structures such as 
locks, dams, buoys or other structures unless authorized by the District 
Commander. All vessels when not in actual use shall be removed from 
project lands and waters unless securely moored or stored at designated 
areas approved by the District Commander. The placing of floating or 
stationary mooring facilities on, adjacent to, or interfering with a 
buoy, channel marker or other navigational aid is prohibited.
    (i) The use at a project of any vessel not constructed or maintained 
in compliance with the standards and requirements established by the 
Federal Safe Boating Act of 1971 (Pub. L. 92-75, 85 Stat. 213), or 
promulgated pursuant to such act, is prohibited.
    (j) Except as authorized by the District Commander, no person shall 
operate any vessel or watercraft without a proper and effective exhaust 
muffler as defined by state and local laws, or with an exhaust muffler 
cutout open, or in any other manner which renders the exhaust muffler 
ineffective in muffling the sound of engine exhaust.
    (k) All vessels or other watercraft shall be operated in accordance 
with applicable Federal, state and local laws, which shall be regulated 
by authorized enforcement officials as prescribed in Sec. 327.26.

[65 FR 6899, Feb. 11, 2000]



Sec. 327.4  Aircraft.

    (a) This section pertains to all aircraft including, but not limited 
to, airplanes, seaplanes, helicopters, ultra-light aircraft, motorized 
hang gliders, hot air balloons, any non-powered

[[Page 8]]

flight devices or any other such equipment.
    (b) The operation of aircraft on project lands at locations other 
than those designated by the District Commander is prohibited. This 
provision shall not be applicable to aircraft engaged on official 
business of Federal, state or local governments or law enforcement 
agencies, aircraft used in emergency rescue in accordance with the 
directions of the District Commander or aircraft forced to land due to 
circumstances beyond the control of the operator.
    (c) No person shall operate any aircraft while on or above project 
waters or project lands in a careless, negligent or reckless manner so 
as to endanger any person, property or environmental feature.
    (d) Nothing in this section bestows authority to deviate from rules 
and regulations or prescribed standards of the appropriate State 
Aeronautical Agency, or the Federal Aviation Administration, including, 
but not limited to, regulations and standards concerning pilot 
certifications or ratings, and airspace requirements.
    (e) Except in extreme emergencies threatening human life or serious 
property loss, the air delivery or retrieval of any person, material or 
equipment by parachute, balloon, helicopter or other means onto or from 
project lands or waters without written permission of the District 
Commander is prohibited.
    (f) In addition to the provisions in paragraphs (a) through (e) of 
this section, seaplanes are subject to the following restrictions:
    (1) Such use is limited to aircraft utilized for water landings and 
takeoff, in this part called seaplanes, at the risk of owner, operator 
and passenger(s).
    (2) Seaplane operations contrary to the prohibitions or restrictions 
established by the District Commander (pursuant to part 328 of this 
title) are prohibited. The responsibility to ascertain whether seaplane 
operations are prohibited or restricted is incumbent upon the person(s) 
contemplating the use of, or using, such waters.
    (3) All operations of seaplanes while upon project waters shall be 
in accordance with U.S. Coast Guard navigation rules for powerboats or 
vessels and Sec. 327.3.
    (4) Seaplanes on project waters and lands in excess of 24 hours 
shall be securely moored at mooring facilities and at locations 
permitted by the District Commander. Seaplanes may be temporarily moored 
on project waters and lands, except in areas prohibited by the District 
Commander, for periods less than 24 hours providing:
    (i) The mooring is safe, secure, and accomplished so as not to 
damage the rights of the Government or members of the public, and
    (ii) The operator remains in the vicinity of the seaplane and 
reasonably available to relocate the seaplane if necessary.
    (5) Commercial operation of seaplanes from project waters is 
prohibited without written approval of the District Commander following 
consultation with and necessary clearance from the Federal Aviation 
Administration (FAA) and other appropriate public authorities and 
affected interests.
    (6) Seaplanes may not be operated at Corps projects between sunset 
and sunrise unless approved by the District Commander.

[65 FR 6899, Feb. 11, 2000]



Sec. 327.5  Swimming.

    (a) Swimming, wading, snorkeling or scuba diving at one's own risk 
is permitted, except at launching sites, designated mooring points and 
public docks, or other areas so designated by the District Commander.
    (b) An international diver down, or inland diving flag must be 
displayed during underwater activities.
    (c) Diving, jumping or swinging from trees, bridges or other 
structures which cross or are adjacent to project waters is prohibited.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.6  Picnicking.

    Picnicking and related day-use activities are permitted, except in 
those areas where prohibited by the District Commander.

[65 FR 6900, Feb. 11, 2000]

[[Page 9]]



Sec. 327.7  Camping.

    (a) Camping is permitted only at sites and/or areas designated by 
the District Commander.
    (b) Camping at one or more campsites at any one water resource 
project for a period longer than 14 days during any 30-consecutive-day 
period is prohibited without the written permission of the District 
Commander.
    (c) The unauthorized placement of camping equipment or other items 
on a campsite and/or personal appearance at a campsite without daily 
occupancy for the purpose of reserving that campsite for future 
occupancy is prohibited.
    (d) The digging or leveling of any ground or the construction of any 
structure without written permission of the District Commander is 
prohibited.
    (e) Occupying or placement of any camping equipment at a campsite 
which is posted or otherwise marked or indicated as ``reserved'' without 
an authorized reservation for that site is prohibited.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.8  Hunting, fishing, and trapping.

    (a) Hunting is permitted except in areas and during periods where 
prohibited by the District Commander.
    (b) Trapping is permitted except in areas and during periods where 
prohibited by the District Commander.
    (c) Fishing is permitted except in swimming areas, on boat ramps or 
other areas designated by the District Commander.
    (d) Additional restrictions pertaining to these activities may be 
established by the District Commander.
    (e) All applicable Federal, State and local laws regulating these 
activities apply on project lands and waters, and shall be regulated by 
authorized enforcement officials as prescribed in Sec. 327.26.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.9  Sanitation.

    (a) Garbage, trash, rubbish, litter, gray water, or any other waste 
material or waste liquid generated on the project and incidental to 
authorized recreational activities shall be either removed from the 
project or deposited in receptacles provided for that purpose. The 
improper disposal of such wastes, human and animal waste included, on 
the project is prohibited.
    (b) It is a violation to bring onto a project any household or 
commercial garbage, trash, rubbish, debris, dead animals or litter of 
any kind for disposal or dumping without the written permission of the 
District Commander. For the purposes of this section, the owner of any 
garbage, trash, rubbish, debris, dead animals or litter of any kind 
shall be presumed to be responsible for proper disposal. Such 
presumption will be sufficient to issue a citation for violation.
    (c) The spilling, pumping, discharge or disposal of contaminants, 
pollutants or other wastes, including, but not limited to, human or 
animal waste, petroleum, industrial and commercial products and by-
products, on project lands or into project waters is prohibited.
    (d) Campers, picnickers, and all other persons using a water 
resources development project shall keep their sites free of trash and 
litter during the period of occupancy and shall remove all personal 
equipment and clean their sites upon departure.
    (e) The discharge or placing of sewage, galley waste, garbage, 
refuse, or pollutants into the project waters from any vessel or 
watercraft is prohibited.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.10  Fires.

    (a) Gasoline and other fuels, except that which is contained in 
storage tanks of vehicles, vessels, camping equipment, or hand portable 
containers designed for such purpose, shall not be carried onto or 
stored on the project without written permission of the District 
Commander.
    (b) Fires shall be confined to those areas designated by the 
District Commander, and shall be contained in fireplaces, grills, or 
other facilities designated for this purpose. Fires shall not be left 
unattended and must be completely extinguished prior to departure. The 
burning of materials that produce toxic fumes, including, but not 
limited to, tires, plastic and other floatation materials or treated 
wood products is prohibited. The District Commander may prohibit open 
burning

[[Page 10]]

of any type for environmental considerations.
    (c) Improper disposal of lighted smoking materials, matches or other 
burning material is prohibited.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.11  Control of animals.

    (a) No person shall bring or allow dogs, cats, or other pets into 
developed recreation areas or adjacent waters unless penned, caged, on a 
leash under six feet in length, or otherwise physically restrained. No 
person shall allow animals to impede or restrict otherwise full and free 
use of project lands and waters by the public. No person shall allow 
animals to bark or emit other noise which unreasonably disturbs other 
people. Animals and pets, except properly trained animals assisting 
those with disabilities (such as seeing-eye dogs), are prohibited in 
sanitary facilities, playgrounds, swimming beaches and any other areas 
so designated by the District Commander. Abandonment of any animal on 
project lands or waters is prohibited. Unclaimed or unattended animals 
are subject to immediate impoundment and removal in accordance with 
state and local laws.
    (b) Persons bringing or allowing pets in designated public use areas 
shall be responsible for proper removal and disposal of any waste 
produced by these animals.
    (c) No person shall bring or allow horses, cattle, or other 
livestock in camping, picnicking, swimming or other recreation areas or 
on trails except in areas designated by the District Commander.
    (d) Ranging, grazing, watering or allowing livestock on project 
lands and waters is prohibited except when authorized by lease, license 
or other written agreement with the District Commander.
    (e) Unauthorized livestock are subject to impoundment and removal in 
accordance with Federal, state and local laws.
    (f) Any animal impounded under the provisions of this section may be 
confined at a location designated by the District Commander, who may 
assess a reasonable impoundment fee. This fee shall be paid before the 
impounded animal is returned to its owner(s).
    (g) Wild or exotic pets and animals (including but not limited to 
cougars, lions, bears, bobcats, wolves, and snakes), or any pets or 
animals displaying vicious or aggressive behavior or otherwise posing a 
threat to public safety or deemed a public nuisance, are prohibited from 
project lands and waters unless authorized by the District Commander, 
and are subject to removal in accordance with Federal, state and local 
laws.

[65 FR 6901, Feb. 11, 2000]



Sec. 327.12  Restrictions.

    (a) The District Commander may establish and post a schedule of 
visiting hours and/or restrictions on the public use of a project or 
portion of a project. The District Commander may close or restrict the 
use of a project or portion of a project when necessitated by reason of 
public health, public safety, maintenance, resource protection or other 
reasons in the public interest. Entering or using a project in a manner 
which is contrary to the schedule of visiting hours, closures or 
restrictions is prohibited.
    (b) Quiet shall be maintained in all public use areas between the 
hours of 10 p.m. and 6 a.m., or those hours designated by the District 
Commander. Excessive noise during such times which unreasonably disturbs 
persons is prohibited.
    (c) Any act or conduct by any person which interferes with, impedes 
or disrupts the use of the project or impairs the safety of any person 
is prohibited. Individuals who are boisterous, rowdy, disorderly, or 
otherwise disturb the peace on project lands or waters may be requested 
to leave the project.
    (d) The operation or use of any sound producing or motorized 
equipment, including but not limited to generators, vessels or vehicles, 
in such a manner as to unreasonably annoy or endanger persons at any 
time or exceed state or local laws governing noise levels from motorized 
equipment is prohibited.
    (e) The possession and/or consumption of alcoholic beverages on any 
portion of the project land or waters, or the entire project, may be 
prohibited when designated and posted by the District Commander.

[[Page 11]]

    (f) Unless authorized by the District Commander, smoking is 
prohibited in Visitor Centers, enclosed park buildings and in areas 
posted to restrict smoking.

[65 FR 6901, Feb. 11, 2000]



Sec. 327.13  Explosives, firearms, other weapons and fireworks.

    (a) The possession of loaded firearms, ammunition, loaded projectile 
firing devices, bows and arrows, crossbows, or other weapons is 
prohibited unless:
    (1) In the possession of a Federal, state or local law enforcement 
officer;
    (2) Being used for hunting or fishing as permitted under Sec. 
327.8, with devices being unloaded when transported to, from or between 
hunting and fishing sites;
    (3) Being used at authorized shooting ranges; or
    (4) Written permission has been received from the District 
Commander.
    (b) Possession of explosives or explosive devices of any kind, 
including fireworks or other pyrotechnics, is prohibited unless written 
permission has been received from the District Commander.

[65 FR 6901, Feb. 11, 2000]



Sec. 327.14  Public property.

    (a) Destruction, injury, defacement, removal or any alteration of 
public property including, but not limited to, developed facilities, 
natural formations, mineral deposits, historical and archaeological 
features, paleontological resources, boundary monumentation or markers 
and vegetative growth, is prohibited except when in accordance with 
written permission of the District Commander.
    (b) Cutting or gathering of trees or parts of trees and/or the 
removal of wood from project lands is prohibited without written 
permission of the District Commander.
    (c) Gathering of dead wood on the ground for use in designated 
recreation areas as firewood is permitted, unless prohibited and posted 
by the District Commander.
    (d) The use of metal detectors is permitted on designated beaches or 
other previously disturbed areas unless prohibited by the District 
Commander for reasons of protection of archaeological, historical or 
paleontological resources. Specific information regarding metal detector 
policy and designated use areas is available at the Manager's Office. 
Items found must be handled in accordance with Sec. Sec. 327.15 and 
327.16 except for non-identifiable items such as coins of value less 
than $25.

[65 FR 6901, Feb. 11, 2000]



Sec. 327.15  Abandonment and impoundment of personal property.

    (a) Personal property of any kind shall not be abandoned, stored or 
left unattended upon project lands or waters. After a period of 24 
hours, or at any time after a posted closure hour in a public use area 
or for the purpose of providing public safety or resource protection, 
unattended personal property shall be presumed to be abandoned and may 
be impounded and stored at a storage point designated by the District 
Commander, who may assess a reasonable impoundment fee. Such fee shall 
be paid before the impounded property is returned to its owner.
    (b) Personal property placed on Federal lands or waters adjacent to 
a private residence, facility and/or developments of any private nature 
for more than 24 hours without permission of the District Commander 
shall be presumed to have been abandoned and, unless proven otherwise, 
such presumption will be sufficient to impound the property and/or issue 
a citation as provided for in Sec. 327.25.
    (c) The District Commander shall, by public or private sale or 
otherwise, dispose of all lost, abandoned or unclaimed personal property 
that comes into Government custody or control. However, property may not 
be disposed of until diligent effort has been made to find the owner, 
heirs, next of kin or legal representative(s). If the owner, heirs, next 
of kin or legal representative(s) are determined but not found, the 
property may not be disposed of until the expiration of 120 days after 
the date when notice, giving the time and place of the intended sale or 
other disposition, has been sent by certified or registered mail to that 
person at the last known address. When diligent efforts to determine the 
owner, heirs, next of kin or legal representative(s) are unsuccessful, 
the property may be

[[Page 12]]

disposed of without delay except that if it has a fair market value of 
$100 or more the property may not be disposed of until 90 days after the 
date it is received at the storage point designated by the District 
Commander. The net proceeds from the sale of property shall be conveyed 
into the Treasury of the United States as miscellaneous receipts.

[65 FR 6901, Feb. 11, 2000]



Sec. 327.16  Lost and found articles.

    All articles found shall be deposited by the finder at the Manager's 
office or with a ranger. All such articles shall be disposed of in 
accordance with the procedures set forth in Sec. 327.15.

[65 FR 6902, Feb. 11, 2000]



Sec. 327.17  Advertisment.

    (a) Advertising and the distribution of printed matter is allowed 
within project land and waters provided that a permit to do so has been 
issued by the District Commander and provided that this activity is not 
solely commercial advertising.
    (b) An application for such a permit shall set forth the name of the 
applicant, the name of the organization (if any), the date, time, 
duration, and location of the proposed advertising or the distribution 
of printed matter, the number of participants, and any other information 
required by the permit application form. Permit conditions and 
procedures are available from the District Commander.
    (c) Vessels and vehicles with semipermanent or permanent painted or 
installed signs are exempt as long as they are used for authorized 
recreational activities and comply with all other rules and regulations 
pertaining to vessels and vehicles.
    (d) The District Commander shall, without unreasonable delay, issue 
a permit on proper application unless:
    (1) A prior application for a permit for the same time and location 
has been made that has been or will be granted and the activities 
authorized by that permit do not reasonably allow multiple occupancy of 
the particular area; or
    (2) It reasonably appears that the advertising or the distribution 
of printed matter will present a clear and present danger to the public 
health and safety; or
    (3) The number of persons engaged in the advertising or the 
distribution of printed matter exceeds the number that can reasonably be 
accommodated in the particular location applied for, considering such 
things as damage to project resources or facilities, impairment of a 
protected area's atmosphere of peace and tranquility, interference with 
program activities, or impairment of public use facilities; or
    (4) The location applied for has not been designated as available 
for the advertising or the distribution of printed matter; or
    (5) The activity would constitute a violation of an applicable law 
or regulation.
    (e) If a permit is denied, the applicant shall be so informed in 
writing, with the reason(s) for the denial set forth.
    (f) The District Commander shall designate on a map, which shall be 
available for inspection in the applicable project office, the locations 
within the project that are available for the advertising or the 
distribution of printed matter. Locations may be designated as not 
available only if the advertising or the distribution of printed matter 
would:
    (1) Cause injury or damage to project resources; or
    (2) Unreasonably impair the atmosphere of the peace and tranquility 
maintained in natural, historic, or commemorative zones; or
    (3) Unreasonably interfere with interpretive, visitor service, or 
other program activities, or with the administrative activities of the 
Corps of Engineers; or
    (4) Substantially impair the operation of public use facilities or 
services of Corps of Engineers concessioners or contractors.
    (5) Present a clear and present danger to the public health and 
safety.
    (g) The permit may contain such conditions as are reasonably 
consistent with protection and use of the project area for the purposes 
for which it is established.
    (h) No permit shall be issued for a period in excess of 14 
consecutive days,

[[Page 13]]

provided that permits may be extended for like periods, upon a new 
application, unless another applicant has requested use of the same 
location and multiple occupancy of that location is not reasonably 
possible.
    (i) It is prohibited for persons engaged in the activity under this 
section to obstruct or impede pedestrians or vehicles, harass project 
visitors with physical contact or persistent demands, misrepresent the 
purposes or affiliations of those engaged in the advertising or the 
distribution of printed matter, or misrepresent whether the printed 
matter is available without cost or donation.
    (j) A permit may be revoked under any of those conditions, as listed 
in paragraph (d) of this section, that constitute grounds for denial of 
a permit, or for violation of the terms and conditions of the permit. 
Such a revocation shall be made in writing, with the reason(s) for 
revocation clearly set forth, except under emergency circumstances, when 
an immediate verbal revocation or suspension may be made, to be followed 
by written confirmation within 72 hours.
    (k) Violation of the terms and conditions of a permit issued in 
accordance with this section may result in the suspension or revocation 
of the permit.

[65 FR 26137, May 5, 2000]



Sec. 327.18  Commercial activities.

    (a) The engaging in or solicitation of business on project land or 
waters without the express written permission of the District Commander 
is prohibited.
    (b) It shall be a violation of this part to refuse to or fail to 
comply with any terms, clauses or conditions of any lease, license or 
agreements issued by the District Commander.

[65 FR 6902, Feb. 11, 2000]



Sec. 327.19  Permits.

    (a) It shall be a violation of this part to refuse to or fail to 
comply with the fee requirements or other terms or conditions of any 
permit issued under the provisions of this part 327.
    (b) Permits for floating structures (issued under the authority of 
Sec. 327.30) of any kind on/in waters of water resources development 
projects, whether or not such waters are deemed navigable waters of the 
United States but where such waters are under the management of the 
Corps of Engineers, shall be issued at the discretion of the District 
Commander under the authority of this section. District Commanders will 
delineate those portions of the navigable waters of the United States 
where this provision is applicable and post notices of this designation 
in the vicinity of the appropriate Manager's office.
    (c) Permits for non-floating structures (issued under the authority 
of Sec. 327.30) of any kind constructed, placed in or affecting waters 
of water resources development projects where such waters are deemed 
navigable waters of the U.S. shall be issued under the provisions of 
section 10 of the Rivers and Harbors Act approved March 3, 1899 (33 
U.S.C. 403). If a discharge of dredged or fill material in these waters 
is involved, a permit is required under section 404 of the Clean Water 
Act (33 U.S.C. 1344). (See 33 CFR parts 320 through 330.)
    (d) Permits for non-floating structures (issued under the authority 
of Sec. 327.30) of any kind in waters of water resources development 
projects, where such waters are under the management of the Corps of 
Engineers and where such waters are not deemed navigable waters of the 
United States, shall be issued as set forth in paragraph (b) of this 
section. If a discharge of dredged or fill material into any water of 
the United States is involved, a permit is required under section 404 of 
the Clean Water Act (33 U.S.C. 1344) (See 33 CFR parts 320 through 330). 
Water quality certification may be required pursuant to Section 401 of 
the Clean Water Act (33 U.S.C. 1341).
    (e) Shoreline Use Permits to authorize private shoreline use 
facilities, activities or development (issued under the authority of 
Sec. 327.30) may be issued in accordance with the project Shoreline 
Management Plan. Failure to comply with the permit conditions issued 
under Sec. 327.30 is prohibited.

[65 FR 6902, Feb. 11, 2000]

[[Page 14]]



Sec. 327.20  Unauthorized structures.

    The construction, placement, or existence of any structure 
(including, but not limited to, roads, trails, signs, non-portable 
hunting stands or blinds, buoys, docks, or landscape features) of any 
kind under, upon, in or over the project lands, or waters is prohibited 
unless a permit, lease, license or other appropriate written 
authorization has been issued by the District Commander. The design, 
construction, placement, existence or use of structures in violation of 
the terms of the permit, lease, license, or other written authorization 
is prohibited. The government shall not be liable for the loss of, or 
damage to, any private structures, whether authorized or not, placed on 
project lands or waters. Unauthorized structures are subject to summary 
removal or impoundment by the District Commander. Portable hunting 
stands, climbing devices, steps, or blinds, that are not nailed or 
screwed into trees and are removed at the end of a day's hunt may be 
used.

[65 FR 6902, Feb. 11, 2000]



Sec. 327.21  Special events.

    (a) Special events including, but not limited to, water carnivals, 
boat regattas, fishing tournaments, music festivals, dramatic 
presentations or other special recreation programs are prohibited unless 
written permission has been granted by the District Commander. Where 
appropriate, District Commanders can provide the state a blanket letter 
of permission to permit fishing tournaments while coordinating the 
scheduling and details of tournaments with individual projects. An 
appropriate fee may be charged under the authority of Sec. 327.23.
    (b) The public shall not be charged any fee by the sponsor of such 
event unless the District Commander has approved in writing (and the 
sponsor has properly posted) the proposed schedule of fees. The District 
Commander shall have authority to revoke permission, require removal of 
any equipment, and require restoration of an area to pre-event 
condition, upon failure of the sponsor to comply with terms and 
conditions of the permit/permission or the regulations in this part 327.

[65 FR 6902, Feb. 11, 2000]



Sec. 327.22  Unauthorized occupation.

    (a) Occupying any lands, buildings, vessels or other facilities 
within water resource development projects for the purpose of 
maintaining the same as a full-or part-time residence without the 
written permission of the District Commander is prohibited. The 
provisions of this section shall not apply to the occupation of lands 
for the purpose of camping, in accordance with the provisions of Sec. 
327.7.
    (b) Use of project lands or waters for agricultural purposes is 
prohibited except when in compliance with terms and conditions 
authorized by lease, license or other written agreement issued by the 
District Commander.

[65 FR 6903, Feb. 11, 2000]



Sec. 327.23  Recreation use fees.

    (a) In accordance with the Land and Water Conservation Fund Act of 
1965 (16 U.S.C. 460l) and the Omnibus Budget Reconciliation Act of 1993, 
Pub. L. 103-66, the Corps of Engineers collects day use fees, special 
recreation use fees and/or special permit fees for the use of 
specialized sites, facilities, equipment or services related to outdoor 
recreation furnished at Federal expense.
    (b) Where such fees are charged, the District Commander shall insure 
that clear notice of fee requirements is prominently posted at each 
area, and at appropriate locations therein and that the notice be 
included in publications distributed at such areas. Failure to pay 
authorized recreation use fees as established pursuant to Pub. L. 88-
578, 78 Stat. 897, as amended (16 U.S.C. 460l-6a), is prohibited and is 
punishable by a fine of not more than $100.
    (c) Failure to pay authorized day use fees, and/or properly display 
applicable receipt, permit or pass is prohibited.
    (d) Any Golden Age or Golden Access Passport permittee shall be 
entitled, upon presentation of such a permit, to utilize special 
recreation facilities at a rate of 50 percent off the established use 
fee at Federally operated areas.

[[Page 15]]

Fraudulent use of a Golden Age or Golden Access Passport is prohibited.

[65 FR 6903, Feb. 11, 2000]



Sec. 327.24  Interference with Government employees.

    (a) It is a Federal crime pursuant to the provisions of sections 111 
and 1114 of Title 18, United States Code, to forcibly assault, resist, 
oppose, impede, intimidate, or interfere with, attempt to kill or kill 
any civilian official or employee for the U.S. Army Corps of Engineers 
engaged in the performance of his or her official duties, or on account 
of the performance of his or her official duties. Such actions or 
interference directed against a Federal employee while carrying out the 
regulations in this part are violation of such regulations and may be a 
state crime pursuant to the laws of the state where they occur.
    (b) Failure to comply with a lawful order issued by a Federal 
employee acting pursuant to the regulations in this part shall be 
considered as interference with that employee while engaged in the 
performance of their official duties. Such interference with a Federal 
employee includes failure to provide a correct name, address or other 
information deemed necessary for identification upon request of the 
Federal employee, when that employee is authorized by the District 
Commander to issue citations in the performance of the employee's 
official duties.

[65 FR 6903, Feb. 11, 2000]



Sec. 327.25  Violations of rules and regulations.

    (a) Any person who violates the provisions of the regulations in 
this part, other than for a failure to pay authorized recreation use 
fees as separately provided for in Sec. 327.23, may be punished by a 
fine of not more than $5,000 or imprisonment for not more than six 
months or both and may be tried and sentenced in accordance with the 
provisions of section 3401 of Title 18, United States Code. Persons 
designated by the District Commander shall have the authority to issue a 
citation for violation of the regulations in this part, requiring any 
person charged with the violation to appear before the United States 
Magistrate within whose jurisdiction the affected water resources 
development project is located (16 U.S.C. 460d).
    (b) Any person who commits an act against any official or employee 
of the U.S. Army Corps of Engineers that is a crime under the provisions 
of section 111 or section 1114 of Title 18, United States Code or under 
provisions of pertinent state law may be tried and sentenced as further 
provided under Federal or state law, as the case may be.

[65 FR 6903, Feb. 11, 2000]



Sec. 327.26  State and local laws.

    (a) Except as otherwise provided in this part or by Federal law or 
regulation, state and local laws and ordinances shall apply on project 
lands and waters. This includes, but is not limited to, state and local 
laws and ordinances governing:
    (1) Operation and use of motor vehicles, vessels, and aircraft;
    (2) Hunting, fishing and trapping;
    (3) Use or possession of firearms or other weapons;
    (4) Civil disobedience and criminal acts;
    (5) Littering, sanitation and pollution; and
    (6) Alcohol or other controlled substances.
    (b) These state and local laws and ordinances are enforced by those 
state and local enforcement agencies established and authorized for that 
purpose.

[65 FR 6903, Feb. 11, 2000]



Sec. Sec. 327.27-327.29  [Reserved]



Sec. 327.30  Shoreline Management on Civil Works Projects.

    (a) Purpose. The purpose of this regulation is to provide policy and 
guidance on management of shorelines of Civil Works projects where 36 
CFR part 327 is applicable.
    (b) Applicability. This regulation is applicable to all field 
operating agencies with Civil Works responsibilities except when such 
application would result in an impingement upon existing Indian rights.
    (c) References. (1) Section 4, 1944 Flood Control Act, as amended 
(16 U.S.C. 460d).

[[Page 16]]

    (2) The Rivers and Harbors Act of 1894, as amended and supplemented 
(33 U.S.C. 1)
    (3) Section 10, River and Harbor Act of 1899 (33 U.S.C. 403).
    (4) National Historic Preservation Act of 1966 (Pub. L. 89-665; 80 
Stat. 915) as amended (16 U.S.C. 470 et seq.).
    (5) The National Environmental Policy Act of 1969 (42 U.S.C. 4321, 
et seq.).
    (6) The Clean Water Act (33 U.S.C. 1344, et seq.).
    (7) The Water Resources Development Act of 1986 (Pub. L. 99-662).
    (8) Title 36, chapter III, part 327, Code of Federal Regulations, 
``Rules and Regulations Governing Public Use of Water Resource 
Development Projects Administered by the Chief of Engineers.''
    (9) Executive Order 12088 (13 Oct. 78).
    (10) 33 CFR parts 320-330, ``Regulatory Programs of the Corps of 
Engineers.''
    (11) ER 1130-2-400, ``Management of Natural Resources and Outdoor 
Recreation at Civil Works Water Resource Projects.''
    (12) EM 385-1-1, ``Safety and Health Requirements Manual.''
    (d) Policy. (1) It is the policy of the Chief of Engineers to 
protect and manage shorelines of all Civil Works water resource 
development projects under Corps jurisdiction in a manner which will 
promote the safe and healthful use of these shorelines by the public 
while maintaining environmental safeguards to ensure a quality resource 
for use by the public. The objectives of all management actions will be 
to achieve a balance between permitted private uses and resource 
protection for general public use. Public pedestrian access to and exit 
from these shorelines shall be preserved. For projects or portions of 
projects where Federal real estate interest is limited to easement title 
only, management actions will be appropriate within the limits of the 
estate acquired.
    (2) Private shoreline uses may be authorized in designated areas 
consistent with approved use allocations specified in Shoreline 
Management Plans. Except to honor written commitments made prior to 
publication of this regulation, private shoreline uses are not allowed 
on water resource projects where construction was initiated after 
December 13, 1974, or on water resource projects where no private 
shoreline uses existed as of that date. Any existing permitted 
facilities on these projects will be grandfathered until the facilities 
fail to meet the criteria set forth in Sec. 327.30(h).
    (3) A Shoreline Management Plan, as described in Sec. 327.30(e), 
will be prepared for each Corps project where private shoreline use is 
allowed. This plan will honor past written commitments. The plan will be 
reviewed at least once every five years and revised as necessary. 
Shoreline uses that do not interfere with authorized project purposes, 
public safety concerns, violate local norms or result in significant 
environmental effects should be allowed unless the public participation 
process identifies problems in these areas. If sufficient demand exists, 
consideration should be given to revising the shoreline allocations 
(e.g. increases/decreases). Maximum public participation will be 
encouraged as set forth in Sec. 327.30(e)(6). Except to honor written 
commitments made prior to the publication of this regulation, shoreline 
management plans are not required for those projects where construction 
was initiated after December 13, 1974, or on projects not having private 
shoreline use as of that date. In that case, a statement of policy will 
be developed by the district commander to present the shoreline 
management policy. This policy statement will be subject to the approval 
of the division commander. For projects where two or more agencies have 
jurisdiction, the plan will be cooperatively prepared with the Corps as 
coordinator.
    (4) Where commercial or other public launching and/or moorage 
facilities are not available within a reasonable distance, group owned 
mooring facilities may be allowed in Limited Development Areas to limit 
the proliferation of individual facilities. Generally only one permit 
will be necessary for a group owned mooring facility with that entity, 
if incorporated, or with one person from the organization designated as 
the permittee and responsible for all moorage spaces within the 
facility. No charge may be made for use of any permitted facility by 
others nor shall any

[[Page 17]]

commercial activity be engaged in thereon.
    (5) The issuance of a private shoreline use permit does not convey 
any real estate or personal property rights or exclusive use rights to 
the permit holder. The public's right of access and use of the permit 
area must be maintained and preserved. Owners of permitted facilities 
may take necessary precautions to protect their property from theft, 
vandalism or trespass, but may in no way preclude the public right of 
pedestrian or vessel access to the water surface or public land adjacent 
to the facility.
    (6) Shoreline Use Permits will only be issued to individuals or 
groups with legal right of access to public lands.
    (e) Shoreline Management Plan--(1) General. The policies outlined in 
Sec. 327.30(d) will be implemented through preparation of Shoreline 
Management Plans, where private shoreline use is allowed.
    (2) Preparation. A Shoreline Management Plan is prepared as part of 
the Operational Management Plan. A moratorium on accepting applications 
for new permits may be placed in effect from the time an announcement of 
creation of a plan or formal revision of a plan is made until the action 
is completed.
    (3) Approval. Approval of Shoreline Management Plans rests with 
division commanders. After approval, one copy of each project Shoreline 
Management Plan will be forwarded to HQUSACE (CECW-ON) WASH DC 20314-
1000. Copies of the approved plan will also be made available to the 
public.
    (4) Scope and Format. The Shoreline Management Plan will consist of 
a map showing the shoreline allocated to the uses listed in Sec. 
327.30(e)(6), related rules and regulations, a discussion of what areas 
are open or closed to specific activities and facilities, how to apply 
for permits and other information pertinent to the Corps management of 
the shoreline. The plan will be prepared in sufficient detail to ensure 
that it is clear to the public what uses are and are not allowed on the 
shoreline of the project and why. A process will be developed and 
presented in the Shoreline Management Plan that prescribes a procedure 
for review of activities requested but not specifically addressed by the 
Shoreline Management Plan.
    (5) Shoreline Allocation. The entire shoreline will be allocated 
within the classifications below and delineated on a map. Any action, 
within the context of this rule, which gives a special privilege to an 
individual or group of individuals on land or water at a Corps project, 
that precludes use of those lands and waters by the general public, is 
considered to be private shoreline use. Shoreline allocations cover that 
land and/or water extending from the edge of the water and waterward 
with the exception of allocations for the purpose of vegetation 
modification which extends landward to the project boundary. These 
allocations should complement, but certainly not contradict, the land 
classifications in the project master plan. A map of sufficient size and 
scale to clearly display the shoreline allocations will be conspicuously 
displayed or readily available for viewing in the project administration 
office and will serve as the authoritative reference. Reduced or smaller 
scale maps may be developed for public dissemination but the information 
contained on these must be identical to that contained on the display 
map in the project administration office. No changes will be made to 
these maps except through the formal update process. District commanders 
may add specific constraints and identify areas having unique 
characteristics during the plan preparation, review, or updating process 
in addition to the allocation classifications described below.
    (i) Limited Development Areas. Limited Development Areas are those 
areas in which private facilities and/or activities may be allowed 
consistent with Sec. 327.30(h) and appendix A. Modification of 
vegetation by individuals may be allowed only following the issuance of 
a permit in accordance with appendix A. Potential low and high water 
conditions and underwater topography should be carefully evaluated 
before shoreline is allocated as Limited Development Area.
    (ii) Public Recreation Areas. Public Recreation Areas are those 
areas designated for commercial concessionaire

[[Page 18]]

facilities, Federal, state or other similar public use. No private 
shoreline use facilities and/or activities will be permitted within or 
near designated or developed public recreation areas. The term ``near'' 
depends on the terrain, road system, and other local conditions, so 
actual distances must be established on a case by case basis in each 
project Shoreline Management Plan. No modification of land forms or 
vegetation by private individuals or groups of individuals is permitted 
in public recreation areas.
    (iii) Protected Shoreline Areas. Protected Shoreline Areas are those 
areas designated to maintain or restore aesthetic, fish and wildlife, 
cultural, or other environmental values. Shoreline may also be so 
designated to prevent development in areas that are subject to excessive 
siltation, erosion, rapid dewatering, or exposure to high wind, wave, or 
current action and/or in areas in which development would interfere with 
navigation. No Shoreline Use Permits for floating or fixed recreation 
facilities will be allowed in protected areas. Some modification of 
vegetation by private individuals, such as clearing a narrow meandering 
path to the water, or limited mowing, may be allowed only following the 
issuance of a permit if the resource manager determines that the 
activity will not adversely impact the environment or physical 
characteristics for which the area was designated as protected. In 
making this determination the effect on water quality will also be 
considered.
    (iv) Prohibited Access Areas. Prohibited Access Areas are those in 
which public access is not allowed or is restricted for health, safety 
or security reasons. These could include hazardous areas near dams, 
spillways, hydro-electric power stations, work areas, water intake 
structures, etc. No shoreline use permits will be issued in Prohibited 
Access Areas.
    (6) Public Participation. District commanders will ensure public 
participation to the maximum practicable extent in Shoreline Management 
Plan formulation, preparation and subsequent revisions. This may be 
accomplished by public meetings, group workshops, open houses or other 
public involvement techniques. When master plan updates and preparation 
of the Shoreline Management Plans are concurrent, public participation 
may be combined and should consider all aspects of both plans, including 
shoreline allocation classifications. Public participation will begin 
during the initial formulation stage and must be broad-based to cover 
all aspects of public interest. The key to successful implementation is 
an early and continual public relations program. Projects with 
significant numbers of permits should consider developing computerized 
programs to facilitate exchange of information with permittees and to 
improve program efficiency. Special care will be taken to advise citizen 
and conservation organizations; Federal, state and local natural 
resource management agencies; Indian Tribes; the media; commercial 
concessionaires; congressional liaisons; adjacent landowners and other 
concerned entities during the formulation of Shoreline Management Plans 
and subsequent revisions. Notices shall be published prior to public 
meetings to assure maximum public awareness. Public notices shall be 
issued by the district commander allowing for a minimum of 30 days for 
receipt of written public comment in regard to the proposed Shoreline 
Management Plan or any major revision thereto.
    (7) Periodic Review. Shoreline Management Plans will be reviewed 
periodically, but no less often than every five years, by the district 
commander to determine the need for update. If sufficient controversy or 
demand exists, consideration should be given, consistent with other 
factors, to a process of reevaluation of the shoreline allocations and 
the plan. When changes to the Shoreline Management Plan are needed, the 
plan will be formally updated through the public participation process. 
Cumulative environmental impacts of permit actions and the possibility 
of preparing or revising project NEPA documentation will be considered. 
District commanders may make minor revisions to the Shoreline Management 
Plan when the revisions are consistent with policy and funds for a 
complete plan update are not available.

[[Page 19]]

The amount and type of public involvement needed for such revision is at 
the discretion of the district commander.
    (f) Instruments for Shoreline Use. Instruments used to authorize 
private shoreline use facilities, activities or development are as 
follows:
    (1) Shoreline Use Permits. (i) Shoreline Use Permits are issued and 
enforced in accordance with provisions of 36 CFR 327.19.
    (ii) Shoreline Use Permits are required for private structures/
activities of any kind (except boats) in waters of Civil Works projects 
whether or not such waters are deemed navigable and where such waters 
are under the primary jurisdiction of the Secretary of the Army and 
under the management of the Corps of Engineers.
    (iii) Shoreline Use Permits are required for non-floating structures 
on waters deemed commercially non-navigable, when such waters are under 
management of the Corps of Engineers.
    (iv) Shoreline Use Permits are also required for land vegetation 
modification activities which do not involve disruption to land form.
    (v) Permits should be issued for a term of five years. To reduce 
administration costs, one year permits should be issued only when the 
location or nature of the activity requires annual reissuance.
    (vi) Shoreline Use Permits for erosion control may be issued for the 
life or period of continual ownership of the structure by the permittee 
and his/her legal spouse.
    (2) Department of the Army Permits. Dredging, construction of fixed 
structures, including fills and combination fixed-floating structures 
and the discharge of dredged or fill material in waters of the United 
States will be evaluated under authority of section 10, River and Harbor 
Act of 1899 (33 U.S.C. 403) and section 404 of the Clean Water Act (33 
U.S.C. 1344). Permits will be issued where appropriate.
    (3) Real Estate Instruments. Commercial development activities and 
activities which involve grading, cuts, fills, or other changes in land 
form, or establishment of appropriate land-based support facilities 
required for private floating facilities, will continue to be covered by 
a lease, license or other legal grant issued through the appropriate 
real estate element. Shoreline Management Plans should identify the 
types of activities that require real estate instruments and indicate 
the general process for obtaining same. Shoreline Use Permits are not 
required for facilities or activities covered by a real estate 
instrument.
    (g) Transfer of Permits. Shoreline Use Permits are non-transferable. 
They become null and void upon sale or transfer of the permitted 
facility or the death of the permittee and his/her legal spouse.
    (h) Existing Facilities Now Under Permit. Implementation of a 
Shoreline Management Plan shall consider existing permitted facilities 
and prior written Corps commitments implicit in their issuance. 
Facilities or activities permitted under special provisions should be 
identified in a way that will set them apart from other facilities or 
activities.
    (1) Section 6 of Pub. L. 97-140 provides that no lawfully installed 
dock or appurtenant structures shall be required to be removed prior to 
December 31, 1989, from any Federal water resources reservoir or lake 
project administered by the Secretary of the Army, acting through the 
Chief of Engineers, on which it was located on December 29, 1981, if 
such property is maintained in usable condition, and does not occasion a 
threat to life or property.
    (2) In accordance with section 1134(d) of Pub. L. 99-662, any 
houseboat, boathouse, floating cabin or lawfully installed dock or 
appurtenant structures in place under a valid shoreline use permit as of 
November 17, 1986, cannot be forced to be removed from any Federal water 
resources project or lake administered by the Secretary of the Army on 
or after December 31, 1989, if it meets the three conditions below 
except where necessary for immediate use for public purposes or higher 
public use or for a navigation or flood control project.
    (i) Such property is maintained in a usable and safe condition,
    (ii) Such property does not occasion a threat to life or property, 
and

[[Page 20]]

    (iii) The holder of the permit is in substantial compliance with the 
existing permit.
    (3) All such floating facilities and appurtenances will be formally 
recognized in an appropriate Shoreline Management Plan. New permits for 
these permitted facilities will be issued to new owners. If the holder 
of the permit fails to comply with the terms of the permit, it may be 
revoked and the holder required to remove the structure, in accordance 
with the terms of the permit as to notice, time, and appeal.
    (i) Facility Maintenance. Permitted facilities must be operated, 
used and maintained by the permittee in a safe, healthful condition at 
all times. If determined to be unsafe, the resource manager will 
establish together with the permittee a schedule, based on the 
seriousness of the safety deficiency, for correcting the deficiency or 
having it removed, at the permittee's expense. The applicable safety and 
health prescriptions in EM 385-1-1 should be used as a guide.
    (j) Density of Development. The density of private floating and 
fixed recreation facilities will be established in the Shoreline 
Management Plan for all portions of Limited Development areas consistent 
with ecological and aesthetic characteristics and prior written 
commitments. The facility density in Limited Development Areas should, 
if feasible, be determined prior to the development of adjacent private 
property. The density of facilities will not be more than 50 per cent of 
the Limited Development Area in which they are located. Density will be 
measured by determining the linear feet of shoreline as compared to the 
width of the facilities in the water plus associated moorage 
arrangements which restrict the full unobstructed use of that portion of 
the shoreline. When a Limited Development Area or a portion of a Limited 
Development area reaches maximum density, notice should be given to the 
public and facility owners in that area that no additional facilities 
will be allowed. In all cases, sufficient open area will be maintained 
for safe maneuvering of watercraft. Docks should not extend out from the 
shore more than one-third of the width of a cove at normal recreation or 
multipurpose pool. In those cases where current density of development 
exceeds the density level established in the Shoreline Management Plan, 
the density will be reduced to the prescribed level through attrition.
    (k) Permit Fees. Fees associated with the Shoreline Use Permits 
shall be paid prior to issuing the permit in accordance with the 
provisions of Sec. 327.30(c)(1). The fee schedule will be published 
separately.

   Appendix A to Sec. 327.30--Guidelines for Granting Shoreline Use 
                                 Permits

                               1. General

    a. Decisions regarding permits for private floating recreation 
facilities will consider the operating objectives and physical 
characteristics of each project. In developing Shoreline Management 
Plans, district commanders will give consideration to the effects of 
added private boat storage facilities on commercial concessions for that 
purpose. Consistent with established policies, new commercial 
concessions may be alternatives to additional limited development 
shoreline.
    b. Permits for individually or group owned shoreline use facilities 
may be granted only in Limited Development Areas when the sites are not 
near commercial marine services and such use will not despoil the 
shoreline nor inhibit public use or enjoyment thereof. The installation 
and use of such facilities will not be in conflict with the preservation 
of the natural characteristics of the shoreline nor will they result in 
significant environmental damage. Charges will be made for Shoreline Use 
Permits in accordance with the separately published fee schedule.
    c. Permits may be granted within Limited Development Areas for ski 
jumps, floats, boat moorage facilities, duck blinds, and other private 
floating recreation facilities when they will not create a safety hazard 
and inhibit public use or enjoyment of project waters or shoreline. A 
Corps permit is not required for temporary ice fishing shelters or duck 
blinds when they are regulated by a state program. When the facility or 
activity is authorized by a shoreline use permit, a separate real estate 
instrument is generally not required.
    d. Group owned boat mooring facilities may be permitted in Limited 
Development Areas where practicable (e.g. where physically feasible in 
terms of access, water depths, wind protection, etc.).

[[Page 21]]

                2. Applications for Shoreline Use Permits

    a. Applications for private Shoreline Use Permits will be reviewed 
with full consideration of the policies set forth in this and referenced 
regulations, and the Shoreline Management Plan. Fees associated with the 
Shoreline Use Permit shall be paid prior to issuing the permit. Plans 
and specifications of the proposed facility shall be submitted and 
approved prior to the start of construction. Submissions should include 
engineering details, structural design, anchorage method, and 
construction materials; the type, size, location and ownership of the 
facility; expected duration of use; and an indication of willingness to 
abide by the applicable regulations and terms and conditions of the 
permit. Permit applications shall also identify and locate any land-
based support facilities and any specific safety considerations.
    b. Permits will be issued by the district commander or his/her 
authorized representative on ENG Form 4264-R (Application for Shoreline 
Use Permit) (appendix B). Computer generated forms may be substituted 
for ENG Form 4264-R provided all information is included. The computer 
generated form will be designated, ``ENG Form 4264-R-E, Oct 87 
(Electronic generation approved by USACE, Oct 87)''.
    c. The following are guides to issuance of Shoreline Use Permits:
    (1) Use of boat mooring facilities, including piers and boat 
(shelters) houses, will be limited to vessel or watercraft mooring and 
storage of gear essential to vessel or watercraft operation.
    (2) Private floating recreation facilities, including boat mooring 
facilities shall not be constructed or used for human habitation or in a 
manner which gives the appearance of converting Federal public property 
on which the facility is located to private, exclusive use. New docks 
with enclosed sides (i.e. boathouses) are prohibited.
    (3) No private floating facility will exceed the minimum size 
required to moor the owner's boat or boats plus the minimum size 
required for an enclosed storage locker of oars, life preservers and 
other items essential to watercraft operation. Specific size limitations 
may be established in the project Shoreline Management Plan.
    (4) All private floating recreation facilities including boat 
mooring facilities will be constructed in accordance with plans and 
specifications, approved by the resource manager, or a written 
certification from a licensed engineer, stating the facility is 
structurally safe will accompany the initial submission of the plans and 
specifications.
    (5) Procedures regarding permits for individual facilities shall 
also apply to permits for non-commercial group mooring facilities.
    (6) Facilities attached to the shore shall be securely anchored by 
means of moorings which do not obstruct the free use of the shoreline, 
nor damage vegetation or other natural features. Anchoring to vegetation 
is prohibited.
    (7) Electrical service and equipment leading to or on private 
mooring facilities must not pose a safety hazard nor conflict with other 
recreational use. Electrical installations must be weatherproof and meet 
all current applicable electrical codes and regulations. The facility 
must be equipped with quick disconnect fittings mounted above the flood 
pool elevation. All electrical installations must conform to the 
National Electric Code and all state, and local codes and regulations. 
In those states where electricians are licensed, registered, or 
otherwise certified, a copy of the electrical certification must be 
provided to the resource manager before a Shoreline Use Permit can be 
issued or renewed. The resource manager will require immediate removal 
or disconnection of any electrical service or equipment that is not 
certified (if appropriate), does not meet code, or is not safely 
maintained. All new electrical lines will be installed underground. This 
will require a separate real estate instrument for the service right-of-
way. Existing overhead lines will be allowed, as long as they meet all 
applicable electrical codes, regulations and above guidelines, to 
include compatibility and safety related to fluctuating water levels.
    (8) Private floating recreation facilities will not be placed so as 
to interfere with any authorized project purposes, including navigation, 
or create a safety or health hazard.
    (9) The district commander or his/her authorized representative may 
place special conditions on the permit when deemed necessary. Requests 
for waivers of shoreline management plan permit conditions based on 
health conditions will be reviewed on a case by case basis by the 
Operations Manager. Efforts will be made to reduce onerous requirements 
when a limiting health condition is obvious or when an applicant 
provides a doctor's certification of need for conditions which are not 
obvious.
    (10) Vegetation modification, including but not limited to, cutting, 
pruning, chemical manipulation, removal or seeding by private 
individuals is allowed only in those areas designated as Limited 
Development Areas or Protected Shoreline Areas. An existing (as of July 
1, 1987) vegetation modification permit, within a shoreline allocation 
which normally would not allow vegetation modification, should be 
grandfathered. Permittees will not create the appearance of private 
ownership of public lands.
    (11) The term of a permit for vegetation modification will be for 
five years. Where possible, such permits will be consolidated with other 
shoreline management permits into a single permit. The district 
commander

[[Page 22]]

is authorized to issue vegetation modification permits of less than five 
years for one-time requests or to aid in the consolidation of shoreline 
management permits.
    (12) When issued a permit for vegetative modification, the permittee 
will delineate the government property line, as surveyed and marked by 
the government, in a clear but unobtrusive manner approved by the 
district commander and in accordance with the project Shoreline 
Management Plan and the conditions of the permit. Other adjoining owners 
may also delineate the common boundary subject to these same conditions. 
This delineation may include, but is not limited to, boundary plantings 
and fencing. The delineation will be accomplished at no cost to the 
government.
    (13) No permit will be issued for vegetation modification in 
Protected Shoreline Areas until the environmental impacts of the 
proposed modification are assesed by the resource manager and it has 
been determined that no significant adverse impacts will result. The 
effects of the proposed modification on water quality will also be 
considered in making this determination.
    (14) The original of the completed permit application is to be 
retained by the permittee. A duplicate will be retained in the resource 
manager's office.

                          3. Permit Revocation

    Permits may be revoked by the district commander when it is 
determined that the public interest requires such revocation or when the 
permittee fails to comply with terms and conditions of the permit, the 
Shoreline Management Plan, or of this regulation. Permits for duck 
blinds and ice fishing shelters will be issued to cover a period not to 
exceed 30 days prior to and 30 days after the season.

                        4. Removal of Facilities

    Facilities not removed when specified in the permit or when 
requested after termination or revocation of the permit will be treated 
as unauthorized structures pursuant to 36 CFR 327.20.

                       5. Posting of Permit Number

    Each district will procure 5x8 or larger 
printed permit tags of light metal or plastic for posting. The permit 
display tag shall be posted on the facility and/or on the land area 
covered by the permit, so that it can be visually checked, with ease in 
accordance with instructions provided by the resource manager. 
Facilities or activities permitted under special provisions should be 
identified in a way that will set apart from other facilities or 
activities.

    Appendix B to Sec. 327.30--Application for Shoreline Use Permit 
                               [Reserved]

       Appendix C to Sec. 327.30--Shoreline Use Permit Conditions

    1. This permit is granted solely to the applicant for the purpose 
described on the attached permit.
    2. The permittee agrees to and does hereby release and agree to save 
and hold the Government harmless from any and all causes of action, 
suits at law or equity, or claims or demands or from any liability of 
any nature whatsoever for or on account of any damages to persons or 
property, including a permitted facility, growing out of the ownership, 
construction, operation or maintenance by the permittee of the permitted 
facilities and/or activities.
    3. Ownership, construction, operation, use and maintenance of a 
permitted facility are subject to the Government's navigation servitude.
    4. No attempt shall be made by the permittee to forbid the full and 
free use by the public of all public waters and/or lands at or adjacent 
to the permitted facility or to unreasonably interfere with any 
authorized project purposes, including navigation in connection with the 
ownership, construction, operation or maintenance of a permitted 
facility and/or activity.
    5. The permittee agrees that if subsequent operations by the 
Government require an alteration in the location of a permitted facility 
and/or activity or if in the opinion of the district commander a 
permitted facility and/or activity shall cause unreasonable obstruction 
to navigation or that the public interest so requires, the permittee 
shall be required, upon written notice from the district commander to 
remove, alter, or relocate the permitted facility, without expense to 
the Government.
    6. The Government shall in no case be liable for any damage or 
injury to a permitted facility which may be caused by or result from 
subsequent operations undertaken by the Government for the improvement 
of navigation or for other lawful purposes, and no claims or right to 
compensation shall accrue from any such damage. This includes any damage 
that may occur to private property if a facility is removed for 
noncompliance with the conditions of the permit.
    7. Ownership, construction, operation, use and maintenance of a 
permitted facility and/or activity are subject to all applicable 
Federal, state and local laws and regulations. Failure to abide by these 
applicable laws and regulations may be cause for revocation of the 
permit.
    8. This permit does not convey any property rights either in real 
estate or material; and does not authorize any injury to private 
property or invasion of private rights or any infringement of Federal, 
state or local laws

[[Page 23]]

or regulations, nor does it obviate the necessity of obtaining state or 
local assent required by law for the construction, operation, use or 
maintenance of a permitted facility and/or activity.
    9. The permittee agrees to construct the facility within the time 
limit agreed to on the permit issuance date. The permit shall become 
null and void if construction is not completed within that period. 
Further, the permittee agrees to operate and maintain any permitted 
facility and/or activity in a manner so as to provide safety, minimize 
any adverse impact on fish and wildlife habitat, natural, environmental, 
or cultural resources values and in a manner so as to minimize the 
degradation of water quality.
    10. The permittee shall remove a permitted facility within 30 days, 
at his/her expense, and restore the waterway and lands to a condition 
accepted by the resource manager upon termination or revocation of this 
permit or if the permittee ceases to use, operate or maintain a 
permitted facility and/or activity. If the permittee fails to comply to 
the satisfaction of the resource manager, the district commander may 
remove the facility by contract or otherwise and the permittee agrees to 
pay all costs incurred thereof.
    11. The use of a permitted boat dock facility shall be limited to 
the mooring of the permittee's vessel or watercraft and the storage, in 
enclosed locker facilities, of his/her gear essential to the operation 
of such vessel or watercraft.
    12. Neither a permitted facility nor any houseboat, cabin cruiser, 
or other vessel moored thereto shall be used as a place of habitation or 
as a full or part-time residence or in any manner which gives the 
appearance of converting the public property, on which the facility is 
located, to private use.
    13. Facilities granted under this permit will not be leased, rented, 
sub-let or provided to others by any means of engaging in commercial 
activity(s) by the permittee or his/her agent for monetary gain. This 
does not preclude the permittee from selling total ownership to the 
facility.
    14. Floats and the flotation material for all docks and boat mooring 
buoys shall be fabricated of materials manufactured for marine use. The 
float and its flotation material shall be 100% warranted for a minimum 
of 8 years against sinking, becoming waterlogged, cracking, peeling, 
fragmenting, or losing beads. All floats shall resist puncture and 
penetration and shall not be subject to damage by animals under normal 
conditions for the area. All floats and the flotation material used in 
them shall be fire resistant. Any float which is within 40 feet of a 
line carrying fuel shall be 100% impervious to water and fuel. The use 
of new or recycled plastic or metal drums or non-compartmentalized air 
containers for encasement or floats is prohibited. Existing floats are 
authorized until it or its flotation material is no longer serviceable, 
at which time it shall be replaced with a float that meets the 
conditions listed above. For any floats installed after the effective 
date of this specification, repair or replacement shall be required when 
it or its flotation material no longer performs its designated function 
or it fails to meet the specifications for which it was originally 
warranted.
    15. Permitted facilities and activities are subject to periodic 
inspection by authorized Corps representatives. The resource manager 
will notify the permittee of any deficiencies and together establish a 
schedule for their correction. No deviation or changes from approved 
plans will be allowed without prior written approval of the resource 
manager.
    16. Floating facilities shall be securely attached to the shore in 
accordance with the approved plans by means of moorings which do not 
obstruct general public use of the shoreline or adversely affect the 
natural terrain or vegetation. Anchoring to vegetation is prohibited.
    17. The permit display tag shall be posted on the permitted facility 
and/or on the land areas covered by the permit so that it can be 
visually checked with ease in accordance with instructions provided by 
the resource manager.
    18. No vegetation other than that prescribed in the permit will be 
damaged, destroyed or removed. No vegetation of any kind will be 
planted, other than that specifically prescribed in the permit.
    19. No change in land form such as grading, excavation or filling is 
authorized by this permit.
    20. This permit is non-transferable. Upon the sale or other transfer 
of the permitted facility or the death of the permittee and his/her 
legal spouse, this permit is null and void.
    21. By 30 days written notice, mailed to the permittee by certified 
letter, the district commander may revoke this permit whenever the 
public interest necessitates such revocation or when the permittee fails 
to comply with any permit condition or term. The revocation notice shall 
specify the reasons for such action. If the permittee requests a hearing 
in writing to the district commander through the resource manager within 
the 30-day period, the district commander shall grant such hearing at 
the earliest opportunity. In no event shall the hearing date be more 
than 60 days from the date of the hearing request. Following the 
hearing, a written decision will be rendered and a copy mailed to the 
permittee by certified letter.
    22. Notwithstanding the conditions cited in condition 21 above, if 
in the opinion of the district commander, emergency circumstances 
dictate otherwise, the district

[[Page 24]]

commander may summarily revoke the permit.
    23. When vegetation modification on these lands is accomplished by 
chemical means, the program will be in accordance with appropriate 
Federal, state and local laws, rules and regulations.
    24. The resource manager or his/her authorized representative shall 
be allowed to cross the permittee's property, as necessary to inspect 
facilities and/or activities under permit.
    25. When vegetation modification is allowed, the permittee will 
delineate the government property line in a clear, but unobtrusive 
manner approved by the resource manager and in accordance with the 
project Shoreline Management Plan.
    26. If the ownership of a permitted facility is sold or transferred, 
the permittee or new owner will notify the Resource Manager of the 
action prior to finalization. The new owner must apply for a Shoreline 
Use Permit within 14 days or remove the facility and restore the use 
area within 30 days from the date of ownership transfer.
    27. If permitted facilities are removed for storage or extensive 
maintenance, the resource manager may require all portions of the 
facility be removed from public property.

              Appendix D to Sec. 327.30--Permit [Reserved]

[55 FR 30697, July 27, 1990, as amended at 57 FR 21895, May 26, 1992; 57 
FR 29220, July 1, 1992; 63 FR 35828, July 1, 1998]

    Effective Date Note: The amendment to Sec. 327.30 revising the last 
sentence of paragraph (k), published at 56 FR 29587, June 28, 1991, was 
deferred indefinitely. See 56 FR 49706, Oct. 1, 1991. The administrative 
charges contained in Sec. 327.30, Shoreline Management on Civil Works 
Projects, published in the July 1, 1991 edition of the Code of Federal 
Regulations will remain in effect. Any future decisions affecting this 
regulation will be published in the Federal Register at a later date by 
the Corps of Engineers, Department of the Army. For the convenience of 
the user, the rule published on June 28, 1991, at FR page 29587, is set 
forth as follows:



Sec. 327.30  Shoreline Management on Civil Works Projects.

                                * * * * *

    (k) * * * The Fee Schedule is published in Sec. 327.31.



Sec. 327.31  Shoreline management fee schedule.

    A charge will be made for Shoreline Use Permits to help defray 
expenses associated with issuance and administration of the permits. As 
permits become eligible for renewal after July 1, 1976, a charge of $10 
for each new permit and a $5 annual fee for inspection of floating 
facilities will be made. There will be no annual inspection fee for 
permits for vegetative modification on Shoreline areas. In all cases the 
total administrative charge will be collected initially at the time of 
permit issuance rather than on a piecemeal annual basis.

[56 FR 61163, Dec. 2, 1991; 56 FR 65190, Dec. 16, 1991]



PART 328_REGULATION OF SEAPLANE OPERATIONS AT CIVIL WORKS WATER RESOURCE 

DEVELOPMENT PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS--Table of Contents




Sec.
328.1 Purpose.
328.2 Applicability.
328.3 References.
328.4 Policy.
328.5 Guidelines for seaplane use of project waters.
328.6 Procedures.
328.7 Other authorities.

    Authority: Sec. 4 of the Act of Dec. 22, 1944, 58 Stat. 889, as 
amended, (16 U.S.C. 460d).

    Source: 42 FR 59076, Nov. 15, 1977, unless otherwise noted.



Sec. 328.1  Purpose.

    This regulation, in connection with the modification of the present 
prohibition of seaplane operations by the amendment to Sec. 327.4 of 
title 36 of the Code of Federal Regulations, is designed to provide 
uniform policies and criteria for designating Corps projects, or 
portions thereof, at which seaplane operations are prohibited or 
restricted; and to continue to protect the integrity and all authorized 
uses of such projects and the safety of users of such projects. As used 
in this regulation, projects or Corps projects means water resources 
development projects administered by the Chief of Engineers.



Sec. 328.2  Applicability.

    This regulation is applicable to all Field Operating Agencies having 
Civil Works responsibilities.

[[Page 25]]



Sec. 328.3  References.

    (a) Title 36 CFR, part 327, Rules and Regulations Governing Public 
Use of Water Resource Development Projects Administered by the Chief of 
Engineers (38 FR 7552, March 23, 1973).
    (b) ER 1105-2-507.
    (c) ER 1130-2-400.
    (d) ER 1145-2-301.
    (e) ER 1145-2-303.
    (f) ER 1165-2-400.
    (g) ER 405-2-800 Series.



Sec. 328.4  Policy.

    (a) The objective of Corps of Engineers resources management is to 
maximize public enjoyment and use of the lands, waters, forests, and 
associated recreational resources, consistent with their aesthetic and 
biological values. Such management includes efforts to preserve and 
enhance the environmental amenities that are the source of the 
recreational value associated with the project and to allow such other 
new and innovative uses of the projects that are not detrimental 
thereto.
    (b) Seaplane operations at water resource development projects 
administered by the Chief of Engineers may involve hazards including, 
but not limited to, conflicting recreational activities, floating 
debris, and underwater hazards, which may be accentuated by the normal 
fluctutations of water levels.
    (c) Seaplane operations may be prohibited or restricted at such 
water resource development projects, or portions thereof, for a variety 
of management reasons. Prohibiting or restricting seaplane operations in 
certain portions within a project in no way implies that safety hazards 
to seaplane operations or to other recreation users may not exist in 
other portions of such project.
    (d) The operation of a seaplane at Corps projects is at the risk of 
the plane's owner, operator, and passenger(s). The responsibility to 
ascertain whether seaplane operations are permitted, prohibited or 
restricted at such projects, and portions thereof, is incumbent upon the 
person(s) contemplating the use of, or using, such waters.



Sec. 328.5  Guidelines for seaplane use of project waters.

    (a) All operations of the aircraft while upon the water shall be in 
accordance with the marine rules of the road for power boats or vessels.
    (b) Seaplanes on project waters and lands in excess of 24 hours 
shall be securely moored at mooring facilities and at locations 
permitted by the District Engineer. Seaplanes may be temporarily moored 
on project waters and lands, except in areas prohibited by the District 
Engineer, for periods less than 24 hours providing that--
    (1) The mooring is safe, secure, and accomplished so as not to 
damage the rights of the government or members of the public and
    (2) The operator remains in the vicinity of the seaplane and 
reasonably available to relocate the seaplane if necessary.
    (c) No commercial operation of seaplanes from project waters will be 
allowed without written approval of the District Engineer following 
consultation with and the necessary clearance from the Federal Aviation 
Administration (FAA) and other appropriate public authorities and 
affected interests.
    (d) Seaplanes may not be operated at Corps projects between sunset 
and sunrise unless adequate lighting and supervision are available.
    (e) Requests for public commercial facilities in support of 
seaplanes will be handled under normal concession policies.
    (f) Permits for floating and nonfloating structures of any kind, in, 
on, or affecting project waters, under the management of the Resource 
Manager, including waters under lease, license or other outgrant 
agreement, shall be handled in accordance with the lakeshore management 
plan or policy statement for the project involved, Sec. 327.19 of title 
36, Code of Federal Regulations and, where required by statute or 
regulation, section 10 of the River and Harbor Act (approved March 3, 
1899) and section 404 of the Federal Water Pollution Control Act of 1972 
(Pub. L. 92-500).
    (g) Appropriate signs should be employed to inform users of 
projects, or portions thereof, where seaplane operations are permitted.

[[Page 26]]



Sec. 328.6  Procedures.

    (a) In order to protect the integrity and all authorized uses of 
Corps projects and the safety of all users of the lake projects, the 
District Engineer shall:
    (1) Examine and investigate each Corps project within his district 
which a seaplane operator could conceivably attempt to use for seaplane 
operations, and determine those projects, or portions thereof, in which 
seaplane operations should be prohibited.
    (2) Establish such restrictions on seaplane operations as he deems 
necessary or desirable in accordance with these regulations for other 
areas. Seaplane takeoff and landing maneuvers within specified distances 
of the shoreline, bridges, causeways, water utility crossings, dams, and 
similar structures should be prohibited.
    (3) Prior to concluding any such examination and investigation, 
consult with the FAA, appropriate State aeronautical agency, lessee or 
licensee of outgranted lands, the Coast Guard, and state boating law 
administrators, and use his best efforts to consult with other 
interested or affected public authorities and private interests for 
their guidance, particularly for those projects which are regularly used 
by the public for recreational purposes or are located in the vicinity 
of actively used airports, air fields, or densely populated areas. News 
releases, public notice, and congressional liaison should be used. 
Public hearings are encouraged.
    (4) In making his investigation, examination, and determination, 
consider environmental factors in accordance with the National 
Environmental Policy Act of 1969 (NEPA), Pub. L. 91-190--particularly 
should he consider the impact that seaplane operations may have on the 
safety at the project, aquatic, fish and wildlife, noise levels, 
recreation, and air and water quality. Prior to concluding such 
investigation and examination, he shall prepare an environmental impact 
assessment (EIA) and, if necessary, an environmental impact statement 
(EIS) assessing the environmental impacts of permitting seaplanes to 
operate at the projects, or portions thereof, in his district.
    (5) Place on Corps maps, brochures and otherwise adequately apprise 
the public and interested agencies of projects, or portions thereof, 
where seaplane operations are prohibited or restricted. Each map, 
brochure, or other notice should clearly indicate that operation of a 
seaplane at Corps projects is at the risk of the plane's owner, 
operator, and/or passenger(s).
    (6) Notify the FAA by letter of projects, or portions thereof, where 
seaplane operations are prohibited or restricted. The letter should use 
the words ``seaplane operations prohibited,'' or ``seaplane operations 
restricted,'' describe the geographical location of such areas as 
precisely as possible, describe any restrictions, include a telephone 
number for FAA to contact the District, and be sent to: Federal Aviation 
Administration, Area Traffic Service, Flight Services Division (AAT-
432), 800 Independence Avenue SW., Washington, DC 20591.
    (b) The removal of the present prohibition on seaplane operations 
will be effective one year from the date of publication of these 
regulations. The District Engineer should complete the examination, 
investigation, determination and notification to the FAA of projects, or 
portions thereof, where seaplane operations are prohibited or 
restricted, within one year from the date of this regulation. The 
District Engineer may extend the present prohibition for up to one 
additional year if he cannot complete his examination, investigation, 
determination, and notification within one year. In such event, he 
should notify the FAA by letter and publish other appropriate notices. 
Any further extension of time will require the approval of the Chief of 
Engineers.
    (c) After he has completed his examination, investigation, 
determination and notification of the FAA of projects, or portions 
thereof where seaplane operations will be prohibited or restricted, The 
District Engineer should periodically reevaluate his determination as 
additional operational data becomes available. He may modify, delete, or 
add projects, or portions thereof, where seaplane operations are 
prohibited or restricted. Except where immediate action is required, he 
should

[[Page 27]]

consult with appropriate public authorities and private interests for 
their guidance with regard to such actions. Notification of these 
actions shall be forwarded to the FAA as indicated in paragraph (a)(6) 
of this section.



Sec. 328.7  Other authorities.

    Nothing in the preceding provisions bestows authority to deviate 
from rules and regulations or prescribed standards of the State 
Aeronautical Agency, Federal Aviation Administration, Coast Guard, or 
other appropriate Federal, state, or local authority.



PART 330_REGULATION OF LAW ENFORCEMENT SERVICES CONTRACTS AT CIVIL WORKS WATER 

RESOURCE PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS--Table of Contents




Sec.
330.1 Purpose.
330.2 Applicability.
330.3 References.
330.4 General.
330.5 Policy.
330.6 Criteria.
330.7 Funding.
330.8 Annual report.

    Authority: Sec. 120 of the Water Resource Development Act of 1976, 
90 Stat. 2917.

    Source: 42 FR 61986, Dec. 8, 1977, unless otherwise noted.



Sec. 330.1  Purpose.

    This regulation provides policy and guidance for the establishment 
and management of the contract law enforcement program including 
preparation of and management of contracts ensuing from this program.



Sec. 330.2  Applicability.

    This regulation is applicable to all field operating agencies having 
responsibilities for Civil Works water resource development projects.



Sec. 330.3  References.

    (a) Section 4 of the Flood Control Act of 1944, as amended (16 
U.S.C. 460d).
    (b) Section 234 of the River and Harbor and Flood Control Act of 
1970 (Pub. L. 91-611, 84 Stat. 1818).
    (c) Section 120 of the Water Resource Development Act of 1976 (Pub. 
L. 94-587, 90 Stat. 2917).
    (d) 36 CFR chapter III.
    (e) ER 190-2-3.
    (f) ER 190-3-4.



Sec. 330.4  General.

    (a) Section 120(a) of reference Sec. 330.3(c) authorizes the 
Secretary of the Army, acting through the Chief of Engineers, to 
contract with States and their political subdivisions for the purpose of 
obtaining increased law enforcement services at water resource 
development projects under the jurisdiction of the Secretary of the Army 
to meet needs during peak visitation periods.
    (b) Further, section 120(b) of the Act authorizes a maximum 
appropriation of up to $6,000,000 per fiscal year for the fiscal years 
ending 30 September 1978 and 30 September 1979, to carry out section 
120(a).



Sec. 330.5  Policy.

    (a) It is the policy of the Corps of Engineers to provide, to the 
extent of its authorities, a safe and healthful environment for public 
use of lands and waters at Civil Works water resource development 
projects. To insure this safe and healthful environment, and to augment 
the citation authorities granted to the Corps of Engineers by reference 
Sec. 330.3(b), District Engineers, subject to the authority of the 
Division Engineers, as set out below, are hereby delegated the authority 
to contract with States or their political subdivisions to obtain 
increased law enforcement services at Civil Works water resource 
development projects. Division Engineers are hereby delegated the 
authority to approve any minor deviations from this regulation except 
that any substantial deviations from the policies expressed within this 
regulation will require the prior approval of the Chief of Engineers or 
his authorized representative. Any required approval for deviation shall 
be made prior to the execution of the contract. When fiscal year 1978 
and fiscal year 1979 work allowances are issued, instructions will be 
furnished on reporting requirements and the control of expenditures.

[[Page 28]]

    (b) Contracts for law enforcement services, as authorized in Sec. 
330.5(a), shall be subject to the terms and conditions as provided for 
within this regulation and in accordance with standard contracting and 
accounting procedures applicable to the Corps of Engineers.
    (c) This regulation is not intended to diminish or otherwise limit 
the existing law enforcement responsibilities of the State or local law 
enforcement agencies.
    (d) Contract law enforcement personnel shall not be given Federal 
citation authority for enforcement of regulations contained in title 36 
of the Code of Federal Regulations, Chapter III nor shall they be 
empowered to enforce such regulations. These regulations shall remain 
the responsibility of the Corps of Engineers.
    (e) Contracts for increased law enforcement shall be for those 
projects or portions of projects that are operated and maintained by the 
Corps of Engineers. Law enforcement services will not be provided under 
this program to those outgrant areas operated and maintained by a non-
Federal sponsor.



Sec. 330.6  Criteria.

    (a) In order to provide reimbursement for law enforcement services 
supplied by a State or local law enforcement agency, a contract must be 
executed and approved in accordance with this regulation prior to the 
provisions of such services.
    (b) The authorized contract law enforcement program extends only to 
30 September 1979. Law enforcement services acquired by contract under 
this program shall be limited to those increased law enforcement 
services required to meet the needs of the public during peak visitation 
periods. Accordingly, the contract period shall not extend beyond the 
dates of 1 April through 30 September inclusive, and in no event shall 
the contract be written for more than 120 days within that time period. 
The contract may provide for an option to renew for a similar, 
additional period not to exceed 120-day period in Fiscal Year 1979. Any 
exceptions to this criteria must be approved by the Chief of Engineers 
or his authorized representative.
    (c) Contracts shall be consummated only with those public law 
enforcement agencies legally empowered to enforce State and local 
criminal and civil laws within their respective political jurisdictions. 
In light of this requirement and the authority cited in Sec. 330.3(c), 
it is recognized that sole source negotiations may necessarily be 
utilized in the procurement of these services. In negotiating law 
enforcement contracts with these agencies the District Engineer must 
determine the reasonableness of the price for the law enforcement 
services offered under the contract. Such a determination shall be made 
prior to execution of the contract, in accordance with the applicable 
Contract Cost Principles and Procedures as set out in ASPR, section 15, 
part 7, and as subject to the policies contained in this regulation. 
Such a determination shall be contained in the official contract file 
and must accompany any requests for deviations from the Division 
Engineer or Chief of Engineers as provided for in Sec. 330.5(a) of this 
regulation. Contract law enforcement personnel must meet all the 
qualifications, including minimal law enforcement training, required by 
State and local laws and regulations.
    (d) The contractor shall provide all personnel, equipment and 
supplies which are required to provide the increased law enforcement 
services contracted for by the District Engineer. The Corps of Engineers 
shall not reimburse the contractor for the purchase of any equipment or 
supplies desired by the contractor for use under this program. However, 
the Corps of Engineers shall reimburse the contractor for the reasonable 
costs incurred by him in the rental or use of such equipment which is 
allocated to the work performed by him under the contract. Such use 
shall include:
    (1) A depreciation or use allowance for such equipment as determined 
by the service life evaluation system used by the contractor, and (2) 
the costs of necessary maintenance, repair, and upkeep of the property 
which neither adds to the permanent value of the property nor 
appreciably prolongs its intended life, but keeps it at an efficient 
operating condition.

[[Page 29]]

    (e) Reimbursement for law enforcement services shall be considered 
only for increased law enforcement services to meet needs during peak 
visitation periods. Each District Engineer shall evaluate and establish 
a normal law enforcement service standard for each contract situation 
and include such standard in the plan of operation to be developed in 
accordance with Sec. 330.6(h). Each District Engineer shall evaluate 
the existing law enforcement services now being provided by State or 
local law enforcement agencies at those water resources projects or 
recreation areas where it is anticipated that law enforcement service 
contracts may be executed, and determine the scope including the type 
and amount, of law enforcement service which exceeds the normal law 
enforcement standard, and which will become eligible for reimbursement 
under the contract. Normally, requests by the District Engineer or his 
authorized representative for emergency or unanticipated law enforcement 
assistance will be considered nonreimbursable. Increased law enforcement 
services, eligible for reimbursement under the terms of the contract, 
shall be those regularly scheduled patrols or surveillance in excess of 
the normal law enforcement standard presently being provided by the 
contractor.
    (f) An appropriate orientation program will be given by Corps 
personnel to all contract law enforcement personnel assigned to Corps 
projects. The purpose of this orientation will be to familiarize the 
contract law enforcement personnel with the policies and procedures of 
the Corps of Engineers, and to familiarize Corps personnel with the 
functions and duties of the State or local law enforcement agency. The 
Corps of Engineers shall reimburse the contractor for the cost per man 
hour as set out in Sec. 330.6(h)(4) for attending the orientation 
program.
    (g) The contractor shall be required to keep a record of the 
services provided to the District under the terms and conditions of the 
contract in accordance with the criteria established in the plan of 
operation required in Sec. 330.6(h).
    (h) The District Engineer, in cooperation with the Contractor, shall 
prepare a Plan of Operation for the Provision of law enforcement 
services as an attachment to the contract. The Plan of Operation shall 
contain, but not necessarily be limited to, the following information:
    (1) Identify, by name and location, the project or projects and 
specific areas (recreation and others) that require law enforcement 
services.
    (2) Describe the normal law enforcement services to be provided by 
the Contractor without reimbursement by the Government (see Sec. 
330.6(e)). Identify time of day, number of hours-per-day number of days-
per-week, and the number of patrols.
    (3) Describe the increased law enforcement services to be provided 
by the Contractor under the contract. Identify the time-of-day, number 
of hours-per-day, number of days-per-week, number of patrols, manpower 
per patrol, and effective starting and ending dates.
    (4) Identify the cost-per-man-hour for the provision of reimbursable 
law enforcement services, and identify the costs for utilization and 
operation, maintenance and repair of such equipment as allocated for use 
under the contract. (See Sec. 330.6(d).)
    (5) The District Engineer and the Contractor should designate 
specific individuals to issue or receive requests for reimbursable law 
enforcement services under the contract.
    (6) Describe the billing procedures to be utilized for the increased 
law enforcement services. The Contractor shall provide, at a minimum, 
the total charges, the number of hours involved, and starting and ending 
dates of the billing period.
    (7) The Contractor shall prepare a Daily Law Enforcement Log (see 
Sec. 330.6(g) for the law enforcement services rendered as specified in 
Sec. 330.6(h)(3)). These logs shall be compiled by the Contractor and 
submitted to the District Engineer or his designated representative on a 
regular basis throughout the life of the contract. It is intended by 
this reporting requirement to minimize the paperwork burden on behalf of 
the Contractor while, at the same time, providing assurance to the 
Government with an adequate information base on

[[Page 30]]

which to administer the law enforcement services being provided under 
the contract. Any requirement for additional information to be contained 
in these reports due to unique or special circumstances encountered in 
negotiating a Plan of Operation with a particular law enforcement 
jurisdiction must receive the prior approval of the Division Engineer.



Sec. 330.7  Funding.

    (a) Section 330.3(c) sets forth the maximum authorized funds for law 
enforcement contracting in FY 1978 and FY 1979. The Division funding 
levels for FY 1978 are based on information as previously submitted.
    (b) The FY 1979 funding request for law enforcement contracting will 
be submitted as part of the FY 1979 budget submittal.



Sec. 330.8  Annual report.

    (RCS-DAEN-CWO-53) The Division Engineer will submit a consolidated 
annual report to reach HQDA (DAEN-CWO-R) WASH DC 20314 not later than 30 
October. This requirement expires 30 October 1979. The report will 
contain the following:
    (a) Districts reporting.
    (b) Number assigned each contract.
    (c) Name of projects covered under each contract.
    (d) Number of man-hours of increased law enforcement services 
provided under each contract.
    (e) Total contract cost.
    (f) Cost per man-hour for each contract.
    (g) Corps of Engineers administrative or overhead costs associated 
with each contract.
    (h) Number of arrests and type of offense committed, i.e., assault, 
burglary, auto theft, etc.
    (i) The Division Engineers assessment of the effects of the contract 
law enforcement program and recommendation.



PART 331_REGULATIONS GOVERNING THE PROTECTION, USE AND MANAGEMENT OF THE FALLS 

OF THE OHIO NATIONAL WILDLIFE CONSERVATION AREA, KENTUCKY AND INDIANA--Table 

of Contents




Sec.
331.1 Applicability and scope.
331.2 Policy.
331.3 Hunting and trapping.
331.4 Fishing.
331.5 Explosives and fireworks.
331.6 Public property.
331.7 Sanitation.
331.8 Picnicking.
331.9 Camping.
331.10 Swimming.
331.11 Special events.
331.12 Vehicles.
331.13 Vessels.
331.14 Aircraft.
331.15 Fires.
331.16 Interference with government employees.
331.17 Minerals.
331.18 Restrictions.
331.19 Commercial activities.
331.20 Advertisement.
331.21 Unauthorized structures.
331.22 Abandonment of personal property.
331.23 Control of animals.
331.24 Permits.
331.25 Violation of regulations.

    Authority: Pub. L. 97-137.

    Source: 48 FR 40720, Sept. 9, 1983, unless otherwise noted.



Sec. 331.1  Applicability and scope.

    (a) The regulations contained in this part apply to those lands and 
waters within the established boundary of the Falls of the Ohio National 
Wildlife Conservation Area (WCA). Included in this boundary, which was 
published in the Federal Register of August 12, 1982, are publicly and 
privately owned lands, waters and improvements. The Federal Government, 
acting through the Corps of Engineers, will acquire such rights to 
privately-owned properties in the WCA as are necessary to carry out the 
purposes of title II, Pub. L. 97-137. The regulations prescribed herein 
are for the use, management and protection of the resources of the WCA 
and all persons entering, using or visiting within the boundaries of the 
WCA are subject to these regulations. All other applicable Federal, 
State and local laws and regulations remain in

[[Page 31]]

full force and effect. The District Engineer, US Army Corps of 
Engineers, exercises non-exclusive jurisdiction over the lands and 
waters of the WCA and enforces these regulations.
    (b) The WCA boundary encompasses an existing hydroelectric 
generating station and the McAlpine Locks and Dam, operating navigation 
structures which are part of the authorized Ohio River Navigation 
System. The continued operation and maintenance of this system take 
precedence over the purposes of the WCA, except that such operation and 
maintenance will be consistent with the basic purpose of the WCA as 
regards prohibition of hunting, vandalism, and dumping of refuse. 
Management of the WCA to achieve its intended purposes will, to the 
extent practicable, be accomplished in a manner consistent and 
compatible with continued generation of electricity and navigation on 
the Ohio River, including operation and maintenance of the McAlpine 
Locks and Dam and the Louisville Repair Station and material storage 
areas located on Shippingport Island.



Sec. 331.2  Policy.

    (a) It is the policy of the Secretary of the Army, acting through 
the Chief of Engineers, to manage the natural and cultural resources of 
the WCA in the public interest, providing the public with safe and 
healthful recreational opportunities while protecting and enhancing 
these resources.
    (b) Unless otherwise indicated herein, the term District Engineer 
shall include the authorized representatives of the District Engineer.
    (c) The WCA shall be available to the public without regard to sex, 
race, color, creed or national origin. No lessee, licensee or 
concessionaire providing a service to the public shall discriminate 
against any person because of sex, race, creed, color, or national 
origin in the conduct of the operations under the lease, license, or 
concession contract.



Sec. 331.3  Hunting and trapping.

    Unless authorized in writing by the District Engineer:
    (a) The hunting, trapping, catching, molesting, killing, or having 
in possession any wild animal or bird, or taking the eggs of any such 
bird, is prohibited.
    (b) Possession of equipment (including, but not limited to, 
firearms, ammunition, traps, projectile firing devices including bow and 
arrow) which could be used for hunting, trapping, or the taking of 
wildlife, is prohibited.



Sec. 331.4  Fishing.

    Unless otherwise authorized in writing by the District Engineer:
    (a) Fishing is only permitted in accordance with the laws and 
regulations of the State within whose exterior boundaries that portion 
of the WCA is located, and such laws and regulations which are now or 
may hereafter be in effect are hereby adopted as part of these 
regulations.
    (b) Fishing by means of the use of drugs, poisons, explosives, bow 
and arrow or electricity is prohibited.
    (c) Commercial fishing and fishing with gill nets, trammel nets, 
hoop nets, bow and arrow or trot lines is prohibited.



Sec. 331.5  Explosives and fireworks.

    Unless otherwise authorized in writing by the District Engineer.
    (a) The possession or use of fireworks is prohibited.
    (b) The possession or use of explosives is prohibited.



Sec. 331.6  Public property.

    Unless otherwise authorized in writing by the District Engineer, the 
destruction, injury, defacement, removal, or any alteration of public 
property including, but not limited to natural formations, 
paleontological features, historical and archaeological features and 
vegetative growth is prohibited. Any such destruction, removal, or 
alteration of public property shall be in accordance with the conditions 
of any permission granted.



Sec. 331.7  Sanitation.

    (a) Garbage, trash, rubbish, litter, or any other waste material or 
waste liquid generated on the WCA shall be removed from the area or 
deposited in receptacles provided for that purpose. The improper 
disposal of such wastes within the boundaries of the WCA is prohibited.

[[Page 32]]

    (b) The use of refuse containers for the disposal of refuse not 
generated on the WCA is prohibited.
    (c) It is a violation to bring any material onto the WCA for the 
purpose of disposal.
    (d) The discharge or placing of sewage, galley waste, garbage, 
refuse or pollutants into the WCA waters from any vessel or watercraft 
is prohibited.



Sec. 331.8  Picnicking.

    (a) Picnicking is permitted only in designated areas.
    (b) Picnickers shall remove all personal equipment and clean their 
sites upon departure.



Sec. 331.9  Camping.

    Camping is not permitted within the WCA.



Sec. 331.10  Swimming.

    Swimming is prohibited unless authorized in writing by the District 
Engineer.



Sec. 331.11  Special events.

    (a) Special events including, but not limited to, water carnivals, 
boat regattas, music festivals, dramatic presentations, or other special 
recreation programs are prohibited unless written permission has been 
granted by the District Engineer.
    (b) The public shall not be charged any fee by the sponsor of such 
permitted event unless the District Engineer has approved in writing the 
proposed schedule of fees. The District Engineer shall have authority to 
revoke permission and require removal of any equipment upon failure of 
the sponsor to comply with terms and conditions of the permit/
permission. Any violation shall constitute a separate violation for each 
calendar day in which it occurs.



Sec. 331.12  Vehicles.

    (a) The use of a vehicle off roadways is prohibited except as may be 
authorized by the District Engineer.
    (b) Vehicles shall not be parked in violation of any posted 
restriction, or in such a manner as to endanger any Federal property to 
include natural features. The owner of any vehicle parked in violation 
of this section shall be presumed to have parked it, and unless rebutted 
such presumption will be sufficient to sustain a conviction as provided 
for in Sec. 331.25.
    (c) Vehicles shall be operated in accordance with all posted 
regulations.
    (d) Driving or operating any vehicle in a careless, negligent, or 
reckless manner, heedlessly or in willful disregard for the safety of 
other persons, or in such manner as to endanger any property or 
environmental feature, or without due care or at a speed greater than is 
reasonable and prudent under prevailing conditions with regard to 
traffic, weather, road, light and surface conditions, is prohibited.
    (e) This section pertains to all vehicles, including, but not 
limited to, automobiles, trucks, motorcycles, minibikes, trail bikes, 
snowmobiles, dune buggies, all terrain vehicles, bicycles, trailers, 
campers, or any other such equipment.
    (f) Except as authorized by the District Engineer, no person shall 
operate any motorized vehicle without a proper and effective exhaust 
muffler, or with an exhaust muffler cutout open, or in any other manner 
which renders the exhaust muffler ineffective in muffling the sound of 
engine exhaust.



Sec. 331.13  Vessels.

    (a) Vessels or other watercraft may be operated in the WCA waters 
except in prohibited or restricted areas in accordance with posted 
regulations and applicable Federal, State and local laws.
    (b) All vessels when not in actual use shall be removed from the WCA 
unless securely moored at mooring facilities approved by the District 
Engineer. The placing of floating or stationary mooring facilities to, 
or interfering with, a buoy, channel marker, or other navigational aid 
is prohibited.
    (c) The operation of vessels or other watercraft in a careless, 
negligent, or reckless manner so as to endanger any property (including 
the operator and/or user(s) of the vessel or watercraft) is prohibited.



Sec. 331.14  Aircraft.

    (a) The operation of aircraft on WCA lands and waters is prohibited, 
unless

[[Page 33]]

authorized in writing by the District Engineer.
    (b) Except in extreme emergencies threatening human life or serious 
property loss, the air delivery of any person or thing by parachute, 
helicopter, or other means onto project lands or waters without written 
permission of the District Engineer is prohibited.
    (c) The provisions of this section shall not be applicable to 
aircraft engaged on official business of the Federal Government or used 
in emergency rescue in accordance with the directions of the District 
Engineer.



Sec. 331.15  Fires.

    Open fires are prohibited unless confined to fireplaces, grills, or 
other facilities designed for this purpose as designated by the District 
Engineer. Fires shall not be left unattended and must be completely 
extinguished prior to departure.



Sec. 331.16  Interference with government employees.

    Interference with any Government employee in the conduct of his or 
her official duties pertaining to the administration of these 
regulations is prohibited. It is a violation to fail to comply with a 
lawful order directed by any Government employee or to knowingly give 
any false, fictitious, or fraudulent report or other information to any 
government employee in the performance of his or her official duties 
pertaining to the administration of these regulations.



Sec. 331.17  Minerals.

    All activities in connection with prospecting, exploration, 
development, mining or other removal or the processing of mineral 
resources and all uses reasonably incident thereto are prohibited.



Sec. 331.18  Restrictions.

    The District Engineer may establish and post a schedule of visiting 
hours and/or restrictions on the public use of a portion or portions of 
the WCA. The District Engineer may close or restrict the use of the WCA 
or portion of the WCA when necessitated by reason of public health, 
public safety, security, maintenance, or other reasons in the public 
interest. Entering or using the project in a manner which is contrary to 
the schedule of visiting hours, closure or restrictions is prohibited.



Sec. 331.19  Commercial activities.

    Unless otherwise authorized in writing by the District Engineer, the 
engaging in or solicitation of business or money is prohibited.



Sec. 331.20  Advertisement.

    Unless otherwise authorized in writing by the District Engineer, 
advertising by the use of billboards, signs, markers, audio devices, or 
any other means whatsoever including handbills, circulars, and posters 
is prohibited. Vessels or vehicles with semipermanent or permanently 
installed signs are exempt if being used for authorized recreational 
activities or special events and in compliance with all other rules and 
regulations pertaining to vessels and vehicles.



Sec. 331.21  Unauthorized structures.

    The construction, placing, or continued existence of any structure 
of any kind under, upon, in, or over WCA lands or waters is prohibited 
unless a permit, lease, license, or other appropriate written agreement 
therefor has been issued by the District Engineer. Structures not so 
authorized are subject to summary removal or impoundment by the District 
Engineer. The design, construction, placing, existence, or use of 
structures in violation of the terms of the permit, lease, license, or 
other written agreement therefor is prohibited.



Sec. 331.22  Abandonment of personal property.

    (a) Personal property of any kind left unattended upon WCA lands or 
waters for a period of 24 hours shall be considered abandoned and may be 
impounded and stored at a storage point designated by the District 
Engineer who may assess a reasonable impoundment fee. Such fee shall be 
paid before the impounded property is returned to its owner.
    (b) If abandoned property is not claimed by its owner within 3 
months after the date it is received at the storage point designated by 
the District

[[Page 34]]

Engineer, it may be disposed of by public or private sale or by other 
means determined by the District Engineer. Any net proceeds from the 
sale of property shall be conveyed unto the Treasury of the United 
States as miscellaneous receipts.



Sec. 331.23  Control of animals.

    (a) No person shall bring or allow horses, cattle, or other 
livestock in the WCA.
    (b) No person shall bring dogs, cats, or other pets into the WCA 
unless penned, caged, or on a leash under 6 feet in length, or otherwise 
under physical restraint at all times. Unclaimed or unattended animals 
are subject to immediate impoundment and removal in accordance with 
State and local laws.



Sec. 331.24  Permits.

    It shall be a violation of these regulations to refuse to or fail to 
comply with the terms or conditions of any permit isued by the District 
Engineer.



Sec. 331.25  Violation of regulations.

    Anyone violating the provisions of this regulation shall be subject 
to a fine of not more than $500 or imprisonment for not more than 6 
months, or both. All persons designated by the Chief of Engineers, U.S. 
Army Corps of Engineers, for that purpose shall have the authority to 
issue a citation for the violation of these regulations, requiring the 
appearance of any person charged with violation to appear before the 
U.S. Magistrate within whose jurisdiction the violation occurred.

                        PARTS 332-399 [RESERVED]

[[Page 35]]



            CHAPTER IV--AMERICAN BATTLE MONUMENTS COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
400             Employee responsibilities and conduct.......          37
401             Monuments and memorials.....................          37
402-403

[Reserved]

404             Procedures and guidelines for compliance 
                    with the Freedom of Information Act.....          39
406             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by American Battle 
                    Monuments Commission....................          45
407-499         [Reserved]

[[Page 37]]



PART 400_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




    Authority: 5 U.S.C. 7301; 36 U.S.C. 2103.



Sec. 400.1  Cross-references to employees' ethical conduct standards, 

financial disclosure regulations and other conduct rules.

    Employees of the American Battle Monuments Commission are subject to 
the executive branch-wide standards of ethical conduct and financial 
disclosure regulations at 5 CFR parts 2634 and 2635 as well as the 
executive branch-wide employee responsibilities and conduct regulations 
at 5 CFR part 735.

[69 FR 17929, Apr. 6, 2004]



PART 401_MONUMENTS AND MEMORIALS--Table of Contents




Sec.
401.1 Purpose.
401.2 Applicability and scope.
401.3 Background.
401.4 Responsibility.
401.5 Control and supervision of materials, design, and building.
401.6 Approval by National Commission of Fine Arts.
401.7 Cooperation with other than government entities.
401.8 Requirement for Commission approval.
401.9 Evaluation criteria.
401.10 Monument Trust Fund Program.
401.11 Demolition criteria.

    Authority: 36 U.S.C 2105; 36 U.S.C. 2106

    Source: 70 FR 32490, June 3, 2005, unless otherwise noted.



Sec. 401.1  Purpose.

    This part provides guidance on the execution of the responsibilities 
given by Congress to the American Battle Monuments Commission 
(Commission) regarding memorials and monuments commemorating the service 
of American Armed Forces at locations outside the United States.



Sec. 401.2  Applicability and scope.

    This part applies to all agencies of the United States Government, 
State and local governments of the United States and all American 
citizens, and private and public American organizations that have 
established or plan to establish any permanent memorial commemorating 
the service of American Armed Forces at a location outside the United 
States. This chapter does not address temporary monuments, plaques and 
other elements that deployed American Armed Forces wish to erect at a 
facility occupied by them outside the United States. Approval of any 
such temporary monument, plaque or other element is a matter to be 
determined by the concerned component of the Department of Defense 
consistent with host nation law and any other constraints applicable to 
the presence of American Armed Forces at the overseas location.



Sec. 401.3  Background.

    Following World War I many American individuals, organizations and 
governmental entities sought to create memorials in Europe commemorating 
the service of American Armed Forces that participated in that war. 
Frequently such well-intended efforts were undertaken without adequate 
regard for many issues including host nation approvals, design adequacy, 
and funding for perpetual maintenance. As a result, in 1923 Congress 
created the American Battle Monuments Commission to generally oversee 
all memorials created by Americans or American entities to commemorate 
the service of American Armed Forces at locations outside the United 
States.



Sec. 401.4  Responsibility.

    The Commission is responsible for building and maintaining 
appropriate memorials commemorating the service of American Armed Forces 
at any place outside the United States where Armed Forces have served 
since April 6, 1917.



Sec. 401.5  Control and supervision of materials, design, and building.

    The Commission controls the design and prescribes regulations for 
the building of all memorial monuments and buildings commemorating the 
service of American Armed Forces that are built in a foreign country or 
political division of the foreign country that authorizes the Commission 
to carry out those duties and powers.

[[Page 38]]



Sec. 401.6  Approval by National Commission of Fine Arts.

    A design for a memorial to be constructed at the expense of the 
United States Government must be approved by the National Commission of 
Fine Arts before the Commission can accept it.



Sec. 401.7  Cooperation with other than Government entities.

    The Commission has the discretion to cooperate with citizens of the 
United States, States, municipalities, or associations desiring to build 
war memorials outside the United States.



Sec. 401.8  Requirement for Commission approval.

    No administrative agency of the United States Government may give 
assistance to build a memorial unless the plan for the memorial has been 
approved by the Commission. In deciding whether to approve a memorial 
request the Commission will apply the criteria set forth in Sec. 401.9.



Sec. 401.9  Evaluation criteria.

    Commission consideration of a request to approve a memorial will 
include, but not be limited to, evaluation of following criteria:

------------------------------------------------------------------------
             Criteria                            Discussion
------------------------------------------------------------------------
(a) How long has it been since the  Requests made during or immediately
 events to be honored took place?    after an event are not generally
                                     subject to approval. The Commission
                                     will not approve a memorial until
                                     at least 10 years after the
                                     officially designated end of the
                                     event. It should be noted that this
                                     is the same period of time made
                                     applicable to the establishment of
                                     memorials in the District of
                                     Columbia and its environs by the
                                     Commemorative Works Act.
(b) How will the perpetual          Available adequate funding or other
 maintenance of the memorial be      specific arrangements addressing
 funded?                             perpetual care are a prerequisite
                                     to any approval.
(c) Has the host nation consented?  Host nation approval is required.
(d) Is an overseas site             In many circumstances a memorial
 appropriate for the proposed        located within the United States
 permanent memorial?                 will be more appropriate.
(e) Is the proposed memorial        Memorials to elements smaller than a
 intended to honor an individual     division or comparable unit or to
 or small unit?                      an individual will not be approved
                                     unless the services of such unit or
                                     individual clearly were of such
                                     distinguished character as to
                                     warrant a separate memorial.
(f) Is the memorial historically    Representations should be supported
 accurate?                           by objective authorities.
(g) Is the proposed memorial        As a general rule, memorials should
 intended to honor an                be erected to organizations rather
 organizational element of the       than to troops from a particular
 American Armed Forces rather than   locality of the United States.
 soldiers from a geographical area
 of the United States?
(h) Does the contribution of the    The commemoration should normally be
 element to be honored warrant a     through a memorial that would have
 separate memorial?                  the affect of honoring all of the
                                     American Armed Forces personnel who
                                     participated rather than a select
                                     segment of the organizational
                                     participants.
------------------------------------------------------------------------



Sec. 401.10  Monument Trust Fund Program.

    Pursuant to the provisions of 36 U.S.C. 2106(d), the Commission 
operates a Monument Trust Fund Program (MTFP) in countries where there 
is a Commission presence. Under the MTFP, the Commission may assume both 
the sponsor's legal interests in the monument and responsibility for its 
maintenance. To be accepted in the Monument Trust Fund Program, an 
organization must develop an acceptable maintenance plan and transfer 
sufficient monies to the Commission to fully fund the maintenance plan 
for at least 30 years. to The Commission will put this money into a 
trust fund of United States Treasury instruments that earn interest. 
Prior to acceptance into the MTFP, the sponsor must perform any deferred 
maintenance necessary to bring the monument up to a mutually agreeable 
standard. At that time, the Commission may assume the sponsoring 
organization's interest in the property and responsibility for all 
maintenance and other decisions concerning the monument. Once accepted 
into the program, the Commission will provide for all necessary 
maintenance of the monument and charge the cost to the trust fund. to 
The sponsoring organization or others interested in the monument may add 
to the trust fund at any time to insure that adequate funds remain 
available. to The Commission will maintain the monument

[[Page 39]]

for as long a period as the trust fund account permits.



Sec. 401.11  Demolition criteria.

    As authorized by the provisions of 36 U.S.C. 2106(e), the Commission 
may take necessary action to demolish any war memorial built outside the 
United States by a citizen of the United States, a State, a political 
subdivision of a State, a governmental authority (except a department, 
agency, or instrumentality of the United States Government), a foreign 
agency, or a private association and to dispose of the site of the 
memorial in a way the Commission decides is proper, if--
    (a) The appropriate foreign authorities agree to the demolition; and
    (b)(1) The sponsor of the memorial consents to the demolition; or
    (2) The memorial has fallen into disrepair and a reasonable effort 
by the Commission has failed--
    (i) To persuade the sponsor to maintain the memorial at a standard 
acceptable to the Commission; or
    (ii) To locate the sponsor.

                        PARTS 402-403 [RESERVED]



PART 404_PROCEDURES AND GUIDELINES FOR COMPLIANCE WITH THE FREEDOM OF 

INFORMATION ACT--Table of Contents




Sec.
404.1 General.
404.2 Authority and functions.
404.3 Organization.
404.4 Access to information.
404.5 Inspection and copying.
404.6 Definitions.
404.7 Fees to be charged--general.
404.8 Fees to be charged--categories of requesters.
404.9 Miscellaneous fee provisions.
404.10 Waiver or reduction of charges.

    Authority: 5 U.S.C. 552.

    Source: 68 FR 8826, Feb. 26, 2003, unless otherwise noted.



Sec. 404.1  General.

    This information is furnished for the guidance of the public and in 
compliance with the requirements of section 552 of Title 5, United 
States Code, as amended.



Sec. 404.2  Authority and functions.

    The general functions of the American Battle Monuments Commission, 
as provided by statute, 36 U.S.C. Section 2101, et seq., are to build 
and maintain suitable memorials commemorating the service of American 
Armed Forces and to maintain permanent American military cemeteries in 
foreign countries.



Sec. 404.3  Organization.

    (a) The brief description of the central organization of the 
American Battle Monuments Commission follows:
    (1) The Commission is composed of not more than 11 members appointed 
by the President.
    (2) The day to day operation of the Commission is under the 
direction of a Secretary appointed by the President.
    (3) Principal Officials include the Executive Director, Director of 
Finance, Director of Procurement and Contracting, Director of 
Engineering, Maintenance, and Operations and Director of Personnel and 
Administration.
    (4) The Commission also creates temporary offices when tasked with 
major additional responsibilities not of a permanent nature.
    (b) Locations. (1) The principal offices of the American Battle 
Monuments Commission are located at Courthouse Plaza II, Suite 500, 2300 
Clarendon Boulevard, Arlington, VA 22201. Persons desiring to visit 
offices or employees of the American Battle Monuments Commission should 
write or telephone ahead (703-696-6897 or 703-696-6895) to make an 
appointment.
    (2) Field offices are located in Paris, France; Rome, Italy; Manila, 
Republic of the Philippines; the Republic of Panama; and Mexico City, 
Mexico.



Sec. 404.4  Access to information.

    (a) The American Battle Monuments Commission makes available 
information pertaining to Commission matters within the scope of 5 
U.S.C. 552(a)(2) by publishing them electronically at the ABMC home page 
at http://www.abmc.gov.
    (b) The ABMC FOIA Officer is responsible for acting on all initial 
requests. Individuals wishing to file a request under the Freedom of 
Information Act

[[Page 40]]

(FOIA) should address their request in writing to the FOIA Officer, 
American Battle Monuments Commission, Courthouse Plaza II, Suite 500, 
2300 Clarendon Boulevard, Arlington, VA 22201 (telephone 703-696-6897 or 
703-696-6895). Requests for information shall be as specific as 
possible.
    (c) Upon receipt of any request for information or records, the FOIA 
Officer will determine within 20 days (excepting Saturdays, Sundays and 
legal public holidays) after the receipt of such request whether it is 
appropriate to grant the request and will immediately provide written 
notification to the person making the request. 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 within 
the American Battle Monuments Commission. (Receipt of a request as used 
herein means the date the request is received in the office of the FOIA 
Officer.)
    (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 primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity which 
effect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requester within the category 
described 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 (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 10 days of its receipt of a request for expedited 
processing, ABMC will decide whether to grant it and will notify the 
requester of the decision. If a request for expedited treatment is 
granted, the request will be given priority and will be processed as 
soon as practicable. If a request for expedited processing is denied, 
any appeal of that decision will be acted on expeditiously.
    (e) Appeals shall be set forth in writing within 30 days of receipt 
of a denial and addressed to the FOIA Officer at the address specified 
in paragraph (b) of this section. 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 Executive Director, or his 
designee, within 20 days (excepting Saturdays, Sundays, and legal public 
holidays). 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 and the names of the persons who participated in the 
determination.
    (f) In unusual circumstances, the time limits prescribed in 
paragraphs (c) and (e) of this section may be extended for not more than 
10 days (excepting Saturdays, Sundays, or legal public holidays). 
Extensions may be granted by the FOIA Officer. The extension period may 
be split between the initial request and the appeal but in no instance 
may the total period exceed 10 working days. Extensions will be by 
written notice to the persons making the request and will set forth the 
reasons for the extension and the date the determination is expected.

[[Page 41]]

    (g) With respect to a request for which a written notice under 
paragraph (f) of this section extends the time limits prescribed under 
paragraph (c) of this section, the agency shall notify the person making 
the request if the request cannot be processed within the time limit 
specified in paragraph (f) of this section and 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 
agency an alternative time frame for processing the request or a 
modified request. Refusal by the person to reasonably 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). When ABMC reasonably believes that a 
requester, or a group of requestors acting in concert, has submitted 
requests that constitute a single request, involving clearly related 
matters, ABMC may aggregate those requests for purposes of this 
paragraph. One element to be considered in determining whether a belief 
would be reasonable is the time period over which the requests have 
occurred.
    (h) As used herein, but only to the extent reasonably necessary to 
the proper processing of the particular request, the term unusual 
circumstances means:
    (1) The need to search for and collect the requested records from 
establishments that are separated from the office processing the 
request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency which have a substantial subject matter interest therein.



Sec. 404.5  Inspection and copying.

    When a request for information has been approved pursuant to Sec. 
404.4, the person making the request may make an appointment to inspect 
or copy the materials requested during regular business hours by writing 
or telephoning the FOIA Officer at the address or telephone number 
listed in Sec. 404.4(b). Such materials may be copied and reasonable 
facilities will be made available for that purpose. Copies of individual 
pages of such materials will be made available at the price per page 
specified in Sec. 404.7(d); however, the right is reserved to limit to 
a reasonable quantity the copies of such materials which may be made 
available in this manner when copies also are offered for sale by the 
Superintendent of Documents.



Sec. 404.6  Definitions.

    For the purpose of these regulations:
    (a) All the terms defined in the Freedom of Information Act apply.
    (b) A statute specifically providing for setting the level of fees 
for particular types of records (5 U.S.C. 552(a)(4)(A)(vi)) means any 
statute that specifically requires a government agency, such as the 
Government Printing Office (GPO) or the National Technical Information 
Service (NTIS), to set the level of fees for particular types of 
records, in order to:
    (1) Serve both the general public and private sector organizations 
by conveniently making available government information;
    (2) Ensure that groups and individuals pay the cost of publications 
and other services that are for their special use so that these costs 
are not borne by the general taxpaying public;
    (3) Operate an information dissemination activity on a self-
sustaining basis to the maximum extent possible; or
    (4) Return revenue to the Treasury for defraying, wholly or in part, 
appropriated funds used to pay the cost of disseminating government 
information. Statutes, such as the User Fee Statute, which only provide 
a general discussion of fees without explicitly requiring that an agency 
set and collect fees for particular documents do not supersede the 
Freedom of Information Act under section (a)(4)(A)(vi) of that statute.

[[Page 42]]

    (c) The term direct costs means those expenditures that ABMC 
actually incurs in searching for and duplicating (and in the case of 
commercial requesters, 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.
    (d) The term 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. ABMC employees should 
ensure that searching for material is done in the most efficient and 
least expensive manner so as to minimize costs for both the agency and 
the requester. For example, employees should not engage in line-by-line 
search when merely duplicating an entire document would prove the less 
expensive and quicker method of complying with a request. Search should 
be distinguished, moreover, from review of material in order to 
determine whether the material is exempt from disclosure (see paragraph 
(f) of this section).
    (e) The term 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, audio-visual 
materials, or electronic records (e.g., magnetic tape or disk), among 
others. The requester's specified preference of form or format of 
disclosure will be honored if the record is readily reproducible in that 
format.
    (f) The term review refers to the process of examining documents 
located in response to a request that is for a commercial use (see 
paragraph (g) of this section) to determine whether any portion of any 
document located is permitted to be withheld. It also includes 
processing any documents for disclosure, e.g., 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.
    (g) The term 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 requester or the 
person on whose behalf the request is made. In determining whether a 
requester properly belongs in this category, ABMC must determine the use 
to which a requester will put the documents requested. Moreover, where 
an ABMC employee has reasonable cause to doubt the use to which a 
requester will put the records sought, or where that use is not clear 
from the request itself, the employee should seek additional 
clarification before assigning the request to a specific category.
    (h) The term 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.
    (i) The term non-commercial scientific institution refers to an 
institution that is not operated on a commercial basis (as that term is 
referenced in paragraph (g) 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.
    (j) The term 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. 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 when they can qualify as 
disseminators of news) who make their products available for purchase or 
subscription

[[Page 43]]

by the general public. These examples are not intended to be all-
inclusive. Moreover, as traditional methods of news delivery evolve 
(e.g., electronic dissemination of newspapers through telecommunications 
services), such alternative media would be included in this category. 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 not actually employed 
by it. A publication contract would be the clearest proof, but ABMC may 
also look to the past publication record of a requester in making this 
determination.



Sec. 404.7  Fees to be charged--general.

    ABMC shall charge fees that recoup the full allowable direct costs 
it incurs. Moreover, it shall use the most efficient and least costly 
methods to comply with requests for documents made under the FOIA. When 
documents that would be responsive to a request are maintained for 
distribution by agencies operating statutory-based fee schedule programs 
(see definition in Sec. 404.6(b)), such as the NTIS, ABMC should inform 
requesters of the steps necessary to obtain records from those sources.
    (a) Manual searches for records. ABMC will charge at the salary 
rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the 
search.
    (b) Computer searches for records. ABMC will charge at the actual 
direct cost of providing the service. This will include the cost of 
operating the central processing unit (CPU) for that portion of 
operating time that is directly attributable to searching for records 
responsive to a FOIA request and operator/programmer salary 
apportionable to the search.
    (c) Review of records. Only requesters 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; i.e., the review undertaken the 
first time ABMC 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 costs for such a subsequent 
review is assessable.
    (d) Duplication of records. Records will be duplicated at a rate of 
$.15 per page. For copies prepared by computer, such as tapes or 
printouts, ABMC shall charge the actual cost, including operator time, 
of production of the tape or printout. For other methods of reproduction 
or duplication, ABMC will charge the actual direct costs of producing 
the document(s). If ABMC estimates that duplication charges are likely 
to exceed $25, it shall notify the requester of the estimated amount of 
fees, unless the requester has indicated in advance his willingness to 
pay fees as high as those anticipated. Such a notice shall offer a 
requester the opportunity to confer with agency personnel with the 
object of reformulating the request to meet his or her needs at a lower 
cost.
    (e) Other charges. When it elects to charge them, ABMC will recover 
the full costs of providing services such as:
    (1) Certifying that records are true copies;
    (2) Sending records by special methods such as express mail.
    (3) Eight by ten inch black and white photographs--$3.75
    (4) Eight by ten inch color photographs--$5.00
    (5) $1.50 per publication
    (6) Video Purchase: The Price of Freedom--$13.00
    (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, American Battle 
Monuments Commission, Courthouse Plaza II, Suite 500, 2300 Clarendon 
Blvd., Arlington, Virginia 22201
    (g) A receipt for fees paid will be given upon request. Refund of 
fees paid for services actually rendered will not be made.
    (h) Restrictions on assessing fees. With the exception of requesters 
seeking documents for a commercial use,

[[Page 44]]

ABMC will provide the first 100 pages of duplication and the first 2 
hours of search time without charge. Moreover, ABMC will not charge fees 
to any requester, including commercial use requesters, if the cost of 
collecting a fee would be equal to or greater than the fee itself.
    (1) The elements to be considered in determining the cost of 
collecting a fee are the administrative costs of receiving and recording 
a requester's remittance, and processing the fee for deposit in the 
Treasury Department's special account.
    (2) For purposes of these restrictions on assessment of fees, the 
word pages refers to paper copies of 8\1/2\x11 or 11x14. Thus, 
requesters are not entitled to 100 microfiche or 100 computer disks, for 
example. A microfiche containing the equivalent of 100 pages or 100 
pages of computer printout, does meet the terms of the restriction.
    (3) Similarly, the term search time in this context has as its 
basis, manual search. To apply this term to searches made by computer, 
ABMC 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, i.e., the 
operator, ABMC will begin assessing charges for computer search.



Sec. 404.8  Fees to be charged--categories of requesters.

    There are four categories of FOIA requesters: commercial use 
requesters; educational and noncommercial scientific institutions; 
representatives of the news media; and all other requesters. The 
specific levels of fees for each of these categories:
    (a) Commercial use requesters. When ABMC 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. Requesters must reasonably describe the 
records sought. Commercial use requesters are not entitled to 2 hours of 
free search time nor 100 free pages of reproduction of documents. ABMC 
may recover the cost of searching for and reviewing records even if 
there is ultimately no disclosure of records (see paragraph (b) of this 
section).
    (b) Educational and noncommercial scientific institution requesters. 
ABMC shall provide documents to requesters in this category for the cost 
of reproduction alone, excluding charges for the first 100 pages. To be 
eligible for inclusion in this category, requesters must show that the 
request is being made 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. 
Requesters must reasonably describe the records sought.
    (c) Requesters who are representatives of the news media. ABMC shall 
provide documents to requesters in this category when serving the news 
dissemination function for the cost of reproduction alone, excluding 
charges for the first 100 pages. To be eligible for inclusion in this 
category, a requester must meet the criteria in Sec. 404.4(j), and his 
or her request must not be made for a commercial use. In reference to 
this class of requester, a request for records supporting the news 
dissemination function of the requester shall not be considered to be a 
request that is for a commercial use. Requesters must reasonably 
describe the records sought.
    (d) All other requesters. ABMC shall charge requesters 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 2 hours of search time shall be furnished 
without charge. Moreover, requests for records about the requesters 
filed in ABMC's systems of records will continue to be treated under the 
fee provisions of the Privacy Act of 1974 which permit fees only for 
reproduction. Requesters must reasonably describe the records sought.

[[Page 45]]



Sec. 404.9  Miscellaneous fee provisions.

    (a) Charging interest--notice and rate. ABMC may begin assessing 
interest charges on an unpaid bill starting on the 31st day following 
the day on which the billing was sent. The fact that the fee has been 
received by ABMC within the 30-day grace period, even if not 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.
    (b) Charges for unsuccessful search. ABMC 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 ABMC 
estimates that search charges are likely to exceed $25, it shall notify 
the requester of the estimated amount of fees, unless the requester has 
indicated in advance his willingness to pay fees as high as those 
anticipated. Such a notice shall offer the requester the opportunity to 
confer with agency personnel with the object of reformulating the 
request to meet his or her needs at a lower cost.
    (c) Aggregating requests. A requester may not file multiple requests 
at the same time, each seeking portions of a document or documents, 
solely in order to avoid payment of fees. When ABMC reasonably believes 
that a requester, or a group of requestors acting in concert, has 
submitted requests that constitute a single request, involving clearly 
related matters, ABMC may aggregate those requests and charge 
accordingly. One element to be considered in determining whether a 
belief would be reasonable is the time period over which the requests 
have occurred.
    (d) Advance payments. ABMC may not require a requester to make an 
advance payment, i.e., payment before work is commenced or continued on 
a request, unless:
    (1) ABMC estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250. Then, ABMC 
will notify the requester of the likely cost and obtain satisfactory 
assurance of full payment where the requester has a history of prompt 
payment of FOIA fees, or require an advance payment of an amount up to 
the full estimated charges in the case of requesters with no history of 
payment; or
    (2) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing). Then, 
ABMC may require the requester to pay the full amount owed plus any 
applicable interest as provided above or demonstrate that he or she has, 
in fact, paid the fee, and to make an advance payment of the full amount 
of the estimated fee before the agency begins to process a new request 
or a pending request from that requester.
    (3) When ABMC acts under paragraph (d)(1) or (2) of this section, 
the administrative time limits prescribed in the FOIA, 5 U.S.C. 
552(a)(6) (i.e., 20 working days from receipt of initial requests and 20 
working days from receipt of appeals from initial denial, plus 
permissible extensions of these time limits), will begin only after ABMC 
has received fee payments described in paragraphs (d)(1) and (2) of this 
section. Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). 
ABMC should comply with provisions of the Debt Collection Act, including 
disclosure to consumer reporting agencies and use of collection 
agencies, where appropriate, to encourage repayment.



Sec. 404.10  Waiver or reduction of charges.

    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 requester.



PART 406_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS 

OR ACTIVITIES CONDUCTED BY AMERICAN BATTLE MONUMENTS COMMISSION--Table of 

Contents




Sec.
406.101 Purpose.
406.102 Application.
406.103 Definitions.
406.104-406.109 [Reserved]
406.110 Self-evaluation.

[[Page 46]]

406.111 Notice.
406.112-406.129 [Reserved]
406.130 General prohibitions against discrimination.
406.131-406.139 [Reserved]
406.140 Employment.
406.141-406.148 [Reserved]
406.149 Program accessibility: Discrimination prohibited.
406.150 Program accessibility: Existing facilities.
406.151 Program accessibility: New construction and alterations.
406.152-406.159 [Reserved]
406.160 Communications.
406.161-406.169 [Reserved]
406.170 Compliance procedures.
406.171-406.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 4577, Feb. 5, 1986, unless otherwise noted.



Sec. 406.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.



Sec. 406.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 406.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one of more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addition and 
alcholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or

[[Page 47]]

physical impairment that substantially limits one or more major life 
activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 406.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[51 FR 4577, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. Sec. 406.104-406.109  [Reserved]



Sec. 406.110  Self-evaluation.

    (a) The agency shall, by April 9, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspections:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 406.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 406.112-406.129  [Reserved]



Sec. 406.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--

[[Page 48]]

    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualfied handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 406.131-406.139  [Reserved]



Sec. 406.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Sec. Sec. 406.141-406.148  [Reserved]



Sec. 406.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 406.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 406.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the

[[Page 49]]

program or activity, when viewed in its entirety, is readily accessible 
to and usable by handicapped persons. This paragraph does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons; or
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 406.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is nor required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualified handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by June 6, 1986, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by April 7, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by October 7, 1986, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.

[51 FR 4577, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. 406.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency

[[Page 50]]

shall be designed, constructed, or altered so as to be readily 
accessible to and usable by handicapped persons. The definitions, 
requirements, and standards of the Architectural Barriers Act (42 U.S.C. 
4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to 
buildings covered by this section.



Sec. Sec. 406.152-406.159  [Reserved]



Sec. 406.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 406.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 406.161-406.169  [Reserved]



Sec. 406.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director, Personnel and Administration shall be responsible 
for coordinating implementation of this section. Complaints may be sent 
to the Director, Personnel and Administration, American Battle Monuments 
Commission, Room 5127, Pulaski Building, 20 Massachusetts Ave., NW., 
Washington, DC 20314.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.

[[Page 51]]

    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 406.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 4577, Feb. 5, 1986, as amended at 51 FR 4577, Feb. 5, 1986]



Sec. Sec. 406.171-406.999  [Reserved]

                        PARTS 407-499 [RESERVED]

[[Page 53]]



                   CHAPTER V--SMITHSONIAN INSTITUTION




  --------------------------------------------------------------------
Part                                                                Page
504             Rules and regulations governing Smithsonian 
                    Institution buildings and grounds.......          55
520             Rules and regulations governing the 
                    buildings and grounds of the National 
                    Zoological Park of the Smithsonian 
                    Institution.............................          57
530             Claims against the Smithsonian Institution 
                    including the National Gallery of Art, 
                    the John F. Kennedy Center for the 
                    Performing Arts and the Woodrow Wilson 
                    International Center for Scholars.......          59
531-599         [Reserved]

[[Page 55]]



PART 504_RULES AND REGULATIONS GOVERNING SMITHSONIAN INSTITUTION BUILDINGS AND 

GROUNDS--Table of Contents




Sec.
504.1 General.
504.2 Recording presence.
504.3 Preservation of property.
504.4 Conformity with signs and emergency directions.
504.5 Nuisances.
504.6 Gambling.
504.7 Intoxicating beverages and narcotics.
504.8 Soliciting, vending, debt collection, and distribution of 
          handbills.
504.9 Placards, signs, banners and flags.
504.10 Dogs and other animals.
504.11 Photographs for news, advertising, or commercial purposes.
504.12 Items to be checked.
504.13 Vehicular and pedestrian traffic.
504.14 Weapons and explosives.
504.15 Nondiscrimination.
504.16 Penalties.

    Authority: Secs. 1-9, 65 Stat. 634, as amended, secs. 1-4, 78 Stat. 
365; 40 U.S.C. 193n-193w.

    Source: 33 FR 6656, May 1, 1968, unless otherwise noted.



Sec. 504.1  General.

    These rules and regulations apply to all buildings and grounds of 
the Smithsonian Institution, as defined in section 3, 78 Stat. 366; 40 
U.S.C. 193v(1) (A) and (C), and to all persons entering in or on such 
buildings and grounds, hereinafter referred to as the premises



Sec. 504.2  Recording presence.

    Except as otherwise ordered, Smithsonian buildings shall be closed 
to the public after normal visiting hours. Such buildings, or portions 
thereof, shall also be closed to the public in emergency situations and 
at such other times as may be necessary for the orderly conduct of 
business. Whenever the buildings are closed to the public for any 
reason, visitors will immediately leave the premises upon being 
requested by a guard or other authorized individuals. Admission to such 
premises during periods when closed to the public will be limited to 
authorized individuals who will be required to register and identify 
themselves when requested by guards or other authorized individuals.



Sec. 504.3  Preservation of property.

    It is unlawful willfully to destroy, damage, or remove property or 
any part thereof. Any parcels, portfolios, bags, or containers of any 
kind may be required to be opened and the contents identified prior to 
removal from the premises. In order to remove any property from the 
premises, a properly completed property pass signed by an authorized 
official of the Smithsonian Institution may be required prior to 
removal.



Sec. 504.4  Conformity with signs and emergency directions.

    Persons in or on the premises shall comply with official signs of a 
prohibitory or directory nature and with the directions of authorized 
individuals.



Sec. 504.5  Nuisances.

    The use of loud, abusive, or otherwise improper language; 
unwarranted loitering, sleeping or assembly; the creation of any hazard 
to persons or things; improper disposal of rubbish; spitting, prurient 
prying; the commission of any obscene or indecent act, or any other 
unseemly or disorderly conduct on the premises; throwing articles of any 
kind from or within a building; or climbing upon any part of a building 
is prohibited.



Sec. 504.6  Gambling.

    Participating in games for money or other personal property or the 
operation of gambling devices, the conduct of a lottery or pool, or the 
selling or purchasing of numbers tickets in or on the premises is 
prohibited.



Sec. 504.7  Intoxicating beverages and narcotics.

    Entering the premises or the operating of a motor vehicle thereon by 
a person under the influence of any intoxicating beverage or narcotic 
drug or the use of such drug in or on the premises is prohibited. 
Consumption of intoxicating beverages on the premises is prohibited 
unless officially authorized.

[[Page 56]]



Sec. 504.8  Soliciting, vending, debt collection, and distribution of 

handbills

    The soliciting of alms and contributions, commercial soliciting and 
vending of all kinds, the display or distribution of commercial 
advertising, or the collecting of private debts, in or on the premises 
is prohibited. This rule does not apply to national or local drives for 
funds for welfare, health, and other purposes sponsored or approved by 
the Smithsonian Institution concessions, or personal notices posted by 
employees on authorized bulletin boards. Distribution of material such 
as pamphlets, handbills, and flyers is prohibited without prior approval 
of authorized individuals.



Sec. 504.9  Placards, signs, banners and flags.

    The displaying or carrying of placards, signs, banners, or flags is 
prohibited unless officially authorized.



Sec. 504.10  Dogs and other animals.

    Dogs and other animals, except seeing-eye dogs, shall not be brought 
upon the premises for other than official purposes.



Sec. 504.11  Photographs for news, advertising, or commercial purposes.

    No photographs for advertising or any other commercial purpose may 
be taken on the premises unless officially authorized.



Sec. 504.12  Items to be checked.

    Umbrellas, canes (not needed to assist in walking), or other objects 
capable of inflicting damage to property or exhibits may be required to 
be checked in buildings where checking facilities are provided.



Sec. 504.13  Vehicular and pedestrian traffic.

    (a) Drivers of all vehicles in or on the premises shall drive in a 
careful and safe manner at all times and shall comply with the signals 
and directions of the guards and all posted traffic signs.
    (b) The blocking of entrances, driveways, walks, loading platforms, 
or fire hydrants in or on property is prohibited. Parking without 
authority, or parking in unauthorized locations or in locations reserved 
for other persons or contrary to the direction of posted signs, is 
prohibited. This paragraph may be supplemented from time to time by the 
issuance and posting of such additional traffic and parking directives 
as may be required, and such directives shall have the same force and 
effect as if made a part thereof.



Sec. 504.14  Weapons and explosives.

    No person while on the premises shall carry firearms, other 
dangerous or deadly weapons, or explosives, either openly or concealed, 
except for official purposes.



Sec. 504.15  Nondiscrimination.

    There shall be no discrimination by segregation or otherwise against 
any person or persons because of race, religion, color, or national 
origin in furnishing or by refusing to furnish to such person or persons 
the use of any facility of a public nature, including all services, 
privileges, accommodations, and activities provided thereby on the 
premises.



Sec. 504.16  Penalties.

    Section 6 of the Smithsonian Institution Special Policing Statute, 
Act of October 24, 1951, 65 Stat. 635, 40 U.S.C. 193(s) states that:

    Whoever violates any provision of sections 193o-193q of this Title, 
or any regulation prescribed under section 193r of this Title, shall be 
fined not more than $100 or imprisoned not more than sixty days, or 
both, prosecution for such offenses to be had in the District of 
Columbia Court of General Sessions, upon information by the U.S. 
attorney or any of his assistants: Provided, That in any case where, in 
the commission of such offense, property is damaged in an amount 
exceeding $100, the amount of the fine for the offense may be not more 
than $5,000, the period of imprisonment for the offense may be not more 
than 5 years and prosecution shall be had in the U.S. District Court for 
the District of Columbia by indictment, or if the defendant, after he 
has been advised of the nature of the charge and of his rights, waives 
in open court prosecution by indictment, by information by the U.S. 
attorney or any of his assistants.

[[Page 57]]



PART 520_RULES AND REGULATIONS GOVERNING THE BUILDINGS AND GROUNDS OF THE 

NATIONAL ZOOLOGICAL PARK OF THE SMITHSONIAN INSTITUTION--Table of Contents




Sec.
520.1 General.
520.2 Recording presence.
520.3 Preservation of property.
520.4 Protection of zoo animals.
520.5 Conformity with signs and emergency directions.
520.6 Nuisances.
520.7 Gambling.
520.8 Intoxicating beverages and narcotics.
520.9 Soliciting, vending, debt collection, and distribution of 
          handbills.
520.10 Placards, signs, banners, and flags.
520.11 Dogs and other animals.
520.12 Photographs for news, advertising, or commercial purposes.
520.13 Items to be checked.
520.14 Vehicular and pedestrian traffic.
520.15 Weapons and explosives.
520.16 Nondiscrimination.
520.17 Lost and found.
520.18 Penalties.

    Authority: Secs. 1-9, 65 Stat. 634, as amended, secs. 1-4, 78 Stat. 
365; 40 U.S.C. 193n-193w.

    Source: 33 FR 17175, Nov. 20, 1968, unless otherwise noted.



Sec. 520.1  General.

    The rules and regulations in this part apply to all buildings and 
grounds of the National Zoological Park of the Smithsonian Institution, 
as defined in sec. 3, 78 Stat. 366; 40 U.S.C. 193v(1)(B), and to all 
persons entering in or on such buildings and grounds, hereinafter 
referred to as the premises.



Sec. 520.2  Recording presence.

    Except as otherwise ordered, National Zoological Park buildings and 
grounds shall be closed to the public after posted visiting hours. Such 
buildings and grounds, or portions thereof, shall be also closed to the 
public in emergency situations and at such other times as may be 
necessary for the orderly conduct of business. Whenever the buildings 
and grounds or portions thereof are closed to the public for any reason, 
visitors will immediately leave the premises upon being requested by a 
police officer or other authorized individual. Admission to such 
premises during periods when closed to the public will be limited to 
authorized individuals who will be required to register and identify 
themselves when requested by police officers or other authorized 
individuals.



Sec. 520.3  Preservation of property.

    It is unlawful willfully to destroy, damage, or remove property or 
any part thereof. Any parcels, portfolios, bags, or containers of any 
kind may be required to be opened and the contents identified prior to 
removal from the premises. In order to remove any property from the 
premises, a properly completed property pass signed by an authorized 
official of the National Zoological Park may be required prior to 
removal.



Sec. 520.4  Protection of zoo animals.

    Except for official purposes, no person shall:
    (a) Kill, injure, or disturb any exhibit or research animal by any 
means except to secure personal safety;
    (b) Pet, attempt to pet, handle, move, or remove exhibit or research 
animals;
    (c) Feed exhibit or research animals, except in strict accordance 
with authorized signs;
    (d) Catch, attempt to catch, trap, remove, or kill any free roaming 
animals inhabiting the premises;
    (e) Go over, under, between, or otherwise cross any guardrail, 
fence, moat, wall, or any other safety barrier; or to seat, stand, or 
hold children over any of the above-mentioned barriers;
    (f) Throw or toss rocks, or any other missiles into, from, or while 
on premises;
    (g) Bring strollers, baby carriages, or other conveyances, except 
wheel chairs, into exhibit buildings and public restrooms;
    (h) Engage in ball games, or any athletic activity, except in places 
as may be officially designated for such purposes;
    (i) Smoke or carry lighted cigarettes, cigars, or pipes into exhibit 
buildings, or to have a fire of any kind on the premises; or
    (j) Damage, deface, pick, or remove any herb, shrub, bush, tree, or 
turf, or portion thereof, on the premises.

[[Page 58]]



Sec. 520.5  Conformity with signs and emergency directions.

    Persons in or on the premises shall comply with official signs of a 
prohibitory or directory nature and with the directions of authorized 
individuals.



Sec. 520.6  Nuisances.

    The use of loud, abusive, or otherwise improper language; 
unwarranted loitering, sleeping or assembly; the creation of any hazard 
to persons or things; improper disposal of rubbish; spitting; prurient 
prying; the commission of any obscene or indecent act, or any other 
unseemly or disorderly conduct on the premises; throwing articles of any 
kind on the premises, or climbing upon any part of the building is 
prohibited.



Sec. 520.7  Gambling.

    Participating in games for money or other personal property or the 
operation of gambling devices, the conduct of a lottery or pool, or the 
selling or purchasing of numbers tickets in or on the premises is 
prohibited.



Sec. 520.8  Intoxicating beverages and narcotics.

    Entering the premises or the operating of a motor vehicle thereon by 
a person under the influence of any intoxicating beverage or narcotic 
drug or the use of such drug in or on the premises is prohibited. 
Consumption of intoxicating beverages on the premises is prohibited, 
unless officially authorized.



Sec. 520.9  Soliciting, vending, debt collection, and distribution of 

handbills.

    The soliciting of alms and contributions, commercial soliciting and 
vending of all kinds, the display or distribution of commercial 
advertising or the collecting of private debts, in or on the premises is 
prohibited. This rule does not apply to national or local drives for 
funds for welfare, health, and other purposes sponsored or approved by 
the National Zoological Park, concessions, or personal notices posted by 
employees on authorized bulletin boards. Distribution of material such 
as pamphlets, handbills, and flyers is prohibited without prior approval 
of authorized individuals.



Sec. 520.10  Placards, signs, banners, and flags.

    The displaying or carrying of placards, signs, banners, or flags is 
prohibited unless officially authorized.



Sec. 520.11  Dogs and other animals.

    Dogs and other animals, except seeing-eye dogs, shall not be brought 
upon the premises for other than official purposes unless confined to 
automobiles.



Sec. 520.12  Photographs for news, advertising, or commercial purposes.

    No photographs for advertising or any other commercial purpose may 
be taken on the premises unless officially authorized.



Sec. 520.13  Items to be checked.

    Umbrellas, canes (not needed to assist in walking), or other objects 
capable of inflicting damage to property or exhibits may be required to 
be checked at the police station where checking facilities are provided.



Sec. 520.14  Vehicular and pedestrian traffic.

    (a) Drivers of all vehicles in or on the premises shall drive in a 
careful and safe manner at all times and shall comply with the signals 
and directions of the police and all posted traffic signs.
    (b) The blocking of entrances, driveways, walks, loading platforms, 
or fire hydrants in or on property is prohibited. Parking without 
authority, or parking in unauthorized locations or in locations reserved 
for other persons or contrary to the direction of posted signs, is 
prohibited. This paragraph may be supplemented from time to time by the 
issuance and posting of such additional traffic and parking directives 
as may be required, and such directives shall have the same force and 
effect as if made a part thereof.



Sec. 520.15  Weapons and explosives.

    No person while on the premises shall carry firearms, other 
dangerous or deadly weapons, or explosives, either openly or concealed, 
except for official purposes, nor shall any person discharge or set off 
any firework or explosive of any nature on the premises.

[[Page 59]]



Sec. 520.16  Nondiscrimination.

    There shall be no discrimination by segregation or otherwise against 
any person or persons because of race, religion, color, or national 
origin in furnishing or by refusing to furnish to such person or persons 
the use of any facility of a public nature, including all services, 
privileges, accommodations, and activities provided thereby on the 
premises.



Sec. 520.17  Lost and found.

    (a) Lost articles or money which are found in areas covered by this 
part shall be immediately referred to the police station. Proper records 
shall be kept at Police Headquarters of the receipt and disposition of 
such articles. If an article or money found on park areas and referred 
to Zoo Police Headquarters is not claimed by the owner within a period 
of 60 days, it shall be returned to the finder and appropriate receipt 
obtained; except that in the case of National Zoological Park employees, 
articles or money turned in which are not claimed by the owner within 60 
days shall be considered as abandoned to the Smithsonian Institution. 
Such articles or money shall be transferred to the Treasurer of the 
Smithsonian Institution, who shall make suitable disposition of articles 
and remit all proceeds of such disposition and all unclaimed money into 
the unrestricted funds of the Smithsonian Institution.
    (b) The abandonment of any personal property in any of the park 
areas is prohibited.



Sec. 520.18  Penalties.

    Section 6 of the Smithsonian Institution Special Policing Statute, 
Act of October 24, 1951, 65 Stat. 635, 40 U.S.C. 193 (s) states that:

    Whoever violates any provision of sections 193o-193q of this title, 
or any regulation prescribed under section 193r of this Title, shall be 
fined not more than $100 or imprisoned not more than 60 days, or both, 
prosecution for such offenses to be had in the District of Columbia 
Court of General Sessions, upon information by the United States 
attorney or any of his assistants: Provided, That in any case where, in 
the commission of such offense, property is damaged in an amount 
exceeding $100, the amount of the fine for the offense may be not more 
than $5,000, the period of imprisonment for the offense may be not more 
than 5 years and prosecution shall be had in the U.S. District Court for 
the District of Columbia by indictment, or if the defendant, after he 
has been advised of the nature of the charge and of his rights, waives 
in open court prosecution by indictment, by information by the U.S. 
attorney or any of his assistants.



PART 530_CLAIMS AGAINST THE SMITHSONIAN INSTITUTION INCLUDING THE NATIONAL 

GALLERY OF ART, THE JOHN F. KENNEDY CENTER FOR THE PERFORMING ARTS AND THE 

WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS--Table of Contents




    Authority: 20 U.S.C. 41, et seq.



Sec. 530.1  Tort claims.

    The Smithsonian Institution (which encompasses the National Gallery 
of Art, the John F. Kennedy Center for the Performing Arts and the 
Woodrow Wilson International Center for Scholars) falls within the 
purview of the Federal Tort Claims Act. Internal procedures for 
implementing the Act follow the current general guidance issued by the 
U.S. Department of Justice in 28 CFR part 14. Information on specific 
claims procedures can be obtained as follows:
    (a) Smithsonian Institution: Office of the General Counsel, 
Smithsonian Institution, Washington, DC 20560.
    (b) National Gallery of Art: Administrator, National Gallery of Art, 
Washington, DC 20565.
    (c) John F. Kennedy Center for the Performing Arts: Director of 
Operations, John F. Kennedy Center for the Performing Arts, Washington, 
DC 20566.
    (d) Woodrow Wilson International Center for Scholars: Assistant 
Director for Administration, Woodrow Wilson International Center for 
Scholars, Smithsonian Institution, Washington, DC 20560.

[49 FR 9421, Mar. 13, 1984]

                        PARTS 531-599 [RESERVED]

[[Page 61]]



                          CHAPTER VI [RESERVED]




                    CHAPTER VII--LIBRARY OF CONGRESS




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


  Editorial Note: The regulations in this chapter VII were formerly 
codified in 44 CFR chapter V.
Part                                                                Page
701             Procedures and services.....................          63
702             Conduct on Library premises.................          68
703             Disclosure or production of records or 
                    information.............................          73
704             National Film Registry of the Library of 
                    Congress................................          79
705             Reproduction, compilation, and distribution 
                    of news transmissions under the 
                    provisions of the American Television 
                    and Radio Archives Act..................          79
706-799         [Reserved]

[[Page 63]]



PART 701_PROCEDURES AND SERVICES--Table of Contents




Sec.
701.1 Information about the Library.
701.2 Acquisition of Library material by non-purchase means.
701.3 Methods of disposition of surplus and/or duplicate materials.
701.4 Contracting Officers.
701.5 Policy on authorized use of the Library name, seal, or logo.
701.6 Loans of library materials for blind and other physically 
          handicapped persons.

    Authority: 2 U.S.C. 136; 18 U.S.C. 1017.

    Source: 69 FR 39838, July 1, 2004, unless otherwise noted.



Sec. 701.1  Information about the Library.

    (a) Information about the Library. It is the Library's policy to 
furnish freely information about the Library to the media. All requests 
from the media, for other than generally published information and 
Library records, should be referred to the Public Affairs Office. For 
information about access to, service of, and employment with the Library 
of Congress, go to http://www.loc.gov.
    (b) Public Affairs Office. The Public Affairs Office shall have the 
principal responsibility for responding to requests for information 
about the Library from representatives of the media; giving advice to 
Library officers and staff members on public-relations and public-
information matters; keeping the Librarian and other officers informed 
of important developments in this field; and promoting the resources and 
activities of the Library.
    (1) During regular office hours (8:30 a.m. to 5 p.m.) telephone 
operators shall refer requests for information, from the media only, 
about the Library to the Public Affairs Office. All other requests for 
information shall be referred to the National Reference Service or other 
appropriate offices of the Library.
    (2) All other Library offices and staff members who receive 
inquiries directly from representatives of the media for information 
about the Library, other than generally published information, shall 
refer such inquiries to the Public Affairs Office.
    (3) The Public Affairs Office shall respond directly to inquiries 
concerning the Library, calling upon other offices to supply information 
to it as necessary, or shall arrange for other offices or staff members, 
as appropriate, to supply such information directly and report back to 
Public Affairs after the contact has been made. Requests for Library of 
Congress records, however, shall be made in accordance with 36 CFR part 
703.
    (4) When the Public Affairs Office is closed (evenings, Saturdays, 
Sundays, and holidays), requests from the media for information about 
the Library shall be referred to the Public Affairs Officer at his/her 
home. In the event that person is not available, inquiries shall be 
referred to the Acting Public Affairs Officer, or, in turn, a designated 
public affairs specialist.
    (c) Other Library Units and Staff Members. All Other Library Units 
and Staff Members shall be responsible for keeping the Public Affairs 
Office fully and promptly informed of contacts with the press, except in 
those instances of routine reference inquiries; supplying the Public 
Affairs Office with any data it requires in order to respond to 
inquiries from representatives of the media; and reporting promptly to 
the Public Affairs Office substantive contacts with media 
representatives about the Library and its policies or activities.



Sec. 701.2  Acquisition of Library material by non-purchase means.

    (a) Gifts. It is the policy of the Library of Congress to foster the 
enrichment of its collections through gifts of materials within the 
terms of the Library's acquisitions policies. In implementing this 
policy, division chiefs and other authorized officers of the Library may 
undertake, as representatives of the Library, preliminary negotiations 
for gifts to the Library. However, responsibility for formal acceptance 
of gifts of material and for approval of conditions of such gifts rests 
with The Librarian of Congress or his designee. The Chief, African/Asian 
Acquisitions and Overseas Operations Division, Chief, Anglo-American 
Acquisitions Division, and Chief, European and Latin American 
Acquisitions Division are responsible for routine gifts in the

[[Page 64]]

geographic areas covered by their divisions.
    (b) Deposits. (1) The Anglo-American Acquisitions Division is the 
only division in the Library authorized to make technical arrangements, 
formally negotiate for the transportation of materials and conditions of 
use at the Library, and prepare written Agreements of Deposit to 
formalize these negotiations. The term ``deposit'' is used to mean 
materials which are placed in the custody of the Library for general use 
on its premises, but which remain the property of their owners during 
the time of deposit and until such time as title in them may pass to the 
Library of Congress. A deposit becomes the permanent property of the 
Library when title to it is conveyed by gift or bequest. A deposit may 
be withdrawn by the owner rather than conveyed to the Library. A deposit 
shall be accompanied by a signed Agreement of Deposit.
    (2) It is the policy of the Library of Congress to accept certain 
individual items or special collections as deposits when: permanent 
acquisition of such materials cannot be effected immediately; the 
depositors give reasonable assurance of their intention to donate the 
materials deposited to the United States of America for the benefit of 
the Library of Congress; the Library of Congress determines that such 
ultimate transfer of title will enrich its collections; and the 
depositors agree that the materials so deposited may be available for 
unrestricted use or use in the Library under reasonable restrictions.
    (c) Conditional Gifts of Material to the Library. In cases where 
donors wish to attach conditions of use, negotiating officers cannot 
commit the Library to acceptance of such conditions. The Librarian of 
Congress or designee will consult the appropriate division and service 
unit officers and the General Counsel to ascertain whether the 
conditions are generally acceptable.



Sec. 701.3  Methods of disposition of surplus and/or duplicate materials.

    (a) Exchange. All libraries may make selections on an exchange basis 
from the materials available in the ``Exchange/Transfer'' category. The 
policy governing these selections is that exchange be made only when 
materials of approximately equal value are expected to be furnished in 
return within a reasonable period. Dealers also may negotiate exchanges 
of this type for items selected from available exchange materials, but 
surplus copyright deposit copies of works published after 1977 shall not 
knowingly be exchanged with dealers. Offers of exchange submitted by 
libraries shall be submitted to the Chief of the African/Asian 
Acquisitions and Overseas Operations Division, Anglo-American 
Acquisitions Division, or European/Latin American Acquisitions Division, 
or their designees, as appropriate, who shall establish the value of the 
material concerned. Offers from dealers shall be referred to the Chief 
of the Anglo-American Acquisitions Division. Exchange offers involving 
materials valued at $1,000 or more must be approved by the Acquisitions 
Division Chief; offers of $10,000 or more must be approved by the 
Director for Acquisitions and Support Services; and offers of $50,000 or 
more must be approved by the Associate Librarian for Library Services. 
The Library also explicitly reserves the right to suspend, for any 
period of time it deems appropriate, the selection privileges of any 
book dealer who fails to comply fully with any rules prescribed for the 
disposal of library materials under this section or any other pertinent 
regulations or statutes.
    (b) Transfer of materials to Government Agencies. Library materials 
no longer needed by the Library of Congress, including the exchange use 
mentioned above, shall be available for transfer to Federal agency 
libraries or to the District of Columbia Public Library, upon the 
request of appropriate officers of such entities, and may be selected 
from both the ``Exchange/Transfer'' and ``Donation'' categories. 
Existing arrangements for the transfer of materials, such as the 
automatic transfer of certain classes of books, etc., to specified 
Government libraries, shall be continued unless modified by the Library.
    (c) Donations of Library materials to educational institutions, 
public bodies, and nonprofit tax-exempt organizations in the United 
States. It is the Library's policy, in keeping with the Federal

[[Page 65]]

Property and Administrative Services Act of 1949, 40 U.S.C. 471 et seq., 
which does not cover the Library of Congress, to use materials no longer 
needed for any of the purposes mentioned above to strengthen the 
educational resources of the Nation by enriching the book collections of 
educational institutions (full-time, tax-supported or nonprofit schools, 
school systems, colleges, universities, museums, and public libraries), 
public bodies (agencies of local, State, or Federal Government), and 
nonprofit tax-exempt organizations (section 501 of the Internal Revenue 
Code of 1954, 26 U.S.C. 501, by authorizing the Anglo-American 
Acquisitions Division to donate to such groups in the United States any 
materials selected by their representatives. Eligibility to participate 
in the donation program shall be limited as defined by procedures 
established by the Anglo-American Acquisitions Division.
    (d) Disposition of residue. Library materials not needed for the 
collections of the Library, for its exchange and transfer programs, for 
sale, or for donation, and which, in the opinion of the Chief, Anglo-
American Acquisitions Division, have no commercial value, may be turned 
over to the General Services Administration (GSA) to be disposed of in 
accordance with standard Government practice.



Sec. 701.4  Contracting Officers.

    While the Librarian of Congress may sign any agreement, certain 
other offices of the Library have been delegated authority to contract 
for materials and services on behalf of the Library of Congress. Contact 
the Office of the General Counsel of the Library at 202-707-6316 for 
information on specific delegations.



Sec. 701.5  Policy on authorized use of the Library name, seal, or logo.

    (a) Purpose. The purpose of this part is three-fold:
    (1) To assure that the Library of Congress is properly and 
appropriately identified and credited as a source of materials in 
publications.
    (2) To assure that the name or logo of the Library of Congress, or 
any unit thereof, is used only with the prior approval of the Librarian 
of Congress or his designee; and
    (3) To assure that the seal of the Library of Congress is used only 
on official documents or publications of the Library.
    (b) Definitions. (1) For the purposes of this part, publication 
means any tangible expression of words or thoughts in any form or 
format, including print, sound recording, television, optical disc, 
software, online delivery, or other technology now known or hereinafter 
created. It includes the whole range of tangible products from simple 
signs, posters, pamphlets, and brochures to books, television 
productions, and movies.
    (2) Internal Library publication means a publication over which any 
unit of the Library has complete or substantial control or 
responsibility.
    (3) Cooperative publications are those in which the Library is a 
partner with the publisher by terms of a cooperative publishing 
agreement.
    (4) Commercial publications are those known or likely to involve 
subsequent mass distribution, whether by a for-profit or not-for-profit 
organization or individual, which involve a cooperative agreement. A 
commercial publication can also include a significant number of LC 
references and is also approved by the LC office that entered into a 
formal agreement. Noncommercial publications are those which are 
produced by non-commercial entities.
    (5) Internet sites are those on-line entities, both commercial and 
non-commercial, that have links to the Library's site.
    (6) Library logo refers to any official symbol of the Library or any 
entity thereof and includes any design officially approved by the 
Librarian of Congress for use by Library officials.
    (7) Seal refers to any statutorily recognized seal.
    (c) Credit and recognition policy. (1) The name ``Library of 
Congress,'' or any abbreviation or subset such as ``Copyright Office'' 
or ``Congressional Research Service,'' thereof, is used officially to 
represent the Library of Congress and its programs, projects, functions, 
activities, or elements thereof. The use of the Library's name, 
explicitly or implicitly to endorse a product

[[Page 66]]

or service, or materials in any publication is prohibited, except as 
provided for in this part.
    (2) The Library of Congress seal symbolizes the Library's authority 
and standing as an official agency of the U.S. Government. As such, it 
shall be displayed only on official documents or publications of the 
Library. The seal of the Library of Congress Trust Fund Board shall be 
affixed to documents of that body as prescribed by the Librarian of 
Congress. The seal of the National Film Preservation Board shall be 
affixed to documents of that body as prescribed by the Librarian of 
Congress. Procedures governing the use of any Library of Congress logo 
or symbol are set out below. Any person or organization that uses the 
Library Seal or the Seal of the Library of Congress Trust Fund Board in 
a manner other than as authorized by the provisions of this section 
shall be subject to the criminal provisions of 18 U.S.C. 1017.
    (3) Questions regarding the appropriateness of the use of any 
Library logos or symbols, or the use of the Library's name, shall be 
referred to the Public Affairs Officer.
    (4) Cooperative Ventures. (i) Individual, commercial enterprises or 
non-commercial entities with whom the Library has a cooperative 
agreement to engage in cooperative efforts shall be instructed regarding 
Library policy on credit, recognition, and endorsement by the officer or 
manager with whom they are dealing.
    (ii) Ordinarily, the Library logo should appear in an appropriate 
and suitable location on all cooperative publications. The Library 
requires that a credit line accompany reproductions of images from its 
collections and reflect the nature of the relationship such as 
``published in association with * * *.''
    (iii) The size, location, and other attributes of the logo and 
credit line should be positioned in such a way that they do not imply 
Library endorsement of the publication unless such endorsement is 
expressly intended by the Library, as would be the case in cooperative 
activities. Use of the Library name or logo in any context suggesting an 
explicit or implicit endorsement may be approved in only those instances 
where the Library has sufficient control over the publication to make 
changes necessary to reflect Library expertise.
    (iv) Library officers working on cooperative projects shall notify 
all collaborators of Library policy in writing if the collaboration is 
arranged through an exchange of correspondence. All uses of the Library 
of Congress's name, seal or logo on promotional materials must be 
approved by the Public Affairs Officer, in consultation with the Office 
of the General Counsel, in advance. A statement of Library policy shall 
be incorporated into the agreement if the terms of the collaboration are 
embodied in any written instrument, such as a contract or letter of 
understanding. The statement could read as follows:

    Name of partner recognizes the great value, prestige and goodwill 
associated with the name, ``Library of Congress'' and any logo 
pertaining thereto. Name of partner agrees not to knowingly harm, 
misuse, or bring into disrepute the name or logo of the Library of 
Congress, and further to assist the Library, as it may reasonably 
request, in preserving all rights, integrity and dignity associated with 
its name. Subject to the Library's prior written approval over all 
aspects of the use and presentation of the Library's name and logo, the 
Name of Partner may use the name of the Library of Congress in 
connection with publication, distribution, packaging, advertising, 
publicity and promotion of the ------------, produced as a result of 
this Agreement. The Library will have fifteen (15) business days from 
receipt of Name of partner's written request to approve or deny with 
comment such requests for use of its name or logo.

    (d) Noncommercial Users. Library officers assisting individuals who 
are noncommercial users of Library resources shall encourage them to 
extend the customary professional courtesy of acknowledging their 
sources in publications, including films, television, and radio, and to 
use approved credit lines.
    (1) Each product acquired for resale by the Library that involves 
new labeling or packaging shall bear a Library logo and shall contain 
information describing the relevance of the item to the Library or its 
collections. Items not involving new packaging shall be accompanied by a 
printed description of the Library and its mission, with Library logo, 
as well as the rationale for

[[Page 67]]

operating a gift shop program in a statement such as, ``Proceeds from 
gift shop sales are used to support the Library collections and to 
further the Library's educational mission.''
    (2) Electronic Users. Links to other sites from the Library of 
Congress's site should adhere to the Appropriate Use Policy for External 
Linking in the Internet Policies and Procedures Handbook. Requests for 
such linkage must be submitted to the Public Affairs Office for review 
and approval.
    (3) Office Systems Services shall make available copies of the 
Library seal or logo in a variety of sizes and formats, including 
digital versions, if use has been approved by the Public Affairs 
Officer, in consultation with the Office of General Counsel.
    (4) Each service unit head shall be responsible for devising the 
most appropriate way to carry out and enforce this policy in 
consultation with the General Counsel and the Public Affairs Officer.
    (e) Prohibitions and Enforcement. (1) All violations, or suspected 
violations, of this part, shall be reported to the Office of the General 
Counsel as soon as they become known. Whoever, except as permitted by 
laws of the U.S., or with the written permission of the Librarian of 
Congress or his designee, falsely advertises or otherwise represents by 
any device whatsoever that his or its business, product, or service has 
been in any way endorsed, authorized, or approved by the Library of 
Congress shall be subject to criminal penalties pursuant to law.
    (2) Whenever the General Counsel has determined that any person or 
organization is engaged in or about to engage in an act or practice that 
constitutes or will constitute conduct prohibited by this part or a 
violation of any requirement of this part, the General Counsel shall 
take whatever steps are necessary, including seeking the assistance of 
the U.S. Department of Justice, to enforce the provisions of the 
applicable statutes and to seek all means of redress authorized by law, 
including both civil and criminal penalties.



Sec. 701.6  Loans of library materials for blind and other physically 

handicapped persons.

    (a) Program. In connection with the Library's program of service 
under the Act of March 3, 1931 (46 Stat. 1487), as amended, its National 
Library Service for the Blind and Physically Handicapped provides books 
in raised characters (braille), on sound reproduction recordings, or in 
any other form, under regulations established by the Library of 
Congress. The National Library Service also provides and maintains 
reproducers for such sound reproduction recordings for the use of blind 
and other physically handicapped residents of the United States, 
including the several States, Territories, Insular Possessions, and the 
District of Columbia, and American citizens temporarily domiciled 
abroad.
    (b) Eligibility criteria. (1) The following persons are eligible for 
such service:
    (i) Blind persons whose visual acuity, as determined by competent 
authority, is 20/200 or less in the better eye with correcting glasses, 
or whose wide diameter if visual field subtends an angular distance no 
greater than 20 degrees.
    (ii) Persons whose visual disability, with correction and regardless 
of optical measurement, is certified by competent authority as 
preventing the reading of standard printed material.
    (iii) Persons certified by competent authority as unable to read or 
unable to use standard printed material as a result of physical 
limitations.
    (iv) Persons certified by competent authority as having a reading 
disability resulting from organic dysfunction and of sufficient severity 
to prevent their reading printed material in a normal manner.
    (2) In connection with eligibility for loan services ``competent 
authority'' is defined as follows:
    (i) In cases of blindness, visual disability, or physical 
limitations ``competent authority'' is defined to include doctors of 
medicine, doctors of osteopathy, ophthalmologist, optometrists, 
registered nurses, therapists, professional staff of hospitals, 
institutions, and public or welfare agencies (e.g., social workers, case 
workers, counselors,

[[Page 68]]

rehabilitation teachers, and superintendents). In the absence of any of 
these, certification may be made by professional librarians or by any 
persons whose competence under specific circumstances is acceptable to 
the Library of Congress.
    (ii) In the case of reading disability from organic dysfunction, 
competent authority is defined as doctors of medicine who may consult 
with colleagues in associated disciplines.
    (c) Loans through regional libraries. Sound reproducers are lent to 
individuals and appropriate centers through agencies, libraries, and 
other organizations designated by the Librarian of Congress to service 
specific geographic areas, to certify eligibility of prospective 
readers, and to arrange for maintenance and repair of reproducers. 
Libraries designated by the Librarian of Congress serve as local or 
regional centers for the direct loan of such books, reproducers, or 
other specialized material to eligible readers in specific geographic 
areas. They share in the certification of prospective readers, and 
utilize all available channels of communication to acquaint the public 
within their jurisdiction with all aspects of the program.
    (d) National collections. The Librarian of Congress, through the 
National Library Service for the Blind and Physically Handicapped, 
defines regions and determines the need for new regional libraries in 
cooperation with other libraries or agencies whose activities are 
primarily concerned with the blind and physically handicapped. It serves 
as the center from which books, recordings, sound reproducers, and other 
specialized materials are lent to eligible blind and physically 
handicapped readers who may be temporarily domiciled outside the 
jurisdictions enumerated by the Act. It maintains a special collection 
of books in raised characters and on sound reproduction recordings not 
housed in regional libraries and makes these materials available to 
eligible borrowers on interlibrary loan.
    (e) Institutions. The reading materials and sound reproducers for 
the use of blind and physically handicapped persons may be loaned to 
individuals who qualify, to institutions such as nursing homes and 
hospitals, and to schools for the blind and physically handicapped for 
the use of such persons only. The reading materials and sound 
reproducers may also be used in public or private schools where 
handicapped students are enrolled; however, the students in public or 
private schools must be certified as eligible on an individual basis and 
must be the direct and only recipients of the materials and equipment.
    (f) Musical scores. The National Library Service also maintains a 
library of musical scores, instructional texts, and other specialized 
materials for the use of the blind and other physically handicapped 
residents of the United States and its possessions in furthering their 
educational, vocational, and cultural opportunities in the field of 
music. Such scores, texts, and materials are made available on a loan 
basis under regulations developed by the Librarian of Congress in 
consultation with persons, organizations, and agencies engaged in work 
for the blind and for other physically handicapped persons.
    (g) Veterans. In the lending of such books, recordings, reproducers, 
musical scores, instructional texts, and other specialized materials, 
preference shall be at all times given to the needs of the blind and 
other physically handicapped persons who have been honorably discharged 
from the Armed Forces of the United States.
    (h) Inquiries for information relative to the prescribed procedures 
and regulations governing such loans and requests for loans should be 
addressed to Director, National Library Service for the Blind and 
Physically Handicapped, Library of Congress, Washington, DC 20542 or 
visit our Web site at http://www.loc.gov/nls.

[70 FR 36843, June 27, 2005]



PART 702_CONDUCT ON LIBRARY PREMISES--Table of Contents




Sec.
702.1 Applicability.
702.2 Conduct on Library premises.
702.3 Demonstrations.
702.4 Photographs.
702.5 Gambling.
702.6 Alcoholic beverages and controlled substances.

[[Page 69]]

702.7 Weapons and explosives.
702.8 Use and carrying of food and beverages in Library buildings.
702.9 Inspection of property.
702.10 Protection of property.
702.11 Smoking in Library buildings.
702.12 Space for meetings and special events.
702.13 Soliciting, vending, debt collection, and distribution of 
          handbills.
702.14 Penalties.

    Authority: Sec. 1, 29 Stat. 544; 2 U.S.C. 136.

    Source: 69 FR 39840, July 1, 2004, unless otherwise noted.



Sec. 702.1  Applicability.

    The rules and regulations in this part apply to all Federal property 
under the charge and control of the Librarian of Congress and to all 
persons entering in or on such property.



Sec. 702.2  Conduct on Library premises.

    (a) All persons using the premises shall conduct themselves in such 
manner as not to affect detrimentally the peace, tranquility, and good 
order of the Library. Such persons shall:
    (1) Use areas that are open to them only at the times those areas 
are open to them and only for the purposes for which those areas are 
intended;
    (2) Comply with any lawful order of the police or of other 
authorized individuals; and
    (3) Comply with official signs of a restrictive or directory nature.
    (b) All persons using the premises shall refrain from:
    (1) Creating any hazard to oneself or another person or property, 
such as by tampering with fire detection and/or security equipment and 
devices, by fighting, by starting fires, or by throwing or deliberately 
dropping any breakable article, such as glass, pottery, or any sharp 
article, or stones or other missiles;
    (2) Using Library facilities for living accommodation purposes, such 
as unauthorized bathing, sleeping, or storage of personal belongings, 
regardless of the specific intent of the individual;
    (3) Engaging in inordinately loud or noisy activities;
    (4) Disposing of rubbish other than in receptacles provided for that 
purpose;
    (5) Throwing articles of any kind from or at a Library building or 
appurtenance;
    (6) Committing any obscene or indecent act such as prurient prying, 
indecent exposure, and soliciting for illegal purposes;
    (7) Removing, defacing, damaging, or in any other way so misusing a 
statue, seat, wall, fountain, or other architectural feature or any 
tree, shrub, plant, or turf;
    (8) Stepping upon or climbing upon any statue, fountain, or other 
ornamental architectural feature or any tree, shrub, or plant;
    (9) Bathing, wading, or swimming in any fountain;
    (10) Painting, marking or writing on, or posting or otherwise 
affixing any handbill or sign upon any part of a Library building or 
appurtenance, except on bulletin boards installed for that purpose and 
with the appropriate authorization;
    (11) Bringing any animal onto Library buildings and turf other than 
dogs trained to assist hearing or visually impaired persons;
    (12) Threatening the physical well-being of an individual; and
    (13) Unreasonably obstructing reading rooms, food service 
facilities, entrances, foyers, lobbies, corridors, offices, elevators, 
stairways, or parking lots in such manner as to impede or disrupt the 
performance of official duties by the Library staff or to prevent 
Library patrons from using or viewing the collections.
    (c) Public reading rooms, research facilities, and catalog rooms are 
designated as nonpublic forums. As such, they shall be used only for 
quiet scholarly research or educational purposes requiring use of 
Library materials. All persons using these areas shall comply with the 
rules in effect in the various public reading rooms, shall avoid 
disturbing other readers, and shall refrain from engaging in disruptive 
behavior, including but not limited to (1) Eating, drinking, or smoking 
in areas where these activities are expressly prohibited;
    (2) Using loud language or making disruptive noises;
    (3) Using any musical instrument or device, loudspeaker, sound 
amplifier, or other similar machine or device for the production or 
reproduction of

[[Page 70]]

sound, except for devices to assist hearing or visually impaired 
persons, without authorization;
    (4) Interfering by offensive personal hygiene with the use of the 
area by other persons;
    (5) Spitting, defecating, urinating, or similar disruptive 
activities;
    (6) Intentionally abusing the furniture or furnishings in the area;
    (7) Intentionally damaging any item from the collections of the 
Library of Congress or any item of Library property;
    (8) Using computing terminals for purposes other than searching or 
training persons to search the Library's data bases or those under 
contract to the Library, or misusing the terminals by intentional 
improper or obstructive searching; and
    (9) Using the Library's photocopy machines or microfilm reader-
printers for purposes other than copying Library materials, for copying 
that violates the copyright law (Title 17 U.S.C.), or for copying in 
violation of posted usage restrictions, e.g., ``staff only.''
    (10) Performing any other inappropriate or illegal act, such as 
accessing or showing child pornography, online or otherwise on Library 
premises; and
    (11) failing to wear appropriate clothing in Library facilities, 
including, but not limited to, footwear (shoes or sandals) and shirts.
    (12) any behavior or interaction by a member of the public that 
unnecessarily hinders staff from performing the Library's public service 
functions.



Sec. 702.3  Demonstrations.

    (a) Library buildings and grounds are designated as limited public 
forums, except for those areas designated as nonpublic forums. However, 
only Library grounds (defined in 2 U.S.C. 167j), not buildings, may be 
utilized for demonstrations, including assembling, marching, picketing, 
or rallying. In addition, as the need for the determination of other 
matters arises, the Librarian will determine what additional First 
Amendment activities may not be permitted in a limited public forum. In 
making such determination, The Librarian will consider only whether the 
intended activity is incompatible with the primary purpose and intended 
use of that area.
    (b) The Director, Integrated Support Services, shall designate 
certain Library grounds as available for demonstrations. Persons seeking 
to use such designated areas for the purpose of demonstrations shall 
first secure written permission from the Director, Integrated Support 
Services. An application for such permission shall be filed with 
Facility Services no later than four business days before the time of 
the proposed demonstration and shall include:
    (1) The name of the organization(s) or sponsor(s) of the 
demonstration;
    (2) The contact person's name and telephone number;
    (3) The proposed purpose of the demonstration;
    (4) The proposed location of the demonstration;
    (5) The date and hour(s) planned for the demonstration;
    (6) The anticipated number of demonstrators;
    (7) A concise statement detailing arrangements for the prompt 
cleanup of the site after the demonstration;
    (8) Any request for permission to use loudspeakers, microphones, or 
other amplifying devices, hand held or otherwise; and
    (9) A signed agreement by the applicant(s) to comply with Library 
regulations and terms and conditions established for the demonstration.
    (c) Upon receipt of an application, Facility Services shall forward 
the application, along with any comments and recommendations, to the 
Director, Integrated Support Services, within one business day of the 
office's receipt of said application. The Director, Integrated Support 
Services, shall respond to the request within three business days of his 
or her receipt of said application. The Director, Integrated Support 
Services, shall request advice from the Office of the General Counsel on 
any legal questions arising from said application.
    (d) Permission to demonstrate shall be based upon:
    (1) The availability of the requested location;

[[Page 71]]

    (2) The likelihood that the demonstration will not interfere with 
Library operations or exceed city noise limitations as defined by 
District of Columbia regulations; and
    (3) The likelihood that the demonstration will proceed peacefully in 
the event that a volatile situation in the United States or abroad might 
lead to a potentially harmful threat toward the Capitol complex, 
including Library buildings and grounds.



Sec. 702.4  Photographs.

    (a) The policy set out herein applies to all individuals who are 
photographing Library of Congress buildings.
    (b) Special permission is not required for photographing public 
areas, if no tripods, lights or other specialized equipment is used. 
Public areas do not include reading rooms, exhibition areas or other 
areas where photographing is prohibited by signage.
    (c) For all other photographing, requests for permission must be 
made at least one week prior to the photographing. The Director of 
Communications, or his/her designee, is authorized to grant or deny 
permission, in writing, to photograph the interior of Library buildings 
and may set the conditions under which the photographing may take place. 
Such conditions may include provision for a fee for services rendered 
consistent with the Library's policies and procedures for the revolving 
fund under 2 U.S.C. 182b.



Sec. 702.5  Gambling.

    Participation in any illegal gambling, such as the operation of 
gambling devices, the conduct of an illegal pool or lottery, or the 
unauthorized sale or purchase of numbers or lottery tickets, on the 
premises is prohibited.



Sec. 702.6  Alcoholic beverages and controlled substances.

    (a) The use of alcoholic beverages on the premises is prohibited 
except on official occasions for which advance written approval has been 
given and except for concessionaires to whom Library management has 
granted permission to sell alcoholic beverages on the premises.
    (b) The illegal use or possession of controlled substances on the 
premises is prohibited.



Sec. 702.7  Weapons and explosives.

    Except where duly authorized by law, and in the performance of law 
enforcement functions, no person shall carry firearms, other dangerous 
or deadly weapons, or explosives, either openly or concealed, while on 
the premises.



Sec. 702.8  Use and carrying of food and beverages in Library buildings.

    Consumption of food and beverages in Library buildings is prohibited 
except at point of purchase or other authorized eating places. Under no 
circumstances may food or beverages be carried to the bookstacks or 
other areas where there exists significant risk to Library materials or 
property or where there may result a detraction from the dignity or 
efficiency of public service.



Sec. 702.9  Inspection of property.

    (a) Individuals entering Library buildings do so with the 
understanding that all property in their possession including, but not 
limited to, suitcases, briefcases, large envelopes, packages, and office 
equipment may be inspected.
    (b) Upon entering the Library buildings privately owned office 
machines including but not limited to typewriters, computing machines, 
stenotype machines, and dictating machines, shall be registered with the 
police officer at the entrance to buildings for the purpose of 
controlling such equipment.
    (c) In the discharge of official duties, Library officials are 
authorized to inspect Government-owned or furnished property assigned to 
readers and the general public for their use, such as cabinets, lockers, 
and desks. Unauthorized property or contraband found in the possession 
of members of the Library staff, readers, or the general public as a 
result of such inspections will be subject to confiscation by Library 
officials.



Sec. 702.10  Protection of property.

    (a) Any person who shall steal, wrongfully deface, injure, mutilate, 
tear, or destroy library materials, or

[[Page 72]]

any portion thereof, shall be punished by a fine of not more than $1,000 
or imprisoned not more than 3 years, or both (18 U.S.C. 641; 18 U.S.C. 
1361; 18 U.S.C. 2071).
    (b) Any person who embezzles, steals, purloins, or, without 
authority, disposes of anything of value of the United States, or 
willfully injures or commits any depredation against any Government 
property shall be punished by a fine of not more than $10,000 or 
imprisoned not more than 10 years, or both; but if the value of such 
property does not exceed the sum of $100, he shall be fined not more 
than $1,000 or imprisoned not more than 1 year, or both. (18 U.S.C. 641; 
18 U.S.C. 1361.)



Sec. 702.11  Smoking in Library buildings.

    Smoking in Library areas is prohibited except in those areas 
specifically designated for this purpose.



Sec. 702.12  Space for meetings and special events.

    Information about the use of space for meeting and special events at 
the Library can be found at http://www.loc.gov/about/facilities/
index.html, or by accessing the Library's home page at http://
www.loc.gov and following the link ``About the Library'' to ``Event 
Facilities.''



Sec. 702.13  Soliciting, vending, debt collection, and distribution of 

handbills.

    (a) The soliciting of alms and contributions, commercial soliciting 
and vending of all kinds, the display or distribution of commercial 
advertising, the offering or exposing of any article for sale, or the 
collecting of private debts on the grounds or within the buildings of 
the Library is prohibited. This rule does not apply to national or local 
drives for funds for welfare, health, or other purposes sponsored or 
approved by The Librarian of Congress, nor does it apply to authorized 
concessions, vending devices in approved areas, or as specifically 
approved by the Librarian or designee.
    (b) Distribution of material such as pamphlets, handbills, and 
flyers is prohibited without prior approval.
    (c) Peddlers and solicitors will not be permitted to enter Library 
buildings unless they have a specific appointment, and they will not be 
permitted to canvass Library buildings.



Sec. 702.14  Penalties.

    (a) Persons violating provisions of 2 U.S.C. 167a to 167e, 
inclusive, regulations promulgated pursuant to 2 U.S.C. 167f, this part 
702, or other applicable Federal laws relating to the Library's 
property, including its collections, are subject to removal from the 
premises, to arrest, and to any additional penalties prescribed by law.
    (b) Upon written notification by the Director of Security, 
disruptive persons may be denied further access to the premises and may 
be prohibited from further use of the Library's facilities.
    (1) Within three workdays of receipt of such notification, an 
affected individual may make a written request, including the reasons 
for such a request, to the Director of Security for a reconsideration of 
said notification.
    (2) The Director of Security shall respond within three workdays of 
receipt of such request for reconsideration and may, at his or her 
option, rescind, modify, or reaffirm said notification.
    (c) Readers who violate established conditions and/or procedures for 
using material are subject to penalties to be determined by or in 
consultation with the unit head responsible for the custody of the 
material used.
    (1) When a reader violates a condition and/or procedure for using 
material, the division chief or head of the unit where the infraction 
occurred may, upon written notification, deny further access to the 
material, or to the unit in which it is housed, to be determined by the 
nature of the infraction and the material involved.
    (2) Within five workdays of receipt of such notification, the reader 
may make a written request, including the reasons for such request to 
the Associate Librarian for that service unit, or his/her designee, for 
a reconsideration of said notification.
    (3) The Associate Librarian for that service unit, or his/her 
designee, shall respond within five workdays of receipt of such request 
for reconsideration and may rescind, modify, or reaffirm said 
notification, as appropriate.

[[Page 73]]

    (4) Repeated violations of established conditions and/or procedures 
for using material may result in denial of further access to the 
premises and further use of the Library's facilities or revocation of 
the reader's User Card, in accordance with established access 
regulations.
    (5) Mutilation or theft of Library property also may result in 
criminal prosecution, as set forth in 18 U.S.C. 641, 1361, and 2071; and 
22 D.C. Code 3106.
    (6) In certain emergency situations requiring prompt action, the 
division chief or head of the unit where the infraction occurred may 
immediately deny further access to the material or unit prior to 
formally taking written action. In such cases, the reader shall be 
notified, in writing, within three days of the action taken and the 
reasons therefor. The reader then may request reconsideration.
    (7) A copy of any written notification delivered pursuant to this 
part shall be forwarded to the Captain, Library Police, the service 
unit, and the Director, Integrated Support Services, for retention.



PART 703_DISCLOSURE OR PRODUCTION OF RECORDS OR INFORMATION--Table of Contents




          Subpart A_Availability of Library of Congress Records

Sec.
703.1 Purpose and scope of this subpart.
703.2 Policy.
703.3 Administration responsibilities.
703.4 Definitions.
703.5 Records exempt from disclosure.
703.6 Procedures for access to and copying of records.
703.7 Public reading facility.
703.8 Fees and charges.

Appendix A to Subpart A--Fees and Charges for Services Provided to 
          Requestors of Record

Subpart B_Testimony by Employees and Production of Documents in Certain 
           Legal Proceedings Where the Library Is Not a Party

703.15 Purpose and scope of this subpart.
703.16 Policy on presentation of testimony and production of documents.
703.17 Procedures when testimony and/or documents are demanded.
703.18 Procedures when an employee's appearance is demanded or documents 
          are demanded.
703.19 Requests for authenticated copies of Library documents.
703.20 File copies.
703.21 Effect of this part.
703.22 Where to serve demands.

    Authority: 2 U.S.C. 136.

    Source: 67 FR 16019, Apr. 4, 2002, unless otherwise noted.



          Subpart A_Availability of Library of Congress Records



Sec. 703.1  Purpose and scope of this subpart.

    (a) This subpart implements the policy of the Library with respect 
to the public availability of Library of Congress records. Although the 
Library is not subject to the Freedom of Information Act, as amended (5 
U.S.C. 552), this subpart follows the spirit of that Act consistent with 
the Library's duties, functions, and responsibilities to the Congress. 
The application of that Act to the Library is not to be inferred, nor 
should this subpart be considered as conferring on any member of the 
public a right under that Act of access to or information from the 
records of the Library. Nothing in this subpart modifies current 
instructions and practices in the Library with respect to handling 
Congressional correspondence.
    (b) The Copyright Office, although a service unit of the Library, is 
by law (17 U.S.C. 701) subject to the provisions of the Freedom of 
Information Act, as amended, only for purposes of actions taken under 
the copyright law. The Copyright Office has published its own regulation 
with respect to the general availability of information (see 37 CFR 
201.2) and requests for copyright records made pursuant to the Freedom 
of Information Act (see 37 CFR 203.1 et seq.) and the Privacy Act (see 
37 CFR 204.1 et seq.).



Sec. 703.2  Policy.

    (a) Subject to limitations set out in this part, Library of Congress 
records shall be available as hereinafter provided and shall be 
furnished as promptly as possible within the Library to

[[Page 74]]

any member of the public at appropriate places and times and for an 
appropriate fee, if any.
    (b) The Library shall not provide records from its files that 
originate in another federal agency or non-federal organization to 
persons who may not be entitled to obtain the records from the 
originator. In such instances, the Library shall refer requesters to the 
agency or organization that originated the records.
    (c) In order to avoid disruption of work in progress, and in the 
interests of fairness to those who might be adversely affected by the 
release of information which has not been fully reviewed to assure its 
accuracy and completeness, it is the policy of the Library not to 
provide records which are part of on-going reviews or other current 
projects. In response to such requests, the Library will inform the 
requester of the estimated completion date of the review or project so 
that the requester may then ask for the records. At that time, the 
Library may release the records unless the same are exempt from 
disclosure as identified in Sec. 703.5.



Sec. 703.3  Administration responsibilities.

    The administration of this part shall be the responsibility of the 
Chief, Office Systems Services (OSS), Library of Congress, 101 
Independence Avenue, SE., Washington, DC 20540-9440, and to that end, 
the Chief may promulgate such supplemental rules or guidelines as may be 
necessary.



Sec. 703.4  Definitions.

    (a) Records includes all books, papers, maps, photographs, reports, 
and other documentary materials, exclusive of materials in the Library's 
collections, regardless of physical form or characteristics, made or 
received and under the control of the Library in pursuance of law or in 
connection with the transaction of public business, and retained, or 
appropriate for retention, by the Library as evidence of the 
organization, functions, policies, decisions, procedures, operations, or 
other activities of the government or because of the informational value 
of data contained therein. The term refers only to such items in being 
and under the control of the Library. It does not include the compiling 
or procuring of a record, nor does the term include objects or articles, 
such as furniture, paintings, sculpture, three-dimensional models, 
structures, vehicles, and equipment.
    (b) Identifiable means a reasonably specific description of a 
particular record sought, such as the date of the record, subject 
matter, agency or person involved, etc. which will permit location or 
retrieval of the record.
    (c) Records available to the public means records which may be 
examined or copied or of which copies may be obtained, in accordance 
with this part, by the public or representatives of the press regardless 
of interest and without specific justification.
    (d) Disclose or disclosure means making available for examination or 
copying, or furnishing a copy.
    (e) Person includes an individual, partnership, corporation, 
association, or public or private organization other than a federal 
agency.



Sec. 703.5  Records exempt from disclosure.

    (a) The public disclosure of Library records provided for by this 
part does not apply to records, or any parts thereof, within any of the 
categories set out below. Unless precluded by law, the Chief, OSS, 
nevertheless may release records within these categories, except for 
Congressional correspondence and other materials identified in Sec. 
703.5(b)(1), after first consulting with the General Counsel.
    (b) Records exempt from disclosure under this part are the 
following:
    (1) Congressional correspondence and other materials relating to 
work performed in response to or in anticipation of Congressional 
requests, unless authorized for release by officials of the Congress.
    (2) Materials specifically authorized under criteria established by 
Executive Order to be withheld from public disclosure in the interest of 
national defense or foreign policy and that are properly classified 
pursuant to Executive Orders.
    (3) Records related solely to the internal personnel rules and 
practices of the Library. This category includes, in

[[Page 75]]

addition to internal matters of personnel administration, internal rules 
and practices which cannot be disclosed without prejudice to the 
effective performance of a Library function, such as guidelines and 
procedures used by auditors, investigators, or examiners in the Office 
of the Inspector General.
    (4) Records specifically exempted from disclosure by statute, 
provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    (5) Records containing trade secrets and commercial or financial 
information obtained from a person as privileged or confidential. This 
exemption may include, but is not limited to, business sales statistics, 
inventories, customer lists, scientific or manufacturing processes or 
development information.
    (6) Personnel and medical files and similar files the disclosure of 
which could constitute a clearly unwarranted invasion of personal 
privacy. This exemption includes all private or personal information 
contained in files compiled to evaluate candidates for security 
clearances.
    (7) Materials and information contained in investigative or other 
records compiled for law enforcement purposes.
    (8) Materials and information contained in files prepared in 
connection with government litigation and adjudicative proceedings, 
except for those portions of such files which are available by law to 
persons in litigation with the Library.
    (9) Records having information contained in or related to 
examination, operation, or condition reports prepared by, on behalf of, 
or for the use of an agency responsible for the regulation or 
supervision of financial institutions.
    (10) Inter-agency or intra-agency memoranda, letters or other 
materials that are part of the deliberative process, the premature 
disclosure of which would inhibit internal communications or be 
detrimental to a Library function (e.g., case files in the Manuscript 
Division).
    (11) Records containing information customarily subject to 
protection as privileged in a court or other proceedings such as 
information protected by the doctor-patient, attorney work product, or 
attorney-client privilege.
    (12) Information submitted by a person to the Library in confidence 
or which the Library has obligated itself not to disclose such as 
information received by the Office of the Inspector General through its 
hotline.
    (13) Materials related to specific patron use of the Library's 
collections, resources, or facilities either on site or off site. This 
exemption includes:
    (i) Reader Records. Library records which identify readers by name, 
such as registration records, reading room logs or registers, telephone 
inquiry logs, and charge slips, if retained for administrative purposes.
    (ii) Use Records. Users of the Library are entitled to privacy with 
respect to their presence and use of the Library's facilities and 
resources. Records pertaining to the use of the Library and of Library 
collections and subjects of inquiry are confidential and are not to be 
disclosed either to other readers, to members of the staff who are not 
authorized, or to other inquirers including officials of law 
enforcement, intelligence, or investigative agencies, except pursuant to 
court order or administratively by order of the Librarian of Congress.
    (c) Any reasonably segregable portion of a record shall be provided 
to anyone requesting such records after deletion of the portions which 
are exempt under this section. A portion of a record shall be considered 
reasonably segregable when segregation can produce an intelligible 
record which is not distorted out of context, does not contradict the 
record being withheld, and can reasonably provide all relevant 
information.



Sec. 703.6  Procedure for access to and copying of records.

    (a) A request to inspect or obtain a copy of an identifiable record 
of the Library of Congress shall be submitted in writing to the Chief, 
OSS, Library of Congress, 101 Independence Avenue,

[[Page 76]]

SE., Washington, DC 20540-9440, who shall promptly record and process 
the request.
    (b) Requests for records shall be specific and shall identify the 
precise records or materials that are desired by name, date, number, or 
other identifying data sufficient to allow the OSS staff to locate, 
retrieve, and prepare the record for inspection or copying and to delete 
exempted matter where appropriate to do so. Blanket or generalized 
requests (such as ``all matters relating to'' a general subject) shall 
not be honored and shall be returned to the requester.
    (c) Records shall be available for inspection and copying in person 
during business hours.
    (d) Records in media other than print (e.g., microforms and machine-
readable media) shall be available for inspection in the medium in which 
they exist. Copies of records in machine-readable media shall be made in 
media determined by the Chief, OSS.
    (e) Library staff shall respond to requests with reasonable 
dispatch. Use of a record by the Library or Library employees, however, 
shall take precedence over any request. Under no circumstances shall 
official records be removed from Library control without the written 
authorization of the Librarian.
    (f) The Chief, OSS, shall make the initial determination on whether:
    (1) The record described in a request can be identified and located 
pursuant to a reasonable search, and
    (2) The record (or portions thereof) may be made available or 
withheld from disclosure under the provisions of this part. In making 
the initial determinations, the Chief shall consult with any unit in the 
Library having a continuing substantial interest in the record 
requested. Where the Chief finds no valid objection or doubt as to the 
propriety of making the requested record available, the Chief shall 
honor the request upon payment of prescribed fees, if any are required 
by Sec. 703.8.
    (g) If the Chief, OSS, determines that a requested record should be 
withheld, the Chief shall inform the requester in writing that the 
request has been denied; shall identify the material withheld; and shall 
explain the basis for the denial. The Chief shall inform the requester 
that further consideration of the denied request may be obtained by a 
letter to the General Counsel setting out the basis for the belief that 
the denial of the request was unwarranted.
    (h) The General Counsel shall make the final determination on any 
request for reconsideration and shall notify the requester in writing of 
that determination. The decision of the General Counsel shall be the 
final administrative review within the Library.
    (1) If the General Counsel's decision reverses in whole or in part 
the initial determination by the Chief, OSS, the Chief shall make the 
requested record, or parts thereof, available to the requester, subject 
to the provisions of Sec. 703.8.
    (2) If the General Counsel's decision sustains in whole or in part 
the initial determination by the Chief, OSS, the General Counsel shall 
explain the basis on which the record, or portions thereof, will not be 
made available.



Sec. 703.7  Public Reading Facility.

    (a) The Chief, OSS, shall maintain a reading facility for the public 
inspection and copying of Library records. This facility shall be open 
to the public from 8:30 a.m. to 4:30 p.m., except Saturdays, Sundays, 
holidays, and such other times as the Library shall be closed to the 
public.
    (b) The General Counsel shall advise the Chief, OSS, of the records 
to be available in the public reading facility following consultation 
with the Library managers who may be concerned.



Sec. 703.8  Fees and charges.

    (a) The Library will charge no fees for:
    (1) Access to or copies of records under the provisions of this part 
when the direct search and reproduction costs are less than $10.
    (2) Records requested which are not found or which are determined to 
be exempt under the provisions of this part.
    (3) Staff time spent in resolving any legal or policy questions 
pertaining to a request.

[[Page 77]]

    (4) Copies of records, including those certified as true copies, 
that are furnished for official use to any officer or employee of the 
federal government.
    (5) Copies of pertinent records furnished to a party having a direct 
and immediate interest in a matter pending before the Library, when 
furnishing such copies is necessary or desirable to the performance of a 
Library function.
    (b) When the costs for services are $10 or more, the Chief, OSS, 
shall assess and collect the fees and charges set out in appendix A to 
this part for the direct costs of search and reproduction of records 
available to the public.
    (c) The Chief, OSS, is authorized to waive fees and charges, in 
whole or in part, where it is determined that the public interest is 
best served to do so, because waiver is likely to contribute 
significantly to public understanding of the operations or activities of 
the government and is not primarily in the commercial interest of the 
requester. Persons seeking a waiver or reduction of fees may be required 
to submit a written statement setting forth the intended purpose for 
which the records are requested or otherwise indicate how disclosure 
will primarily benefit the public and, in appropriate cases, explain why 
the volume of records requested is necessary. Determinations made 
pursuant to the authority set out herein are solely within the 
discretion of the Chief, OSS.
    (d) Fees and charges for services identified in the appendix to this 
part shall be paid in full by the requester before the records are 
delivered. Payment shall be made in U.S. funds by personal check, money 
order, or bank draft made payable to the Library of Congress. The Chief, 
OSS, shall remit all fees collected to the Director, Financial Services, 
who shall cause the same to be credited to appropriate accounts or 
deposited with the U.S. Treasury as miscellaneous receipts.
    (e) The Chief, OSS, shall notify a requester and may require an 
advance deposit where the anticipated fees will exceed $50.



Sec. Appendix A to Subpart A of Part 703--Fees and Charges for Services 
                    Provided to Requesters of Records

    (a) Searches.
    (1) There is no charge for searches of less than one hour.
    (2) Fees charged for searches of one hour or more are based on 
prevailing rates. Currently, those charges are:
    (i) Personnel searches (clerical): $15 per hour.
    (ii) Personnel searches (professional): $25 per hour.
    (iii) Reproduction costs: $.50 per page.
    (iv) Shipping and mailing fees: variable.
    (3) In situations involving the use of computers to locate and 
extract the requested information, charges will be based on the direct 
cost to the Library, including labor, material, and computer time.
    (b) Duplication of Records. Fees charged for the duplication of 
records shall be according to the prevailing rates established by the 
Library's Photoduplication Service, or in the case of machine media 
duplication, by the Resources Management Staff, Information Technology 
Services.
    (c) Certifications. The fee charges for certification of a record as 
authentic or a true copy shall be $10.00 for each certificate.
    (d) Other Charges. When no specific fee has been established for a 
service required to meet the request for records, the Chief, OSS, shall 
establish an appropriate fee based on direct costs in accordance with 
the Office of Management and Budget Circular No. A-25.



Subpart B_Testimony by Employees and Production of Documents in Certain 
           Legal Proceedings Where the Library Is Not a Party



Sec. 703.15  Purpose and scope of this subpart.

    This subpart sets forth the policy and procedures of the Library of 
Congress regarding, first, the testimony, as witnesses in legal 
proceedings where the Library is not a party, of employees and former 
employees concerning information acquired in the course of performing 
official duties or because of the employee's official relationship with 
the Library of Congress, and second, the production or disclosure of 
information contained in Library of Congress documents for use in legal 
proceedings where the Library is not a party, pursuant to a request, 
order, or

[[Page 78]]

subpoena (collectively referred to in this subpart as a ``demand'').
    (a) This subpart applies to:
    (1) State court proceedings (including grand jury proceedings);
    (2) Federal court proceedings; and
    (3) State and local legislative and administrative proceedings.
    (b) This subpart does not apply to:
    (1) Matters that are not related to the Library of Congress but 
relate solely to an employee's personal dealings;
    (2) Congressional demands for testimony or documents;
    (3) Any demand relating to activity within the scope of Title 17 of 
the United States Code (the Copyright Act and related laws). These are 
governed by Copyright Office regulations, which provide for different 
procedures and for service on the General Counsel of the Copyright 
Office. See 37 CFR 201.1, sec. 203, sec. 204, and sec. 205.
    (c) The purpose of this subpart is to ensure that employees' 
official time is used only for official purposes, to maintain the 
impartiality of the Library of Congress among private litigants, to 
ensure that public funds are not used for private purposes, to ensure 
the protection of Congress' interests, and to establish centralized 
procedures for deciding whether or not to approve testimony or the 
production of documents.



Sec. 703.16  Policy on presentation of testimony and production of documents.

    No Library of Congress employee may provide testimony or produce 
documents in any proceeding to which this part applies concerning 
information acquired in the course of performing official duties or 
because of the employee's official relationship with the Library of 
Congress, unless authorized by the General Counsel or his/her designee, 
or the Director of the Congressional Research Service (CRS) with respect 
to records and testimony relating to CRS's work for Congress, or the Law 
Librarian for records and testimony relating to the Law Library's work 
for Congress or materials prepared for other federal agencies covered by 
evidentiary privileges. The aforementioned officials (hereinafter 
``deciding officials'') will consider and act upon demands under this 
part with due regard for the interests of Congress, where appropriate, 
statutory requirements, the Library's interests, and the public 
interest, taking into account factors such as applicable privileges and 
immunities, including the deliberative process privilege and the speech 
or debate clause, the need to conserve the time of employees for 
conducting official business, the need to avoid spending the time and 
money of the United States for private purposes, the need to maintain 
impartiality among private litigants in cases where a substantial 
government interest is not involved, the established legal standards for 
determining whether or not justification exists for the disclosure of 
confidential information and records, and any other purpose that the 
deciding official deems to be in the interest of Congress or the Library 
of Congress.



Sec. 703.17  Procedures when testimony and/or documents are demanded.

    A demand for testimony and/or documents by a Library employee must 
be in writing, must state the nature of the requested testimony and/or 
specify documents, and must meet the requirements of Sec. 703.15. A 
demand must also show that the desired testimony or document is not 
reasonably available from any other source and must show that no 
document could be provided and used in lieu of testimony. When an 
employee of the Library receives such a request the employee will 
immediately forward it, with the recommendation of the employee's 
supervisors, to the appropriate deciding official under Sec. 703.22 of 
this part. The deciding official, in consultation with the appropriate 
offices of the Library or congressional offices, will determine whether 
or not compliance with the request would be appropriate and will respond 
as soon as practicable.



Sec. 703.18  Procedures when an employee's appearance is demanded or documents 

are demanded.

    (a) If the deciding official has not acted by the return date on a 
subpoena, the employee must appear at the stated time and place (unless 
advised by the deciding official that the subpoena was not validly 
issued or served or that

[[Page 79]]

the subpoena has been withdrawn) and inform the court (or other 
interested parties) that the demand has been or is being, as the case 
may be, referred for the prompt consideration of the appropriate Library 
or congressional officials and shall respectfully request the court (or 
other authority) to stay the demand pending receipt of the requested 
instructions.
    (b) If the deciding official has denied approval to comply with the 
subpoena, and the court or authority rules that the demand must be 
complied with irrespective of such a denial, the employee upon whom such 
a demand has been made shall produce a copy of this Part and shall 
respectfully refuse to provide any testimony or produce any documents. 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (c) The deciding official, as appropriate, will request the 
assistance of the Department of Justice or the U.S. Attorney's Office or 
congressional officials where necessary to represent the interests of 
the Library, the Congress, and the employee in any of the foregoing 
proceedings.



Sec. 703.19  Requests for authenticated copies of Library documents.

    Requests for authenticated copies of Library documents for purposes 
of admissibility under 28 U.S.C. 1733 and Rule 44 of the Federal Rules 
of Civil Procedure will be granted for documents that would otherwise be 
released pursuant to the Library's Regulations governing the release of 
information. The advice of the appropriate deciding official should be 
obtained concerning the proper form of authentication and information as 
to the proper person having custody of the record.



Sec. 703.20  File copies.

    The Office of the General Counsel will maintain the official file of 
copies of all demands served on the Library and deciding officials' 
responses.



Sec. 703.21  Effect of this part.

    This part is intended only to provide guidance for the internal 
operations of the Library of Congress and is not intended to, and does 
not, and may not, be relied upon to create any right or benefit, 
substantive or procedural, enforceable at law by a party against the 
Library of Congress or the United States.



Sec. 703.22  Where to serve demands.

    Requesting parties must serve subpoenas:
    (a) For Congressional Research Service matters: Director, 
Congressional Research Service, LM 203, Library of Congress, Washington, 
DC 20540.
    (b) For Law Library matters: Law Librarian, LM 240, Library of 
Congress, Washington, DC 20540.
    (c) For all other matters: General Counsel, LM 601, Library of 
Congress, Washington, DC 20540.



PART 704_NATIONAL FILM REGISTRY OF THE LIBRARY OF CONGRESS--Table of Contents




Sec. 704.1  Films selected for inclusion in the National Film Registry.

    After the reauthorization of the National Film Registry Act, only 
the list of films selected for the year of publication will be printed. 
For a complete list of films included in the National Film Registry, see 
http://lcweb.loc.gov/film/nfrchron.html.

    Authority: Pub. L. 102-307, 106 Stat. 267 (2 U.S.C. 179).

[69 FR 39843, July 1, 2004]



PART 705_REPRODUCTION, COMPILATION, AND DISTRIBUTION OF NEWS TRANSMISSIONS 

UNDER THE PROVISIONS OF THE AMERICAN TELEVISION AND RADIO ARCHIVES ACT--Table 

of Contents




Sec.
705.1 Scope and purpose of this part.
705.2 Authority.
705.3 Definitions.
705.4 Reproduction.
705.5 Disposition and use of copies and phonorecords by the Library of 
          Congress.
705.6 Compilation.
705.7 Distribution.
705.8 Agreements modifying the terms of this part.

    Authority: 2 U.S.C. 136, and 170.

    Source: 69 FR 39843, July 1, 2004, unless otherwise noted.

[[Page 80]]



Sec. 705.1  Scope and purpose of this part.

    The purpose of this part is to implement certain provisions of the 
American Television and Radio Archives Act, 2 U.S.C. 170. Specifically, 
this part prescribes rules pertaining to the reproduction, compilation, 
and distribution by the Library of Congress, under section 170(b) of 
title 2 of the United States Code, of television and radio transmission 
programs consisting of regularly scheduled newscasts or on-the-spot 
coverage of news events.



Sec. 705.2  Authority.

    Section 170(b) of Title 2 authorizes the Librarian, with respect to 
a transmission program which consists of a regularly scheduled newscast 
or on-the-spot coverage of news events, to prescribe by regulation 
standards and conditions to reproduce, compile, and distribute such a 
program as more particularly specified in the statute.



Sec. 705.3  Definitions.

    For purposes of this part:
    (a) The terms copies, fixed, phonorecords and transmission program, 
and their variant forms, have the meanings given to them in section 101 
of title 17 of the United States Code. For the purpose of this part, the 
term transmission includes transmission via the Internet, cable, 
broadcasting, and satellite systems, and via any other existing or 
future devices or processes for the communication of a performance or 
display whereby images or sounds are received beyond the place from 
which they are sent. 17 U.S.C. 101; H.R. Rep. No. 94-1476, at 64 (1976).
    (b) The term regularly scheduled newscasts means transmission 
programs in any format that report on current events, regardless of 
quality, subject matter, or significance, and that air on a periodic 
basis, (including but not limited to daily, weekly, or quarterly), or on 
an occasional basis, but not on a special, one-time basis. The term on-
the-spot coverage of news events refers to transmission programs in any 
format that report on reasonably recent current events, regardless of 
quality, subject matter, or significance, and that are aired in a timely 
manner but not necessarily contemporaneously with the recording of the 
events.
    (c) The term staff for the purpose of this part includes both 
Library employees and contractors.



Sec. 705.4  Reproduction.

    (a) Library of Congress staff acting under the general authority of 
the Librarian of Congress may reproduce fixations of television and 
radio transmission programs consisting of regularly scheduled newscasts 
or on-the-spot coverage of news events directly from transmissions to 
the public in the United States in accordance with section 170(b) of 
title 2 of the United States Code. Recording may be accomplished in the 
same or another tangible form as the original transmission. The choice 
of programs selected for recording will be made consistent with the 
purpose of, and based on the criteria set forth in, the American 
Television and Radio Archives Act at 2 U.S.C. 170(a), and on Library of 
Congress acquisition policies in effect at the time of recording.
    (b) Specific notice of an intent to copy a transmission program will 
ordinarily not be given. In general, the Library of Congress will seek 
to copy off-the-air selected portions of the programming transmitted by 
both noncommercial educational broadcast stations as defined in section 
397 of title 47 of the United States Code, and by commercial broadcast 
stations. Upon written request addressed to the Chief, Motion Picture, 
Broadcasting and Recorded Sound Division by a broadcast station or other 
owner of the right of transmission, the Library of Congress will inform 
the requestor whether a particular transmission program has been copied 
by the Library.



Sec. 705.5  Disposition and use of copies and phonorecords by the Library of 

Congress.

    (a) All copies and phonorecords acquired under this part will be 
maintained by the Motion Picture, Broadcasting and Recorded Sound 
Division of the Library of Congress. The Library may make such copies or 
phonorecords of a program as are necessary for purposes of preservation, 
security, and, as specified in Sec. 705.7, distribution.

[[Page 81]]

    (b) To the extent that the Library of Congress's use of copies and 
phonorecords acquired under this part is not subject to the provisions 
of the American Television and Radio Archives Act (section 170 of title 
2 of the United States Code) and this part, such use shall be subject to 
the restrictions concerning copying and access found in Library of 
Congress Regulation 818-17, ``Policies Governing the Use and 
Availability of Motion Pictures and Other Audiovisual Works in the 
Collections of the Library of Congress,'' and Library of Congress 
Regulation 818-18.1, ``Recorded Sound Listening and Duplication 
Services'' available from the Office of the General Counsel, Library of 
Congress, Washington, DC 20540-1050. Such use shall also be governed by 
the Copyright Act of 1976, as amended.



Sec. 705.6  Compilation.

    (a) Library of Congress staff acting under the general authority of 
the Librarian of Congress may compile, without abridgement or any other 
editing, portions of recordings created pursuant to Sec. 705.4 
according to subject matter, and may reproduce such compilations for 
purposes of preservation, security, or distribution as permitted under 
Sec. 705.7 below.
    (b) Compilations shall be organized, to the greatest extent 
possible, in chronological order, and shall include the entirety of any 
particular news segment.
    (c) No compilation by the Librarian shall be deemed for any purpose 
or proceeding to be an official determination of the subject matter 
covered by such compilation.



Sec. 705.7  Distribution.

    (a) Library staff acting under the general authority of the 
Librarian of Congress may distribute a reproduction of a transmission 
program or a compilation of transmission programs made under this part, 
by loan to a researcher, provided that the researcher indicates the 
particular segments of the news broadcasts or compilations that he or 
she wishes to review, on the basis of an index or other finding aid 
prepared by the Librarian; and for deposit in a library or archives 
which meets the requirements of section 108(a) of title 17 of the United 
States Code.
    (b) Library staff will advise all recipients of such reproductions 
that such distribution shall be only for the purposes of research and 
not for further reproduction or performance, and that any use in excess 
of that permitted by the American Television and Radio Archives Act 
(section 170 of title 2 of the United States Code), title 17 of the 
United States Code, and this part may violate copyrights or other 
rights.



Sec. 705.8  Agreements modifying the terms of this part.

    (a) The Library of Congress may, at its sole discretion, enter into 
an agreement whereby the provision of copies or phonorecords of 
transmission programs of regularly scheduled newscasts or on-the-spot 
coverage of news events on terms different from those contained in this 
part is authorized.
    (b) Any such agreement may be terminated without notice by the 
Library of Congress.

                        PARTS 706-799 [RESERVED]

[[Page 83]]



         CHAPTER VIII--ADVISORY COUNCIL ON HISTORIC PRESERVATION




  --------------------------------------------------------------------
Part                                                                Page
800             Protection of historic properties...........          85
801             Historic preservation requirements of the 
                    Urban Development Action Grant Program..         110
805             Procedures for implementation of National 
                    Environmental Policy Act................         123
810             Freedom of Information Act regulations......         125
811             Employee responsibilities and conduct.......         127
812             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Advisory 
                    Council on Historic Preservation........         127
813-899         [Reserved]

[[Page 85]]



PART 800_PROTECTION OF HISTORIC PROPERTIES--Table of Contents




                   Subpart A_Purposes and Participants

Sec.
800.1 Purposes.
800.2 Participants in the Section 106 process.

                    Subpart B_The Section 106 Process

800.3 Initiation of the section 106 process.
800.4 Identification of historic properties.
800.5 Assessment of adverse effects.
800.6 Resolution of adverse effects.
800.7 Failure to resolve adverse effects.
800.8 Coordination with the National Environmental Policy Act.
800.9 Council review of Section 106 compliance.
800.10 Special requirements for protecting National Historic Landmarks.
800.11 Documentation standards.
800.12 Emergency situations.
800.13 Post-review discoveries.

                     Subpart C_Program Alternatives

800.14 Federal agency program alternatives.
800.15 Tribal, State, and local program alternatives. [Reserved]
800.16 Definitions.

Appendix A to Part 800--Criteria for Council involvement in reviewing 
          individual section 106 cases

    Authority: 16 U.S.C. 470s.

    Source: 65 FR 77725, Dec. 12, 2000, unless otherwise noted.



                   Subpart A_Purposes and Participants



Sec. 800.1  Purposes.

    (a) Purposes of the section 106 process. Section 106 of the National 
Historic Preservation Act requires Federal agencies to take into account 
the effects of their undertakings on historic properties and afford the 
Council a reasonable opportunity to comment on such undertakings. The 
procedures in this part define how Federal agencies meet these statutory 
responsibilities. The section 106 process seeks to accommodate historic 
preservation concerns with the needs of Federal undertakings through 
consultation among the agency official and other parties with an 
interest in the effects of the undertaking on historic properties, 
commencing at the early stages of project planning. The goal of 
consultation is to identify historic properties potentially affected by 
the undertaking, assess its effects and seek ways to avoid, minimize or 
mitigate any adverse effects on historic properties.
    (b) Relation to other provisions of the act. Section 106 is related 
to other provisions of the act designed to further the national policy 
of historic preservation. References to those provisions are included in 
this part to identify circumstances where they may affect actions taken 
to meet section 106 requirements. Such provisions may have their own 
implementing regulations or guidelines and are not intended to be 
implemented by the procedures in this part except insofar as they relate 
to the section 106 process. Guidelines, policies, and procedures issued 
by other agencies, including the Secretary, have been cited in this part 
for ease of access and are not incorporated by reference.
    (c) Timing. The agency official must complete the section 106 
process ``prior to the approval of the expenditure of any Federal funds 
on the undertaking or prior to the issuance of any license.'' This does 
not prohibit agency official from conducting or authorizing 
nondestructive project planning activities before completing compliance 
with section 106, provided that such actions do not restrict the 
subsequent consideration of alternatives to avoid, minimize or mitigate 
the undertaking's adverse effects on historic properties. The agency 
official shall ensure that the section 106 process is initiated early in 
the undertaking's planning, so that a broad range of alternatives may be 
considered during the planning process for the undertaking.



Sec. 800.2  Participants in the Section 106 process.

    (a) Agency official. It is the statutory obligation of the Federal 
agency to fulfill the requirements of section 106 and to ensure that an 
agency official with jurisdiction over an undertaking takes legal and 
financial responsibility for section 106 compliance in accordance with 
subpart B of this part. The agency official has approval authority for 
the undertaking and can commit the Federal agency to take appropriate 
action

[[Page 86]]

for a specific undertaking as a result of section 106 compliance. For 
the purposes of subpart C of this part, the agency official has the 
authority to commit the Federal agency to any obligation it may assume 
in the implementation of a program alternative. The agency official may 
be a State, local, or tribal government official who has been delegated 
legal responsibility for compliance with section 106 in accordance with 
Federal law.
    (1) Professional standards. Section 112(a)(1)(A) of the act requires 
each Federal agency responsible for the protection of historic 
resources, including archeological resources, to ensure that all actions 
taken by employees or contractors of the agency shall meet professional 
standards under regulations developed by the Secretary.
    (2) Lead Federal agency. If more than one Federal agency is involved 
in an undertaking, some or all the agencies may designate a lead Federal 
agency, which shall identify the appropriate official to serve as the 
agency official who shall act on their behalf, fulfilling their 
collective responsibilities under section 106. Those Federal agencies 
that do not designate a lead Federal agency remain individually 
responsible for their compliance with this part.
    (3) Use of contractors. Consistent with applicable conflict of 
interest laws, the agency official may use the services of applicants, 
consultants, or designees to prepare information, analyses and 
recommendations under this part. The agency official remains legally 
responsible for all required findings and determinations. If a document 
or study is prepared by a non-Federal party, the agency official is 
responsible for ensuring that its content meets applicable standards and 
guidelines.
    (4) Consultation. The agency official shall involve the consulting 
parties described in paragraph (c) of this section in findings and 
determinations made during the section 106 process. The agency official 
should plan consultations appropriate to the scale of the undertaking 
and the scope of Federal involvement and coordinated with other 
requirements of other statutes, as applicable, such as the National 
Environmental Policy Act, the Native American Graves Protection and 
Repatriation Act, the American Indian Religious Freedom Act, the 
Archeological Resources Protection Act, and agency-specific legislation. 
The Council encourages the agency official to use to the extent possible 
existing agency procedures and mechanisms to fulfill the consultation 
requirements of this part.
    (b) Council. The Council issues regulations to implement section 
106, provides guidance and advice on the application of the procedures 
in this part, and generally oversees the operation of the section 106 
process. The Council also consults with and comments to agency officials 
on individual undertakings and programs that affect historic properties.
    (1) Council entry into the section 106 process. When the Council 
determines that its involvement is necessary to ensure that the purposes 
of section 106 and the act are met, the Council may enter the section 
106 process. Criteria guiding Council decisions to enter the section 106 
process are found in appendix A to this part. The Council will document 
that the criteria have been met and notify the parties to the section 
106 process as required by this part.
    (2) Council assistance. Participants in the section 106 process may 
seek advice, guidance and assistance from the Council on the application 
of this part to specific undertakings, including the resolution of 
disagreements, whether or not the Council is formally involved in the 
review of the undertaking. If questions arise regarding the conduct of 
the section 106 process, participants are encouraged to obtain the 
Council's advice on completing the process.
    (c) Consulting parties. The following parties have consultative 
roles in the section 106 process.
    (1) State historic preservation officer. (i) The State historic 
preservation officer (SHPO) reflects the interests of the State and its 
citizens in the preservation of their cultural heritage. In accordance 
with section 101(b)(3) of the act, the SHPO advises and assists Federal 
agencies in carrying out their section 106 responsibilities and 
cooperates with such agencies, local governments and organizations and 
individuals to

[[Page 87]]

ensure that historic properties are taking into consideration at all 
levels of planning and development.
    (ii) If an Indian tribe has assumed the functions of the SHPO in the 
section 106 process for undertakings on tribal lands, the SHPO shall 
participate as a consulting party if the undertaking takes place on 
tribal lands but affects historic properties off tribal lands, if 
requested in accordance with Sec. 800.3(c)(1), or if the Indian tribe 
agrees to include the SHPO pursuant to Sec. 800.3(f)(3).
    (2) Indian tribes and Native Hawaiian organizations. (i) 
Consultation on tribal lands. (A) Tribal historic preservation officer. 
For a tribe that has assumed the responsibilities of the SHPO for 
section 106 on tribal lands under section 101(d)(2) of the act, the 
tribal historic preservation officer (THPO) appointed or designated in 
accordance with the act is the official representative for the purposes 
of section 106. The agency official shall consult with the THPO in lieu 
of the SHPO regarding undertakings occurring on or affecting historic 
properties on tribal lands.
    (B) Tribes that have not assumed SHPO functions. When an Indian 
tribe has not assumed the responsibilities of the SHPO for section 106 
on tribal lands under section 101(d)(2) of the act, the agency official 
shall consult with a representative designated by such Indian tribe in 
addition to the SHPO regarding undertakings occurring on or affecting 
historic properties on its tribal lands. Such Indian tribes have the 
same rights of consultation and concurrence that the THPOs are given 
throughout subpart B of this part, except that such consultations shall 
be in addition to and on the same basis as consultation with the SHPO.
    (ii) Consultation on historic properties of significance to Indian 
tribes and Native Hawaiian organizations. Section 101(d)(6)(B) of the 
act requires the agency official to consult with any Indian tribe or 
Native Hawaiian organization that attaches religious and cultural 
significance to historic properties that may be affected by an 
undertaking. This requirement applies regardless of the location of the 
historic property. Such Indian tribe or Native Hawaiian organization 
shall be a consulting party.
    (A) The agency official shall ensure that consultation in the 
section 106 process provides the Indian tribe or Native Hawaiian 
organization a reasonable opportunity to identify its concerns about 
historic properties, advise on the identification and evaluation of 
historic properties, including those of traditional religious and 
cultural importance, articulate its views on the undertaking's effects 
on such properties, and participate in the resolution of adverse 
effects. It is the responsibility of the agency official to make a 
reasonable and good faith effort to identify Indian tribes and Native 
Hawaiian organizations that shall be consulted in the section 106 
process. Consultation should commence early in the planning process, in 
order to identify and discuss relevant preservation issues and resolve 
concerns about the confidentiality of information on historic 
properties.
    (B) The Federal Government has a unique legal relationship with 
Indian tribes set forth in the Constitution of the United States, 
treaties, statutes, and court decisions. Consultation with Indian tribes 
should be conducted in a sensitive manner respectful of tribal 
sovereignty. Nothing in this part alters, amends, repeals, interprets, 
or modifies tribal sovereignty, any treaty rights, or other rights of an 
Indian tribe, or preempts, modifies, or limits the exercise of any such 
rights.
    (C) Consultation with an Indian tribe must recognize the government-
to-government relationship between the Federal Government and Indian 
tribes. The agency official shall consult with representatives 
designated or identified by the tribal government or the governing body 
of a Native Hawaiian organization. Consultation with Indian tribes and 
Native Hawaiian organizations should be conducted in a manner sensitive 
to the concerns and needs of the Indian tribe or Native Hawaiian 
organization.
    (D) When Indian tribes and Native Hawaiian organizations attach 
religious and cultural significance to historic properties off tribal 
lands, section 101(d)(6)(B) of the act requires Federal agencies to 
consult with such Indian

[[Page 88]]

tribes and Native Hawaiian organizations in the section 106 process. 
Federal agencies should be aware that frequently historic properties of 
religious and cultural significance are located on ancestral, 
aboriginal, or ceded lands of Indian tribes and Native Hawaiian 
organizations and should consider that when complying with the 
procedures in this part.
    (E) An Indian tribe or a Native Hawaiian organization may enter into 
an agreement with an agency official that specifies how they will carry 
out responsibilities under this part, including concerns over the 
confidentiality of information. An agreement may cover all aspects of 
tribal participation in the section 106 process, provided that no 
modification may be made in the roles of other parties to the section 
106 process without their consent. An agreement may grant the Indian 
tribe or Native Hawaiian organization additional rights to participate 
or concur in agency decisions in the section 106 process beyond those 
specified in subpart B of this part. The agency official shall provide a 
copy of any such agreement to the Council and the appropriate SHPOs.
    (F) An Indian tribe that has not assumed the responsibilities of the 
SHPO for section 106 on tribal lands under section 101(d)(2) of the act 
may notify the agency official in writing that it is waiving its rights 
under Sec. 800.6(c)(1) to execute a memorandum of agreement.
    (3) Representatives of local governments. A representative of a 
local government with jurisdiction over the area in which the effects of 
an undertaking may occur is entitled to participate as a consulting 
party. Under other provisions of Federal law, the local government may 
be authorized to act as the agency official for purposes of section 106.
    (4) Applicants for Federal assistance, permits, licenses, and other 
approvals. An applicant for Federal assistance or for a Federal permit, 
license, or other approval is entitled to participate as a consulting 
party as defined in this part. The agency official may authorize an 
applicant or group of applicants to initiate consultation with the SHPO/
THPO and others, but remains legally responsible for all findings and 
determinations charged to the agency official. The agency official shall 
notify the SHPO/THPO when an applicant or group of applicants is so 
authorized. A Federal agency may authorize all applicants in a specific 
program pursuant to this section by providing notice to all SHPO/THPOs. 
Federal agencies that provide authorizations to applicants remain 
responsible for their government-to-government relationships with Indian 
tribes.
    (5) Additional consulting parties. Certain individuals and 
organizations with a demonstrated interest in the undertaking may 
participate as consulting parties due to the nature of their legal or 
economic relation to the undertaking or affected properties, or their 
concern with the undertaking's effects on historic properties.
    (d) The public--(1) Nature of involvement. The views of the public 
are essential to informed Federal decisionmaking in the section 106 
process. The agency official shall seek and consider the views of the 
public in a manner that reflects the nature and complexity of the 
undertaking and its effects on historic properties, the likely interest 
of the public in the effects on historic properties, confidentiality 
concerns of private individuals and businesses, and the relationship of 
the Federal involvement to the undertaking.
    (2) Providing notice and information. The agency official must, 
except where appropriate to protect confidentiality concerns of affected 
parties, provide the public with information about an undertaking and 
its effects on historic properties and seek public comment and input. 
Members of the public may also provide views on their own initiative for 
the agency official to consider in decisionmaking.
    (3) Use of agency procedures. The agency official may use the 
agency's procedures for public involvement under the National 
Environmental Policy Act or other program requirements in lieu of public 
involvement requirements in subpart B of this part, if they provide 
adequate opportunities for public involvement consistent with this 
subpart.

[[Page 89]]



                    Subpart B_The section 106 Process



Sec. 800.3  Initiation of the section 106 process.

    (a) Establish undertaking. The agency official shall determine 
whether the proposed Federal action is an undertaking as defined in 
Sec. 800.16(y) and, if so, whether it is a type of activity that has 
the potential to cause effects on historic properties.
    (1) No potential to cause effects. If the undertaking is a type of 
activity that does not have the potential to cause effects on historic 
properties, assuming such historic properties were present, the agency 
official has no further obligations under section 106 or this part.
    (2) Program alternatives. If the review of the undertaking is 
governed by a Federal agency program alternative established under Sec. 
800.14 or a programmatic agreement in existence before January 11, 2001, 
the agency official shall follow the program alternative.
    (b) Coordinate with other reviews. The agency official should 
coordinate the steps of the section 106 process, as appropriate, with 
the overall planning schedule for the undertaking and with any reviews 
required under other authorities such as the National Environmental 
Policy Act, the Native American Graves Protection and Repatriation Act, 
the American Indian Religious Freedom Act, the Archeological Resources 
Protection Act, and agency-specific legislation, such as section 4(f) of 
the Department of Transportation Act. Where consistent with the 
procedures in this subpart, the agency official may use information 
developed for other reviews under Federal, State, or tribal law to meet 
the requirements of section 106.
    (c) Identify the appropriate SHPO and/or THPO. As part of its 
initial planning, the agency official shall determine the appropriate 
SHPO or SHPOs to be involved in the section 106 process. The agency 
official shall also determine whether the undertaking may occur on or 
affect historic properties on any tribal lands and, if so, whether a 
THPO has assumed the duties of the SHPO. The agency official shall then 
initiate consultation with the appropriate officer or officers.
    (1) Tribal assumption of SHPO responsibilities. Where an Indian 
tribe has assumed the section 106 responsibilities of the SHPO on tribal 
lands pursuant to section 101(d)(2) of the act, consultation for 
undertakings occurring on tribal land or for effects on tribal land is 
with the THPO for the Indian tribe in lieu of the SHPO. Section 
101(d)(2)(D)(iii) of the act authorizes owners of properties on tribal 
lands which are neither owned by a member of the tribe nor held in trust 
by the Secretary for the benefit of the tribe to request the SHPO to 
participate in the section 106 process in addition to the THPO.
    (2) Undertakings involving more than one State. If more than one 
State is involved in an undertaking, the involved SHPOs may agree to 
designate a lead SHPO to act on their behalf in the section 106 process, 
including taking actions that would conclude the section 106 process 
under this subpart.
    (3) Conducting consultation. The agency official should consult with 
the SHPO/THPO in a manner appropriate to the agency planning process for 
the undertaking and to the nature of the undertaking and its effects on 
historic properties.
    (4) Failure of the SHPO/THPO to respond. If the SHPO/THPO fails to 
respond within 30 days of receipt of a request for review of a finding 
or determination, the agency official may either proceed to the next 
step in the process based on the finding or determination or consult 
with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters 
the Section 106 process, the agency official shall continue the 
consultation without being required to reconsider previous findings or 
determinations.
    (d) Consultation on tribal lands. Where the Indian tribe has not 
assumed the responsibilities of the SHPO on tribal lands, consultation 
with the Indian tribe regarding undertakings occurring on such tribe's 
lands or effects on such tribal lands shall be in addition to and on the 
same basis as consultation with the SHPO. If the SHPO has withdrawn from 
the process, the agency official may complete the section 106 process

[[Page 90]]

with the Indian tribe and the Council, as appropriate. An Indian tribe 
may enter into an agreement with a SHPO or SHPOs specifying the SHPO's 
participation in the section 106 process for undertakings occurring on 
or affecting historic properties on tribal lands.
    (e) Plan to involve the public. In consultation with the SHPO/THPO, 
the agency official shall plan for involving the public in the section 
106 process. The agency official shall identify the appropriate points 
for seeking public input and for notifying the public of proposed 
actions, consistent with Sec. 800.2(d).
    (f) Identify other consulting parties. In consultation with the 
SHPO/THPO, the agency official shall identify any other parties entitled 
to be consulting parties and invite them to participate as such in the 
section 106 process. The agency official may invite others to 
participate as consulting parties as the section 106 process moves 
forward.
    (1) Involving local governments and applicants. The agency official 
shall invite any local governments or applicants that are entitled to be 
consulting parties under Sec. 800.2(c).
    (2) Involving Indian tribes and Native Hawaiian organizations. The 
agency official shall make a reasonable and good faith effort to 
identify any Indian tribes or Native Hawaiian organizations that might 
attach religious and cultural significance to historic properties in the 
area of potential effects and invite them to be consulting parties. Such 
Indian tribe or Native Hawaiian organization that requests in writing to 
be a consulting party shall be one.
    (3) Requests to be consulting parties. The agency official shall 
consider all written requests of individuals and organizations to 
participate as consulting parties and, in consultation with the SHPO/
THPO and any Indian tribe upon whose tribal lands an undertaking occurs 
or affects historic properties, determine which should be consulting 
parties.
    (g) Expediting consultation. A consultation by the agency official 
with the SHPO/THPO and other consulting parties may address multiple 
steps in Sec. Sec. 800.3 through 800.6 where the agency official and 
the SHPO/THPO agree it is appropriate as long as the consulting parties 
and the public have an adequate opportunity to express their views as 
provided in Sec. 800.2(d).



Sec. 800.4  Identification of historic properties.

    (a) Determine scope of identification efforts. In consultation with 
the SHPO/THPO, the agency official shall:
    (1) Determine and document the area of potential effects, as defined 
in Sec. 800.16(d);
    (2) Review existing information on historic properties within the 
area of potential effects, including any data concerning possible 
historic properties not yet identified;
    (3) Seek information, as appropriate, from consulting parties, and 
other individuals and organizations likely to have knowledge of, or 
concerns with, historic properties in the area, and identify issues 
relating to the undertaking's potential effects on historic properties; 
and
    (4) Gather information from any Indian tribe or Native Hawaiian 
organization identified pursuant to Sec. 800.3(f) to assist in 
identifying properties, including those located off tribal lands, which 
may be of religious and cultural significance to them and may be 
eligible for the National Register, recognizing that an Indian tribe or 
Native Hawaiian organization may be reluctant to divulge specific 
information regarding the location, nature, and activities associated 
with such sites. The agency official should address concerns raised 
about confidentiality pursuant to Sec. 800.11(c).
    (b) Identify historic properties. Based on the information gathered 
under paragraph (a) of this section, and in consultation with the SHPO/
THPO and any Indian tribe or Native Hawaiian organization that might 
attach religious and cultural significance to properties within the area 
of potential effects, the agency official shall take the steps necessary 
to identify historic properties within the area of potential effects.
    (1) Level of effort. The agency official shall make a reasonable and 
good faith effort to carry out appropriate identification efforts, which 
may include background research, consultation,

[[Page 91]]

oral history interviews, sample field investigation, and field survey. 
The agency official shall take into account past planning, research and 
studies, the magnitude and nature of the undertaking and the degree of 
Federal involvement, the nature and extent of potential effects on 
historic properties, and the likely nature and location of historic 
properties within the area of potential effects. The Secretary's 
standards and guidelines for identification provide guidance on this 
subject. The agency official should also consider other applicable 
professional, State, tribal, and local laws, standards, and guidelines. 
The agency official shall take into account any confidentiality concerns 
raised by Indian tribes or Native Hawaiian organizations during the 
identification process.
    (2) Phased identification and evaluation. Where alternatives under 
consideration consist of corridors or large land areas, or where access 
to properties is restricted, the agency official may use a phased 
process to conduct identification and evaluation efforts. The agency 
official may also defer final identification and evaluation of historic 
properties if it is specifically provided for in a memorandum of 
agreement executed pursuant to Sec. 800.6, a programmatic agreement 
executed pursuant to Sec. 800.14(b), or the documents used by an agency 
official to comply with the National Environmental Policy Act pursuant 
to Sec. 800.8. The process should establish the likely presence of 
historic properties within the area of potential effects for each 
alternative or inaccessible area through background research, 
consultation and an appropriate level of field investigation, taking 
into account the number of alternatives under consideration, the 
magnitude of the undertaking and its likely effects, and the views of 
the SHPO/THPO and any other consulting parties. As specific aspects or 
locations of an alternative are refined or access is gained, the agency 
official shall proceed with the identification and evaluation of 
historic properties in accordance with paragraphs (b)(1) and (c) of this 
section.
    (c) Evaluate historic significance--(1) Apply National Register 
criteria. In consultation with the SHPO/THPO and any Indian tribe or 
Native Hawaiian organization that attaches religious and cultural 
significance to identified properties and guided by the Secretary's 
standards and guidelines for evaluation, the agency official shall apply 
the National Register criteria (36 CFR part 63) to properties identified 
within the area of potential effects that have not been previously 
evaluated for National Register eligibility. The passage of time, 
changing perceptions of significance, or incomplete prior evaluations 
may require the agency official to reevaluate properties previously 
determined eligible or ineligible. The agency official shall acknowledge 
that Indian tribes and Native Hawaiian organizations possess special 
expertise in assessing the eligibility of historic properties that may 
possess religious and cultural significance to them.
    (2) Determine whether a property is eligible. If the agency official 
determines any of the National Register criteria are met and the SHPO/
THPO agrees, the property shall be considered eligible for the National 
Register for section 106 purposes. If the agency official determines the 
criteria are not met and the SHPO/THPO agrees, the property shall be 
considered not eligible. If the agency official and the SHPO/THPO do not 
agree, or if the Council or the Secretary so request, the agency 
official shall obtain a determination of eligibility from the Secretary 
pursuant to 36 CFR part 63. If an Indian tribe or Native Hawaiian 
organization that attaches religious and cultural significance to a 
property off tribal lands does not agree, it may ask the Council to 
request the agency official to obtain a determination of eligibility.
    (d) Results of identification and evaluation--(1) No historic 
properties affected. If the agency official finds that either there are 
no historic properties present or there are historic properties present 
but the undertaking will have no effect upon them as defined in Sec. 
800.16(i), the agency official shall provide documentation of this 
finding, as set forth in Sec. 800.11(d), to the SHPO/THPO. The agency 
official shall notify all consulting parties, including Indian tribes 
and Native Hawaiian organizations, and make the documentation available

[[Page 92]]

for public inspection prior to approving the undertaking.
    (i) If the SHPO/THPO, or the Council if it has entered the section 
106 process, does not object within 30 days of receipt of an adequately 
documented finding, the agency official's responsibilities under section 
106 are fulfilled.
    (ii) If the SHPO/THPO objects within 30 days of receipt of an 
adequately documented finding, the agency official shall either consult 
with the objecting party to resolve the disagreement, or forward the 
finding and supporting documentation to the Council and request that the 
Council review the finding pursuant to paragraphs (d)(1)(iv)(A) through 
(d)(1)(iv)(C) of this section. When an agency official forwards such 
requests for review to the Council, the agency official shall 
concurrently notify all consulting parties that such a request has been 
made and make the request documentation available to the public.
    (iii) During the SHPO/THPO 30 day review period, the Council may 
object to the finding and provide its opinion regarding the finding to 
the agency official and, if the Council determines the issue warrants 
it, the head of the agency. A Council decision to provide its opinion to 
the head of an agency shall be guided by the criteria in appendix A to 
this part. The agency shall then proceed according to paragraphs 
(d)(1)(iv)(B) and (d)(1)(iv)(C) of this section.
    (iv) (A) Upon receipt of the request under paragraph (d)(1)(ii) of 
this section, the Council will have 30 days in which to review the 
finding and provide the agency official and, if the Council determines 
the issue warrants it, the head of the agency with the Council's opinion 
regarding the finding. A Council decision to provide its opinion to the 
head of an agency shall be guided by the criteria in appendix A to this 
part. If the Council does not respond within 30 days of receipt of the 
request, the agency official's responsibilities under section 106 are 
fulfilled.
    (B) The person to whom the Council addresses its opinion (the agency 
official or the head of the agency) shall take into account the 
Council's opinion before the agency reaches a final decision on the 
finding.
    (C) The person to whom the Council addresses its opinion (the agency 
official or the head of the agency) shall then prepare a summary of the 
decision that contains the rationale for the decision and evidence of 
consideration of the Council's opinion, and provide it to the Council, 
the SHPO/THPO, and the consulting parties. The head of the agency may 
delegate his or her duties under this paragraph to the agency's senior 
policy official. If the agency official's initial finding will be 
revised, the agency official shall proceed in accordance with the 
revised finding. If the final decision of the agency is to affirm the 
initial agency finding of no historic properties affected, once the 
summary of the decision has been sent to the Council, the SHPO/THPO, and 
the consulting parties, the agency official's responsibilities under 
section 106 are fulfilled.
    (D) The Council shall retain a record of agency responses to Council 
opinions on their findings of no historic properties affected. The 
Council shall make this information available to the public.
    (2) Historic properties affected. If the agency official finds that 
there are historic properties which may be affected by the undertaking, 
the agency official shall notify all consulting parties, including 
Indian tribes or Native Hawaiian organizations, invite their views on 
the effects and assess adverse effects, if any, in accordance with Sec. 
800.5.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40553, July 6, 2004]



Sec. 800.5  Assessment of adverse effects.

    (a) Apply criteria of adverse effect. In consultation with the SHPO/
THPO and any Indian tribe or Native Hawaiian organization that attaches 
religious and cultural significance to identified historic properties, 
the agency official shall apply the criteria of adverse effect to 
historic properties within the area of potential effects. The agency 
official shall consider any views concerning such effects which have 
been provided by consulting parties and the public.
    (1) Criteria of adverse effect. An adverse effect is found when an 
undertaking may alter, directly or indirectly, any of the 
characteristics of a

[[Page 93]]

historic property that qualify the property for inclusion in the 
National Register in a manner that would diminish the integrity of the 
property's location, design, setting, materials, workmanship, feeling, 
or association. Consideration shall be given to all qualifying 
characteristics of a historic property, including those that may have 
been identified subsequent to the original evaluation of the property's 
eligibility for the National Register. Adverse effects may include 
reasonably foreseeable effects caused by the undertaking that may occur 
later in time, be farther removed in distance or be cumulative.
    (2) Examples of adverse effects. Adverse effects on historic 
properties include, but are not limited to:
    (i) Physical destruction of or damage to all or part of the 
property;
    (ii) Alteration of a property, including restoration, 
rehabilitation, repair, maintenance, stabilization, hazardous material 
remediation, and provision of handicapped access, that is not consistent 
with the Secretary's standards for the treatment of historic properties 
(36 CFR part 68) and applicable guidelines;
    (iii) Removal of the property from its historic location;
    (iv) Change of the character of the property's use or of physical 
features within the property's setting that contribute to its historic 
significance;
    (v) Introduction of visual, atmospheric or audible elements that 
diminish the integrity of the property's significant historic features;
    (vi) Neglect of a property which causes its deterioration, except 
where such neglect and deterioration are recognized qualities of a 
property of religious and cultural significance to an Indian tribe or 
Native Hawaiian organization; and
    (vii) Transfer, lease, or sale of property out of Federal ownership 
or control without adequate and legally enforceable restrictions or 
conditions to ensure long-term preservation of the property's historic 
significance.
    (3) Phased application of criteria. Where alternatives under 
consideration consist of corridors or large land areas, or where access 
to properties is restricted, the agency official may use a phased 
process in applying the criteria of adverse effect consistent with 
phased identification and evaluation efforts conducted pursuant to Sec. 
800.4(b)(2).
    (b) Finding of no adverse effect. The agency official, in 
consultation with the SHPO/THPO, may propose a finding of no adverse 
effect when the undertaking's effects do not meet the criteria of 
paragraph (a)(1) of this section or the undertaking is modified or 
conditions are imposed, such as the subsequent review of plans for 
rehabilitation by the SHPO/THPO to ensure consistency with the 
Secretary's standards for the treatment of historic properties (36 CFR 
part 68) and applicable guidelines, to avoid adverse effects.
    (c) Consulting party review. If the agency official proposes a 
finding of no adverse effect, the agency official shall notify all 
consulting parties of the finding and provide them with the 
documentation specified in Sec. 800.11(e). The SHPO/THPO shall have 30 
days from receipt to review the finding.
    (1) Agreement with, or no objection to, finding. Unless the Council 
is reviewing the finding pursuant to papagraph (c)(3) of this section, 
the agency official may proceed after the close of the 30 day review 
period if the SHPO/THPO has agreed with the finding or has not provided 
a response, and no consulting party has objected. The agency official 
shall then carry out the undertaking in accordance with paragraph (d)(1) 
of this section.
    (2) Disagreement with finding. (i) If within the 30 day review 
period the SHPO/THPO or any consulting party notifies the agency 
official in writing that it disagrees with the finding and specifies the 
reasons for the disagreement in the notification, the agency official 
shall either consult with the party to resolve the disagreement, or 
request the Council to review the finding pursuant to paragraphs 
(c)(3)(i) and (c)(3)(ii) of this section. The agency official shall 
include with such request the documentation specified in Sec. 
800.11(e). The agency official shall also concurrently notify all 
consulting parties that such a submission has been made and make the 
submission documentation available to the public.

[[Page 94]]

    (ii) If within the 30 day review period the Council provides the 
agency official and, if the Council determines the issue warrants it, 
the head of the agency, with a written opinion objecting to the finding, 
the agency shall then proceed according to paragraph (c)(3)(ii) of this 
section. A Council decision to provide its opinion to the head of an 
agency shall be guided by the criteria in appendix A to this part.
    (iii) The agency official should seek the concurrence of any Indian 
tribe or Native Hawaiian organization that has made known to the agency 
official that it attaches religious and cultural significance to a 
historic property subject to the finding. If such Indian tribe or Native 
Hawaiian organization disagrees with the finding, it may within the 30 
day review period specify the reasons for disagreeing with the finding 
and request the Council to review and object to the finding pursuant to 
paragraph (c)(2)(ii) of this section.
    (3) Council review of findings. (i) When a finding is submitted to 
the Council pursuant to paragraph (c)(2)(i) of this section, the Council 
shall review the finding and provide the agency official and, if the 
Council determines the issue warrants it, the head of the agency with 
its opinion as to whether the adverse effect criteria have been 
correctly applied. A Council decision to provide its opinion to the head 
of an agency shall be guided by the criteria in appendix A to this part. 
The Council will provide its opinion within 15 days of receiving the 
documented finding from the agency official. The Council at its 
discretion may extend that time period for 15 days, in which case it 
shall notify the agency of such extension prior to the end of the 
initial 15 day period. If the Council does not respond within the 
applicable time period, the agency official's responsibilities under 
section 106 are fulfilled.
    (ii)(A) The person to whom the Council addresses its opinion (the 
agency official or the head of the agency) shall take into account the 
Council's opinion in reaching a final decision on the finding.
    (B) The person to whom the Council addresses its opinion (the agency 
official or the head of the agency) shall prepare a summary of the 
decision that contains the rationale for the decision and evidence of 
consideration of the Council's opinion, and provide it to the Council, 
the SHPO/THPO, and the consulting parties. The head of the agency may 
delegate his or her duties under this paragraph to the agency's senior 
policy official. If the agency official's initial finding will be 
revised, the agency official shall proceed in accordance with the 
revised finding. If the final decision of the agency is to affirm the 
initial finding of no adverse effect, once the summary of the decision 
has been sent to the Council, the SHPO/THPO, and the consulting parties, 
the agency official's responsibilities under section 106 are fulfilled.
    (C) The Council shall retain a record of agency responses to Council 
opinions on their findings of no adverse effects. The Council shall make 
this information available to the public.
    (d) Results of assessment--(1) No adverse effect. The agency 
official shall maintain a record of the finding and provide information 
on the finding to the public on request, consistent with the 
confidentiality provisions of Sec. 800.11(c). Implementation of the 
undertaking in accordance with the finding as documented fulfills the 
agency official's responsibilities under section 106 and this part. If 
the agency official will not conduct the undertaking as proposed in the 
finding, the agency official shall reopen consultation under paragraph 
(a) of this section.
    (2) Adverse effect. If an adverse effect is found, the agency 
official shall consult further to resolve the adverse effect pursuant to 
Sec. 800.6.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40553, July 6, 2004]



Sec. 800.6  Resolution of adverse effects.

    (a) Continue consultation. The agency official shall consult with 
the SHPO/THPO and other consulting parties, including Indian tribes and 
Native Hawaiian organizations, to develop and evaluate alternatives or 
modifications to the undertaking that could avoid, minimize, or mitigate 
adverse effects on historic properties.

[[Page 95]]

    (1) Notify the Council and determine Council participation. The 
agency official shall notify the Council of the adverse effect finding 
by providing the documentation specified in Sec. 800.11(e).
    (i) The notice shall invite the Council to participate in the 
consultation when:
    (A) The agency official wants the Council to participate;
    (B) The undertaking has an adverse effect upon a National Historic 
Landmark; or
    (C) A programmatic agreement under Sec. 800.14(b) will be prepared;
    (ii) The SHPO/THPO, an Indian tribe or Native Hawaiian organization, 
or any other consulting party may at any time independently request the 
Council to participate in the consultation.
    (iii) The Council shall advise the agency official and all 
consulting parties whether it will participate within 15 days of receipt 
of notice or other request. Prior to entering the process, the Council 
shall provide written notice to the agency official and the consulting 
parties that its decision to participate meets the criteria set forth in 
appendix A to this part. The Council shall also advise the head of the 
agency of its decision to enter the process. Consultation with Council 
participation is conducted in accordance with paragraph (b)(2) of this 
section.
    (iv) If the Council does not join the consultation, the agency 
official shall proceed with consultation in accordance with paragraph 
(b)(1) of this section.
    (2) Involve consulting parties. In addition to the consulting 
parties identified under Sec. 800.3(f), the agency official, the SHPO/
THPO and the Council, if participating, may agree to invite other 
individuals or organizations to become consulting parties. The agency 
official shall invite any individual or organization that will assume a 
specific role or responsibility in a memorandum of agreement to 
participate as a consulting party.
    (3) Provide documentation. The agency official shall provide to all 
consulting parties the documentation specified in Sec. 800.11(e), 
subject to the confidentiality provisions of Sec. 800.11(c), and such 
other documentation as may be developed during the consultation to 
resolve adverse effects.
    (4) Involve the public. The agency official shall make information 
available to the public, including the documentation specified in Sec. 
800.11(e), subject to the confidentiality provisions of Sec. 800.11(c). 
The agency official shall provide an opportunity for members of the 
public to express their views on resolving adverse effects of the 
undertaking. The agency official should use appropriate mechanisms, 
taking into account the magnitude of the undertaking and the nature of 
its effects upon historic properties, the likely effects on historic 
properties, and the relationship of the Federal involvement to the 
undertaking to ensure that the public's views are considered in the 
consultation. The agency official should also consider the extent of 
notice and information concerning historic preservation issues afforded 
the public at earlier steps in the section 106 process to determine the 
appropriate level of public involvement when resolving adverse effects 
so that the standards of Sec. 800.2(d) are met.
    (5) Restrictions on disclosure of information. Section 304 of the 
act and other authorities may limit the disclosure of information under 
paragraphs (a)(3) and (a)(4) of this section. If an Indian tribe or 
Native Hawaiian organization objects to the disclosure of information or 
if the agency official believes that there are other reasons to withhold 
information, the agency official shall comply with Sec. 800.11(c) 
regarding the disclosure of such information.
    (b) Resolve adverse effects--(1) Resolution without the Council. (i) 
The agency official shall consult with the SHPO/THPO and other 
consulting parties to seek ways to avoid, minimize or mitigate the 
adverse effects.
    (ii) The agency official may use standard treatments established by 
the Council under Sec. 800.14(d) as a basis for a memorandum of 
agreement.
    (iii) If the Council decides to join the consultation, the agency 
official shall follow paragraph (b)(2) of this section.
    (iv) If the agency official and the SHPO/THPO agree on how the 
adverse effects will be resolved, they shall execute a memorandum of 
agreement. The agency official must submit a copy of

[[Page 96]]

the executed memorandum of agreement, along with the documentation 
specified in Sec. 800.11(f), to the Council prior to approving the 
undertaking in order to meet the requirements of section 106 and this 
subpart.
    (v) If the agency official, and the SHPO/THPO fail to agree on the 
terms of a memorandum of agreement, the agency official shall request 
the Council to join the consultation and provide the Council with the 
documentation set forth in Sec. 800.11(g). If the Council decides to 
join the consultation, the agency official shall proceed in accordance 
with paragraph (b)(2) of this section. If the Council decides not to 
join the consultation, the Council will notify the agency and proceed to 
comment in accordance with Sec. 800.7(c).
    (2) Resolution with Council participation. If the Council decides to 
participate in the consultation, the agency official shall consult with 
the SHPO/THPO, the Council, and other consulting parties, including 
Indian tribes and Native Hawaiian organizations under Sec. 800.2(c)(3), 
to seek ways to avoid, minimize or mitigate the adverse effects. If the 
agency official, the SHPO/THPO, and the Council agree on how the adverse 
effects will be resolved, they shall execute a memorandum of agreement.
    (c) Memorandum of agreement. A memorandum of agreement executed and 
implemented pursuant to this section evidences the agency official's 
compliance with section 106 and this part and shall govern the 
undertaking and all of its parts. The agency official shall ensure that 
the undertaking is carried out in accordance with the memorandum of 
agreement.
    (1) Signatories. The signatories have sole authority to execute, 
amend or terminate the agreement in accordance with this subpart.
    (i) The agency official and the SHPO/THPO are the signatories to a 
memorandum of agreement executed pursuant to paragraph (b)(1) of this 
section.
    (ii) The agency official, the SHPO/THPO, and the Council are the 
signatories to a memorandum of agreement executed pursuant to paragraph 
(b)(2) of this section.
    (iii) The agency official and the Council are signatories to a 
memorandum of agreement executed pursuant to Sec. 800.7(a)(2).
    (2) Invited signatories. (i) The agency official may invite 
additional parties to be signatories to a memorandum of agreement. Any 
such party that signs the memorandum of agreement shall have the same 
rights with regard to seeking amendment or termination of the memorandum 
of agreement as other signatories.
    (ii) The agency official may invite an Indian tribe or Native 
Hawaiian organization that attaches religious and cultural significance 
to historic properties located off tribal lands to be a signatory to a 
memorandum of agreement concerning such properties.
    (iii) The agency official should invite any party that assumes a 
responsibility under a memorandum of agreement to be a signatory.
    (iv) The refusal of any party invited to become a signatory to a 
memorandum of agreement pursuant to paragraph (c)(2) of this section 
does not invalidate the memorandum of agreement.
    (3) Concurrence by others. The agency official may invite all 
consulting parties to concur in the memorandum of agreement. The 
signatories may agree to invite others to concur. The refusal of any 
party invited to concur in the memorandum of agreement does not 
invalidate the memorandum of agreement.
    (4) Reports on implementation. Where the signatories agree it is 
appropriate, a memorandum of agreement shall include a provision for 
monitoring and reporting on its implementation.
    (5) Duration. A memorandum of agreement shall include provisions for 
termination and for reconsideration of terms if the undertaking has not 
been implemented within a specified time.
    (6) Discoveries. Where the signatories agree it is appropriate, a 
memorandum of agreement shall include provisions to deal with the 
subsequent discovery or identification of additional historic properties 
affected by the undertaking.
    (7) Amendments. The signatories to a memorandum of agreement may 
amend it. If the Council was not a signatory

[[Page 97]]

to the original agreement and the signatories execute an amended 
agreement, the agency official shall file it with the Council.
    (8) Termination. If any signatory determines that the terms of a 
memorandum of agreement cannot be or are not being carried out, the 
signatories shall consult to seek amendment of the agreement. If the 
agreement is not amended, any signatory may terminate it. The agency 
official shall either execute a memorandum of agreement with signatories 
under paragraph (c)(1) of this section or request the comments of the 
Council under Sec. 800.7(a).
    (9) Copies. The agency official shall provide each consulting party 
with a copy of any memorandum of agreement executed pursuant to this 
subpart.



Sec. 800.7  Failure to resolve adverse effects.

    (a) Termination of consultation. After consulting to resolve adverse 
effects pursuant to Sec. 800.6(b)(2), the agency official, the SHPO/
THPO, or the Council may determine that further consultation will not be 
productive and terminate consultation. Any party that terminates 
consultation shall notify the other consulting parties and provide them 
the reasons for terminating in writing.
    (1) If the agency official terminates consultation, the head of the 
agency or an Assistant Secretary or other officer with major department-
wide or agency-wide responsibilities shall request that the Council 
comment pursuant to paragraph (c) of this section and shall notify all 
consulting parties of the request.
    (2) If the SHPO terminates consultation, the agency official and the 
Council may execute a memorandum of agreement without the SHPO's 
involvement.
    (3) If a THPO terminates consultation regarding an undertaking 
occurring on or affecting historic properties on its tribal lands, the 
Council shall comment pursuant to paragraph (c) of this section.
    (4) If the Council terminates consultation, the Council shall notify 
the agency official, the agency's Federal preservation officer and all 
consulting parties of the termination and comment under paragraph (c) of 
this section. The Council may consult with the agency's Federal 
preservation officer prior to terminating consultation to seek to 
resolve issues concerning the undertaking and its effects on historic 
properties.
    (b) Comments without termination. The Council may determine that it 
is appropriate to provide additional advisory comments upon an 
undertaking for which a memorandum of agreement will be executed. The 
Council shall provide them to the agency official when it executes the 
memorandum of agreement.
    (c) Comments by the Council--(1) Preparation. The Council shall 
provide an opportunity for the agency official, all consulting parties, 
and the public to provide their views within the time frame for 
developing its comments. Upon request of the Council, the agency 
official shall provide additional existing information concerning the 
undertaking and assist the Council in arranging an onsite inspection and 
an opportunity for public participation.
    (2) Timing. The Council shall transmit its comments within 45 days 
of receipt of a request under paragraph (a)(1) or (a)(3) of this section 
or Sec. 800.8(c)(3), or termination by the Council under Sec. 
800.6(b)(1)(v) or paragraph (a)(4) of this section, unless otherwise 
agreed to by the agency official.
    (3) Transmittal. The Council shall provide its comments to the head 
of the agency requesting comment with copies to the agency official, the 
agency's Federal preservation officer, all consulting parties, and 
others as appropriate.
    (4) Response to Council comment. The head of the agency shall take 
into account the Council's comments in reaching a final decision on the 
undertaking. Section 110(l) of the act directs that the head of the 
agency shall document this decision and may not delegate his or her 
responsibilities pursuant to section 106. Documenting the agency head's 
decision shall include:
    (i) Preparing a summary of the decision that contains the rationale 
for the decision and evidence of consideration of the Council's comments 
and providing it to the Council prior to approval of the undertaking;

[[Page 98]]

    (ii) Providing a copy of the summary to all consulting parties; and
    (iii) Notifying the public and making the record available for 
public inspection.



Sec. 800.8  Coordination With the National Environmental Policy Act.

    (a) General principles--(1) Early coordination. Federal agencies are 
encouraged to coordinate compliance with section 106 and the procedures 
in this part with any steps taken to meet the requirements of the 
National Environmental Policy Act (NEPA). Agencies should consider their 
section 106 responsibilities as early as possible in the NEPA process, 
and plan their public participation, analysis, and review in such a way 
that they can meet the purposes and requirements of both statutes in a 
timely and efficient manner. The determination of whether an undertaking 
is a ``major Federal action significantly affecting the quality of the 
human environment,'' and therefore requires preparation of an 
environmental impact statement (EIS) under NEPA, should include 
consideration of the undertaking's likely effects on historic 
properties. A finding of adverse effect on a historic property does not 
necessarily require an EIS under NEPA.
    (2) Consulting party roles. SHPO/THPOs, Indian tribes, and Native 
Hawaiian organizations, other consulting parties, and organizations and 
individuals who may be concerned with the possible effects of an agency 
action on historic properties should be prepared to consult with 
agencies early in the NEPA process, when the purpose of and need for the 
proposed action as well as the widest possible range of alternatives are 
under consideration.
    (3) Inclusion of historic preservation issues. Agency officials 
should ensure that preparation of an environmental assessment (EA) and 
finding of no significant impact (FONSI) or an EIS and record of 
decision (ROD) includes appropriate scoping, identification of historic 
properties, assessment of effects upon them, and consultation leading to 
resolution of any adverse effects.
    (b) Actions categorically excluded under NEPA. If a project, 
activity or program is categorically excluded from NEPA review under an 
agency's NEPA procedures, the agency official shall determine if it 
still qualifies as an undertaking requiring review under section 106 
pursuant to Sec. 800.3(a). If so, the agency official shall proceed 
with section 106 review in accordance with the procedures in this 
subpart.
    (c) Use of the NEPA process for section 106 purposes. An agency 
official may use the process and documentation required for the 
preparation of an EA/FONSI or an EIS/ROD to comply with section 106 in 
lieu of the procedures set forth in Sec. Sec. 800.3 through 800.6 if 
the agency official has notified in advance the SHPO/THPO and the 
Council that it intends to do so and the following standards are met.
    (1) Standards for developing environmental documents to comply with 
Section 106. During preparation of the EA or draft EIS (DEIS) the agency 
official shall:
    (i) Identify consulting parties either pursuant to Sec. 800.3(f) or 
through the NEPA scoping process with results consistent with Sec. 
800.3(f);
    (ii) Identify historic properties and assess the effects of the 
undertaking on such properties in a manner consistent with the standards 
and criteria of Sec. Sec. 800.4 through 800.5, provided that the scope 
and timing of these steps may be phased to reflect the agency official's 
consideration of project alternatives in the NEPA process and the effort 
is commensurate with the assessment of other environmental factors;
    (iii) Consult regarding the effects of the undertaking on historic 
properties with the SHPO/THPO, Indian tribes, and Native Hawaiian 
organizations that might attach religious and cultural significance to 
affected historic properties, other consulting parties, and the Council, 
where appropriate, during NEPA scoping, environmental analysis, and the 
preparation of NEPA documents;
    (iv) Involve the public in accordance with the agency's published 
NEPA procedures; and (v) Develop in consultation with identified 
consulting parties alternatives and proposed measures that might avoid, 
minimize or mitigate any adverse effects of the undertaking on historic 
properties and describe them in the EA or DEIS.

[[Page 99]]

    (2) Review of environmental documents. (i) The agency official shall 
submit the EA, DEIS, or EIS to the SHPO/THPO, Indian tribes, and Native 
Hawaiian organizations that might attach religious and cultural 
significance to affected historic properties, and other consulting 
parties prior to or when making the document available for public 
comment. If the document being prepared is a DEIS or EIS, the agency 
official shall also submit it to the Council.
    (ii) Prior to or within the time allowed for public comment on the 
document, a SHPO/THPO, an Indian tribe or Native Hawaiian organization, 
another consulting party or the Council may object to the agency 
official that preparation of the EA, DEIS, or EIS has not met the 
standards set forth in paragraph (c)(1) of this section or that the 
substantive resolution of the effects on historic properties proposed in 
an EA, DEIS, or EIS is inadequate. If the agency official receives such 
an objection, the agency official shall refer the matter to the Council.
    (3) Resolution of objections. Within 30 days of the agency 
official's referral of an objection under paragraph (c)(2)(ii) of this 
section, the Council shall review the objection and notify the agency as 
to its opinion on the objection.
    (i) If the Council agrees with the objection:
    (A) The Council shall provide the agency official and, if the 
Council determines the issue warrants it, the head of the agency with 
the Council's opinion regarding the objection. A Council decision to 
provide its opinion to the head of an agency shall be guided by the 
criteria in appendix A to this part. The person to whom the Council 
addresses its opinion (the agency official or the head of the agency) 
shall take into account the Council's opinion in reaching a final 
decision on the issue of the objection.
    (B) The person to whom the Council addresses its opinion (the agency 
official or the head of the agency) shall prepare a summary of the 
decision that contains the rationale for the decision and evidence of 
consideration of the Council's opinion, and provide it to the Council. 
The head of the agency may delegate his or her duties under this 
paragraph to the agency's senior Policy Official. If the agency 
official's initial decision regarding the matter that is the subject of 
the objection will be revised, the agency official shall proceed in 
accordance with the revised decision. If the final decision of the 
agency is to affirm the initial agency decision, once the summary of the 
final decision has been sent to the Council, the agency official shall 
continue its compliance with this section.
    (ii) If the Council disagrees with the objection, the Council shall 
so notify the agency official, in which case the agency official shall 
continue its compliance with this section.
    (iii) If the Council fails to respond to the objection within the 30 
day period, the agency official shall continue its compliance with this 
section.
    (4) Approval of the undertaking. If the agency official has found, 
during the preparation of an EA or EIS that the effects of an 
undertaking on historic properties are adverse, the agency official 
shall develop measures in the EA, DEIS, or EIS to avoid, minimize, or 
mitigate such effects in accordance with paragraph (c)(1)(v) of this 
section. The agency official's responsibilities under section 106 and 
the procedures in this subpart shall then be satisfied when either:
    (i) A binding commitment to such proposed measures is incorporated 
in:
    (A) The ROD, if such measures were proposed in a DEIS or EIS; or
    (B) An MOA drafted in compliance with Sec. 800.6(c); or
    (ii) The Council has commented under Sec. 800.7 and received the 
agency's response to such comments.
    (5) Modification of the undertaking. If the undertaking is modified 
after approval of the FONSI or the ROD in a manner that changes the 
undertaking or alters its effects on historic properties, or if the 
agency official fails to ensure that the measures to avoid, minimize or 
mitigate adverse effects (as specified in either the FONSI or the ROD, 
or in the binding commitment adopted pursuant to paragraph (c)(4) of 
this section) are carried out, the agency official shall notify the 
Council and all consulting parties that supplemental environmental 
documents will be prepared in compliance with NEPA or that the 
procedures in Sec. Sec. 800.3

[[Page 100]]

through 800.6 will be followed as necessary.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40554, July 6, 2004]



Sec. 800.9  Council review of section 106 compliance.

    (a) Assessment of agency official compliance for individual 
undertakings. The Council may provide to the agency official its 
advisory opinion regarding the substance of any finding, determination 
or decision or regarding the adequacy of the agency official's 
compliance with the procedures under this part. The Council may provide 
such advice at any time at the request of any individual, agency or 
organization or on its own initiative. The agency official shall 
consider the views of the Council in reaching a decision on the matter 
in question.
    (b) Agency foreclosure of the Council's opportunity to comment. 
Where an agency official has failed to complete the requirements of 
section 106 in accordance with the procedures in this part prior to the 
approval of an undertaking, the Council's opportunity to comment may be 
foreclosed. The Council may review a case to determine whether a 
foreclosure has occurred. The Council shall notify the agency official 
and the agency's Federal preservation officer and allow 30 days for the 
agency official to provide information as to whether foreclosure has 
occurred. If the Council determines foreclosure has occurred, the 
Council shall transmit the determination to the agency official and the 
head of the agency. The Council shall also make the determination 
available to the public and any parties known to be interested in the 
undertaking and its effects upon historic properties.
    (c) Intentional adverse effects by applicants--(1) Agency 
responsibility. Section 110(k) of the act prohibits a Federal agency 
from granting a loan, loan guarantee, permit, license or other 
assistance to an applicant who, with intent to avoid the requirements of 
section 106, has intentionally significantly adversely affected a 
historic property to which the grant would relate, or having legal power 
to prevent it, has allowed such significant adverse effect to occur, 
unless the agency, after consultation with the Council, determines that 
circumstances justify granting such assistance despite the adverse 
effect created or permitted by the applicant. Guidance issued by the 
Secretary pursuant to section 110 of the act governs its implementation.
    (2) Consultation with the Council. When an agency official 
determines, based on the actions of an applicant, that section 110(k) is 
applicable and that circumstances may justify granting the assistance, 
the agency official shall notify the Council and provide documentation 
specifying the circumstances under which the adverse effects to the 
historic property occurred and the degree of damage to the integrity of 
the property. This documentation shall include any views obtained from 
the applicant, SHPO/THPO, an Indian tribe if the undertaking occurs on 
or affects historic properties on tribal lands, and other parties known 
to be interested in the undertaking.
    (i) Within thirty days of receiving the agency official's 
notification, unless otherwise agreed to by the agency official, the 
Council shall provide the agency official with its opinion as to whether 
circumstances justify granting assistance to the applicant and any 
possible mitigation of the adverse effects.
    (ii) The agency official shall consider the Council's opinion in 
making a decision on whether to grant assistance to the applicant, and 
shall notify the Council, the SHPO/THPO, and other parties known to be 
interested in the undertaking prior to granting the assistance.
    (3) Compliance with Section 106. If an agency official, after 
consulting with the Council, determines to grant the assistance, the 
agency official shall comply with Sec. Sec. 800.3 through 800.6 to take 
into account the effects of the undertaking on any historic properties.
    (d) Evaluation of Section 106 operations. The Council may evaluate 
the operation of the section 106 process by periodic reviews of how 
participants have fulfilled their legal responsibilities and how 
effectively the outcomes reached advance the purposes of the act.

[[Page 101]]

    (1) Information from participants. Section 203 of the act authorizes 
the Council to obtain information from Federal agencies necessary to 
conduct evaluation of the section 106 process. The agency official shall 
make documentation of agency policies, operating procedures and actions 
taken to comply with section 106 available to the Council upon request. 
The Council may request available information and documentation from 
other participants in the section 106 process.
    (2) Improving the operation of section 106. Based upon any 
evaluation of the section 106 process, the Council may make 
recommendations to participants, the heads of Federal agencies, and the 
Secretary of actions to improve the efficiency and effectiveness of the 
process. Where the Council determines that an agency official or a SHPO/
THPO has failed to properly carry out the responsibilities assigned 
under the process in this part, the Council may participate in 
individual case reviews conducted under such process in addition to the 
SHPO/THPO for such period that it determines is necessary to improve 
performance or correct deficiencies. If the Council finds a pattern of 
failure by a Federal agency in carrying out its responsibilities under 
section 106, the Council may review the policies and programs of the 
agency related to historic preservation pursuant to section 202(a)(6) of 
the act and recommend methods to improve the effectiveness, 
coordination, and consistency of those policies and programs with 
section 106.



Sec. 800.10  Special requirements for protecting National Historic Landmarks.

    (a) Statutory requirement. Section 110(f) of the act requires that 
the agency official, to the maximum extent possible, undertake such 
planning and actions as may be necessary to minimize harm to any 
National Historic Landmark that may be directly and adversely affected 
by an undertaking. When commenting on such undertakings, the Council 
shall use the process set forth in Sec. Sec. 800.6 through 800.7 and 
give special consideration to protecting National Historic Landmarks as 
specified in this section.
    (b) Resolution of adverse effects. The agency official shall request 
the Council to participate in any consultation to resolve adverse 
effects on National Historic Landmarks conducted under Sec. 800.6.
    (c) Involvement of the Secretary. The agency official shall notify 
the Secretary of any consultation involving a National Historic Landmark 
and invite the Secretary to participate in the consultation where there 
may be an adverse effect. The Council may request a report from the 
Secretary under section 213 of the act to assist in the consultation.
    (d) Report of outcome. When the Council participates in consultation 
under this section, it shall report the outcome of the section 106 
process, providing its written comments or any memoranda of agreement to 
which it is a signatory, to the Secretary and the head of the agency 
responsible for the undertaking.



Sec. 800.11  Documentation standards.

    (a) Adequacy of documentation. The agency official shall ensure that 
a determination, finding, or agreement under the procedures in this 
subpart is supported by sufficient documentation to enable any reviewing 
parties to understand its basis. The agency official shall provide such 
documentation to the extent permitted by law and within available funds. 
When an agency official is conducting phased identification or 
evaluation under this subpart, the documentation standards regarding 
description of historic properties may be applied flexibly. If the 
Council, or the SHPO/THPO when the Council is not involved, determines 
the applicable documentation standards are not met, the Council or the 
SHPO/THPO, as appropriate, shall notify the agency official and specify 
the information needed to meet the standard. At the request of the 
agency official or any of the consulting parties, the Council shall 
review any disputes over whether documentation standards are met and 
provide its views to the agency official and the consulting parties.
    (b) Format. The agency official may use documentation prepared to 
comply

[[Page 102]]

with other laws to fulfill the requirements of the procedures in this 
subpart, if that documentation meets the standards of this section.
    (c) Confidentiality--(1) Authority to withhold information. Section 
304 of the act provides that the head of a Federal agency or other 
public official receiving grant assistance pursuant to the act, after 
consultation with the Secretary, shall withhold from public disclosure 
information about the location, character, or ownership of a historic 
property when disclosure may cause a significant invasion of privacy; 
risk harm to the historic property; or impede the use of a traditional 
religious site by practitioners. When the head of a Federal agency or 
other public official has determined that information should be withheld 
from the public pursuant to these criteria, the Secretary, in 
consultation with such Federal agency head or official, shall determine 
who may have access to the information for the purposes of carrying out 
the act.
    (2) Consultation with the Council. When the information in question 
has been developed in the course of an agency's compliance with this 
part, the Secretary shall consult with the Council in reaching 
determinations on the withholding and release of information. The 
Federal agency shall provide the Council with available information, 
including views of the SHPO/THPO, Indian tribes and Native Hawaiian 
organizations, related to the confidentiality concern. The Council shall 
advise the Secretary and the Federal agency within 30 days of receipt of 
adequate documentation.
    (3) Other authorities affecting confidentiality. Other Federal laws 
and program requirements may limit public access to information 
concerning an undertaking and its effects on historic properties. Where 
applicable, those authorities shall govern public access to information 
developed in the section 106 process and may authorize the agency 
official to protect the privacy of non-governmental applicants.
    (d) Finding of no historic properties affected. Documentation shall 
include:
    (1) A description of the undertaking, specifying the Federal 
involvement, and its area of potential effects, including photographs, 
maps, drawings, as necessary;
    (2) A description of the steps taken to identify historic 
properties, including, as appropriate, efforts to seek information 
pursuant to Sec. 800.4(b); and
    (3) The basis for determining that no historic properties are 
present or affected.
    (e) Finding of no adverse effect or adverse effect. Documentation 
shall include:
    (1) A description of the undertaking, specifying the Federal 
involvement, and its area of potential effects, including photographs, 
maps, and drawings, as necessary;
    (2) A description of the steps taken to identify historic 
properties;
    (3) A description of the affected historic properties, including 
information on the characteristics that qualify them for the National 
Register;
    (4) A description of the undertaking's effects on historic 
properties;
    (5) An explanation of why the criteria of adverse effect were found 
applicable or inapplicable, including any conditions or future actions 
to avoid, minimize or mitigate adverse effects; and
    (6) Copies or summaries of any views provided by consulting parties 
and the public.
    (f) Memorandum of agreement. When a memorandum of agreement is filed 
with the Council, the documentation shall include, any substantive 
revisions or additions to the documentation provided the Council 
pursuant to Sec. 800.6(a)(1), an evaluation of any measures considered 
to avoid or minimize the undertaking's adverse effects and a summary of 
the views of consulting parties and the public.
    (g) Requests for comment without a memorandum of agreement. 
Documentation shall include:
    (1) A description and evaluation of any alternatives or mitigation 
measures that the agency official proposes to resolve the undertaking's 
adverse effects;
    (2) A description of any reasonable alternatives or mitigation 
measures that were considered but not chosen, and the reasons for their 
rejection;

[[Page 103]]

    (3) Copies or summaries of any views submitted to the agency 
official concerning the adverse effects of the undertaking on historic 
properties and alternatives to reduce or avoid those effects; and
    (4) Any substantive revisions or additions to the documentation 
provided the Council pursuant to Sec. 800.6(a)(1).



Sec. 800.12  Emergency situations.

    (a) Agency procedures. The agency official, in consultation with the 
appropriate SHPOs/THPOs, affected Indian tribes and Native Hawaiian 
organizations, and the Council, is encouraged to develop procedures for 
taking historic properties into account during operations which respond 
to a disaster or emergency declared by the President, a tribal 
government, or the Governor of a State or which respond to other 
immediate threats to life or property. If approved by the Council, the 
procedures shall govern the agency's historic preservation 
responsibilities during any disaster or emergency in lieu of Sec. Sec. 
800.3 through 800.6.
    (b) Alternatives to agency procedures. In the event an agency 
official proposes an emergency undertaking as an essential and immediate 
response to a disaster or emergency declared by the President, a tribal 
government, or the Governor of a State or another immediate threat to 
life or property, and the agency has not developed procedures pursuant 
to paragraph (a) of this section, the agency official may comply with 
section 106 by:
    (1) Following a programmatic agreement developed pursuant to Sec. 
800.14(b) that contains specific provisions for dealing with historic 
properties in emergency situations; or
    (2) Notifying the Council, the appropriate SHPO/THPO and any Indian 
tribe or Native Hawaiian organization that may attach religious and 
cultural significance to historic properties likely to be affected prior 
to the undertaking and affording them an opportunity to comment within 
seven days of notification. If the agency official determines that 
circumstances do not permit seven days for comment, the agency official 
shall notify the Council, the SHPO/THPO and the Indian tribe or Native 
Hawaiian organization and invite any comments within the time available.
    (c) Local governments responsible for section 106 compliance. When a 
local government official serves as the agency official for section 106 
compliance, paragraphs (a) and (b) of this section also apply to an 
imminent threat to public health or safety as a result of a natural 
disaster or emergency declared by a local government's chief executive 
officer or legislative body, provided that if the Council or SHPO/THPO 
objects to the proposed action within seven days, the agency official 
shall comply with Sec. Sec. 800.3 through 800.6.
    (d) Applicability. This section applies only to undertakings that 
will be implemented within 30 days after the disaster or emergency has 
been formally declared by the appropriate authority. An agency may 
request an extension of the period of applicability from the Council 
prior to the expiration of the 30 days. Immediate rescue and salvage 
operations conducted to preserve life or property are exempt from the 
provisions of section 106 and this part.



Sec. 800.13  Post-review discoveries.

    (a) Planning for subsequent discoveries--(1) Using a programmatic 
agreement. An agency official may develop a programmatic agreement 
pursuant to Sec. 800.14(b) to govern the actions to be taken when 
historic properties are discovered during the implementation of an 
undertaking.
    (2) Using agreement documents. When the agency official's 
identification efforts in accordance with Sec. 800.4 indicate that 
historic properties are likely to be discovered during implementation of 
an undertaking and no programmatic agreement has been developed pursuant 
to paragraph (a)(1) of this section, the agency official shall include 
in any finding of no adverse effect or memorandum of agreement a process 
to resolve any adverse effects upon such properties. Actions in 
conformance with the process satisfy the agency official's 
responsibilities under section 106 and this part.
    (b) Discoveries without prior planning. If historic properties are 
discovered or unanticipated effects on historic properties found after 
the agency official has completed the section 106 process

[[Page 104]]

without establishing a process under paragraph (a) of this section, the 
agency official shall make reasonable efforts to avoid, minimize or 
mitigate adverse effects to such properties and:
    (1) If the agency official has not approved the undertaking or if 
construction on an approved undertaking has not commenced, consult to 
resolve adverse effects pursuant to Sec. 800.6; or
    (2) If the agency official, the SHPO/THPO and any Indian tribe or 
Native Hawaiian organization that might attach religious and cultural 
significance to the affected property agree that such property is of 
value solely for its scientific, prehistoric, historic or archeological 
data, the agency official may comply with the Archeological and Historic 
Preservation Act instead of the procedures in this part and provide the 
Council, the SHPO/THPO, and the Indian tribe or Native Hawaiian 
organization with a report on the actions within a reasonable time after 
they are completed; or
    (3) If the agency official has approved the undertaking and 
construction has commenced, determine actions that the agency official 
can take to resolve adverse effects, and notify the SHPO/THPO, any 
Indian tribe or Native Hawaiian organization that might attach religious 
and cultural significance to the affected property, and the Council 
within 48 hours of the discovery. The notification shall describe the 
agency official's assessment of National Register eligibility of the 
property and proposed actions to resolve the adverse effects. The SHPO/
THPO, the Indian tribe or Native Hawaiian organization and the Council 
shall respond within 48 hours of the notification. The agency official 
shall take into account their recommendations regarding National 
Register eligibility and proposed actions, and then carry out 
appropriate actions. The agency official shall provide the SHPO/THPO, 
the Indian tribe or Native Hawaiian organization and the Council a 
report of the actions when they are completed.
    (c) Eligibility of properties. The agency official, in consultation 
with the SHPO/THPO, may assume a newly-discovered property to be 
eligible for the National Register for purposes of section 106. The 
agency official shall specify the National Register criteria used to 
assume the property's eligibility so that information can be used in the 
resolution of adverse effects.
    (d) Discoveries on tribal lands. If historic properties are 
discovered on tribal lands, or there are unanticipated effects on 
historic properties found on tribal lands, after the agency official has 
completed the section 106 process without establishing a process under 
paragraph (a) of this section and construction has commenced, the agency 
official shall comply with applicable tribal regulations and procedures 
and obtain the concurrence of the Indian tribe on the proposed action.



                     Subpart C_Program Alternatives



Sec. 800.14  Federal agency program alternatives.

    (a) Alternate procedures. An agency official may develop procedures 
to implement section 106 and substitute them for all or part of subpart 
B of this part if they are consistent with the Council's regulations 
pursuant to section 110(a)(2)(E) of the act.
    (1) Development of procedures. The agency official shall consult 
with the Council, the National Conference of State Historic Preservation 
Officers, or individual SHPO/THPOs, as appropriate, and Indian tribes 
and Native Hawaiian organizations, as specified in paragraph (f) of this 
section, in the development of alternate procedures, publish notice of 
the availability of proposed alternate procedures in the Federal 
Register and take other appropriate steps to seek public input during 
the development of alternate procedures.
    (2) Council review. The agency official shall submit the proposed 
alternate procedures to the Council for a 60-day review period. If the 
Council finds the procedures to be consistent with this part, it shall 
notify the agency official and the agency official may adopt them as 
final alternate procedures.
    (3) Notice. The agency official shall notify the parties with which 
it has consulted and publish notice of final alternate procedures in the 
Federal Register.

[[Page 105]]

    (4) Legal effect. Alternate procedures adopted pursuant to this 
subpart substitute for the Council's regulations for the purposes of the 
agency's compliance with section 106, except that where an Indian tribe 
has entered into an agreement with the Council to substitute tribal 
historic preservation regulations for the Council's regulations under 
section 101(d)(5) of the act, the agency shall follow those regulations 
in lieu of the agency's procedures regarding undertakings on tribal 
lands. Prior to the Council entering into such agreements, the Council 
will provide Federal agencies notice and opportunity to comment on the 
proposed substitute tribal regulations.
    (b) Programmatic agreements. The Council and the agency official may 
negotiate a programmatic agreement to govern the implementation of a 
particular program or the resolution of adverse effects from certain 
complex project situations or multiple undertakings.
    (1) Use of programmatic agreements. A programmatic agreement may be 
used:
    (i) When effects on historic properties are similar and repetitive 
or are multi-State or regional in scope;
    (ii) When effects on historic properties cannot be fully determined 
prior to approval of an undertaking;
    (iii) When nonfederal parties are delegated major decisionmaking 
responsibilities;
    (iv) Where routine management activities are undertaken at Federal 
installations, facilities, or other land-management units; or
    (v) Where other circumstances warrant a departure from the normal 
section 106 process.
    (2) Developing programmatic agreements for agency programs. (i) The 
consultation shall involve, as appropriate, SHPO/THPOs, the National 
Conference of State Historic Preservation Officers (NCSHPO), Indian 
tribes and Native Hawaiian organizations, other Federal agencies, and 
members of the public. If the programmatic agreement has the potential 
to affect historic properties on tribal lands or historic properties of 
religious and cultural significance to an Indian tribe or Native 
Hawaiian organization, the agency official shall also follow paragraph 
(f) of this section.
    (ii) Public participation. The agency official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the program and in accordance with subpart A of this part. The agency 
official shall consider the nature of the program and its likely effects 
on historic properties and take steps to involve the individuals, 
organizations and entities likely to be interested.
    (iii) Effect. The programmatic agreement shall take effect when 
executed by the Council, the agency official and the appropriate SHPOs/
THPOs when the programmatic agreement concerns a specific region or the 
president of NCSHPO when NCSHPO has participated in the consultation. A 
programmatic agreement shall take effect on tribal lands only when the 
THPO, Indian tribe, or a designated representative of the tribe is a 
signatory to the agreement. Compliance with the procedures established 
by an approved programmatic agreement satisfies the agency's section 106 
responsibilities for all individual undertakings of the program covered 
by the agreement until it expires or is terminated by the agency, the 
president of NCSHPO when a signatory, or the Council. Termination by an 
individual SHPO/THPO shall only terminate the application of a regional 
programmatic agreement within the jurisdiction of the SHPO/THPO. If a 
THPO assumes the responsibilities of a SHPO pursuant to section 
101(d)(2) of the act and the SHPO is signatory to programmatic 
agreement, the THPO assumes the role of a signatory, including the right 
to terminate a regional programmatic agreement on lands under the 
jurisdiction of the tribe.
    (iv) Notice. The agency official shall notify the parties with which 
it has consulted that a programmatic agreement has been executed under 
paragraph (b) of this section, provide appropriate public notice before 
it takes effect, and make any internal agency procedures implementing 
the agreement readily available to the Council, SHPO/THPOs, and the 
public.
    (v) If the Council determines that the terms of a programmatic 
agreement are not being carried out, or if such an

[[Page 106]]

agreement is terminated, the agency official shall comply with subpart B 
of this part with regard to individual undertakings of the program 
covered by the agreement.
    (3) Developing programmatic agreements for complex or multiple 
undertakings. Consultation to develop a programmatic agreement for 
dealing with the potential adverse effects of complex projects or 
multiple undertakings shall follow Sec. 800.6. If consultation pertains 
to an activity involving multiple undertakings and the parties fail to 
reach agreement, then the agency official shall comply with the 
provisions of subpart B of this part for each individual undertaking.
    (4) Prototype programmatic agreements. The Council may designate an 
agreement document as a prototype programmatic agreement that may be 
used for the same type of program or undertaking in more than one case 
or area. When an agency official uses such a prototype programmatic 
agreement, the agency official may develop and execute the agreement 
with the appropriate SHPO/THPO and the agreement shall become final 
without need for Council participation in consultation or Council 
signature.
    (c) Exempted categories--(1) Criteria for establishing. The Council 
or an agency official may propose a program or category of undertakings 
that may be exempted from review under the provisions of subpart B of 
this part, if the program or category meets the following criteria:
    (i) The actions within the program or category would otherwise 
qualify as ``undertakings'' as defined in Sec. 800.16;
    (ii) The potential effects of the undertakings within the program or 
category upon historic properties are foreseeable and likely to be 
minimal or not adverse; and
    (iii) Exemption of the program or category is consistent with the 
purposes of the act.
    (2) Public participation. The proponent of the exemption shall 
arrange for public participation appropriate to the subject matter and 
the scope of the exemption and in accordance with the standards in 
subpart A of this part. The proponent of the exemption shall consider 
the nature of the exemption and its likely effects on historic 
properties and take steps to involve individuals, organizations and 
entities likely to be interested.
    (3) Consultation with SHPOs/THPOs. The proponent of the exemption 
shall notify and consider the views of the SHPOs/THPOs on the exemption.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the exempted program or category of undertakings has 
the potential to affect historic properties on tribal lands or historic 
properties of religious and cultural significance to an Indian tribe or 
Native Hawaiian organization, the Council shall follow the requirements 
for the agency official set forth in paragraph (f) of this section.
    (5) Council review of proposed exemptions. The Council shall review 
an exemption proposal that is supported by documentation describing the 
program or category for which the exemption is sought, demonstrating 
that the criteria of paragraph (c)(1) of this section have been met, 
describing the methods used to seek the views of the public, and 
summarizing any views submitted by the SHPO/THPOs, the public, and any 
others consulted. Unless it requests further information, the Council 
shall approve or reject the proposed exemption within 30 days of 
receipt, and thereafter notify the relevant agency official and SHPO/
THPOs of the decision. The decision shall be based on the consistency of 
the exemption with the purposes of the act, taking into consideration 
the magnitude of the exempted undertaking or program and the likelihood 
of impairment of historic properties in accordance with section 214 of 
the act.
    (6) Legal consequences. Any undertaking that falls within an 
approved exempted program or category shall require no further review 
pursuant to subpart B of this part, unless the agency official or the 
Council determines that there are circumstances under which the normally 
excluded undertaking should be reviewed under subpart B of this part.
    (7) Termination. The Council may terminate an exemption at the 
request of the agency official or when the Council determines that the 
exemption no longer meets the criteria of paragraph

[[Page 107]]

(c)(1) of this section. The Council shall notify the agency official 30 
days before termination becomes effective.
    (8) Notice. The proponent of the exemption shall publish notice of 
any approved exemption in the Federal Register.
    (d) Standard treatments--(1) Establishment. The Council, on its own 
initiative or at the request of another party, may establish standard 
methods for the treatment of a category of historic properties, a 
category of undertakings, or a category of effects on historic 
properties to assist Federal agencies in satisfying the requirements of 
subpart B of this part. The Council shall publish notice of standard 
treatments in the Federal Register.
    (2) Public participation. The Council shall arrange for public 
participation appropriate to the subject matter and the scope of the 
standard treatment and consistent with subpart A of this part. The 
Council shall consider the nature of the standard treatment and its 
likely effects on historic properties and the individuals, organizations 
and entities likely to be interested. Where an agency official has 
proposed a standard treatment, the Council may request the agency 
official to arrange for public involvement.
    (3) Consultation with SHPOs/THPOs. The Council shall notify and 
consider the views of SHPOs/THPOs on the proposed standard treatment.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the proposed standard treatment has the potential to 
affect historic properties on tribal lands or historic properties of 
religious and cultural significance to an Indian tribe or Native 
Hawaiian organization, the Council shall follow the requirements for the 
agency official set forth in paragraph (f) of this section.
    (5) Termination. The Council may terminate a standard treatment by 
publication of a notice in the Federal Register 30 days before the 
termination takes effect.
    (e) Program comments. An agency official may request the Council to 
comment on a category of undertakings in lieu of conducting individual 
reviews under Sec. Sec. 800.4 through 800.6. The Council may provide 
program comments at its own initiative.
    (1) Agency request. The agency official shall identify the category 
of undertakings, specify the likely effects on historic properties, 
specify the steps the agency official will take to ensure that the 
effects are taken into account, identify the time period for which the 
comment is requested and summarize any views submitted by the public.
    (2) Public participation. The agency official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the category and in accordance with the standards in subpart A of this 
part. The agency official shall consider the nature of the undertakings 
and their likely effects on historic properties and the individuals, 
organizations and entities likely to be interested.
    (3) Consultation with SHPOs/THPOs. The Council shall notify and 
consider the views of SHPOs/THPOs on the proposed program comment.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the program comment has the potential to affect 
historic properties on tribal lands or historic properties of religious 
and cultural significance to an Indian tribe or Native Hawaiian 
organization, the Council shall follow the requirements for the agency 
official set forth in paragraph (f) of this section.
    (5) Council action. Unless the Council requests additional 
documentation, notifies the agency official that it will decline to 
comment, or obtains the consent of the agency official to extend the 
period for providing comment, the Council shall comment to the agency 
official within 45 days of the request.
    (i) If the Council comments, the agency official shall take into 
account the comments of the Council in carrying out the undertakings 
within the category and publish notice in the Federal Register of the 
Council's comments and steps the agency will take to ensure that effects 
to historic properties are taken into account.
    (ii) If the Council declines to comment, the agency official shall 
continue to comply with the requirements of Sec. Sec. 800.3 through 
800.6 for the individual undertakings.
    (6) Withdrawal of comment. If the Council determines that the 
consideration of historic properties is not being

[[Page 108]]

carried out in a manner consistent with the program comment, the Council 
may withdraw the comment and the agency official shall comply with the 
requirements of Sec. Sec. 800.3 through 800.6 for the individual 
undertakings.
    (f) Consultation with Indian tribes and Native Hawaiian 
organizations when developing program alternatives. Whenever an agency 
official proposes a program alternative pursuant to paragraphs (a) 
through (e) of this section, the agency official shall ensure that 
development of the program alternative includes appropriate government-
to-government consultation with affected Indian tribes and consultation 
with affected Native Hawaiian organizations.
    (1) Identifying affected Indian tribes and Native Hawaiian 
organizations. If any undertaking covered by a proposed program 
alternative has the potential to affect historic properties on tribal 
lands, the agency official shall identify and consult with the Indian 
tribes having jurisdiction over such lands. If a proposed program 
alternative has the potential to affect historic properties of religious 
and cultural significance to an Indian tribe or a Native Hawaiian 
organization which are located off tribal lands, the agency official 
shall identify those Indian tribes and Native Hawaiian organizations 
that might attach religious and cultural significance to such properties 
and consult with them. When a proposed program alternative has 
nationwide applicability, the agency official shall identify an 
appropriate government to government consultation with Indian tribes and 
consult with Native Hawaiian organizations in accordance with existing 
Executive orders, Presidential memoranda, and applicable provisions of 
law.
    (2) Results of consultation. The agency official shall provide 
summaries of the views, along with copies of any written comments, 
provided by affected Indian tribes and Native Hawaiian organizations to 
the Council as part of the documentation for the proposed program 
alternative. The agency official and the Council shall take those views 
into account in reaching a final decision on the proposed program 
alternative.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40554, July 6, 2004]



Sec. 800.15  Tribal, State, and local program alternatives. [Reserved]



Sec. 800.16  Definitions.

    (a) Act means the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470-470w-6.
    (b) Agency means agency as defined in 5 U.S.C. 551.
    (c) Approval of the expenditure of funds means any final agency 
decision authorizing or permitting the expenditure of Federal funds or 
financial assistance on an undertaking, including any agency decision 
that may be subject to an administrative appeal.
    (d) Area of potential effects means the geographic area or areas 
within which an undertaking may directly or indirectly cause alterations 
in the character or use of historic properties, if any such properties 
exist. The area of potential effects is influenced by the scale and 
nature of an undertaking and may be different for different kinds of 
effects caused by the undertaking.
    (e) Comment means the findings and recommendations of the Council 
formally provided in writing to the head of a Federal agency under 
section 106.
    (f) Consultation means the process of seeking, discussing, and 
considering the views of other participants, and, where feasible, 
seeking agreement with them regarding matters arising in the section 106 
process. The Secretary's ``Standards and Guidelines for Federal Agency 
Preservation Programs pursuant to the National Historic Preservation 
Act'' provide further guidance on consultation.
    (g) Council means the Advisory Council on Historic Preservation or a 
Council member or employee designated to act for the Council.
    (h) Day or days means calendar days.
    (i) Effect means alteration to the characteristics of a historic 
property qualifying it for inclusion in or eligibility for the National 
Register.
    (j) Foreclosure means an action taken by an agency official that 
effectively precludes the Council from providing comments which the 
agency official can meaningfully consider prior to the approval of the 
undertaking.
    (k) Head of the agency means the chief official of the Federal 
agency responsible for all aspects of the agency's

[[Page 109]]

actions. If a State, local, or tribal government has assumed or has been 
delegated responsibility for section 106 compliance, the head of that 
unit of government shall be considered the head of the agency.
    (l)(1) Historic property means any prehistoric or historic district, 
site, building, structure, or object included in, or eligible for 
inclusion in, the National Register of Historic Places maintained by the 
Secretary of the Interior. This term includes artifacts, records, and 
remains that are related to and located within such properties. The term 
includes properties of traditional religious and cultural importance to 
an Indian tribe or Native Hawaiian organization and that meet the 
National Register criteria.
    (2) The term eligible for inclusion in the National Register 
includes both properties formally determined as such in accordance with 
regulations of the Secretary of the Interior and all other properties 
that meet the National Register criteria.
    (m) Indian tribe means an Indian tribe, band, nation, or other 
organized group or community, including a native village, regional 
corporation, or village corporation, as those terms are defined in 
section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    (n) Local government means a city, county, parish, township, 
municipality, borough, or other general purpose political subdivision of 
a State.
    (o) Memorandum of agreement means the document that records the 
terms and conditions agreed upon to resolve the adverse effects of an 
undertaking upon historic properties.
    (p) National Historic Landmark means a historic property that the 
Secretary of the Interior has designated a National Historic Landmark.
    (q) National Register means the National Register of Historic Places 
maintained by the Secretary of the Interior.
    (r) National Register criteria means the criteria established by the 
Secretary of the Interior for use in evaluating the eligibility of 
properties for the National Register (36 CFR part 60).
    (s)(1) Native Hawaiian organization means any organization which 
serves and represents the interests of Native Hawaiians; has as a 
primary and stated purpose the provision of services to Native 
Hawaiians; and has demonstrated expertise in aspects of historic 
preservation that are significant to Native Hawaiians.
    (2) Native Hawaiian means any individual who is a descendant of the 
aboriginal people who, prior to 1778, occupied and exercised sovereignty 
in the area that now constitutes the State of Hawaii.
    (t) Programmatic agreement means a document that records the terms 
and conditions agreed upon to resolve the potential adverse effects of a 
Federal agency program, complex undertaking or other situations in 
accordance with Sec. 800.14(b).
    (u) Secretary means the Secretary of the Interior acting through the 
Director of the National Park Service except where otherwise specified.
    (v) State Historic Preservation Officer (SHPO) means the official 
appointed or designated pursuant to section 101(b)(1) of the act to 
administer the State historic preservation program or a representative 
designated to act for the State historic preservation officer.
    (w) Tribal Historic Preservation Officer (THPO) means the tribal 
official appointed by the tribe's chief governing authority or 
designated by a tribal ordinance or preservation program who has assumed 
the responsibilities of the SHPO for purposes of section 106 compliance 
on tribal lands in accordance with section 101(d)(2) of the act.
    (x) Tribal lands means all lands within the exterior boundaries of 
any Indian reservation and all dependent Indian communities.
    (y) Undertaking means a project, activity, or program funded in 
whole or in part under the direct or indirect jurisdiction of a Federal 
agency, including those carried out by or on behalf of a Federal agency; 
those carried out with Federal financial assistance; and those requiring 
a Federal permit, license or approval.
    (z) Senior policy official means the senior policy level official 
designated

[[Page 110]]

by the head of the agency pursuant to section 3(e) of Executive Order 
13287.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40555, July 6, 2004]



    Sec. Appendix A to Part 800--Criteria for Council Involvement in 
                 Reviewing Individual section 106 Cases

    (a) Introduction. This appendix sets forth the criteria that will be 
used by the Council to determine whether to enter an individual section 
106 review that it normally would not be involved in.
    (b) General policy. The Council may choose to exercise its 
authorities under the section 106 regulations to participate in an 
individual project pursuant to the following criteria. However, the 
Council will not always elect to participate even though one or more of 
the criteria may be met.
    (c) Specific criteria. The Council is likely to enter the section 
106 process at the steps specified in the regulations in this part when 
an undertaking:
    (1) Has substantial impacts on important historic properties. This 
may include adverse effects on properties that possess a national level 
of significance or on properties that are of unusual or noteworthy 
importance or are a rare property type; or adverse effects to large 
numbers of historic properties, such as impacts to multiple properties 
within a historic district.
    (2) Presents important questions of policy or interpretation. This 
may include questions about how the Council's regulations are being 
applied or interpreted, including possible foreclosure or anticipatory 
demolition situations; situations where the outcome will set a precedent 
affecting Council policies or program goals; or the development of 
programmatic agreements that alter the way the section 106 process is 
applied to a group or type of undertakings.
    (3) Has the potential for presenting procedural problems. This may 
include cases with substantial public controversy that is related to 
historic preservation issues; with disputes among or about consulting 
parties which the Council's involvement could help resolve; that are 
involved or likely to be involved in litigation on the basis of section 
106; or carried out by a Federal agency, in a State or locality, or on 
tribal lands where the Council has previously identified problems with 
section 106 compliance pursuant to Sec. 800.9(d)(2).
    (4) Presents issues of concern to Indian tribes or Native Hawaiian 
organizations. This may include cases where there have been concerns 
raised about the identification of, evaluation of or assessment of 
effects on historic properties to which an Indian tribe or Native 
Hawaiian organization attaches religious and cultural significance; 
where an Indian tribe or Native Hawaiian organization has requested 
Council involvement to assist in the resolution of adverse effects; or 
where there are questions relating to policy, interpretation or 
precedent under section 106 or its relation to other authorities, such 
as the Native American Graves Protection and Repatriation Act.



PART 801_HISTORIC PRESERVATION REQUIREMENTS OF THE URBAN DEVELOPMENT ACTION 

GRANT PROGRAM--Table of Contents




Sec.
801.1 Purpose and authorities.
801.2 Definitions.
801.3 Applicant responsibilities.
801.4 Council comments.
801.5 State Historic Preservation Officer responsibilities.
801.6 Coordination with requirements under the National Environmental 
          Policy Act (42 U.S.C. 4321 et seq.).
801.7 Information requirements.
801.8 Public participation.

Appendix 1 to Part 801--Identification of Properties: General
Appendix 2 to Part 801--Special Procedures for Identification and 
          Consideration of Archeological Properties in an Urban Context

    Authority: Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470); Pub. L. 94-
422, 90 Stat. 1320 (16 U.S.C. 470(i)); Pub. L. 96-399, 94 Stat. 1619 (42 
U.S.C. 5320).

    Source: 46 FR 42428, Aug. 20, 1981, unless otherwise noted.



Sec. 801.1  Purpose and authorities.

    (a) These regulations are required by section 110(c) of the Housing 
and Community Development Act of 1980 (HCDA) (42 U.S.C. 5320) and apply 
only to projects proposed to be funded by the Department of Housing and 
Urban Development (HUD) under the Urban Development Action Grant (UDAG) 
Program authorized by title I of the Housing and Community Development 
Act of 1974, as amended (42 U.S.C. 5301). These regulations establish an 
expedited process for obtaining the comments of the Council specifically 
for the UDAG program and, except as specifically provided, substitute 
for the Council's regulations for the ``Protection of Historic and 
Cultural Properties'' (36 CFR part 800).

[[Page 111]]

    (b) Section 110(c) of the HCDA of 1980 requires UDAG applicants to: 
(1) Identify all properties, if any, which are included in the National 
Register of Historic Places and which will be affected by the project 
for which the application is made; (2) identify all other properties, if 
any, which will be affected by such project and which, as determined by 
the applicant, may meet the Criteria established by the Secretary of the 
Interior for inclusion in the National Register (36 CFR 60.6); and (3) 
provide a description of the effect, as determined by the applicant, of 
the project on properties identified pursuant to (1) and (2). If the 
applicant determines that such properties are affected, the Act requires 
that the information developed by the applicant must be forwarded to the 
appropriate State Historic Preservation Officer (SHPO) for review and to 
the Secretary of the Interior for a determination as to whether the 
affected properties are eligible for inclusion in the National Register.
    (c) Section 106 of the National Historic Preservation Act of 1966, 
as amended (16 U.S.C. 470), requires the head of any Federal agency with 
jurisdiction over a Federal, federally assisted or federally licensed 
undertaking that affects a property included in or eligible for 
inclusion in the National Register of Historic Places to take into 
account the effect of the undertaking on such property and afford the 
Council a reasonable opportunity to comment. Under the UDAG program, 
applicants assume the status of a Federal agency for purposes of 
complying with section 106.



Sec. 801.2  Definitions.

    The terms defined in 36 CFR 800.2 shall be used in conjunction with 
this regulation. Furthermore, as used in these regulations:
    (a) Urban Development Action Grant (UDAG) Program means the program 
of the Department of Housing and Urban Development (HUD) authorized by 
title I of the Housing and Community Development Act (HCDA) of 1977 (42 
U.S.C. 5318) to assist revitalization efforts in distressed cities and 
urban counties which require increased public and private investment.
    (b) Applicant means cities and urban counties or Pocket of Poverty 
Communities which meet the criteria at 24 CFR 570.453. Except as 
specifically provided below, applicants, rather than the Secretary of 
HUD, must comply with these regulations.
    (c) Project means a commercial, industrial, and/or neighborhood 
project supported by the UDAG program of the Department of HUD, as 
defined in 24 CFR 570.451(g). A project includes the group of integrally 
related public and private activities described in the grant application 
which are to be carried out to meet the objectives of the action grant 
program and consists of all action grant funded activities together with 
all non-action grant funded activities. A project is an undertaking as 
defined in 36 CFR 800.2(c).
    (d) State Historic Preservation Officer Review Period is a 45 day 
period provided to the appropriate State Historic Preservation Officer 
by section 110(c) of the Housing and Community Development Act (HCDA) of 
1980 for comment on the formal submission by the applicant of data on 
properties listed in the National Register or which may meet the 
Criteria and which will be affected by the proposed UDAG project. This 
period does not include any period during which the applicant seeks 
information from the State Historic Preservation Officer to assist the 
applicant in identifying properties, determining whether a property 
meets the Criteria for listing in the National Register of Historic 
Places and determining whether such property is affected by the project.
    (e) Secretary of the Interior Determination Period is a 45 day 
period provided by section 110(c) of the HCDA of 1980 for a 
determination as to whether the identified properties are eligible for 
inclusion in the National Register.



Sec. 801.3  Applicant responsibilities.

    As early as possible before the applicant makes a final decision 
concerning a project and in any event prior to taking any action that 
would foreclose alternatives or the Council's ability to comment, the 
applicant should take the following steps to comply with the

[[Page 112]]

requirements of section 106 of the National Historic Preservation Act 
and section 110 of the HCDA of 1980.

In order to facilitate the commenting process the applicant should 
forward to the Council information on the proposed project at the 
earliest practicable time if it appears that National Register 
properties or properties which meet the Criteria for inclusion will be 
affected. This will allow the Council to assist the applicant in 
expeditiously meeting its historic preservation requirements and 
facilitate the development of the Council's comments.
    (a) Information required. It is the primary responsibility of the 
applicant requesting Council comments to conduct the appropriate studies 
and to provide the information necessary for a review of the effect a 
proposed project may have on a National Register property or a property 
which meets the Criteria, as well as the information necessary for 
adequate consideration of modifications or alterations to the proposed 
project that could avoid, mitigate, or minimize any adverse effects. It 
is the responsibility of the applicant to provide the information 
specified in Sec. 801.7, to make an informed and reasonable evaluation 
of whether a property meets the National Register Criteria (36 CFR 60.6) 
and to determine the effect of a proposed undertaking on a National 
Register property or property which meets the Criteria.
    (b) Identification of properties. Section 110 of the HCDA of 1980 
makes UDAG applicants responsible for the identification of National 
Register properties and properties which may meet the Criteria for 
listing in the National Register that may be affected by the project. An 
appendix to these regulations sets forth guidance to applicants in 
meeting their identification responsibilities but does not set a fixed 
or inflexible standard for such efforts. Meeting this responsibility 
requires the applicant to make an earnest effort to identify and 
evaluate potentially affected historic properties by:
    (1) Consulting the National Register of Historic Places to determine 
whether the project's impact area includes such properties;
    (2) Obtaining, prior to initiating the State Historic Preservation 
Officer Review Period, relevant information that the State Historic 
Preservation Officer may have available concerning historic properties, 
if any are known, in the project's impact area;
    (3) Utilizing local plans, surveys, and inventories of historic 
properties prepared by the locality or a recognized State or local 
historic authority;
    (4) Utilizing other sources of information or advice the applicant 
deems appropriate;
    (5) Conducting an on-the-ground inspection of the project's impact 
area by qualified personnel to identify properties which may meet the 
Criteria for evaluation taking into consideration the views of the State 
Historic Preservation Officer as to the need for and methodology of such 
inspections;
    (6) Applying the Department of the Interior Criteria for Evaluation 
(36 CFR 60.6) to properties within the project's impact area.
    (c) Evaluation of effect. Applicants are required by section 110(a) 
of the HCDA of 1980 to include in their applications a description of 
the effect of a proposed UDAG project on any National Register property 
and or any property which may meet the Criteria.
    (1) Criteria of Effect and Adverse Effect. The following criteria, 
similar to those set forth in 36 CFR 800.3, shall be used to determine 
whether a project has an effect or an adverse effect.
    (i) Criteria of effect. The effect of a project on a National 
Register or eligible property is evaluated in the context of the 
historical, architectural, archeological, or cultural significance 
possessed by the property. A project shall be considered to have an 
effect whenever any condition of the project causes or may cause any 
change, beneficial or adverse, in the quality of the historical, 
architectural, archeological, or cultural characteristics that qualify 
the property to meet the Criteria of the National Register. An effect 
occurs when a project changes the integrity of location, design, 
setting, materials, workmanship, feeling or association of the property 
that contributes to its significance in accordance with the National 
Register Criteria. An effect may be direct or indirect. Direct effects 
are caused by the project and occur at the same time and place. Indirect 
effects

[[Page 113]]

include those caused by the undertaking that are later in time or 
farther removed in distance, but are still reasonably foreseeable. Such 
effects involve development of the project site around historic 
properties so as to affect the access to, use of, or significance of 
those properties.
    (ii) Criteria of adverse effect. Adverse effects on National 
Register properties or properties which meet the Criteria may occur 
under conditions which include but are not limited to:
    (A) Destruction or alteration of all or part of a property;
    (B) Isolation from or alteration of the property's surrounding 
environment;
    (C) Introduction of visual, audible, or atmospheric elements that 
are out of character with the property or alter its setting;
    (D) Neglect of a property resulting in its deterioration or 
destruction;
    (iii) Special considerations. If rehabilitation is a project 
activity, such components of the project may be considered to have no 
adverse effect and need not be referred to the Council if they are 
undertaken in accordance with the Secretary of the Interior's Standards 
for Historic Preservation Projects (U.S. Department of the Interior, 
Heritage Conservation and Recreation Service, Washington, DC, 1979) and 
the State Historic Preservation Officer concurs in the proposed 
activity. Additionally, the following types of project components or 
elements will be considered to not normally adversely affect properties 
listed in the National Register or which meet the Criteria.
    (A) Insulation (except for the use of granular or liquid injected 
foam insulation in exterior walls or other vertical surfaces);
    (B) Caulking;
    (C) Weatherstripping;
    (D) Replacement of Heating, Ventilating and Air Conditioning (HVAC) 
equipment, provided that such equipment is not historic and that 
replacement equipment is screened from public view and that the State 
Historic Preservation Officer and the applicant agree the equipment will 
not affect those qualities of the property which qualify it to meet the 
36 CFR 60.6 Criteria;
    (E) In-kind refenestration (for example, replacement of deteriorated 
windows of a similar configuration, color and material);
    (F) Lowering of ceilings, provided the ceilings will not be visible 
from outside of the building or from an interior public space and that 
the State Historic Preservation Officer and the applicant agree it will 
not affect a quality which qualified the building to meet the 36 CFR 
60.6 Criteria;
    (G) Replacement in-kind of substantially deteriorated material, 
provided that the State Historic Preservation Officer and the applicant 
agree;
    (H) Installation of machinery, equipment, furnishings, fixtures, 
etc., in the interior of existing buildings, provided that the State 
Historic Preservation Officer and the applicant agree such installations 
will not affect a quality which qualified the building to meet the 36 
CFR 60.6 Criteria.
    (I) Site improvements such as sidewalk paving and landscaping, 
provided that the State Historic Preservation Officer and the applicant 
agree that the site improvement will not affect those qualities of the 
property which qualify it to meet the 36 CFR 60.6 Criteria.
    (iv) Special considerations for archeological sites. Under certain 
conditions, alteration of land containing archeological resources in the 
project area may have no adverse effect on those resources. Procedures 
for determining whether such conditions exist were published by the 
Council in the Federal Register on November 26, 1980 (45 FR 78808), as 
part X of the ``Executive Director's Procedures for Review of Proposals 
for Treatment of Archeological Properties.'' Because the identification 
of archeological sites in an urban context, and consideration of 
appropriate treatment methods, present special problems, further 
guidance is provided in Appendix 2.
    (2) Determinations of Effect. Prior to submitting an application to 
HUD, the applicant shall apply the Criteria of Effect and Adverse Effect 
to all properties which are listed in the National

[[Page 114]]

Register or which may meet the Criteria in the area of the project's 
potential environmental impact. The determination of the Secretary of 
the Interior shall be final with respect to properties which are 
eligible for listing in the National Register. The Council will not 
comment on affected properties which are not either listed in or 
eligible for listing in the National Register. In order to facilitate 
the process, information to be requested from the State Historic 
Preservation Officer under Sec. 801.3(b)(2) should include advice on 
applying the Criteria of Effect and Adverse Effect provided that this 
period shall not be included in the 45 day State Historic Preservation 
Officer Review Period. Special attention should be paid to indirect 
effects, such as changes in land use, traffic patterns, street activity, 
population density and growth rate. While some aspects of a project may 
have little potential to adversely affect the significant qualities of a 
historic property, other project components may meet the Criteria of 
Effect and Adverse Effect. If any aspect of the project results in an 
effect determination, further evaluation of the effect shall be 
undertaken in accordance with these regulations. The resulting 
determination regarding the effect shall be included in the application.
    (i) No effect. If the applicant determines that the project will 
have no effect on any National Register property and/or property which 
meets the Criteria, the project requires no further review by the 
Council unless a timely objection is made by the Executive Director. An 
objection may be made by the Executive Director at any time during the 
UDAG application process prior to the expiration of the period for 
receiving objections to HUD's release of funds as specified in 24 CFR 
58.31. The manner in which the Executive Director shall make an 
objection is set forth in Sec. 801.4(a).
    (ii) Determinations of no adverse effect. If the applicant finds 
there is an effect on the property but it is not adverse, the applicant 
after receiving the comments of the State Historic Preservation Officer 
during the State Historic Preservation Officer Review Period shall 
forward adequate documentation (see Sec. 801.7(a)) of the 
Determination, including the written comments of the State Historic 
Preservation Officer, if available, to the Executive Director for review 
in accordance with Sec. 801.4.
    (iii) Adverse effect determination. If the applicant finds the 
effect to be adverse or if the Executive Director objects to an 
applicant's no adverse effect determination pursuant to Sec. 801.4(a), 
the applicant shall proceed with the consultation process in accordance 
with Sec. 801.4(b).



Sec. 801.4  Council comments.

    The following subsections specify how the Council will respond to an 
applicant's request for the Council's comments required to satisfy the 
applicant's responsibilities under section 106 of the Act and section 
110 of the HCDA of 1980. When appropriate, an applicant may waive the 
Council time periods specified in these regulations.
    (a) Executive Director's Objection to No Effect Determination. If 
the Executive Director has reason to question an applicant's 
determination of no effect, he shall notify the applicant and HUD. If 
the Executive Director does not object within 15 days of such 
notification, the project may proceed. If the Executive Director 
objects, he shall specify whether or not the project will have an 
adverse effect on National Register property and/or property which meets 
the Criteria. Normally, the Executive Director will object to a 
determination of no effect when the record does not support the 
applicant's determination (see Sec. 801.7(a)). The applicant must then 
comply with the provisions of subsection (b) if the Executive Director 
determines that the project will have no adverse effect or subsection 
(c) if the Executive Director has determined that the project will have 
an adverse effect.
    (b) Response to Determinations of No Adverse Effect. (1) Upon 
receipt of a Determination of No Adverse Effect from an applicant, the 
Executive Director will review the Determination and supporting 
documentation required by Sec. 801.7(a). Failure to provide the 
required information at the time the applicant requests Council comments 
will delay the process. The Executive Director will respond to the 
applicant within 15 days after receipt of the information

[[Page 115]]

required in Sec. 801.7(a). Unless the Executive Director objects to the 
Determination within 15 days after receipt, the applicant will be 
considered to have satisfied its responsibilities under section 106 of 
the Act and these regulations and no further Council review is required.
    (2) If the Executive Director objects to a Determination of No 
Adverse Effect, the consultation process pursuant to Sec. 801.4(c) 
shall be initiated.
    (c) Consultation process. If any aspect of the project is found to 
have adverse effects on National Register property or property which has 
been determined by the applicant or the Secretary of the Interior to 
meet the Criteria, the applicant, the State Historic Preservation 
Officer and the Executive Director shall consult to consider feasible 
and prudent alternatives to the project that could avoid, mitigate, or 
minimize the adverse effect on the affected property.
    (1) Parties. The applicant, the State Historic Preservation Officer 
and the Executive Director shall be the consulting parties. The 
Department of HUD, other representatives of national, State, or local 
units of government, other parties in interest, and public and private 
organizations, may be invited by the consulting parties to participate 
in the consultation process.
    (2) Timing. The consulting parties shall have a total of 45 days 
from the receipt by the Executive Director of the information required 
in Sec. 801.7(a) to agree upon feasible and prudent alternatives to 
avoid, mitigate, or minimize any adverse effects of the project. Failure 
of an applicant to provide the information required in Sec. 801.7(b) 
will delay the beginning of the time period specified above.
    (3) Information requirements. The applicant shall provide copies of 
the information required in Sec. 801.7(b) to the consulting parties at 
the initiation of the consultation process and make it readily available 
for public inspection.
    (4) Public meeting. An onsite inspection and a Public Information 
Meeting may be held in accordance with the provisions of 36 CFR 
800.6(b). Public hearings or meetings conducted by the applicant in the 
preparation of the application may, as specified below, substitute for 
such Public Information Meetings. Upon request of the applicant, the 
Executive Director may find that such public meetings have been adequate 
to consider the effect of the project on National Register properties or 
properties which meet the Criteria, and no further Public Information 
Meeting is required.
    (5) Consideration of alternatives. During the consultation period, 
the consulting parties shall, in accordance with the policies set forth 
in 36 CFR 800.6(b) (4) and (5), review the proposed project to determine 
whether there are prudent and feasible alternatives to avoid or 
satisfactorily mitigate adverse effect. If they agree on such 
alternatives, they shall execute a Memorandum of Agreement in accordance 
with Sec. 801.4(c) specifying how the undertaking will proceed to avoid 
or mitigate the adverse effect.
    (6) Acceptance of adverse effect. If the consulting parties 
determine that there are no feasible and prudent alternatives that could 
avoid or satisfactorily mitigate the adverse effects and agree that it 
is in the public interest to proceed with the proposed project they 
shall execute a Memorandum of Agreement in accordance with Sec. 
801.4(c) acknowledging this determination and specifying any recording, 
salvage, or other measures associated with acceptance of the adverse 
effects that shall be taken before the project proceeds.
    (7) Failure to agree. Upon the failure of the consulting parties to 
agree upon the terms for a Memorandum of Agreement within the specified 
time period, or upon notice of a failure to agree by any consulting 
party to the Executive Director, the Executive Director within 15 days 
shall recommend to the Chairman whether the matter should be scheduled 
for consideration at a Council meeting. If the Executive Director 
recommends that the Council not consider the matter, he shall 
simultaneously notify all Council members and provide them copies of the 
preliminary case report and the recommendation to the Chairman. The 
applicant and the State Historic Preservation Officer shall be notified 
in writing of the Executive Director's recommendation.

[[Page 116]]

    (d) Memorandum of Agreement--(1) Preparation of Memorandum of 
Agreement. It shall be the responsibility of the Executive Director to 
prepare each Memorandum of Agreement required under this part. As 
appropriate, other parties may be invited by the consulting parties to 
be signatories to the Agreement or otherwise indicate their concurrence 
with the Agreement. In order to facilitate the process, the applicant 
may provide the Executive Director a draft for a Memorandum of 
Agreement. At the applicant's option, such draft may be prepared at the 
time the applicant makes its determinations that properties listed in 
the National Register or which may meet the Criteria for listing in the 
National Register may be adversely affected. The applicant must provide 
the State Historic Preservation Officer an opportunity to concur in or 
comment on its draft Agreement.
    (2) Review of Memorandum of Agreement. Upon receipt of an executed 
Memorandum of Agreement, the Chairman shall institute a 15 day review 
period. Unless the Chairman notifies the applicant that the matter has 
been placed on the agenda for consideration at a Council meeting, the 
Agreement shall become final when ratified by the Chairman or upon the 
expiration of the 15 day review period with no action taken. Copies will 
be provided to signatories. A copy of the Memorandum of Agreement should 
be included in any Environmental Assessment or Environmental Impact 
Statement prepared pursuant to the National Environmental Policy Act.
    (3) Effect of Memorandum of Agreement. (i) Agreements duly executed 
in accordance with these regulations shall constitute the comments of 
the Council and shall evidence satisfaction of the applicant's 
responsibilities for the proposed project under section 106 of the Act 
and these regulations.
    (ii) If the Council has commented on an application that is not 
approved by HUD and a subsequent UDAG application is made for the same 
project, the project need not be referred to the Council again unless 
there is a significant amendment to the project which would alter the 
effect of the project on previously considered properties or result in 
effects on additional National Register properties or properties which 
meet the Criteria.
    (iii) Failure to carry out the terms of a Memorandum of Agreement 
requires that the applicant again request the Council's comments in 
accordance with these regulations. In such instances, until the Council 
issues its comments under these regulations the applicant shall not take 
or sanction any action or make any irreversible or irretrievable 
commitment that could result in an adverse effect with respect to 
National Register properties or properties which are eligible for 
inclusion in the National Register covered by the Agreement or that 
would foreclose the Council's consideration of modifications or 
alternatives to the proposed project that could avoid or mitigate the 
adverse effect.
    (4) Amendment of a Memorandum of Agreement. Amendments to the 
Agreement may be made as specified in 36 CFR 800.6(c)(4).
    (5) Report on Memorandum of Agreement. Within 90 days after carrying 
out the terms of the Agreement, the applicant shall report to all 
signatories on the actions taken.
    (e) Council Meetings. Council meetings to consider a project will be 
conducted in accordance with the policies set forth in 36 CFR 800.6(d).
    (1) Response to recommendation concerning consideration at Council 
meeting. Upon receipt of a recommendation from the Executive Director 
concerning consideration of a proposed project at a Council meeting, the 
Chairman shall determine whether or not the project will be considered. 
The Chairman shall make a decision within 15 days of receipt of the 
recommendation of the Executive Director. In reaching a decision the 
Chairman shall consider any comments from Council members. If three 
members of the Council object within the 15 day period to the Executive 
Director's recommendation, the project shall be scheduled for 
consideration at a Council or panel meeting. Unless the matter is 
scheduled for consideration by the Council the Chairman shall notify the 
applicant, the Department of HUD, the State Historic Preservation 
Officer and other parties known to be interested of

[[Page 117]]

the decision not to consider the matter. Such notice shall be evidence 
of satisfaction of the applicant's responsibilities for the proposed 
project under section 106 of the Act and these regulations.
    (2) Decision to consider the project. When the Council will consider 
a proposed project at a meeting, the Chairman shall either designate 
five members as a panel to hear the matter on behalf of the full Council 
or schedule the matter for consideration by the full Council. In either 
case, the meeting shall take place within 30 days of the Chairman's 
decision to consider the project, unless the applicant agrees to a 
longer time.
    (i) A panel shall consist of three non-Federal members, one as 
Chairman, and two Federal members. The Department of HUD may not be a 
member of such panel.
    (ii) Prior to any panel or full Council consideration of a matter, 
the Chairman will notify the applicant and the State Historic 
Preservation Officer and other interested parties of the date on which 
the project will be considered. The Executive Director, the applicant, 
the Department of HUD, and the State Historic Preservation Officer shall 
prepare reports in accordance with Sec. 801.7(b). Reports from the 
applicant and the State Historic Preservation Officer must be received 
by the Executive Director at least 7 days before any meeting.
    (3) Notice of Council meetings. At least 7 days notice of all 
meetings held pursuant to this section shall be given by publication in 
the Federal Register. The Council shall provide a copy of the notice by 
mail to the applicant, the State Historic Preservation Officer, and the 
Department of Housing and Urban Development. The Council will inform the 
public of the meeting through appropriate local media.
    (4) Statements to the Council. An agenda shall provide for oral 
statements from the Executive Director; the applicant; the Department of 
HUD; parties in interest; the Secretary of the Interior; the State 
Historic Preservation Officer; representatives of national, State, or 
local units of government; and interested public and private 
organizations and individuals. Parties wishing to make oral remarks 
should notify the Executive Director at least two days in advance of the 
meeting. Parties wishing to have their written statements distributed to 
Council members prior to the meeting should send copies of the 
statements to the Executive Director at least 5 days in advance.
    (5) Comments of the Council. The written comments of the Council 
will be issued within 7 days after a meeting. Comments by a panel shall 
be considered the comments of the full Council. Comments shall be made 
to the applicant requesting comment and to the Department of HUD. 
Immediately after the comments are made to the applicant and the 
Department of HUD, the comments of the Council will be forwarded to the 
President and the Congress as a special report under authority of 
section 202(b) of the Act and a notice of availability will be published 
in the Federal Register. The comments of the Council shall be made 
available to the State Historic Preservation Officer, other parties in 
interest, and the public upon receipt of the comments by the applicant. 
The applicant should include the comments of the Council in any final 
Environmental Impact Statement prepared pursuant to the National 
Environmental Policy Act.
    (6) Action in response to Council comments. The comments of the 
Council shall be taken into account in reaching a final decision on the 
proposed project. When a final decision regarding the proposed project 
is reached by the applicant and the Department of HUD, they shall submit 
written reports to the Council describing the actions taken by them and 
other parties in response to the Council's comments and the impact that 
such actions will have on the affected National Register properties or 
properties eligible for inclusion in the National Register. Receipt of 
this report by the Chairman shall be evidence that the applicant has 
satisfied its responsibilities for the proposed project under section 
106 of the Act and these regulations. The Council may issue a final 
report to the President and the Congress under authority of section 
202(b) of the Act describing the actions taken in response to the

[[Page 118]]

Council's comments including recommendations for changes in Federal 
policy and programs, as appropriate.
    (f) Suspense of Action. Until the Council issues its comments under 
these regulations and during the State Historic Preservation Officer 
Review Period and the determination period of the Secretary of the 
Interior, good faith consultation shall preclude the applicant from 
taking or sanctioning any action or making any irreversible or 
irretrievable commitment that could result in an adverse effect on a 
National Register property or property which may meet the Criteria or 
that would foreclose the consideration of modifications or alternatives 
to the proposed project that could avoid, mitigate, or minimize such 
adverse effects. In no case shall UDAG funds be used for physical 
activities on the project site until the Council comments have been 
completed. Normal planning and processing of applications short of 
actual commitment of funds to the project may proceed.
    (g) Lead Agency. If the project proposed by the applicant involves 
one or more Federal agencies, they may agree on a single lead agency to 
meet the requirements of section 106 of the National Historic 
Preservation Act and section 110 of the Housing and Community 
Development Act of 1980 and notify the Executive Director. If the 
applicant is the designated lead agency, these regulations shall be 
followed. If a Federal agency is designated lead agency, the process in 
36 CFR part 800 shall be used.
    (h) Compliance by a Federal Agency. An applicant may make a finding 
that it proposes to accept a Federal agency's compliance with section 
106 of the Act and 36 CFR 800 where its review of the Federal agency's 
findings indicate that:
    (1) The project is identical with an undertaking reviewed by the 
Council under 36 CFR part 800; and
    (2) The project and its impacts are included within the area of 
potential environmental impact described by the Federal agency;

The applicant shall notify the State Historic Preservation Officer and 
the Executive Director of its finding of compliance with section 106 of 
the Act and 36 CFR part 800 and provide a copy of the Federal agency's 
document where the finding occurs. Unless the Executive Director objects 
within 10 days of receipt of such notice the Council need not be 
afforded further opportunity for comment. If the Executive Director 
objects to the finding of the applicant, the applicant shall comply with 
Sec. 801.4.



Sec. 801.5  State Historic Preservation Officer responsibilities.

    (a) The State Historic Preservation Officer shall have standing to 
participate in the review process established by section 110(c) of the 
HCDA of 1980 whenever it concerns a project located within the State 
Historic Preservation Officer's jurisdiction by the following means: 
providing, within 30 days, information requested by an applicant under 
Sec. 801.3(b); responding, within 45 days, to submittal of a 
determination by the applicant under section 110 of the HCDA of 1980 
that National Register property or property which meets the Criteria may 
be affected by the proposed project; participating in a Memorandum of 
Agreement that the applicant or the Executive Director may prepare under 
this part; and participating in a panel or full Council meeting that may 
be held pursuant to these regulations. Pursuant to section 110(c) of the 
HCDA of 1980, the State Historic Preservation Officer has a maximum 
period of 45 days in which to formally comment on an applicant's 
determination that the project may affect a property that is listed in 
the National Register or which may meet the Criteria for listing in the 
National Register. This period does not include the time during which 
the applicant seeks information from the State Historic Preservation 
Officer for determining whether a property meets the Criteria for 
listing in the National Register and whether such property is affected 
by the project.
    (b) The failure of a State Historic Preservation Officer to 
participate in any required steps of the process set forth in this part 
shall not prohibit the Executive Director and the applicant from 
concluding the section 106 process, including the execution of a 
Memorandum of Agreement.

[[Page 119]]



Sec. 801.6  Coordination with requirements under the National Environmental 

Policy Act (42 U.S.C. 4321 et seq.).

    The National Historic Preservation Act and the National 
Environmental Policy Act create separate and distinct responsibilities. 
The National Historic Preservation Act applies to those aspects of a 
project which may affect National Register properties and those which 
are eligible for listing in the National Register. The requirements for 
the National Environmental Policy Act apply to the effect that the 
project will have on the human environment. To the extent that the 
applicant finds it practicable to do so, the requirements of these two 
statutes should be integrated. Some projects, for reasons other than the 
effects on historic properties, may require an Environmental Impact 
Statement (EIS) subject to the time requirements for a draft and final 
EIS, in which case the applicant may choose to separately relate to the 
State Historic Preservation Officer, the Department of the Interior, and 
the Council for purposes of section 110(c) of the HCDA of 1980. In that 
event, information in the draft EIS should indicate that compliance with 
section 106 and these regulations is underway and the final EIS should 
reflect the results of this process. Applicants are directed to 36 CFR 
800.9, which describes in detail the manner in which the requirements of 
these two acts should be integrated and applies to all UDAG applicants 
under these regulations.

In those instances in which an Environmental Impact Statement will be 
prepared for the project, the applicant should consider phasing 
compliance with these procedures and the preparation of the Statement.



Sec. 801.7  Information requirements.

    (a) Information To Be Retained by Applicants Determining No Effect. 
(1) Recommended Documentation for a Determination of No Effect. Adequate 
documentation of a Determination of No Effect pursuant to Sec. 
801.3(c)(2)(i) should include the following:
    (i) A general discussion and chronology of the proposed project;
    (ii) A description of the proposed project including, as 
appropriate, photographs, maps, drawings, and specifications;
    (iii) A statement that no National Register property or property 
which meets the Criteria exist in the project area, or a brief statement 
explaining why the Criteria of Effect (See Sec. 801.3(c)) was found 
inapplicable;
    (iv) Evidence of consultation with the State Historic Preservation 
Officer concerning the Determination of No Effect; and
    (v) Evidence of efforts to inform the public concerning the 
Determination of No Effect.
    (2) The information requirements set forth in this section are meant 
to serve as guidance for applicants in preparing No Effect 
Determinations. The information should be retained by the applicant, 
incorporated into any environmental reports or documents prepared 
concerning the project, and provided to the Executive Director only in 
the event of an objection to the applicant's determination.
    (b) Reports to the Council. In order to adequately assess the impact 
of a proposed project on National Register and eligible properties, it 
is necessary for the Council to be provided certain information. For the 
purposes of developing Council comments on UDAG projects the following 
information is required. Generally, to the extent that relevant portions 
of a UDAG application meet the requirements set forth below it will be 
sufficient for the purposes of Council review and comment.
    (1) Documentation for Determination of No Adverse Effect. Adequate 
documentation of a Determination of No Adverse Effect pursuant to Sec. 
801.3(c)(1) should include the following:
    (i) A general discussion and chronology of the proposed project;
    (ii) A description of the proposed project including, as 
appropriate, photographs, maps, drawings and specifications;
    (iii) A copy of the National Register form or a copy of the 
Determination of Eligibility documentation for each property that will 
be affected by the project including a description of each property's 
physical appearance and significance;
    (iv) A brief statement explaining why each of the Criteria of 
Adverse Effect

[[Page 120]]

(See Sec. 801.3(c)(1)) was found inapplicable;
    (v) Written views of the State Historic Preservation Officer 
concerning the Determination of No Adverse Effect, if available; and,
    (vi) An estimate of the cost of the project including the amount of 
the UDAG grant and a description of any other Federal involvement.
    (2) Preliminary Case Reports. Preliminary Case Reports should be 
submitted with a request for comments pursuant to Sec. 801.4(b) and 
should include the following information:
    (i) A general discussion and chronology of the proposed project;
    (ii) The status of the project in the HUD approval process:
    (iii) The status of the project in the National Environmental Policy 
Act compliance process and the target date for completion of all the 
applicant's environmental responsibilities;
    (iv) A description of the proposed project including as appropriate, 
photographs, maps, drawings and specifications;
    (v) A copy of the National Register form or a copy of the 
Determination of Eligibility documentation for each property that will 
be affected by the project including a description of each property's 
physical appearance and significance;
    (vi) A brief statement explaining why any of the Criteria of Adverse 
Effect (See Sec. 801.3(c)(1)(b)) apply;
    (vii) Written views of the State Historic Preservation Officer 
concerning the effect on the property, if available;
    (viii) The views of Federal agencies, State and local governments, 
and other groups or individuals when known as obtained through the OMB 
Circular A-95 process or the environmental review process, public 
hearings or other applicant processes;
    (ix) A description and analysis of alternatives that would avoid the 
adverse effects;
    (x) A description and analysis of alternatives that would mitigate 
the adverse effects; and,
    (xi) An estimate of the cost of the project including the amount of 
the UDAG grant and a description of any other Federal involvement.
    (c) Reports for Council Meetings. Consideration of a proposed 
project by the full Council or a panel pursuant to Sec. 801.4(b) is 
based upon reports from the Executive Director, the State Historic 
Preservation Officer and Secretary of the Interior. Requirements for 
these reports are specified in 36 CFR 800.13(c). Additionally, reports 
from the applicant and the Department of HUD are required by these 
regulations. The requirements for these reports consist of the 
following:
    (1) Report of the Applicant. The report from the applicant 
requesting comments shall include a copy of the relevant portions of the 
UDAG application; a general discussion and chronology of the proposed 
project; an account of the steps taken to comply with the National 
Environmental Policy Act (NEPA); any relevant supporting documentation 
in studies that the applicant has completed; an evaluation of the effect 
of the project upon the property or properties, with particular 
reference to the impact on the historical, architectural, archeological, 
and cultural values; steps taken or proposed by the applicant to avoid 
or mitigate adverse effects of the project; a thorough discussion of 
alternate courses of action; and an analysis comparing the advantages 
resulting from the project with the disadvantages resulting from the 
adverse effects on National Register or eligible properties.
    (2) Report of the Secretary of Housing and Urban Development. The 
report from the Secretary shall include the status of the application in 
the UDAG approval process, past involvement of the Department with the 
applicant and the proposed project or land area for the proposed 
project, and information on how the applicant has met other requirements 
of the Department for the proposed project.



Sec. 801.8  Public participation.

    (a) The Council encourages maximum public participation in the 
process established by these regulations. Particularly important, with 
respect to the UDAG program, is participation by the citizens of 
neighborhoods directly or indirectly affected by projects, and by groups 
concerned with historic and cultural preservation.

[[Page 121]]

    (b) The applicant, in preparing and following its citizen 
participation plan called for by 24 CFR 570.456(c)(11)(i)(A), should 
ensure that adequate provision is made for participation by citizens and 
organizations having interests in historic preservation and in the 
historic and cultural values represented in affected neighborhoods. 24 
CFR 570.431(c) sets forth criteria for citizen participation plans. 
These should be carefully considered with specific reference to ensuring 
that local concerns relevant to historic preservation are fully 
identified, and that citizens are provided with full and accurate 
information about each project and its effects on historic properties. 
The applicant should ensure that potentially concerned citizens and 
organizations are fully involved in the identification of properties 
which may meet the National Register Criteria, and that they are fully 
informed, in a timely manner, of determinations of No Effect, No Adverse 
Effect, and Adverse Effect, and of the progress of the consultation 
process. Applicants are referred to 36 CFR 800.15 for Council guidelines 
for public participation.
    (c) The Council welcomes the views of the public, especially those 
groups which may be affected by the proposed project, during its 
evaluation of the applicant's determination of effect, and will solicit 
the participation of the public in Council and panel meetings held to 
consider projects.



   Sec. Appendix 1 to Part 801--Identification of Properties: General

                             A. Introduction

    Because of the high probability of locating properties which are 
listed in the National Register or which meet the Criteria for listing 
in many older city downtowns, this appendix is designed to serve as 
guidance for UDAG applicants in identifying such properties. This 
appendix sets forth guidance for applicants and does not set a fixed or 
inflexible standard for identification efforts.

           B. Role of the State Historic Preservation Officer

    In any effort to locate National Register properties or properties 
which meet the Criteria, the State Historic Preservation Officer is a 
key source of information and advice. The State Historic Preservation 
Officer will be of vital assistance to the applicant. The State Historic 
Preservation Officer can provide information on known properties and on 
studies which have taken place in and around the project area. Early 
contact should be made with the State Historic Preservation Officer for 
recommendations about how to identify historic properties. For UDAG 
projects, identification of National Register properties and properties 
which meet the Criteria is the responsibility of the applicant. The 
extent of the identification effort should be made with the advice of 
the State Historic Preservation Officer. The State Historic Preservation 
Officer can be a knowledgeable source of information regarding cases 
wherein the need for a survey of historic properties is appropriate, 
recommended type and method of a survey and the boundaries of any such 
survey. Due consideration should be given to the nature of the project 
and its impacts, the likelihood of historic properties being affected 
and the state of existing knowledge regarding historic properties in the 
area of the project's potential environmental impact.

                       C. Levels of Identification

    1. The area of the project's potential environmental impact consists 
of two distinct subareas: that which will be disturbed directly 
(generally the construction site and its immediate environs) and that 
which will experience indirect effects. Within the area of indirect 
impact, impacts will be induced as a result of carrying the project out. 
Historic and cultural properties subject to effect must be identified in 
both subareas, and the level of effort necessary in each may vary. The 
level of effort needed is also affected by the stage of planning and the 
quality of pre-existing information. Obviously, if the area of potential 
environmental impact has already been fully and intensively studied 
before project planning begins, there is no need to duplicate this 
effort. The State Historic Preservation Officer should be contacted for 
information on previous studies. If the area has not been previously 
intensively studied, identification efforts generally fall into three 
levels:
    a. Overview Study: This level of study is normally conducted as a 
part of general planning and is useful at an early stage in project 
formulation. It is designed to obtain a general understanding of an 
area's historic and cultural properties in consultation with the State 
Historic Preservation Officer, by:
    (1) Assessing the extent to which the area has been previously 
subjected to study;
    (2) Locating properties previously recorded;
    (3) Assessing the probability that properties eligible for the 
National Register will be found if the area is closely inspected, and
    (4) Determining the need, if any, for further investigation.


[[Page 122]]


An overview study includes study of pertinent records (local histories, 
building inventories, architectural reports, archeological survey 
reports, etc.), and usually some minor on-the-ground inspection.
    b. Identification Study: An identification study attempts to 
specifically identify and record all properties in an area that may meet 
the criteria for listing in the National Register. In conducting the 
study, the applicant should seek the advice of the State Historic 
Preservation Officer regarding pertinent background data. A thorough on-
the-ground inspection of the subject area by qualified personnel should 
be undertaken. For very large areas, or areas with uncertain boundaries, 
such a study may focus on representative sample areas, from which 
generalizations may be made about the whole.
    c. Definition and Evaluation Study: If an overview and/or an 
identification study have indicated the presence or probable presence of 
properties that may meet the National Register Criteria but has not 
documented them sufficiently to allow a determination to be made about 
their eligibility, a definition and evaluation study is necessary. Such 
a study is directed at specific potentially eligible properties or at 
areas known or suspected to contain such properties. It includes an 
intensive on-the-ground inspection and related studies as necessary, 
conducted by qualified personnel, and provides sufficient information to 
apply the National Register's ``Criteria for Evaluation'' (36 CFR 60.6).
    2. An overview study will normally be needed to provide basic 
information for planning in the area of potential environmental impact. 
Unless this study indicates clearly that no further identification 
efforts are needed (e.g., by demonstrating that the entire area has 
already been intensively inspected with negative results, or by 
demonstrating that no potentially significant buildings have ever been 
built there and there is virtually no potential for archeological 
resources), and identification study will probably be needed within the 
area of potential environmental impact. This study may show that there 
are no potentially eligible properties within the area, or may show that 
only a few such properties exist and document them sufficiently to 
permit a determination of eligibility to be made in accordance with 36 
CFR part 60. Alternatively, the study may indicate that potentially 
eligible properties exist in the area, but may not document them to the 
standards of 36 CFR part 60. Should this occur, a definition and 
evaluation study is necessary for those properties falling within the 
project's area of direct effect and for those properties subject to 
indirect effects. If a property falls within the general area of 
indirect effect, but no indirect effects are actually anticipated on the 
property in question, a definition and evaluation study will normally be 
superfluous.



 Sec. Appendix 2 to Part 801--Special Procedures for Identification and 
      Consideration of Archeological Properties in an Urban Context

    A. Archeological sites in urban contexts are often difficult to 
identify and evaluate in advance of construction because they are sealed 
beneath modern buildings and structures. Prehistoric and historic sites 
within cities may be important both to science and to an understanding 
of each city's history, however, and should be considered in project 
planning. Special methods can be used to ensure effective and efficient 
consideration and treatment of archeological sites in UDAG projects.
    1. If it is not practical to physically determine the existence or 
nonexistence of archeological sites in the project area, the probability 
or improbability of their existence can be determined, in most cases, 
through study of:
    a. Information on the pre-urban natural environment, which would 
have had an effect on the location of prehistoric sites;
    b. Information from surrounding areas and general literature 
concerning the location of prehistoric sites;
    c. State and local historic property registers or inventories;
    d. Archeological survey reports;
    e. Historic maps, atlases, tax records, photographs, and other 
sources of information on the locations of earlier structures;
    f. Information on discoveries of prehistoric or historic material 
during previous construction, land levelling, or excavation, and
    g. Some minor on-the-ground inspection.
    2. Should the study of sources such as those listed in section 
(1)(a) above reveal that the following conditions exist, it should be 
concluded that a significant likelihood exists that archeological sites 
which meet the National Register Criteria exist on the project site:
    a. Discoveries of prehistoric or historic material remains have been 
reliably reported on or immediately adjacent to the project site, and 
these are determined by the State Historic Preservation Officer or other 
archeological authority to meet the Criteria for the National Register 
because of their potential value for public interpretation or the study 
of significant scientific or historical research problems; or
    b. Historical or ethnographic data, or discoveries of material, 
indicate that a property of potential cultural value to the community or 
some segment of the community (e.g., a cemetery) lies or lay within the 
project site; or
    c. The pre-urbanization environment of the project site would have 
been conducive to prehistoric occupation, or historic buildings or 
occupation sites are documented to have existed within the project site 
in earlier

[[Page 123]]

times, and such sites or buildings are determined by the State Historic 
Preservation Officer or other archeological authority to meet the 
Criteria of the National Register because of their potential value for 
public interpretation or the study of significant scientific or 
historical research questions, and
    d. The recent history of the project site has not included extensive 
and intensive ground disturbance (grading, blasting, cellar digging, 
etc.) in the location, or extending to the depth at which the remains of 
significant sites, buildings, or other features would be expected.
    B. Where review of sources of information such as those listed in 
section (1)(a) above reveals no significant likelihood that 
archeological resources which meet the National Register Criteria exist 
on the project site, no further review is required with respect to 
archeology provided the State Historic Preservation Officer concurs.
    C. Where review of sources of information such as those listed in 
section (1)(a) above, reveals that archeological resources which meet 
the National Register Criteria are likely to exist on the project site, 
but these resources are so deeply buried that the project will not 
intrude upon them, or they are in a portion of the project site that 
will not be disturbed, a determination of ``No Effect'' is appropriate 
in accordance with Sec. 801.3(c)(2)(i).
    D. Where review of sources of information such as those listed in 
section (1)(a) above, reveals that archeological resources which meet 
the Criteria exist or are likely to exist on the project site, and that 
the project is likely to disturb them, a determination of ``No Adverse 
Effect'' may be made in accordance with Sec. 801.3(c)(2)(ii) if:
    1. The applicant and/or developer is committed to fund a 
professionally supervised and planned pre-construction testing program, 
and to modification of the project in consultation with the State 
Historic Preservation Officer to protect or incorporate within the 
project the archeological resources discovered with a minimum of damage 
to them, or if:
    2. The applicant and/or developer is committed to fund a 
professionally supervised and planned archeological salvage program, 
coordinated with site clearing and construction, following the standards 
of the Secretary of the Interior issued pursuant to the Archeological 
and Historic Preservation Act (16 U.S.C. 469) and the applicant finds 
that this program negates the adverse effect, in accordance with the 
standards set forth in section X of the Council's ``Supplementary 
Guidance for Review of Proposals for Treatment of Archeological 
Properties'' (45 FR 78808).
    E. When archeological sites included in the National Register or 
which meet the Criteria are found to exist on the project site or in the 
area of the project's environmental impact, and where the project is 
likely to disturb such resources, and where the adverse effect of such 
disturbance cannot be negated by archeological salvage, a determination 
of ``Adverse Effect'' is appropriate in accordance with Sec. 
801.3(a)(2)(iii).



PART 805_PROCEDURES FOR IMPLEMENTATION OF NATIONAL ENVIRONMENTAL POLICY ACT--

Table of Contents




Sec.
805.1 Background.
805.2 Purpose.
805.3 Applicability.
805.4 Ensuring environmental documents are actually considered in 
          Council decisionmaking.
805.5 Typical classes of action.
805.6 Interagency cooperation.
805.7 Environmental information.

    Authority: Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470), as amended, 
84 Stat. 204 (1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 
3467 (1978); E.O. 11593, 3 CFR 1971 Comp., p. 154; President's 
Memorandum on Environmental Quality and Water Resources Management, July 
12, 1978.

    Source: 45 FR 4353, Jan. 22, 1980, unless otherwise noted.



Sec. 805.1  Background.

    (a) The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 
4321 et seq.) establishes national policies and goals for the protection 
of the environment. Section 102(2) of NEPA contains certain procedural 
requirements directed toward the attainment of such goals. In 
particular, all Federal agencies are required to give appropriate 
consideration to the environmental effects of their proposed actions in 
their decisionmaking and to prepare detailed environmental statements on 
recommendations or reports on proposals for legislation and other major 
Federal actions significantly affecting the quality of the human 
environment.
    (b) Executive Order 11991 of May 24, 1977, directed the Council on 
Environmental Quality (CEQ) to issue regulations to implement the 
procedural provisions of NEPA. Accordingly, CEQ issued final NEPA 
regulations (40 CFR parts 1500-1508) on November 29, 1978, which are 
binding on all Federal agencies as of July 30, 1979. These regulations 
provide that each Federal agency shall as necessary adopt implementing

[[Page 124]]

procedures to supplement the regulations. Section 1507.3(b) of the NEPA 
regulations identifies those sections of the regulations which must be 
addressed in agency procedures.



Sec. 805.2  Purpose.

    The purpose of this part is to establish Council procedures that 
supplement the NEPA regulations and provide for the implementation of 
those provisions identified in Sec. 1507.3(b) of the regulations (40 
CFR 1507.3(b)).



Sec. 805.3  Applicability.

    (a) These procedures apply to actions of the full Council and the 
Council staff acting on behalf of the full Council.
    (b) The following actions are covered by these procedures:
    (1) Recommendations for legislation.
    (2) Regulations implementing section 106 of the National Historic 
Preservation Act (NHPA).
    (3) Procedures implementing other authorities.
    (4) Policy recommendations that do not require implementation by 
another Federal agency.
    (c) In accordance with Sec. 1508.4 of the NEPA regulations (40 CFR 
1508.4), Council comments on Federal, federally assisted and federally 
licensed undertakings provided pursuant to section 106 of the NHPA and 
36 CFR part 800 are categorically excluded from these procedures. This 
exclusion is justified because Federal agencies seeking the Council's 
comments under section 106 have the responsibility for complying with 
NEPA on the action they propose. The Council's role is advisory and its 
comments are to be considered in the agency decisionmaking process. 
Coordination between the section 106 and the NEPA processes is set forth 
in 36 CFR 800.9.



Sec. 805.4  Ensuring environmental documents are actually considered in 

Council decisionmaking.

    (a) Section 1505.1 of the NEPA regulations (40 CFR 1505.1) contains 
requirements to ensure adequate consideration of environmental documents 
in agency decisionmaking. To implement these requirements the Council 
shall:
    (1) Consider all relevant environmental documents in evaluating 
proposals for action;
    (2) Ensure that all relevant environmental documents, comments, and 
responses accompany the proposal through internal Council review 
processes;
    (3) Consider only those alternatives encompassed by the range of 
alternatives discussed in the relevant environmental documents when 
evaluating proposals for the Council action; and,
    (4) Where an environmental impact statement (EIS) has been prepared 
consider the specific alternative analyzed in the EIS when evaluating 
the proposal which is the subject of the EIS.
    (b) For each of the Council's principal activities covered by NEPA, 
the following chart identifies the point at which the NEPA process 
begins, the point at which it ends, and the key officials required to 
consider environmental documents in their decisionmaking.

----------------------------------------------------------------------------------------------------------------
                                                                                          Key officials required
               Activity                 Start of NEPA process      Completion of NEPA          to consider
                                                                        process          environmental documents
----------------------------------------------------------------------------------------------------------------
Recommendations for legislation......  During staff             Prior to submission to   Executive Director and
                                        formulation of           Congress or OMB.         full Council, as
                                        proposal.                                         appropriate.
Regulations and procedures...........  Prior to publication of  Prior to publication of  Executive Director and
                                        draft regulations in     final regulations in     full Council as
                                        Federal Register.        Federal Register.        appropriate.
Policy recommendations...............  During staff             Prior to adoption by     Executive Director and
                                        formulation of           full Council or          full Council, as
                                        proposal.                Executive Director.      appropriate.
----------------------------------------------------------------------------------------------------------------



Sec. 805.5  Typical classes of action.

    (a) Section 1507.3(c)(2) (40 CFR 1507.3(c)(2)) in conjunction with 
Sec. 1508.4 requires agencies to establish three typical classes of 
action for similar treatment under NEPA: actions normally requiring EIS; 
actions normally requiring assessments but not necessarily EISs; and 
actions normally not requiring assessments or EISs. Each of

[[Page 125]]

the covered categories of Council actions generally falls within the 
second category, normally requiring an assessment but not necessarily an 
EIS.
    (b) The Council shall independently determine whether an EIS or an 
environmental assessment is required where:
    (1) A proposal for Council action is not covered by one of the 
typical classes of action above; or
    (2) For actions which are covered, the presence of extraordinary 
circumstances indicates that some other level of environmental review 
may be appropriate.



Sec. 805.6  Interagency cooperation.

    The Council shall consult with appropriate Federal and non-Federal 
agencies and with interested private persons and organizations when it 
is considering actions involving such parties and requiring 
environmental assessments. Where other Federal agencies are involved in 
the proposed action, the Council shall cooperate in the required 
environmental assessment and the preparation of necessary environmental 
documents. Where appropriate as determined by the nature and extent of 
Council involvement in the proposed action, the Council shall assume the 
status of lead agency.



Sec. 805.7  Environmental information.

    Interested persons may contact the Executive Director for 
information regarding the Council's compliance with NEPA.



PART 810_FREEDOM OF INFORMATION ACT REGULATIONS--Table of Contents




Sec.
810.1 Purpose and scope.
810.2 Procedure for requesting information.
810.3 Action on requests.
810.4 Appeals.
810.5 Fees.
810.6 Exemptions.

    Authority: Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470) as amended 
by Pub. L. 91-243, Pub. L. 93-54, Pub. L. 94-422, Pub. L. 94-458, Pub. 
L. 96-199, Pub. L. 96-244, Pub. L. 96-515.

    Source: 46 FR 45334, Sept. 11, 1981, unless otherwise noted.



Sec. 810.1  Purpose and scope.

    This subpart contains the regulations of the Advisory Council on 
Historic Preservation implementing the Freedom of Information Act (5 
U.S.C. 552). Procedures for obtaining the records covered by the Act are 
established in these regulations. Persons seeking information or records 
of the Council are encouraged to consult first with the staff of the 
Council before filing a formal request under the Act pursuant to these 
regulations. The informal exchange of information is encouraged wherever 
possible.



Sec. 810.2  Procedure for requesting information.

    (a) Requests for information or records not available through 
informal channels shall be directed to the Administrative Officer, 
Advisory Council on Historic Preservation, 1522 K Street NW., 
Washington, DC 20005. All such requests should be clearly marked 
``FREEDOM OF INFORMATION REQUEST'' in order to ensure timely processing. 
Requests that are not so marked will be honored, but will be deemed not 
to have been received by the Council, for purposes of computing the 
response time, until the date on which they are identified by a member 
of the Council staff as being a request pursuant to the Freedom of 
Information Act.
    (b) Requests should describe the records sought in sufficient detail 
to allow Council staff to locate them with a reasonable amount of 
effort. Thus, where possible, specific information, including dates, 
geographic location of cases, and parties involved, should be supplied.
    (c) A request for all records falling within a reasonably specific 
category shall be regarded as conforming to the statutory requirement 
that records be reasonably described if the records can be identified by 
any process that is not unreasonably burdensome or disruptive of Council 
operations.
    (d) If a request is denied on the ground that it does not reasonably 
describe the records sought, the denial shall specify the reasons why 
the request was denied and shall extend to the requester an opportunity 
to confer

[[Page 126]]

with Council staff in order to reformulate the request in sufficient 
detail to allow the records to be produced.



Sec. 810.3  Action on requests.

    (a) Once a requested record has been identified, the Administrative 
Officer shall notify the requester of a date and location where the 
records may be examined or of the fact that copies are available. The 
notification shall also advise the requester of any applicable fees 
under Sec. 810.5.
    (b) A reply denying a request shall be in writing, signed by the 
Administrative Officer and shall include:
    (1) Reference to the specific exemption under the Act which 
authorizes the denial of the record, a brief explanation of how the 
exemption applies to the record requested, and a brief statement of why 
a discretionary release is not appropriate; and,
    (2) A statement that the denial may be appealed under Sec. 810.4 
within 30 days by writing to the Executive Director, Advisory Council on 
Historic Preservation, 1522 K Street NW., Washington, DC 20005.
    (c) The requirements of Sec. 810.3 (b)(1) and (2) do not apply to 
requests denied on the ground that they are not described with 
reasonable specificity and consequently cannot be identified.
    (d) Within 10 working days from receipt of a request, the 
Administrative Officer shall determine whether to grant or deny the 
request and shall promptly notify the requester of the decision. In 
certain unusual circumstances specified below, the time for 
determinations on requests may be extended up to a total of 10 
additional working days. The requester shall be notified in writing of 
any extension and of the reason for it, as well as of the data on which 
a determination will be made. Unusual circumstances include:
    (1) The need to search for and collect records from field offices or 
other establishments that are separate from the Washington office of the 
Council;
    (2) The need to search for, collect, and examine a voluminous amount 
of material which is sought in a request; or,
    (3) The need for consultation with another agency having substantial 
interest in the subject matter of the request.

If no determination has been made by the end of the 10-day period or the 
end of the last extension, the requester may deem his request denied and 
may exercise a right of appeal in accordance with Sec. 810.4.



Sec. 810.4  Appeals.

    (a) When a request has been denied, the requester may, within 30 
days of receipt of the denial, appeal the denial to the Executive 
Director of the Council. Appeals to the Executive Director shall be in 
writing, shall be addressed to the Executive Director, Advisory Council 
on Historic Preservation, 1522 K Street NW., Washington, DC 20005, and 
shall be clearly marked ``FREEDOM OF INFORMATION APPEAL.'' Requests that 
are not so marked will be honored, but will be deemed not to have been 
received by the Council, for purposes of computing the response time, 
until the date on which they are identified by a member of the Council 
staff as being an appeal pursuant to the Freedom of Information Act.
    (b) The appeal will be acted on within 20 working days of receipt. A 
written decision shall be issued. Where the decision upholds an initial 
denial of information, the decision shall include a reference to the 
specific exemption in the Freedom of Information Act which authorizes 
withholding the information, a brief explanation of how the exemption 
applies to the record withheld, and a brief statement of why a 
discretionary release is not appropriate. The decision shall also inform 
the requester of the right to seek judicial review in the U.S. District 
Court where the requester resides or has his principal place of 
business, or in which the agency records are situated, or in the 
District of Columbia.
    (c) If no decision has been issued within 20 working days, the 
requester is deemed to have exhausted his administrative remedies.



Sec. 810.5  Fees.

    (a) Fees shall be charged according to the schedules contained in 
paragraph (b) of this section unless it is determined that the requested 
information

[[Page 127]]

will be of primary benefit to the general public rather than to the 
requester. In that case, fees may be waived. Fees shall not be charged 
where they would amount to less than $3.00.
    (b) The following charges shall be assessed:
    (1) Copies of documents--$0.10 per page.
    (2) Clerical searches--$1.00 for each one quarter hour in excess of 
the first quarter hour spent by clerical personnel in searching for 
requested records.
    (3) Professional searches--$2.00 for each one quarter hour in excess 
of the first quarter hour spent by professional or managerial personnel 
in determining which records are covered by a request or other tasks 
that cannot be performed by clerical personnel.
    (c) Where it is anticipated that fees may amount to more than 
$25.00, the requester shall be advised of the anticipated amount of the 
fee and his consent obtained before the request is processed. The time 
limits for processing the request under Sec. 810.3 shall not begin to 
run until the requester's written agreement to pay the fees has been 
received. In the discretion of the Administrative Officer, advance 
payment of fees may be required before requested records are made 
available.
    (d) Payment should be made by check or money order payable to the 
Advisory Council on Historic Preservation.



Sec. 810.6  Exemptions.

    (a) The Freedom of Information Act exempts from disclosure nine 
categories of records which are described in 5 U.S.C. 552(b).
    (b) When a request encompasses records which would be of concern to 
or which have been created primarily by another Federal agency, the 
record will be made available by the Council only if the document was 
created primarily to meet the requirements of the Council's regulations 
implementing section 106 of the National Historic Preservation Act or 
other provisions of law administered primarily by the Council. If the 
record consists primarily of materials submitted by State or local 
governments, private individuals, organizations, or corporations, to 
another Federal agency in fulfillment of requirements for receiving 
assistance, permits, licenses, or approvals from the agency, the Council 
may refer the request to that agency. The requester shall be notified in 
writing of the referral.



PART 811_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




    Authority: 5 U.S.C. 7301 and 16 U.S.C.470, as amended.

    Source: 63 FR 54355, Oct. 9, 1998, unless otherwise noted.



Sec. 811.1  Cross-references to employees' ethical conduct standards, 

financial disclosure and financial interests regulations and other conduct 

rules.

    Employees of the Advisory Council on Historic Preservation are 
subject to the executive branch-wide standards of ethical conduct, 
financial disclosure and financial interests regulations at 5 CFR Parts 
2634, 2635 and 2640, as well as the executive branch-wide employee 
responsibilities and conduct regulations at 5 CFR Part 735.



PART 812_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS 

OR ACTIVITIES CONDUCTED BY THE ADVISORY COUNCIL ON HISTORIC PRESERVATION--

Table of Contents




Sec.
812.101 Purpose.
812.102 Application.
812.103 Definitions.
812.104-812.109 [Reserved]
812.110 Self-evaluation.
812.111 Notice.
812.112-812.129 [Reserved]
812.130 General prohibitions against discrimination.
812.131-812.139 [Reserved]
812.140 Employment.
812.141-812.148 [Reserved]
812.149 Program accessibility: Discrimination prohibited.
812.150 Program accessibility: Existing facilities.
812.151 Program accessibility: New construction and alterations.
812.152-812.159 [Reserved]
812.160 Communications.

[[Page 128]]

812.161-812.169 [Reserved]
812.170 Compliance procedures.
812.171-812.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22896, June 23, 1986, unless otherwise noted.



Sec. 812.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.



Sec. 812.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 812.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alocoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major

[[Page 129]]

life activities only as a result of the attitudes of others toward such 
impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or agency 
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can acheive the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 812.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 812.104-812.109  [Reserved]



Sec. 812.110  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 812.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 812.112-812.129  [Reserved]



Sec. 812.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied

[[Page 130]]

the benefits of, or otherwise be subjected to discrimination under any 
program or activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activites of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 812.131-812.139  [Reserved]



Sec. 812.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of

[[Page 131]]

1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity 
Commission in 29 CFR part 1613, shall apply to employment in federally 
conducted programs or activities.



Sec. Sec. 812.141-812.148  [Reserved]



Sec. 812.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 812.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 812.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 812.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 812.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to handicapped 
persons. In cases where a physical alteration to an historic property is 
not required because of Sec. 812.150(a)(2) or (a)(3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;

[[Page 132]]

    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 812.151  Program accessibility: New construction and alterations.

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



Sec. Sec. 812.152-812.159  [Reserved]



Sec. 812.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and adminstrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 812.160 would 
result in such alteration or burdens. The

[[Page 133]]

decision that compliance would result in such alteration or burdens must 
be made by the agency head or his or her designee after considering all 
agency resources available for use in the funding and operation of the 
conducted program or activity, and must be accompanied by a written 
statement of the reasons for reaching that conclusion. If an action 
required to comply with this section would result in such an alteration 
or such burdens, the agency shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, handicapped persons receive 
the benefits and services of the program or activity.



Sec. Sec. 812.161-812.169  [Reserved]



Sec. 812.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The General Counsel shall be responsible for coordinating 
implementation of this section. Complaints may be sent to the General 
Counsel, Advisory Council on Historic Preservation, 1100 Pennsylvania 
Avenue, NW., Washington, DC 20004.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 812.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 22896, June 23, 1986, as amended at 51 FR 22893, June 23, 1986]



Sec. Sec. 812.171-812.999  [Reserved]

                        PARTS 813-899 [RESERVED]

[[Page 135]]



         CHAPTER IX--PENNSYLVANIA AVENUE DEVELOPMENT CORPORATION




  --------------------------------------------------------------------
Part                                                                Page
901             Bylaws of the Corporation...................         137
902             Freedom of Information Act..................         140
903             Privacy Act.................................         154
904             Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         160
905             Standards of conduct........................         160
906             Affirmative action policy and procedure.....         168
907             Environmental quality.......................         174
908             Policy and procedures to facilitate the 
                    retention of displaced businesses and 
                    residents in the Pennsylvania Avenue 
                    Development Area........................         180
909             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Pennsylvania 
                    Avenue Development Corporation..........         185
910             General guidelines and uniform standards for 
                    urban planning and design of development 
                    within the Pennsylvania Avenue 
                    Development Area........................         191
911-999

[Reserved]

  Note: Public Law 104-99, which incorporated the terms of the 
Department of the Interior and Related Agencies Appropriations Act, 1996 
(H.R. 1977), as passed by the House of Representatives on December 13, 
1995, provides that the Pennsylvania Avenue Development Corporation 
terminates as of April 1, 1996. H.R. 1977 provides that ``any 
regulations prescribed by the [Pennsylvania Avenue Development] 
Corporation in connection with the Pennsylvania Avenue Development 
Corporation Act of 1972 (40 U.S.C. 871-885) and the Federal Triangle 
Development Act (40 U.S.C. 1101-1109) shall continue in effect until 
suspended by regulations prescribed by the Administrator of the General 
Services Administration.'' Accordingly, the authority to administer the 
regulations in 36 CFR Chapter IX is transferred to the General Services 
Administration. See the Pennsylvania Avenue Development Corporation 
document, ``Transfer of Responsibilities and Effectiveness of PADC 
Regulations After PADC Termination'', published at 61 FR 11308, March 
20, 1996.

[[Page 137]]



PART 901_BYLAWS OF THE CORPORATION--Table of Contents




Sec.
901.1 Title and office.
901.2 Establishment.
901.3 Board of directors.
901.4 Officers.
901.5 Annual report.
901.6 Seal.
901.7 Amendments.

    Authority: Sec. 6(5), Pub. L. 92-578, 88 Stat. 1270(5) (40 U.S.C. 
875(5)).

    Source: 40 FR 41524, Sept. 8, 1975, unless otherwise noted.



Sec. 901.1  Title and office.

    (a) Title. The name of the Corporation is the Pennsylvania Avenue 
Development Corporation.
    (b) Office. The office of the Corporation shall be in the city of 
Washington, District of Columbia.



Sec. 901.2  Establishment.

    (a) Creation. The Corporation, a wholly owned instrumentality of the 
United States subject to the Government Corporation Control Act (31 
U.S.C. 841 et seq.), was established by the Pennsylvania Avenue 
Development Corporation Act of 1972 (Pub. L. 92-578, 86 Stat. 1266 (40 
U.S.C. 871 et seq.)), as amended, hereinafter referred to as the Act.
    (b) Purposes. The purposes for which this Corporation was 
established are those stated and promulgated by Congress in the Act.



Sec. 901.3  Board of directors.

    (a) Powers and responsibilities. The business, property and affairs 
of the Corporation shall be managed and controlled by the Board of 
Directors, and all powers specified in the Act are vested in them. The 
Board may, at its discretion and as hereinafter provided, delegate 
authority necessary to carry on the ordinary operations of the 
Corporation to officers and staff of the Corporation.
    (b) Composition; number; selection; terms of office. The Board of 
Directors shall be comprised of fifteen voting members and eight 
nonvoting members. The powers and management of the Corporation shall 
reside with the fifteen voting members, and the procedures of the Board 
shall be determined by them.
    (1) The fifteen voting members shall include the seven government 
agency representatives specified in subsection 3(c) of the Act (or, 
their designees), and eight individuals meeting the qualifications of 
that subsection, appointed by the President of the United States from 
private life, at least four of whom shall be residents and registered 
voters of the District of Columbia.
    (2) The Chairman and Vice Chairman shall be designated by the 
President of the United States from among those members appointed from 
private life.
    (3) Upon his appointment, the Chairman shall invite the eight 
representatives designated in subsection 3(g) of the Act to serve as 
non-voting members of the Board of Directors.
    (4) Each member of the Board of Directors appointed from private 
life shall serve a term of six years from the expiration of his 
predecessor's term; except that the terms of the Directors first taking 
office shall begin on October 27, 1972 and shall expire as designated at 
the time of appointment. A Director may continue to serve until his 
successor has qualified.
    (5) A Director appointed from private life wishing to resign shall 
submit a letter of resignation to the President of the United States, 
and his resignation shall become effective upon the date of the 
President's acceptance thereof.
    (6) A Director, appointed to fill a vacancy occurring prior to the 
expiration of the term for which his predecessor was appointed, shall 
serve for the remainder of such term.
    (c) Meetings. (1) The Board of Directors shall meet and keep its 
records at the office of the Corporation.
    (2) Meetings of the Board of Directors shall be held at the call of 
the Chairman, but not less often than once every three months. The 
Chairman shall also call a meeting at the written request of any five 
voting members.
    (3) The Chairman shall direct the Secretary to give the members of 
the Board notice of each meeting, either personally, or by mail, or by 
telegram, stating the time, the place and the agenda for the meeting. 
Notice by telephone shall be personal notice. Any Director may waive, in 
writing, notice as

[[Page 138]]

to himself, whether before or after the time of the meeting, and the 
presence of a Director at any meeting shall constitute a waiver of 
notice of that meeting. Notice, in whatever form, shall be given so that 
a Director will have received it five working days prior to the time of 
the meeting.
    (4) Unless otherwise limited by the notice thereof, any and all 
Corporation business may be transacted at any meeting.
    (5) The Chairman shall preside at meetings of the Board of 
Directors, or the Vice Chairman in the absence of the Chairman. In the 
event of the absence of both the Chairman and the Vice Chairman, the 
Directors present at the meeting shall designate a Presiding Officer.
    (d) Quorum. The presence of a majority of the number of voting 
Directors serving at the time of a meeting of the Board shall constitute 
a quorum for the transaction of business at such meeting of the Board. 
The act of a majority of the voting Directors at any meeting at which 
there is a quorum shall be an act of the Board of Directors. If there 
shall be less than a quorum at any meeting, a majority of the voting 
Directors present may adjourn the meeting until such time as a quorum 
can practically and reasonably be obtained.
    (e) Directors serving in stead. Each member of the Board of 
Directors specified in paragraphs (1) through (7) of subsection 3(c) of 
the Act, if unable to serve in person, may designate up to two officials 
from his agency or department to serve on the Board in his stead. Such 
designation shall be effected by a letter of appointment, from the 
Director specified in the Act, received by the Chairman prior to or at a 
meeting of the Board of Directors. If two officials are so designated, 
then the Director specified in the Act shall identify one as the First 
Designee and the other as the Second Designee. The Second Designee may 
only serve as a Director if the First Designee is not in attendance at a 
meeting of the Board of Directors. An official designated to serve in 
stead shall serve as the voting Director of the represented agency until 
the Chairman receives written notice from the Director specified in the 
Act, or his successor, that the designation is rescinded.
    (f) Vote by proxy. Voting members of the Board of Directors unable 
to attend a meeting may vote by proxy on resolutions which have been 
printed in the agenda in advance for the meeting.
    (1) A Director unable to attend a meeting of the Board may submit a 
vote to be cast by the Presiding Officer by means of a written signed 
statement of his vote and the resolution to which it pertains together 
with any statement bearing on the matter the Director wishes to have 
read. The proxy vote shall be submitted to the Chairman with a separate 
signed copy to the Secretary, to be received not later than the close of 
business of the day prior to the date fixed for the meeting.
    (2) The Presiding Officer shall cast proxy votes received by the 
Chairman in the following manner:
    (i) Upon the close of discussion on a resolution for which there has 
been submitted one or more valid proxy votes, the Presiding Officer 
shall announce that he holds proxy vote(s) from named Director(s), and 
shall read any explanatory statements submitted by the Director(s) 
voting by proxy;
    (ii) The Presiding Officer shall take the vote of the Directors 
present and then declare the proxy votes in hand;
    (iii) The Secretary shall orally verify the validity of the votes 
submitted to be cast by proxy, and shall record them with the votes cast 
by the Directors present on the resolution.
    (3) Proxy votes shall not be utilized to effect the presence of a 
quorum.
    (g) Compensation of Directors. Members of the Board of Directors 
shall be compensated in the manner provided in section 3 of the Act.
    (h) Approval of annual budget. Upon completion by the staff of a 
draft annual budget request, the Chairman shall call a meeting of the 
Board of Directors for its review and consideration. Upon approval by 
the Board of the draft budget request, it may be submitted to the Office 
of Management and Budget.

[40 FR 41524, Sept. 8, 1975, as amended at 48 FR 20903, May 10, 1983]

[[Page 139]]



Sec. 901.4  Officers.

    (a) General provisions. The corporate officers of the Corporation 
shall consist of a President, an Executive Director, two Assistant 
Directors, a Secretary (who shall be appointed by the Chairman from 
among the staff of the Corporation), and such other officers as the 
Board of Directors may from time-to-time appoint. Any corporate officer 
elected or appointed by the Board of Directors may be removed at any 
time, with or without cause, by the affirmative vote of a majority of 
the Board of Directors.
    (b)(1) Powers and duties of the President. The Chairman of the Board 
of Directors shall be the President and chief executive officer of the 
Corporation and shall have the general powers and duties of supervision 
and management usually vested in the office of a president of a 
corporation. The President shall see that all resolutions and policies 
of the Board are carried into effect, and shall have power to execute 
contracts, leases, agreements, and other documents necessary for the 
operation of the Corporation.
    (2) Assumption of powers and duties by Vice Chairman. In the event 
that the position of Chairman becomes vacant, the Vice Chairman shall 
promptly notify the President of the United States in writing to that 
effect and upon giving such notice, shall assume the Chairman's powers 
and duties as President and Chief Executive Officer of the Corporation, 
including specific powers and duties delegated to the Chairman by the 
Board of Directors. Such assumption of the Chairman's powers and duties 
shall cease upon the appointment or designation of a new Chairman or 
Acting Chairman by the President of the United States. The Vice Chairman 
shall also assume the powers and duties of the Chairman in the event of 
the latter's incapacity, if the Chairman so requests in writing, or if a 
majority of the voting members of the Board of Directors finds by 
resolution that the Chairman is unable to exercise the powers and duties 
of his office. Such assumption of the Chairman's powers and duties shall 
cease upon the Vice Chairman's receipt of a letter from the Chairman 
stating that he or she is able to resume the exercise of the powers and 
duties of his office.
    (c) Appointment of certain officers. The Board of Directors shall 
appoint an Executive Director and two Assistant Directors, who may be 
appointed and compensated without regard to the provisions of title 5 
U.S.C. governing appointments in the competitive service and chapter 51 
and subchapter IV of chapter 53 of title 5 U.S.C. Between meetings of 
the Board of Directors the Chairman may make appointments to the 
foregoing positions, when they become vacant by resignation or 
otherwise. However, the Chairman shall move to have such interim 
appointments confirmed at the next meeting of the Board. The Chairman 
shall have power to increase or decrease the salaries of the officers 
appointed under this section.
    (d) Powers and duties of the Executive Director. The Executive 
Director shall be the chief of the Corporation's staff and shall have 
general powers of supervision and management over the administration of 
the Corporation. The Executive Director shall have power to:
    (1) Execute contracts, agreements, and other documents necessary for 
planning and design work and for ordinary operations of the Corporation.
    (2) Hire staff (including temporary or intermittent experts and 
consultants).
    (3) Procure space, equipment, supplies, and obtain interagency and 
commercial support services.
    (4) Direct and manage the day-to-day operations and work of the 
Corporation.
    (5) Supervise planning and development activities of the Corporation 
in accordance with the development plan and resolutions of the Board of 
Directors.
    (6) Perform such other duties and exercise such powers as the 
President and Board of Directors may prescribe.
    (e) Powers and duties of the Assistant Director/Legal. The Assistant 
Director/Legal shall be the General Counsel of the Corporation, advising 
the Board of Directors and the staff on all legal matters affecting the 
functioning of the Corporation. He shall:
    (1) Coordinate with the Department of Justice in assuring that the 
interests of the Corporation are represented

[[Page 140]]

in any litigation arising from its authorities or actions.
    (2) Advise the Board of Directors and the staff of statutory or 
regulatory requirements, and assure compliance therewith.
    (3) Prepare or review all contracts, agreements or other documents 
of a legal nature.
    (4) Prepare or review all draft legislation, regulations, official 
notices and other legal publications.
    (5) Perform such other duties as may be prescribed by the Board of 
Directors, the President, or the Executive Director.
    (f) Powers and duties of the Assistant Director/Development. The 
Assistant Director/Development shall advise the Board of Directors, 
officers and staff of the Corporation on all development activities to 
accomplish the goals of the development plan. He shall:
    (1) Manage development activities in accordance with the development 
plan.
    (2) Function as a key management official performing a wide range of 
duties required to accomplish the rebuilding of Pennsylvania Avenue.
    (3) Provide managerial responsibility for the work of all project 
managers and consultants relating to development projects.
    (4) Coordinate the tasks of other staff professionals as required 
for accomplishment of projects.
    (5) Be liaison between the Corporation and other governmental 
agencies that review projects in the development area.
    (6) Perform such other duties as may be prescribed by the Board of 
Directors, the President, or the Executive Director.
    (g) Powers and Duties of the Secretary. The Secretary, to be 
appointed by the Chairman from among the Corporation's staff, shall give 
notice of all meetings of the Board of Directors and record and keep the 
minutes thereof, keep in safe custody the seal of the Corporation, and 
shall affix the same to any instrument requiring it. When so affixed, 
the seal shall be attested by the signature of the Secretary. The 
Secretary shall also perform such other duties as may be prescribed by 
the Board of Directors, the President, or the Executive Director.

[40 FR 41524, Sept. 8, 1975, as amended at 47 FR 34536, Aug. 10, 1982]



Sec. 901.5  Annual report.

    The Executive Director shall prepare annually a comprehensive and 
detailed report of the Corporation's operations, activities, and 
accomplishments for the review of the Board of Directors. Upon approval 
by the Board, the Chairman shall transmit the report in January of each 
year to the President of the United States and to the Congress.



Sec. 901.6  Seal.

    The Corporation may adopt a corporate seal which shall have the name 
of the Corporation and year of incorporation printed upon it. The seal 
may be used by causing it or a facsimile thereof to be impressed, 
affixed, or reproduced.



Sec. 901.7  Amendments.

    These bylaws may be altered, amended, or repealed by the Board of 
Directors at any meeting, if notice of the proposed alteration, 
amendment, or repeal is contained in the notice of the meeting.



PART 902_FREEDOM OF INFORMATION ACT--Table of Contents




                   Subpart A_Applicability and Policy

Sec.
902.01 Purpose and applicability.
902.02 Statement of policy.
902.03 Definitions.

                    Subpart B_General Administration

902.10 Delegation of administration of this part.
902.11 How records may be requested.
902.12 Maintenance of statistics; annual report to Congress.
902.13 Indexes of Corporation records.
902.14 Deletion of nondiscloseable information from requested records.
902.15 Protection of records.

              Subpart C_Publication in the Federal Register

902.20 Applicability.
902.21 Publication in the Federal Register shall be constructive notice 
          of information that affects the public.

[[Page 141]]

 Subpart D_Availability of Records Not Published in the Federal Register

902.30 Applicability.
902.31 Access, inspection and copying.

         Subpart E_Availability of Reasonably Described Records

902.40 Applicability.
902.41 Public access to reasonably described records.
902.42 Request for records of concern to more than one government 
          organization.

     Subpart F_Exemptions From Public Access to Corporation Records

902.50 Applicability.
902.51 Records relating to matters that are required by Executive order 
          to be kept secret.
902.52 Records related solely to internal personnel rules and practices.
902.53 Records exempted from disclosure by statute.
902.54 Trade secrets and commercial or financial information that is 
          privileged or confidential.
902.55 Intragovernmental exchanges.
902.56 Protection of personal privacy.
902.57 Investigatory files compiled for law enforcement purposes.
902.58 Reports of financial institutions.
902.59 Geological and geophysical information.

                       Subpart G_Time Limitations

902.60 Initial determination.
902.61 Final determination.
902.62 Extension of time limits.

   Subpart H_Procedures for Administrative Appeal of Decisions Not To 
                            Disclose Records

902.70 General.
902.71 Forms for appeal.
902.72 Time limitations on filing an appeal.
902.73 Where to appeal.
902.74 Agency decision.

                             Subpart I_Fees

902.80 General.
902.81 Payment of fees.
902.82 Fee schedule.
902.83 Waiver or reduction of fees.

    Authority: 5 U.S.C. 552; 52 FR 10012-10019 (March 27, 1987); E.O. 
12600, 52 FR 23781 (June 23, 1987).

    Source: 41 FR 43143, Sept. 30, 1976, unless otherwise noted.



                   Subpart A_Applicability and Policy



Sec. 902.01  Purpose and applicability.

    This part contains regulations of the Corporation implementing 5 
U.S.C. 552, as amended. It informs the public about where and how the 
Corporation's records may be obtained. The following provisions are 
applicable to all records of the Corporation in existence at the time a 
request for records is made. The regulations establish fee schedules 
applicable to the search and copying of requested records. This part 
identifies the officials having authority to act on requests and 
prescribes the procedures to appeal decisions which initially deny 
disclosure. Indexes maintained to reflect all records subject to this 
part are available for public inspection and copying as provided herein.



Sec. 902.02  Statement of policy.

    In keeping with the spirit of the Freedom of Information Act, 5 
U.S.C. 552, the policy of the Corporation is one of full and responsible 
disclosure of its records to the public. Therefore, all records of the 
Corporation, unless otherwise exempted under subpart F of this part, are 
declared to be available for public inspection and copying. Each officer 
and employee of the Corporation is directed to cooperate to this end and 
shall make records available to the public with reasonable promptness. A 
record may not be withheld from the public solely because its release 
might suggest administrative error or embarrass an officer or employee 
of the Corporation.



Sec. 902.03  Definitions.

    As used in this part--
    (a) Act means section 552 of title 5 U.S.C., as amended, Pub. L. 90-
23, 81 Stat. 54, June 5, 1967; as amended, Pub. L. 93-502, 88 Stat. 
1561, November 11, 1974. Pub. L. 90-23 repealed and superseded Pub. L. 
89-487, 80 Stat. 250. July 4, 1966, sometimes referred to as the Freedom 
of Information Act or Public Information Act.
    (b) Chairman means the Chairman of the Corporation's Board of 
Directors and President of the Corporation.

[[Page 142]]

    (c) Corporation means the Pennsylvania Avenue Development 
Corporation, including the Board of Directors, Executive Officers, 
Corporation staff, and any subordinate organizational units operating 
under the Pennsylvania Avenue Development Corporation Act of 1972, Pub. 
L. 92-578, 86 Stat. 1266 (40 U.S.C. 871 et seq.), as amended.
    (d) Person means person as defined in 5 U.S.C. 551(2).
    (e) Records means any and all writing, drawings, maps, recordings, 
tapes, films, slides, photographs, or other documentary materials by 
which information is preserved.
    (f) Submitter means any person or entity that provides or has 
provided information to the Corporation or about which the Corporation 
possess records subject to Exemption 4 of the Freedom of Information 
Act.
    (g) Workday means a calendar day excluding Saturday, Sunday and 
Federal holidays, office hours being 9 a.m. to 5 p.m.

[41 FR 43143, Sept. 30, 1976, as amended at 53 FR 10374, Mar. 31, 1988]



                    Subpart B_General Administration



Sec. 902.10  Delegation of administration of this part.

    Except as provided in subpart H of this part, authority to 
administer this part is delegated to the Administrative Officer, who 
shall act upon all requests for access to records which are received by 
the Corporation from any person citing the Act.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.11  How records may be requested.

    In accordance with Sec. 902.41 of subpart E of this part all 
requests for records shall be made to the Administrative Officer, 
Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, 
NW, Suite 1220 North, Washington, DC 20004.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983; 
50 FR 45824, Nov. 4, 1985]



Sec. 902.12  Maintenance of statistics; annual report to Congress.

    (a) The Administrative Officer shall maintain records of:
    (1) The fees collected by the Corporation for making records 
available under this part;
    (2) The number of denials of requests for records made under this 
part, and the reasons for each denial;
    (3) The number of appeals arising from denials, the result of each 
appeal, and the reasons for the action upon each appeal that results in 
a denial of information;
    (4) The names and titles or positions of each person responsible for 
each denial of records requested under this part, and the number of 
instances of participation for each person;
    (5) The results of each proceeding conducted pursuant to subsection 
552(a)(4)(f) of title 5, U.S.C., including a report of the disciplinary 
action against the official or employee who was primarily responsible 
for improperly withholding records or an explanation of why disciplinary 
action was not taken;
    (6) Every rule made by the Corporation affecting or implementing the 
Act;
    (7) The fee schedule listing fees for search and duplication of 
records pursuant to request under the Act; and
    (8) All other information which indicates efforts to administer 
fully the letter and spirit of the Act.
    (b) The Administrative Officer shall annually prepare a report 
accounting for each item in paragraph (a) of this section for the prior 
calendar year. On or before March 1st of each year, the report shall be 
submitted to the Speaker of the House of Representatives and the 
President of the Senate for referral to the appropriate committees of 
Congress.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.13  Indexes of Corporation records.

    (a) The Administrative Officer shall be responsible for maintenance, 
publication, distribution and availability for inspection and copying of 
the current indexes and supplements which are required by 5 U.S.C. 
(a)(2). Such indexes

[[Page 143]]

shall be published promptly on a quarterly basis unless the Chairman 
determines by order published in the Federal Register that the 
pubication would be unnecessary and impractical.
    (b) The index of materials under this subpart covers all materials 
issued, adopted, or promulgated after July 4, 1967 by the Corporation. 
However, earlier materials may be included in the index to the extent 
practicable. Each index contains instruction for its use.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.14  Deletion of nondiscloseable information from requested records.

    Whenever a requested record contains information which falls within 
one of the exempted categories of subpart F of this part, identifying 
details shall be deleted from the record before it is made available for 
public inspection and copying. When a requested record contains both 
discloseable and nondiscloseable information, only that portion which is 
reasonably segregable after deletion of the nondiscloseable portions, 
will be released. If the information in the discloseable portion is 
readily available from another source and that source is made known to 
the person making the request, the Corporation need not disclose the 
requested record. In all cases where a deletion is made, an explanation 
of the deletion shall be attached to the record made available for 
inspection, distribution, or copying. Appeal of deletions shall be made 
in accordance with subpart H of this part.



Sec. 902.15  Protection of records.

    (a) No person may, without permission of the Administrative Officer, 
remove from the Corporation's offices any record made available to him 
for inspection or copying. In addition, no person may steal, alter, 
multilate, obliterate, or destroy, in whole or in part, such a record.
    (b) Section 641 of title 18 U.S.C. provides, in pertinent part, as 
follows:

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

    (c) Section 2071 of title 18 U.S.C. provides, in pertinent part, as 
follows:

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

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



              Subpart C_Publication in the Federal Register



Sec. 902.20  Applicability.

    Subject to the exemptions in subpart F of this part, the 
Corporation, for the guidance of the public, shall submit to the 
Director of the Federal Register for publication--
    (a) Descriptions of the Corporation's organization and functional 
responsibilities and the designation of places at which the public may 
secure information, obtain forms and applications, make submittals or 
requests, or obtain decisions:
    (b) Statements of the general course and method by which the 
Corporation's functions are channeled and determined, including the 
nature and requirements of all formal and informal procedures available;
    (c) Rules of procedure, descriptions of forms available, and 
instructions as to the scope and contents of all papers, reports, or 
examinations;
    (d) Substantive rules of general applicability adopted as authorized 
by law, and statements of general policy or interpretations of general 
applicability; and,
    (e) Each amendment, revision, or repeal of the foregoing.

[[Page 144]]



Sec. 902.21  Publication in the Federal Register shall be constructive notice 

of information that affects the public.

    (a) All material described in Sec. 902.20 shall be published in the 
Federal Register. For the purpose of this section, material that is 
reasonably available to the class of persons affected by it is 
considered to be published in the Federal Register when it is 
incorporated by reference with the approval of the Director of the 
Federal Register.
    (b) Publication in the Federal Register of all relevant information 
shall be considered constructive notice of information that affects the 
public, except that no person shall be required to resort to or be 
adversely affected by any matter which is required to be published in 
the Federal Register and is not so published unless such person has 
actual and timely notice of the terms of the unpublished matter.



 Subpart D_Availability of Records Not Published in the Federal Register



Sec. 902.30  Applicability.

    (a) This subpart implements section 552(a)(2) of title 5 U.S.C., as 
amended by 88 Stat. 1561 (1974). It prescribes the rules governing the 
availability for public inspection and copying of the following:
    (1) Final opinions or orders (including concurring and dissenting 
opinions, if any) made in the adjudication of cases;
    (2) Statements of policy or interpretations which have been adopted 
under the authority of the Corporation's enabling act, including 
statements of policy or interpretation concerning a particular factual 
situation. If they can reasonably be expected to have precedential value 
in any case involving a member of the public in a similar situation, and 
have not been published in the Federal Register.
    (3) Administrative staff manuals or instructions to the staff of the 
Corporation which affects any member of the public. Included within this 
category are manuals or instructions which prescribe the manner or 
performance of any activity by any person. Excepted from this category 
are staff manuals or instructions to staff concerning internal operating 
rules, practices, guidelines and procedures for Corporation negotiators 
and inspectors, the release of which would substantially impair the 
effective performance of their duties.
    (4) Documents and materials offered for sale under the auspices of 
the Corporation.
    (5) Any index of materials which is required to be maintained by the 
Corporation under Sec. 902.13.
    (b) Records listed in paragraph (a) of this section, which the 
Corporation does not make available for public inspection and copying, 
or that are not indexed as required by Sec. 902.13, may not be cited, 
relied upon, or used as a precedent by the Corporation to adversely 
affect any person, unless the person against whom it is cited, relied 
upon, or used, has had actual and timely notice of that material.
    (c) This subpart shall not apply to information published in the 
Federal Register or that is a reasonably described record covered by 
subpart E of this part.



Sec. 902.31  Access, inspection and copying.

    (a) Records listed in Sec. 902.30(a), are available for inspection 
and copying by any person at the Corporation's office, 1331 Pennsylvania 
Avenue, NW., Suite 1220 North, Washington, DC 20004. Facilities for 
inspection and copying shall be open to the public every workday.
    (b) Records listed in Sec. 902.30(a), that are published and 
offered for sale, shall be indexed as required under Sec. 902.13, and 
shall be available for public inspection. Records offered for sale will 
not be copied by the Corporation for the requester without the approval 
of the Administrative Officer.
    (c) Records listed in Sec. 902.30(a) are subject to subpart F of 
this part and access may be restricted by the Corporation in accordance 
with that subpart. A refusal to disclose may be appealed by the 
requester under the provisions of subpart H of this part.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983; 
50 FR 45824, Nov. 4, 1985]

[[Page 145]]



         Subpart E_Availability of Reasonably Described Records



Sec. 902.40  Applicability.

    This subpart implements section 552(a)(3) of title 5 U.S.C., as 
amended, and prescribes regulations governing public inspection and 
copying of reasonably described records in the Corporation's custody. 
This subpart shall not apply to material which is covered by subparts C 
and D of this part, and records exempted under subpart F of this part.



Sec. 902.41  Public access to reasonably described records.

    (a) Any person desiring access to a record covered by this subpart 
may make request for records and copies either in person on any workday 
at the Corporation's office, or by written request. In either instance, 
the requester must comply with the following provisions;
    (1) A written request must be made for the record;
    (2) The request must indicate that it is being made under the 
Freedom of Information Act (section 552 of title 5 U.S.C.); and
    (3) The request must be addressed to the attention of the 
Administrative Officer, as provided in Sec. 902.11.
    (b) Each request for a record should reasonably describe the 
particular record sought. The request should specify, to the extent 
possible, the subject matter of the record, the date when it was made, 
the place where it was made and the person who made it. If the 
description is insufficient to process the request, the Public 
Information offices shall promptly notify the person making the request 
and solicit further information. The Administrative Officer may assist 
the person in perfecting the request.
    (c) Requests made in person at the Corporation's office during 
regular working hours (9 a.m. to 5 p.m., Monday through Friday, except 
Federal holidays) shall be processed as provided in subpart G of this 
part. The Corporation shall provide adequate inspection and copying 
facilities. Original records may be copied, but may not be released from 
the custody of the Corporation. Upon payment of the appropriate fee, 
copies will be provided to the requester by mail or in person.
    (d) Every effort will be made to make a record in use by the staff 
of the Corporation available when requested, and availability may be 
deferred only to the extent necessary to avoid serious interference with 
the business of the Corporation.
    (e) Notwithstanding paragraphs (a) through (d) of this section, 
informational materials and services, such as press releases, and 
similar materials prepared by the Corporation, shall be made available 
upon written or oral request. These services are considered as part of 
any informational program of the Government and are readily made 
available to the public. There is no fee for individual copies of such 
materials as long as they are in supply. In addition, the Corporation 
will continue to respond, without charge, to routine oral or written 
inquiries that do not involve direct access to records of the 
Corporation.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.42  Request for records of concern to more than one government 

organization.

    (a) If the release of a record covered by this subpart would be of 
concern to both the Corporation and another Federal agency, the record 
will be made available only after consultation with the other agency 
concerned. Records of another agency in the Corporation's possession 
will not be disclosed without the approval of the other agency.
    (b) If the release of a record covered by this subpart would be of 
concern to both the Corporation and to a foreign, state or local 
government, the record will be made available by the Corporation only 
after consultation with the other interested foreign state or local 
government. Records of a foreign, state or local government will not be 
disclosed without the approval of the government concerned.

[[Page 146]]



     Subpart F_Exemptions From Public Access to Corporation Records



Sec. 902.50  Applicability.

    (a) This subpart implements section 552(b) of title 5 U.S.C., which 
exempts certain records from public inspection under section 552(a). 
This subpart applies to records requested under subparts D and E of this 
part. The Corporation may, however, release a record authorized to be 
withheld under Sec. Sec. 902.52 through 902.59 unless it determines 
that the release of that record would be inconsistent with a purpose of 
the aforementioned sections. Examples given in Sec. Sec. 902.52 through 
902.59 of records included within a particular statutory exemption are 
not necessarily illustrative of all types of records covered by the 
exemption. Any reasonably segregable portion of a record withheld under 
this subpart shall be provided to a requester, after deletion of the 
portions which are exempt under this subpart.
    (b) This subpart does not authorize withholding of information or 
limit the availability of records to the public, except as specifically 
stated. This subpart is not authority to withhold information from 
Congress.



Sec. 902.51  Records relating to matters that are required by Executive order 

to be kept secret.

    Records relating to matters that are specifically authorized under 
criteria established by an Executive order to be kept secret in the 
interest of national defense or foreign policy, include those within the 
scope of the following, and any further amendment of any of them, but 
only to the extent that the records are in fact properly classified 
pursuant to such Executive order:
    (a) Executive Order 11652 of March 8, 1972 (3 CFR 1974 Comp. p. 
339);
    (b) Executive Order 10865 of February 20, 1960 (3 CFR 1959-1963 
Comp. p. 398); and
    (c) Executive Order 10104 of February 1, 1950 (3 CFR 1949-1953 
Comp., p. 298).

These records may not be made available for public inspection.



Sec. 902.52  Records related solely to internal personnel rules and practices.

    (a) Records related solely to internal personnel rules and practices 
that are within the statutory exemption include memoranda pertaining to 
personnel matters such as staffing policies, and policies and procedures 
for the hiring, training, promotion, demotion, and discharge of 
employees, and management plans, records, or proposals related to labor-
management relationships.
    (b) The purpose of this section is to authorize the protection of 
any record related to internal personnel rules and practices dealing 
with the relations between the Corporation and its employees.



Sec. 902.53  Records exempted from disclosure by statute.

    (a) Records relating to matters that are specifically exempted by 
statute from disclosure may not be made available for public inspection. 
For example: section 1905 of title 18 U.S.C., protecting trade secrets, 
processes, and certain economic and other data obtained by examination 
or investigation, or from reports.
    (b) The purpose of this section is to preserve the effectiveness of 
statutes of the kind cited as an example, in accordance with their 
terms.



Sec. 902.54  Trade secrets and commercial or financial information that is 

privileged or confidential.

    (a) Trade secrets and commercial or financial information that are 
privileged and for which confidentiality is requested by the person 
possessing such privilege are within the statutory exemption. This 
includes the following:
    (1) Commercial or financial information not customarily released to 
the public, furnished and accepted in confidence or disclosure of which 
could reasonably be expected to cause substantial competitive harm, or 
both;
    (2) Statements of financial interest furnished by officers and 
employees of the Corporation;
    (3) Commercial, technical, and financial information furnished by 
any person in connection with an application for a loan or a loan 
guarantee;

[[Page 147]]

    (4) Commercial or financial information customarily subjected to an 
attorney-client or similar evidentiary privilege; or,
    (5) Materials in which the Corporation has a property right such as 
designs, drawings, and other data and reports acquired in connection 
with any research project, inside or outside of the Corporation, or any 
grant or contract.
    (b) The purpose of this section is to authorize the protection of 
trade secrets and commercial or financial records that are customarily 
privileged or are appropriately given to the Corporation in confidence. 
It assures the confidentiality of trade secrets and commercial or 
financial information obtained by the Corporation through questionnaires 
and required reports to the extent that the information would not 
customarily be made public by the person from whom it was obtained. In 
any case in which the Corporation has obligated itself not to disclose 
trade secrets and commercial or financial information it receives, this 
section indicates the Corporation's intention to honor that obligation 
to the extent permitted by law. In addition, this section recognizes 
that certain materials, such as research data and materials, formulae, 
designs, and architectural drawings, have significance not as records 
but as items of property acquired, in many cases at public expense. In 
any case in which similar proprietary material in private hands would be 
held in confidence, material covered in this section may be held in 
confidence.
    (c)(1) In general. For commercial or financial information furnished 
to the Corporation on or after March 30, 1988, the Corporation shall 
require the submitter to designate, at the time the information is 
furnished or within a reasonable time thereafter, any information the 
submitter considers confidential or privileged. Commercial or financial 
information provided to the Corporation shall not be disclosed pursuant 
to a Freedom of Information Act request except in accordance with this 
paragraph.
    (2) Notice to submitters. The Corporation shall provide a submitter 
with prompt written notice of a request encompassing its commercial or 
financial information whenever required under paragraph (c)(3) of this 
section, and except as is provided in paragraph (c)(7) of this section. 
Such written notice shall either describe the exact nature of the 
information requested or provide copies of the records or portions 
thereof containing the information. Concurrently with its notice to a 
submitter, the Corporation shall inform a requestor in writing that the 
submitter is afforded a reasonable period within which to object to 
disclosure and that the 10 workday initial determination period provided 
for in 36 CFR 902.60 may therefore be extended.
    (3) When notice is required. (i) For information submitted to the 
Corporation prior to March 30, 1988, the Corporation shall provide a 
submitter with notice of a request whenever:
    (A) The information is less than ten years old;
    (B) The information is subject to prior express commitment of 
confidentiality given by the Corporation to the submitter; or
    (C) The Corporation has reason to believe that disclosure of the 
information may result in substantial competitive harm to the submitter.
    (ii) For information submitted to the Corporation on or after March 
30, 1988, the Corporation shall provide a submitter with notice of a 
request whenever:
    (A) The submitter has in good faith designated the information as 
confidential, or
    (B) The Corporation has reason to believe that disclosure of the 
information may result in substantial competitive harm to the submitter.

Notice of a request for information falling within the former category 
shall be required for a period of not more than ten years after the date 
of submission unless the submitter requests, and provides acceptable 
justification for, a specific notice period of greater duration. The 
submitter's claim of confidentiality should be supported by a statement 
or certification by an officer or authorized representative that the 
information in question is in fact confidential and has not been 
disclosed to the public.

[[Page 148]]

    (4) Opportunity to object to disclosure. Through the notice 
described in paragraph (c)(2) of this section, the Corporation shall 
afford a submitter a reasonable period within which to provide the 
Corporation with a detailed statement of any objection to disclosure. 
Such statement shall specify all grounds for withholding any of the 
information under any exemption of the Freedom of Information Act and, 
in the case of Exemption 4, shall demonstrate why the information is 
contended to be privileged or confidential. Information provided by a 
submitter pursuant to this paragraph may itself be subject to disclosure 
under the Freedom of Information Act.
    (5) Notice of intent to disclose. The Corporation shall consider 
carefully a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose information. 
Whenever the Corporation decides to disclose information over the 
objection of a submitter, the Corporation shall forward to the submitter 
a written notice which shall include:
    (i) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (ii) A description of the information to be disclosed; and
    (iii) A specified disclosure date.

Such notice of intent to disclose shall be forwarded a reasonable number 
of days, as circumstances permit, prior to the specified date upon which 
disclosure is intended. A copy of such disclosure notice shall be 
forwarded to the requester at the same time.
    (6) Notice of lawsuit. Whenever a requester brings suit seeking to 
compel disclosure of information covered by paragraph (c) of this 
section, the Corporation shall promptly notify the submitter.
    (7) Exceptions to notice requirements. The notice requirements of 
this section shall not apply if:
    (i) The Corporation determines that the information should not be 
disclosed;
    (ii) The information lawfully has been published or otherwise made 
available to the public;
    (iii) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (iv) The designation made by the submitter in accordance with 
paragraphs (c)(1) and (c)(3)(ii) of this section appears obviously 
frivolous; except that, in such case, the Corporation shall provide the 
submitter with written notice of any final decision to disclose 
information within a reasonable number of days prior to a specified 
disclosure date.

[41 FR 43143, Sept. 30, 1976, as amended at 53 FR 10374, Mar. 31, 1988]



Sec. 902.55  Intragovernmental exchanges.

    (a) Any record prepared by a Government officer or employee 
(including those prepared by a consultant or advisory body) for internal 
Government use is within the statutory exemption to the extent that it 
contains--
    (1) Opinions, advice, deliberations, or recommendations made in the 
course of developing official action by the Government, but not actually 
made a part of that official action, or
    (2) Information concerning any pending proceeding or similar matter 
including any claim or other dispute to be resolved before a court of 
law, administrative board, hearing officer, or contracting officer.
    (b) This section has two distinct purposes. One is to protect the 
full and frank exchange of ideas, views, and opinions necessary for the 
effective functioning of the Government and to afford this protection 
both before and after any action is taken. This judicially recognized 
privilege of protection against disclosure in litigation or elsewhere is 
intended to assure that these resources will be fully and readily 
available to those officials upon whom the responsibility rests to take 
official and final Corporation action. However, the action itself, any 
memoranda made part of that action, and the facts on which it is based 
are not within this protection. The other purpose is to protect against 
the premature disclosure of material that is in the development stage if 
premature disclosure would be detrimental to the authorized and 
appropriate purposes for which the material is being used, or if, 
because of its tentative nature, the material is likely to be revised or 
modified before it is officially presented to the public.

[[Page 149]]

    (c) Examples of records covered by this section include minutes to 
the extent they contain matter described in paragraph (a) of this 
section; staff papers containing advice, opinions, suggestions, or 
exchanges of views, preliminary to final agency decision or action; 
budgetary planning and programming information; advance information on 
such things as proposed plans to procure, lease, or otherwise hire and 
dispose of materials, real estate, or facilities, documents exchanged 
preparatory to anticipated legal proceedings; material intended for 
public release at a specified future time, if premature disclosure would 
be detrimental to orderly processes of the Corporation; records of 
inspection, investigations, and surveys pertaining to internal 
management of the Department; and matters that would not be routinely 
disclosed under disclosure procedures in litigation and which are likely 
to be the subject of litigation. However, if such a record also contains 
factual information, that information must be made available under 
subpart E of this part unless the facts are so inextricably intertwined 
with deliverative or policymaking processes, that they cannot be 
separated without disclosing those processes.



Sec. 902.56  Protection of personal privacy.

    (a) Any of the following personnel, medical, or similar records is 
within the statutory exemption if its disclosure would harm the 
individual concerned or be a clearly unwarranted invasion of his 
personal privacy:
    (1) Personnel and background records personal to any officer or 
employee of the Corporation, or other person, including his home 
address;
    (2) Medical histories and medical records concerning individuals, 
including applicants for licenses; or
    (3) Any other detailed record containing personal information 
identifiable with a particular person.
    (b) The purpose of this section is to provide a proper balance 
between the protection of personal privacy and the preservation of the 
public's rights to Corporation information by authorizing the protection 
of information that, if released, might unjustifiably invade an 
individual's personal privacy.



Sec. 902.57  Investigatory files compiled for law enforcement purposes.

    (a) Files compiled by the Corporation for law enforcement purposes, 
including the enforcement of the regulations of the Corporation, are 
within the statutory exemption to the extent that production of such 
records would:
    (1) Interfere with enforcement proceedings;
    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (3) Constitute an unwarranted invasion of personal privacy;
    (4) Disclose the identity of a confidential source and in the case 
of a record compiled by a criminal law enforcement authority in the 
courts of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (5) Disclose investigative techniques and procedures; or,
    (6) Endanger the life or physical safety of law enforcement 
personnel.
    (b) The purpose of this section is to protect from disclosure the 
law enforcement files of the Corporation including files prepared in 
connection with related litigation and adjudicative proceedings. It 
includes the enforcement not only of criminal statutes but all kinds of 
laws.



Sec. 902.58  Reports of financial institutions.

    Any material contained in or related to any examination, operating, 
or condition report prepared by, on behalf of, or for the use of, any 
agency responsible for the regulation or supervision of financial 
institutions is within the statutory exemption.



Sec. 902.59  Geological and geophysical information.

    Any geological or geophysical information and data (including maps) 
concerning wells is within the statutory exemption.

[[Page 150]]



                       Subpart G_Time Limitations



Sec. 902.60  Initial determination.

    (a) An initial determination whether or not to release a record 
requested under subparts D and E of this part shall be made by the 
Public Information Offices within 10 workdays after the receipt of a 
request which complies with Sec. 902.21. Failure of the requester to 
comply with those provisions may toll the running of the 10 day period 
until the request is identified as one being made under the Act. This 
time limit may be extended by up to 10 workdays in accordance with Sec. 
902.62.
    (b) Upon making initial determination, the Administrative Officer 
shall immediately notify the person making the request as to its 
disposition. If the determination is made to release the requested 
record, the Administrative Officer shall make the record promptly 
available. If the determination is to deny the release of the requested 
record, the Public Information Officer shall immediately notify the 
requester of the denial and shall provide the following information.
    (1) The reason for the determination, including a reference to the 
appropriate exemption provided in subpart F of this part;
    (2) The right of the request or to appeal the determination as 
provided in subpart H of this part; and
    (3) The name and position of each person responsible for the denial 
of the request.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.61  Final determination.

    A determination with respect to any appeal made pursuant to subpart 
H of this part will be made within twenty work days after the date of 
receipt of the appeal. The time limit provided may be extended by up to 
10 workdays in accordance with Sec. 902.62.



Sec. 902.62  Extension of time limits.

    (a) In unusual circumstances, the time limits prescribed in 
Sec. Sec. 902.60 and 902.61 may be extended by written notice to the 
person making the request. The notice shall set forth the reasons for 
the extension and the date on which a determination is expected to be 
dispatched. Under no circumstances shall the notice specify a date that 
would result in an extension for more than 10 workdays.
    (b) As used in this section, unusual circumstances means (but only 
to the extent reasonably necessary to the proper processing of the 
particular request):
    (1) The need to search for, collect and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request;
    (2) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject matter interest therein.
    (c) Any person having made a request for records under this part 
shall have exhausted his administrative remedies with respect to such 
request, if the Corporation fails to comply with the applicable time 
limitations set forth in this subject.



   Subpart H_Procedures for Administrative Appeal of Decisions Not To 
                            Disclose Records



Sec. 902.70  General.

    Within the time limitations of subpart G of this part, if the 
Administrative Officer makes a determination not to disclose a record 
requested under subparts D and E of this part, he shall furnish a 
written statement of the reasons for that determination to the person 
making the request. The statement shall indicate the name(s) and 
title(s) of each person responsible for the denial of the request, and 
the availability of an appeal with the Corporation. Any person whose 
request for a record has

[[Page 151]]

been denied may submit a written appeal to the Corporation requesting 
reconsideration of the decision.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.71  Forms for appeal.

    Although no particular written form is prescribed for on appeal, the 
letter or similar written statement appealing a denial of a record shall 
contain a description of the record requested, the name and position of 
the official who denied the request, the reason(s) given for the denial, 
and other pertinent facts and statements deemed appropriate by the 
appellant. The Corporation may request additional details if the 
information submitted is insufficient to support an appeal.



Sec. 902.72  Time limitations on filing an appeal.

    An appeal must be submitted in writing within thirty days from the 
date of receipt of the initial written denial and must contain the 
information requested in Sec. 902.71.



Sec. 902.73  Where to appeal.

    An appeal shall be addressed to the Chairman of the Board of 
Directors, Pennsylvania Avenue Development Corporation, 1331 
Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004.

[41 FR 43143, Sept. 30, 1976, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 902.74  Agency decision.

    (a) The Chairman shall have sole authority to act on an appeal, 
which seeks to reverse an initial decision denying disclosure of a 
record. He shall review each appeal and provide the appellant and other 
interested parties with a written notice of his decision. The decision 
of the Chairman as to the availability of the record is administratively 
final.
    (b) If the decision of the Chairman sustains the refusal to 
disclose, the notice of decision shall set forth the reasons for the 
refusal, including the specific exemptions from disclosure under the Act 
that are the bases of the decision not to disclose. The notice shall 
further advise the appellant that judicial review is available on 
complaint to the appropriate District Court of the United States, as 
provided in section 552(a)(4)(B) of title 5 U.S.C.
    (c) As set out in Sec. 902.61, the final decision on appeal shall 
be made within 20 workdays after the receipt of the appeal. An extension 
of this limitation is authorized as prescribed under Sec. 902.62.



                             Subpart I_Fees



Sec. 902.80  General.

    (a) This subpart prescribes fees for services performed by the 
Corporation under subparts D and E of this part. This subpart shall only 
apply to the services described herein. The fees for the service listed 
reflect the actual cost of the work involved in compiling requested 
record and copying, if necessary.
    (b) A fee shall not be charged for time spent in resolving legal or 
policy issues.

[41 FR 43143, Sept. 30, 1976, as amended at 52 FR 26677, July 16, 1987]



Sec. 902.81  Payment of fees.

    The fees prescribed in this part may be paid in cash or by check, 
draft, or postal money order made payable to the Pennsylvania Avenue 
Development Corporation.

[52 FR 26677, July 16, 1987]



Sec. 902.82  Fee schedule.

    (a) Definitions. For purposes of this section--
    (1) A commercial use request is a request from or on behalf of one 
who seeks information for a use or purpose that furthers the commercial, 
trade, or profit interests of the requester or the person on whose 
behalf the request is made. In determining whether a requester properly 
belongs in this category, the Corporation will determine the use to 
which the requester will put the records sought. Where the Corporation 
has reasonable cause to doubt the use to which a requester will put the 
records sought, or where that use is not clear from the request itself, 
the Corporation will seek additional clarification before assigning the 
request to a specific category.

[[Page 152]]

    (2) Direct costs means those expenditures the Corporation actually 
incurs in searching for and duplicating (and in the case of commercial 
requesters, reviewing) records to respond to an 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.
    (3) Duplication means the process of making a copy of a record 
necessary to respond to an FOIA request. Such copies can take the form 
of paper copy, microform, audio-visual materials, or machine-readable 
documentation (e.g., magnetic tape or disk), among others. The copy 
provided must be in a form that is reasonably usable by requesters.
    (4) Educational institution means 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, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (5) Non-commercial scientific institution means an institution that 
is not operated on a commercial basis, within the meaning of paragraph 
(a)(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.
    (6) Representative of the new media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term news means information that is 
about current events or that would be of current interest to the public. 
Examples of new media entities include television or radio stations 
broadcasting to the public at large, and publishers of periodicals (but 
only in those instances when they can qualify as disseminators of news) 
who make their products available for purchase or subscription by the 
general public. These examples are not intended to be all-inclusive. 
Moreover, as traditional methods of news delivery evolve (e.g., 
electronic dissemination of newspapers through telecommunications 
services), such alternative media would be included in this category. 
Freelance journalists may be regarded as working for a news organization 
if they can demonstrate a solid basis for expecting publication through 
that organization, even though not actually employed by it. A 
publication contract would be the clearest proof, but the Corporation 
may also look to the past publication record of a requester in making 
this determination.
    (7) Review means the process of examining records located in 
response to a request that is for a commercial use (see paragraph (a)(1) 
of this section) to determine whether any portion of any record located 
is permitted to be withheld. It also includes processing any records for 
disclosure, e.g., 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.
    (8) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within records. A line-by-line search will 
not be conducted when merely duplicating an entire record would be the 
less expensive and quicker method of complying with the request. Search 
does not include review of material to determine whether the material is 
exempt from disclosure (see paragraph (a)(7) of this section). Searches 
may be done manually or by computer using existing programming.
    (b) The following provisions shall apply with respect to services 
rendered to the public in processing requests for disclosure of the 
Corporation's records under this part:
    (1) Fee for duplication of records: $0.25 per page. When the 
Corporation estimates that duplication charges are likely to exceed 
$25.00, it will notify the requester of the estimated amount of fees, 
unless the requester has indicated in advance his willingness to pay 
fees as high as those anticipated. The

[[Page 153]]

Corporation will offer the requester the opportunity to confer with the 
Corporation's staff in order to reformulate the request to meet the 
requester's needs at a lower cost.
    (2) Search and review fees. (i) Searches for records by clerical 
personnel: $7.00 per hour, including the time spent searching for and 
copying any records.
    (ii) Search for and review of records by professional and 
supervisory personnel: $11.50 per hour spent searching for any record or 
reviewing any record to determine whether it may be disclosed, including 
time spent in copying any record.
    (iii) Except for requests seeking records for a commercial use, the 
Corporation will provide the first 100 pages of duplication and the 
first two hours of search time without charge. The word pages means 
paper copies of a standard size, either 8\1/2\ by 
11 or 14 by 14.
    (3) Duplication of architectural drawings, maps, and similar 
materials: (per copy) $10.00.
    (4) Reproduction of 35 mm slides: (per copy) $1.00.
    (5) Reproduction of enlarged, black and white photographs: (per 
copy) $10.00.
    (6) Reproduction of enlarged color photographs: (per copy) $17.00.
    (7) Certification and validation fee: $1.75 for each certification 
or validation of a copy of any record.
    (8) Categories of FOIA requesters and fees to be charged--(i) 
Commercial use requesters. When the Corporation receives a request for 
records for commercial use, it will assess charges to recover the full 
direct costs of searching for, reviewing for release, and duplicating 
the records sought. Requesters must reasonably describe the records 
sought.
    (ii) Educational and non-commercial scientific institution 
requesters. The Corporation shall provide copies of records to 
requesters in this category for the cost of reproduction alone, 
excluding charges for the first 100 pages. To be eligible for inclusion 
in this category, requesters must show that the request is being made 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. Requesters must reasonably describe 
the records sought.
    (iii) Requesters who are representatives of the news media. The 
Corporation shall provide documents to requesters 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 requester must 
meet the criteria in the definition of representative of the news media 
in paragraph (a)(6) of this section, and his or her request must not be 
made for a commercial use. In reference to this class of requester, a 
request for records supporting the news dissemination function of the 
requester shall not be considered to be a request that is for a 
commercial use. Requestors must reasonably describe the records sought.
    (iv) All other requesters. The Corporation will charge requesters 
who do not fit into any of the categories above fees which 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. Requests from record subjects for records about 
themselves filed in the Corporation's systems of records will be treated 
under the fee provisions of the Privacy Act of 1974 which permit fees 
only for reproduction. Requesters must reasonably describe the records 
sought.
    (9) Interest. In the event a requester fails to remit payment of 
fees charged for processing a request under this part within 30 days 
from the date such fees were billed, interest on such fees may be 
assessed beginning on the 31st day after the billing date at the rate 
prescribed in section 3717 of title 31 U.S.C., and will accrue from the 
date of the billing.
    (10) Unsuccessful searches. Except as provided in paragraph 
(b)(8)(iv) of this section, the cost of searching for a requested record 
shall be charged even if the search fails to locate such record or it is 
determined that the record is exempt from disclosure.
    (11) Aggregating requests. A requester must not file multiple 
requests at the same time, each seeking portions of a

[[Page 154]]

record or records, solely in order to avoid payment of fees. When the 
Corporation reasonably believes that a requester, or a group of 
requesters acting in concert, is attempting to break a request down into 
a series of requests for the purpose of evading the assessment of fees, 
the Corporation may aggregate any such requests and charge accordingly.
    (12) Advance payments. The Corporation will not require a requester 
to make an advance payment, i.e., payment before work is commenced or 
continued on a request unless:
    (i) The Corporation estimates or determines that allowable charges 
that a requester may be required to pay are likely to exceed $250; or
    (ii) If a requester has previously failed to make timely payments 
(i.e., within 30 days of billing date) of fees charged under this part, 
the requester may be required to pay the full amount owed plus any 
applicable interest accrued thereon or demonstrate that he has, in fact, 
paid the fee, and to make an advance payment of the full amount of the 
estimated fee before the Corporation begins to process a new request or 
a pending request from this requester.
    (iii) With regard to any request coming within paragraphs (b)(12) 
(i) and (ii) of this section, the administrative time limits set forth 
in Sec. Sec. 902.60, 902.61, and 902.62 of this part will begin to run 
only after the Corporation has received the requisite fee payments.
    (iv) Non-payment. In the event of nonpayment of billed charges for 
disclosure of records, the provisions of the Debt Collection Act of 1982 
(Pub. L. 97-365), including disclosure to consumer credit reporting 
agencies and referral to collection agencies, where appropriate, may be 
utilized to obtain payment.

[52 FR 26677, July 16, 1987]



Sec. 902.83  Waiver or reduction of fees.

    Fees otherwise chargeable in connection with a request for 
disclosure of a record shall be waived or reduced where:
    (a) Disclosure of the information is in the public interest because 
it is likely to contribute significantly to public understanding of the 
operations or activities of the government and is not primarily in the 
commercial interest of the requester; or
    (b) The costs of routine collection and processing of the fee are 
likely to equal or exceed the amount of the fee.

[52 FR 26679, July 16, 1987]



PART 903_PRIVACY ACT--Table of Contents




Sec.
903.1 Purpose and scope.
903.2 Definitions.
903.3 Procedures for notification of records pertaining to individuals.
903.4 Requests for access to records.
903.5 Response to request for access.
903.6 Appeal of initial denial of access.
903.7 Requests for amendment of record.
903.8 Review of request for amendment of record.
903.9 Appeal of initial adverse determination of request for amendment 
          of record.
903.10 Disclosure of records to persons or agencies.
903.11 Routine uses of records maintained in the system of records.
903.12 Fees for furnishing and reproducing records.
903.13 Penalties.

    Authority: 5 U.S.C. 552a; 40 U.S.C. 870.

    Source: 42 FR 5973, Feb. 1, 1977, unless otherwise noted.



Sec. 903.1  Purpose and scope.

    The purpose of this part is to enable the Pennsylvania Avenue 
Development Corporation to implement the Privacy Act of 1974, and in 
particular the provisions of 5 U.S.C. 552a, as added by the Act. The Act 
was designed to insure that personal information about individuals 
collected by Federal agencies be limited to that which is legally 
authorized and necessary, and that the information is maintained in a 
manner which precludes unwarranted intrusions upon individual privacy. 
The regulations in this part establish, and make public, procedures 
whereby an individual can:
    (a) Request notification of whether or not the Corporation maintains 
or has disclosed a record pertaining to him or her,
    (b) Request access to such a record or an accounting of its 
disclosure,
    (c) Request that the record be amended, and

[[Page 155]]

    (d) Appeal any initial adverse determination of a request to amend a 
record.



Sec. 903.2  Definitions.

    As used in this part:
    (a) Agency means agency as defined in 5 U.S.C. 552(e).
    (b) Corporation means the Pennsylvania Avenue Development 
Corporation.
    (c) Workday shall be a day excluding a Saturday, Sunday or legal 
holiday.
    (d) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (e) Maintain includes maintain, collect, use, or disseminate.
    (f) Record means any items, collection, or grouping of information 
about an individual that is maintained by an agency, including, but not 
limited to, his or her education, financial transactions, medical 
history, and criminal or employment history and that contains his or her 
name, or the identifying number, symbol or other identifying particular 
assigned to the individual, such as a finger or voice print or a 
photograph.
    (g) The term system of records means a group of records under the 
control of an agency from which information is retrieved by the name of 
the individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.
    (h) The term statistical record means a record in a system of 
records maintained for statistical research or reporting purposes only 
and not used in whole or in part in making any determination about an 
identifiable individual except as provided by section 8 of title 13 
U.S.C.
    (i) The term routine use means, with respect to the disclosure of a 
record, the use of such record for a purpose which is compatible with 
the purpose for which it was collected.



Sec. 903.3  Procedures for notification of records pertaining to individuals.

    (a) An individual making a written or oral request under the Privacy 
Act (5 U.S.C. 522a) shall be informed of any Corporation systems of 
records which pertain to the individual, if the request contains a 
reasonable identification of the appropriate systems of records as 
described in the notice published in the Federal Register.
    (b) Requests may be made in person between the hours of 9:00 a.m. 
and 5:00 p.m. Monday through Friday, (except legal holidays). The 
request should be addressed to the Privacy Protection Officer, 
Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, 
NW., Suite 1220 North, Washington, DC 20004. The Privacy Protection 
Officer of the Corporation will require adequate personal identification 
before processing the request. If a request is made in writing it must 
be under the signature of the requesting individual and include the 
individual's address, date of birth, and an additional proof of 
identification, such as a photocopy of a driver's license or similar 
document bearing the individual's signature. A notarized, signed 
statement is acceptable to verify the identity of the individual 
involved without additional proof.

[42 FR 5973, Feb. 1, 1977, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 903.4  Requests for access to records.

    (a) Except as otherwise provided by law or regulation, an 
individual, upon request made in person or delivered in writing may gain 
access to his or her record or to any information pertaining to him or 
her which is contained in a system of records maintained by the 
Corporation, and to review the record and have a copy made of all or any 
portion thereof in a form comprehensible to him or her. An individual 
seeking access to a Corporation record may be accompanied by a person of 
his or her choosing. However, the Corporation will require a written 
statement from the individual authorizing discussion of his or her 
record in the accompanying person's presence.
    (b) A request under paragraph (a) of this section shall be directed 
to the Privacy Protection Officer at the place, times and in the manner 
prescribed in Sec. 903.3(a) and (b). The request should include the 
following information:
    (1) The name of the individual;
    (2) If made in writing, the information required under Sec. 
903.3(b);

[[Page 156]]

    (3) A description of system or systems of records which contain the 
record to which access is requested;
    (4) The approximate dates covered by the record; and,
    (5) A suggested date and time when the individual would like to view 
the record.
    (c) Requests which do not contain information sufficient to identify 
the record requested will be returned promptly to the requester, with a 
notice indicating that information is lacking. Individuals making 
requests in person will be informed of any deficiency in the 
specification of records or identification at the time that the request 
is made. The Privacy Protection Officer of the Corporation will require 
adequate personal identification before processing a request made in 
person.



Sec. 903.5  Response to request for access.

    (a) Within 10 days of receipt of a request made under Sec. 903.4 
the Privacy Protection Officer shall determine whether access to the 
record is available under the Privacy Act and shall notify the 
requesting individual in person or in writing of that determination.
    (b) Notices granting access shall inform the individual when and 
where the requested record may be seen, how copies may be obtained, and 
of any anticipated fees or charges which may be incurred under Sec. 
903.11. Access shall be provided within 30 days of receipt of the 
request unless the Corporation, for good cause shown, is unable to 
provide prompt access, in which case the individual shall be informed in 
writing within the 30 days as to the cause for delay and when it is 
anticipated that access will be granted.
    (c) Notices denying access shall state the reasons for the denial, 
and advise the individual that the decision may be appealed in 
accordance with the procedures set forth in Sec. 903.6.



Sec. 903.6  Appeal of initial denial of access.

    (a) After receiving notification of an initial denial of access to a 
record, an individual may request a review and reconsideration of the 
request by the Executive Director of the Corporation, or an officer of 
the Corporation designated by him, but other than the Privacy Protection 
Officer. Appeals for review shall be in writing, addressed to the 
Executive Director, Pennsylvania Avenue Development Corporation, 1331 
Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. The 
appeal shall identify the record as in the original request, shall 
indicate the date of the original request and the date of the initial 
denial, and shall indicate the expressed basis for the denial.
    (b) Not later than 30 days after receipt of an appeal, the Executive 
Director, or an officer of the Corporation designated by him, will 
complete review of the appeal and the initial denial and either:
    (1) Determine that the appeal should be granted, and notify the 
individual in writing to that effect; or,
    (2) Determine that the appeal should be denied because the 
information requested is exempt from disclosure. If the reviewing 
official denies the appeal, he or she shall advise the individual in 
writing of the decision and the reasons for reaching it, and that the 
denial of the appeal is a final agency action entitling the individual 
to seek judicial review in the appropriate district court of the United 
States as provided in 5 U.S.C. 552a(g).

[42 FR 5973, Feb. 1, 1977, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 903.7  Requests for amendment of record.

    (a) An individual may request amendment of a Corporation record 
pertaining to him or to her, if the individual believes that the record 
contains information which is not accurate, relevant, timely, or 
complete. The request shall be in writing, whether presented in person 
or by mail, shall state with specificity the record sought to be 
amended, and shall propose wording of the correction or amendment 
sought. The request shall be directed to the Privacy Protection Officer 
at the place, times, and in the manner specified in Sec. 903.3 (a) and 
(b). Assistance in preparing a request to amend a record,

[[Page 157]]

or to appeal an initial adverse determination under Sec. 903.3(a), may 
be obtained from the Privacy Officer, Pennsylvania Avenue Development 
Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, 
Washington, DC 20004.
    (b) Not later than 10 days after the date of receipt of a request 
the Privacy Protection Officer will acknowledge it in writing. The 
acknowledgement will clearly describe the request, and if a 
determination has not already been made, will advise the individual when 
he or she may expect to be advised of action taken on the request. For 
requests presented in person, written acknowledgement will be provided 
at the time when the request is presented. No separate acknowledgement 
of receipt will be issued if the request can be reviewed and the 
individual advised of the results of the review within the 10 day 
period.

[42 FR 5973, Feb. 1, 1977, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 903.8  Review of request for amendment of record.

    (a) Upon receipt of a request for amendment of a record the Privacy 
Protection Officer will promptly review the record and: Either:
    (1) Amend any portion thereof which the individual believes is not 
accurate, relevant, timely, or complete; or
    (2) Inform the individual of refusal to amend the record in 
accordance with the request. In reviewing a record pursuant to a request 
to amend it, the Corporation will assess the accuracy, relevance, 
timeliness and completeness of the record in terms of the criteria 
established in 5 U.S.C. 522a(e)(5). In reviewing a record in response to 
a request to amend it by deleting information, the Corporation will 
ascertain whether or not the information is relevant and necessary to 
accomplish a purpose of the Corporation required to be accomplished by 
statute or by executive order of the President, as prescribed by 5 
U.S.C. 522a(e)(1).
    (b) The Corporation shall take the action specified in paragraph (a) 
of this section within 30 days of receipt of a request for amendment of 
a record, unless unusual circumstances preclude completion of the action 
within that time. If the expected completion date for the action, as 
indicated in the acknowledgement provided pursuant to Sec. 903.5 cannot 
be met, the individual shall be advised of the delay and of a revised 
date when action is expected to be completed. If necessary for an 
accurate review of the record, the Corporation will seek, and the 
individual will supply, additional information in support of his or her 
request for amending the record.
    (c) If the Corporation agrees with all or any portion of an 
individual's request to amend a record, the Corporation will so advise 
the individual in writing, and amend the record to the extent agreed to 
by the Corporation. Where an accounting of disclosures has been kept, 
the Corporation will advise all previous recipients of the record of the 
fact that the amendment was made and the substance of the amendment.
    (d) If the Corporation disagrees with all or any portion of an 
individual's request to amend a record, the Corporation shall:
    (1) Advise the individual of its adverse determination and the 
reasons therefor, including the criteria used by the Corporation in 
conducting the review;
    (2) Inform the individual that he or she may request a review of the 
adverse determination by the Executive Director of the Corporation, or 
by an officer of the Corporation designated by the Executive Director; 
and,
    (3) Advise the individual of the procedures for requesting such a 
review including the name and address of the official to whom the 
request should be directed.
    (e) If the Corporation is apprised by another agency of any 
corrections or other amendments made to a record contained in the 
Corporation's system of records, the Corporation will promptly amend its 
record and advise in writing all previous recipients of the record of 
the fact that the amendment was made and the substance of the amendment.



Sec. 903.9  Appeal of initial adverse determination of request for amendment 

of record.

    (a) After receipt by an individual of notice of an adverse 
determination by

[[Page 158]]

the Privacy Protection Officer concerning a request to amend a record, 
the individual may, within 60 working days after the date of receipt of 
the notice, appeal the determination by seeking a review by the 
Executive Director of the Corporation, or by an officer of the 
Corporation designated by him. The appeal shall be in writing, mailed or 
delivered to the Executive Director, Pennsylvania Avenue Development 
Corporation, 1331 Pennsylvania Avenue, NW, Suite 1220 North, Washington, 
DC 20004. The appeal shall identify the record in the same manner as it 
was identified in the original request, shall indicate the dates of the 
original request and of the adverse determination and shall indicate the 
expressed basis for that determination. In addition, the appeal shall 
state briefly the reasons why the adverse determination should be 
reversed.
    (b) Not later than 30 days after receipt of an appeal, the Executive 
Director, or an officer of the Corporation designated by him, will 
complete a review of the appeal and the initial determination, and 
either: (1) Determine that the appeal should be granted, take the 
appropriate action with respect to the record in question, and notify 
the individual accordingly; or, (2) determine that the appeal should be 
denied.
    (c) The reviewing official may, at his or her option, request from 
the individual such additional information as is deemed necessary to 
properly conduct the review. If additional time is required, the 
Executive Director may, for good cause shown, extend the period for 
action beyond the 30 days specified above. The individual will then be 
informed in writing of the delay and the reasons therefor, and of the 
approximate date on which action is expected to be completed.
    (d) If the reviewing official denies the appeal, he or she shall 
advise the individual in writing:
    (1) Of the decision and the reasons for reaching it;
    (2) That the denial of the appeal is a final agency action entitling 
the individual to seek judicial review in the appropriate district court 
of the United States, as provided in 5 U.S.C. 552a(g); and,
    (3) That the individual may file with the Corporation a concise 
statement setting forth the reasons for his or her disagreement with the 
refusal of the Corporation to amend the record in question.
    (e) Any individual having received notices of a denial of an appeal 
to amend a record may file a statement of disagreement with the 
Executive Director not later than 60 working days from the date of 
receipt of the notice. Such statements shall ordinarily not exceed one 
page in length, and the Corporation reserves the right to reject 
statements of excessive length. Upon receipt of a proper and timely 
statement of disagrement, the Corporation will clearly annotate the 
record in question to indicate the portion of the record which is in 
dispute. In any subsequent disclosure containing information about which 
the individual has filed a statement of disagreement, the Corporation 
will provide a copy of the statement together with the record to which 
it pertains. In addition, prior recipients of the disputed record will 
be provided with a copy of statements of disagreement to the extent that 
an accounting of disclosures was maintained. If the Corporation deems it 
apropriate, it may also include in any disclosure its own concise 
statement of the reasons for not making the amendments requested.

[42 FR 5973, Feb. 1, 1977, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 903.10  Disclosure of records to persons or agencies.

    (a) The Corporation will not disclose any record which is contained 
in a system of records, by any means of communication to any person or 
to another agency except:
    (1) Pursuant to a written request by, or with the prior written 
consent of, the individual to whom the record pertains;
    (2) To those officers and employees of the Corporation who have a 
need for the record in the performance of their duties;
    (3) When required under 5 U.S.C. 522 (The Freedom of Information 
Act); or
    (4) Pursuant to the conditions of disclosure contained in 5 U.S.C. 
552a(b)(3) through 5 U.S.C. 522a(b)(11).

[[Page 159]]

    (b) The Privacy Protection Officer of the Corporation shall keep an 
accounting of each disclosure made pursuant to paragraph (a)(4) of this 
section, in accordance with 5 U.S.C. 552a(c). Except for disclosures 
made pursuant to 5 U.S.C. 552a(b)(7), the Privacy Protection Officer 
shall make the accounting kept under this paragraph available to an 
individual to whom the record pertains, upon his or her request. An 
individual requesting an accounting of disclosures should do so at the 
place, times and in the manner specified in Sec. 903.3 (a) and (b).



Sec. 903.11  Routine uses of records maintained in the system of records.

    (a) It shall be a routine use of the records in this system of 
records to disclose them to the Department of Justice when:
    (1) The Corporation, or any component thereof; or
    (2) Any employee of the Corporation in his or her official capacity; 
or
    (3) Any employee of the Corporation in his or her individual 
capacity where the Department of Justice has agreed to represent the 
employee; or
    (4) The United States, where the Corporation determines that 
litigation is likely to affect the Corporation or any of its components, 
is a party to litigation or an interest in such litigation, and the use 
of such records by the Department of Justice is deemed by the 
Corporation to be relevant and necessary to the litigation, provided, 
however, that in each case, the Corporation determines that disclosure 
of the records to the Department of Justice is a use of the information 
contained in the records that is compatible with the purpose for which 
the records were collected.
    (b) It shall be a routine use of records maintained by the 
Corporation to disclose them in a proceeding before a court or 
adjudicative body before which the Corporation is authorized to appear, 
when:
    (1) The Corporation, or any component thereof; or
    (2) Any employee of the Corporation is his or her individual 
capacity;
    (3) Any employee of the agency in his or her individual capacity 
where the Department of Justice has agreed to represent the employee; or
    (4) The United States, where the Corporation determines that 
litigation is likely to affect the Corporation or any of its components 
is a party to litigation or has an interest in such litigation and the 
Corporation determines that use of such records is relevant and 
necessary to the litigation, provided, however, that, in each case, the 
Corporation determines that disclosure of the records to the Department 
of Justice is a use of the information contained in the records that is 
compatible with the purpose for which the records were collected.

[52 FR 34384, Sept. 11, 1987; 52 FR 39224, Oct. 21, 1987]



Sec. 903.12  Fees for furnishing and reproducing records.

    (a) Individuals will not be charged a fee for:
    (1) The search and review of the record;
    (2) Any copies of the record produced as a necessary part of the 
process of making the record available for access;
    (3) Any copies of the requested record when it has been determined 
that access can only be accomplished by providing a copy of the record 
through the mail. The Privacy Protection Officer may provide additional 
copies of any record without charge when it is determined that it is in 
the interest of the Government to do so.
    (b) Except as provided in paragraph (a) of this section, fees will 
be charged for the duplication of records at a rate of 10[cent] per 
page. If it is anticipated that the total fee chargeable to an 
individual under this subpart will exceed $25, the Corporation shall 
promptly notify the requester of the anticipated cost. An advance 
deposit equal to 50% of the anticipated total fee will be required 
unless waived by the Privacy Protection Officer. In notifying the 
requester of the anticipated fee, the Privacy Protection Officer shall 
extend an offer to the requester to consult so that the request might be 
reformulated in a manner which will reduce the fee, yet still meet the 
needs of the requester.

[[Page 160]]

    (c) Fees must be paid in full prior to delivery of the requested 
copies. Remittances may be in the form of cash, personal check, bank 
draft or a postal money order. Remittances, other than cash shall be 
made payable to the Treasurer of the United States.

[42 FR 5973, Feb. 1, 1977. Redesignated at 52 FR 34384, Sept. 11, 1987; 
52 FR 39224, Oct. 21, 1987]



Sec. 903.13  Penalties.

    The provision of 5 U.S.C. 552a(i), as added by section 3 of the 
Privacy Act, make it a misdemeanor subject to a maximum fine of $5,000, 
to knowingly and willfully request or obtain any record concerning an 
individual from an agency under false pretenses. Similar penalties 
attach for violations by agency officers and employees of the Privacy 
Act or regulations established thereunder.

[42 FR 5973, Feb. 1, 1977. Redesignated at 52 FR 34384, Sept. 11, 1987; 
52 FR 39224, Oct. 21, 1987]



PART 904_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR 

FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents




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



Sec. 904.1  Uniform relocation assistance and real property acquisition.

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

[52 FR 48022, Dec. 17, 1987 and 54 FR 8912, Mar. 2, 1989]



PART 905_STANDARDS OF CONDUCT--Table of Contents




                      Subpart A_General Provisions

Sec.
905.735-101 Principles and purpose.
905.735-102 Adoption of regulations.
905.735-103 Definitions.
905.735-104 Applicability.
905.735-105 Designation of counselor.
905.735-106 Notification to employees and special Government employees.
905.735-107 Review of statements of employment and financial interests.
905.735-108 Remedial and disciplinary action.

           Subpart B_Conduct and Responsibilities of Employees

905.735-201 General standards of conduct.
905.735-202 Gifts, entertainment, and favors.
905.735-203 Outside employment and other activity.
905.735-204 Disclosure of information.
905.735-205 Purchase of Government-owned property.

 Subpart C_Conduct and Responsibilities of Special Government Employees

905.735-301 General standards of conduct.

     Subpart D_Special Standards Applicable to Certain Board Members

905.735-401 Standards.
905.735-402 Advice and determination.

       Subpart E_Statements of Employment and Financial Interests

905.735-501 Form and content of statements.
905.735-502 Statements of employment and financial interests by 
          employees.
905.735-503 Statements of employment and financial interests by special 
          Government employees.
905.735-504 Procedures for obtaining statements.
905.735-505 Confidentiality of statements.

 Subpart F_Conduct and Responsibilities of Former Employees_Enforcement

905.737-101 Applicable provisions of law.
905.737-102 Enforcement proceedings.

    Authority: 40 U.S.C. 875, unless otherwise noted.

    Source: 43 FR 60902, Dec. 29, 1978, unless otherwise noted.

[[Page 161]]



                      Subpart A_General Provisions



Sec. 905.735-101  Principles and purpose.

    In order to assure that the business of the Pennsylvania Avenue 
Development Corporation is conducted effectively, objectively, and 
without improper influence or appearance thereof, all employees and 
special Government employees must observe unquestionable standards of 
integrity and conduct. Employees and special Government employees shall 
not engage in criminal, infamous, dishonest, immoral, or disgraceful 
conduct or other conduct prejudicial to the Government. All employees 
and special Government employees must avoid conflicts of private 
interest with their public duties and responsibilities. They must 
consider the propriety of any action in relation to general ethical 
standards of the highest order, so that public confidence in the 
integrity of the Government will not be impaired. Certain standards are 
set by law. Others are set by regulation and by policy. This part 
incorporates by reference applicable general standards of conduct and 
prescribes additional necessary elements. Taken together, this part 
constitutes the Corporation's regulations on this subject. Failure to 
observe any of the regulations in this part is cause for remedial 
action.



Sec. 905.735-102  Adoption of regulations.

    Under the authority of 5 CFR 735.104(f), the Corporation adopts the 
following sections of the Civil Service Commission regulations on 
``Employee Responsibilities and Conduct'' found in part 735 of title 5, 
Code of Federal Regulations: Sec. Sec. 735.202 (a), (d), (e), (f) 
through 735.210; 735.302; 735.303(a); 735.304; 735.305(a); 735.306; 
735.404 through 735.411; and 735.412 (b) and (d).

[43 FR 60902, Dec. 29, 1978, as amended at 45 FR 15927, Mar. 12, 1980]



Sec. 905.735-103  Definitions.

    As used in this part:
    (a) Board Member means any member of the Board of Directors of the 
Pennsylvania Avenue Development Corporation, appointed or serving under 
section 3, Pub. L. 92-578, 86 Stat. 1267 (40 U.S.C. 872).
    (b) Chairman means the Chairman of the Board of Directors and 
President of the Corporation.
    (c) Conflict means the subordination of public responsibilities to 
private interests, and includes the appearance of such subordination.
    (d) Consultant means an individual who serves as an advisor to an 
officer or division of the Corporation, as distinguished from an officer 
or employee who carries out the agency's duties and responsibilities. He 
gives his views or opinions on problems or questions presented him by 
the Corporation, but he neither performs nor supervises performance of 
operating functions. Ordinarily, he is expert in the field in which he 
advises, but he need not be a specialist. His expertness may lie in his 
possession of a high order of broad administrative, professional, or 
technical experience indicating that his ability and knowledge make his 
advice distinctively valuable to the agency. (Chapter 304, Federal 
Personnel Manual).
    (e) Corporation means the Pennsylvania Avenue Development 
Corporation, created by the Pennsylvania Avenue Development Corporation 
Act of 1972, Pub. L. 92-578, 86 Stat. 1266 (40 U.S.C. 871).
    (f) Employee means an officer or employee of the Corporation, but 
does not include a special Government employee as defined herein. The 
term includes those Board Members who are determined to be officers or 
employees of the executive or legislative branches of the United States 
or of the District of Columbia. The term does not include elected 
officials.
    (g) Executive order means Executive Order 11222 of May 8, 1965.
    (h) Expert means a person with excellent qualifications and a high 
degree of attainment in a professional, scientific, technical, or other 
field. His knowledge and mastery of the principles, practices, problems, 
methods, and techniques of his field of activity, or of a specialized 
area in the field, are clearly superior to those usually possessed by 
ordinarily competent individuals in that activity. His attainment is 
such that he usually is regarded as an authority or as a practitioner of 
unusual competence and skill by other

[[Page 162]]

persons in the profession, occupation, or activity. (Chapter 304, 
Federal Personnel Manual.)
    (i) Head of the agency means the Chairman.
    (j) Person means an individual, a corporation, a company, an 
association, a firm, a partnership, a society, a joint stock company, or 
any other institution or organization.
    (k) Special Government Employee means an officer or employee of the 
Corporation who is retained, designated, appointed or employed to 
perform, with or without compensation, for not more than 130 days during 
any period of 365 consecutive days, temporary duties either on a full 
time or intermittent basis (18 U.S.C. 202(a)). The term includes those 
Board Members who are appointed from private life and required to file a 
statement of financial interests with the Chairman of the Civil Service 
Commission pursuant to part IV of the Executive order, or who are 
determined to be special government employees of the executive or 
legislative branches of the United States or the District of Columbia.



Sec. 905.735-104  Applicability.

    This part applies to each employee and to each special Government 
employee of the Corporation as defined herein and supplements the 
Executive order and part 735 of title 5, Code of Federal Regulations, 
promulgated by the Civil Service Commission on employee responsibilities 
and conduct.



Sec. 905.735-105  Designation of counselor.

    In accordance with 5 CFR 735.105(a), the General Counsel of the 
Corporation is designated to be Ethics Counselor and shall serve as the 
Corporation's liaison with the Civil Service Commission for matters 
covered in this part.



Sec. 905.735-106  Notification to employees and special Government employees.

    (a) At the time these regulations are published, or amended, and not 
less often than once annually thereafter, the Corporation shall furnish 
each employee and special Government employees with a copy of the 
regulations. The Administrative Officer shall insure that each newly 
hired employee and special Government employee is given a copy of these 
regulations prior to or at the time of entry on duty.
    (b) All employees and special Government employees will be advised 
by the Corporation of the availability of counseling regarding the 
provisions of this part.



Sec. 905.735-107  Review of statements of employment and financial interests.

    The Ethics Counselor of the Corporation shall review each statement 
of employment and financial interests submitted under Sec. 905.735-402 
or Sec. 905.735-403, except his own and those statements of special 
Government employees who file with the Chairman of the Civil Service 
Commission. When review discloses a conflict between the interests of an 
employee or special Government employee of the Corporation and the 
performance of his services for the Corporation, the Ethics Counselor 
shall bring the conflict to the attention of the employee or special 
Government employee, grant the individual an opportunity to explain the 
conflict, and attempt to resolve it. If the conflict cannot be resolved, 
the Ethics Counselor shall forward a written report on the conflict to 
the Chairman, recommending appropriate action. The Chairman shall review 
the report, solicit an explanation from the individual, and seek 
resolution of the conflict.



Sec. 905.735-108  Remedial and disciplinary action.

    (a) In addition to any penalties prescribed by law, the Chairman, 
after review and consideration of any explanation given by an employee 
or special Government employee concerning a conflict of interest, may 
institute appropriate remedial action to resolve or otherwise eliminate 
the conflict. Appropriate remedial action may include, but is not 
limited to:
    (1) Divestment by the employee or the special Government employee of 
the conflicting interest;
    (2) Disqualification of the individual from a particular assignment;
    (3) Changes in the assigned duties of the individual; or
    (4) Disciplinary action.
    (b) Where the situation warrants some form of disciplinary action, 
the

[[Page 163]]

Chairman may choose from a wide range including a warning or reprimand, 
suspension, reduction in grade or pay, or termination of employment. The 
disciplinary action selected should reflect the character and degree of 
the offense which demands such action and should be reasonable in light 
of that offense.
    (c) Remedial action, whether disciplinary or otherwise, shall be 
effected in accordance with applicable laws, Executive orders, and 
regulations.



           Subpart B_Conduct and Responsibilities of Employees



Sec. 905.735-201  General standards of conduct.

    (a) All employees shall conduct themselves on the job so as to 
efficiently discharge the work of the Corporation. Courtesy, 
consideration, and promptness are to be observed in dealing with the 
public, Congress, and other governmental agencies.
    (b) All employees shall conduct themselves off the job so as not to 
reflect adversely upon the Corporation or the Federal service.
    (c) Employee conduct shall exemplify the highest standards of 
integrity. Employees shall avoid any action, whether or not specifically 
prohibited by this part, which might result in, or create the appearance 
of:
    (1) Using public office for private gain;
    (2) Giving preferential treatment to any person;
    (3) Impeding Government efficiency or economy;
    (4) Losing complete independence or impartiality;
    (5) Making a Government decision outside official channels; or
    (6) Affecting adversely the confidence of the public in the 
integrity of the Government.



Sec. 905.735-202  Gifts, entertainment, and favors.

    Pursuant to paragraph (b) of 5 CFR 735.202, the following exceptions 
to the restriction of paragraph (a) of that section are authorized. 
Employees may:
    (a) Accept gifts and other things of value under circumstances which 
arise from an obvious family or personal relationship(s) (such as 
between the parents, children, or spouse of the employee and the 
employee), when the circumstances make it clear that it is those 
relationships rather than the business of the persons concerned which 
are the motivating factors;
    (b) Accept food and refreshments of nominal value on infrequent 
occasions in the ordinary course of a luncheon, dinner, or other 
meeting, or on an inspection tour where an employee may properly be in 
attendance;
    (c) Accept loans from banks or other financial institutions on 
customary terms to finance proper and usual activities of employees, 
such as home purchase;
    (d) Accept unsolicited advertising or promotional materials, such as 
pens, pencils, note pads, calendars and other items of nominal intrinsic 
value;
    (e) Participating without payment in privately funded activities in 
the Washington metropolitan area if: (1) An invitation is addressed to 
the Chairman or Executive Director of the Corporation and approved by 
either of them; (2) no provision for individual payment is readily 
available; and (3) the activities are limited to ceremonies of interest 
to both the local community and the Corporation (such as ground 
breakings or openings), or are sponsored or encouraged by the Federal or 
District Government as a matter of policy; and,
    (f) Participate in widely attended lunches, dinners, and similar 
gatherings sponsored by industrial, commercial, technical and 
professional associations, or groups, for discussion of matters of 
interest both to the Corporation and the public. Participation by an 
employee at the host's expense is appropriate if the host is an 
association or group and not an individual.



Sec. 905.735-203  Outside employment and other activity.

    As provided in 5 CFR 735.203, an employee of the Corporation may 
engage in outside employment or other outside activity not incompatible 
with the full and proper discharge of the duties and responsibilities of 
his Government employment. An employee who proposes to engage in outside 
employment shall

[[Page 164]]

report that fact in writing to his supervisor prior to undertaking such 
employment.



Sec. 905.735-204  Disclosure of information.

    (a) Every employee who is involved in the development, maintenance 
or use of Corporation records containing information about individuals 
shall familiarize himself with the requirements and penalties of the 
Privacy Act of 1974 (5 U.S.C. 552a) and Corporation regulations (36 CFR 
part 903) promulgated thereunder concerning the utilization of and 
access to such records.
    (b) Every employee is directed to cooperate to the fullest extent 
possible in discharging the requirement of the Freedom of Information 
Act (5 U.S.C. 522) and Corporation regulations promulgated thereunder 
(36 CFR part 902). Every effort should be made to furnish service with 
reasonable promptness to persons who seek access to Corporation records 
and information.



Sec. 905.735-205  Purchase of Government-owned property.

    Employees of the Corporation and members of their immediate families 
may purchase Government-owned personal property when it is offered for 
sale by the General Services Administration or any Federal agency other 
than the Corporation (41 CFR 101-45.302).



 Subpart C_Conduct and Responsibilities of Special Government Employees



Sec. 905.735-301  General standards of conduct.

    (a) Special Government employees of the Corporation shall adhere to 
applicable regulations adopted under Sec. 904.735-102, except 5 CFR 
735.203(b). In addition, the standards of conduct set forth in 
Sec. Sec. 905.735-201, 905.735-204, and 905.735-205 shall apply to 
special Government employees.
    (b) Special Government employees of the Corporation may teach, 
lecture, or write consistent with the provisions of 5 CFR 735.203(c).
    (c) Pursuant to 5 CFR 735.305(b), the provisions concerning gifts, 
entertainment, and favors set forth in Sec. 905.735-202 are hereby made 
applicable to special Government employees.



     Subpart D_Special Standards Applicable to Certain Board Members



Sec. 905.735-401  Standards.

    Section 3(c)(8) of the Pennsylvania Avenue Development Corporation 
Act of 1972, Pub. L. 92-578, 86 Stat. 1267 (40 U.S.C. 872(c)(8)) 
specifies that the eight members appointed to the Board by the President 
from private life, at least four of whom shall be residents of the 
District of Columbia, ``shall have knowledge and experience in one or 
more fields of history, architecture, city planning, retailing, real 
estate, construction or government.'' As a result of these prerequisites 
for appointment of a private member to the Board of Directors, conflicts 
could arise for these Board Members as the Corporation proceeds with 
various development activities. Accordingly, Board Members should 
perform their responsibilities for the operation and management of the 
Corporation consistent with these regulations, and other applicable 
Federal laws and regulations, and consistent with the highest level of 
fiduciary responsibility.



Sec. 905.735-402  Advice and determination.

    The Corporation's Ethics Counselor is readily available for 
consultation when a Board Member seeks advice as to the appropriateness 
of his actions in light of this part, the Executive order, or title 18 
U.S.C., chapter 11. A Board Member has an affirmative duty to advise the 
Ethics Counselor of any potential conflict of interest which may arise 
with the individual's participation in any particular matter before the 
Corporation. If advised to do so, the Board Member should submit to the 
Chairman for determination the question of whether or not the conflict 
will disqualify the Board Member from participating in the action to be 
taken by the Corporation. Under the authority delegated to the Chairman 
pursuant to 18 U.S.C. 208(b), the Chairman may find that the Board 
Member need not be disqualified from participating in the particular 
matter, if:

[[Page 165]]

    (a) The Board Member makes a full disclosure of the financial 
interest; and
    (b) The Chairman furnishes him with a written determination in 
advance of the action that the interest is not so substantial as to be 
deemed likely to affect the integrity of the services which the 
Government may expect from the Board Member. Requests for similar 
determinations for conflicts posed by the financial interests of the 
Chairman himself shall be submitted to the Chairman of the Civil Service 
Commission.



       Subpart E_Statements of Employment and Financial Interests



Sec. 905.735-501  Form and content of statements.

    Statements of employment and financial interests required to be 
submitted under this subpart by employees and special Government 
employees shall contain the information required in the formats 
prescribed by the Civil Service Commission in the Federal Personnel 
Manual.



Sec. 905.735-502  Statements of employment and financial interests by 

employees.

    (a) Employees of the Corporation in the following named positions 
shall prepare and submit statements of employment and financial 
interests:
    (1) Executive Director;
    (2) Assistant Director Legal--General Counsel;
    (3) Assistant Director/Finance;
    (4) Development Director;
    (5) Secretary of the Corporation Administrative Officer;
    (6) Construction Manager;
    (7) Senior Architect/Planner;
    (8) Chief, Real Estate Operations;
    (9) Any Contracting Officer of the Corporation; and
    (10) Any employee classified as a GS-13 or above whose duties and 
responsibilities are such that the ethics counselor determines a 
statement should be filed.
    (b) Each statement of employment and financial interests required by 
this section, except that of the General Counsel, shall be submitted to 
the Ethics Counselor, Office of the General Counsel, Pennsylvania Avenue 
Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 
North, Washington, DC 20004. The General Counsel, as Ethics Counselor, 
shall submit his statement directly to the Chairman for review.
    (c) An employee who believes that his position has been improperly 
included in this section as one requiring the submission of a statement 
of employment and financial interests may obtain a review of this 
determination upon a written request to the Chairman.

[43 FR 60902, Dec. 29, 1978, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 905.735-503  Statements of employment and financial interests by special 

Government employees.

    All special Government employees shall submit a statement of 
employment and financial interest prior to beginning employment or 
service with the Corporation. Each statement shall be submitted to the 
Ethics Counselor, Office of the General Counsel, Pennsylvania Avenue 
Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 
North, Washington, D.C. 20004, except that the statements of Board 
Members appointed from private life shall be filed with the U.S. Civil 
Service Commission.

[43 FR 60902, Dec. 29, 1978, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 905.735-504  Procedures for obtaining statements.

    (a) Upon the adopting of the regulations of this part, the Ethics 
Counselor shall deliver to the incumbent of each position named in Sec. 
905.735-402 and to each special Government employee, two copies of the 
appropriate form for filing a statement of employment and financial 
interests. An enclosure with the forms shall advise that:
    (1) The original of the completed form must be returned in a sealed 
envelope, marked ``Personal--In Confidence,'' to the Ethics Counselor 
within the time specified by the Ethics Counselor;
    (2) The services of the ethics counselor are available to advise and 
assist in preparation of the statement;
    (3) Any additions or deletions to the information furnished must be 
reported

[[Page 166]]

in a supplementary statement at the end of the calendar quarter in which 
the change occurs; or in the case of a special Government employee, at 
the time the change occurs; and
    (4) No later than June 30 of each year, all special Government 
employees and employees required to file under Sec. 905.735-402(a) 
shall file an annual supplementary statement to update the information 
previously filed.
    (b) The Administrative Officer shall be responsible for assuring 
that a completed statement of employment and financial interests is 
obtained from each special Government employee prior to the beginning of 
employment or service with the Corporation. The Administrative Officer 
shall promptly forward the statements to the Ethics Counselor for 
review.



Sec. 905.735-505  Confidentiality of statements.

    The Ethics Counselor shall hold in confidence each statement of 
employment and financial interests, and each supplementary statement 
within his control. Access to or disclosure of information contained in 
these statements shall not be allowed, except as the Commission or the 
Ethics Counselor determine for good cause shown, consistent with the 
Privacy Act of 1974 (5 U.S.C. 552a), and the regulations and pertinent 
notices of systems of records prepared by the Civil Service Commission 
and the Corporation in accordance with that Act.



 Subpart F_Conduct and Responsibilities of Former Employees_Enforcement

    Authority: 18 U.S.C. 207(j); sec. 6(5), Pub. L. 92-578, 86 Stat. 
1270 (40 U.S.C. 875)(5).



Sec. 905.737-101  Applicable provisions of law.

    Former employees of the Corporation must abide by the provisions of 
18 U.S.C. 207 and 5 CFR 737.1 through 737.25, which bar certain acts by 
former Government employees that may reasonably give the appearance of 
making unfair use of prior Government employment and affiliations. 
Violation of those provisions will give rise to Corporation enforcement 
proceedings as provided in Sec. 905.737-102, and may also result in 
criminal sanctions, as provided in 18 U.S.C. 207.

[48 FR 38233, Aug. 23, 1984]



Sec. 905.737-102  Enforcement proceedings.

    (a) Delegation. The Chairman of the Corporation may delegate his or 
her authority under this subpart.
    (b) Initiation of disciplinary hearing. (1) Information regarding a 
possible violation of 18 U.S.C. 207 or 5 CFR part 737 should be 
communicated to the Chairman. The Chairman shall promptly initiate an 
investigation to determine whether there is reasonable cause to believe 
that a violation has occurred.
    (2) On receipt of information regarding a possible violation of 18 
U.S.C. 207, and after determining that such information appears 
substantiated, the Chairman of the Corporation shall expeditiously 
provide such information, along with any comments or regulations of the 
Corporation, to the Director of the Office of Government Ethics and to 
the Criminal Division, Department of Justice. The Corporation shall 
coordinate any investigation with the Department of Justice to avoid 
prejudicing criminal proceedings, unless the Department of Justice 
communicates to the Corporation that it does not intend to initiate 
criminal prosecution.
    (3) Whenever the Corporation has determined after appropriate 
review, that there is reasonable cause to believe that a former employee 
has violated 18 U.S.C. 207 or 5 CFR part 737, it shall initiate a 
disciplinary proceeding by providing the former employee with notice as 
defined in paragraph (c) of this section.
    (4) At each stage of any investigation or proceeding under this 
section, the Chairman shall take whatever steps are necessary to protect 
the privacy of the former employee. Only those individuals participating 
in an investigation or hearing shall have access to information 
collected by the Corporation pursuant to its investigation of the 
alleged violation.
    (c) Adequate notice. (1) The Corporation shall provide the former 
employee with adequate notice of its intention to

[[Page 167]]

institute a proceeding and an opportunity for a hearing.
    (2) Notice to the former employee must include:
    (i) A statement of the allegations (and the basis thereof) 
sufficiently detailed to enable the former employee to prepare an 
adequate defense;
    (ii) Notification of the right to a hearing;
    (iii) An explanation of the method by which a hearing may be 
requested; and
    (iv) Notification that if a hearing is not requested within thirty 
days of receipt of notice, the Corporation will issue a final decision 
finding the alleged violations to have occurred.
    (3) Failure to request a hearing within thirty days of the receipt 
of notice will be deemed an admission of the allegations contained in 
the notice and will entitle the Corporation to issue a final decision 
finding the alleged violations to have occurred.
    (d) Presiding official. (1) The presiding official at proceedings 
under this subpart shall be the Chairman, or an individual to whom the 
Chairman has delegated authority to make an initial decision 
(hereinafter referred to as examiner).
    (2) An examiner shall be an employee of the Corporation who is 
familiar with the relevant provisions of law and who is otherwise 
qualified to carry out the duties of that position. He or she shall be 
impartial. No individual who has participated in any manner in the 
decision to initiate the proceedings may serve as an examiner.
    (e) Time, date and place. (1) The hearing shall be conducted at a 
reasonable time, date, and place.
    (2) On setting a hearing date, the presiding official shall give due 
regard to the former employee's need for:
    (i) Adequate time to prepare a defense properly; and
    (ii) An expeditious resolution of allegations that may be damaging 
to his or her reputation.
    (f) Hearing rights. A hearing shall include the following rights:
    (1) To represent oneself or to be represented by counsel;
    (2) To introduce and examine witnesses and to submit physical 
evidence;
    (3) To confront and cross-examine adverse witnesses;
    (4) To present oral argument; and
    (5) To receive a transcript or recording of the proceedings, on 
request.
    (g) Burden of proof. In any hearing under this subpart, the 
Corporation has the burden of proof and must establish substantial 
evidence of a violation.
    (h) Hearing decision. (1) The presiding official shall make a 
determination exclusively on matters of record in the proceeding, and 
shall set forth in the decision all findings of fact and conclusions of 
law relevant to the matters at issue. If the hearing is conducted by the 
Chairman, the resulting written determination shall be an initial 
decision.
    (2) Within thirty days of the date of an initial decision, either 
party may appeal the decision to the Chairman. The Chairman shall base 
his or her decision on such appeal solely on the record of the 
proceedings on those portions thereof cited by the parties to limit the 
issues.
    (3) If the Chairman modifies or reverses the initial decision, he or 
she shall specify such findings of fact and conclusions of law as are 
different from those of the examiner.
    (4) If no appeal is taken from an initial decision within thirty 
days, the initial decision shall become a final decision.
    (i) Sanctions. The Chairman shall take appropriate action in the 
case of any individual who is found to be in violation of 18 U.S.C. 207 
or 5 CFR part 737 after a final decision by:
    (1) Prohibiting the individual from making, on behalf of any other 
person except the United States, any formal or informal appearance 
before, or, with the intent to influence, any oral or written 
communication to, the Corporation on any matter of business for a period 
not to exceed five years, which may be accomplished by directing 
employees of the Corporation to refuse to participate in any such 
appearance or to accept any such communication; or
    (2) Taking other appropriate disciplinary action.
    (j) Judicial review. Any person found by the Corporation to have 
participated in a violation of 18 U.S.C. 207 or

[[Page 168]]

5 CFR part 737 may seek judicial review of the determination in an 
appropriate United States District Court.

[48 FR 38233, Aug. 23, 1984]



PART 906_AFFIRMATIVE ACTION POLICY AND PROCEDURE--Table of Contents




                      Subpart A_Development Program

Sec.
906.1 Purpose and policy.
906.2 Definitions.
906.3 Procedures.
906.4 Formulation of affirmative action plan.
906.5 Administration of affirmative action plan.
906.6 Implementation.
906.7 Incentives.
906.8 Review and monitoring.
906.9 Voluntary compliance.
906.10 Confidentiality.

Subpart B [Reserved]

Exhibit A to Part 906--Suggested Minimum Guidelines and Goals
Exhibit B to Part 906--Guidelines for Establishing Strategy To Implement 
          Affirmative Action Personnel Plan

    Authority: Pennsylvania Avenue Development Corporation Act of 1972, 
as amended, sec. 6(6), Pub. L. 92-578, 86 Stat. 1270 (40 U.S.C. 875(6)); 
E.O. 11625 (36 FR 19967) Oct. 14, 1971; title VII Civil Rights Act of 
1964 (42 U.S.C. 2000e-2); Rehabilitation, Comprehensive Services, and 
Developmental Disabilities Amendments of 1978, secs. 119, 122(d)(2), 
Pub. L. 95-602, 92 Stat. 2982, 2987 (29 U.S.C. 794); E.O. 12138 (44 FR 
29637) May 22, 1979.

    Source: 44 FR 37226, June 26, 1979, unless otherwise noted.



                      Subpart A_Development Program



Sec. 906.1  Purpose and policy.

    (a) One of the objectives stated in the Congressionally approved 
Pennsylvania Avenue Plan--1974 is insuring that minority businesses, 
investors, and workers have an opportunity to share in the benefits that 
will occur as a result of redevelopment. Accordingly, the Corporation 
will take affirmative action to assure full minority participation in 
activities and benefits that result from implementation of The 
Pennsylvania Avenue Plan--1974.
    (b) It is the policy of the Pennsylvania Avenue Development 
Corporation to foster a progessive Affirmative Action Program that 
affords minorities, women, handicapped persons, and Vietnam era veterans 
a fair and meaningful share in the opportunities generated by the 
development activities of the Corporation.
    (c) It is mandatory for developers who respond to a solicitation for 
proposals made by the Corporation to comply with the rules stated in 
subpart A of part 906.
    (d) It is mandatory for developers who receive property interests of 
ten percent (10%) or more of the area of a development parcel from the 
Corporation to comply with the rules stated in subpart A of part 906.
    (e) The Corporation will encourage any entity not described in 
paragraphs (c) and (d) of this section to comply with the requirements 
set forth in this subpart A of part 906.



Sec. 906.2  Definitions.

    As used in this part:
    (a) Affirmative Action Plan means a plan which at a minimum 
includes:
    (1) A statement of the affirmative action policy of the development 
team and a list of the names of the members of the development team 
including equity investors, and identification of minority owned 
businesses and investors;
    (2) A contracting and purchasing plan;
    (3) A leasing plan;
    (4) A personnel plan;
    (5) An equity investment plan;
    (6) The goals, timetables and strategy for achieving the goals of 
the developer;
    (7) A list of specific, quantifiable committed opportunities; and
    (8) Designation of an Affirmative Action Officer.
    (b) Committed Opportunity means an opportunity set aside and 
committed for the sole involvement of a woman, minority group member, 
Vietnam era veteran, handicapped person, or minority owned business, 
including opportunities for training and equity investment.
    (c) Contracting and purchasing plan means a plan for the subject 
project which at a minimun includes the following:

[[Page 169]]

    (1) A list of all minority enterprises and minority owned businesses 
that are involved in the development proposal or its implementation;
    (2) An analysis of the types of contracts and purchases that will be 
required by the development team in order to implement the development 
through and including operation of the completed development;
    (3) A list of goals and timetables by category of purchase or 
contract for involvement of minority owned businesses in the development 
process;
    (4) Strategy for achieving the goals established; and
    (5) A list of committed opportunities for the involvement of 
minority owned businesses in the development process.
    (d) Developer means a person partnership, company, corporation, 
association, or other entity that develops a new structure on a site or 
substantially renovates a structure on a site within the Corporation's 
development area where the site either: (1) Has been offered to the 
public by the Corporation for development, or (2) the Corporation has 
transferred real property rights that equal or exceed ten percent (10%) 
of the area of the development parcel.
    (e) Development parcel is an area of land established by the 
Corporation to be a minimum developable site under The Pennsylvania 
Avenue Plan--1974, as amended, and The Planning and Design Objectives, 
Controls, and Standards of the Corporation (36 CFR part 920 et seq.).
    (f) Development team means the group that submits a proposal to 
develop a parcel including developers, architects, engineers, lawyers, 
financial institutions, insurance companies, and others who help 
formulate, develop, and otherwise make a proposal to the Corporation.
    (g) Equity Investment Plan means a plan for the subject project 
which at a minimum includes the following:
    (1) A statement as to whether or not equity investment has been or 
will be solicited to implement the subject project;
    (2) A statement as to whether or not a joint venture has been or 
will be formed to implement the subject project;
    (3) If equity investment has been solicited or if a joint venture 
has been formed, a statement of the efforts made to involve members of 
minority groups and women when these opportunities were offered;
    (4) If equity investment will be solicited, or a joint venture will 
be formed, a plan to involve members of minority groups and women when 
these opportunities are offered, including a list of committed 
opportunities;
    (5) A list of goals and a timetable for securing participation of 
members of minority groups and women in equity investment and joint 
venture.
    (h) Handicapped person means any person who: (1) Has a physical or 
mental impairment that substantially limits one or more of the person's 
major life activities, (2) has a record of such impairment.
    (i) Leasing plan means a plan for the subject project which at a 
mimimum includes the following:
    (1) A retail plan showing the types of retail businesses to be 
included in the project and a plan for the types of uses for the balance 
of the development;
    (2) Goals and methods for inclusion of minority enterprises as 
tenants in the project;
    (3) Committed opportunities for leasing to minority enterprises.
    (j) Minority Enterprise means any enterprise that is either a 
minority owned business or a not for profit or non-profit organization 
(as defined in 26 U.S.C. 501(c)(3) or (c)(6)) and also fulfills one or 
more of the following criteria:
    (1) The Board of Directors or equivalent policy making body is 
comprised of members, a majority of whom are minorities or women and the 
chief executive officer of the organization is a minority group member 
or a woman; or
    (2) The objectives of the organization as described in its charter 
are substantially directed toward the betterment of minorities or women.
    (k) Minority group member means any person residing in the United 
States who is Negro, Hispanic, Oriental, Native American, Eskimo, or 
Aleut, as defined below:
    (1) Negro--is an individual of the Negro race of African origin;

[[Page 170]]

    (2) Hispanic--is an individual who is descended from and was raised 
in or participates in the culture of Spain, Portugal, or Latin America, 
or who has at least one parent who speaks Spanish or Portuguese as part 
of their native culture;
    (3) Oriental--is an individual of a culture, origin, or parentage 
traceable to the areas south of the Soviet Union, East of Iran, 
inclusive of the islands adjacent thereto, located in the Pacific 
including, but limited to, Taiwan, Indonesia, Japan, Hawaii, and the 
Philippines, together with the islands of Polynesia;
    (4) Native American--is an individual having origins in any of the 
original people of North America, who is recognized as an Indian by 
either a tribe, tribal organization, or suitable authority in the 
community. For purposes of this section a suitable authority in the 
community may be an educational institution, a religious organization, 
or a state or Federal agency.
    (5) Eskimo--is an individual having origins in any of the original 
peoples of Alaska;
    (6) Aleut--is an individual having origins in any of the original 
peoples of the Aleutian Islands.
    (l) Minority owned business means a business that is:
    (1) A sole proprietorship owned by a minority group member or a 
woman;
    (2) A business entity at least 50 percent of which is owned by 
minority group members or women;
    (3) A publicly owned business at least 51 percent of the stock of 
which is owned by minority group members or women;
    (4) A certified minority owned business as evidenced by a 
certificate satisfactory to the Corporation's Affirmative Action 
Officer, and signed by the owner or the executive officer of the 
minority owned business.

For purposes of this definition, ownership means that the risk of gain 
or loss and the amount of control exercised must be equivalent to the 
ownership percentage.
    (m) Personnel plan means a plan for the subject project which at a 
minimum includes the following:
    (1) An analysis of participation of minority group members, women, 
Vietnam era veterans, and handicapped persons in the development project 
including an evaluation by category of employment, i.e., professional 
and managerial, skilled, semi-skilled, trainee, and other, and the 
number of employees in each category;
    (2) An analysis of the salaries of minority group members, women, 
handicapped persons, and Vietnam era veterans showing the relative 
position of these employees with those not covered by the Affirmative 
Action Plan;
    (3) Goals and timetables for employment by category and salary level 
of minorities, women, Vietnam era veterans, and handicapped persons 
employed for the development parcel;
    (4) Strategy for achieving the goals established (see Exhibit B);
    (5) A list of committed opportunities for the employment of minority 
group members, women, Vietnam era veterans, and handicapped persons.
    (n) Vietnam era veteran means a person who:
    (1) Served on active duty for a period of more than 180 days, any 
part of which occurred during the Vietnam era, and was discharged or 
released therefrom with other than a dishonorable discharge; or
    (2) Was discharged or released from active duty for a service-
connected disability if any part of such active duty was performed 
during the Vietnam era.



Sec. 906.3  Procedures.

    (a) Affirmative Action Plans must be submitted to the Corporation at 
the following times:
    (1) At the time a response is submitted to the Corporation's 
solicitation for proposals, the response must include an Affirmative 
Action Plan;
    (2) If a property right exceeding 10 percent of the area of the 
development parcel is made available by the Corporation, but without the 
Corporation having made a solicitation for proposals, the developer must 
submit an Affirmative Action Plan within 30 days after the start of 
negotiations with the Corporation.
    (b) Affirmative Action Plans will be reviewed as follows:

[[Page 171]]

    (1) Each Affirmative Action Plan submitted to the Corporation will 
be reviewed by the Corporation's Affirmative Action Officer, or his 
designee.
    (2) In the case of a developer who responds to a solicitation for 
proposals, the Affirmative Action Plan will be reviewed by the 
Affirmative Action Officer, and if the Plan is in substantial compliance 
with the goals set forth in Exhibit A, the Plan and the recommendation 
of the Affirmative Action Officer will be submitted to the Chairman of 
the Board for approval prior to the Board's final selection.
    (3) In the case of a developer who receives 10 percent or more of 
the area of a development parcel from the Corporation, the Affirmative 
Action Plan will be reviewed by the Corporation's Affirmative Action 
Officer, and if the Plan is in substantial compliance with the goals set 
forth in Exhibit A, the Plan and the recommendation of the Affirmative 
Action Officer will be submitted to the Chairman of the Board for 
approval within 15 days of submission.
    (4) The Chairman may approve any Affirmative Action Plan that is not 
in substantial compliance with the goals set forth in Exhibit A, but for 
which the developer has documented a genuine effort to meet the goals of 
the regulations and complied with the spirit of the Corporation's 
policy.
    (5) The Chairman may, in his discretion, submit any Affirmative 
Action Plan to the Board of Directors for approval, if there is not 
substantial compliance with the goals set forth in Exhibit A.
    (6) The review of the Affirmative Action Plan will determine 
conformity with The Pennsylvania Avenue Plan--1974, the policy of the 
Corporation's Board of Directors, and the regulations and guidelines set 
forth in this subpart A, part 906.
    (c) Revisions: (1) The Corporation may require a developer at any 
time prior to approval of the Affirmative Action Plan to revise the Plan 
for compliance with the requirements of this subpart.
    (2) Each developer required to comply with this subpart must submit 
for approval an up-dated Affirmative Action Plan at the commencement of 
construction, at the commencement of occupancy, and at the commencement 
of operation or management of any portion of the facility by the 
developer or a related entity. Each revision of the Affirmative Action 
Plan must address all the requirements set forth in Sec. 906.4.
    (3) The Corporation's Affirmative Action Officer will review all 
revisions submitted to the Corporation. If the revision is a substantial 
change from the originally approved Plan, the review procedures set 
forth in paragraph (b) of this section will be applicable. If the 
revision submitted is not a substantial change from the originally 
approved Plan, the Corporation's Affirmative Action Officer may approve 
the revision.



Sec. 906.4  Formulation of affirmative action plan.

    (a) The developer, in formulating the Affirmative Action Plan, 
should consider all phases of development from establishment of the 
development team to operation and management of the development project 
including each component of the project (e.g., hotel, retail, office, 
residential). The developer should also consider the personnel profile 
of project contractors, subcontractors.
    (b) For each phase and each component, the developer should give 
consideration to creating business and employment opportunities and 
committed opportunities in the following:
    (1) Equity participation;
    (2) Professional and technical services such as legal, 
architectural, engineering, and financial;
    (3) Purchasing materials and supplies in connection with 
construction and operation;
    (4) Contracting for construction, operation, and maintenance; and,
    (5) Financing, including construction and permanent financing, and 
other financial and banking services.



Sec. 906.5  Administration of affirmative action plan.

    (a) The developer shall appoint an Affirmative Action Officer, and 
for projects exceeding $10 million in cost,

[[Page 172]]

the person appointed must have affirmative action as a primary 
responsibility.
    (b) The developer shall report to the Corporation periodically its 
progress in meeting the goals and timetables in its Affirmative Action 
Plan with respect to its contracting and purchasing plan, leasing plan, 
and committed opportunities. In meeting the reporting requirements the 
developer shall:
    (1) Count an individual only once for reporting purposes;
    (2) Count an individual in the first appropriate category as 
follows:
    (i) Minority Group Member;
    (ii) Handicapped Person;
    (iii) Woman;
    (iv) Vietnam Era Veteran;
    (3) Report the dollar amount of contracts and purchases from 
minority owned businesses including subcontracts;
    (4) In the event 10 percent or more of the dollar amount of a 
contract, subcontract, or purchase from a minority owned business is 
performed by other than a minority owned business, the developer shall 
report only the dollar amount performed by the minority owned business.



Sec. 906.6  Implementation.

    (a) Each developer's Affirmative Action Plan will be incorporated 
into the real estate agreement between the developer and the 
Corporation.
    (b) Each developer shall include a clause requiring a contracting 
and purchasing plan and a personnel plan in any contract exceeding 
$500,000.
    (c) Each developer should consider including a clause requiring a 
contracting and purchasing plan and a personnel plan in any contract 
less than $500,000.
    (d) In order that the Corporation may be of assistance, and to the 
extent practical, the developer shall notify the Corporation's 
Affirmative Action Officer of any failure to meet the approved 
Affirmative Action Plan.
    (e) The Corporation, at the request of the developer, shall provide 
the developer with assistance for meeting the goals set forth in the 
Affirmative Action Plan. Such assistance may be provided in the form of 
lists of minority enterprises, sources for recruiting and advertising, 
as well as other available information.



Sec. 906.7  Incentives.

    (a) At the request of the developer, the Corporation may agree to 
deferral of a portion of rental, not to exceed 50 percent, during 
construction and during the first year of operation following 
construction of any phase of the development project. Allowable rent 
deferral during the construction phase will be two percent of the total 
base rent for each one percent of the value of all construction 
contracts which have been awarded to Minority Owned Businesses, not to 
exceed 50 percent. Rent deferral during the first year of operation 
following construction of any phase of the development project will be 
four percent for each one percent of total equity owned by minority 
group members, minority owned businesses, and women.
    (b) Following review of Affirmative Action reports submitted to the 
Corporation pursuant to Sec. 906.5(b), the Corporation will determine 
the developer's compliance with the goals set forth in the approved 
Affirmative Action Plan. Compliance with the goals established in the 
Plan will be measured by adding the percentages reported including 
overages in each category and dividing that by the number of categories 
covered in the Plan.
    (c) If 75 percent compliance is not achieved during any rent 
deferral period, the Corporation will afford the developer 120 days to 
achieve at least that level of compliance. If, at the end of that 120 
day period, 75 percent compliance is not achieved, all rental deferral, 
together with interest, will be due and payable to the Corporation on 
the 10th day following receipt of written notice that payment of the 
deferred rent has been accelerated.



Sec. 906.8  Review and monitoring.

    The Corporation, either by its employees, consultants, or other 
government agency, shall analyze and monitor compliance with the 
developer's approved Affirmative Action Plan. The Corporation shall rely 
on the reports submitted by the developer. However:

[[Page 173]]

    (a) Further investigation by the Corporation may be undertaken if 
problems are brought to the attention of the Corporation through any 
reliable source, or if any formal complaints are filed against the 
developer that relate to performance of the Affirmative Action Plan; and
    (b) The Corporation reserves the right to audit the records of the 
developer that pertain to any report submitted to the Corporation.



Sec. 906.9  Voluntary compliance.

    The Corporation will encourage any individual or entity not 
described in Sec. 906.1(c) or (d) to submit and adopt an Affirmative 
Action Plan on any development project for which the Corporation's 
review and approval is required to determine conformity of the 
development project with The Pennsylvania Avenue Plan--1974. Any such 
Affirmative Action Plan should accompany the development plans.



Sec. 906.10  Confidentiality.

    All information submitted to the Corporation pursuant to this 
subpart A will be kept confidential, except as availability to the 
public may be required by the Freedom of Information Act.

Subpart B [Reserved]



   Sec. Exhibit A to Part 906--Suggested Minimum Guidelines and Goals

    The following are suggested for consideration by developers in 
formulation of minimum affirmative action goals for the development 
parcel:
    (a) Equity participation--10 percent participation by minority group 
members, women, and minority owned businesses as investors in ownership 
of the development parcel.
    (b) Contracts for professional and technical services--20 percent of 
the dollar value of the contracts to minority owned businesses.
    (c) Persons providing professional or technical services--20 percent 
should be minority group members, women, handicapped persons, or Vietnam 
era veterans.
    (d) Construction contracting--15 percent of the total dollar value 
to minority owned businesses. (In order to accomplish this goal, the 
developer must require that any prime contractor show at least 15 
percent minority subcontractors unless the prime contractor is a 
minority contractor.)
    (e) Construction employment should comply with the Washington Plan 
as a minimum.
    (f) Purchasing--20 percent of the dollar value of all purchases of 
materials and supplies to minority owned businesses.
    (g) Hotel employment--20 percent of all hotel employees, 15 percent 
of all personnel earning an excess of $2,000 a month (in 1978 dollars), 
and 60 percent of trainees for hotel positions should be minority group 
members, women, handicapped persons, or Vietnam era veterans.
    (h) Leasing of space--15 percent of the retail space should be 
targeted for minority enterprises.
    (i) Committed opportunities--should be created for professional, 
technical, construction, hotel, or other type operations where the 
representation of minority group members, women, or handicapped persons 
in a field is inconsistent with the demographic profile of the 
Washington metropolitan area.



  Sec. Exhibit B to Part 906--Guidelines for Establishing Strategy To 
               Implement Affirmative Action Personnel Plan

    The following are suggested as the types of activities to be 
considered in the development of strategies for the affirmative action 
personnel plan:
    (1) ``Vigorous'' searching for qualified minority and women 
applicants for job openings in professional and managerial positions, 
often including recruitment visits to educational institutions with 
large minority or female enrollments.
    (2) Wide dissemination of affirmative action policy in 
advertisements and employment literature.
    (3) Utilization of minority media in recruitment advertisements.
    (4) Notification of job openings to minority community organizations 
and associations.
    (5) Listing of all employment openings with compensation of under 
$20,000 per year at a local office of the State Employment Service (or 
union hiring hall when union labor is required).
    (6) Periodic review of minority, female, Vietnam era veteran, and 
handcapped employees to identify underutilized and unutilized skills and 
knowledge as well as opportunities for reassignment.
    (7) Utilization of merit promotion and on-the-job training programs 
to create career ladders or otherwise qualify minority, female, Vietnam 
era veteran, and handicapped employees for advancement.

[[Page 174]]



PART 907_ENVIRONMENTAL QUALITY--Table of Contents




Sec.
907.1 Policy.
907.2 Purpose.
907.3 Definitions.
907.4 Designation of responsible Corporation official.
907.5 Specific responsibilities of designated Corporation official.
907.6 Major decision points.
907.7 Determination of requirement for EIS.
907.8 Actions that normally require an EIS.
907.9 Preparation of an EIS.
907.10 Categorical exclusions.
907.11 Actions that normally require an environmental assessment.
907.12 Preparation of an environmental assessment.
907.13 Public involvement.
907.14 Corporation decision making procedures.
907.15 Approval of private development proposals.
907.16 Actions where lead Agency designation is necessary.

Appendix A to Part 907

    Authority: 40 U.S.C. 875(8); 42 U.S.C. 4321.

    Source: 47 FR 8768, Mar. 2, 1982, unless otherwise noted.



Sec. 907.1  Policy.

    The Pennsylvania Avenue Development Corporation's policy is to:
    (a) Use all practical means, consistent with the Corporation's 
statutory authority, available resources, and national policy, to 
protect and enhance the quality of the human environment;
    (b) Ensure that environmental factors and concerns are given 
appropriate consideration in decisions and actions by the Corporation;
    (c) Use systematic and timely approaches which will ensure the 
integrated use of the natural and social sciences and environmental 
design arts in planning and decision making which may have an impact on 
the human environment;
    (d) Develop and utilize ecological and other environmental 
information in the planning and development of projects implementing the 
Plan;
    (e) Invite the cooperation and encourage the participation, where 
appropriate, of Federal, District of Columbia, and regional authorities 
and the public in Corporation planning and decision-making processes, 
which affect the quality of the human environment; and
    (f) Minimize any possible adverse effects of Corporation decisions 
and actions upon the quality of the human environment.



Sec. 907.2  Purpose.

    These regulations are prepared to supplement Council on 
Environmental Quality Regulations for implementing the procedural 
provisions of the National Environmental Policy Act of 1969, as amended, 
and describe how the Pennsylvania Avenue Development Corporation intends 
to consider environmental factors and concerns in the Corporation's 
decision making process.



Sec. 907.3  Definitions.

    (a) CEQ Regulations means the regulations for implementing the 
procedural provisions of the National Environmental Policy Act of 1969 
as promulgated by the Council on Environmental Quality, Executive Office 
of the President, appearing at 40 CFR parts 1500-1509 (43 FR 55978-
56007) and to which this part is a supplement.
    (b) The Act of October 27, 1972 or Act means the Pennsylvania Avenue 
Development Corporation Act of 1972, Pub. L. 92-578, October 27, 1972, 
86 Stat. 1266 (40 U.S.C. 871).
    (c) The Plan means The Pennsylvania Avenue Plan--1974, prepared by 
the Pennsylvania Avenue Development Corporation pursuant to the Act of 
October 27, 1972.
    (d) The Corporation means the Pennsylvania Avenue Development 
Corporation, a wholly owned government corporation of the United States 
created by the Act of October 27, 1972.
    (e) Board of Directors means the governing body of the Corporation 
in which the powers and management of the Corporation are vested by the 
Act of October 27, 1972.
    (f) EIS means an environmental impact statement as defined in Sec. 
1508.11 of the CEQ Regulations.
    (g) Final EIS means The Final Environmental Impact Statement, dated 
September 1974, prepared by the Corporation on The Pennsylvania Avenue 
Plan--1974.

[[Page 175]]

    (h) Development Area means the area under the Corporation's 
jurisdiction as specified in section 2(f) of the Act of October 27, 1972 
and for which The Plan has been prepared and will be implemented by the 
Corporation.
    (i) Decision Maker means the Board of Directors, unless a delegation 
to the Chairman, a member or committee of the Board of Directors, or the 
Executive Director has been made by the Bylaws of the Corporation, a 
resolution of the Board of Directors, or an appropriate written 
delegation of authority.
    (j) Private Developer means an individual, firm, joint venture, or 
other entity other than the Corporation which seeks to construct, 
reconstruct, rehabilitate, or restore real property within the 
development area.
    (k) Other terms used in this part are defined in 40 CFR part 1508 of 
the CEQ Regulations.



Sec. 907.4  Designation of responsible Corporation official.

    The Development Director is the Corporation official responsible for 
implementation and operation of the Corporation's policies and 
procedures on environmental quality and control.



Sec. 907.5  Specific responsibilities of designated Corporation official.

    (a) Coordinate the formulation and revision of Corporation policies 
and procedures on matters pertaining to environmental protection and 
enhancement.
    (b) Establish and maintain working relationships with relevant 
government agencies concerned with environmental matters.
    (c) Develop procedures within the Corporation's planning and 
decision-making processes to ensure that environmental factors are 
properly considered in all proposals and decisions in accordance with 
this part.
    (d) Develop, monitor, and review the Corporation's implementation of 
standards, procedures, and working relationships for protection and 
enhancement of environmental quality and compliance with applicable laws 
and regulations.
    (e) Monitor processes to ensure that the Corporation's procedures 
regarding consideration of environmental quality are achieving their 
intended purposes.
    (f) Advise the Board of Directors, officers, and employees of the 
Corporation of technical and management requirements of environmental 
analysis, of appropriate expertise available, and, with the assistance 
of the Office of the General Counsel, of relevant legal developments.
    (g) Monitor the consideration and documentation of the environmental 
aspects of the Corporation's planning and decisionmaking processes by 
appropriate officers and employees of the Corporation.
    (h) Ensure that all environmental assessments and, where required, 
all EIS's are prepared in accordance with the appropriate regulations 
adopted by the Council on Environmental Quality and the Corporation, and 
are submitted with all proposed legislation.
    (i) Consolidate and transmit to appropriate parties the 
Corporation's comments on EIS's and other environmental reports prepared 
by other agencies.
    (j) Acquire information and prepare appropriate reports on 
environmental matters required of the Corporation. Information 
collection activities will be conducted in accordance with the Paperwork 
Reduction Act of 1980 and approval of OMB will be obtained prior to 
commencing such activities.
    (k) Coordinate Corporation efforts to make available to other 
parties information and advice on the Corporation's policies for 
protecting and enhancing the quality of the environment.



Sec. 907.6  Major decision points.

    (a) The possible environmental effects of a proposed action or 
project must be considered along with technical, economic, and other 
factors throughout the decisionmaking process. For most Corporation 
projects there are three distinct stages in the decision making process:
    (1) Conceptual or preliminary stage;
    (2) Detailed planning or final approval stage;
    (3) Implementation stage.
    (b) Environmental review will be integrated into the decision making 
process of the Corporation as follows:

[[Page 176]]

    (1) During the conceptual or preliminary approval study stage, the 
responsible Corporation official shall determine whether the proposed 
action or project is one which is categorically excluded, requires an 
environmental assessment or an EIS.
    (2) Prior to proceeding from the conceptual or preliminary approval 
stage to the detailed planning or final approval stage, an environmental 
assessment and the determination as to whether an EIS is required must 
be completed.
    (3) An EIS, if determined necessary, must be completed and 
circulated prior to the decision to proceed from the detailed planning 
stage to implementation.



Sec. 907.7  Determination of requirement for EIS.

    Determining whether to prepare an environmental impact statement is 
the first step in applying the NEPA process. In deciding whether to 
prepare an environmental impact statement, the responsible Corporation 
official will determine whether the proposal is one that:
    (a) Normally requires an environmental impact statement.
    (b) Normally does not require either an environmental impact 
statement or an environmental assessment (categorical exclusion).
    (c) Normally requires an environmental assessment, but not 
necessarily an environmental impact statement.



Sec. 907.8  Actions that normally require an EIS.

    PADC shall perform or have performed an environmental assessment to 
determine if a proposal requires an environmental impact statement. 
However, it may be readily apparent that a proposed action will have a 
significant impact on the environment; in such cases, an environmental 
assessment is not required and PADC will immediately begin to prepare or 
have prepared the environmental impact statement. To assist in 
determining if a proposal or action normally requires the preparation of 
an environmental impact statement, the following criteria and categories 
of action are provided.
    (a) Criteria. Criteria used to determine whether or not actions or 
proposals may significantly affect the environment and therefore require 
an environmental impact statement are described in 40 CFR 1508.27 of the 
CEQ Regulations and as follows:
    (1) Buildings or facades designated for retention in the Plan will 
be adversely affected by the proposal or action.
    (2) Traffic generated by the proposal or action would represent a 
substantial increase over the traffic projections assessed in the Final 
EIS in the average daily traffic volume on avenues and streets within 
the Development Area or its environs;
    (3) Air quality in the Development Area and its environs would be 
substantially affected by the proposal or action based upon the District 
of Columbia's adopted standard for hydrocarbons and carbon monoxide;
    (4) Solid waste disposal generated by a project of the Corporation 
or of a developer who is constructing, reconstructing, or rehabilitating 
that project, would have an adverse effect on the capacity of the 
relevant solid waste disposal facility and compliance with ``Solid Waste 
Management Guidelines'' of the U.S. Environmental Protection Agency and 
related local and regional controls;
    (5) Public utilities have insufficient capacity to provide reliable 
service to a project within the Development Area; and
    (6) A project will be inconsistent with major elements of the Zoning 
Regulations of the District of Columbia as they are applicable to the 
Development Area.
    (b) Categories of action. The following categories of action 
normally require an environmental impact statement:
    (1) Amendments or supplements to the Plan that constitute a 
``substantial change'' to the Plan as defined in 40 U.S.C. 874(c) of the 
Act.
    (2) Acquisition or disposal of real property by the Corporation not 
related to any specific decision, plan, or program adopted by the Board 
of Directors of the Corporation for which an environmental assessment or 
an assessment and an EIS has been prepared.

[[Page 177]]

    (3) Legislative proposals made to Congress.
    (4) Funding and/or construction by the Corporation or its agents or 
representatives of any building, if that activity is not consistent with 
the Plan and the Final EIS.



Sec. 907.9  Preparation of an EIS.

    (a) Notice of intent. When PADC decides to prepare an environmental 
impact statement, it shall publish a notice of intent in the Federal 
Register in accordance with 40 CFR 1501.7 and 1508.22 of the CEQ 
Regulations.
    (b) Preparation. After determining that an environmental impact 
statement will be prepared and publishing the notice of intent, PADC 
will begin to prepare or have prepared the environmental impact 
statement. Procedures for preparing the environmental impact statement 
are set forth in 40 CFR part 1502, CEQ Regulations.
    (c) Supplemental environmental impact statements. PADC may 
supplement a draft or final environmental impact statement at any time. 
PADC shall prepare a supplement to either the draft or final 
environmental impact statement when (1) substantial changes are proposed 
to an action contained in the draft or final EIS that are relevant to 
environmental concerns or there are significant new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts; or (2) actions are proposed which relate 
or are similar to other action(s) taken or proposed and that together 
will have a cumulatively significantly impact on the environment.



Sec. 907.10  Categorical exclusion.

    The CEQ Regulations provide for the categorical exclusion (40 CFR 
1508.4) of actions that do not individually or cumulatively have a 
significant effect on the human environment. Therefore, neither an 
environmental assessment nor an environmental impact statement is 
required for such actions.
    (a) Criteria. Criteria used to determine those categories of action 
that normally do not require either an environmental impact statement or 
an environmental assessment include:
    (1) The action or proposal is consistent with the Plan or the Act, 
and the environmental effects have been previously analyzed in the Final 
EIS, a supplement thereto, or in an environmental assessment or an EIS 
previously prepared; or
    (2) The total estimated cost directly attributable to the action or 
proposal does not exceed $500,000; or
    (3) The action or proposal is related solely to internal 
administrative operations of the Corporation.
    (b) List of categorical exclusions. Categories of action, identified 
in appendix A (attached) have been determined by PADC to have no 
significant effect on the human environment and are therefore 
categorically excluded from the preparation of environmental impact 
statements and environmental assessments.
    (c) Changes to the list of categorical exclusion. (1) The PADC List 
of Categorical Exclusion will be continually reviewed and refined as 
additional categories are identified and as experience is gained in the 
categorical exclusion process.
    (2) Additional categories of exclusion identified will be submitted 
to the Chairman of the Board of Directors for review and approval, and 
for amendments to this part, following public comment and review by the 
Council on Environmental Quality.



Sec. 907.11  Actions that normally require an environmental assessment.

    If a proposal or action is not one that normally requires an 
environmental impact statement, and does not qualify for categorical 
exclusion, PADC will prepare or have prepared an environmental 
assessment.
    (a) Criteria. Criteria used to determine those categories of action 
that normally require an environmental assessment, but not necessarily 
an environmental impact statement, include:
    (1) Potential for minor degradation of environmental quality;
    (2) Potential for cumulative impact on environmental quality; and
    (3) Potential for impact on protected resources.
    (b) Categories of action. The following categories of action 
normally require

[[Page 178]]

the preparation of an environmental assessment.
    (1) Amendments to the Plan that do not constitute a ``substantial 
change'' to the Plan.
    (2) Regulations promulgated by the Corporation that have significant 
environmental impact on the public or persons residing in the 
development area including businesses.
    (3) Development proposals submitted to the Corporation by private 
developers that are consistent with the Plan and General Guidelines 
prepared by the Corporation.
    (4) Activities related to the Public Improvements Program of the 
Corporation for which no previous environmental assessment or EIS has 
been prepared.
    (5) Contracts, work authorizations, and master agreements related to 
and implementing programs, policies, and proposals not categorically 
excluded and for which no environmental assessments or for which no 
environmental assessment and EIS have been previously prepared.
    (6) Street closures and other rearrangements of public space which 
were not covered in the Plan or the Final EIS.
    (7) Acquisition/disposal of personal property by the Corporation not 
related to any specific decision, plan, or program adopted by the Board 
of Directors of the Corporation for which an environmental assessment or 
an environmental assessment and an EIS is required to be prepared.
    (8) Proposed construction of any public building within the 
development area by any executive agency of the United States 
Government, any agency or department of the District of Columbia 
Government, or any other public or quasi-public entity.



Sec. 907.12  Preparation of an environmental assessment.

    (a) When to prepare. PADC will begin the preparation of an 
environmental assessment as early as possible after it is determined by 
the responsible corporation official to be required. PADC may prepare an 
environmental assessment at any time to assist planning and decision-
making.
    (b) Content and format. An environmental assessment is a concise 
public document used to determine whether to prepare an environmental 
impact statement. An environmental assessment aids in complying with the 
Act when no environmental impact statement is necessary, and it 
facilitates the preparation of an environmental impact statement, if one 
is necessary. The environmental assessment shall contain brief 
discussions of the following topics:
    (1) Purpose and need for the proposed action.
    (2) Description of the proposed action.
    (3) Alternatives considered, including the No Action alternative.
    (4) Environmental effects of the proposed action and alternative 
actions.
    (5) Listing of agencies, organizations or persons consulted.
    (6) In preparation of the environmental assessment, the most 
important or significant environmental consequences and effects on the 
areas listed below should be addressed. Only those areas which are 
specifically relevant to the particular proposal should be addressed. 
Those areas should be addressed in as much detail as is necessary to 
allow an analysis of the alternatives and the proposal. The areas to be 
considered are the following:
    (i) Natural/ecological features (such as floodplain, wetlands, 
coastal zones, wildlife refuges, and endangered species);
    (ii) Air quality;
    (iii) Sound levels;
    (iv) Water supply, wastewater treatment and water runoff;
    (v) Energy requirements and conservation;
    (vi) Solid waste;
    (vii) Transportation;
    (viii) Community facilities and services;
    (ix) Social and economic;
    (x) Historic and aesthetic; and
    (xi) Other relevant factors.
    (c) Finding of no significant impact. If PADC completes an 
environmental assessment and determines that an environmental impact 
statement is not required, then PADC shall prepare a finding of no 
significant impact. The finding of no significant impact shall be

[[Page 179]]

made available to the public by PADC as specified in 40 CFR 1506.6 of 
the CEQ Regulations.



Sec. 907.13  Public involvement.

    Interested persons may obtain information concerning any pending EIS 
or any other element of the environmental review process of the 
Corporation by contacting the Public Information Officer of the 
Corporation, 1331 Pennsylvania Avenue, NW, Suite 1220 North, Washington, 
DC 20004, telephone (202) 566-1218.

[47 FR 8768, Mar. 2, 1982, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 907.14  Corporation decision making procedures.

    To ensure that at major decision making points all relevant 
environmental concerns are considered by the Decision Maker, the 
following procedures are established.
    (a) An environmental document, i.e., the EIS, Environmental 
Assessment, Finding of No Signficant Impact, or Notice of Intent, in 
addition to being prepared at the earliest point in the decision making 
process, shall accompany the relevant proposal or action through the 
Corporation's decision making process to ensure adequate consideration 
of environmental factors.
    (b) The decision maker shall consider in its decision making process 
only those decision alternatives discussed in the relevant environmental 
documents. Also, where an EIS has been prepared, the decision maker 
shall consider all alternatives described in the EIS. A written record 
of the consideration of alternatives during the decision making process 
shall be maintained.
    (c) Any environmental document prepared for a proposal or action 
shall be made part of the record of any formal rulemaking by the 
Corporation.



Sec. 907.15  Approval of private development proposals.

    (a) Each development proposal submitted by a private developer to 
the Corporation for its approval, unless categorically excluded, shall 
require, at a minimum, an environmental assessment.
    (b) The Board of Directors may not take any approval action on a 
submitted development proposal of a private developer until such time as 
the appropriate environmental review has been prepared and submitted to 
the Board of Directors.
    (c) At a minimum, and as part of any submission made by a private 
developer to the Board of Directors for its approval, a private 
developer shall make available data and materials concerning the 
development proposal sufficient to permit the Corporation to carry out 
its responsibilities on environmental review. When requested, the 
developer shall provide additional information that the Corporation 
believes is necessary to permit it to satisfy its environmental review 
functions.
    (d) As part of a development proposal submission, a private 
developer may submit an environmental assessment on its development 
proposal.
    (e) Where the responsible Corporation official determines that the 
preparation of an EIS is required, the EIS shall be prepared in 
accordance with part 1502 of the CEQ Regulations. The responsible 
Corporation official may set time limits for environmental review 
appropriate to each development proposal, consistent with CEQ 
Regulations 40 CFR 1601.8 and 1506.10.
    (f) The responsible Corporation official shall at the earliest 
possible time ensure that the Corporation commences its environmental 
review on a proposed development project and shall provide to a private 
developer any policies or information deemed appropriate in order to 
permit effective and timely review by the Corporation of a development 
proposal once it is submitted to the Board of Directors for approval. 
The official shall designate, for the benefit of the developer, staff 
members of the Corporation to advise the developer with regard to 
information that may be required in order to accomplish the 
Corporation's environmental review.



Sec. 907.16  Actions where lead Agency designation is necessary.

    (a) Consistent with CEQ Regulations, Sec. 1501.5, where a proposed 
action by the Corporation involves one or more other

[[Page 180]]

Federal agencies, or where a group of actions by the Corporation and one 
or more other Federal agencies are directly related to each other 
because of their functional interdependence or geographical proximity, 
the Corporation will seek designation as lead agency for those actions 
that directly relate to implementation of the Plan and those actions 
that relate solely to the Development Area.
    (b) For an action that qualifies as one for which the Corporation 
will seek designation as lead agency, the Corporation will promptly 
consult with the appropriate Federal agencies such as the National 
Capital Planning Commission, the Department of the Interior, and the 
General Services Administration to establish lead agency and cooperating 
agency designations.



                       Sec. Appendix A to Part 907

    (a) Specific Corporation actions categorically excluded from the 
requirements for environmental assessment and an EIS are:
    (i) Personnel actions;
    (ii) Administrative actions and operations directly related to the 
operation of the Corporation (e.g., purchase of furnishings, services, 
and space acquisition for the Corporation offices);
    (iii) Property management actions related to routine maintenance, 
operation, upkeep, etc., of real property owned by the Corporation;
    (iv) Review of permit applications relating to minor development 
activities in the Development Area (sign approval, interior renovations, 
minor exterior changes to facade, etc.);
    (v) Promulgation of development general and square guidelines that 
implement the Plan as covered by the Final EIS;
    (vi) Contracts, work authorizations, procurement actions directly 
related to and implementing proposals, programs, and master agreements 
for which an environmental assessment or an environmental assessment and 
an EIS have been prepared, or which are related to administrative 
operation of the agency;
    (vii) Acquisition/disposal by lease, easement, or sale of real and 
personal property owned by the Corporation subsequent to and 
implementing a prior decision of the Board of Directors for which an 
environmental assessment or an assessment and an EIS were prepared;
    (viii) Activities directly related to and implementing the Public 
Improvements Program of the Corporation approved by the Board of 
Directors, and which are covered by a previously prepared environmental 
assessment or an environmental assessment and an EIS;
    (ix) Demolition actions preparatory for development by the 
Corporation, other public agencies, or private developers subsequent to 
approval of development proposals made by the Board of Directors;
    (x) Development proposal identical to the requirements of the Plan 
and which was included in an EIS previously prepared.
    (b) An action which falls into one of the above categories may still 
require the preparation of an EIS or environmental assessment if the 
designated corporation official determines it meets the criteria stated 
in Sec. 907.8(a) or involves extraordinary circumstances that may have 
a significant environmental effect.



PART 908_POLICY AND PROCEDURES TO FACILITATE THE RETENTION OF DISPLACED 

BUSINESSES AND RESIDENTS IN THE PENNSYLVANIA AVENUE DEVELOPMENT AREA--Table of 

Contents




                            Subpart A_General

Sec.
908.1 Policy.
908.2 Purpose.
908.3 Definitions.

                Subpart B_Preferential Right To Relocate

908.10 Criteria of Qualified Persons.
908.11 List of Qualified Persons.
908.12 Retention on the List of Qualified Persons.
908.13 Rights of Qualified Persons.
908.14 Requirements placed on developers that have acquired or leased 
          real property from the Corporation.
908.15 Requirements placed on developers that have not acquired or 
          leased real property from the Corporation.

Subpart C [Reserved]

                       Subpart D_Review Procedure

908.30 Request for review.
908.31 Time for filing request for review.
908.32 Review procedures.
908.33 Final determination.

    Authority: 40 U.S.C. 874(e); 40 U.S.C. 875(8); 40 U.S.C. 877(d).

    Source: 48 FR 55459, Dec. 13, 1983, unless otherwise noted.

[[Page 181]]



                            Subpart A_General



Sec. 908.1  Policy.

    One of the goals of The Pennsylvania Avenue Plan--1974, as amended, 
(The Plan) is the reduction of hardships experienced by businesses and 
residents within the development area of the Pennsylvania Avenue 
Development Corporation (the Corporation) when they are displaced as a 
result of implementation of The Plan. It is the policy of the 
Corporation to provide displaced businesses and residents with a 
preferential opportunity to relocate within the development area so that 
they may share in the benefits brought to the area by the implementation 
of The Plan. This rule shall not be construed to affect the eligibility, 
rights or responsibilities of persons who may be entitled to benefits 
provided under the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 as implemented by the Corporation (36 
CFR part 904).



Sec. 908.2  Purpose.

    The purpose of this rule is to:
    (a) Provide a meaningful opportunity to businesses displaced by the 
Corporation's program to return to, or remain in, the Development Area;
    (b) Establish procedures and requirements for displaced occupants by 
which they may establish and later exercise their preferential right to 
return to the Development Area;
    (c) Establish procedures which the Corporation and private 
Developers must follow in providing Qualified Persons with the 
opportunity to obtain their preferential right to return to the 
Development Area.



Sec. 908.3  Definitions.

    The following definitions shall apply to this part:
    (a) Developer means a Person or team of Persons that has received 
preliminary approval for a development proposal or has been designated 
by the Corporation as Developer pursuant to a development competition.
    (b) Development Area means the area described in section 2 (f) of 
Pub. L. 92-578, October 27, 1972, as amended (40 U.S.C. 871 (f)), and 
for which the Plan has been prepared and will be implemented by the 
Corporation.
    (c) List means the List of Qualified Persons maintained by the 
Corporation as provided in Sec. 908.11(a) of this rule.
    (d) Newly developed space means any leaseable part of a new building 
in the Development Area upon which construction was commenced after 
October 27, 1972 or an existing building in the Development Area which 
after October 27, 1972 underwent substantial remodeling, renovation, 
conversion, rebuilding, enlargement, extension or major structural 
improvement, but not including ordinary maintenance or remodeling or 
changes necessary to continue occupancy.
    (e) Person means a partnership, company, corporation, or association 
as well as an individual or family, but does not include a department, 
agency, or instrumentality of any Federal, state, or local government.
    (f) Previous location means the space from which the Eligible Person 
was or is being displaced as a result of the Corporation's or 
Developer's acquisition of real property, or as a result of receiving a 
written order to vacate from the Corporation.



                Subpart B_Preferential Right To Relocate



Sec. 908.10  Criteria of Qualified Person.

    Qualified Person is either
    (a) A Person whose place of business or residence was located in the 
Development Area and was displaced from its location by:
    (1) The Corporation in connection with the acquisition of fee title, 
or a lesser interest, in the real property containing such business or 
residence; or
    (2) A Developer in implementing a development project in accordance 
with the Plan; or
    (b) A Person whose place of business or residence is located in the 
Development Area and who has received notice of initiation of 
negotiations by the Corporation for purchase of the real property 
containing such business or residence.

[[Page 182]]



Sec. 908.11  List of Qualified Persons.

    (a) The Corporation shall develop and maintain a List of Qualified 
Persons who meet the criteria of Qualified Person as defined in Sec. 
908.10 and who ask to be placed on that list.
    (b) The Corporation shall notify each occupant displaced by 
development provided an address is available to the Corporation, of this 
policy and the procedures to be followed for placement on the List.
    (c) A person who wishes to be included on the List shall notify the 
Corporation in writing to that effect. The notice to the Corporation 
shall include:
    (1) The address of the Previous Location;
    (2) A short statement indicating the nature of the Qualified 
Person's occupancy;
    (3) The amounts and type of space occupied prior to displacement;
    (4) A description of any specialized equipment or unusual 
requirements for occupancy; and
    (5) A copy of the notice to vacate from the Developer or notice of 
initiation of negotiations from the Corporation if either of these was 
received by the Qualified Person.
    (d) The Corporation shall:
    (1) Review the information furnished by the Person including any 
notice;
    (2) Request additional information, if necessary to make a 
determination of the Person's qualifications;
    (3) Determine whether the Person is qualified to be listed, and if 
so place the Person on the list; and
    (4) Notify the Person of its determination.
    (e) The Corporation urges that any Person who wishes to be placed on 
the List request such placement as soon as the Person meets the criteria 
for Qualified Person established in Sec. 908.10, and all Persons are 
encouraged to do so no later than one year of the time the Person is 
displaced in order to increase the opportunity to obtain Newly Developed 
Space. However, no Person shall be denied placement on the List because 
such placement was not requested within one year of displacement.



Sec. 908.12  Retention on the List of Qualified Persons.

    (a) Once placed on the List, the Corporation shall keep a Person on 
the List until:
    (1) The Corporation receives a written request from the Qualified 
Person to be removed from the List;
    (2) The Qualified Person is relocated into or has a binding lease 
commitment for Newly Developed Space;
    (3) The Qualified Person sells, transfers, or merges its interest in 
the displaced business, unless after such change in ownership Qualified 
Persons have at least fifty-one percent of the interest in the resulting 
business; or
    (4) The Corporation receives a mailing returned from the Post Office 
that the Person is not located at the known address and left no 
forwarding address, provided that the Corporation shall reinstate any 
such removed name if the Person provides the Corporation with a current 
address; or
    (5) The Corporation ceases operations upon completion of the Plan.
    (b) A Qualified person relocated into newly developed space, may 
only again be placed on the List:
    (1) If another branch of its business is subsequently displaced from 
space within the Development Area which is not Newly Developed Space; 
and
    (2) If all requirements of Sec. 908.10 of the rule are met with 
regard to the subsequent displacement.



Sec. 908.13  Rights of Qualified Persons.

    (a) As provided in Sec. Sec. 908.14(c) and 908.15(b), each 
Qualified Person on the List shall receive notices of opportunities to 
occupy Newly Developed Space as opportunities become available.
    (b) As provided in Sec. Sec. 908.14(d) and 908.15(c), each 
Qualified Person on the List shall be notified of any subsequent changes 
in the leasing plan which are, in the Corporation's opinion, major.
    (c) Each Qualified Person on the List, who is interested in 
negotiating for occupancy of Newly Developed Space shall, within two 
weeks after receiving notice of a tenanting opportunity, provide written 
notice of its interest in the tenanting opportunity to the Developer, 
and furnish a copy of the written notice to the Corporation.

[[Page 183]]

    (d) Each Qualified Person on the List who provides a written notice 
of interest shall have ninety days following the Developer's receipt of 
the notice of interest for exclusive negotiations with the Developer for 
occupancy of the Developer's Newly Developed Space. During the ninety 
day period the Developer, subject to Sec. Sec. 908.14 and 908.15 of 
this rule, shall not negotiate tenanting opportunities for the same 
Newly Developed Space requested by the Qualified Person with other than 
Qualified Persons.
    (e) A Qualified Person's opportunity to occupy Newly Developed Space 
shall not be limited to the square on which its previous location was 
situated but extends throughout the Development Area. Similarly, no 
Qualified Person has an absolute right to return to the square where 
previous location was situated.
    (f) A Qualified Person's opportunity to occupy space may be 
exercised in the Development Area at any time during the Corporation's 
existence, but such opportunity may only be exercised within Newly 
Developed Space.
    (g) A Qualified Person has one opportunity to occupy Newly Developed 
Space for each location in the Development Area from which it is 
displaced.
    (h) The Corporation cannot assure any Qualified Person that it will 
be relocated to Newly Developed Space.



Sec. 908.14  Requirements placed on developers that have acquired or leased 

real property from the Corporation.

    Developers who have acquired or leased real property from the 
Corporation shall:
    (a) Notify the Corporation, within six months of the approval of the 
Developer's building permit, of its leasing plan and when it intends to 
begin seeking tenants. The Developer shall include at least the 
following in its leasing plan:
    (1) The mix of uses and estimated square footage for each use;
    (2) The rentals to be charged by type of use and location;
    (3) The terms and conditions to be included in the leases, including 
financial participation;
    (4) The selection criteria to be used by either the Developer or its 
agents; and
    (5) The projected completion and occupancy dates.
    (b) Notify the Corporation of any changes in the Developer's leasing 
plan.
    (c) Send registered letters to all Qualified Persons on the List 
notifying them that the developer is seeking tenants and advising them 
that they have two weeks to provide the developer with written notice of 
their interest and ninety days thereafter for exclusive negotiations. 
This letter shall include a description of the mix of uses in the 
project, the rentals to be charged by type of use and location, the 
terms and conditions to be included in leases, the projected completion 
and occupancy dates, and the selection criteria to be used to choose 
tenants. The Developer will furnish the Corporation with an enumeration 
of the Qualified Persons it has notified and a copy of the letter and 
any attachments sent.
    (d) Notify in writing each Qualified Person whom the Developer has 
previously contacted of changes in the Developer's leasing plan which 
the Corporation determines are major.
    (e) Provide a ninety day period for exclusive negotiations with 
Qualified Persons, said period to commence with the timely receipt by 
the Developer of the written notice of interest from the Qualified 
Person. During this period the Developers shall:
    (1) Negotiate tenanting opportunities only with Qualified Persons 
who have notified the Developer of their interest in the opportunity;
    (2) Not seek other potential tenants or negotiate agreements to 
occupy the Newly Developed Space requested by Qualified Persons with 
anyone other than those Qualified Persons who have timely notified the 
Developer of their interest in the opportunity, except that a Developer 
may negotiate agreements with equity partners in the project who will 
become tenants or with prime tenants; and
    (3) Negotiate in good faith with interested Qualified Persons and 
seek to accommodate them as tenants.
    (f) Report to the Corporation at the conclusion of the ninety day 
period of

[[Page 184]]

exclusive negotiations concerning the results of its efforts. In 
particular the developer shall:
    (1) State the number of responses which it received from Qualified 
Persons;
    (2) State the number of Qualified Persons with whom it has reached 
agreement and the name of each;
    (3) State the number of Qualified Persons with whom it is still 
negotiating and the name of each; and
    (4) Describe the Developer's negotiations with each Qualified Person 
including a summary of each communication between the Developer and each 
Qualified Person with whom agreement has not been reached, the 
Developer's best offer to each Qualified Person, the best offer of each 
Qualified Person to the Developer, and the specific reasons why any 
Qualified Persons did not meet the selection criteria.
    (g) Report to the Corporation quarterly thereafter until the project 
is fully leased or there are no more Qualified Persons interested in 
leasing space, whichever first occurs, concerning the results of its 
nogotiations with Qualified Persons. In particular the Developer shall 
state:
    (1) The number of Qualified Persons with whom it has reached 
agreement and the name of each;
    (2) The percentage of square feet of total leasable space which it 
has leased to Qualified Persons; and
    (3) A description of the Developer's negotiations with each 
Qualified Person including a summary of each communication between the 
Developer and each Qualified Person with whom agreement has not been 
reached, the Developer's best offer to each Qualified Person, the best 
offer of each Qualified Person to the Developer, and the specific reason 
why the Developer determines any Qualified Person did not meet its 
selection criteria.



Sec. 908.15  Requirements placed on developers that have not acquired or 

leased real property from the Corporation.

    The Corporation shall encourage Developers that do not acquire or 
lease real property from the Corporation to lease to Qualified Persons.
    (a) While reviewing the Developer's preliminary or final plans, the 
Corporation shall explore the tenanting opportunities proposed by the 
Developer and furnish the Developer with the List.
    (b) The Corporation shall notify those Qualified Persons on the List 
who appear to be prospective tenants for the available tenanting 
opportunities of this tenanting opportunity. To the extent that such 
information is available to the Corporation, these notices shall specify 
the mix of uses in the project, the rentals to be charged by type of use 
and location, the terms and conditions to be included in the leases, the 
projected completion and occupancy dates and the selection criteria to 
be used in choosing tenants.
    (c) The Corporation shall notify in writing each Qualified Person 
whom it has previously contacted of changes in the Developer's plan 
provided the Corporation is informed of the changes and determines the 
changes are major.
    (d) The Corporation shall request that the Developer make every 
effort to lease space to Persons on the List and to report to the 
Corporation the names of those Qualified Persons who have reached an 
agreement with the Developer.

Subpart C [Reserved]



                       Subpart D_Review Procedure



Sec. 908.30  Request for review.

    (a) Any Person aggrieved by a determination concerning placement or 
retention on the List or any other right under subpart B of this rule, 
may request that the determination be reviewed.
    (b) The applicant's request for review, shall be in writing, shall 
state the reasons for requesting review, and shall describe the relief 
sought (including all information the aggrieved person believes to be 
relevant). The applicant's written request shall be sent to the Director 
of Real Estate, Pennsylvania Avenue Development Corporation, 1331 
Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004.

[48 FR 55459, Dec. 13, 1983, as amended at 50 FR 45824, Nov. 4, 1985]

[[Page 185]]



Sec. 908.31  Time for filing request for review.

    Any person who files a request for review must do so within one year 
of the date of the determination for which review is sought.



Sec. 908.32  Review procedures.

    (a) Upon receipt of a request for review, the Director of Real 
Estate shall compile all pertinent records maintained on the aggrieved 
person's application, including the following:
    (1) Information on which the original determination was based, 
including applicable regulations;
    (2) Information submitted by the applicant including the request for 
review and any information submitted in support of the application;
    (3) Any additional information the Director of Real Estate considers 
relevant to a full and fair review of the application and which he 
obtains by request, investigation or research.
    (b) The Director of Real Estate shall submit the complete file 
together with a summary of the facts and issues involved in the 
application to the Chairman of the Board of Directors of the Corporation 
or his or her designee (Chairman or designee) within 30 days of receipt 
of the request for review.
    (c) The Chairman may either review the application or designate one 
or more persons from the Board of Directors or from outside the 
Corporation to review the claim. During review the Chairman or 
designee(s) may consult with the Corporation's Office of General Counsel 
to obtain advice on legal issues arising from the claim.



Sec. 908.33  Final determination.

    (a) The Chairman or designee(s) shall make a final determination on 
the claim within 45 days of receipt of the file from the Director of 
Real Estate. The final determination shall be in the form of Findings of 
Fact and Conclusions of Law and shall be sent to the aggrieved person 
and to the Director of Real Estate.
    (b) If the applicant is determined to have been aggrieved, the 
Director of Real Estate shall promptly take appropriate action in 
accordance with the final determination.
    (c) A notice of the right to judicial review shall be sent to the 
aggrieved person with the final determination.



PART 909_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS 

OR ACTIVITIES CONDUCTED BY THE PENNSYLVANIA AVENUE DEVELOPMENT CORPORATION--

Table of Contents




Sec.
909.101 Purpose.
909.102 Application.
909.103 Definitions.
909.104-909.109 [Reserved]
909.110 Self-evaluation.
909.111 Notice.
909.112-909.129 [Reserved]
909.130 General prohibitions against discrimination.
909.131-909.139 [Reserved]
909.140 Employment.
909.141-909.148 [Reserved]
909.149 Program accessibility: Discrimination prohibited.
909.150 Program accessibility: Existing facilities.
909.151 Program accessibility: New construction and alterations.
909.152-909.159 [Reserved]
909.160 Communications.
909.161-909.169 [Reserved]
909.170 Compliance procedures.
909.171-909.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22896, June 23, 1986, unless otherwise noted.



Sec. 909.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.



Sec. 909.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 909.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil

[[Page 186]]

Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alocoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or agency 
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or

[[Page 187]]

to achieve a level of accomplishment, a handicapped person who meets the 
essential eligibility requirements and who can acheive the purpose of 
the program or activity without modifications in the program or activity 
that the agency can demonstrate would result in a fundamental alteration 
in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 909.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 909.104-909.109  [Reserved]



Sec. 909.110  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 909.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 909.112-909.129  [Reserved]



Sec. 909.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide

[[Page 188]]

qualified handicapped persons with aid, benefits, or services that are 
as effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activites of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 909.131-909.139  [Reserved]



Sec. 909.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Sec. Sec. 909.141-909.148  [Reserved]



Sec. 909.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 909.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 909.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--

[[Page 189]]

    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 909.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 909.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to handicapped 
persons. In cases where a physical alteration to an historic property is 
not required because of Sec. 909.150(a)(2) or (a)(3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--

[[Page 190]]

    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 909.151  Program accessibility: New construction and alterations.

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



Sec. Sec. 909.152-909.159  [Reserved]



Sec. 909.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and adminstrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 909.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 909.161-909.169  [Reserved]



Sec. 909.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section

[[Page 191]]

504 with respect to employment according to the procedures established 
by the Equal Employment Opportunity Commission in 29 CFR part 1613 
pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791).
    (c) The Executive Director shall be responsible for coordinating 
implementation of this section. Complaints may be sent to the General 
Counsel, Pennsylvania Avenue Development Corporaton, 1331 Pennsylvania 
Avenue, NW., Suite 1220 North, Washington, DC 20004-1730.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 909.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 22894, 22896, June 23, 1986, as amended at 51 FR 22894, June 23, 
1986]



Sec. Sec. 909.171-909.999  [Reserved]



PART 910_GENERAL GUIDELINES AND UNIFORM STANDARDS FOR URBAN PLANNING AND 

DESIGN OF DEVELOPMENT WITHIN THE PENNSYLVANIA AVENUE DEVELOPMENT AREA--Table 

of Contents




                            Subpart A_General

Sec.
910.1 Policy.
910.2 Purpose.
910.3 Program administration.

              Subpart B_Urban Planning and Design Concerns

910.10 General.
910.11 Comprehensive urban planning and design.
910.12 Development density.
910.13 Urban design of Washington, DC.
910.14 Historic preservation.
910.15 New development design.
910.16 Land use.
910.17 Pedestrian circulation system.
910.18 Vehicular circulation and storage systems.

    Subpart C_Standards Uniformly Applicable to the Development Area

910.30 General.
910.31 High architectural quality.
910.32 Historic preservation.
910.33 Off-street parking.
910.34 Accommodations for the physically handicapped.
910.35 Fine arts.

[[Page 192]]

910.36 Energy conservation.
910.37 Fire and life safety.
910.38 Building exterior illumination.

                       Subpart D_Glossary of Terms

910.50 General.
910.51 Access.
910.52 Buildable area.
910.53 Building restriction line.
910.54 Build-to height.
910.55 Build-to line.
910.56 Coordinated planning area.
910.57 Curb-cut.
910.58 Development.
910.59 Development parcel.
910.60 Gross floor area.
910.61 Height of development.
910.62 The Plan.
910.63 Rehabilitation.
910.64 Replication.
910.65 Restoration.
910.66 Sidewalk setback.
910.67 Square guidelines.
910.68 Storefront.
910.69 Structural bay.
910.70 Vault.
910.71 Weather protection.

    Authority: Sec. 6(8) Pennsylvania Avenue Development Corporation Act 
of 1972 (40 U.S.C. 875(8)).

    Source: 48 FR 36642, Aug. 23, 1982, unless otherwise noted.



                            Subpart A_General



Sec. 910.1  Policy.

    (a) The Pennsylvania Avenue Development Corporation Act of 1972, 
Pub. L. 92-578, October 27, 1972, (the Act), (40 U.S.C. 871 et seq.) 
established the Pennsylvania Avenue Development Corporation (the 
Corporation) with jurisdiction over the Pennsylvania Avenue Development 
Area (Development Area). The Development Area is generally described as 
an area in Washington DC, bounded by Pennsylvania Avenue, NW., on the 
south, East Executive Drive on the west, 3rd Street, NW., on the east, 
and E and F Streets, NW., on the north.
    (b) Prior to creation of the Corporation, the deterioration of the 
Development Area had an adverse impact upon the physical, economic, and 
social life of Washington, DC. The Corporation was created as the 
vehicle to develop, maintain, and use the Development Area in a manner 
suitable to its ceremonial, physical, and historic relationship to the 
legislative and executive branches of the Federal government, to the 
governmental buildings, monuments, memorials, and parks in and adjacent 
to that area, and to the downtown commercial core of Washington, DC. The 
Corporation was directed to prepare a development plan for the 
Development Area and to submit that plan to the United States Congress. 
Congress accepted that plan and directed its implementation by the 
Corporation. The Corporation through a broad range of statutory powers 
has begun this implementation process.
    (c) The Pennsylvania Avenue Plan--1974, as amended (the Plan) is a 
blueprint for social, economic, and architectural rejuvenation of the 
Development Area. Its goal is to make the Development Area once again a 
relevant and contributing element of Washington, DC. With the 
implementation of the Plan, the Development Area will become a showpiece 
of the Nation's Capital, proudly displaying the successful joint efforts 
of the Corporation, other Federal and District of Columbia government 
agencies, and private entrepreneurs.
    (d) The Plan, containing the goals and objectives for development, 
is supplemented by various adopted policies and programs of the 
Corporation. The Plan, in conjunction with these policies and programs, 
represents the basis upon which the development and rejuvenation of the 
Development Area will proceed, whether publicly or privately inspired 
and accomplished. These policies and programs amplify, elaborate, and 
refine the planning and urban design concepts expressed in the Plan.



Sec. 910.2  Purpose.

    (a) Implementation of the Plan occurs through two component actions: 
public improvements construction and square development. Public 
improvements construction consists of implementation by the Corporation 
of the Public Improvements Program which is a comprehensive plan for the 
design and construction of public amenities in public spaces and 
selected thoroughfares within the Development Area. This program 
outlines the details of roadway and sidewalk improvements, public space 
configuration, and pedestrian amenities. Square development consists of 
design and construction of

[[Page 193]]

development projects primarily on city blocks, known as squares, within 
the Development Area. These development projects are generally pursued 
by private entrepreneurs with varying degrees of participation and 
involvement by the Corporation, through such means as land assemblage 
and leasing.
    (b) This part 910, together with the Square Guidelines applicable to 
the coordinated planning area, pertains solely to square development and 
specifies the controlling mechanism for implementation of the Plan 
required by Chapter Six of the Plan.



Sec. 910.3  Program administration.

    (a) This part 910, together with Square Guidelines, described below, 
provides interested parties with the urban planning and design 
information sufficient to understand and participate in the process of 
square development within the Development Area.
    (1) This part 910, General Guidelines and Uniform Standards for 
Urban Planning and Design of Development, sets forth the general 
planning and design goals and objectives which govern the implementation 
of the Plan, specifies standards which are uniformly applicable to all 
developments throughout the Development Area, and provides a glossary of 
defined terms applicable to this part as well as Square Guidelines.
    (2) Square Guidelines specifies detailed urban planning and design 
requirements and recommendations which are applicable to each particular 
coordinated planning area, a coordinated planning area being a square, a 
portion of a square, or a combination of squares. These requirements and 
recommendations set forth intentions and refinements of the Plan in 
light of the identified Planning and Design Concerns specified in 
subpart B of this part 910. Each set of Square Guidelines is adopted by 
the Board of Directors, issued by the Chairman, and is available, upon 
request, at the Corporation's office.
    (3) Square Guidelines are developed in the context of the existing 
environment. Several provisions in the Square Guidelines are, therefore, 
established on the basis of certain assumptions in terms of existing 
buildings, a particular traffic pattern and roadway configuration, a 
market condition for a particular land use, etc. In the event of a major 
change or casualty which would render it impossible or impracticable to 
meet certain requirements of Square Guidelines, the Corporation would 
expect to develop and issue up-to-date Square Guidelines. This statement 
does not, of course, preclude the Corporation from issuing amendments to 
Square Guidelines from time to time on any other basis.
    (b) Pursuant to section 7(b) of the Act, each proposal for 
development within the Development Area must be submitted to the 
Corporation to determine its consistency with the Plan. The 
Corporation's adopted development policy, entitled ``Development 
Policies and Procedures,'' sets forth the process for this 
determination. In determining whether a development proposal is 
consistent with the Plan, the Corporation shall review the proposal 
against all adopted Corporation programs, policies, and regulations, 
including:
    (1) This part 910.
    (2) Square Guidelines.
    (3) Development Policies and Procedures.
    (4) Historic Preservation Plan.
    (5) Energy Guidelines.
    (6) Side Street Improvements Program.
    (7) Policy on Environmental Quality and Control (36 CFR part 907).
    (8) Pennsylvania Avenue Lighting Plan.
    (9) Public Improvements Program.
    (10) Affirmative Action Policy and Procedure (36 CFR part 906).
    (11) Policy and Procedures to Facilitate Successful Relocation of 
Businesses and Residents within the Pennsylvania Avenue Development 
Area.
    (12) All other programs, policies, and regulations that may be 
approved and adopted by the Board of Directors from time to time.
    (c) Pursuant to the Act, Federal and District of Columbia agencies 
and departments may exercise such existing authority and lawful powers 
over urban planning and design features of development as are consistent 
with the Plan. No department or agency may release, modify, or depart 
from any feature of the Plan without the prior approval of the 
Corporation.

[[Page 194]]



              Subpart B_Urban Planning and Design Concerns



Sec. 910.10  General.

    To facilitate review of each development proposal in light of the 
identified urban planning and design goals of the Plan, the following 
urban planning and design concerns will be the basis upon which the 
evaluation of such proposals will be made. These concerns are also more 
specifically reflected in subpart C of this Rule, and in the 
requirements and recommendations in Square Guidelines.
    (a) Comprehensive planning and design;
    (b) Development density;
    (c) Urban design of Washington, DC;
    (d) Historic preservation;
    (e) New development design;
    (f) Land use;
    (g) Pedestrian circulation sytems; and
    (h) Vehicular circulation and storage systems.



Sec. 910.11  Comprehensive urban planning and design.

    (a) All new development is conceived as an integral part of its 
surroundings, which include the remainder of the Development Area, the 
Mall, the Federal Triangle, and the District's downtown, and should 
support Pennsylvania Avenue's function as a bridge between the 
monumental Federal core to the south and the District's downtown to the 
north.
    (b) All development shall be planned and designed to accommodate the 
requirements and needs of historic preservation, affirmative action, 
business relocation, and other concerns which will affect the overall 
planning and design of a development.
    (c) The design of any development shall take into account the Plan's 
proposed future treatment of buildings, squares, and pedestrian spaces 
in the immediate surrounding area.
    (d) The design of any development shall be coordinated with the 
massing, architectural design, servicing, pedestrian amenities, and uses 
of nearby development as prescribed under the Plan.
    (e) Any development adjacent to F Street, NW. shall be accomplished 
in a manner that will strengthen F Street as a retail core of 
Washington, DC.
    (f) Any development along Pennsylvania Avenue shall be designed so 
as to support the transformation of the Avenue into an attractive and 
pleasant place for residents and visitors alike, offering pleasant 
places to stroll, rest, sit and talk, eat, and shop.
    (g) All development within a coordinated planning area shall, to the 
maximum extent possible, be integrated with regard to the off-street 
loading and servicing, pedestrian features.



Sec. 910.12  Development density.

    (a) Land would be developed to the fullest extent appropriate in 
terms of uses, economics, and design so that the city's economic life 
and tax base can be enhanced.
    (b) New development shall be designed to achieve maximum development 
density within the building envelope delineated by specific height 
restrictions, but shall also establish a compatible and appropriate 
scale for historic preservation, residential and other uses, and other 
urban design elements.
    (c) Development density is limited by the Zoning Regulations of the 
District of Columbia and may be further restricted by the Corporation in 
specific coordinated planning areas, provided that any lower density 
would be economically feasible. Generally, the Plan is structured to 
create high density development west of the FBI and lower density 
development east of the FBI.
    (d) The density of new development should bring new economic life--
jobs, shopping, and business opportunities--to Pennsylvania Avenue, 
while also reinforcing existing activity both on the Avenue and in the 
adjacent downtown, both within and beyond the Development Area.



Sec. 910.13  Urban design of Washington, DC.

    (a) Pennsylvania Avenue's unique role as the physical and symbolic 
link between the White House and the U.S. Capitol should be reinforced 
by new development along it.
    (b) To reinforce and enrich the legacy of the L'Enfant Plan, the 
primary function of new development in the Development Area is to define 
open spaces and

[[Page 195]]

plazas, or to reinforce vistas along major streets and thoroughfares.



Sec. 910.14  Historic preservation.

    (a) The Development Area is located almost entirely within the 
Pennsylvania Avenue National Historic Site, which was established to 
preserve the exceptional values of Pennsylvania Avenue and its environs 
in commemorating or illustrating the history of the United States. The 
Pennsylvania Avenue Area achieves national historic significance because 
of both its ceremonial role in the life of the nation and its social and 
economic role in the life of the residents of Washington for more than a 
century.
    (b) The Historic Preservation Plan of the Corporation sets forth the 
adopted policy of the Corporation on historic preservation and 
development within the Development Area must be consistent with this 
policy.
    (c) New construction adjacent to historic structures will be 
required to take into account the qualities of the adjacent structures 
(with regard to height, scale, proportion, rhythm, texture, materials, 
architectural detail, and the amount of variety among the structures 
with respect to these qualities as well as style and date of erection) 
to ensure that these structures maintain their historic or architectural 
integrity, but will not necessarily be required to conform to them.
    (d) Wholly new construction and new construction in conjunction with 
preservation will, where appropriate, take into account the historic 
buildings to remain, aiming for the highest quality of contemporary 
design, consistent with the goals and objectives of the Historic 
Preservation Plan.



Sec. 910.15  New development design.

    (a) All new development shall represent the best contemporary 
architectural and urban planning concepts.
    (b) Where new development includes or relates to historic or 
architecturally meritorious buildings which are to be preserved, the 
design of the new development should be aimed at retaining as much of 
the significant fabric of the Development Area as is possible consistent 
with the goals of the Plan.



Sec. 910.16  Land use.

    (a) Development within the Development Area shall provide, and 
stimulate in neighboring areas, more lively and varied shopping, 
cultural, entertainment, and residential opportunities, as well as high 
quality office uses.
    (b) That portion of the Development Area west of the FBI Building is 
designated for commercial development, primarily office and hotel uses 
with attendant retail and service uses. That portion of the Development 
Area east of the FBI Building is designated for development with 
residential uses, office, institutional and entertainment uses supported 
by service and retail uses.
    (c) The kinds of uses and their location within the Development Area 
shall be directly related to creating a lively atmosphere and to 
promoting an active street life throughout the day, evening, and 
weekend.
    (d) Introduction or expansion of retail uses shall be encouraged as 
both reinforcement of existing retail uses and creation of new retail 
activities.
    (e) While recognized as important to the commercial life of any 
inner city, uses that do not generate lively activities are discouraged 
from locating along those street fronts within the Development Area 
which are considered major pedestrian thoroughfares.



Sec. 910.17  Pedestrian circulation system.

    (a) An efficient, pleasant, and stimulating pedestrian circulation 
system shall be developed to link the components of the Development Area 
with the Mall and the city's downtown.
    (b) Pedestrian circulation systems shall be designed to provide 
pedestrian comfort and convenience, to create more linear footage of 
storefront, to encourage recognition of the location of various METRO 
stops or other mass transit locations, and to link various historic and 
architecturally significant buildings, sites, and monuments which are 
scattered throughout and beyond the Historic Site.
    (c) Curb cuts across the north sidewalk areas of Pennsylvania Avenue 
shall be prohibited in order to reinforce its importance as the major 
pedestrian thoroughfare of the Development Area.

[[Page 196]]



Sec. 910.18  Vehicular circulation and storage systems.

    (a) Improvement of the existing vehicular storage and circulation 
system is necessary in order to create the balanced transportation 
system called for in the Plan, which recognizes the need to maintain air 
quality, to encourage the use of mass transit, and to provide sufficient 
off-street parking and loading to make development economically viable.
    (b) The general policies of the Corporation are as follows:
    (1) To reduce impedance to traffic movement created by service 
vehicles by requiring well-integrated off-street loading facilities in 
terms of location of loading berths and access points on a block-by-
block basis;
    (2) To control the number of vehicles in the Development Area by 
limiting the number of parking spaces per development; and
    (3) To encourage the use of public transportation by linking new 
development to transit stops through the system of pedestrian ways.



    Subpart C_Standards Uniformly Applicable to the Development Area



Sec. 910.30  General.

    In addition to the specific requirements and recommendations 
contained in Square Guidelines for the applicable coordinated planning 
area, the Standards set forth in this subpart C are uniformly applicable 
to any development within the Development Area.



Sec. 910.31  High architectural quality.

    Development must maintain a uniformly high standard of architecture, 
representative of the best contemporary design and planning concepts. 
Great care and sensitivity must be shown in the architectural treatment 
of new buildings, particularly in terms of massing, facade design 
(including materials, composition, and detailing), the ground floor and 
sidewalk pedestrian environment, interior public spaces, and provisions 
for pedestrian and vehicular access. Special design considerations for 
each coordinated planning area are set forth in Square Guidelines.



Sec. 910.32  Historic preservation.

    Rehabilitation of buildings within the Development Area, which, 
according to the Plan and the Historic Preservation Plan of the 
Corporation, are specified for preservation, shall be acomplished (a) in 
accordance with the Secretary of the Interior's ``Standards for Historic 
Preservation Projects'': (36 CFR part 68), and (b) consultation with the 
State Historic Preservation Officer for the District of Columbia.



Sec. 910.33  Off-street parking.

    (a) Off-street parking as a principal use is prohibited, although 
off-street parking as an accessory use in a development (such as a 
below-grade parking garage) is permitted.
    (b) All parking spaces shall be located below grade level.
    (c) The minimum number of parking spaces shall be provided in 
accordance with DC Zoning Regulations.
    (d) The maximum number of parking spaces permitted by PADC for a 
development may not exceed the aggregate of the number of spaces allowed 
for each use within the development. The schedule of limitations for 
parking spaces is as follows:
    (1) Hotel: One parking space for each four sleeping rooms or suites;
    (2) Places of public assemblage other than hotels: (i.e., arena, 
armory, theater, auditorium, community center, convention center, 
concert hall, etc.) one parking space for each ten seats of occupancy 
capacity for the first 10,000 seats plus one for each 20 seats above 
10,000: Provided, that where seats are not fixed, each seven square feet 
of gross floor area usable for seating shall be considered one seat;
    (3) Retail, trade, and service establishments: one parking space for 
each 750 square feet of gross floor area;
    (4) Residential: One parking space for each 1.2 units;
    (5) Offices: One parking space for each 1,800 square feet of gross 
floor area.

[[Page 197]]



Sec. 910.34  Accommodations for the physically handicapped.

    (a) Every development shall incorporate features which will make the 
development accessible by the physically handicapped. The standards in 
the ``American Standard Specifications for Making Buildings and 
Facilities Accessible to, and Usable by the Physically Handicapped,'' 
published by the American National Standards Institute, Inc. (ANSI A 
117.1-1961 (1971)), are recommended.
    (b) Where a development includes a historic structure, the Advisory 
Council on Historic Preservation's policy, ``Supplementary Guidance--
Handicapped Access to Historic Properties,'' (45 FR 9757, Feb. 13, 
1980), should be observed.



Sec. 910.35  Fine arts.

    Fine arts, including sculpture, paintings, decorative windows, bas-
reliefs, ornamental fountains, murals, tapestries, and the like, should 
be included in each development. PADC encourages commissions for 
original works of art which are appropriate for the development. For 
information and guidance, a reasonable expenditure for fine arts is 
deemed to be one half of one percent of the total construction cost of 
the development.



Sec. 910.36  Energy conservation.

    All new development shall be designed to be economical in energy 
consumption. The Energy Guidelines of the Corporation, and the District 
of Columbia Energy Conservation Code Act of 1979 and its implementing 
regulations set forth the appropriate standards to be observed.



Sec. 910.37  Fire and life safety.

    As a complementary action to satisfying required District of 
Columbia codes related to fire safety, it is highly recommended that all 
new development be guided by standards of the NFPA Codes for fire and 
life safety and that all buildings be equipped with an approved 
sprinkler system.



Sec. 910.38  Building exterior illumination.

    Exterior illumination of a building shall be in conformance with the 
standards specified in the Pennsylvania Avenue Lighting Plan of the 
Corporation.



                       Subpart D_Glossary of Terms



Sec. 910.50  General.

    The definitions appearing in this Glossary of Terms are applicable 
to this part 910 and to the Square Guidelines. In addition, definitions 
appearing in section 1201 of the Zoning Regulations of the District of 
Columbia are also applicable. Where a conflict between this subpart and 
section 1201 of the Zoning Regulations arises in terminology or 
interpretation, this subpart shall be controlling.



Sec. 910.51  Access.

    Access, when used in reference to parking or loading, means both 
ingress and egress.



Sec. 910.52  Buildable area.

    Buildable area means that portion of the established development 
parcel which can be devoted to buildings and structures. Generally, this 
area is bounded by any applicable building restriction lines, right-of-
way lines and development parcel lines. It shall be the buildable area 
of a development parcel rather than ``lot,'' as it is established in the 
DC Zoning Regulations, that will be utilized to establish the maximum 
gross floor area of a development within specified portions of the 
Development Area.



Sec. 910.53  Building restriction line.

    Building restriction line means a line beyond which an exterior wall 
of any building of a development may not be constructed or project, 
except that architectural articulation, minor architectural 
embellishments, and subsurface projections are permitted.



Sec. 910.54  Build-to height.

    Build-to height means a specified minimum height of development to 
which the exterior wall of a building in a development must rise. Minor 
deviations from the build-to height for architectural embellishments and 
articulations of the cornice and roof level are permitted, unless 
otherwise prohibited by the applicable Square Guidelines or the

[[Page 198]]

District of Columbia's codes and regulations.



Sec. 910.55  Build-to line.

    Build-to line means a line with which the exterior wall of a 
building in a development is required to coincide. Minor deviations from 
the build-to line for such architectural features as weather protection, 
recesses, niches, ornamental projections, entrance bays, or other 
articulations of the facade are permitted, unless otherwise prohibited 
by the applicable Square Guidelines or the District of Columbia's codes 
and regulations.



Sec. 910.56  Coordinated planning area.

    Coordinated planning area means a Square, portion of a Square, or 
group of Squares that is composed of one or more development parcels and 
is treated as a unit under Square Guidelines in order to achieve 
comprehensive planning and design.



Sec. 910.57  Curb-cut.

    Curb-cut means that portion of the curb and sidewalk over which 
vehicular access is allowed. The number of access lanes for each curb-
cut shall be specified in each set of Square Guidelines.



Sec. 910.58  Development.

    Development means a structure, including a building, planned unit 
development, or project resulting from the process of planning, land 
acquisition, demolition, construction, or rehabilitation consistent with 
the objectives and goals of the Plan.



Sec. 910.59  Development parcel.

    Development parcel means an area of land established by the 
Corporation to be a minimum site on which a development may occur under 
the Plan and any applicable Square Guidelines adopted by the 
Corporation. A development parcel does not need to be under the 
ownership of a single individual or entity. A proposal for a development 
parcel may be formulated by any number of individuals or entities, so 
long as it accommodates the needs and requirements of affirmative 
action, historic preservation and other policies of the Corporation, and 
at the same time responds to the goals of comprehensive planning and 
design for that particular coordinated planning area.



Sec. 910.60  Gross floor area.

    Gross floor area is defined in section 1201, Zoning Regulations of 
the District of Columbia and generally means the sum of the gross 
horizontal areas of the several floors from the ground floor up of all 
buildings of a development occurring on a lot. Gross floor area shall be 
measured from the exterior faces of exterior walls and from the center 
line of walls separating two buildings.



Sec. 910.61  Height of development.

    Height of development means the vertical distance measured from a 
specified point at the curb level to the highest point of the roof or 
parapet of the development, whichever is higher, exclusive of all roof 
structures except as otherwise specified.



Sec. 910.62  The Plan.

    The Plan means The Pennsylvania Avenue Plan--1974, as amended, and 
prepared pursuant to Pub. L. 92-578, 86 Stat. 1266 (40 U.S.C. 871), and 
the document which sets forth the development concepts upon which this 
part 910 and Square Guidelines are based.



Sec. 910.63  Rehabilitation.

    Rehabilitation means the process of adapting improvements on real 
property to make possible an efficient contemporary use achieved by 
means of a combination of construction, repair, or alteration, as well 
as restoration and replication of those portions and features of the 
property that are significant to its historic, architectural, and 
cultural values, consistent with the goals and objectives of the Plan.



Sec. 910.64  Replication.

    Replication means the process of using modern methods and materials 
to reproduce the exact form and details of a vanished building, 
structure, object, or portion thereof, as it appeared at a particular 
period of time, and consistent with the objectives and goals of the 
Plan.

[[Page 199]]



Sec. 910.65  Restoration.

    Restoration means the process of accurately recovering the form and 
details of a property as they appeared at a particular period of time by 
means of removal of later work and the replacement of missing original 
work, consistent with the objectives and goals of the Plan.



Sec. 910.66  Sidewalk setback.

    Sidewalk setback means that area between a building restriction line 
and the right-of-way of a street into which projections except 
architectural articulations, minor architectural embellishments, and 
subsurface structures, are prohibited. The area is to be dedicated to 
open space activities related to the public improvements program of the 
Pennsylvania Avenue Development Corporation. Subsurface structures may 
intrude into the area if they are in compliance with the Square 
Guidelines.



Sec. 910.67  Square guidelines.

    Square Guidelines establish the Corporation's specific intent with 
regard to design and development objectives relative to each individual 
coordinated planning area.



Sec. 910.68  Storefront.

    Storefront means the street level frontage relating to a single 
establishment.



Sec. 910.69  Structural bay.

    Structural bay means the distance or span from one vertical 
structural member fronting on a street to the immediately adjacent 
vertical structural member fronting on the same street.



Sec. 910.70  Vault.

    A vault means an enclosure of space beneath the surface of the 
public space or sidewalk setback, except that the term vault shall not 
include public utility structures.



Sec. 910.71  Weather protection.

    Weather protection means a seasonal or permanent shelter to protect 
pedestrians from sun or precipitation, consisting of arcades, canopies, 
awnings, or other coverings.

                        PARTS 911-999 [RESERVED]

[[Page 201]]



                        CHAPTER X--PRESIDIO TRUST




  --------------------------------------------------------------------
Part                                                                Page
1001            General provisions..........................         203
1002            Resource protection, public use and 
                    recreation..............................         208
1004            Vehicles and traffic safety.................         221
1005            Commercial and private operations...........         225
1007            Requests under the Freedom of Information 
                    Act.....................................         228
1008            Requests under the Privacy Act..............         237
1009            Administrative claims under the Federal Tort 
                    Claims Act..............................         246
1010            Environmental quality.......................         248
1011            Debt collection.............................         256

[[Page 203]]



PART 1001_GENERAL PROVISIONS--Table of Contents




Sec.
1001.1 Purpose.
1001.2 Applicability and scope.
1001.3 Penalties.
1001.4 Definitions.
1001.5 Closures and public use limits.
1001.6 Permits.
1001.7 Public notice.
1001.8 Information collection.
1001.10 Symbolic signs.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).

    Source: 63 FR 35697, June 30, 1998, unless otherwise noted.



Sec. 1001.1  Purpose.

    (a) The regulations in this chapter provide for the proper use, 
management, government and protection of persons, property and natural 
and cultural resources within the area under the jurisdiction of the 
Presidio Trust.
    (b) The regulations in this chapter will be utilized to fulfill the 
statutory purposes of the Presidio Trust Act.



Sec. 1001.2  Applicability and scope.

    (a) The regulations contained in this chapter apply to all persons 
entering, using, visiting, or otherwise within the boundaries of 
federally owned lands and waters administered by the Presidio Trust.
    (b) The regulations contained in Parts 1002, 1004 and 1005 of this 
chapter shall not be construed to prohibit administrative activities 
conducted by the Presidio Trust, or its agents, in accordance with 
approved policies of the Presidio Trust, or in emergency operations 
involving threats to life, property, or resources of the area 
administered by the Presidio Trust.
    (c) The regulations in this chapter are intended to treat a 
mobility-impaired person using a manual or motorized wheelchair as a 
pedestrian and are not intended to restrict the activities of such a 
person beyond the degree that the activities of a pedestrian are 
restricted by the same regulations.



Sec. 1001.3  Penalties.

    A person convicted of violating a provision of the regulations 
contained in Parts 1001, 1002, 1004 and 1005 of this chapter, within the 
area administered by the Presidio Trust, shall be punished by a fine as 
provided by law, or by imprisonment not exceeding 6 months, or both, and 
shall be adjudged to pay all costs of the proceedings.



Sec. 1001.4  Definitions.

    The following definitions shall apply to this chapter, unless 
modified by the definitions for a specific part or regulation:
    Abandonment means the voluntary relinquishment of property with no 
intent to retain possession.
    Administrative activities means those activities conducted under the 
authority of the Presidio Trust for the purpose of safeguarding persons 
or property, implementing management plans and policies developed in 
accordance and consistent with the regulations in this chapter, or 
repairing or maintaining government facilities.
    Airboat means a vessel that is supported by the buoyancy of its hull 
and powered by a propeller or fan above the waterline. This definition 
should not be construed to mean a ``hovercraft,'' that is supported by a 
fan-generated air cushion.
    Aircraft means a device that is used or intended to be used for 
human flight in the air, including powerless flight.
    Archeological resource means material remains of past human life or 
activities that are of archeological interest and are at least 50 years 
of age. This term includes, but shall not be limited to, objects made or 
used by humans, such as pottery, basketry, bottles, weapons, weapon 
projectiles, tools, structures or portions of structures, pit houses, 
rock paintings, rock carvings, intaglios, or any portion or piece of the 
foregoing items, and the physical site, location or context in which 
they are found, or human skeletal materials or graves.
    Authorized emergency vehicle means a vehicle in official use for 
emergency purposes by a Federal agency or an emergency vehicle as 
defined by State law.
    Authorized person means an employee or agent of the Presidio Trust 
with delegated authority to enforce the provisions of this chapter.
    Bicycle means every device propelled solely by human power upon 
which a

[[Page 204]]

person or persons may ride on land, having one, two, or more wheels, 
except a manual wheelchair.
    Board means the Board of Directors of the Presidio Trust or its 
designee.
    Boundary means the limits of lands or waters administered by the 
Presidio Trust as specified by Congress, or denoted by presidential 
proclamation, or recorded in the records of a state or political 
subdivision in accordance with applicable law, or published pursuant to 
law, or otherwise published or posted by the Presidio Trust.
    Camping means the erecting of a tent or shelter of natural or 
synthetic material, preparing a sleeping bag or other bedding material 
for use, parking of a motor vehicle, motor home or trailer, or mooring 
of a vessel for the apparent purpose of overnight occupancy.
    Carry means to wear, bear, or have on or about the person.
    Controlled substance means a drug or other substance, or immediate 
precursor, included in schedules I, II, III, IV, or V of part B of the 
Controlled Substance Act (21 U.S.C. 812) or a drug or substance added to 
these schedules pursuant to the terms of the Act.
    Cultural resource means material remains of past human life or 
activities that are of significant cultural interest and are less than 
50 years of age. This term includes, but shall not be limited to, 
objects made or used by humans, such as pottery, basketry, bottles, 
weapons, weapon projectiles, tools, structures or portions of 
structures, or any portion or piece of the foregoing items, and the 
physical site, location, or context in which they are found, or human 
skeletal materials or graves.
    Developed area means roads, parking areas, picnic areas, 
campgrounds, or other structures, facilities or lands located within 
development and historic zones depicted on the land management and use 
map for the area administered by the Presidio Trust.
    Downed aircraft means an aircraft that cannot become airborne as a 
result of mechanical failure, fire, or accident.
    Executive Director means the Executive Director of the Presidio 
Trust or his or her designee.
    Firearm means a loaded or unloaded pistol, rifle, shotgun or other 
weapon which is designed to, or may be readily converted to, expel a 
projectile by the ignition of a propellant.
    Fish means any member of the subclasses Agnatha, Chondrichthyes, or 
Osteichthyes, or any mollusk or crustacean found in salt water.
    Fishing means taking or attempting to take fish.
    Hunting means taking or attempting to take wildlife, except 
trapping.
    Legislative jurisdiction means lands and waters under the exclusive 
or concurrent jurisdiction of the United States.
    Manual wheelchair means a device that is propelled by human power, 
designed for and used by a mobility-impaired person.
    Motor vehicle means every vehicle that is self-propelled and every 
vehicle that is propelled by electric power, but not operated on rails 
or upon water, except a snowmobile and a motorized wheelchair.
    Motorcycle means every motor vehicle having a seat for the use of 
the rider and designed to travel on not more than three wheels in 
contact with the ground, but excluding a tractor.
    Motorized wheelchair means a self-propelled wheeled device, designed 
solely for and used by a mobility-impaired person for locomotion, that 
is both capable of and suitable for use in indoor pedestrian areas.
    Net means a seine, weir, net wire, fish trap, or other implement 
designed to entrap fish, except a hand-held landing net used to retrieve 
fish taken by hook and line.
    Nondeveloped area means all lands and waters within the area 
administered by the Presidio Trust other than developed areas.
    Operator means a person who operates, drives, controls, otherwise 
has charge of or is in actual physical control of a mechanical mode of 
transportation or any other mechanical equipment.
    Pack animal means horses, burros, mules or other hoofed mammals when 
designated as pack animals by the Executive Director.
    Permit means a written authorization to engage in uses or activities 
that are otherwise prohibited, restricted, or regulated.

[[Page 205]]

    Person means an individual, firm, corporation, society, association, 
partnership, or private or public body.
    Pet means a dog, cat or any animal that has been domesticated.
    Possession means exercising direct physical control or dominion, 
with or without ownership, over property, or archeological, cultural or 
natural resources.
    Practitioner means a physician, dentist, veterinarian, scientific 
investigator, pharmacy, hospital or other person licensed, registered or 
otherwise permitted by the United States or the jurisdiction in which 
such person practices to distribute or possess a controlled substance in 
the course of professional practice.
    Presidio Trust and Trust mean the wholly-owned federal government 
corporation created by the Presidio Trust Act.
    Presidio Trust Act means Title I of Public Law 104-333, 110 Stat. 
4097, as the same may be amended.
    Presidio Trust road means the main-traveled surface of a roadway 
open to motor vehicles, owned, controlled or otherwise administered by 
the Presidio Trust.
    Printed matter means message-bearing textual printed material such 
as books, pamphlets, magazines and leaflets and does not include other 
forms of merchandise, such as posters, coffee mugs, sunglasses, audio or 
videotapes, T-shirts, hats, ties, shorts and other clothing articles.
    Public use limit means the number of persons; number and type of 
animals; amount, size and type of equipment, vessels, mechanical modes 
of conveyance, or food/beverage containers allowed to enter, be brought 
into, remain in, or be used within a designated geographic area or 
facility; or the length of time a designated geographic area or facility 
may be occupied.
    Refuse means trash, garbage, rubbish, waste papers, bottles or cans, 
debris, litter, oil, solvents, liquid waste, or other discarded 
materials.
    Services means, but is not limited to, meals and lodging, labor, 
professional services, transportation, admission to exhibits, use of 
telephone or other utilities, or any act for which payment is 
customarily received.
    Smoking means the carrying of lighted cigarettes, cigars or pipes, 
or the intentional and direct inhalation of smoke from these objects.
    Snowmobile means a self-propelled vehicle intended for travel 
primarily on snow, having a curb weight of not more than 1000 pounds 
(450 kg), driven by a track or tracks in contact with the snow, and 
steered by a ski or skis in contact with the snow.
    State means a State, territory, or possession of the United States.
    State law means the applicable and nonconflicting laws, statutes, 
regulations, ordinances, infractions and codes of the State(s) and 
political subdivision(s) within whose exterior boundaries the area 
administered by the Presidio Trust or a portion thereof is located.
    Take or taking means to pursue, hunt, harass, harm, shoot, trap, 
net, capture, collect, kill, wound, or attempt to do any of the 
aforementioned.
    Traffic means pedestrians, ridden or herded animals, vehicles and 
other conveyances, either singly or together while using any road, 
trail, street or other thoroughfare for purpose of travel.
    Traffic control device means a sign, signal, marking or other device 
placed or erected by, or with the concurrence of, the Executive Director 
for the purpose of regulating, warning, guiding or otherwise controlling 
traffic or regulating the parking of vehicles.
    Trap means a snare, trap, mesh, wire or other implement, object or 
mechanical device designed to entrap or kill animals other than fish.
    Trapping means taking or attempting to take wildlife with a trap.
    Underway means when a vessel is not at anchor, moored, made fast to 
the shore or docking facility, or aground.
    Unloaded, as applied to weapons and firearms, means that:
    (1) There is no unexpended shell, cartridge, or projectile in any 
chamber or cylinder of a firearm or in a clip or magazine inserted in or 
attached to a firearm;
    (2) A muzzle-loading weapon does not contain gun powder in the pan, 
or the percussion cap is not in place; and
    (3) Bows, crossbows, spear guns or any implement capable of 
discharging

[[Page 206]]

a missile or similar device by means of a loading or discharging 
mechanism, when that loading or discharging mechanism is not charged or 
drawn.
    Vehicle means every device in, upon, or by which a person or 
property is or may be transported or drawn on land, except snowmobiles 
and devices moved by human power or used exclusively upon stationary 
rails or track.
    Vessel means every type or description of craft, other than a 
seaplane on the water, used or capable of being used as a means of 
transportation on water, including a buoyant device permitting or 
capable of free flotation.
    Weapon means a firearm, compressed gas or spring-powered pistol or 
rifle, bow and arrow, crossbow, blowgun, speargun, hand-thrown spear, 
slingshot, irritant gas device, explosive device, or any other implement 
designed to discharge missiles, and includes a weapon the possession of 
which is prohibited under the laws of the State in which the area 
administered by the Presidio Trust or portion thereof is located.
    Wildlife means any member of the animal kingdom and includes a part, 
product, egg or offspring thereof, or the dead body or part thereof, 
except fish.



Sec. 1001.5  Closures and public use limits.

    (a) Consistent with applicable legislation and Federal 
administrative policies, and based upon a determination that such action 
is necessary for the maintenance of public health and safety, protection 
of environmental or scenic values, protection of natural or cultural 
resources, aid to scientific research, implementation of management 
responsibilities, equitable allocation and use of facilities, or the 
avoidance of conflict among visitor use activities, the Board may:
    (1) Establish, for all or a portion of the area administered by the 
Presidio Trust, a reasonable schedule of visiting hours, impose public 
use limits, or close all or a portion of the area administered by the 
Presidio Trust to all public use or to a specific use or activity.
    (2) Designate areas for a specific use or activity, or impose 
conditions or restrictions on a use or activity.
    (3) Terminate a restriction, limit, closure, designation, condition, 
or visiting hour restriction imposed under paragraph (a)(1) or (2) of 
this section.
    (b) Except in emergency situations, a closure, designation, use or 
activity restriction or condition, or the termination or relaxation of 
such, which is of a nature, magnitude and duration that will result in a 
significant alteration in the public use pattern of the area 
administered by the Presidio Trust, adversely affect the natural, 
aesthetic, scenic or cultural values of the area administered by the 
Presidio Trust, require a long-term or significant modification in the 
resource management objectives of the area administered by the Presidio 
Trust, or is of a highly controversial nature, shall be published as 
rulemaking in the Federal Register.
    (c) Except in emergency situations, prior to implementing or 
terminating a restriction, condition, public use limit or closure, the 
Board shall prepare a written determination justifying the action. That 
determination shall set forth the reason(s) the restriction, condition, 
public use limit or closure authorized by paragraph (a) of this section 
has been established, and an explanation of why less restrictive 
measures will not suffice, or in the case of a termination of a 
restriction, condition, public use limit or closure previously 
established under paragraph (a) of this section, a determination as to 
why the restriction is no longer necessary and a finding that the 
termination will not adversely impact resources of the area administered 
by the Presidio Trust. This determination shall be available to the 
public upon request.
    (d) To implement a public use limit, the Board may establish a 
permit, registration, or reservation system. Permits shall be issued in 
accordance with the criteria and procedures of Sec. 1001.6.
    (e) Except in emergency situations, the public will be informed of 
closures, designations, and use or activity restrictions or conditions, 
visiting hours, public use limits, public use limit procedures, and the 
termination or relaxation of such, in accordance with Sec. 1001.7.
    (f) Violating a closure, designation, use or activity restriction or 
condition,

[[Page 207]]

schedule of visiting hours, or public use limit is prohibited.



Sec. 1001.6  Permits.

    (a) When authorized by regulations set forth in this chapter, the 
Executive Director may issue a permit to authorize an otherwise 
prohibited or restricted activity or impose a public use limit. The 
activity authorized by a permit shall be consistent with applicable 
legislation, Federal regulations and administrative policies, and based 
upon a determination that public health and safety, environmental or 
scenic values, natural or cultural resources, scientific research, 
implementation of management responsibilities, proper allocation and use 
of facilities, or the avoidance of conflict among visitor use activities 
will not be adversely impacted.
    (b) Except as otherwise provided, application for a permit shall be 
submitted to the Executive Director during normal business hours.
    (c) The public will be informed of the existence of a permit 
requirement in accordance with Sec. 1001.7.
    (d) Unless otherwise provided for by the regulations in this 
chapter, the Executive Director shall deny a permit that has been 
properly applied for only upon a determination that the designated 
capacity for an area or facility would be exceeded; or that one or more 
of the factors set forth in paragraph (a) of this section would be 
adversely impacted. The basis for denial shall be provided to the 
applicant upon request.
    (e) The Executive Director shall include in a permit the terms and 
conditions that the Executive Director deems necessary to protect 
resources of the area administered by the Presidio Trust or public 
safety and may also include terms or conditions established pursuant to 
the authority of any other section of this chapter.
    (f) A compilation of those activities requiring a permit shall be 
maintained by the Executive Director and available to the public upon 
request.
    (g) The following are prohibited:
    (1) Engaging in an activity subject to a permit requirement imposed 
pursuant to this section without obtaining a permit; or
    (2) Violating a term or condition of a permit issued pursuant to 
this section.
    (h) Violating a term or condition of a permit issued pursuant to 
this section may also result in the suspension or revocation of the 
permit by the Executive Director.



Sec. 1001.7  Public notice.

    (a) Whenever the authority of Sec. 1001.5(a) is invoked to restrict 
or control a public use or activity, to relax or revoke an existing 
restriction or control, to designate all or a portion of the area 
administered by the Presidio Trust as open or closed, or to require a 
permit to implement a public use limit, the public shall be notified by 
one or more of the following methods:
    (1) Signs posted at conspicuous locations, such as normal points of 
entry and reasonable intervals along the boundary of the affected 
locale.
    (2) Maps available in the office of the Presidio Trust and other 
places convenient to the public.
    (3) Publication in a newspaper of general circulation in the 
affected area.
    (4) Other appropriate methods, such as the removal of closure signs, 
use of electronic media, brochures, maps and handouts.
    (b) In addition to the above-described notification procedures, the 
Board shall compile in writing all the designations, closures, permit 
requirements and other restrictions imposed under discretionary 
authority. This compilation shall be updated annually and made available 
to the public upon request.



Sec. 1001.8  Information collection.

    The information collection requirements contained in 36 CFR 1001.5, 
1002.5, 1002.10, 1002.12, 1002.17, 1002.33, 1002.38, 1002.50, 1002.51, 
1002.52, 1002.60, 1002.61, 1002.62, 1004.4 and 1004.11 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq., and assigned clearance number 1024-0026. This information is being 
collected to provide the Executive Director data necessary to issue 
permits for special uses of the area administered by the Presidio Trust 
and to obtain notification of accidents that occur within the area 
administered by the Presidio Trust. This information will be used to 
grant administrative benefits

[[Page 208]]

and to facilitate prompt emergency response to accidents. In 36 CFR 
1002.33 and 1004.4, the obligation to respond is mandatory; in all other 
sections the obligation to respond is required in order to obtain a 
benefit.



Sec. 1001.10  Symbolic signs.

    (a) The signs pictured in 36 CFR 1.10 provide general information 
and regulatory guidance in the area administered by the Presidio Trust. 
Certain of the signs designate activities that are either allowed or 
prohibited. Activities symbolized by a sign bearing a slash mark are 
prohibited.
    (b) The use of other types of signs not herein depicted is not 
precluded.



PART 1002_RESOURCE PROTECTION, PUBLIC USE AND RECREATION--Table of Contents




Sec.
1002.1 Preservation of natural, cultural and archeological resources.
1002.2 Wildlife protection.
1002.3 Fishing.
1002.4 Weapons, traps and nets.
1002.5 Research specimens.
1002.10 Camping and food storage.
1002.11 Picnicking.
1002.12 Audio disturbances.
1002.13 Fires.
1002.14 Sanitation and refuse.
1002.15 Pets.
1002.16 Horses and pack animals.
1002.17 Aircraft and air delivery.
1002.18 Snowmobiles.
1002.19 Winter activities.
1002.20 Skating, skateboards and similar devices.
1002.21 Smoking.
1002.22 Property.
1002.23 Recreation fees.
1002.30 Misappropriation of property and services.
1002.31 Trespassing, tampering and vandalism.
1002.32 Interfering with agency functions.
1002.33 Report of injury or damage.
1002.34 Disorderly conduct.
1002.35 Alcoholic beverages and controlled substances.
1002.36 Gambling.
1002.37 Noncommercial soliciting.
1002.38 Explosives.
1002.50 Special events.
1002.51 Public assemblies, meetings.
1002.52 Sale or distribution of printed matter.
1002.60 Livestock use and agriculture.
1002.61 Residing on Federal lands.
1002.62 Memorialization.
1002.63 Boating and water use activities.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).

    Source: 63 FR 35700, June 30, 1998, unless otherwise noted.



Sec. 1002.1  Preservation of natural, cultural and archeological resources.

    (a) Except as otherwise provided in this chapter, the following is 
prohibited:
    (1) Possessing, destroying, injuring, defacing, removing, digging, 
or disturbing from its natural state:
    (i) Living or dead wildlife or fish, or the parts or products 
thereof, such as antlers or nests.
    (ii) Plants or the parts or products thereof.
    (iii) Nonfossilized and fossilized paleontological specimens, 
cultural or archeological resources, or the parts thereof.
    (iv) A mineral resource or cave formation or the parts thereof.
    (2) Introducing wildlife, fish or plants, including their 
reproductive bodies, into an ecosystem within the area administered by 
the Presidio Trust.
    (3) Tossing, throwing or rolling rocks or other items inside caves 
or caverns, into valleys, canyons, or caverns, down hillsides or 
mountainsides, or into thermal features.
    (4) Using or possessing wood gathered from within the area 
administered by the Presidio Trust: Provided, however, that the Board 
may designate areas where dead wood on the ground may be collected for 
use as fuel for campfires within the area administered by the Presidio 
Trust.
    (5) Walking on, climbing, entering, ascending, descending, or 
traversing an archeological or cultural resource, monument, or statue, 
except in designated areas and under conditions established by the 
Board.
    (6) Possessing, destroying, injuring, defacing, removing, digging, 
or disturbing a structure or its furnishing or fixtures, or other 
cultural or archeological resources.
    (7) Possessing or using a mineral or metal detector, magnetometer, 
side

[[Page 209]]

scan sonar, other metal detecting device, or subbottom profiler. This 
paragraph does not apply to:
    (i) A device broken down and stored or packed to prevent its use 
while in the area administered by the Presidio Trust.
    (ii) Electronic equipment used primarily for the navigation and safe 
operation of boats and aircraft.
    (iii) Mineral or metal detectors, magnetometers, or subbottom 
profilers used for authorized scientific, mining, or administrative 
activities.
    (b) The Board may restrict hiking or pedestrian use to a designated 
trail or walkway system pursuant to Sec. Sec. 1001.5 and 1001.7 of this 
chapter. Leaving a trail or walkway to shortcut between portions of the 
same trail or walkway, or to shortcut to an adjacent trail or walkway in 
violation of designated restrictions is prohibited.
    (c)(1) The Board may designate certain fruits, berries, nuts, or 
unoccupied seashells which may be gathered by hand for personal use or 
consumption upon a written determination that the gathering or 
consumption will not adversely affect wildlife, the reproductive 
potential of a plant species, or otherwise adversely affect the 
resources of the area administered by the Presidio Trust.
    (2) The Board may:
    (i) Limit the size and quantity of the natural products that may be 
gathered or possessed for this purpose; or
    (ii) Limit the location where natural products may be gathered; or
    (iii) Restrict the possession and consumption of natural products to 
the area administered by the Presidio Trust.
    (3) The following are prohibited:
    (i) Gathering or possessing undesignated natural products.
    (ii) Gathering or possessing natural products in violation of the 
size or quantity limits designated by the Board.
    (iii) Unauthorized removal of natural products from the area 
administered by the Presidio Trust.
    (iv) Gathering natural products outside of designated areas.
    (v) Sale or commercial use of natural products.
    (d) This section shall not be construed as authorizing the taking, 
use or possession of fish, wildlife or plants for ceremonial or 
religious purposes, except where specifically authorized by Federal 
statutory law, treaty rights, or in accordance with Sec. 1002.2 or 
Sec. 1002.3.



Sec. 1002.2  Wildlife protection.

    (a) The following are prohibited:
    (1) The taking of wildlife.
    (2) The feeding, touching, teasing, frightening or intentional 
disturbing of wildlife nesting, breeding or other activities.
    (3) Possessing unlawfully taken wildlife or portions thereof.
    (b) Hunting and trapping. Hunting and trapping are prohibited within 
the area administered by the Presidio Trust.
    (c) The Board may establish conditions and procedures for 
transporting lawfully taken wildlife through the area administered by 
the Presidio Trust. Violation of these conditions and procedures is 
prohibited.
    (d) The Board may designate all or portions of the area administered 
by the Presidio Trust as closed to the viewing of wildlife with an 
artificial light. Use of an artificial light for purposes of viewing 
wildlife in closed areas is prohibited.
    (e) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.3  Fishing.

    Fishing is prohibited within the area administered by the Presidio 
Trust.



Sec. 1002.4  Weapons, traps and nets.

    (a)(1) Except as otherwise provided in this section, the following 
are prohibited:
    (i) Possessing a weapon, trap or net.
    (ii) Carrying a weapon, trap or net.
    (iii) Using a weapon, trap or net.
    (2) Weapons, traps or nets may be carried, possessed or used:
    (i) At designated times and locations in the area administered by 
the Presidio Trust where:
    (A) The taking of wildlife is authorized by law in accordance with 
Sec. 1002.2;

[[Page 210]]

    (B) The taking of fish is authorized by law in accordance with Sec. 
1002.3.
    (ii) Within a residential dwelling. For purposes of this paragraph 
only, the term ``residential dwelling'' means a fixed housing structure 
which is either the principal residence of its occupants, or is occupied 
on a regular and recurring basis by its occupants as an alternate 
residence or vacation home.
    (3) Traps, nets and unloaded weapons may be possessed within a 
temporary lodging or mechanical mode of conveyance when such implements 
are rendered temporarily inoperable or are packed, cased or stored in a 
manner that will prevent their ready use.
    (b) Carrying or possessing a loaded weapon in a motor vehicle, 
vessel or other mode of transportation is prohibited, except that 
carrying or possessing a loaded weapon in a vessel is allowed when such 
vessel is not being propelled by machinery and is used as a shooting 
platform in accordance with Federal and State law.
    (c) The use of a weapon, trap or net in a manner that endangers 
persons or property is prohibited.
    (d) Authorized Federal, State and local law enforcement officers may 
carry firearms in the performance of their official duties.
    (e) The carrying or possessing of a weapon, trap or net in violation 
of applicable Federal and State laws is prohibited.
    (f) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.5  Research specimens.

    (a) Taking plants, fish, wildlife, rocks or minerals except in 
accordance with other regulations of this chapter or pursuant to the 
terms and conditions of a specimen collection permit, is prohibited.
    (b) A specimen collection permit may be issued only to an official 
representative of a reputable scientific or educational institution or a 
State or Federal agency for the purpose of research, baseline 
inventories, monitoring, impact analysis, group study, or museum display 
when the Executive Director determines that the collection is necessary 
to the stated scientific or resource management goals of the institution 
or agency and that all applicable Federal and State permits have been 
acquired, and that the intended use of the specimens and their final 
disposal is in accordance with applicable law and Federal administrative 
policies. A permit shall not be issued if removal of the specimen would 
result in damage to other natural or cultural resources, affect 
adversely environmental or scenic values, or if the specimen is readily 
available outside of the area administered by the Presidio Trust.
    (c) A permit to take an endangered or threatened species listed 
pursuant to the Endangered Species Act, or similarly identified by the 
States, shall not be issued unless the species cannot be obtained 
outside of the area administered by the Presidio Trust and the primary 
purpose of the collection is to enhance the protection or management of 
the species.
    (d) A permit authorizing the killing of plants, fish or wildlife may 
be issued only when the Executive Director approves a written research 
proposal and determines that the collection will not be inconsistent 
with the purposes of the Presidio Trust Act and has the potential for 
conserving and perpetuating the species subject to collection.
    (e) Specimen collection permits shall contain the following 
conditions:
    (1) Specimens placed in displays or collections will bear official 
National Park Service museum labels and their catalog numbers will be 
registered in the National Park Service National Catalog.
    (2) Specimens and data derived from consumed specimens will be made 
available to the public and reports and publications resulting from a 
research specimen collection permit shall be filed with the Executive 
Director.
    (f) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.

[[Page 211]]



Sec. 1002.10  Camping and food storage.

    (a) The Board may require permits, designate sites or areas, and 
establish conditions for camping.
    (b) The following are prohibited:
    (1) Digging or leveling the ground at a campsite.
    (2) Leaving camping equipment, site alterations, or refuse after 
departing from the campsite.
    (3) Camping within 25 feet of a water hydrant or main road, or 
within 100 feet of a flowing stream, river or body of water, except as 
designated.
    (4) Creating or sustaining unreasonable noise between the hours of 
10:00 p.m. and 6:00 a.m., considering the nature and purpose of the 
actor's conduct, impact on visitors or tenants, location, and other 
factors which would govern the conduct of a reasonably prudent person 
under the circumstances.
    (5) The installation of permanent camping facilities.
    (6) Displaying wildlife carcasses or other remains or parts thereof.
    (7) Connecting to a utility system, except as designated.
    (8) Failing to obtain a permit, where required.
    (9) Violating conditions which may be established by the Board.
    (10) Camping outside of designated sites or areas.
    (c) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.
    (d) Food storage. The Board may designate all or a portion of the 
area administered by the Presidio Trust where food, lawfully taken fish 
or wildlife, garbage, and equipment used to cook or store food must be 
kept sealed in a vehicle, or in a camping unit that is constructed of 
solid, non-pliable material, or suspended at least 10 feet above the 
ground and 4 feet horizontally from a post, tree trunk, or other object, 
or shall be stored as otherwise designated. Violation of this 
restriction is prohibited. This restriction does not apply to food that 
is being transported, consumed, or prepared for consumption.



Sec. 1002.11  Picnicking.

    Picnicking is allowed, except in designated areas closed in 
accordance with Sec. 1001.5 of this chapter. The Board may establish 
conditions for picnicking in areas where picnicking is allowed. 
Picnicking in violation of established conditions is prohibited.



Sec. 1002.12  Audio disturbances.

    (a) The following are prohibited:
    (1) Operating motorized equipment or machinery such as an electric 
generating plant, motor vehicle, motorized toy, or an audio device, such 
as a radio, television set, tape deck or musical instrument, in a manner 
that exceeds a noise level of 60 decibels measured on the A-weighted 
scale at 50 feet; or that, if below that level, nevertheless makes noise 
which is unreasonable, considering the nature and purpose of the actor's 
conduct, location, time of day or night, purposes of the Presidio Trust 
Act, impact on visitors or tenants, and other factors that would govern 
the conduct of a reasonably prudent person under the circumstances.
    (2) In developed areas, operating a power saw, except pursuant to 
the terms and conditions of a permit.
    (3) In nondeveloped areas, operating any type of portable motor or 
engine, or device powered by a portable motor or engine, except pursuant 
to the terms and conditions of a permit.
    (4) Operating a public address system, except in connection with a 
public gathering or special event for which a permit has been issued 
pursuant to Sec. 1002.50 or Sec. 1002.51.
    (b) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.



Sec. 1002.13  Fires.

    (a) The following are prohibited:
    (1) Lighting or maintaining a fire, except in designated areas or 
receptacles and under conditions that may be established by the Board.
    (2) Using stoves or lanterns in violation of established 
restrictions.
    (3) Lighting, tending, or using a fire, stove or lantern in a manner 
that threatens, causes damage to, or results

[[Page 212]]

in the burning of property, real property or resources of the area 
administered by the Presidio Trust, or creates a public safety hazard.
    (4) Leaving a fire unattended.
    (5) Throwing or discarding lighted or smoldering material in a 
manner that threatens, causes damage to, or results in the burning of 
property or resources of the area administered by the Presidio Trust, or 
creates a public safety hazard.
    (b) Fires shall be extinguished upon termination of use and in 
accordance with such conditions as may be established by the Board. 
Violation of these conditions is prohibited.
    (c) During periods of high fire danger, the Executive Director may 
close all or a portion of the area administered by the Presidio Trust to 
the lighting or maintaining of a fire.
    (d) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.14  Sanitation and refuse.

    (a) The following are prohibited:
    (1) Disposing of refuse in other than refuse receptacles.
    (2) Using government refuse receptacles or other refuse facilities 
for dumping household, commercial, or industrial refuse, brought as such 
from private or municipal property, except in accordance with conditions 
established by the Executive Director.
    (3) Depositing refuse in the plumbing fixtures or vaults of a toilet 
facility.
    (4) Draining refuse from a trailer or other vehicle, except in 
facilities provided for such purpose.
    (5) Bathing, or washing food, clothing, dishes, or other property at 
public water outlets, fixtures or pools, except at those designated for 
such purpose.
    (6) Polluting or contaminating waters or water courses within the 
area administered by the Presidio Trust.
    (7) Disposing of fish remains on land, or in waters within 200 feet 
of boat docks or designated swimming beaches, or within developed areas, 
except as otherwise designated.
    (8) In developed areas, the disposal of human body waste, except at 
designated locations or in fixtures provided for that purpose.
    (9) In nondeveloped areas, the disposal of human body waste within 
100 feet of a water source, high water mark of a body of water, or a 
campsite, or within sight of a trail, except as otherwise designated.
    (b) The Board may establish conditions concerning the disposal, 
containerization, or carryout of human body waste. Violation of these 
conditions is prohibited.



Sec. 1002.15  Pets.

    (a) The following are prohibited:
    (1) Possessing a pet in a public building, public transportation 
vehicle, or location designated as a swimming beach, or any structure or 
area closed to the possession of pets by the Board. This paragraph shall 
not apply to guide dogs accompanying visually impaired persons or 
hearing ear dogs accompanying hearing-impaired persons.
    (2) Failing to crate, cage, restrain on a leash which shall not 
exceed six feet in length, or otherwise physically confine a pet at all 
times.
    (3) Leaving a pet unattended and tied to an object, except in 
designated areas or under conditions which may be established by the 
Board.
    (4) Allowing a pet to make noise that is unreasonable considering 
location, time of day or night, impact on visitors or tenants, and other 
relevant factors, or that frightens wildlife by barking, howling, or 
making other noise.
    (5) Failing to comply with pet excrement disposal conditions which 
may be established by the Board.
    (b) Pets or feral animals that are running-at-large and observed by 
an authorized person in the act of killing, injuring or molesting 
humans, livestock, or wildlife may be destroyed if necessary for public 
safety or protection of wildlife, livestock, or other resources of the 
area administered by the Presidio Trust.
    (c) Pets running-at-large may be impounded, and the owner may be 
charged reasonable fees for kennel or boarding costs, feed, veterinarian 
fees, transportation costs, and disposal. An

[[Page 213]]

impounded pet may be put up for adoption or otherwise disposed of after 
being held for 72 hours from the time the owner was notified of capture 
or 72 hours from the time of capture if the owner is unknown.
    (d) Pets may be kept by residents of the area administered by the 
Presidio Trust consistent with the provisions of this section and in 
accordance with conditions which may be established by the Board. 
Violation of these conditions is prohibited.
    (e) This section does not apply to dogs used by authorized Federal, 
State and local law enforcement officers in the performance of their 
official duties.



Sec. 1002.16  Horses and pack animals.

    The following are prohibited:
    (a) The use of animals other than those designated as ``pack 
animals'' for purposes of transporting equipment.
    (b) The use of horses or pack animals outside of trails, routes or 
areas designated for their use.
    (c) The use of horses or pack animals on a Presidio Trust road, 
except where such travel is necessary to cross to or from designated 
trails, or areas, or privately owned property, and no alternative trails 
or routes have been designated; or when the road has been closed to 
motor vehicles.
    (d) Free-trailing or loose-herding of horses or pack animals on 
trails, except as designated.
    (e) Allowing horses or pack animals to proceed in excess of a slow 
walk when passing in the immediate vicinity of persons on foot or 
bicycle.
    (f) Obstructing a trail, or making an unreasonable noise or gesture, 
considering the nature and purpose of the actor's conduct, and other 
factors that would govern the conduct of a reasonably prudent person, 
while horses or pack animals are passing.
    (g) Violation of conditions which may be established by the Board 
concerning the use of horses or pack animals.



Sec. 1002.17  Aircraft and air delivery.

    (a) Delivering or retrieving a person or object by parachute, 
helicopter, or other airborne means, except in emergencies involving 
public safety or serious property loss, or pursuant to the terms and 
conditions of a permit, is prohibited.
    (b) The provisions of this section, other than paragraph (c) of this 
section, shall not be applicable to official business of the Federal 
government, or emergency rescues in accordance with the directions of 
the Executive Director, or to landings due to circumstances beyond the 
control of the operator.
    (c)(1) Except as provided in paragraph (c)(3) of this section, the 
owners of a downed aircraft shall remove the aircraft and all component 
parts thereof in accordance with procedures established by the Executive 
Director. In establishing removal procedures, the Executive Director is 
authorized to establish a reasonable date by which aircraft removal 
operations must be complete; determine times and means of access to and 
from the downed aircraft; and specify the manner or method of removal.
    (2) Failure to comply with procedures and conditions established 
under paragraph (c)(1) of this section is prohibited.
    (3) The Executive Director may waive the requirements of paragraph 
(c)(1) of this section or prohibit the removal of downed aircraft, upon 
a determination that the removal of downed aircraft would constitute an 
unacceptable risk to human life; the removal of a downed aircraft would 
result in extensive resource damage; or the removal of a downed aircraft 
is impracticable or impossible.
    (d) The use of aircraft shall be in accordance with regulations of 
the Federal Aviation Administration as found in 14 CFR chapter I.
    (e) The operation or use of hovercraft is prohibited.
    (f) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.
    (g) The use of devices designed to carry persons through the air in 
powerless flight is allowed at times and locations designated by the 
Board, pursuant to the terms and conditions of a permit.

[[Page 214]]



Sec. 1002.18  Snowmobiles.

    The use of snowmobiles is prohibited.



Sec. 1002.19  Winter activities.

    (a) Skiing, snowshoeing, ice skating, sledding, innertubing, 
tobogganing and similar winter sports are prohibited on Presidio Trust 
roads and in parking areas open to motor vehicle traffic, except as 
otherwise designated.
    (b) The towing of persons on skis, sleds, or other sliding devices 
by motor vehicle or snowmobile is prohibited, except in designated areas 
or routes.
    (c) Failure to abide by area designations or activity restrictions 
established under this section is prohibited.



Sec. 1002.20  Skating, skateboards and similar devices.

    Using roller skates, skateboards, roller skis, coasting vehicles, or 
similar devices is prohibited, except in designated areas.



Sec. 1002.21  Smoking.

    (a) The Board may designate a portion of the area administered by 
the Presidio Trust, or all or a portion of a building, structure or 
facility as closed to smoking when necessary to protect resources, 
reduce the risk of fire, or prevent conflicts among visitor use 
activities. Smoking in an area or location so designated is prohibited.
    (b) Smoking is prohibited within all caves and caverns.

[63 FR 35700, June 30, 1998, as amended at 71 FR 10610, Mar. 2, 2006]



Sec. 1002.22  Property.

    (a) The following are prohibited:
    (1) Abandoning property.
    (2) Leaving property unattended for longer than 24 hours, except in 
locations where longer time periods have been designated or in 
accordance with conditions established by the Board.
    (3) Failing to turn in found property to the Executive Director as 
soon as practicable.
    (b) Impoundment of property. (1) Property determined to be left 
unattended in excess of an allowed period of time may be impounded by 
the Executive Director.
    (2) Unattended property that interferes with visitor safety or 
orderly management of the area administered by the Presidio Trust, or 
that presents a threat to resources of the area administered by the 
Presidio Trust may be impounded by the Executive Director at any time.
    (3) Found or impounded property shall be inventoried to determine 
ownership and safeguard personal property.
    (4) The owner of record is responsible and liable for charges to the 
person who has removed, stored, or otherwise disposed of property 
impounded pursuant to this section; or the Executive Director may assess 
the owner reasonable fees for the impoundment and storage of property 
impounded pursuant to this section.
    (c) Disposition of property. (1) Unattended property impounded 
pursuant to this section shall be deemed to be abandoned unless claimed 
by the owner or an authorized representative thereof within 60 days. The 
60-day period shall begin when the rightful owner of the property has 
been notified, if the owner can be identified, or from the time the 
property was placed in the Executive Director's custody, if the owner 
cannot be identified.
    (2) Unclaimed, found property shall be stored for a minimum period 
of 60 days and, unless claimed by the owner or an authorized 
representative thereof, may be claimed by the finder, provided that the 
finder is not an employee of the Presidio Trust. Found property not 
claimed by the owner or an authorized representative or the finder shall 
be deemed abandoned.
    (3) Abandoned property shall be disposed of in accordance with law.
    (4) Property, including real property, located within the area 
administered by the Presidio Trust and owned by a deceased person, shall 
be disposed of in accordance with the laws of the State within whose 
exterior boundaries the property is located.
    (d) The regulations contained in paragraphs (a)(2), (b) and (c) of 
this section apply, regardless of land ownership, on all lands and 
waters within the boundaries of the area administered by the Presidio 
Trust that are under the legislative jurisdiction of the United States.

[63 FR 35700, June 30, 1998, as amended at 71 FR 10610, Mar. 2, 2006]

[[Page 215]]



Sec. 1002.23  Recreation fees.

    (a) Recreation fees shall be charged in the area administered by the 
Presidio Trust to the same extent that recreation fees have been 
established for the Golden Gate National Recreation Area in accordance 
with 36 CFR part 71.
    (b) Entering designated entrance fee areas or using specialized 
sites, facilities, equipment or services, or participating in group 
activities, recreation events, or other specialized recreation uses for 
which recreation fees have been established without paying the required 
fees and possessing the applicable permits is prohibited. Violation of 
the terms and conditions of a permit issued in accordance with this 
section is prohibited and may result in the suspension or revocation of 
the permit.
    (c) The Executive Director may, when in the public interest, 
prescribe periods during which the collection of recreation fees shall 
be suspended.



Sec. 1002.30  Misappropriation of property and services.

    (a) The following are prohibited:
    (1) Obtaining or exercising unlawful possession over the property of 
another with the purpose to deprive the owner of the property.
    (2) Obtaining property or services offered for sale or compensation 
without making payment or offering to pay.
    (3) Obtaining property or services offered for sale or compensation 
by means of deception or a statement of past, present or future fact 
that is instrumental in causing the wrongful transfer of property or 
services, or using stolen, forged, expired, revoked or fraudulently 
obtained credit cards or paying with negotiable paper on which payment 
is refused.
    (4) Concealing unpurchased merchandise on or about the person 
without the knowledge or consent of the seller or paying less than 
purchase price by deception.
    (5) Acquiring or possessing the property of another, with knowledge 
or reason to believe that the property is stolen.
    (b) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.31  Trespassing, tampering and vandalism.

    (a) The following are prohibited:
    (1) Trespassing. Trespassing, entering or remaining in or upon 
property or real property not open to the public, except with the 
express invitation or consent of the person having lawful control of the 
property or real property.
    (2) Tampering. Tampering or attempting to tamper with property or 
real property, or moving, manipulating or setting in motion any of the 
parts thereof, except when such property is under one's lawful control 
or possession.
    (3) Vandalism. Destroying, injuring, defacing, or damaging property 
or real property.
    (b) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.32  Interfering with agency functions.

    (a) The following are prohibited:
    (1) Interference. Threatening, resisting, intimidating, or 
intentionally interfering with a government employee or agent engaged in 
an official duty, or on account of the performance of an official duty.
    (2) Lawful order. Violating the lawful order of a government 
employee or agent authorized to maintain order and control public access 
and movement during fire fighting operations, search and rescue 
operations, wildlife management operations involving animals that pose a 
threat to public safety, law enforcement actions, and emergency 
operations that involve a threat to public safety or resources of the 
area administered by the Presidio Trust, or other activities where the 
control of public movement and activities is necessary to maintain order 
and public safety.
    (3) False information. Knowingly giving a false or fictitious report 
or other

[[Page 216]]

false information to an authorized person investigating an accident or 
violation of law or regulation, or on an application for a permit.
    (4) False Report. Knowingly giving a false report for the purpose of 
misleading a government employee or agent in the conduct of official 
duties, or making a false report that causes a response by the United 
States to a fictitious event.
    (b) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.33  Report of injury or damage.

    (a) A person involved in an incident resulting in personal injury or 
property damage exceeding $300, other than an accident reportable under 
Sec. 1004.4 of this chapter, shall report the incident to the Executive 
Director as soon as possible. This notification does not satisfy 
reporting requirements imposed by applicable State law.
    (b) Failure to report an incident in accordance with paragraph (a) 
of this section is prohibited.



Sec. 1002.34  Disorderly conduct.

    (a) A person commits disorderly conduct when, with intent to cause 
public alarm, nuisance, jeopardy or violence, or knowingly or recklessly 
creating a risk thereof, such person commits any of the following 
prohibited acts:
    (1) Engages in fighting or threatening, or in violent behavior.
    (2) Uses language, an utterance, or gesture, or engages in a display 
or act that is obscene, physically threatening or menacing, or done in a 
manner that is likely to inflict injury or incite an immediate breach of 
the peace.
    (3) Makes noise that is unreasonable, considering the nature and 
purpose of the actor's conduct, location, time of day or night, and 
other factors that would govern the conduct of a reasonably prudent 
person under the circumstances.
    (4) Creates or maintains a hazardous or physically offensive 
condition.
    (b) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.35  Alcoholic beverages and controlled substances.

    (a) Alcoholic beverages. (1) The use and possession of alcoholic 
beverages within the area administered by the Presidio Trust is allowed 
in accordance with the provisions of this section.
    (2) The following are prohibited:
    (i) The sale or gift of an alcoholic beverage to a person under 21 
years of age, except where allowed by State law. In a State where a 
lower minimum age is established, that age limit will apply for purposes 
of this paragraph.
    (ii) The possession of an alcoholic beverage by a person under 21 
years of age, except where allowed by State law. In a State where a 
lower minimum age is established, that age will apply for purposes of 
this paragraph.
    (3)(i) The Board may close all or a portion of a public use area or 
public facility within the area administered by the Presidio Trust to 
the consumption of alcoholic beverages and/or to the possession of a 
bottle, can or other receptacle containing an alcoholic beverage that is 
open, or that has been opened, or whose seal is broken or the contents 
of which have been partially removed. Provided however, that such a 
closure may only be implemented following a determination made by the 
Board that:
    (A) The consumption of an alcoholic beverage or the possession of an 
open container of an alcoholic beverage would be inappropriate 
considering other uses of the location and the purpose for which it is 
maintained or established; or
    (B) Incidents of aberrant behavior related to the consumption of 
alcoholic beverages are of such magnitude that the diligent application 
of the authorities in this section and Sec. Sec. 1001.5 and 1002.34 of 
this chapter, over a reasonable time period, does not alleviate the 
problem.
    (ii) A closure imposed by the Board does not apply to an open 
container of an alcoholic beverage that is stored in

[[Page 217]]

compliance with the provisions of Sec. 1004.14 of this chapter.
    (iii) Violating a closure imposed pursuant to this section is 
prohibited.
    (b) Controlled substances. The following are prohibited:
    (1) The delivery of a controlled substance, except when distribution 
is made by a practitioner in accordance with applicable law. For the 
purposes of this paragraph, delivery means the actual, attempted or 
constructive transfer of a controlled substance whether or not there 
exists an agency relationship.
    (2) The possession of a controlled substance, unless such substance 
was obtained by the possessor directly, or pursuant to a valid 
prescription or order, from a practitioner acting in the course of 
professional practice or otherwise allowed by Federal or State law.
    (c) Presence within the area administered by the Presidio Trust when 
under the influence of alcohol or a controlled substance to a degree 
that may endanger oneself or another person, or damage property or 
resources of the area administered by the Presidio Trust, is prohibited.



Sec. 1002.36  Gambling.

    (a) Gambling in any form, or the operation of gambling devices, is 
prohibited.
    (b) This regulation applies, regardless of land ownership, on all 
lands and waters within the boundaries of the area administered by the 
Presidio Trust that are under the legislative jurisdiction of the United 
States.



Sec. 1002.37  Noncommercial soliciting.

    Soliciting or demanding gifts, money, goods or services is 
prohibited, except pursuant to the terms and conditions of a permit that 
has been issued under Sec. 1002.50, Sec. 1002.51 or Sec. 1002.52.



Sec. 1002.38  Explosives.

    (a) Using, possessing, storing, or transporting explosives, blasting 
agents or explosive materials is prohibited, except pursuant to the 
terms and conditions of a permit. When permitted, the use, possession, 
storage and transportation shall be in accordance with applicable 
Federal and State laws.
    (b) Using or possessing fireworks and firecrackers is prohibited, 
except pursuant to the terms and conditions of a permit or in designated 
areas under such conditions as the Board may establish, and in 
accordance with applicable State law.
    (c) Violation of the conditions established by the Board or of the 
terms and conditions of a permit issued in accordance with this section 
is prohibited and may result in the suspension or revocation of the 
permit.



Sec. 1002.50  Special events.

    (a) Sports events, pageants, regattas, public spectator attractions, 
entertainments, ceremonies, and similar events are allowed: Provided, 
however, There is a meaningful association between the area administered 
by the Presidio Trust and the events, and the observance contributes to 
visitor understanding of the significance of the area administered by 
the Presidio Trust, and a permit therefor has been issued by the 
Executive Director. A permit shall be denied if such activities would:
    (1) Cause injury or damage to resources of the area administered by 
the Presidio Trust; or
    (2) Be contrary to the purposes of the Presidio Trust Act; or
    (3) Unreasonably interfere with interpretive, visitor service, or 
other program activities, or with the administrative activities of the 
Presidio Trust or the National Park Service; or
    (4) Substantially impair the operation of public use facilities or 
services of Presidio Trust concessioners or contractors; or
    (5) Present a clear and present danger to the public health and 
safety; or
    (6) Result in significant conflict with other existing uses.
    (b) An application for such a permit shall set forth the name of the 
applicant, the date, time, duration, nature and place of the proposed 
event, an estimate of the number of persons expected to attend, a 
statement of equipment and facilities to be used, and any other 
information required by the Executive Director. The application shall be 
submitted so as to reach the Executive Director at least 72 hours in 
advance of the proposed event.

[[Page 218]]

    (c) As a condition of permit issuance, the Executive Director may 
require:
    (1) The filing of a bond payable to the Presidio Trust, in an amount 
adequate to cover costs such as restoration, rehabilitation, and cleanup 
of the area used, and other costs resulting from the special event. In 
lieu of a bond, a permittee may elect to deposit cash equal to the 
amount of the required bond.
    (2) In addition to the requirements of paragraph (c)(1) of this 
section, the acquisition of liability insurance in which the United 
States is named as co-insured in an amount sufficient to protect the 
United States.
    (d) The permit may contain such conditions as are reasonably 
consistent with protection and use of the area administered by the 
Presidio Trust for the purposes of the Presidio Trust Act. It may also 
contain reasonable limitations on the equipment used and the time and 
area within which the event is allowed.
    (e) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.

[63 FR 35700, June 30, 1998, as amended at 71 FR 10610, Mar. 2, 2006]



Sec. 1002.51  Public assemblies, meetings.

    (a) Public assemblies, meetings, gatherings, demonstrations, parades 
and other public expressions of views are allowed within the area 
administered by the Presidio Trust, provided a permit therefor has been 
issued by the Executive Director.
    (b) An application for such a permit shall set forth the name of the 
applicant; the date, time, duration, nature and place of the proposed 
event; an estimate of the number of persons expected to attend; a 
statement of equipment and facilities to be used and any other 
information required by the permit application form.
    (c) The Executive Director shall, without unreasonable delay, issue 
a permit on proper application unless:
    (1) A prior application for a permit for the same time and place has 
been made that has been or will be granted and the activities authorized 
by that permit do not reasonably allow multiple occupancy of that 
particular area; or
    (2) It reasonably appears that the event will present a clear and 
present danger to the public health or safety; or
    (3) The event is of such nature or duration that it cannot 
reasonably be accommodated in the particular location applied for, 
considering such things as damage to resources or facilities of the area 
administered by the Presidio Trust, impairment of a protected area's 
atmosphere of peace and tranquillity, interference with program 
activities, or impairment of public use facilities.
    (d) If a permit is denied, the applicant shall be so informed in 
writing, with the reason(s) for the denial set forth.
    (e) The Board shall designate on a map, that shall be available in 
the office of the Presidio Trust, the locations available for public 
assemblies. Locations may be designated as not available only if such 
activities would:
    (1) Cause injury or damage to resources of the area administered by 
the Presidio Trust; or
    (2) Unreasonably impair the atmosphere of peace and tranquillity 
maintained in wilderness, natural, historic or commemorative zones; or
    (3) Unreasonably interfere with interpretive, visitor service, or 
other program activities, or with the administrative activities of the 
Presidio Trust or the National Park Service; or
    (4) Substantially impair the operation of public use facilities or 
services of Presidio Trust concessioners or contractors; or
    (5) Present a clear and present danger to the public health and 
safety.
    (f) The permit may contain such conditions as are reasonably 
consistent with protection and use of the area administered by the 
Presidio Trust for the purposes of the Presidio Trust Act. It may also 
contain reasonable limitations on the equipment used and the time and 
area within which the event is allowed.
    (g) No permit shall be issued for a period in excess of 7 days, 
provided that permits may be extended for like periods, upon a new 
application, unless another applicant has requested use of

[[Page 219]]

the same location and multiple occupancy of that location is not 
reasonably possible.
    (h) It is prohibited for persons engaged in activities covered under 
this section to obstruct or impede pedestrians or vehicles, or harass 
visitors with physical contact.
    (i) A permit may be revoked under any of those conditions, as listed 
in paragraph (c) of this section, that constitute grounds for denial of 
a permit, or for violation of the terms and conditions of the permit. 
Such a revocation shall be made in writing, with the reason(s) for 
revocation clearly set forth, except under emergency circumstances, when 
an immediate verbal revocation or suspension may be made to be followed 
by written confirmation within 72 hours.
    (j) Violation of the terms and conditions of a permit issued in 
accordance with this section may result in the suspension or revocation 
of the permit.

[63 FR 35700, June 30, 1998, as amended at 71 FR 10610, Mar. 2, 2006]



Sec. 1002.52  Sale or distribution of printed matter.

    (a) The sale or distribution of printed matter is allowed within the 
area administered by the Presidio Trust, provided that a permit to do so 
has been issued by the Executive Director, and provided further that the 
printed matter is not solely commercial advertising.
    (b) An application for such a permit shall set forth the name of the 
applicant; the name of the organization (if any); the date, time, 
duration, and location of the proposed sale or distribution; the number 
of participants; and any other information required by the permit 
application form.
    (c) The Executive Director shall, without unreasonable delay, issue 
a permit on proper application unless:
    (1) A prior application for a permit for the same time and location 
has been made that has been or will be granted and the activities 
authorized by that permit do not reasonably allow multiple occupancy of 
the particular area; or
    (2) It reasonably appears that the sale or distribution will present 
a clear and present danger to the public health and safety; or
    (3) The number of persons engaged in the sale or distribution 
exceeds the number that can reasonably be accommodated in the particular 
location applied for, considering such things as damage to resources or 
facilities of the area administered by the Presidio Trust, impairment of 
a protected area's atmosphere of peace and tranquillity, interference 
with program activities, or impairment of public use facilities; or
    (4) The location applied for has not been designated as available 
for the sale or distribution of printed matter; or
    (5) The activity would constitute a violation of an applicable law 
or regulation.
    (d) If a permit is denied, the applicant shall be so informed in 
writing, with the reason(s) for the denial set forth.
    (e) The Board shall designate on a map, which shall be available for 
inspection in the office of the Presidio Trust, the locations within the 
area administered by the Presidio Trust that are available for the sale 
or distribution of printed matter. Locations may be designated as not 
available only if the sale or distribution of printed matter would:
    (1) Cause injury or damage to resources of the area administered by 
the Presidio Trust; or
    (2) Unreasonably impair the atmosphere of peace and tranquillity 
maintained in wilderness, natural, historic, or commemorative zones; or
    (3) Unreasonably interfere with interpretive, visitor service, or 
other program activities, or with the administrative activities of the 
Presidio Trust or the National Park Service; or
    (4) Substantially impair the operation of public use facilities or 
services of Presidio Trust concessioners or contractors; or
    (5) Present a clear and present damage to the public health and 
safety.
    (f) The permit may contain such conditions as are reasonably 
consistent with protection and use of the area administered by the 
Presidio Trust for the purposes of the Presidio Trust Act.

[[Page 220]]

    (g) No permit shall be issued for a period in excess of 14 
consecutive days, provided that permits may be extended for like 
periods, upon a new application, unless another applicant has requested 
use of the same location and multiple occupancy of that location is not 
reasonably possible.
    (h) It is prohibited for persons engaged in the sale or distribution 
of printed matter under this section to obstruct or impede pedestrians 
or vehicles, harass visitors with physical contact or persistent 
demands, misrepresent the purposes or affiliations of those engaged in 
the sale or distribution, or misrepresent whether the printed matter is 
available without cost or donation.
    (i) A permit may be revoked under any of those conditions, as listed 
in paragraph (c) of this section, that constitute grounds for denial of 
a permit, or for violation of the terms and conditions of the permit. 
Such a revocation shall be made in writing, with the reason(s) for 
revocation clearly set forth, except under emergency circumstances, when 
an immediate verbal revocation or suspension may be made, to be followed 
by written confirmation within 72 hours.
    (j) Violation of the terms and conditions of a permit issued in 
accordance with this section may result in the suspension or revocation 
of the permit.



Sec. 1002.60  Livestock use and agriculture.

    (a) The running-at-large, herding, driving across, allowing on, 
pasturing or grazing of livestock of any kind within the area 
administered by the Presidio Trust or the use of such area for 
agricultural purposes is prohibited, except:
    (1) As specifically authorized by Federal statutory law; or
    (2) As required under a reservation of use rights arising from 
acquisition of a tract of land; or
    (3) As designated, when conducted as a necessary and integral part 
of a recreational activity or required in order to maintain a historic 
scene.
    (b) Activities authorized pursuant to any of the exceptions provided 
for in paragraph (a) of this section shall be allowed only pursuant to 
the terms and conditions of a license, permit or lease. Violation of the 
terms and conditions of a license, permit or lease issued in accordance 
with this paragraph is prohibited and may result in the suspension or 
revocation of the license, permit, or lease.
    (c) Impounding of livestock. (1) Livestock trespassing within the 
area administered by the Presidio Trust may be impounded by the 
Executive Director and, if not claimed by the owner within the periods 
specified in this paragraph, shall be disposed of in accordance with 
applicable Federal and State law.
    (2) In the absence of applicable Federal or State law, the livestock 
shall be disposed of in the following manner:
    (i) If the owner is known, prompt written notice of impoundment will 
be served, and in the event of the owner's failure to remove the 
impounded livestock within five (5) days from delivery of such notice, 
it will be disposed of in accordance with this paragraph.
    (ii) If the owner is unknown, disposal of the livestock shall not be 
made until at least fifteen (15) days have elapsed from the date that a 
notice of impoundment is originally published in a newspaper of general 
circulation in the county in which the trespass occurs or, if no such 
newspaper exists, notification is provided by other appropriate means.
    (iii) The owner may redeem the livestock by submitting proof of 
ownership and paying all expenses of the United States for capturing, 
advertising, pasturing, feeding, impounding, and the amount of damage to 
public property injured or destroyed as a result of the trespass.
    (iv) In determining the claim of the government in a livestock 
trespass, the value of forage consumed shall be computed at the 
commercial rates prevailing in the locality for the class of livestock 
found in trespass. The claim shall include the pro rata salary of 
employees for the time spent and the expenses incurred as a result of 
the investigation, reporting, and settlement or prosecution of the 
claim.
    (v) If livestock impounded under this paragraph is offered at public 
sale and no bid is received, or if the highest bid received is less than 
the amount of the

[[Page 221]]

claim of the United States or of the officer's appraised value of the 
livestock, whichever is the lesser amount, such livestock, may be sold 
at private sale for the highest amount obtainable, condemned and 
destroyed, or converted to the use of the United States.



Sec. 1002.61  Residing on Federal lands.

    (a) Residing within the area administered by the Presidio Trust, 
other than on privately owned lands, except pursuant to the terms and 
conditions of a permit, lease or contract, is prohibited.
    (b) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.



Sec. 1002.62  Memorialization.

    (a) The installation of a monument, memorial, tablet, structure, or 
other commemorative installation within the area administered by the 
Presidio Trust without the authorization of the Board is prohibited.
    (b) The scattering of human ashes from cremation is prohibited, 
except pursuant to the terms and conditions of a permit, or in 
designated areas according to conditions which may be established by the 
Board.
    (c) Failure to abide by area designations and established conditions 
is prohibited.
    (d) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.



Sec. 1002.63  Boating and water use activities.

    Swimming, boating and the use of any water vessel are prohibited 
within the area administered by the Presidio Trust.



PART 1004_VEHICLES AND TRAFFIC SAFETY--Table of Contents




Sec.
1004.1 Applicability and scope.
1004.2 State law applicable.
1004.3 Authorized emergency vehicles.
1004.4 Report of motor vehicle accident.
1004.10 Travel on Presidio Trust roads and designated routes.
1004.11 Load, weight and size limits.
1004.12 Traffic control devices.
1004.13 Obstructing traffic.
1004.14 Open container of alcoholic beverage.
1004.15 Safety belts.
1004.20 Right of way.
1004.21 Speed limits.
1004.22 Unsafe operation.
1004.23 Operating under the influence of alcohol or drugs.
1004.30 Bicycles.
1004.31 Hitchhiking.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).

    Source: 63 FR 35708, June 30, 1998, unless otherwise noted.



Sec. 1004.1  Applicability and scope.

    The applicability of the regulations in this part is described in 
Sec. 1001.2 of this chapter. The regulations in this part also apply, 
regardless of land ownership, on all roadways and parking areas within 
the boundaries of the area administered by the Presidio Trust that are 
open to public traffic and that are under the legislative jurisdiction 
of the United States.



Sec. 1004.2  State law applicable.

    (a) Unless specifically addressed by regulations in this chapter, 
traffic and the use of vehicles within the boundaries of the area 
administered by the Presidio Trust are governed by State law. State law 
that is now or may later be in effect is adopted and made a part of the 
regulations in this part.
    (b) Violating a provision of State law is prohibited.



Sec. 1004.3  Authorized emergency vehicles.

    (a) The operator of an authorized emergency vehicle, when responding 
to an emergency or when pursuing or apprehending an actual or suspected 
violator of the law, may:
    (1) Disregard traffic control devices;
    (2) Exceed the speed limit; and
    (3) Obstruct traffic.
    (b) The provisions of paragraph (a) of this section do not relieve 
the operator from the duty to operate with due regard for the safety of 
persons and property.

[[Page 222]]



Sec. 1004.4  Report of motor vehicle accident.

    (a) The operator of a motor vehicle involved in an accident 
resulting in property damage, personal injury or death shall report the 
accident to the Executive Director as soon as practicable, but within 24 
hours of the accident. If the operator is physically incapable of 
reporting the accident, an occupant of the vehicle shall report the 
accident to the Executive Director.
    (b) A person shall not tow or move a vehicle that has been involved 
in an accident without first notifying the Executive Director unless the 
position of the vehicle constitutes a hazard or prior notification is 
not practicable, in which case notification shall be made before the 
vehicle is removed from the area administered by the Presidio Trust.
    (c) Failure to comply with a reporting requirement specified in 
paragraph (a) or (b) of this section is prohibited.
    (d) The notification requirements imposed by this section do not 
relieve the operator and occupants of a motor vehicle involved in an 
accident of the responsibility to satisfy reporting requirements imposed 
by State law.



Sec. 1004.10  Travel on Presidio Trust roads and designated routes.

    (a) Operating a motor vehicle is prohibited except on Presidio Trust 
roads and in parking areas.
    (b) The following are prohibited:
    (1) Operating a motor vehicle not equipped with pneumatic tires, 
except that a track-laying motor vehicle or a motor vehicle equipped 
with a similar traction device may be operated on a route designated for 
these vehicles by the Board.
    (2) Operating a motor vehicle in a manner that causes unreasonable 
damage to the surface of a Presidio Trust road or route.



Sec. 1004.11  Load, weight and size limits.

    (a) Vehicle load, weight and size limits established by State law 
apply to a vehicle operated on a Presidio Trust road. However, the Board 
may designate more restrictive limits when appropriate for traffic 
safety or protection of the road surface. The Board may require a permit 
and establish conditions for the operation of a vehicle exceeding 
designated limits.
    (b) The following are prohibited:
    (1) Operating a vehicle that exceeds a load, weight or size limit 
designated by the Board.
    (2) Failing to obtain a permit when required.
    (3) Violating a term or condition of a permit.
    (4) Operating a motor vehicle with an auxiliary detachable side 
mirror that extends more than 10 inches beyond the side fender line 
except when the motor vehicle is towing a second vehicle.
    (c) Violating a term or condition of a permit may also result in the 
suspension or revocation of the permit by the Executive Director.



Sec. 1004.12  Traffic control devices.

    Failure to comply with the directions of a traffic control device is 
prohibited unless otherwise directed by the Executive Director.



Sec. 1004.13  Obstructing traffic.

    The following are prohibited:
    (a) Stopping or parking a vehicle upon a Presidio Trust road, except 
as authorized by the Executive Director, or in the event of an accident 
or other condition beyond the control of the operator.
    (b) Operating a vehicle so slowly as to interfere with the normal 
flow of traffic.



Sec. 1004.14  Open container of alcoholic beverage.

    (a) Each person within a motor vehicle is responsible for complying 
with the provisions of this section that pertain to carrying an open 
container. The operator of a motor vehicle is the person responsible for 
complying with the provisions of this section that pertain to the 
storage of an open container.
    (b) Carrying or storing a bottle, can or other receptacle containing 
an alcoholic beverage that is open, or has been opened, or whose seal is 
broken or the contents of which have been partially removed, within a 
motor vehicle in the area administered by the Presidio Trust is 
prohibited.
    (c) This section does not apply to:
    (1) An open container stored in the trunk of a motor vehicle or, if 
a motor

[[Page 223]]

vehicle is not equipped with a trunk, to an open container stored in 
some other portion of the motor vehicle designed for the storage of 
luggage and not normally occupied by or readily accessible to the 
operator or passengers; or
    (2) An open container stored in the living quarters of a motor home 
or camper; or
    (3) Unless otherwise prohibited, an open container carried or stored 
in a motor vehicle parked at an authorized campsite where the motor 
vehicle's occupant(s) are camping.
    (d) For the purpose of paragraph (c)(1) of this section, a utility 
compartment or glove compartment is deemed to be readily accessible to 
the operator and passengers of a motor vehicle.



Sec. 1004.15  Safety belts.

    (a) Each operator and passenger occupying any seating position of a 
motor vehicle in the area administered by the Presidio Trust will have 
the safety belt or child restraint system properly fastened at all times 
when the vehicle is in motion. The safety belt and child restraint 
system will conform to applicable United States Department of 
Transportation standards.
    (b) This section does not apply to an occupant in a seat that was 
not originally equipped by the manufacturer with a safety belt nor does 
it apply to a person who can demonstrate that a medical condition 
prevents restraint by a safety belt or other occupant restraining 
device.



Sec. 1004.20  Right of way.

    An operator of a motor vehicle shall yield the right of way to 
pedestrians, saddle and pack animals and vehicles drawn by animals. 
Failure to yield the right of way is prohibited.



Sec. 1004.21  Speed limits.

    (a) Speed limits in the area administered by the Presidio Trust are 
as follows:
    (1) 15 miles per hour: within all school zones, campgrounds, picnic 
areas, parking areas, utility areas, business or residential areas, 
other places of public assemblage and at emergency scenes.
    (2) 25 miles per hour: upon sections of Presidio Trust road under 
repair or construction.
    (3) 45 miles per hour: upon all other Presidio Trust roads.
    (b) The Board may designate a different speed limit upon any 
Presidio Trust road when a speed limit set forth in paragraph (a) of 
this section is determined to be unreasonable, unsafe or inconsistent 
with the purposes of the Presidio Trust Act. Speed limits shall be 
posted by using standard traffic control devices.
    (c) Operating a vehicle at a speed in excess of the speed limit is 
prohibited.
    (d) An authorized person may utilize radiomicrowaves or other 
electrical devices to determine the speed of a vehicle on a Presidio 
Trust road. Signs indicating that vehicle speed is determined by the use 
of radiomicrowaves or other electrical devices are not required.



Sec. 1004.22  Unsafe operation.

    (a) The elements of this section constitute offenses that are less 
serious than reckless driving. The offense of reckless driving is 
defined by State law and violations are prosecuted pursuant to the 
provisions of Sec. 1004.2.
    (b) The following are prohibited:
    (1) Operating a motor vehicle without due care or at a speed greater 
than that which is reasonable and prudent considering wildlife, traffic, 
weather, road and light conditions and road character.
    (2) Operating a motor vehicle in a manner which unnecessarily causes 
its tires to squeal, skid or break free of the road surface.
    (3) Failing to maintain that degree of control of a motor vehicle 
necessary to avoid danger to persons, property or wildlife.
    (4) Operating a motor vehicle while allowing a person to ride:
    (i) On or within any vehicle, trailer or other mode of conveyance 
towed behind the motor vehicle unless specifically designed for carrying 
passengers while being towed; or
    (ii) On any exterior portion of the motor vehicle not designed or 
intended for the use of a passenger. This restriction does not apply to 
a person seated on the floor of a truck bed equipped

[[Page 224]]

with sides, unless prohibited by State law.



Sec. 1004.23  Operating under the influence of alcohol or drugs.

    (a) Operating or being in actual physical control of a motor vehicle 
is prohibited while:
    (1) Under the influence of alcohol, or a drug, or drugs, or any 
combination thereof, to a degree that renders the operator incapable of 
safe operation; or
    (2) The alcohol concentration in the operator's blood or breath is 
0.10 grams or more of alcohol per 100 milliliters of blood or 0.10 grams 
or more of alcohol per 210 liters of breath. Provided however, that if 
State law that applies to operating a motor vehicle while under the 
influence of alcohol establishes more restrictive limits of alcohol 
concentration in the operator's blood or breath, those limits supersede 
the limits specified in this paragraph.
    (b) The provisions of paragraph (a) of this section also apply to an 
operator who is or has been legally entitled to use alcohol or another 
drug.
    (c) Tests. (1) At the request or direction of an authorized person 
who has probable cause to believe that an operator of a motor vehicle 
within the area administered by the Presidio Trust has violated a 
provision of paragraph (a) of this section, the operator shall submit to 
one or more tests of the blood, breath, saliva or urine for the purpose 
of determining blood alcohol and drug content.
    (2) Refusal by an operator to submit to a test is prohibited and 
proof of refusal may be admissible in any related judicial proceeding.
    (3) Any test or tests for the presence of alcohol and drugs shall be 
determined by and administered at the direction of an authorized person.
    (4) Any test shall be conducted by using accepted scientific methods 
and equipment of proven accuracy and reliability operated by personnel 
certified in its use.
    (d) Presumptive levels. (1) The results of chemical or other 
quantitative tests are intended to supplement the elements of probable 
cause used as the basis for the arrest of an operator charged with a 
violation of paragraph (a)(1) of this section. If the alcohol 
concentration in the operator's blood or breath at the time of testing 
is less than alcohol concentrations specified in paragraph (a)(2) of 
this section, this fact does not give rise to any presumption that the 
operator is or is not under the influence of alcohol.
    (2) The provisions of paragraph (d)(1) of this section are not 
intended to limit the introduction of any other competent evidence 
bearing upon the question of whether the operator, at the time of the 
alleged violation, was under the influence of alcohol, or a drug, or 
drugs, or any combination thereof.



Sec. 1004.30  Bicycles.

    (a) The use of a bicycle is prohibited except on Presidio Trust 
roads, in parking areas and on routes designated for bicycle use; 
provided, however, that the Board may close any Presidio Trust road or 
parking area to bicycle use pursuant to the criteria and procedures of 
Sec. Sec. 1001.5 and 1001.7 of this chapter. Routes may only be 
designated for bicycle use based on a written determination that such 
use is consistent with the protection of natural, scenic and aesthetic 
values, safety considerations and management objectives and will not 
disturb wildlife or the resources of the area administered by the 
Presidio Trust.
    (b) Designated bicycle routes. The use of a bicycle is permitted in 
non-developed areas, as follows:
    (1) Bicycle use is permitted on routes which have been designated by 
the Board as bicycle routes by the posting of signs, and as designated 
on maps which are available in the office of the Presidio Trust and 
other places convenient to the public.
    (2) Bicycle speed limits are as follows:
    (i) 15 miles per hour: Upon all designated routes within the area 
administered by the Presidio Trust.
    (ii) 5 miles per hour: On blind curves and when passing other trail 
users.
    (3) The following are prohibited:
    (i) The possession of a bicycle on routes not designated as open to 
bicycle use.
    (ii) Operating a bicycle on designated bicycle routes between sunset 
and sunrise without exhibiting on the bicycle

[[Page 225]]

or on the operator an activated white light that is visible from a 
distance of at least 500 feet to the front and with a red light or 
reflector visible from at least 200 feet to the rear.
    (c) A person operating a bicycle is subject to all sections of this 
part that apply to an operator of a motor vehicle, except Sec. Sec. 
1004.4, 1004.10, 1004.11 and 1004.14.
    (d) The following are prohibited:
    (1) Possessing a bicycle in a wilderness area established by Federal 
statute.
    (2) Operating a bicycle during periods of low visibility, or while 
traveling through a tunnel, or between sunset and sunrise, without 
exhibiting on the operator or bicycle a white light or reflector that is 
visible from a distance of at least 500 feet to the front and with a red 
light or reflector visible from at least 200 feet to the rear.
    (3) Operating a bicycle abreast of another bicycle except where 
authorized by the Executive Director.
    (4) Operating a bicycle while consuming an alcoholic beverage or 
carrying in hand an open container of an alcoholic beverage.



Sec. 1004.31  Hitchhiking.

    Hitchhiking or soliciting transportation is prohibited except in 
designated areas and under conditions established by the Board.



PART 1005_COMMERCIAL AND PRIVATE OPERATIONS--Table of Contents




Sec.
1005.1 Advertisements.
1005.2 Alcoholic beverages; sale of intoxicants.
1005.3 Business operations.
1005.4 Commercial passenger-carrying motor vehicles.
1005.5 Commercial photography.
1005.6 Commercial vehicles.
1005.7 Construction of buildings or other facilities.
1005.8 Discrimination in employment practices.
1005.9 Discrimination in furnishing public accommodations and 
          transportation services.
1005.10-1005.12 [Reserved]
1005.13 Nuisances.
1005.14 Prospecting, mining, and mineral leasing.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).

    Source: 63 FR 35710, June 30, 1998, unless otherwise noted.



Sec. 1005.1  Advertisements.

    Commercial notices or advertisements shall not be displayed, posted, 
or distributed within the area administered by the Presidio Trust unless 
prior written permission has been given by the Executive Director. Such 
permission may be granted only if the notice or advertisement is of 
goods, services, or facilities available within the area administered by 
the Presidio Trust and such notices and advertisements are found by the 
Executive Director to be desirable and necessary for the convenience and 
guidance of the public.



Sec. 1005.2  Alcoholic beverages; sale of intoxicants.

    The sale of alcoholic, spirituous, vinous, or fermented liquor, 
containing more than 1 percent of alcohol by weight, shall conform with 
all applicable Federal, State, and local laws and regulations. (See also 
Sec. 1002.35 of this chapter.)



Sec. 1005.3  Business operations.

    Engaging in or soliciting any business in the area administered by 
the Presidio Trust, except in accordance with the provisions of a 
permit, contract, or other written agreement with the United States, is 
prohibited.



Sec. 1005.4  Commercial passenger-carrying motor vehicles.

    Passenger-carrying motor vehicles that are so large as to require 
special escort in order to proceed safely over Presidio Trust roads, or 
which in the judgment of the Executive Director are beyond the carrying 
capacity or safety factor of the roads, will not be permitted in the 
area administered by the Presidio Trust, except that, where they may 
satisfactorily enter and travel to the Presidio Trust headquarters they 
may be parked there during the period of stay.



Sec. 1005.5  Commercial photography.

    (a) Motion pictures, television. Before any motion picture may be 
filmed or any television production or sound

[[Page 226]]

track may be made, which involves the use of professional casts, 
settings, or crews, by any person other than bona fide newsreel or news 
television personnel, written permission must first be obtained from the 
Executive Director, in accordance with the following:
    (1) Permit required. No picture may be filmed, and no television 
production or sound track made on any area administered by the Presidio 
Trust, by any person other than amateur or bona fide newsreel and news 
television photographers and soundmen, unless written permission has 
been obtained from the Presidio Trust. Applications for permission 
should be submitted to the Executive Director.
    (2) Fees; bonds. (i) No fees will be charged for the making of 
motion pictures, television productions or sound tracks on areas 
administered by the Presidio Trust. The regular general admission and 
other fees currently in effect in any area under the jurisdiction of the 
Presidio Trust are not affected by this paragraph.
    (ii) A bond shall be furnished, or deposit made in cash or by 
certified check, in an amount to be set by the official in charge of the 
area to insure full compliance with all of the conditions prescribed in 
paragraph (a)(4) of this section.
    (3) Approval of application. Permission to make a motion picture, 
television production or sound track on areas administered by the 
Presidio Trust will be granted by the Executive Director in his 
discretion and on acceptance by the applicant of the conditions set 
forth in paragraph (a)(4) of this section.
    (4) Form of application. The following form is prescribed for an 
application for permission to make a motion picture, television 
production, or sound track on areas administered by the Presidio Trust:

Date____________________________________________________________________
    To the Executive Director of the Presidio Trust:
    Permission is requested to make, in the area administered by the 
Presidio Trust, a

________________________________________________________________________
    The scope of the filming (or production or recording) and the manner 
and extent thereof will be as follows:

________________________________________________________________________

________________________________________________________________________

    Weather conditions permitting, work will commence on approximately 
-------------- and will be completed on approximately --------------. 
(An additional sheet should be used if necessary.)
    The undersigned accepts and will comply with the following 
conditions:
    Utmost care will be exercised to see that no natural features are 
injured, and after completion of the work the area will, as required by 
the official in charge, either be cleaned up and restored to its prior 
condition or left, after clean-up, in a condition satisfactory to the 
official in charge.
    Credit will be given to the Presidio Trust through the use of an 
appropriate title or announcement, unless there is issued by the 
official in charge of the area a written statement that no such courtesy 
credit is desired.
    Pictures will be taken of wildlife only when such wildlife will be 
shown in its natural state or under approved management conditions if 
such wildlife is confined.
    Any special instructions received from the official in charge of the 
area will be complied with.
    Any additional information relating to the privilege applied for by 
this application will be furnished upon request of the official in 
charge.

________________________________________________________________________
 (Applicant)

For_____________________________________________________________________
 (Company)

Bond Requirement $______________________________________________________

    Approved:

________________________________________________________________________
 (Date)

________________________________________________________________________
 (Title)

    (b) Still photography. The taking of photographs of any vehicle, or 
other articles of commerce or models for the purpose of commercial 
advertising without a written permit from the Executive Director is 
prohibited.



Sec. 1005.6  Commercial vehicles.

    (a) The term ``Commercial vehicle'' as used in this section shall 
include, but not be limited to trucks, station wagons, pickups, 
passenger cars or other vehicles when used in transporting movable 
property for a fee or profit, either as a direct charge to another 
person, or otherwise, or used as an incident to providing services to 
another person, or used in connection with any business.
    (b) The use of government roads within the area administered by the 
Presidio Trust by commercial vehicles,

[[Page 227]]

when such use is in no way connected with the operation of the area 
administered by the Presidio Trust, is prohibited, except that in 
emergencies the Executive Director may grant permission to use Presidio 
Trust roads.
    (c) The Executive Director shall issue permits for commercial 
vehicles used on Presidio Trust roads when such use is necessary for 
access to private lands situated within or adjacent to the area 
administered by the Presidio Trust, to which access is otherwise not 
available.



Sec. 1005.7  Construction of buildings or other facilities.

    Constructing or attempting to construct a building, or other 
structure, boat dock, road, trail, path, or other way, telephone line, 
telegraph line, power line, or any other private or public utility, 
upon, across, over, through, or under any area administered by the 
Presidio Trust, except in accordance with the provisions of a valid 
permit, contract, or other written agreement with the United States, is 
prohibited.



Sec. 1005.8  Discrimination in employment practices.

    (a) The proprietor, owner, or operator of any hotel, inn, lodge or 
other facility or accommodation offered to or enjoyed by the general 
public within the area administered by the Presidio Trust is prohibited 
from discriminating against any employee or maintaining any employment 
practice which discriminates because of race, creed, color, ancestry, 
sex, age, disabling condition, or national origin in connection with any 
activity provided for or permitted by contract with or permit from the 
Government or by derivative subcontract or sublease. As used in this 
section, the term ``employment'' includes, but is not limited to, 
employment, upgrading, demotion, or transfer; recruitment, or 
recruitment advertising; layoffs or termination; rates of pay or other 
forms of compensation; and selection for training including 
apprenticeship.
    (b) Each such proprietor, owner or operator shall post either the 
following notice or notices supplied in accordance with Executive Order 
11246 at such locations as will ensure that the notice and its contents 
will be conspicuous to any person seeking employment:

                                 Notice

    This is a facility operated in an area under the jurisdiction of the 
Presidio Trust. No discrimination in employment practices on the basis 
of race, creed, color, ancestry, sex, age, disabling condition, or 
national origin is permitted in this facility. Violations of this 
prohibition are punishable by fine, imprisonment, or both. Complaints or 
violations of this prohibition should be addressed to the Executive 
Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-
0052.

    (c) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1005.9  Discrimination in furnishing public accommodations and 

transportation services.

    (a) The proprietor, owner or operator and the employees of any 
hotel, inn, lodge, or other facility or accommodation offered to or 
enjoyed by the general public within the area administered by the 
Presidio Trust and, while using such area, any commercial passenger-
carrying motor vehicle service and its employees, are prohibited from:
    (1) Publicizing the facilities, accommodations or any activity 
conducted therein in any manner that would directly or inferentially 
reflect upon or question the acceptability of any person or persons 
because of race, creed, color, ancestry, sex, age, disabling condition, 
or national origin; or
    (2) Discriminating by segregation or otherwise against any person or 
persons because of race, creed, color, ancestry, sex, age, disabling 
condition, or national origin in furnishing or refusing to furnish such 
person or persons any accommodation, facility, service, or privilege 
offered to or enjoyed by the general public.
    (b) Each such proprietor, owner, or operator shall post the 
following notice at such locations as will insure that the notice and 
its contents will be conspicuous to any person seeking accommodations, 
facilities, services, or privileges:


[[Page 228]]



                                 Notice

    This is a facility operated in an area under the jurisdiction of the 
Presidio Trust. No discrimination by segregation or other means in the 
furnishing of accommodations, facilities, services, or privileges on the 
basis of race, creed, color, ancestry, sex, age, disabling condition or 
national origin is permitted in the use of this facility. Violations of 
this prohibition are punishable by fine, imprisonment, or both. 
Complaints of violations of this prohibition should be addressed to the 
Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, 
CA 94129-0052.

    (c) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. Sec. 1005.10-1005.12  [Reserved]



Sec. 1005.13  Nuisances.

    The creation or maintenance of a nuisance upon the federally owned 
lands of the area administered by the Presidio Trust or upon any private 
lands within the boundaries of the area administered by the Presidio 
Trust under the exclusive legislative jurisdiction of the United States 
is prohibited.



Sec. 1005.14  Prospecting, mining, and mineral leasing.

    Prospecting, mining, and the location of mining claims under the 
general mining laws and leasing under the mineral leasing laws are 
prohibited in the area administered by the Presidio Trust except as 
authorized by law.



PART 1007_REQUESTS UNDER THE FREEDOM OF INFORMATION ACT--Table of Contents




Sec.
1007.1 Purpose and scope.
1007.2 Records available.
1007.3 Requests for records.
1007.4 Preliminary processing of requests.
1007.5 Action on initial requests.
1007.6 Time limits for processing initial requests.
1007.7 Appeals.
1007.8 Action on appeals.
1007.9 Fees.
1007.10 Waiver of fees.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note); 5 
U.S.C. 552; E.O. 12,600, 52 FR 23781, 3 CFR, 1988 Comp., p. 235.

    Source: 63 FR 71774, Dec. 30, 1998, unless otherwise noted.



Sec. 1007.1  Purpose and scope.

    (a) This part contains the procedures for submission to and 
consideration by the Presidio Trust of requests for records under FOIA. 
As used in this part, the term ``FOIA'' means the Freedom of Information 
Act, 5 U.S.C. 552.
    (b) Before invoking the formal procedures set out below, persons 
seeking records from the Presidio Trust may find it useful to consult 
with the Presidio Trust's FOIA Officer, who can be reached at The 
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052, Telephone: 
(415) 561-5300. As used in this part, the term ``FOIA Officer'' means 
the employee designated by the Executive Director to process FOIA 
requests and otherwise supervise the Presidio Trust's compliance with 
FOIA, or the alternate employee so designated to perform these duties in 
the absence of the FOIA Officer.
    (c) The procedures in this part do not apply to:
    (1) Records published in the Federal Register, the Bylaws of the 
Presidio Trust, statements of policy and interpretations, and other 
materials that have been published by the Presidio Trust on its internet 
website (http://www.presidiotrust.gov) or are routinely made available 
for inspection and copying at the requester's expense.
    (2) Records or information compiled for law enforcement purposes and 
covered by the disclosure exemption described in Sec. 1007.2(c)(7) if:
    (i) The investigation or proceeding involves a possible violation of 
criminal law; and
    (ii) There is reason to believe that:
    (A) The subject of the investigation or proceeding is not aware of 
its pendency, and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.
    (3) Informant records maintained by the United States Park Police 
under an

[[Page 229]]

informant's name or personal identifier, if requested by a third party 
according to the informant's name or personal identifier, unless the 
informant's status as an informant has been officially confirmed.



Sec. 1007.2  Records available.

    (a) Policy. It is the policy of the Presidio Trust to make its 
records available to the public to the greatest extent possible 
consistent with the purposes of the Presidio Trust Act and the Freedom 
of Information Act.
    (b) Statutory disclosure requirement. FOIA requires that the 
Presidio Trust, on a request from a member of the public submitted in 
accordance with the procedures in this part, make requested records 
available for inspection and copying.
    (c) Statutory exemptions. Exempted from FOIA's statutory disclosure 
requirement are matters that are:
    (1)(i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and
    (ii) Are in fact properly classified pursuant to such Executive 
order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than the 
Privacy Act), provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings,
    (ii) Would deprive a person of a right to a fair or an impartial 
adjudication,
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy,
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source,
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (d) Decisions on requests. It is the policy of the Presidio Trust to 
withhold information falling within an exemption only if:
    (1) Disclosure is prohibited by statute or Executive order or
    (2) Sound grounds exist for invocation of the exemption.
    (e) Disclosure of reasonably segregable nonexempt material. If a 
requested record contains material covered by an exemption and material 
that is not exempt, and it is determined under the procedures in this 
part to withhold the exempt material, any reasonably segregable 
nonexempt material shall be

[[Page 230]]

separated from the exempt material and released. In such circumstances, 
the records disclosed in part shall be marked or annotated to show both 
the amount and the location of the information deleted wherever 
practicable.



Sec. 1007.3  Requests for records.

    (a) Submission of requests. A request to inspect or copy records 
shall be submitted to the Presidio Trust's FOIA Officer at P.O. Box 
29052, San Francisco, CA 94129-0052.
    (b) Form of requests. (1) Requests under this part shall be in 
writing and must specifically invoke FOIA.
    (2) A request must reasonably describe the records requested. A 
request reasonably describes the records requested if it will enable an 
employee of the Presidio Trust familiar with the subject area of the 
request to locate the record with a reasonable amount of effort. If such 
information is available, the request should identify the subject matter 
of the record, the date when it was made, the place where it was made, 
the person or office that made it, the present custodian of the record, 
and any other information that will assist in locating the requested 
record. If the request involves a matter known by the requester to be in 
litigation, the request should also state the case name and court 
hearing the case.
    (3)(i) A request shall:
    (A) Specify the fee category (commercial use, educational 
institution, noncommercial scientific institution, news media, or other, 
as defined in Sec. 1007.9 of this chapter) in which the requester 
claims the request falls and the basis of this claim; and
    (B) State the maximum amount of fees that the requester is willing 
to pay or include a request for a fee waiver.
    (ii) Requesters are advised that, under Sec. 1007.9 (f), (g) and 
(h), the time for responding to requests may be delayed:
    (A) If a requester has not sufficiently identified the fee category 
applicable to the request;
    (B) If a requester has not stated a willingness to pay fees as high 
as anticipated by the Presidio Trust; or
    (C) If a fee waiver request is denied and the requester has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by the Presidio Trust.
    (4) A request seeking a fee waiver shall, to the extent possible, 
address why the requester believes that the criteria for fee waivers set 
out in Sec. 1007.10 are met.
    (5) To expedite processing, both the envelope containing a request 
and the face of the request should bear the legend ``FREEDOM OF 
INFORMATION REQUEST.''
    (c) Creation of records. A request may seek only records that are in 
existence at the time the request is received. A request may not seek 
records that come into existence after the date on which it is received 
and may not require that new records be created in response to the 
request by, for example, combining or compiling selected items from 
manual files, preparing a new computer program, or calculating 
proportions, percentages, frequency distributions, trends or 
comparisons. In those instances where the Presidio Trust determines that 
creating a new record will be less burdensome than disclosing large 
volumes of unassembled material, the Presidio Trust may, in its 
discretion, agree to creation of a new record as an alternative to 
disclosing existing records.



Sec. 1007.4  Preliminary processing of requests.

    (a) Scope of requests. Unless a request clearly specifies otherwise, 
requests to the Presidio Trust may be presumed to seek only records of 
the Presidio Trust.
    (b) Records of other departments and agencies. (1) If a requested 
record in the possession of the Presidio Trust originated with another 
Federal department or agency, the request shall be referred to that 
agency unless:
    (i) The record is of primary interest to the Presidio Trust, for 
example, because it was developed or prepared pursuant to the Presidio 
Trust's regulations or request,
    (ii) The Presidio Trust is in a better position than the originating 
agency to assess whether the record is exempt from disclosure, or
    (iii) The originating agency is not subject to FOIA.

[[Page 231]]

    (2) A request for documents that were classified by another agency 
shall be referred to that agency.
    (c) Consultation with submitters of commercial and financial 
information. (1) If a request seeks a record containing trade secrets or 
commercial or financial information submitted by a person outside of the 
Federal government, the Presidio Trust shall provide the submitter with 
notice of the request whenever:
    (i) The submitter has made a good faith designation of the 
information as commercially or financially sensitive, or
    (ii) The Presidio Trust has reason to believe that disclosure of the 
information may result in commercial or financial injury to the 
submitter.
    (2) Where notification of a voluminous number of submitters is 
required, such notification may be accomplished by posting or publishing 
the notice in a place reasonably calculated to accomplish notification.
    (3) The notice to the submitter shall afford the submitter a 
reasonable period within which to provide a detailed statement of any 
objection to disclosure. The submitter's statement shall explain the 
basis on which the information is claimed to be exempt under FOIA, 
including a specification of any claim of competitive or other business 
harm that would result from disclosure. The statement shall also include 
a certification that the information is confidential, has not been 
disclosed to the public by the submitter, and is not routinely available 
to the public from other sources.
    (4) If a submitter's statement cannot be obtained within the time 
limit for processing the request under Sec. 1007.6, the requester shall 
be notified of the delay as provided in Sec. 1007.6(f).
    (5) Notification to a submitter is not required if:
    (i) The Presidio Trust determines, prior to giving notice, that the 
request for the record should be denied;
    (ii) The information has previously been lawfully published or 
officially made available to the public;
    (iii) Disclosure is required by a statute (other than FOIA) or 
regulation (other than this part);
    (iv) Disclosure is clearly prohibited by a statute, as described in 
Sec. 1007.2(c)(3);
    (v) The information was not designated by the submitter as 
confidential when it was submitted, or a reasonable time thereafter, if 
the submitter was specifically afforded an opportunity to make such a 
designation; however, a submitter will be notified of a request for 
information that was not designated as confidential at the time of 
submission, or a reasonable time thereafter, if there is substantial 
reason to believe that disclosure of the information would result in 
competitive harm;
    (vi) The designation of confidentiality made by the submitter is 
obviously frivolous; or
    (vii) The information was submitted to the Presidio Trust more than 
10 years prior to the date of the request, unless the Presidio Trust has 
reason to believe that it continues to be confidential.
    (6) If a requester brings suit to compel disclosure of information, 
the submitter of the information will be promptly notified.



Sec. 1007.5  Action on initial requests.

    (a) Authority. (1) Requests shall be decided by the FOIA Officer.
    (2) A decision to withhold a requested record, to release a record 
that is exempt from disclosure, or to deny a fee waiver shall be made 
only after consultation with the General Counsel.
    (b) Form of grant. (1) When a requested record has been determined 
to be available, the FOIA Officer shall notify the requester as to when 
and where the record is available for inspection or, as the case may be, 
when and how copies will be provided. If fees are due, the FOIA Officer 
shall state the amount of fees due and the procedures for payment, as 
described in Sec. 1007.9.
    (2) The FOIA Officer shall honor a requester's specified preference 
of form or format of disclosure (e.g., paper, microform, audiovisual 
materials, or electronic records) if the record is readily available to 
the Presidio Trust in the requested form or format or if the record is 
reproducible by the Presidio Trust with reasonable efforts in the 
requested form or format.

[[Page 232]]

    (3) If a requested record (or portion thereof) is being made 
available over the objections of a submitter made in accordance with 
Sec. 1007.4(c), both the requester and the submitter shall be notified 
of the decision. The notice to the submitter (a copy of which shall be 
made available to the requester) shall be forwarded a reasonable number 
of days prior to the date on which disclosure is to be made and shall 
include:
    (i) A statement of the reasons why the submitter's objections were 
not sustained;
    (ii) A specification of the portions of the record to be disclosed, 
if the submitter's objections were sustained in part; and
    (iii) A specified disclosure date.
    (4) If a claim of confidentiality has been found frivolous in 
accordance with Sec. 1007.4(c)(5)(vi) and a determination is made to 
release the information without consultation with the submitter, the 
submitter of the information shall be notified of the decision and the 
reasons therefor a reasonable number of days prior to the date on which 
disclosure is to be made.
    (c) Form of denial. (1) A decision withholding a requested record 
shall be in writing and shall include:
    (i) A listing of the names and titles or positions of each person 
responsible for the denial;
    (ii) A reference to the specific exemption or exemptions authorizing 
the withholding;
    (iii) If neither a statute nor an Executive order requires 
withholding, the sound ground for withholding;
    (iv) An estimate of the volume of records or information withheld, 
in number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through deletions on records disclosed in part, or if 
providing an estimate would harm an interest protected by an applicable 
exemption; and
    (v) A statement that the denial may be appealed and a reference to 
the procedures in Sec. 1007.7 for appeal.
    (2) A decision denying a request for failure to reasonably describe 
requested records or for other procedural deficiency or because 
requested records cannot be located shall be in writing and shall 
include:
    (i) A description of the basis of the decision;
    (ii) A list of the names and titles or positions of each person 
responsible; and
    (iii) A statement that the matter may be appealed and a reference to 
the procedures in Sec. 1007.7 for appeal.
    (d) Expedited processing. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever it is determined by the 
FOIA Officer that they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing.
    (4) Within ten calendar days of receiving of a request for expedited 
processing, the FOIA Officer shall decide whether to grant the request 
for expedited processing and shall notify the requester of the decision. 
If a request for expedited processing is granted, the underlying FOIA 
request shall be given priority and shall be processed as soon as 
practicable. If a request for expedited processing is denied, any appeal 
of that decision shall be acted on expeditiously.



Sec. 1007.6  Time limits for processing initial requests.

    (a) Basic limit. Requests for records shall be processed promptly. A 
determination whether to grant or deny a request shall be made within 20 
working days after receipt of a request. This determination shall be 
communicated immediately to the requester.

[[Page 233]]

    (b) Running of basic time limit. (1) The 20 working day time limit 
begins to run when a request meeting the requirements of Sec. 1007.3(b) 
is received at the Presidio Trust.
    (2) The running of the basic time limit may be delayed or tolled as 
explained in Sec. 1007.9 (f), (g) and (h) if a requester:
    (i) Has not stated a willingness to pay fees as high as are 
anticipated and has not sought and been granted a full fee waiver, or
    (ii) Has not made a required advance payment.
    (c) Extensions of time. In the following unusual circumstances, the 
time limit for acting on an initial request may be extended to the 
extent reasonably necessary to the proper processing of the request, but 
in no case may the time limit be extended by more than 20 working days:
    (1) The need to search for and collect the requested records from 
facilities or other establishments that are separate from the main 
office of the Presidio Trust;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records demanded in a single 
request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request.
    (d) Notice of extension. A requester shall be notified in writing of 
an extension under paragraph (c) of this section. The notice shall state 
the reason for the extension and the date on which a determination on 
the request is expected to be made.
    (e) Treatment of delay as denial. If no determination has been 
reached at the end of the 20 working day period for deciding an initial 
request, or an extension thereof under Sec. 1007.6(c), the requester 
may deem the request denied and may exercise a right of appeal in 
accordance with Sec. 1007.7.
    (f) Notice of delay. When a determination cannot be reached within 
the time limit, or extension thereof, the requester shall be notified of 
the reason for the delay, of the date on which a determination may be 
expected, and of the right to treat the delay as a denial for purposes 
of appeal, including a reference to the procedures for filing an appeal 
in Sec. 1007.7.



Sec. 1007.7  Appeals.

    (a) Right of appeal. A requester may appeal to the Executive 
Director when:
    (1) Records have been withheld;
    (2) A request has been denied for failure to describe requested 
records or for other procedural deficiency or because requested records 
cannot be located;
    (3) A fee waiver has been denied;
    (4) A request has not been decided within the time limits provided 
in Sec. 1007.6; or
    (5) A request for expedited processing under Sec. 1007.5(d) has 
been denied.
    (b) Time for appeal. An appeal must be received at the office of the 
Presidio Trust no later than 20 working days after the date of the 
initial denial, in the case of a denial of an entire request, or 20 
working days after records have been made available, in the case of a 
partial denial.
    (c) Form of appeal. (1) An appeal shall be initiated by filing a 
written notice of appeal. The notice shall be accompanied by copies of 
the original request and the initial denial and should, in order to 
expedite the appellate process and give the requester an opportunity to 
present his or her arguments, contain a brief statement of the reasons 
why the requester believes the initial denial to have been in error.
    (2) The appeal shall be addressed to the Executive Director, The 
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
    (3) To expedite processing, both the envelope containing a notice of 
appeal and the face of the notice should bear the legend ``FREEDOM OF 
INFORMATION APPEAL.''



Sec. 1007.8  Action on appeals.

    (a) Authority. Appeals shall be decided by the Executive Director 
after consultation with the FOIA Officer and the General Counsel.
    (b) Time limit. A final determination shall be made within 20 
working days after receipt of an appeal meeting the requirements of 
Sec. 1007.7(c).

[[Page 234]]

    (c) Extensions of time. (1) If the time limit for responding to the 
initial request for a record was not extended under the provisions of 
Sec. 1007.6(c) or was extended for fewer than 10 working days, the time 
for processing of the appeal may be extended to the extent reasonably 
necessary to the proper processing of the appeal, but in no event may 
the extension, when taken together with any extension made during 
processing of the initial request, result in an aggregate extension with 
respect to any one request of more than 10 working days. The time for 
processing of an appeal may be extended only if one or more of the 
unusual circumstances listed in Sec. 1007.6(c) requires an extension.
    (2) The appellant shall be advised in writing of the reasons for the 
extension and the date on which a final determination on the appeal is 
expected to be dispatched.
    (3) If no determination on the appeal has been reached at the end of 
the 20 working day period, or the extension thereof, the requester is 
deemed to have exhausted his administrative remedies, giving rise to a 
right of review in the United States District Court for the Northern 
District of California, as specified in 5 U.S.C. 552(a)(4).
    (4) When no determination can be reached within the applicable time 
limit, the appeal will nevertheless continue to be processed. On 
expiration of the time limit, the requester shall be informed of the 
reason for the delay, of the date on which a determination may be 
reached to be dispatched, and of the right to seek judicial review.
    (d) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination. If the 
determination is to release the requested records or portions thereof, 
the FOIA Officer shall immediately make the records available. If the 
determination upholds in whole or part the initial denial of a request 
for records, the determination shall advise the requester of the right 
to obtain judicial review in the U.S. District Court for the Northern 
District of California and shall set forth the names and titles or 
positions of each person responsible for the denial.
    (2) If a requested record (or portion thereof) is being made 
available over the objections of a submitter made in accordance with 
Sec. 1007.4(c), the submitter shall be provided notice as described in 
Sec. 1007.5(b)(3).



Sec. 1007.9  Fees.

    (a) Policy. (1) Unless waived pursuant to the provisions of Sec. 
1007.10, fees for responding to FOIA requests shall be charged in 
accordance with the provisions of this section and the current schedule 
of charges determined by the Executive Director and published in the 
compilation provided under Sec. 1001.7(b) of this chapter. Such charges 
shall be set at the level necessary to recoup the full allowable direct 
costs to the Trust.
    (2) Fees shall not be charged if the total amount chargeable does 
not exceed the costs of routine collection and processing of the fee. 
The Trust shall periodically determine the cost of routine collection 
and processing of a fee and publish such amount in the compilation 
provided under Sec. 1001.7(b) of this chapter.
    (3) Where there is a reasonable basis to conclude that a requester 
or group of requesters acting in concert has divided a request into a 
series of requests on a single subject or related subjects to avoid 
assessment of fees, the requests may be aggregated and fees charged 
accordingly.
    (4) Fees shall be charged to recover the full costs of providing 
such services as certifying that records are true copies or sending 
records by a method other than regular mail, when the Trust elects to 
provide such services.
    (5) The following definitions shall apply to this part:
    (i) The term search includes all time spent looking for material 
that is responsive to a request, including page-by-page or line-by-line 
identification of material within documents or databases. Searches shall 
be undertaken in the most efficient and least expensive manner possible, 
consistent with the Presidio Trust's obligations under FOIA and other 
applicable laws.
    (ii) The term duplication refers to the process of making a copy of 
a record necessary to respond to a FOIA request. Such copies can take 
the form of

[[Page 235]]

paper copy, microform, audio-visual materials, or machine-readable 
documentation (e.g., magnetic tape or disk), among others. The copy 
provided shall be in a form that is reasonably usable by requesters.
    (iii) A commercial use request is a request from or on behalf of a 
person who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person on 
whose behalf the request is made. The intended use of records may be 
determined on the basis of information submitted by a requester and from 
reasonable inferences based on the identity of the requester and any 
other available information.
    (iv) An educational institution is a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education, which operates a program or programs of scholarly research.
    (v) A noncommercial scientific institution is an institution that is 
not operated for commerce, trade or profit and that is operated solely 
for the purpose of conducting scientific research the results of which 
are not intended to promote any particular product or industry.
    (vi) A representative of the news media is any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that is (or would be) of current 
interest to the public. Examples of news media entities include, but are 
not limited to, television or radio stations broadcasting to the public 
at large, and publishers of periodicals (but only in those instances 
when they can qualify as disseminators of ``news'') who make their 
products available for purchase or subscription by the general public. 
As traditional methods of news delivery evolve (e.g., electronic 
dissemination of newspapers through telecommunications services), such 
alternative media would be included in this category. Free-lance 
journalists may be considered representatives of the news media if they 
demonstrate a solid basis for expecting publication through a news 
organization, even though not actually employed by it. A publication 
contract or past record of publication, or evidence of a specific free-
lance assignment from a news organization may indicate a solid basis for 
expecting publication.
    (b) Commercial use requests. (1) A requester seeking records for 
commercial use shall be charged fees for costs incurred in document 
search and review (even if the search and review fails to locate records 
that are not exempt from disclosure) and duplication.
    (2) A commercial use requester may not be charged fees for time 
spent resolving legal and policy issues affecting access to requested 
records.
    (c) Educational and noncommercial scientific institution requests. 
(1) A requester seeking records under the auspices of an educational 
institution in furtherance of scholarly research or a noncommercial 
scientific institution in furtherance of scientific research shall be 
charged for document duplication, except that the first 100 pages of 
paper copies (or the equivalent cost thereof if the records are in some 
other form) shall be provided without charge.
    (2) Such requesters may not be charged fees for costs incurred in:
    (i) Searching for requested records,
    (ii) Examining requested records to determine whether they are 
exempt from mandatory disclosure,
    (iii) Deleting reasonably segregable exempt matter,
    (iv) Monitoring the requester's inspection of agency records, or
    (v) Resolving legal and policy issues affecting access to requested 
records.
    (d) News media requests. (1) A representative of the news media 
shall be charged for document duplication, except that the first 100 
pages of paper copies (or the equivalent cost thereof if the records are 
in some other form) shall be provided without charge.
    (2) Representatives of the news media may not be charged fees for 
costs incurred in:
    (i) Searching for requested records,
    (ii) Examining requested records to determine whether they are 
exempt from mandatory disclosure,

[[Page 236]]

    (iii) Deleting reasonably segregable exempt matter,
    (iv) Monitoring the requester's inspection of agency records, or
    (v) Resolving legal and policy issues affecting access to requested 
records.
    (e) Other requests. (1) A requester not covered by paragraphs (b), 
(c), or (d) of this section shall be charged fees for document search 
(even if the search fails to locate records that are not exempt from 
disclosure) and duplication, except that the first two hours of search 
time and the first 100 pages of paper copies (or the equivalent cost 
thereof if the records are in some other form) shall be provided without 
charge.
    (2) Such requesters may not be charged for costs incurred in:
    (i) Examining requested records to determine whether they are exempt 
from disclosure,
    (ii) Deleting reasonably segregable exempt matter,
    (iii) Monitoring the requester's inspection of agency records, or
    (iv) Resolving legal and policy issues affecting access to requested 
records.
    (f) Requests for clarification. Where a request does not provide 
sufficient information to determine whether it is covered by paragraph 
(b), (c), (d), or (e) of this section, the requester should be asked to 
provide additional clarification. If it is necessary to seek such 
clarification, the request may be deemed to have not been received for 
purposes of the time limits established in Sec. 1007.6 until the 
clarification is received. Requests to requesters for clarification 
shall be made promptly.
    (g) Notice of anticipated fees. Where a request does not state a 
willingness to pay fees as high as anticipated by the Presidio Trust, 
and the requester has not sought and been granted a full waiver of fees 
under Sec. 1007.10, the request may be deemed to have not been received 
for purposes of the time limits established in Sec. 1007.6 until the 
requester has been notified of and agrees to pay the anticipated fee. 
Advice to requesters with respect to anticipated fees shall be provided 
promptly.
    (h) Advance payment. (1) Where it is anticipated that allowable fees 
are likely to exceed $250.00, the requester may be required to make an 
advance payment of the entire fee before processing of his or her 
request.
    (2) Where a requester has previously failed to pay a fee within 30 
days of the date of billing, processing of any request from that 
requester shall ordinarily be suspended until the requester pays any 
amount still owed, including applicable interest, and makes advance 
payment of allowable fees anticipated in connection with the request.
    (3) Advance payment of fees may not be required except as described 
in paragraphs (h) (1) and (2) of this section.
    (4) Issuance of a notice requiring payment of overdue fees or 
advance payment shall toll the time limit in Sec. 1007.6 until receipt 
of payment.
    (i) Form of payment. Payment of fees should be made by check or 
money order payable to the Presidio Trust. Where appropriate, the 
official responsible for handling a request may require that payment by 
check be made in the form of a certified check.
    (j) Billing procedures. A bill for collection shall be prepared for 
each request that requires collection of fees.
    (k) Collection of fees. The bill for collection or an accompanying 
letter to the requester shall include a statement that interest will be 
charged in accordance with the Debt Collection Act of 1982, 31 U.S.C. 
3717, and implementing regulations, 4 CFR 102.13, if the fees are not 
paid within 30 days of the date of the bill for collection is mailed or 
hand-delivered to the requester. This requirement does not apply if the 
requester is a unit of State or local government. Other authorities of 
the Debt Collection Act of 1982 shall be used, as appropriate, to 
collect the fees.



Sec. 1007.10  Waiver of fees.

    (a) Statutory fee waiver. Documents shall be furnished without 
charge or at a charge reduced below the fees chargeable under Sec. 
1007.9 if disclosure of the information is in the public interest 
because it:
    (1) Is likely to contribute significantly to public understanding of 
the operations or activities of the government and
    (2) Is not primarily in the commercial interest of the requester.
    (b) Elimination or reduction of fees. Ordinarily, in the 
circumstances where

[[Page 237]]

the criteria of paragraph (a) of this section are met, fees will be 
reduced by twenty-five percent from the fees otherwise chargeable to the 
requester. In exceptional circumstances, and with the approval of the 
Executive Director, fees may be reduced below this level or waived 
entirely.
    (c) Notice of denial. If a requested statutory fee waiver or 
reduction is denied, the requester shall be notified in writing. The 
notice shall include:
    (1) A statement of the basis on which the waiver or reduction has 
been denied;
    (2) A listing of the names and titles or positions of each person 
responsible for the denial; and
    (3) A statement that the denial may be appealed to the Executive 
Director and a description of the procedures in Sec. 1007.7 for appeal.



PART 1008_REQUESTS UNDER THE PRIVACY ACT--Table of Contents




Sec.
1008.1 Purpose and scope.
1008.2 Definitions.
1008.3 Records subject to the Privacy Act.
1008.4 Standards for maintenance of records subject to the Privacy Act.
1008.5 Federal Register notices describing systems of records.
1008.6 Assuring integrity of records.
1008.7 Conduct of employees.
1008.8 Government contracts.
1008.9 Disclosure of records.
1008.10 Accounting for disclosures.
1008.11 Requests for notification of existence of records: Submission.
1008.12 Requests for notification of existence of records: Action on.
1008.13 Requests for access to records.
1008.14 Requests for access to records: Submission.
1008.15 Requests for access to records: Initial decision.
1008.16 Requests for notification of existence of records and for access 
          to records: Appeals.
1008.17 Requests for access to records: Special situations.
1008.18 Amendment of records.
1008.19 Petitions for amendment: Submission and form.
1008.20 Petitions for amendment: Processing and initial decision.
1008.21 Petitions for amendment: Time limits for processing.
1008.22 Petitions for amendment: Appeals.
1008.23 Petitions for amendment: Action on appeals.
1008.24 Statements of disagreement.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note); 5 
U.S.C. 552a.

    Source: 63 FR 71779, Dec. 30, 1998, unless otherwise noted.



Sec. 1008.1  Purpose and scope.

    This part contains the regulations of the Presidio Trust 
implementing section 3 of the Privacy Act. Sections 1008.3 through 
1008.10 describe the procedures and policies of the Presidio Trust 
concerning maintenance of records which are subject to the Privacy Act. 
Sections 1008.11 through 1008.17 describe the procedure under which 
individuals may determine whether systems of records subject to the 
Privacy Act contain records relating to them and the procedure under 
which they may seek access to existing records. Sections 1008.18 through 
1008.24 describe the procedure under which individuals may petition for 
amendment of records subject to the Privacy Act relating to them.



Sec. 1008.2  Definitions.

    The following terms have the following meanings as used in this 
part:
    Individual means a citizen of the United States or an alien lawfully 
admitted for permanent residence.
    Maintain means maintain, collect, use or disseminate.
    Privacy Act means 5 U.S.C. 552a.
    Privacy Act Officer means the Presidio Trust official charged with 
responsibility for carrying out the functions assigned in this part.
    Record means any item, collection, or grouping of information about 
an individual that is maintained by the Presidio Trust, including, but 
not limited to, education, financial transactions, medical history, and 
criminal or employment history and that contains the individual's name, 
or the identifying number, symbol, or other identifying particular 
assigned to the individual, such as a finger or voice print, or a 
photograph. Related definitions include:
    (1) System of records means a group of any records under the control 
of the Presidio Trust from which information is retrieved by the name of 
the individual or by some identifying number,

[[Page 238]]

symbol, or other identifying particular assigned to the individual.
    (2) Medical records means records which relate to the 
identification, prevention, cure or alleviation of any disease, illness 
or injury including psychological disorders, alcoholism and drug 
addiction.
    (3) Personnel records means records used for personnel management 
programs or processes such as staffing, employee development, 
retirement, and grievances and appeals.
    (4) Statistical records means records in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual.
    Routine use means a use of a record for a purpose which is 
compatible with the purpose for which it was collected.
    System manager means the official designated in a system notice as 
having administrative responsibility for a system of records.
    System notice means the notice describing a system of records 
required by 5 U.S.C. 552a(e)(4) to be published in the Federal Register 
upon establishment or revision of the system of records.



Sec. 1008.3  Records subject to the Privacy Act.

    The Privacy Act applies to all records which the Presidio Trust 
maintains in a system of records.



Sec. 1008.4  Standards for maintenance of records subject to the Privacy Act.

    (a) Content of records. Records subject to the Privacy Act shall 
contain only such information about an individual as is relevant and 
necessary to accomplish a purpose of the Presidio Trust required to be 
accomplished by statute or Executive Order of the President.
    (b) Standards of accuracy. Records subject to the Privacy Act which 
are used in making any determination about any individual shall be 
maintained with such accuracy, relevance, timeliness, and completeness 
as is reasonably necessary to assure fairness to the individual in 
making the determination.
    (c) Collection of information. (1) Information which may be used in 
making determinations about an individual's rights, benefits, and 
privileges under Federal programs shall, to the greatest extent 
practicable, be collected directly from that individual.
    (2) In deciding whether collection of information from an 
individual, as opposed to a third party source, is practicable, the 
following factors, among others, may be considered:
    (i) Whether the nature of the information sought is such that it can 
only be obtained from a third party;
    (ii) Whether the cost of collecting the information from the 
individual is unreasonable when compared with the cost of collecting it 
from a third party;
    (iii) Whether there is a risk that information collected from third 
parties, if inaccurate, could result in an adverse determination to the 
individual concerned;
    (iv) Whether the information, if supplied by the individual, would 
have to be verified by a third party; or (v) Whether provisions can be 
made for verification, by the individual, of information collected from 
third parties.
    (d) Advice to individuals concerning uses of information. (1) Each 
individual who is asked to supply information about him or herself which 
will be added to a system of records shall be informed of the basis for 
requesting the information, how it may be used, and what the 
consequences, if any, are of not supplying the information.
    (2) At a minimum, the notice to the individual must state:
    (i) The authority (whether granted by statute or Executive Order of 
the President) which authorizes the solicitation of the information and 
whether disclosure of such information is mandatory or voluntary;
    (ii) The principal purpose or purposes for which the information is 
intended to be used;
    (iii) The routine uses which may be made of the information; and
    (iv) The effects on the individual, if any, of not providing all or 
any part of the requested information.
    (3)(i) When information is collected on a standard form, the notice 
to the individual shall be provided on the form, on a tear-off sheet 
attached to the form, or on a separate sheet, whichever is most 
practical.

[[Page 239]]

    (ii) When information is collected by an interviewer, the 
interviewer shall provide the individual with a written notice which the 
individual may retain. If the interview is conducted by telephone, 
however, the interviewer may summarize the notice for the individual and 
need not provide a copy to the individual unless the individual requests 
a copy.
    (iii) An individual may be asked to acknowledge, in writing, that 
the notice required by this section has been provided.
    (e) Records concerning activity protected by the First Amendment. No 
record may be maintained describing how any individual exercises rights 
guaranteed by the First Amendment to the Constitution unless the 
maintenance of the record is:
    (1) Expressly authorized by statute or by the individual about whom 
the record is maintained; or
    (2) Pertinent to and within the scope of an authorized law 
enforcement activity.



Sec. 1008.5  Federal Register notices describing systems of records.

    The Privacy Act requires publication of a notice in the Federal 
Register describing each system of records subject to the Privacy Act. 
Such notice will be published prior to the establishment or a revision 
of the system of records. 5 U.S.C. 552a(e)(4).



Sec. 1008.6  Assuring integrity of records.

    (a) Statutory requirement. The Privacy Act requires that records 
subject to the Privacy Act be maintained with appropriate 
administrative, technical and physical safeguards to insure the security 
and confidentiality of records and to protect against any anticipated 
threats or hazards to their security or integrity which could result in 
substantial harm, embarrassment, inconvenience, or unfairness to any 
individual on whom information is maintained, 5 U.S.C. 552a(e)(10).
    (b) Records security. Whether maintained in physical or electronic 
form, records subject to the Privacy Act shall be maintained in a secure 
manner commensurate with the sensitivity of the information contained in 
the system of records. The Privacy Act Officer will periodically review 
these security measures to ensure their adequacy.



Sec. 1008.7  Conduct of employees.

    (a) Handling of records subject to the Privacy Act. Employees whose 
duties require handling of records subject to the Privacy Act shall, at 
all times, take care to protect the integrity, security and 
confidentiality of these records.
    (b) Disclosure of records. No employee of the Presidio Trust may 
disclose records subject to the Privacy Act unless disclosure is 
permitted under Sec. 1008.9 or is to the individual to whom the record 
pertains.
    (c) Alteration of records. No employee of the Presidio Trust may 
alter or destroy a record subject to the Privacy Act unless such 
alteration or destruction is:
    (1) Properly undertaken in the course of the employee's regular 
duties; or
    (2) Required by a decision under Sec. Sec. 1008.18 through 1008.23 
or the decision of a court of competent jurisdiction.



Sec. 1008.8  Government contracts.

    (a) Required contract provisions. When a contract provides for the 
operation by or on behalf of the Presidio Trust of a system of records 
to accomplish a Presidio Trust function, the contract shall, consistent 
with the Presidio Trust's authority, cause the requirements of 5 U.S.C. 
552a and the regulations contained in this part to be applied to such 
system.
    (b) System manager. A regular employee of the Presidio Trust will be 
the manager for a system of records operated by a contractor.



Sec. 1008.9  Disclosure of records.

    (a) Prohibition of disclosure. No record contained in a system of 
records may be disclosed by any means of communication to any person, or 
to another agency, except pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record pertains.
    (b) General exceptions. The prohibition contained in paragraph (a) 
of this section does not apply where disclosure of the record would be:
    (1) To those officers or employees of the Presidio Trust who have a 
need for

[[Page 240]]

the record in the performance of their duties; or
    (2) Required by the Freedom of Information Act, 5 U.S.C. 552.
    (c) Specific exceptions. The prohibition contained in paragraph (a) 
of this section does not apply where disclosure of the record would be:
    (1) For a routine use which has been described in a system notice 
published in the Federal Register;
    (2) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
Title 13, U.S. Code.
    (3) To a recipient who has provided the system manager responsible 
for the system in which the record is maintained with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (4) To the National Archives and Records Administration as a record 
which has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for evaluation by the Archivist 
of the United States or the designee of the Archivist to determine 
whether the record has such value;
    (5) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the Presidio Trust specifying the particular portion 
desired and the law enforcement activity for which the record is sought;
    (6) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (7) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (8) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office;
    (9) Pursuant to the order of a court of competent jurisdiction; or
    (10) To a consumer reporting agency in accordance with section 3(d) 
of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 
3711(f)).
    (d) Reviewing records prior to disclosure. (1) Prior to any 
disclosure of a record about an individual, unless disclosure is 
required by the Freedom of Information Act, reasonable efforts shall be 
made to ensure that the records are accurate, complete, timely and 
relevant for agency purposes.
    (2) When a record is disclosed in connection with a Freedom of 
Information Act request made under this part and it is appropriate and 
administratively feasible to do so, the requester shall be informed of 
any information known to the Presidio Trust indicating that the record 
may not be fully accurate, complete, or timely.



Sec. 1008.10  Accounting for disclosures.

    (a) Maintenance of an accounting. (1) Where a record is disclosed to 
any person, or to another agency, under any of the specific exceptions 
provided by Sec. 1008.9(c), an accounting shall be made.
    (2) The accounting shall record:
    (i) The date, nature, and purpose of each disclosure of a record to 
any person or to another agency; and
    (ii) The name and address of the person or agency to whom the 
disclosure was made.
    (3) Accountings prepared under this section shall be maintained for 
at least five years or the life of the record, whichever is longer, 
after the disclosure for which the accounting is made.
    (b) Access to accountings. (1) Except for accountings of disclosures 
made under Sec. 1008.9(c)(5), accountings of all disclosures of a 
record shall be made available to the individual to whom the record 
relates at the individual's request.
    (2) An individual desiring access to an accounting of disclosures of 
a record pertaining to the individual shall submit a request by 
following the procedures of Sec. 1008.13.

[[Page 241]]

    (c) Notification of disclosure. When a record is disclosed pursuant 
to Sec. 1008.9(c)(9) as the result of the order of a court of competent 
jurisdiction, reasonable efforts shall be made to notify the individual 
to whom the record pertains as soon as the order becomes a matter of 
public record.



Sec. 1008.11  Request for notification of existence of records: Submission.

    (a) Submission of requests. (1) Individuals desiring to determine 
under the Privacy Act whether a system of records contains records 
pertaining to them shall address inquiries to the Privacy Act Officer, 
The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052, unless 
the system notice describing the system prescribes or permits submission 
to some other official or officials.
    (2) Individuals desiring to determine whether records pertaining to 
them are maintained in two or more systems shall make a separate inquiry 
concerning each system.
    (b) Form of request. (1) An inquiry to determine whether a system of 
records contains records pertaining to an individual shall be in 
writing.
    (2) To expedite processing, both the envelope containing a request 
and the face of the request should bear the legend ``PRIVACY ACT 
INQUIRY.''
    (3) The request shall state that the individual is seeking 
information concerning records pertaining to him or herself and shall 
supply such additional identifying information, if any, as is called for 
in the system notice describing the system.
    (4) Individuals who have reason to believe that information 
pertaining to them may be filed under a name other than the name they 
are currently using (e.g., maiden name), shall include such information 
in the request.



Sec. 1008.12  Requests for notification of existence of records: Action on.

    (a) Decisions on request. (1) Individuals inquiring to determine 
whether a system of records contains records pertaining to them shall be 
promptly advised whether the system contains records pertaining to them 
unless:
    (i) The records were compiled in reasonable anticipation of a civil 
action or proceeding; or
    (ii) The system of records is one which has been excepted from the 
notification provisions of the Privacy Act by rulemaking.
    (2) If the records were compiled in reasonable anticipation of a 
civil action or proceeding or the system of records is one which has 
been excepted from the notification provisions of the Privacy Act by 
rulemaking, the individuals will be promptly notified that they are not 
entitled to notification of whether the system contains records 
pertaining to them.
    (b) Authority to deny requests. A decision to deny a request for 
notification of the existence of records shall be made by the Privacy 
Act officer in consultation with the General Counsel.
    (c) Form of decision. (1) No particular form is required for a 
decision informing individuals whether a system of records contains 
records pertaining to them.
    (2) A decision declining to inform an individual whether or not a 
system of records contains records pertaining to him or her shall be in 
writing and shall:
    (i) State the basis for denial of the request;
    (ii) Advise the individual that an appeal of the declination may be 
made to the Executive Director pursuant to Sec. 1008.16 by writing to 
the Executive Director, The Presidio Trust, P.O. Box 29052, San 
Francisco, CA 94129-0052; and
    (iii) State that the appeal must be received by the foregoing 
official within 20 working days of the date of the decision.
    (3) If the decision declining a request for notification of the 
existence of records involves records which fall under the jurisdiction 
of another agency, the individual shall be informed in a written 
response which shall:
    (i) State the reasons for the denial;
    (ii) Include the name, position title, and address of the official 
responsible for the denial; and (iii) Advise the individual that an 
appeal of the declination may be made only to the appropriate official 
of the relevant agency, and include that official's name, position 
title, and address.

[[Page 242]]

    (4) Copies of decisions declining a request for notification of the 
existence of records made pursuant to paragraphs (c)(2) and (c)(3) of 
this section shall be provided to the Privacy Act Officer.



Sec. 1008.13  Requests for access to records.

    The Privacy Act permits individuals, upon request, to gain access to 
their records or to any information pertaining to them which is 
contained in a system and to review the records and have a copy made of 
all or any portion thereof in a form comprehensive to them. 5 U.S.C. 
552a(d)(1). A request for access shall be submitted in accordance with 
the procedures in this part.



Sec. 1008.14  Requests for access to records: Submission.

    (a) Submission of requests. (1) Requests for access to records shall 
be submitted to the Privacy Act Officer unless the system notice 
describing the system prescribes or permits submission to some other 
official or officials.
    (2) Individuals desiring access to records maintained in two or more 
separate systems shall submit a separate request for access to the 
records in each system.
    (b) Form of request. (1) A request for access to records subject to 
the Privacy Act shall be in writing and addressed to Privacy Act 
Officer, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-
0052.
    (2) To expedite processing, both the envelope containing a request 
and the face of the request should bear the legend ``PRIVACY ACT REQUEST 
FOR ACCESS.''
    (3) Requesters shall specify whether they seek all of the records 
contained in the system which relate to them or only some portion 
thereof. If only a portion of the records which relate to the individual 
are sought, the request shall reasonably describe the specific record or 
records sought.
    (4) If the requester seeks to have copies of the requested records 
made, the request shall state the maximum amount of copying fees which 
the requester is willing to pay. A request which does not state the 
amount of fees the requester is willing to pay will be treated as a 
request to inspect the requested records. Requesters are further 
notified that under Sec. 1008.15(d) the failure to state willingness to 
pay fees as high as are anticipated by the Presidio Trust will delay 
processing of a request.
    (5) The request shall supply such identifying information, if any, 
as is called for in the system notice describing the system.
    (6) Requests failing to meet the requirements of this paragraph 
shall be returned to the requester with a written notice advising the 
requester of the deficiency in the request.



Sec. 1008.15  Requests for access to records: Initial decision.

    (a) Decisions on requests. A request made under this part for access 
to a record shall be granted promptly unless the record:
    (1) Was compiled in reasonable anticipation of a civil action or 
proceeding; or
    (2) Is contained in a system of records which has been excepted from 
the access provisions of the Privacy Act by rulemaking.
    (b) Authority to deny requests. A decision to deny a request for 
access under this part shall be made by the Privacy Act Officer in 
consultation with the General Counsel.
    (c) Form of decision. (1) No particular form is required for a 
decision granting access to a record. The decision shall, however, 
advise the individual requesting the record as to where and when the 
record is available for inspection or, as the case may be, where and 
when copies will be available. If fees are due under Sec. 1008.15(d), 
the individual requesting the record shall also be notified of the 
amount of fees due or, if the exact amount has not been determined, the 
approximate amount of fees due.
    (2) A decision denying a request for access, in whole or part, shall 
be in writing and shall:
    (i) State the basis for denial of the request;
    (ii) Contain a statement that the denial may be appealed to the 
Executive Director pursuant to Sec. 1008.16 by writing to the Executive 
Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-
0052; and (iii) State that

[[Page 243]]

the appeal must be received by the foregoing official within 20 working 
days of the date of the decision.
    (3) If the decision denying a request for access involves records 
which fall under the jurisdiction of another agency, the individual 
shall be informed in a written response which shall:
    (i) State the reasons for the denial;
    (ii) Include the name, position title, and address of the official 
responsible for the denial; and
    (iii) Advise the individual that an appeal of the declination may be 
made only to the appropriate official of the relevant agency, and 
include that official's name, position title, and address.
    (4) Copies of decisions denying requests for access made pursuant to 
paragraphs (c)(2) and (c)(3) of this section will be provided to the 
Privacy Act Officer.
    (d) Fees. (1) No fees may be charged for the cost of searching for 
or reviewing a record in response to a request made under Sec. 1008.14.
    (2) Unless the Privacy Act Officer determines that reduction or 
waiver of fees is appropriate, fees for copying a record in response to 
a request made under Sec. 1008.14 shall be charged in accordance with 
the provisions of this section and the current schedule of charges 
determined by the Executive Director and published in the compilation 
provided under Sec. 1001.7(b) of this chapter. Such charges shall be 
set at the level necessary to recoup the full allowable direct costs to 
the Trust.
    (3) Where it is anticipated that fees chargeable in connection with 
a request will exceed the amount the person submitting the request has 
indicated a willingness to pay, the Privacy Act Officer shall notify the 
requester and shall not complete processing of the request until the 
requester has agreed, in writing, to pay fees as high as are 
anticipated.



Sec. 1008.16  Requests for notification of existence of records and for access 

to records: Appeals.

    (a) Right of appeal. Except for appeals pertaining to records under 
the jurisdiction of another agency, individuals who have been notified 
that they are not entitled to notification of whether a system of 
records contains records pertaining to them or have been denied access, 
in whole or part, to a requested record may appeal to the Executive 
Director.
    (b) Time for appeal. (1) An appeal must be received by the Executive 
Director no later than 20 working days after the date of the initial 
decision on a request.
    (2) The Executive Director may, for good cause shown, extend the 
time for submission of an appeal if a written request for additional 
time is received within 20 working days of the date of the initial 
decision on the request.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial request and the decision on the request.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the initial request to have been 
in error.
    (3) The appeal shall be addressed to the Executive Director, The 
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
    (d) Action on appeals. (1) Appeals from decisions on initial 
requests made pursuant to Sec. Sec. 1008.11 and 1008.14 shall be 
decided for the Presidio Trust by the Executive Director after 
consultation with the General Counsel.
    (2) The decision on an appeal shall be in writing and shall state 
the basis for the decision.



Sec. 1008.17  Requests for access to records: Special situations.

    (a) Medical records. (1) Medical records shall be disclosed to the 
individual to whom they pertain unless it is determined, in consultation 
with a medical doctor, that disclosure should be made to a medical 
doctor of the individual's choosing.
    (2) If it is determined that disclosure of medical records directly 
to the individual to whom they pertain could have an adverse effect on 
that individual, the individual may designate a medical doctor to 
receive the records and the records will be disclosed to that doctor.
    (b) Inspection in presence of third party. (1) Individuals wishing 
to inspect records pertaining to them which have been opened for their 
inspection may,

[[Page 244]]

during the inspection, be accompanied by a person of their own choosing.
    (2) When such a procedure is deemed appropriate, individuals to whom 
the records pertain may be required to furnish a written statement 
authorizing discussion of their records in the accompanying person's 
presence.



Sec. 1008.18  Amendment of records.

    The Privacy Act permits individuals to request amendment of records 
pertaining to them if they believe the records are not accurate, 
relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for 
amendment of a record shall be submitted in accordance with the 
procedures in this part.



Sec. 1008.19  Petitions for amendment: Submission and form.

    (a) Submission of petitions for amendment. (1) A request for 
amendment of a record shall be submitted to the Privacy Act Officer 
unless the system notice describing the system prescribes or permits 
submission to a different official or officials. If an individual wishes 
to request amendment of records located in more than one system, a 
separate petition must be submitted with respect to each system.
    (2) A petition for amendment of a record may be submitted only if 
the individual submitting the petition has previously requested and been 
granted access to the record and has inspected or been given a copy of 
the record.
    (b) Form of petition. (1) A petition for amendment shall be in 
writing and shall specifically identify the record for which amendment 
is sought.
    (2) The petition shall state, in detail, the reasons why the 
petitioner believes the record, or the objectionable portion thereof, is 
not accurate, relevant, timely or complete. Copies of documents or 
evidence relied upon in support of these reasons shall be submitted with 
the petition.
    (3) The petition shall state, specifically and in detail, the 
changes sought in the record. If the changes involve rewriting the 
record or portions thereof or involve adding new language to the record, 
the petition shall propose specific language to implement the changes.



Sec. 1008.20  Petitions for amendment: Processing and initial decision.

    (a) Decisions on petitions. In reviewing a record in response to a 
petition for amendment, the accuracy, relevance, timeliness and 
completeness of the record shall be assessed against the criteria set 
out in Sec. 1008.4.
    (b) Authority to decide. A decision on a petition for amendment 
shall be made by the Privacy Act Officer in consultation with the 
General Counsel.
    (c) Acknowledgment of receipt. Unless processing of a petition is 
completed within ten working days, the receipt of the petition for 
amendment shall be acknowledged in writing by the Privacy Act Officer.
    (d) Inadequate petitions. (1) If a petition does not meet the 
requirements of Sec. 1008.19, the petitioner shall be so advised and 
shall be told what additional information must be submitted to meet the 
requirements of Sec. 1008.19.
    (2) If the petitioner fails to submit the additional information 
within a reasonable time, the petition may be rejected. The rejection 
shall be in writing and shall meet the requirements of paragraph (e) of 
this section.
    (e) Form of decision. (1) A decision on a petition for amendment 
shall be in writing and shall state concisely the basis for the 
decision.
    (2) If the petition for amendment is rejected, in whole or part, the 
petitioner shall be informed in a written response which shall:
    (i) State concisely the basis for the decision;
    (ii) Advise the petitioner that the rejection may be appealed to the 
Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, 
CA 94129-0052; and
    (iii) State that the appeal must be received by the foregoing 
official within 20 working days of the decision.
    (3) If the petition for amendment involves records which fall under 
the jurisdiction of another agency and is rejected, in whole or part, 
the petitioner shall be informed in a written response which shall:
    (i) State concisely the basis for the decision;
    (ii) Include the name, position title, and address of the official 
responsible for the denial; and

[[Page 245]]

    (iii) Advise the individual that an appeal of the rejection may be 
made only to the appropriate official of the relevant agency, and 
include that official's name, position title, and address.
    (4) Copies of rejections of petitions for amendment made pursuant to 
paragraphs (e)(2) and (e)(3) of this section will be provided to the 
Privacy Act Officer.
    (f) Implementation of initial decision. If a petition for amendment 
is accepted, in whole or part, the system manager maintaining the record 
shall:
    (1) Correct the record accordingly and,
    (2) Where an accounting of disclosures has been made pursuant to 
Sec. 1008.10, advise all previous recipients of the record that the 
correction was made and the substance of the correction.



Sec. 1008.21  Petitions for amendment: Time limits for processing.

    (a) Acknowledgment of receipt. The acknowledgment of receipt of a 
petition required by Sec. 1008.20(c) shall be dispatched not later than 
ten working days after receipt of the petition by the Privacy Act 
Officer, unless a decision on the petition has been previously 
dispatched.
    (b) Decision on petition. A petition for amendment shall be 
processed promptly. A determination whether to accept or reject the 
petition for amendment shall be made within 30 working days after 
receipt of the petition by the system manager responsible for the system 
containing the challenged record.
    (c) Suspension of time limit. The 30 working day time limit for a 
decision on a petition shall be suspended if it is necessary to notify 
the petitioner, pursuant to Sec. 1008.20(d), that additional 
information in support of the petition is required. Running of the 30 
working day time limit shall resume on receipt of the additional 
information by the system manager responsible for the system containing 
the challenged record.
    (d) Extensions of time. (1) The 30 working day time limit for a 
decision on a petition may be extended if the Privacy Act Officer 
determines that an extension is necessary for one of the following 
reasons:
    (i) A decision on the petition requires analysis of voluminous 
record or records;
    (ii) Some or all of the challenged records must be collected from 
facilities other than the facility at which the Privacy Act Officer is 
located; or
    (iii) Some or all of the challenged records are of concern to 
another agency of the Federal Government whose assistance and views are 
being sought in processing the request.
    (2) If the official responsible for making a decision on the 
petition determines that an extension is necessary, the official shall 
promptly inform the petitioner of the extension and the date on which a 
decision is expected to be dispatched.



Sec. 1008.22  Petitions for amendment: Appeals.

    (a) Right of appeal. Except for appeals pertaining to records under 
the jurisdiction of another agency, where a petition for amendment has 
been rejected in whole or in part, the individual submitting the 
petition may appeal the denial to the Executive Director.
    (b) Time for appeal. (1) An appeal must be received no later than 20 
working days after the date of the decision on a petition.
    (2) The Executive Director may, for good cause shown, extend the 
time for submission of an appeal if a written request for additional 
time is received within 20 working days of the date of the decision on a 
petition.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial petition and the decision on that petition.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the petition to have been in 
error.
    (3) The appeal shall be addressed to the Executive Director, The 
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.



Sec. 1008.23  Petitions for amendment: Action on appeals.

    (a) Authority. Appeals from decisions on initial petitions for 
amendment shall be decided by the Executive Director, in consultation 
with the General Counsel.

[[Page 246]]

    (b) Time limit. (1) A final determination on any appeal shall be 
made within 30 working days after receipt of the appeal.
    (2) The 30 working day period for decision on an appeal may be 
extended, for good cause shown, by the Executive Director. If the 30 
working day period is extended, the individual submitting the appeal 
shall be notified of the extension and of the date on which a 
determination on the appeal is expected to be dispatched.
    (c) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination.
    (2) If the determination upholds, in whole or part, the initial 
decision rejecting the petition for amendment, the determination shall 
also advise the individual submitting the appeal:
    (i) Of his or her right to file a concise statement of the reasons 
for disagreeing with the decision of the Presidio Trust;
    (ii) Of the procedure established by Sec. 1008.24 for the filing of 
the statement of disagreement;
    (iii) That the statement which is filed will be made available to 
anyone to whom the record is subsequently disclosed together with, at 
the discretion of the Presidio Trust, a brief statement by the Presidio 
Trust summarizing its reasons for refusing to amend the record;
    (iv) That prior recipients of the challenged record will be provided 
a copy of any statement of dispute to the extent that an accounting of 
disclosure was maintained; and
    (v) Of his or her right to seek judicial review of the Presidio 
Trust's refusal to amend the record.
    (3) If the determination reverses, in whole or in part, the initial 
decision rejecting the petition for amendment, the system manager 
responsible for the system containing the challenged record shall be 
directed to:
    (i) Amend the challenged record accordingly; and
    (ii) If an accounting of disclosures has been made, advise all 
previous recipients of the record of the amendment and its substance.



Sec. 1008.24  Statements of disagreement.

    (a) Filing of statement. If the determination of the Executive 
Director under Sec. 1008.23 rejects in whole or part, a petition for 
amendment, the individual submitting the petition may file with the 
Privacy Act Officer a concise written statement setting forth the 
reasons for disagreement with the determination of the Presidio Trust.
    (b) Disclosure of statements. In any disclosure of a record 
containing information about which an individual has filed a statement 
of disagreement under this section which occurs after the filing of the 
statement, the disputed portion of the record will be clearly noted and 
the recipient shall be provided copies of the statement of disagreement. 
If appropriate, a concise statement of the reasons of the Presidio Trust 
for not making the requested amendments may also be provided to the 
recipient.
    (c) Maintenance of statements. System managers shall develop 
procedures to assure that statements of disagreement filed with them 
shall be maintained in such a way as to assure dissemination of the 
statements to recipients of the records to which the statements pertain.



PART 1009_ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT--Table of 

Contents




Sec.
1009.1 Purpose.
1009.2 Procedure for filing claims.
1009.3 Denial of claims.
1009.4 Payment of claims.
1009.5 Indemnification of Presidio Trust directors and employees.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note); 
28 U.S.C. 2672.

    Source: 63 FR 71784, Dec. 30, 1998, unless otherwise noted.



Sec. 1009.1  Purpose.

    The purpose of this part is to establish procedures for the filing 
and settlement of claims under the Federal Tort Claims Act (in part, 28 
U.S.C. secs. 2401(b), 2671-2680, as amended by Pub. L. 89-506, 80 Stat. 
306). The officers

[[Page 247]]

to whom authority is delegated to settle tort claims shall follow and be 
guided by the regulations issued by the Attorney General prescribing 
standards and procedures for settlement of tort claims (28 CFR part 14).



Sec. 1009.2  Procedure for filing claims.

    (a) The procedure for filing and the contents of claims shall be 
pursuant to 28 CFR 14.2, 14.3 and 14.4.
    (b) Claims shall be filed directly with the Presidio Trust.
    (c) Upon receipt of a claim, the time and date of receipt shall be 
recorded. The claim shall be forwarded with the investigative file 
immediately to the General Counsel for determination.



Sec. 1009.3  Denial of claims.

    Denial of a claim shall be communicated as provided by 28 CFR 14.9.



Sec. 1009.4  Payment of claims.

    (a) When an award of $2,500 or less is made, the voucher signed by 
the claimant shall be transmitted for payment to the Presidio Trust. 
When an award over $2,500 is made, transmittal for payment will be made 
as prescribed by 28 CFR 14.10.
    (b) Prior to payment, appropriate releases shall be obtained as 
provided in 28 CFR 14.10.



Sec. 1009.5  Indemnification of Presidio Trust directors and employees.

    (a) The Presidio Trust may indemnify a Presidio Trust director or 
employee who is personally named as a defendant in any civil suit in 
state or federal court or an arbitration proceeding or other proceeding 
seeking damages against a Presidio Trust director or employee 
personally, for any verdict, judgment, or other monetary award which is 
rendered against such director or employee, provided that the conduct 
giving rise to the verdict, judgment, or award was taken within the 
scope of his or her duties or employment and that such indemnification 
is in the interest of the Presidio Trust as determined by
    (1) The Board, with respect to claims against an employee; or
    (2) A majority of the Board, exclusive of the director against whom 
claims have been made, with respect to claims against a director.
    (b) The Presidio Trust may settle or compromise a personal damage 
claim against a Presidio Trust director or employee by the payment of 
available funds, at any time, provided the alleged conduct giving rise 
to the personal damage claim was taken within the scope of the duties or 
employment of the director or employee and that such settlement or 
compromise is in the interest of the Presidio Trust as determined by:
    (1) the Board, with respect to claims against an employee; or
    (2) a majority of the Board, exclusive of the director against whom 
claims have been made, with respect to claims against a director.
    (c) The Presidio Trust will not entertain a request either to agree 
to indemnify or to settle a personal damage claim before entry of an 
adverse verdict, judgment, or award, unless exceptional circumstances 
exist as determined by:
    (1) the Board, with respect to claims against an employee; or
    (2) a majority of the Board, exclusive of the director against whom 
claims have been made, with respect to claims against a director.
    (d) A Presidio Trust director or employee may request 
indemnification to satisfy a verdict, judgment, or award entered against 
the director or employee. The director or employee shall submit a 
written request, with appropriate documentation including copies of the 
verdict, judgment, award, or settlement proposal, in a timely manner to 
the General Counsel, who shall make a recommended disposition of the 
request. Where appropriate, the Presidio Trust shall seek the views of 
the Department of Justice. The General Counsel shall forward the 
request, the accompanying documentation, and the General Counsel's 
recommendation to the Board for decision. In the event that a claim is 
made against the General Counsel, the Chair shall designate a director 
or employee of the Trust to fulfill the duties otherwise assigned to the 
General Counsel under this section.

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    (e) Any payment under this section either to indemnify a Presidio 
Trust director or employee or to settle a personal damage claim shall be 
contingent upon the availability of funds.



PART 1010_ENVIRONMENTAL QUALITY--Table of Contents




Sec.
1010.1 Policy.
1010.2 Purpose.
1010.3 Definitions.
1010.4 NEPA Compliance Coordinator.
1010.5 Major decision points.
1010.6 Determination of requirement for EA or EIS.
1010.7 Actions that do not require an EA or EIS.
1010.8 Actions that normally require an EIS.
1010.9 Preparation of an EIS.
1010.10 Actions that normally require an EA.
1010.11 Preparation of an EA.
1010.12 Public involvement.
1010.13 Trust decision-making procedures.
1010.14 Review of proposals by project applicants.
1010.15 Actions where lead agency designation is necessary.
1010.16 Actions to encourage agency cooperation early in the NEPA 
          process.
1010.17 Actions to eliminate duplication with State and local 
          procedures.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. sec. 460bb 
note); 42 U.S.C. sec. 4321 et seq.; 40 CFR 1507.3.

    Source: 65 FR 55905, Sept. 15, 2000, unless otherwise noted.



Sec. 1010.1  Policy.

    The Presidio Trust's policy is to:
    (a) Use all practical means, consistent with the Trust's statutory 
authority, available resources, and national policy, to protect and 
enhance the quality of the human environment;
    (b) Ensure that environmental factors and concerns are given 
appropriate consideration in decisions and actions by the Trust;
    (c) Use systematic and timely approaches which will ensure the 
integrated use of the natural and social sciences and environmental 
design arts in planning and decision-making which may have an impact on 
the human environment;
    (d) Develop and utilize ecological, cultural, and other 
environmental information in the management of the Presidio Trust Area 
and its natural, historic, scenic, cultural, and recreational resources 
pursuant to the Trust Act;
    (e) Invite the cooperation and encourage the participation, where 
appropriate, of Federal, State, and local authorities and the public in 
Trust planning and decision-making processes that affect the quality of 
the human environment; and
    (f) Minimize any possible adverse effects of Trust decisions and 
actions upon the quality of the human environment.



Sec. 1010.2  Purpose.

    The regulations in this part incorporate and supplement the Council 
on Environmental Quality's (CEQ) regulations at 40 CFR parts 1500 
through 1508 for implementing the procedural provisions of the National 
Environmental Policy Act of 1969, as amended (NEPA), and otherwise to 
describe how the Trust intends to consider environmental factors and 
concerns in the Trust's decision-making process within the requirements 
set forth in NEPA and CEQ regulations.



Sec. 1010.3  Definitions.

    (a) The following terms have the following meanings as used in this 
part:
    Decision-maker means the Board or its designee.
    EA means an environmental assessment, as defined at 40 CFR 1508.9.
    EIS means an environmental impact statement, as defined at 40 CFR 
1508.11.
    Project applicant means an individual, firm, partnership, 
corporation, joint venture, or other public or private entity other than 
the Trust (including a combination of more than one such entities) which 
seeks to demolish, construct, reconstruct, develop, preserve, 
rehabilitate, or restore real property within the Presidio Trust Area.
    (b) If not defined in this part or in this chapter, other terms used 
in this part have the same meanings as those provided in 40 CFR part 
1508.



Sec. 1010.4  NEPA Compliance Coordinator.

    (a) The NEPA Compliance Coordinator, as designated by the Executive

[[Page 249]]

Director, shall be the Trust official responsible for implementation and 
operation of the Trust's policies and procedures on environmental 
quality and control. The delegation of this responsibility shall not 
abrogate the responsibility of the Executive Director and the Board to 
ensure that NEPA and other applicable laws are followed, or the right of 
the Executive Director and the Board to overrule or alter decisions of 
the NEPA Compliance Coordinator in accordance with the Trust's 
regulations and procedures.
    (b) The NEPA Compliance Coordinator shall:
    (1) Coordinate the formulation and revision of Trust policies and 
procedures on matters pertaining to environmental protection and 
enhancement;
    (2) Establish and maintain working relationships with relevant 
government agencies concerned with environmental matters;
    (3) Develop procedures within the Trust's planning and decision-
making processes to ensure that environmental factors are properly 
considered in all proposals and decisions in accordance with this part;
    (4) Develop, monitor, and review the Trust's implementation of 
standards, procedures, and working relationships for protection and 
enhancement of environmental quality and compliance with applicable laws 
and regulations;
    (5) Monitor processes to ensure that the Trust's procedures 
regarding consideration of environmental quality are achieving their 
intended purposes;
    (6) Advise the Board, officers, and employees of the Trust of 
technical and management requirements of environmental analysis, of 
appropriate expertise available, and, in consultation with the Trust's 
General Counsel, of relevant legal developments;
    (7) Monitor the consideration and documentation of the environmental 
aspects of the Trust's planning and decision-making processes by 
appropriate officers and employees of the Trust;
    (8) Ensure that all EA's and EIS's are prepared in accordance with 
the appropriate regulations adopted by the CEQ and the Trust;
    (9) Consolidate and transmit to appropriate parties the Trust's 
comments on EIS's and other environmental reports prepared by other 
agencies;
    (10) Acquire information and prepare appropriate reports on 
environmental matters required of the Trust;
    (11) Coordinate Trust efforts to make available to other parties 
information and advice on the Trust's policies for protecting and 
enhancing the quality of the environment; and
    (12) Designate other Trust employees to execute these duties under 
the supervision of the NEPA Compliance Coordinator, where necessary for 
administrative convenience and efficiency. As used in this chapter, the 
term ``NEPA Compliance Coordinator'' includes any such designee.



Sec. 1010.5  Major decision points.

    (a) The possible environmental effects of a proposed action or 
project within the Presidio Trust Area must be considered along with 
technical, financial, and other factors throughout the decision-making 
process. Most Trust projects have three distinct stages in the decision-
making process:
    (1) Conceptual or preliminary study stage;
    (2) Detailed planning or final decision stage;
    (3) Implementation stage.
    (b) Environmental review will be integrated into the decision-making 
process of the Trust as follows:
    (1) During the conceptual or preliminary study stage, the NEPA 
Compliance Coordinator shall determine whether the proposed action or 
project is one which is categorically excluded under Sec. 1010.7, has 
been adequately reviewed in a previously prepared EA and/or EIS, or 
requires further NEPA review (i.e., an EA or an EIS).
    (2) If the proposed action or project is not categorically excluded 
and has not been adequately reviewed in a previously prepared EA and/or 
EIS, then prior to the Trust's proceeding beyond the conceptual or 
preliminary study stage, the NEPA Compliance Coordinator must determine 
whether an EIS is required. When appropriate, prior to the determination 
as to whether an EIS is required, the NEPA Compliance Coordinator may 
initiate a public scoping process in order to inform such a 
determination.

[[Page 250]]

    (3) If an EIS is determined to be necessary, the Trust shall 
initiate a public scoping process in accordance with 40 CFR 1501.7. An 
EIS, if determined necessary, must be completed and circulated at the 
earliest point at which meaningful analysis can be developed for the 
proposed action or project and prior to the Trust's final approval of 
the proposed action or project.



Sec. 1010.6  Determination of requirement for EA or EIS.

    In deciding whether to require the preparation of an EA or an EIS, 
the NEPA Compliance Coordinator will determine whether the proposal is 
one that:
    (a) Normally does not require either an EA or an EIS;
    (b) Normally requires an EIS; or
    (c) Normally requires an EA, but not necessarily an EIS.



Sec. 1010.7  Actions that do not require an EA or EIS.

    (a) Categorical Exclusions. Pursuant to 40 CFR 1508.4, the Trust has 
determined that the categories of action identified in this paragraph 
have no significant effect, either individually or cumulatively, on the 
human environment and are therefore categorically excluded. Such actions 
(whether approved by the Trust or undertaken by the Trust directly or 
indirectly) do not require the preparation of an EA or an EIS:
    (1) Personnel actions and investigations and personal services 
contracts;
    (2) Administrative actions and operations directly related to the 
operation of the Trust (e.g., purchase of furnishings, services, and 
equipment) provided such actions and operations are consistent with 
applicable Executive Orders;
    (3) Internal organizational changes and facility and office 
expansions, reductions, and closings;
    (4) Routine financial transactions, including such things as 
salaries and expenses, procurement, guarantees, financial assistance, 
income transfers, audits, fees, bonds and royalties;
    (5) Management, formulation, allocation, transfer and reprogramming 
of the Trust's budget;
    (6) Routine and continuing government business, including such 
things as supervision, administration, operations, maintenance, and 
replacement activities having limited context and intensity (limited 
size and magnitude or short-term effects);
    (7) Preparation, issuance, and submittal of publications and routine 
reports;
    (8) Activities which are educational, informational, or advisory 
(including interpretive programs), or otherwise in consultation with or 
providing technical assistance to other agencies, public and private 
entities, visitors, individuals, or the general public;
    (9) Legislative proposals of an administrative or technical nature, 
including such things as changes in authorizations for appropriations or 
financing authority, minor boundary changes and land transactions; or 
having primarily economic, social, individual or institutional effects, 
as well as comments and reports on legislative proposals;
    (10) Proposal, adoption, revision, and termination of policies, 
directives, regulations, and guidelines:
    (i) That are of an administrative, financial, legal, technical, or 
procedural nature, the environmental effects of which are too broad, 
speculative, or conjectural to lend themselves to environmental analysis 
and the implementation of which will be subject to the NEPA process 
either collectively or on a case-by-case basis; or
    (ii) Where such actions will not potentially:
    (A) Increase public use to the extent of compromising the nature and 
character of the area or of causing significant physical damage to it;
    (B) Introduce non-compatible uses that might compromise the nature 
and characteristics of the area or cause significant physical damage to 
it;
    (C) Conflict with adjacent ownerships or land uses; or
    (D) Cause a significant nuisance to adjacent owners or occupants;
    (11) Preparation, approval, coordination, and implementation of 
plans, including priorities, justifications, and strategies, for 
research, monitoring, inventorying, and information gathering that is 
not or is only minimally manipulative and causes no or only minimal 
physical damage;

[[Page 251]]

    (12) Identification, nomination, certification, and determination of 
eligibility of properties for listing in the National Register of 
Historic Places and the National Historic Landmark and National Natural 
Landmark Programs;
    (13) Minor or temporary changes in amounts or types of visitor use 
for the purpose of ensuring visitor safety or resource protection, minor 
changes in programs or regulations pertaining to visitor activities, and 
approval of permits or other use and occupancy agreements for special 
events or public assemblies and meetings, provided such events, 
assemblies, and meetings entail only short-term or readily mitigated 
environmental impacts;
    (14) Designation of environmental study areas and research areas, 
including those closed temporarily or permanently to the public, 
provided such designation would cause no or only minimal environmental 
impact;
    (15) Land and boundary surveys and minor boundary adjustments or 
transfers of administrative jurisdiction resulting in no significant 
change in land use;
    (16) Archaeological surveys and permits involving only surface 
collection or small-scale test excavations;
    (17) Changes or amendments to an approved plan or action when such 
changes or amendments would cause no or only minimal environmental 
impact;
    (18) Contracts, work authorizations, or procurement actions related 
to proposals, programs, and master agreements related to administrative 
operation of the Trust;
    (19) The leasing, permitting, sale, or financing of, or granting of 
non-fee interests regarding, real or personal property in the Presidio 
Trust Area, provided that such actions would have no or only minimal 
environmental impact;
    (20) Extension, reissuance, renewal, minor modification, or 
conversion in form of agreements for use of real property (including but 
not limited to leases, permits, licenses, concession contracts, use and 
occupancy agreements, easements, and rights-of-way), so long as such 
agreements were previously subject to NEPA and do not involve new 
construction or new or substantially greater environmental impacts, and 
so long as no new information is known or no changed circumstances have 
occurred that would give rise to new or substantially greater 
environmental impacts.
    (21) Rehabilitation, modification, or improvement of historic 
properties that have been determined to be in conformance with the 
Secretary of the Interior's ``Standards for the Treatment of Historic 
Properties'' at 36 CFR part 68 and that would have no or only minimal 
environmental impact;
    (22) Rehabilitation, maintenance, modification or improvement of 
non-historic properties that is consistent with applicable Executive 
Orders, provided there is no potential for significant environmental 
impacts, including impacts to cultural landscapes or archaeological 
resources;
    (23) Removal, reduction, or restraint of resident individuals of 
species that are not threatened or endangered which pose dangers to 
visitors, residents, or neighbors or immediate threats to resources of 
the Presidio Trust Area;
    (24) Removal of non-historic materials and structures in order to 
restore natural conditions when such removal has no potential for 
significant environmental impacts, including impacts to cultural 
landscapes or archaeological resources and is consistent with applicable 
Executive Orders;
    (25) Installation of signs, displays, and kiosks, etc.;
    (26) Replacement of minor structures and facilities (e.g., signs, 
kiosks, fences, comfort stations, and parking lots) with little or no 
change in location, capacity, or appearance;
    (27) Repair, resurfacing, striping, installation of traffic control 
devices, and repair/replacement of guardrails, culverts, signs, and 
other minor features, on existing roads and parking facilities, provided 
there is no potential for significant environmental impact;
    (28) Minor trail relocation, development of compatible trail 
networks on roads or other formally established routes, and trail 
maintenance and repair;
    (29) Construction or rehabilitation in previously disturbed or 
developed areas

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required to meet health or safety regulations, or to meet requirements 
for making facilities accessible to the handicapped provided such 
construction or rehabilitation is implemented in a manner consistent 
with applicable Executive Orders;
    (30) Landscaping and landscape maintenance in previously disturbed 
or developed areas;
    (31) Minor changes in programs and regulations pertaining to visitor 
activities;
    (32) Routine maintenance, property management, and resource 
management, with no potential for significant environmental impact and 
that are consistent with the Secretary of the Interior's ``Standards for 
the Treatment of Historic Properties'' at 36 CFR part 68, as applicable, 
and with applicable Executive Orders;
    (33) Upgrading or adding new utility facilities to existing poles, 
or replacement poles which do not change existing pole line 
configurations.
    (34) Issuance of rights-of-way for overhead utility lines to an 
individual building or well from an existing line where installation 
will not result in significant visual intrusion or non-conformance with 
the Secretary's ``Standards for the Treatment of Historic Properties'' 
at 36 CFR part 68, as applicable, and will involve no clearance of 
vegetation other than for placement of poles;
    (35) Issuance of rights-of-way for minor overhead utility lines not 
involving placement of poles or towers and not involving vegetation 
management or significant visual intrusion in an area administered by 
NPS or the Trust or non-conformance with the Secretary's ``Standards for 
the Treatment of Historic Properties'' at 36 CFR part 68, as applicable;
    (36) Installation of underground utilities in previously disturbed 
areas having stable soils, or in an existing utility right-of-way; and
    (37) Experimental testing of no longer than 180 days of mass transit 
systems, and changes in operation of existing systems with no potential 
for significant environmental impact.
    (b) Extraordinary circumstances. An action that falls into one or 
more of the categories in paragraph (a) of this section may still 
require the preparation of an EIS or an EA if the NEPA Compliance 
Coordinator determines that it meets the criteria stated in Sec. 
1010.8(b) or Sec. 1010.10(b), respectively, or involves extraordinary 
circumstances that may have a significant environmental effect. At its 
discretion, the Trust may require the preparation of an EA or an EIS for 
a proposal or action that otherwise qualifies for a categorical 
exclusion. Criteria used in determining whether to prepare an EA or EIS 
for an action that otherwise qualifies for a categorical exclusion 
include whether an action may:
    (1) Have significant adverse effects on public health or safety;
    (2) Have significant adverse effects on such unique geographic 
characteristics as historic or cultural resources, park, recreation or 
refuge lands, sole or principal drinking water aquifers, wetlands, 
floodplains, or ecologically significant or critical areas;
    (3) Have highly controversial environmental effects;
    (4) Have highly uncertain and potentially significant environmental 
effects or involve unique or unknown environmental risks;
    (5) Establish a precedent for future action or represent a decision 
in principle about future actions with potentially significant 
environmental effects;
    (6) Be directly related to other actions with individually 
insignificant but cumulatively significant environmental effects;
    (7) Have significant adverse effects on properties listed or 
eligible for listing on the National Register of Historic Places;
    (8) Have significant adverse effects on species listed or proposed 
to be listed on the List of Endangered or Threatened Species, or have 
adverse effects on designated Critical Habitat for these species;
    (9) Require compliance with Executive Order 11988 (Floodplain 
Management), Executive Order 11990 (Protection of Wetlands), Executive 
Order 13007 (Indian Sacred Sites), or the Fish and Wildlife Coordination 
Act; and/or

[[Page 253]]

    (10) Threaten to violate a Federal, State, local or tribal law or 
requirement imposed for the protection of the environment.



Sec. 1010.8  Actions that normally require an EIS.

    (a) General procedure. So long as a proposed action or project is 
not categorically excluded under Sec. 1010.7, the Trust shall require 
the preparation of an EA to determine if the proposed action or project 
requires an EIS. Nevertheless, if it is readily apparent to the NEPA 
Compliance Coordinator that the proposed action or project will have a 
significant impact on the environment, an EA is not required, and the 
Trust will prepare or direct the preparation of an EIS without preparing 
or completing the preparation of an EA. To assist the NEPA Compliance 
Coordinator in determining if a proposal or action normally requires the 
preparation of an EIS, the following criteria and categories of action 
are provided.
    (b) Criteria. Criteria used to determine whether proposals or 
actions may significantly affect the environment and therefore require 
an EIS are described in 40 CFR 1508.27.
    (c) Categories of action. The following categories of action 
normally require an EIS:
    (1) Legislative proposals made by the Trust to the United States 
Congress, other than those described in Sec. 1010.7(b)(9);
    (2) Approval, funding, construction, and/or demolition in 
preparation for construction of any new building, if that activity has a 
significant effect on the human environment;
    (3) Proposals that would significantly alter the kind and amount of 
natural, recreational, historical, scenic, or cultural resources of the 
Presidio Trust Area or the integrity of the setting; and
    (4) Approval or amendment of a general land use or resource 
management plan for the entire Presidio Trust Area.



Sec. 1010.9  Preparation of an EIS.

    (a) Notice of intent. When the Trust decides to prepare an EIS, it 
shall publish a notice of intent in the Federal Register in accordance 
with 40 CFR 1501.7 and 1508.22. Where there is a lengthy period between 
the Trust's decision to prepare an EIS and the time of actual 
preparation, then at the discretion of the NEPA Compliance Coordinator 
the notice of intent shall be published at a reasonable time in advance 
of preparation of the EIS.
    (b) Preparation. After having determined that an EIS will be 
prepared and having published the notice of intent, the Trust will begin 
to prepare or to direct the preparation of the EIS. The EIS shall be 
formatted in accordance with 40 CFR 1502.10.
    (c) Supplemental environmental impact statements. The Trust may 
supplement a draft or final EIS at any time. The Trust shall prepare a 
supplement to either a draft or final EIS when:
    (1) Substantial changes are proposed to an action analyzed in the 
draft or final EIS that are relevant to environmental concerns;
    (2) There are significant new circumstances or information relevant 
to environmental concerns and bearing on the proposed action or its 
impacts; or
    (3) Actions are proposed which relate to or are similar to other 
actions taken or proposed and that together will have a cumulatively 
significant impact on the human environment.



Sec. 1010.10  Actions that normally require an EA.

    (a) General procedure. If a proposal or action is not one that 
normally requires an EIS, and does not qualify for a categorical 
exclusion under Sec. 1010.7, the Trust will require, prepare, or direct 
the preparation of an EA. An EA should be prepared when the Trust has 
insufficient information on which to determine whether a proposal may 
have significant impacts. An EA assists the Trust in complying with NEPA 
when no EIS is necessary, and it facilitates the preparation of an EIS, 
if one is necessary.
    (b) Criteria. Criteria used to determine those categories of action 
that normally require an EA, but not necessarily an EIS, include:
    (1) Potential for degradation of environmental quality;
    (2) Potential for cumulative adverse impact on environmental 
quality; and

[[Page 254]]

    (3) Potential for adverse impact on protected resources (e.g., 
natural, scenic, recreational, historical, and cultural resources).
    (c) Categories of action. The following categories of action 
normally require the preparation of an EA:
    (1) Promulgation of regulations and requirements that are not 
categorically excluded;
    (2) Proposals submitted by project applicants to the Trust for its 
review, as described in Sec. 1010.14;
    (3) Proposals to add or alter access between the Presidio Trust Area 
and surrounding neighborhoods; and
    (4) Contracts, work authorizations, and master agreements related to 
and implementing programs, policies, and proposals which are not 
categorically excluded and for which there is no previously prepared EA 
and/or EIS.



Sec. 1010.11  Preparation of an EA.

    (a) When to prepare. The Trust will begin the preparation of an EA 
(or require it to be begun) as early as possible after it is determined 
by the NEPA Compliance Coordinator to be required. The Trust will 
provide notice of such determinations in accordance with Sec. 1010.12. 
The Trust may prepare or require an EA at any time to assist planning 
and decision-making.
    (b) Content and format. An EA is a concise public document used to 
determine whether to prepare an EIS. An EA should address impacts, 
including cumulative impacts, on those resources that are specifically 
relevant to the particular proposal. Those impacts should be addressed 
in as much detail as is necessary to allow an analysis of the 
alternatives and the proposal. The EA shall contain brief discussions of 
the following topics:
    (1) Purpose and need for the proposed action.
    (2) Description of the proposed action.
    (3) Alternatives considered, including a No Action alternative.
    (4) Environmental effects of the proposed action and the 
alternatives, including mitigation measures.
    (5) Listing of agencies, organizations, and/or persons consulted.
    (c) Finding of no significant impact (FONSI). If an EA is completed 
and the NEPA Compliance Coordinator determines that an EIS is not 
required, then the NEPA Compliance Coordinator shall prepare a finding 
of no significant impact. The finding of no significant impact shall be 
made available to the public by the Trust as specified in 40 CFR 1506.6.
    (d) Mitigated FONSI. If an EA is completed and the NEPA Compliance 
Coordinator determines that an EIS is required, then prior to 
preparation of an EIS, the proposal may be revised in order to mitigate 
the impacts identified in the EA through adherence to legal 
requirements, inclusion of mitigation as an integral part of the 
proposal, and/or fundamental changes to the proposal. A supplemental EA 
will be prepared on the revised proposal and will result in a Mitigated 
Finding of No Significant Impact, preparation of an EIS, or additional 
revision of the proposal and a supplemental EA.



Sec. 1010.12  Public involvement.

    The Trust will make public involvement an essential part of its 
environmental review process. Public notice of anticipated Trust actions 
that may have a significant environmental impact, opportunities for 
involvement, and availability of environmental documents will be 
provided through announcements in the Trust's monthly newsletter, 
postings on its web site (www.presidiotrust.gov), placement of public 
notices in newspapers, direct mailings, and other means appropriate for 
involving the public in a meaningful way. The Trust will conduct scoping 
with interested federal, state and local agencies and Indian tribes, 
will solicit and accept written scoping comments and will hold public 
scoping meetings to gather early input whenever it determines an EIS to 
be necessary and otherwise as appropriate. Notice of all public scoping 
meetings will be given in a timely manner. Interested persons may also 
obtain information concerning any pending EIS or any other element of 
the environmental review process of the Trust by contacting the NEPA 
Compliance Coordinator at the following address: Presidio Trust, P.O. 
Box 29052, San Francisco, California 94129-0052.

[[Page 255]]



Sec. 1010.13  Trust decision-making procedures.

    To ensure that at major decision-making points all relevant 
environmental concerns are considered by the decision-maker, the 
following procedures are established.
    (a) An environmental document (i.e., the EA, finding of no 
significant impact, EIS, or notice of intent), in addition to being 
prepared at the earliest point in the decision-making process, shall 
accompany the relevant proposal or action through the Trust's decision-
making process to ensure adequate consideration of environmental 
factors.
    (b) The Trust shall consider in its decision-making process only 
decision alternatives encompassed by the range of alternatives discussed 
in the relevant environmental documents. Also, where an EIS has been 
prepared, the Trust shall consider all alternatives described in the 
EIS, a written record of the consideration of alternatives during the 
decision-making process shall be maintained, and a monitoring and 
enforcement program shall be adopted and summarized where applicable for 
any mitigation.
    (c) Any environmental document prepared for a proposal or action 
shall be made part of the record of any formal rulemaking by the Trust.



Sec. 1010.14  Review of proposals by project applicants.

    (a) An EA shall be required for each proposal for demolition, 
construction, reconstruction, development, preservation, rehabilitation, 
or restoration of real property submitted by a project applicant to the 
Trust for its review, and which the decision-maker agrees to consider, 
unless categorically excluded or covered by a previously prepared EA 
and/or EIS.
    (b) The decision-maker may not take any approval action on such a 
proposal submitted by a project applicant until such time as the 
appropriate environmental review documents have been prepared and 
submitted to the decision-maker.
    (c) At a minimum, and as part of any submission made by a project 
applicant to the decision-maker for its approval, such project applicant 
shall make available data and materials concerning the proposal 
sufficient to permit the Trust to carry out its environmental review 
responsibilities. When requested, the project applicant shall provide 
additional information that the NEPA Compliance Coordinator believes is 
necessary to permit it to satisfy its environmental review functions.
    (d) With respect to each project proposed for consideration for 
which the NEPA Compliance Coordinator determines that an EA shall be 
prepared, the decision-maker may require a project applicant to submit a 
draft EA regarding its proposal for the Trust's evaluation and revision. 
In accordance with 40 CFR 1506.5(b), the Trust shall make its own 
evaluation of the environmental issues and shall take responsibility for 
the scope and content of the final EA.
    (e) With respect to each project proposed for consideration for 
which the NEPA Compliance Coordinator determines an EIS shall be 
prepared, the decision-maker may require a project applicant to pay a 
non-refundable fee to the Trust sufficient to cover a portion or all of 
the Trust's anticipated costs associated with preparation and review of 
the EIS, including costs associated with review under other applicable 
laws. Such fee shall be paid to the Trust in full prior to commencement 
of the preparation of the EIS or any amendment or supplement thereto.
    (f) In accordance with 40 CFR 1506.5(c), the EIS shall be prepared 
by the Trust and/or by contractors who are selected by the Trust and who 
certify that they have no financial or other interest in the outcome of 
the project, and the Trust shall independently evaluate the EIS prior to 
its approval and take responsibility for ensuring its adequacy. The EIS 
shall be prepared in accordance with 40 CFR part 1502.
    (g) The NEPA Compliance Coordinator may set time limits for 
environmental review appropriate to each proposal, consistent with 40 
CFR 1501.8 and 1506.10.
    (h) The NEPA Compliance Coordinator shall at the earliest possible 
time ensure that the Trust commences its environmental review on a 
proposed

[[Page 256]]

project and shall provide the project applicant with any policies or 
information deemed appropriate in order to permit effective and timely 
review by the Trust of a proposal once it is submitted to the decision-
maker for approval.



Sec. 1010.15  Actions where lead agency designation is necessary.

    (a) Consistent with 40 CFR 1501.5, where a proposed action by the 
Trust involves one or more other Federal agencies, or where actions by 
the Trust and one or more Federal agencies are directly related to each 
other because of their functional interdependence or geographical 
proximity, the Trust will seek designation as lead agency for those 
actions that relate solely to the Presidio Trust Area.
    (b) For an action that qualifies as one for which the Trust will 
seek designation as lead agency, the Trust will promptly consult with 
the appropriate Federal agencies to establish lead agency, joint lead 
agency, and/or cooperating agency designations.
    (c) For an action as to which the Trust undertakes lead, joint lead, 
or cooperating agency status, the Trust is authorized to enter into a 
memorandum of understanding or agreement to define the rights and 
responsibilities of the relevant agencies.



Sec. 1010.16  Actions to encourage agency cooperation early in the NEPA 

process.

    Consistent with 40 CFR 1501.6, the Trust may request the NPS to be a 
cooperating agency for actions or projects significantly affecting the 
quality of the Presidio. In addition, upon request of the Trust, any 
other Federal, State, local, or tribal agency that has jurisdiction by 
law or special expertise with respect to any environmental issue that 
should be addressed in the analysis may be a cooperating agency. The 
Trust shall use the environmental analysis and proposals of cooperating 
agencies with jurisdiction by law or special expertise to the maximum 
extent possible consistent with its responsibility as lead or joint lead 
agency.



Sec. 1010.17  Actions to eliminate duplication with State and local 

procedures.

    Consistent with 40 CFR 1506.2, the Trust shall cooperate with State 
and local agencies to the fullest extent possible to reduce duplication 
between NEPA and State and local requirements. Such cooperation shall to 
the fullest extent possible include:
    (a) Joint planning processes;
    (b) Joint environmental research and studies;
    (c) Joint public hearings (except where otherwise provided by 
statute); and
    (d) Joint environmental assessments and/or Environmental Impact 
Statements/Environmental Impact Reports.



PART 1011_DEBT COLLECTION--Table of Contents




                      Subpart A_General Provisions

Sec.
1011.1 What definitions apply to the regulations in this part?
1011.2 Why is the Presidio Trust issuing these regulations and what do 
          they cover?
1011.3 Do these regulations adopt the Federal Claims Collection 
          Standards?

          Subpart B_Procedures To Collect Presidio Trust Debts

1011.4 What notice will the Presidio Trust send to a debtor when 
          collecting a debt?
1011.5 What interest, penalty charges and administrative costs will the 
          Presidio Trust add to a debt?
1011.6 When will the Presidio Trust allow a debtor to enter into a 
          repayment agreement?
1011.7 When will the Presidio Trust compromise a debt?
1011.8 When will the Presidio Trust suspend or terminate debt collection 
          on a debt?
1011.9 When will the Presidio Trust transfer a debt to the Financial 
          Management Service for collection?
1011.10 How will the Presidio Trust use administrative offset (offset of 
          non-tax federal payments) to collect a debt?
1011.11 How will the Presidio Trust use tax refund offset to collect a 
          debt?
1011.12 How will the Presidio Trust offset a Federal employee's salary 
          to collect a debt?
1011.13 How will the Presidio Trust use administrative wage garnishment 
          to collect a debt from a debtor's wages?
1011.14 How will the Presidio Trust report debts to credit bureaus?

[[Page 257]]

1011.15 How will the Presidio Trust refer debts to private collection 
          contractors?
1011.16 When will the Presidio Trust refer debts to the Department of 
          Justice?
1011.17 Will a debtor who owes a debt be ineligible for Presidio Trust 
          licenses, permits, leases, privileges or services?
1011.18 How does a debtor request a special review based on a change in 
          circumstances such as catastrophic illness, divorce, death or 
          disability?
1011.19 Will the Presidio Trust issue a refund if money is erroneously 
          collected on a debt?
1011.20 Will the Presidio Trust's failure to comply with these 
          regulations be a defense to a debt?

 Subpart C_Procedures for Offset of Presidio Trust Payments To Collect 
                  Debts Owed To Other Federal Agencies

1011.21 How do other Federal agencies use the offset process to collect 
          debts from payments issued by the Presidio Trust?
1011.22 What does the Presidio Trust do upon receipt of a request to 
          offset the salary of a Presidio Trust employee to collect a 
          debt owed by the employee to another Federal agency?

    Authority: 16 U.S.C. 460bb appendix, as amended.

    Source: 70 FR 73588, Dec. 13, 2005, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1011.1  What definitions apply to the regulations in this part?

    As used in this part:
    Administrative offset or offset means withholding funds payable by 
the United States (including funds payable by the United States on 
behalf of a State Government) to, or held by the United States for, a 
person to satisfy a debt owed by the person. The term ``administrative 
offset'' includes, without limitation, the offset of federal salary, 
vendor, retirement, and Social Security benefit payments. The terms 
``centralized administrative offset'' and ``centralized offset'' refer 
to the process by which the Treasury Department's Financial Management 
Service offsets federal payments through the Treasury Offset Program.
    Administrative wage garnishment means the process by which a Federal 
agency may, without first obtaining a court order, order a non-Federal 
employer to withhold amounts from a debtor's wages to satisfy a 
delinquent debt.
    Agency or Federal agency means a department, agency, court, court 
administrative office, or instrumentality in the executive, judicial or 
legislative branch of the federal government, including government 
corporations.
    Certification means a written statement received by a paying agency 
or disbursing official that requests the paying agency or disbursing 
official to offset the salary of an employee and specifies that required 
procedural protections have been afforded the employee.
    Compromise means the settlement or forgiveness of all or a portion 
of a debt.
    Creditor agency means any Federal agency that is owed a debt and 
includes a debt collection center when it is acting on behalf of the 
Presidio Trust.
    Debt means any amount of money, funds or property that has been 
determined by an appropriate agency official to be owed to the United 
States by a person. As used in this part, the term ``debt'' does not 
include debts arising under the Internal Revenue Code.
    Debt collection center means the Treasury Department or any agency 
or division designated by the Secretary of the Treasury with authority 
to collect debts on behalf of creditor agencies.
    Debtor means a person who owes a debt to the United States.
    Delinquent debt means a debt that has not been paid by the date 
specified in the Presidio Trust's initial written demand for payment or 
applicable agreement or instrument (including a post-delinquency payment 
agreement) unless other satisfactory payment arrangements have been 
made.
    Disposable pay means that part of an employee's pay that remains 
after deductions that are required by law to be withheld have been made.
    Employee or Federal employee means a current employee of the 
Presidio Trust or other Federal agency, including a current member of 
the Armed Forces, Reserve of the Armed Forces of the United States or of 
the National Guard.
    FCCS means the Federal Claims Collection Standards, which were 
jointly published by the Departments of the

[[Page 258]]

Treasury and Justice and codified at 31 CFR parts 900-904.
    FMS means the Financial Management Service, a bureau of the Treasury 
Department, which is responsible for the centralized collection of 
delinquent debts through the offset of Federal payments and other means.
    IRS means the Internal Revenue Service.
    Paying agency means any agency that is making payments of any kind 
to a debtor. In some cases, the Presidio Trust may be both the paying 
agency and the creditor agency.
    Person means an individual, corporation, partnership, association, 
organization, state or local government, or any other type of entity 
other than a Federal agency.
    Private collection contractor means a private debt collector under 
contract with an agency to collect a non-tax debt owed to the Presidio 
Trust.
    Salary offset means a type of administrative offset to collect a 
debt owed by a Federal employee from the current pay account of the 
employee.
    Tax refund offset means the reduction of a tax refund by the amount 
of a delinquent debt owed to the Presidio Trust.
    Treasury Department means the United States Department of the 
Treasury.
    Treasury Offset Program means the Treasury Department's program for 
withholding funds payable by the United States to a person to satisfy a 
debt owed by the person utilizing the Financial Management Service's 
system that compares information about payments with information about 
debts.



Sec. 1011.2  Why is the Presidio Trust issuing these regulations and what do 

they cover?

    (a) Scope. The Presidio Trust is issuing these regulations to 
provide procedures for the collection of debts owed to the Presidio 
Trust. This part also provides procedures for collection of other debts 
owed to the United States when a request for offset of a Treasury 
payment is received by the Treasury Department from another agency (for 
example, when a Presidio Trust employee owes a debt to the United States 
Department of Education).
    (b) Applicability. (1) This part applies to the Presidio Trust when 
collecting a debt and to persons who owe a debt to the Presidio Trust, 
or to Federal agencies requesting offset of a payment issued by the 
Presidio Trust as a paying agency (including salary payments to Presidio 
Trust employees).
    (2) This part does not apply to tax debts.
    (3) Nothing in this part precludes collection or disposition of any 
debt under statutes and regulations other than those described in this 
part.
    (c) Additional policies, guidelines and procedures. The Presidio 
Trust may adopt additional policies, guidelines and procedures 
consistent with this part and other applicable law.
    (d) Duplication not required. Nothing in this part requires the 
Presidio Trust to duplicate notices or administrative proceedings 
required by contract, this part or other laws or regulations.
    (e) Use of multiple collection remedies allowed. The Presidio Trust 
may simultaneously use multiple collection remedies to collect a debt, 
except as prohibited by law. This part is intended to promote aggressive 
debt collection, using for each debt all available collection remedies. 
These remedies are not listed in any prescribed order to provide the 
Presidio Trust with flexibility in determining which remedies will be 
most efficient in collecting the particular debt.
    (f) Cross-servicing with the Treasury Department. These regulations 
authorize the Presidio Trust to enter a cross-servicing agreement with 
the Treasury Department under which the Treasury Department will take 
authorized action to collect debts owed to the Presidio Trust.



Sec. 1011.3  Do these regulations adopt the Federal Claims Collections 

Standards?

    This part adopts and incorporates all provisions of the FCCS. This 
part also supplements the FCCS by prescribing procedures consistent with 
the FCCS, as necessary and appropriate for Presidio Trust operations.

[[Page 259]]



          Subpart B_Procedures To Collect Presidio Trust Debts



Sec. 1011.4  What notice will the Presidio Trust send to a debtor when 

collecting a debt?

    (a) Notice requirements. The Presidio Trust will aggressively 
collect debts. The Presidio Trust will send at least one written notice 
to a debtor informing the debtor of the consequences of failing to pay 
or otherwise resolve a debt. The notice(s) will be sent to the debtor's 
most current address for the debtor in the records of the Presidio 
Trust. Except as otherwise provided in paragraph (b) of this section, 
the written notice(s) will explain to the debtor:
    (1) The amount, nature and basis of the debt;
    (2) How interest, penalty charges and administrative costs are added 
to the debt, the date by which payment should be made to avoid such 
charges, and that such assessments must be made unless waived (see Sec. 
1011.5 of this part);
    (3) The date by which payment is due and that the debt will be 
considered delinquent if payment is not received by the Presidio Trust 
by the due date, which date will not be less than 30 days after the date 
of the notice, and the date by which payment must be received by the 
Presidio Trust to avoid the enforced collection actions described in 
paragraph (a)(6) of this section, which date will not be less than 60 
days after the date of the notice;
    (4) How the debtor may enter into a written agreement to repay the 
debt voluntarily under terms acceptable to the Presidio Trust (see Sec. 
1011.6 of this part);
    (5) The name, address and telephone number of a contact person 
within the Presidio Trust;
    (6) The Presidio Trust's intention to enforce collection if the 
debtor fails to pay or otherwise resolve the debt, by taking one or more 
of the following actions:
    (i) Use administrative offset or other offset to offset the debtor's 
federal payments, including, without limitation, income tax refunds, 
salary, certain benefit payments (such as Social Security), retirement, 
vendor, travel reimbursements and advances, and other federal payments 
(see Sec. 1011.10 through 1011.12 of this part);
    (ii) Refer the debt to a private collection agency (see Sec. 
1011.15 of this part);
    (iii) Report the debt to a credit bureau (see Sec. 1011.14 of this 
part);
    (iv) Garnish the debtor's wages through administrative wage 
garnishment (see Sec. 1011.13 of this part);
    (v) Refer the debt to the Department of Justice to initiate 
litigation to collect the debt (see Sec. 1011.16 of this part);
    (vi) Refer the debt to the FMS for collection (see Sec. 1011.9 of 
this part);
    (7) That debts over 180 days delinquent must be referred to the FMS 
for the collection actions described in paragraph (a)(6) of this section 
(see Sec. 1011.9 of this part);
    (8) How the debtor may inspect and obtain copies of disclosable 
records related to the debt;
    (9) How the debtor may request a review of the Presidio Trust's 
determination that the debtor owes a debt.
    (10) How a debtor may request a hearing if the Presidio Trust 
intends to garnish the debtor's non-Federal wages (see Sec. 1011.13(a) 
of this part), including:
    (i) The method and time period for requesting a hearing;
    (ii) That the timely filing of a request for a hearing on or before 
the 15th business day following the date of the notice will stay the 
commencement of administrative wage garnishment, but not necessarily 
other collection procedures; and
    (iii) The name and address of the office to which the request for a 
hearing should be sent.
    (11) How a debtor who is a Federal employee subject to Federal 
salary offset may request a hearing (see Sec. 1011.12(e) of this part), 
including:
    (i) The method and time period for requesting a hearing;
    (ii) That the timely filing of a request for a hearing on or before 
the 15th business day following the date of the notice will stay the 
commencement of salary offset, but not necessarily other collection 
procedures;
    (iii) The name and address of the office to which the request for a 
hearing should be sent;
    (iv) That the Presidio Trust will refer the debt to the debtor's 
employing agency or to the FMS to implement

[[Page 260]]

salary offset, unless the employee files a timely request for a hearing;
    (v) That a final decision on the hearing, if requested, will be 
issued at the earliest practical date, but not later than 60 days after 
the filing of the request for a hearing, unless the employee requests 
and the hearing official grants a delay in the proceedings;
    (vi) That any knowingly false or frivolous statements, 
representations or evidence may subject the Federal employee to 
penalties under the False Claims Act (31 U.S.C. 3729-3731) or other 
applicable statutory authority, and criminal penalties under 18 U.S.C. 
286, 287, 1001, and 1002, or other applicable statutory authority;
    (vii) That unless prohibited by contract or statute, amounts paid on 
or deducted for the debt which are later waived or found not owed to the 
United States will be promptly refunded to the employee; and
    (viii) That proceedings with respect to such debt are governed by 5 
U.S.C. 5514 and 31 U.S.C. 3716;
    (12) That the debtor may request a waiver of the debt;
    (13) That the debtor's spouse may claim the spouse's share of a 
joint income tax refund by filing Form 8379 with the IRS;
    (14) That the debtor may exercise other statutory or regulatory 
rights and remedies available to the debtor;
    (15) That the Presidio Trust may suspend or revoke any licenses, 
permits, leases, privileges or services for failure to pay a debt (see 
Sec. 1011.17 of this part); and
    (16) That the debtor should advise the Presidio Trust of a 
bankruptcy proceeding of the debtor or another person liable for the 
debt being collected.
    (b) Exceptions to notice requirements. The Presidio Trust may omit 
from a notice to a debtor one or more of the provisions contained in 
paragraphs (a)(6) through (a)(16) of this section if the Presidio Trust, 
in consultation with its General Counsel, determines that any provision 
is not legally required given the collection remedies to be applied to a 
particular debt.
    (c) Respond to debtors. The Presidio Trust will respond promptly to 
communications from debtors.



Sec. 1011.5  What interest, penalty charges and administrative costs will the 

Presidio Trust add to a debt?

    (a) Interest. (1) The Presidio Trust will assess interest on all 
delinquent debts unless prohibited by statute, regulation or contract.
    (2) Interest begins to accrue on all debts from the date the debt 
becomes delinquent. The Presidio Trust will waive collection of interest 
on that portion of the debt that is paid within 30 days after the date 
on which interest begins to accrue. The Presidio Trust will assess 
interest at the rate established by the Treasury Department under 31 
U.S.C. 3717, unless a different rate is established by a contract, 
repayment agreement or statute. The Presidio Trust will notify the 
debtor of the basis for the interest rate assessed.
    (b) Penalty. The Presidio Trust will assess a penalty of not more 
than 6% a year, or such other higher rate as authorized by law, on any 
portion of a debt that is delinquent for more than 90 days.
    (c) Administrative costs. The Presidio Trust will assess charges to 
cover administrative costs incurred as a result of the debtor's failure 
to pay a debt. The Presidio Trust will waive collection of 
administrative costs on that portion of the debt that is paid within 30 
days after the date on which the administrative costs begin to accrue. 
Administrative costs include the costs of processing and handling a 
debt, obtaining a credit report, using a private collection contractor, 
costs of a hearing including, the costs of a hearing officer, and 
service fees charged by a Federal agency for collection activities 
undertaken on behalf of the Presidio Trust.
    (d) Allocation of payments. A partial or installment payment by a 
debtor will be applied first to outstanding penalty assessments, second 
to administrative costs, third to accrued interest, and fourth to 
outstanding debt principal.
    (e) Additional authority. The Presidio Trust may have additional 
policies, guidelines and procedures regarding how interest, penalties 
and administrative costs are assessed on particular types of debts. The 
Presidio Trust will

[[Page 261]]

explain in the notice to the debtor described in Sec. 1011.4 of this 
part how interest, penalties, administrative costs and other charges are 
assessed, unless the requirements are included in a contract or 
repayment agreement.
    (f) Waiver. (1) The Presidio Trust may waive collection of all or 
part of accrued interest, penalties and administrative costs when it 
would be against equity and good conscience or not in the Presidio 
Trust's best interest to collect such charges.
    (2) A decision to waive interest, penalties or administrative costs 
may be made at any time before a debt is paid. However, unless otherwise 
provided in these regulations, when these charges have been collected 
before the waiver decision, they will not be refunded.
    (g) Accrual during suspension of debt collection. In most cases, 
interest, penalties and administrative costs will continue to accrue 
during any period when collection has been suspended for any reason (for 
example, when the debtor has requested a hearing). The Presidio Trust 
may suspend accrual of any or all of these charges when accrual would be 
against equity and good conscience or not in the Presidio Trust's best 
interest.

[70 FR 73588, Dec. 13, 2005; 71 FR 2109, Jan. 12, 2006]



Sec. 1011.6  When will the Presidio Trust allow a debtor to enter into a 

repayment agreement?

    (a) Voluntary repayment. In response to a notice of a debt, the 
debtor may propose to the Presidio Trust the voluntary repayment of the 
debt in lieu of the Presidio Trust taking other collection actions under 
this part.
    (b) Debtor's request. The request from the debtor must:
    (1) Be in writing;
    (2) Admit the existence of the entire debt; and
    (3) Either propose payment of the debt (together with interest, 
penalties and administrative costs) in a lump sum, or set forth a 
proposed repayment schedule.
    (c) Repayment schedule. The Presidio Trust will collect debts in one 
lump sum whenever feasible. The Presidio Trust may accept payment in 
regular installments that bear a reasonable relationship to the size of 
the debt.
    (d) Repayment agreement. The Presidio Trust will consider a request 
to enter into a voluntary repayment agreement in accordance with the 
FCCS. The Presidio Trust may request additional information from the 
debtor, including, without limitation, financial statements, in order to 
determine whether to enter into a voluntary repayment agreement. The 
Presidio Trust will set the necessary terms of any repayment agreement. 
No repayment agreement will be binding on the Presidio Trust unless it 
is in writing and signed by both the debtor and an authorized Presidio 
Trust representative. The Presidio Trust is not required to enter into a 
repayment agreement.



Sec. 1011.7  When will the Presidio Trust compromise a debt?

    (a) Authority. The Presidio Trust may compromise a debt in 
accordance with the FCCS and such procedures as the Presidio Trust may 
adopt. (See Sec. 1011.16 of this subpart).
    (b) Report to IRS. The uncollected portion of a debt owed to the 
Presidio Trust that is not recovered as the result of a compromise will 
be reported to the IRS as income to the debtor in accordance with IRS 
and Presidio Trust procedures.



Sec. 1011.8  When will the Presidio Trust suspend or terminate debt collection 

on a debt?

    If, after pursuing all appropriate means of collection, the Presidio 
Trust determines that a debt is uncollectible, the Presidio Trust may 
suspend or terminate debt collection activity in accordance with the 
FCCS and the Presidio Trust's procedures.



Sec. 1011.9  When will the Presidio Trust transfer a debt to the Financial 

Management Service for collection?

    (a) Cross-servicing. The Presidio Trust will transfer any eligible 
debt that is more than 180 days delinquent to the FMS for debt 
collection services, a process known as ``cross-servicing.'' The 
Presidio Trust may transfer debts delinquent 180 days or less to the FMS 
in accordance with the procedures described in 31 CFR 285.12. The FMS

[[Page 262]]

takes appropriate action to collect or compromise the transferred debt, 
or to suspend or terminate collection action thereon, in accordance with 
the statutory and regulatory requirements and authorities applicable to 
the debt and the collection action to be taken. Appropriate action 
includes, without limitation, contact with the debtor, referral of the 
debt to the Treasury Offset Program, private collection agencies or the 
Department of Justice, reporting of the debt to credit bureaus, and 
administrative wage garnishment.
    (b) Notice; certification. At least 60 days prior to transferring a 
debt to the FMS, the Presidio Trust will send notice to the debtor as 
required by Sec. 1011.4 of this part. The Presidio Trust will certify 
to the FMS, in writing, that the debt is valid, delinquent, legally 
enforceable and that there are no legal bars to collection. In addition, 
the Presidio Trust will certify its compliance with all applicable due 
process and other requirements as described in this part and other 
Federal laws.
    (c) Treasury Offset Program. As part of its debt collection process, 
the FMS uses the Treasury Offset Program to collect debts by 
administrative and tax refund offset. The Treasury Offset Program is a 
centralized offset program administered by the FMS to collect delinquent 
debts owed to Federal agencies and states (including past-due child 
support). Under the Treasury Offset Program, before a federal payment is 
disbursed, the FMS compares the name and taxpayer identification number 
(TIN) of the payee with the names and TINs of debtors that have been 
submitted by Federal agencies and states to the Treasury Offset Program 
database. If there is a match, the FMS (or, in some cases, another 
Federal disbursing agency) offsets all or a portion of the federal 
payment, disburses any remaining payment to the payee, and pays the 
offset amount to the creditor agency. Federal payments eligible for 
offset include, without limitation, income tax refunds, salary, travel 
advances and reimbursements, retirement and vendor payments, and Social 
Security and other benefit payments.



Sec. 1011.10  How will the Presidio Trust use administrative offset (offset of 

non-tax federal payments) to collect a debt?

    (a) Centralized administrative offset through the Treasury Offset 
Program. (1) If not already transferred to the FMS under Sec. 1011.9 of 
this part, the Presidio Trust will refer any eligible debt over 180 days 
delinquent to the Treasury Offset Program for collection by centralized 
administrative offset. The Presidio Trust may refer any eligible debt 
less than 180 days delinquent to the Treasury Offset Program for offset.
    (2) At least 60 days prior to referring a debt to the Treasury 
Offset Program, in accordance with paragraph (a)(1) of this section, the 
Presidio Trust will send notice to the debtor in accordance with the 
requirements of Sec. 1011.4 of this part. The Presidio Trust will 
certify to the FMS, in writing, that the debt is valid, delinquent, 
legally enforceable and that there are no legal bars to collection by 
offset. In addition, the Presidio Trust will certify its compliance with 
the due process requirements under 31 U.S.C. 3716(a) and with the 
requirements described in this part.
    (b) Non-centralized administrative offset for a debt. (1) When 
centralized administrative offset through the Treasury Offset Program is 
not available or appropriate, the Presidio Trust may collect delinquent, 
legally enforceable debts through non-centralized administrative offset. 
In these cases, the Presidio Trust may offset a payment internally or 
make an offset request directly to a federal paying agency.
    (2) At least 30 days prior to offsetting a payment internally or 
requesting a federal paying agency to offset a payment, the Presidio 
Trust will send notice to the debtor in accordance with the requirements 
of Sec. 1011.4 of this part. When referring a debt for offset under 
this paragraph (b), the Presidio Trust will certify, in writing, that 
the debt is valid, delinquent, legally enforceable and that there are no 
legal bars to collection by offset. In addition, the Presidio Trust will 
certify its compliance with the due process requirements under 31 U.S.C. 
3716(a) and with these regulations concerning administrative offset.

[[Page 263]]

    (c) Administrative review. The notice described in Sec. 1011.4 of 
this part will explain to the debtor how to request an administrative 
review of the Presidio Trust determination that the debtor owes a debt 
and how to present evidence that the debt is not delinquent or legally 
enforceable. In addition to challenging the existence and amount of the 
debt, the debtor may seek a review of the terms of repayment. In most 
cases, the Presidio Trust will provide the debtor with a ``paper 
hearing'' based upon a review of the written record, including 
documentation provided by the debtor. The Presidio Trust will provide 
the debtor with a reasonable opportunity for an oral hearing when the 
debtor requests reconsideration of the debt and the Presidio Trust 
determines that the question of the indebtedness cannot be resolved by 
review of the documentary evidence, for example, when the validity of 
the debt turns on an issue of credibility or veracity. Unless otherwise 
required by law, an oral hearing under this section is not required to 
be a formal evidentiary hearing, although the Presidio Trust will 
document all significant matters presented at the hearing. The Presidio 
Trust may suspend collection through administrative offset and/or other 
collection actions pending the resolution of a debtor's dispute. The 
Presidio Trust may establish policies, guidelines and procedures 
concerning the administrative review process consistent with the FCCS 
and the regulations in this section.
    (d) Procedures for expedited offset. Under the circumstances 
described by the FCCS, the Presidio Trust may effect an offset against a 
payment to be made to the debtor prior to sending a notice to the 
debtor, as described in Sec. 1011.4 of this part, or completing the 
procedures described in paragraph (b)(2) and (c) of this section. The 
Presidio Trust will give the debtor notice and an opportunity for review 
as soon as practicable and promptly refund any money ultimately found 
not to have been owed to the Government.



Sec. 1011.11  How will the Presidio Trust use tax refund offset to collect a 

debt?

    (a) Tax refund offset. In most cases, the FMS uses the Treasury 
Offset Program to collect debts by the offset of tax refunds and other 
federal payments. See Sec. 1011.9(c) of this part. If not already 
transferred to the FMS under Sec. 1011.9 of this part, the Presidio 
Trust will refer to the Treasury Offset Program any delinquent, legally 
enforceable debt for collection by tax refund offset.
    (b) Notice; certification. At least 60 days prior to referring a 
debt to the Treasury Offset Program, the Presidio Trust will send notice 
to the debtor in accordance with the requirements of Sec. 1011.4 of 
this part. The Presidio Trust will certify to the FMS's Treasury Offset 
Program, in writing, that the debt is delinquent and legally enforceable 
in the amount submitted and that the Presidio Trust has made reasonable 
efforts to obtain payment of the debt. In addition, the Presidio Trust 
will certify its compliance with all applicable due process and other 
requirements described in this part and other applicable law.
    (c) Administrative review. The notice described in Sec. 1011.4 of 
this part will provide the debtor with at least 60 days prior to the 
initiation of tax refund offset to request an administrative review as 
described in Sec. 1011.10(c) of this part. The Presidio Trust may 
suspend collection through tax refund offset and/or other collection 
actions pending the resolution of the debtor's dispute.



Sec. 1011.12  How will the Presidio Trust offset a Federal employee's salary 

to collect a debt?

    (a) Federal salary offset. (1) Salary offset is used to collect 
debts owed to the United States by Federal employees. If a Presidio 
Trust employee owes a debt, the Presidio Trust may offset the employee's 
federal salary to collect the debt in the manner described in this 
section. For information on how a Federal agency other than the Presidio 
Trust may collect a debt from the salary of a Presidio Trust employee, 
see Sec. 1011.21 and 1011.22, subpart C, of this part.

[[Page 264]]

    (2) Nothing in this part requires the Presidio Trust to collect a 
debt in accordance with the provisions of this section if Federal law 
allows otherwise.
    (b) Centralized salary offset through the Treasury Offset Program. 
As described in Sec. 1011.9(a) of this part, the Presidio Trust will 
refer debts to the FMS for collection by administrative offset, 
including salary offset, through the Treasury Offset Program.
    (c) Non-centralized salary offset for Treasury debts. The Presidio 
Trust may collect delinquent debts through non-centralized salary 
offset. In these cases, the Presidio Trust may offset a payment 
internally or make a request directly to a paying agency to offset a 
salary payment to collect a delinquent debt owed by a Federal employee. 
At least 30 days prior to offsetting internally or requesting a Federal 
agency to offset a salary payment, the Presidio Trust will send notice 
to the debtor in accordance with the requirements of Sec. 1011.4 of 
this part. When referring a debt for offset, the Presidio Trust will 
certify to the paying agency, in writing, that the debt is valid, 
delinquent and legally enforceable in the amount stated, and there are 
no legal bars to collection by salary offset. In addition, the Presidio 
Trust will certify that all due process and other prerequisites to 
salary offset have been met. See 5 U.S.C. 5514, 31 U.S.C. 3716(a), and 
this section for a description of the process for salary offset.
    (d) When prior notice not required. The Presidio Trust is not 
required to provide prior notice to a Presidio Trust employee when the 
following adjustments are made:
    (1) Any adjustment to pay arising out of a Presidio Trust employee's 
election of coverage or a change in coverage under a Federal benefits 
program requiring periodic deductions from pay, if the amount to be 
recovered was accumulated over four pay periods or fewer;
    (2) A routine intra-agency adjustment of pay that is made to correct 
an overpayment of pay attributable to clerical or administrative errors 
or delays in processing pay documents, if the overpayment occurred 
within the four pay periods preceding the adjustment, and, at the time 
of such adjustment, or as soon thereafter as practical, the individual 
is provided written notice of the nature and the amount of the 
adjustment and point of contact for contesting such adjustment; or
    (3) Any adjustment to collect a debt amounting to $50 or less, if, 
at the time of such adjustment, or as soon thereafter as practical, the 
individual is provided written notice of the nature and the amount of 
the adjustment and a point of contact for contesting such adjustment.
    (e) Hearing procedures. (1) Request for a hearing. A Presidio Trust 
employee who has received a notice that a debt will be collected by 
means of salary offset may request a hearing concerning the existence or 
amount of the debt. The 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 Sec. 1011.4(a)(11). 
The request must be received by the designated office on or before the 
15th business 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.
    (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 (e)(1) of this section, the employee will have waived the 
right to a hearing, and salary offset may be initiated. However, the 
Presidio Trust may 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. The Presidio Trust hearing must be conducted 
by a hearing official who is not under the supervision or control of the 
Board of Directors of the Presidio Trust. The hearing official need not 
be an employee of the Federal Government.
    (4) Notice of hearing. After the employee requests a hearing, a 
designated

[[Page 265]]

hearing official will inform the employee of the form of the hearing to 
be provided. For oral hearings, the notice will set forth the date, time 
and location of the hearing. For paper hearings, the notice will notify 
the employee of the date by which the employee should submit written 
arguments to the designated hearing official. The hearing official will 
give the employee reasonable time to submit documentation in support of 
the employee's position. The hearing official will schedule a new 
hearing date if requested by both parties. The hearing official will 
give both parties reasonable notice of the time and place of a 
rescheduled hearing.
    (5) Oral hearing. The hearing official will conduct an oral hearing 
if the official determines that the matter cannot be resolved by review 
of documentary evidence alone (for example, when an issue of credibility 
or veracity is involved). The hearing official will determine the 
procedure for the oral hearing, determining, for example, the hearing 
length.
    (6) Paper hearing. If the hearing official determines that an oral 
hearing is not necessary, the official will make the determination based 
upon a review of the available written record, including any 
documentation submitted by the employee in support of the employee's 
position.
    (7) Date of decision. The hearing official will issue a written 
opinion setting forth the decision, based upon documentary evidence and 
information developed at the hearing, as soon as practicable after the 
hearing.
    (8) Final agency action. The hearing official's decision will be 
final.
    (f) Salary offset process. (1) Determination of disposable pay. The 
Presidio Trust payroll office will determine the amount of the 
employee's disposable pay (as defined in Sec. 1011.1 of this part) and 
will implement salary offset.
    (2) When salary offset begins. Deductions will begin within three 
official pay periods.
    (3) Amount of salary offset. The amount to be offset from each 
salary payment will be up to 15% of the employee's disposable pay, as 
follows:
    (i) If the amount of the debt is equal to or less than 15% of the 
disposable pay, such debt generally will be collected in one lump sum 
payment;
    (ii) Installment deductions will be made over a period of no greater 
than the anticipated period of employment. An installment deduction will 
not exceed 15% of the disposable pay from which the deduction is made 
unless the employee has agreed in writing to the deduction of a greater 
amount.
    (4) Final salary payment. After the employee's employment with the 
Presidio Trust ends, the Presidio Trust may make a lump sum deduction 
exceeding 15% of disposable pay from any final salary or other payments 
in order to satisfy a debt.



Sec. 1011.13  How will the Presidio Trust use administrative wage garnishment 

to collect a debt from a debtor's wages?

    (a) Authority and process. The Presidio Trust is authorized to 
collect debts from a debtor's wages by means of administrative wage 
garnishment in accordance with the requirements of the FCCS and other 
applicable law. This part adopts and incorporates all of the provisions 
of 31 CFR 285.11 concerning administrative wage garnishment, including 
the hearing procedures described therein. The Presidio Trust may use 
administrative wage garnishment to collect a delinquent debt unless the 
debtor is making timely payments under an agreement to pay the debt in 
installments (see Sec. 1011.6 of this part). At least 30 days prior to 
initiating an administrative wage garnishment, the Presidio Trust will 
send notice to the debtor in accordance with the requirements of Sec. 
1011.4 of this part, including the requirements of Sec. 1011.4(a)(10) 
of this part. For debts referred to the FMS under Sec. 1011.9 of this 
part, the Presidio Trust may authorize the FMS to send a notice 
informing the debtor that administrative wage garnishment will be 
initiated and how the debtor may request a hearing as described in Sec. 
1011.4(a)(10) of this part. If a debtor makes a timely request for a 
hearing, administrative wage garnishment will not begin until a hearing 
is held and a decision is sent to the debtor. If a debtor's hearing 
request is not timely, the Presidio Trust may suspend

[[Page 266]]

collection by administrative wage garnishment. All travel expenses 
incurred by the debtor in connection with an in-person hearing will be 
borne by the debtor.
    (b) Not applicable to federal salary offset. This section does not 
apply to federal salary offset, the process by which the Presidio Trust 
collects debts from the salaries of Federal employees (see Sec. 1011.12 
of this part).



Sec. 1011.14  How will the Presidio Trust report debts to credit bureaus?

    The Presidio Trust will report delinquent debts to credit bureaus in 
accordance with the provisions of 31 U.S.C. 3711(e) and the FCCS. At 
least 60 days prior to reporting a delinquent debt to a consumer 
reporting agency, the Presidio Trust will send notice to the debtor in 
accordance with the requirements of Sec. 1011.4 of this part. The 
Presidio Trust may authorize the FMS to report to credit bureaus those 
delinquent debts that have been transferred to the FMS under Sec. 
1011.9 of this part.



Sec. 1011.15  How will the Presidio Trust refer debts to private collection 

contractors?

    The Presidio Trust will transfer delinquent debts to the FMS to 
obtain debt collection services provided by private collection 
contractors. See Sec. 1011.9 of this part.



Sec. 1011.16  When will the Presidio Trust refer debts to the Department of 

Justice?

    (a) Compromise or suspension or termination of collection activity. 
The Presidio Trust will refer debts having a principal balance over 
$100,000, or such higher amount as authorized by the Attorney General, 
to the Department of Justice for approval of any compromise of a debt or 
suspension or termination of collection activity. See the FCCS and Sec. 
1011.7 and 1011.8 of this part.
    (b) Litigation. The Presidio Trust will promptly refer to the 
Department of Justice for litigation delinquent debts on which 
aggressive collection activity has been taken in accordance with this 
part that the Presidio Trust determines should not be compromised, and 
on which collection activity should not be suspended or terminated. The 
Presidio Trust may authorize the FMS to refer to the Department of 
Justice for litigation those delinquent debts that have been transferred 
to the FMS under Sec. 1011.9 of this part.



Sec. 1011.17  Will a debtor who owes a debt be ineligible for Presidio Trust 

licenses, permits, leases, privileges or services?

    Unless prohibited by law, the Presidio Trust may terminate, suspend 
or revoke licenses, permits, leases (subject to the terms of the 
leases), or other privileges or services for any inexcusable or willful 
failure of a debtor to pay a debt. The Presidio Trust may establish 
guidelines and procedures governing termination, suspension and 
revocation for delinquent debtors. If applicable, the Presidio Trust 
will advise the debtor in the notice required by Sec. 1011.4 of this 
part of the Presidio Trust's ability to suspend or revoke licenses, 
permits, leases, or privileges or services.



Sec. 1011.18  How does a debtor request a special review based on a change in 

circumstances such as catastrophic illness, divorce, death or disability?

    (a) Material change in circumstances. A debtor who owes a debt may, 
at any time, request a special review by the Presidio Trust of the 
amount of any offset, administrative wage garnishment or voluntary 
payment, based on materially changed circumstances beyond the control of 
the debtor such as, without limitation, catastrophic illness, divorce, 
death or disability.
    (b) Inability to pay. For purposes of this section, in determining 
whether an involuntary or voluntary payment would prevent the debtor 
from meeting essential subsistence expenses (costs incurred for food, 
housing, clothing, transportation and medical care), the debtor must 
submit a detailed statement and supporting documents for the debtor, the 
debtor's, and dependents, indicating:
    (1) Income from all sources;
    (2) Assets;
    (3) Liabilities;
    (4) Number of dependents;
    (5) Expenses for food, housing, clothing and transportation;
    (6) Medical expenses; and
    (7) Exceptional expenses, if any.

[[Page 267]]

    (c) Alternative payment arrangement. If the debtor requests a 
special review under this section, the debtor must submit an alternative 
proposed payment schedule and a statement to the Presidio Trust, with 
supporting documents, showing why the current offset, garnishment or 
repayment schedule imposes an extreme financial hardship on the debtor. 
The Presidio Trust will evaluate the statement and documentation and 
determine whether the current offset, garnishment or repayment schedule 
imposes extreme financial hardship on the debtor. The Presidio Trust 
will notify the debtor in writing of such determination, including, if 
appropriate, a revised offset, garnishment or payment schedule. If the 
special review results in a revised offset, garnishment or repayment 
schedule, the Presidio Trust will notify the appropriate agency or other 
persons about the new terms.



Sec. 1011.19  Will the Presidio Trust issue a refund if money is erroneously 

collected on a debt?

    The Presidio Trust will promptly refund to a debtor any amount 
collected on a debt when the debt is waived or otherwise found not to be 
owed to the United States, or as otherwise required by law. Refunds 
under this part will not bear interest unless required by law.



Sec. 1011.20  Will the Presidio Trust's failure to comply with these 

regulations be a defense to a debt?

    No, the failure of the Presidio Trust to comply with any standard in 
the FCCS, these regulations or such other procedures of the Presidio 
Trust will not be available to any debtor as a defense.



 Subpart C_Procedures for Offset of Presidio Trust Payments To Collect 
                  Debts Owed To Other Federal Agencies



Sec. 1011.21  How do other Federal agencies use the offset process to collect 

debts from payments issued by the Presidio Trust?

    (a) Offset of Presidio Trust payments to collect debts owed to other 
Federal agencies. (1) In most cases, Federal agencies submit eligible 
debts to the Treasury Offset Program to collect delinquent debts from 
payments issued by other Federal agencies, a process known as 
``centralized offset.'' When centralized offset is not available or 
appropriate, any Federal agency may ask the Presidio Trust (when acting 
as a paying agency) to collect a debt owed to such agency by offsetting 
funds payable to a debtor by the Presidio Trust, including salary 
payments issued to the Presidio Trust employees. This section and Sec. 
1011.22 of this subpart C apply when a Federal agency asks the Presidio 
Trust to offset a payment issued by the Presidio Trust to a person who 
owes a debt to the United States.
    (2) This subpart C does not apply to the collection of debts through 
tax refund offset.
    (b) Administrative offset (including salary offset); certification. 
The Presidio Trust will initiate a requested offset only upon receipt of 
written certification from the creditor agency that the debtor owes the 
delinquent, legally enforceable debt in the amount stated, and that the 
creditor agency has fully complied with all applicable due process and 
other requirements, and the creditor agency's regulations, as 
applicable. Offsets will continue until the debt is paid in full or 
otherwise resolved to the satisfaction of the creditor agency.
    (c) Where a creditor agency makes requests for offset. Requests for 
offset under this section must be sent to the Presidio Trust, ATTN: 
Chief Financial Officer, P.O. Box 29052, San Francisco, CA 94129-0052.
    (d) Incomplete certification. The Presidio Trust will return an 
incomplete debt certification to the creditor agency with notice that 
the creditor agency must comply with paragraph (b) of this section 
before action will be taken to collect a debt from a payment issued by 
the Presidio Trust.
    (e) Review. The Presidio Trust is not authorized to review the 
merits of the creditor agency's determination with respect to the amount 
or validity of the debt certified by the creditor agency.
    (f) When the Presidio Trust will not comply with offset request. The 
Presidio

[[Page 268]]

Trust will comply with the offset request of another agency unless the 
Presidio Trust determines that the offset would not be in the best 
interests of the United States, or would otherwise be contrary to law.
    (g) Multiple debts. When two or more creditor agencies are seeking 
offsets from payments made to the same person, or when two or more debts 
are owed to a single creditor agency, the Presidio Trust may determine 
the order in which the debts will be collected or whether one or more 
debts should be collected by offset simultaneously.
    (h) Priority of debts owed to the Presidio Trust. For purposes of 
this section, debts owed to the Presidio Trust generally take precedence 
over debts owed to other agencies. The Presidio Trust may determine 
whether to pay debts owed to other agencies before paying a debt owed to 
the Presidio Trust. The Presidio Trust will determine the order in which 
the debts will be collected based on the best interests of the United 
States.



Sec. 1011.22  What does the Presidio Trust do upon receipt of a request to 

offset the salary of a Presidio Trust employee to collect a debt owed by the 

employee to another Federal agency?

    (a) Notice to the Presidio Trust employee. When the Presidio Trust 
receives proper certification of a debt owed by one of its employees, 
the Presidio Trust will begin deductions from the employee's pay at the 
next officially established pay interval. The Presidio Trust will send a 
written notice to the employee indicating that a certified debt claim 
has been received from the creditor agency, the amount of the debt 
claimed to be owed to the creditor agency, the date deductions from 
salary will begin, and the amount of such deductions.
    (b) Amount of deductions from a Presidio Trust employee's salary. 
The amount deducted under Sec. 1011.21(b) of this part will be the 
lesser of the amount of the debt certified by the creditor agency or an 
amount up to 15% of the debtor's disposable pay. Deductions will 
continue until the Presidio Trust knows that 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. See Sec. 1011.12(g) (salary offset process).
    (c) When the debtor is no longer employed by the Presidio Trust--(1) 
Offset of final and subsequent payments. If the Presidio Trust employee 
retires or resigns or if his or her employment ends before collection of 
the debt is complete, the Presidio Trust will continue to offset 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 the Presidio Trust.
    (2) Notice to the creditor agency. If the employee's employment with 
the Presidio Trust terminates before the debt is paid in full, the 
Presidio Trust will certify to the creditor agency the total amount of 
its collection. If the Presidio Trust is aware that the employee is 
entitled to payments from the Civil Service Retirement and Disability 
Fund, Federal Employee Retirement System, or other similar payments, the 
Presidio Trust will provide written notice to the agency making such 
payments that the debtor owes a debt (including the amount) and 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 Sec. 1011.9(c) of this part.
    (3) Notice to the debtor. The Presidio Trust will provide to the 
debtor a copy of any notices sent to the creditor agency under paragraph 
(c)(2) of this section.
    (d) When the debtor transfers to another Federal agency--(1) Notice 
to the creditor agency. If the debtor transfers to another Federal 
agency before the debt is paid in full, the Presidio Trust will notify 
the creditor agency and will certify the total amount of its collection 
on the debt. The Presidio Trust will provide a copy of the certification 
to the creditor agency. The creditor agency is responsible for 
submitting a

[[Page 269]]

certified claim to the debtor's new employing agency before collection 
may begin.
    (2) Notice to the debtor. The Presidio Trust will provide to the 
debtor a copy of any notices and certifications sent to the creditor 
agency under paragraph (d)(1) of this section.
    (e) Request for hearing official. The Presidio Trust will provide a 
hearing official upon the creditor agency's request with respect to the 
Presidio Trust employee.

[[Page 271]]



 CHAPTER XI--ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD




  --------------------------------------------------------------------
Part                                                                Page
1120            Public availability of information..........         273
1121            Privacy Act implementation..................         287
1150            Practice and procedures for compliance 
                    hearings................................         289
1151            Bylaws......................................         302
1154            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the 
                    Architectural and Transportation 
                    Barriers Compliance Board...............         306
1191            Americans with Disabilities Act (ADA) 
                    accessibility guidelines for buildings 
                    and facilities; Architectural Barriers 
                    Act (ABA) accessibility guidelines......         311
1192            Americans with Disabilities Act (ADA) 
                    accessibility guidelines for 
                    transportation vehicles.................         617
1193            Telecommunications Act accessibility 
                    guidelines..............................         657
1194            Electronic and information technology 
                    accessibility standards.................         676
1195-1199

 [Reserved]

[[Page 273]]



PART 1120_PUBLIC AVAILABILITY OF INFORMATION--Table of Contents




                            Subpart A_General

Sec.
1120.1 Purpose and scope of this part.
1120.2 Definitions.
1120.3 Existing records.

                     Subpart B_Published Information

1120.5 Information published in the Federal Register.
1120.6 Information in A&TBCB publications.

Subpart C_Records Available for Public Inspection and Copying, Documents 
                          Published and Indexed

1120.11 Records available for inspection.
1120.12 Indexes to certain records.
1120.13 Effect of nonavailability.

              Subpart D_Information Available Upon Request

1120.21 Policy on disclosure of records.
1120.22 Requests to which this subpart applies.
1120.23 Where requests for agency records must be filed.
1120.24 Misdirected written requests; oral requests.
1120.25 Form of requests.
1120.26 Deficient descriptions.
1120.31 A&TBCB receipt of requests; responsibilities of Freedom of 
          Information Officer.
1120.32 A&TBCB action on requests.
1120.33 Time allowed for initial action on requests.
1120.34 Initial denials of requests.
1120.36 Appeals from initial denials.
1120.37 A&TBCB action on appeals.
1120.38 Time allowed for action on appeals.
1120.41 Exempt documents.
1120.42 Release of exempt documents.

            Subpart E_Copies of Records and Fees for Services

1120.51 Charges for services, generally.
1120.52 Computerized records.
1120.53 Payment of fees.

    Authority: 5 U.S.C. 552, the Freedom of Information Act, as amended.

    Source: 45 FR 80976, Dec. 8, 1980, unless otherwise noted.



                            Subpart A_General



Sec. 1120.1  Purpose and scope of this part.

    This part contains the general rules of the Architectural and 
Transportation Barriers Compliance Board for public access to Board 
records. These regulations implement 5 U.S.C. 552, the Freedom of 
Information Act, as amended, and the policy of the Board. It is the 
Board's policy to disseminate information on matters of interest to the 
public and to disclose on request all information contained in records 
in its custody insofar as is compatible with the discharge of its 
responsibilities and consistent with the law. This part sets forth 
generally the categories of records accessible to the public, the types 
of records subject to prohibitions or restrictions on disclosure, and 
the places and procedures to obtain information from records in the 
custody of the A&TBCB.



Sec. 1120.2  Definitions.

    For the purposes of this part:
    (a) A&TBCB or Board means the Architectural and Transportation 
Barriers Compliance Board.
    (b) A&TBCB record or record means any document, writing, photograph, 
sound or magnetic recording, drawing or other similar thing by which 
information has been preserved, from which the information can be 
retrieved and copied, and which is, was, or is alleged to be under the 
control of the A&TBCB.
    (1) The term includes--
    (i) Informal writings such as handwritten notes and drafts;
    (ii) Information preserved in a form which must be translated or 
deciphered by machine in order to be intelligible to humans;
    (iii) Records which were created or acquired by the A&TBCB, its 
members, its employees, its members' employees, or persons acting on 
behalf of its members, by use of A&TBCB funds or in the course of 
transacting official business for the A&TBCB.
    (2) The term does not include--
    (i) Materials which are legally owned by an A&TBCB member, employee, 
or member's employee or representative

[[Page 274]]

in his or her purely personal capacity; and
    (ii) Materials published by non-Federal organizations which are 
readily available to the public, such as books, journals, standards, and 
periodicals available through reference libraries, even if such 
materials are in the A&TBCB's possession.
    (c) The terms agency, person, party, rule, rulemaking, order, and 
adjudication have the meanings given in 5 U.S.C. 551, except where the 
context demonstrates that a different meaning is intended, and except 
that for purposes of the Freedom of Information Act the term agency as 
defined in 5 U.S.C. 551 includes any executive department, military 
department, Government corporation, Government controlled corporation, 
the United States Postal Service, or other establishment in the 
executive branch of the Government (including the Executive Office of 
the President) or any independent regulatory agency.
    (d) A government record under the control of the A&TBCB means that 
the record is subject to the free disposition of the A&TBCB. This 
includes keeping the record available for governmental use as required 
and protecting, preserving, and exercising such control over it as may 
be necessary for that purpose. Control of a record is not synonymous 
with, and does not require, actual physical possession of the record.
    (e) Request means a request to inspect or obtain a copy of one or 
more records.
    (f) Requestor means any person who submits a request to the A&TBCB.
    (g) Public member means a member appointed by the President from 
among members of the general public.
    (h) Direct Costs means those expenditures which an agency actually 
incurs in searching for and duplicating (and in the case of commercial 
requesters, 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.
    (i) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within documents. Agencies should ensure that 
searching for material is done in the most efficient and least expensive 
manner so as to minimize costs for both the agency and the requester. 
For example, agencies should not engage in line-by-line search when 
merely duplicating an entire document would prove the less expensive and 
quicker method of complying with a request. Search should be 
distinguished, moreover, from review of material in order to determine 
whether the material is exempt from disclosure (see paragraph (k) of 
this section). Searches may be done manually or by computer using 
existing programming.
    (j) Duplication refers to the process of making a copy of a document 
necessary to respond to an FOIA request. Such copies can take the form 
of paper copy, microform, audio-visual materials, or machine readable 
documentation (e.g., magnetic tape or disk), among others. The copy 
provided must be in a form that is reasonably usable by requesters.
    (k) Review refers to the process of examining documents located in 
response to a request that is for a commercial use (see paragraph (l) of 
this section) to determine whether any portion of any document located 
is permitted to be withheld. It also includes processing any documents 
for disclosure, e.g., 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.
    (l) 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 requester or the person on 
whose behalf the request is made. In determining whether a requester 
properly belongs in this category, agencies must determine the use to 
which a requester will put the documents requested. Moreover, where an 
agency has reasonable cause to doubt

[[Page 275]]

the use to which a requester will put the records sought, or where that 
use is not clear from the request itself, agencies should seek 
additional clarification before assigning the request to a specific 
category.
    (m) Educational Institution refers to a preschoool, 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, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (n) Non-Commercial Scientific Institution refers to an institution 
that is not operated on a commercial basis as that term is referenced in 
paragraph (l) of this section, and which is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry.
    (o) 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. 
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 when they can qualify as disseminators of news) 
who make their products available for purchase or subscription by the 
general public. These examples are not intended to be all-inclusive.

Moreover, as traditional methods of news delivery evolve (e.g., 
electronic dissemination of newspapers through telecommunications 
services), such alternative media would be included in this category. 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 not actually employed 
by it. A publication contract would be the clearest proof, but agencies 
may also look to the past publication record of a requester in making 
this determination.

[45 FR 80976, Dec. 8, 1980, as amended at 52 FR 43195, Nov. 10, 1987; 55 
FR 2519, Jan. 25, 1990]



Sec. 1120.3  Existing records.

    All existing A&TBCB records are subject to routine destruction 
according to standard record retention schedules.



                     Subpart B_Published Information



Sec. 1120.5  Information published in the Federal Register.

    (a) General. In accordance with the provisions of 5 U.S.C. 
552(a)(1), basic information concerning the organization, operations, 
functions, substantive and procedural rules and regulations, officials, 
office locations, and allocation of responsibilities for functions and 
programs of the A&TBCB is published in the Federal Register for the 
guidance of the public. This information includes--
    (1) Description of the A&TBCB's organization and the established 
places at which, the employees from whom, and the methods whereby the 
public may obtain information, make submittals or requests, or obtain 
decisions;
    (2) Statements of the general course and method by which the 
A&TBCB's functions are channeled and determined, including the nature 
and requirements of all formal and informal procedures available;
    (3) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations;
    (4) Substantive rules of general applicability adopted as authorized 
by law, and statements of general policy or interpretations of general 
applicability formulated and adopted by the A&TBCB, and
    (5) Each amendment, revision, or repeal of the foregoing. Indexes to 
the Federal Register are published in each daily issue and compiled 
currently on a monthly, quarterly, and annual basis. Copies of the 
Federal Register and its indexes are available in many libraries and may 
be purchased from the Superintendent of Documents, Government Printing 
Office,

[[Page 276]]

Washington, DC 20402. No formal request to examine documents in the 
Federal Register is necessary to inspect them at the place where they 
are kept. Materials incorporated by reference in the Federal Register 
are available for inspection in A&TBCB offices.
    (b) Code of Federal Regulations. Title 36 of the Code of Federal 
Regulations, which is republished and updated annually, contains a 
compilation of documents published by the A&TBCB in the Federal Register 
which set forth substantive and procedural rules and regulations of the 
A&TBCB and statements of general policy or interpretations of general 
applicability formulated and adopted by the Board. Copies of the Code of 
Federal Regulations are available in many libraries and may be purchased 
from the Superintendent of Documents. Reference copies maintained in 
offices of the A&TBCB are available for examination without formal 
request.
    (c) Effect of nonpublication. Except to the extent that a person has 
actual and timely notice of its terms, no person may in any manner be 
required to resort to, or be adversely affected by, any procedure or 
matter required to be published in the Federal Register, but not so 
published. For the purposes of this paragraph, material that is 
reasonably available to the class of persons affected by it is 
considered to be published in the Federal Register if it has been 
incorporated by reference in the Federal Register with the approval of 
the Director of the Federal Register.



Sec. 1120.6  Information in A&TBCB publications.

    (a) General. Copies of information material shall be available upon 
oral or written request so long as an adequate supply exists. These 
informational materials include press releases, pamphlets, and other 
materials ordinarily made available to the public without cost as part 
of a public information program, and reprints of individual parts of the 
Code of Federal Regulations or Federal Register relating to programs 
affecting substantial segments of the general public. Copies of 
informational publications of the A&TBCB which may be purchased from the 
Superintendent of Documents may be inspected in those offices of the 
A&TBCB in which reference copies are available. Compliance with the 
formal procedures provided in this part for obtaining access to A&TBCB 
records is not necessary for access to the materials described in this 
paragraph.
    (b) Published indexes. The informational publications available from 
the A&TBCB may include indexes to materials published or contained in 
its records. They will include the current indexes required by the 
Freedom of Information Act to be maintained and made available for 
inspecting and copying, except as otherwise provided by published order, 
as noted below. These indexes provide identifying information for the 
public as to--
    (1) Final opinions and orders made in the adjudication of cases;
    (2) Statements of policy and interpretations adopted but not 
published in the Federal Register; and
    (3) Administrative staff manuals and instructions to staff that 
affect a member of the public.

As promptly as possible after adoption of this part, these indexes will 
be made available to members of the public. Thereafter, updated indexes 
or supplements shall be published at least quarterly. However, the Board 
may determine by order published in the Federal Register that 
publication of an index is unnecessary and impracticable. In that case 
the Board shall provide copies of the index on request at a cost not to 
exceed the direct cost of duplication.



Subpart C_Records Available for Public Inspection and Copying, Documents 
                          Published and Indexed



Sec. 1120.11  Records available for inspection.

    Except for those categories of materials listed in paragraph (a) of 
this section, paragraphs (a) (1) through (9) of Sec. 1120.41 the 
following materials are available for public inspection and copying 
during normal business hours at the Washington office of the A&TBCB:

[[Page 277]]

    (a) Final opinions and orders made in the adjudication of cases;
    (b) Statements of policy and interpretations which have been adopted 
under the authority of the A&TBCB and are not published in the Federal 
Register;
    (c) Administrative staff manuals and instructions to staff that 
affect a member of the public;
    (d) A record of the final votes of each member of the Board in every 
Board proceeding;
    (e) Current indexes providing identifying information for the public 
as to the materials made available under paragraphs (a) through (d) of 
this section.
    (f) All papers and documents made a part of the official record in 
administrative proceedings conducted by the A&TBCB in connection with 
the issuance, amendment, or revocation of rules and regulations or 
determinations having general applicability or legal effect with respect 
to members of the public or a class of the public.
    (g) After a final order is issued in any adjudicative proceeding 
conducted by the A&TBCB, all papers and documents made a part of the 
official record of the proceeding. (The official docket is kept in the 
office of the administrative law judge hearing the case until a final 
order is issued.)



Sec. 1120.12  Indexes to certain records.

    Current indexes are normally available to the public in published 
form as provided in Sec. 1120.11. These indexes, whether or not 
published, are made available for inspection and copying on request. If 
published copies of a particular index are at any time not available or 
if publication of the index has been determined to be unnecessary and 
impracticable by order published in the Federal Register, copies of the 
index will be furnished on request. (See Sec. 1120.6(b), Published 
indexes.)



Sec. 1120.13  Effect of nonavailability.

    Any material listed in paragraph (a) of this section that is not 
indexed as required by Sec. 1120.11(e) and Sec. 1120.12, may not be 
cited, relied on, or used as precedent by the Board to adversely affect 
any member of the public unless the person against whom it is cited, 
relied on, or used has had actual and timely notice of the material.



              Subpart D_Information Available Upon Request



Sec. 1120.21  Policy on disclosure of records.

    (a) It is the policy of the A&TBCB to make information available to 
the public to the greatest extent possible in keeping with the spirit of 
the Freedom of Information Act. Therefore, all records of the A&TBCB, 
except those that the A&TBCB specifically determines must not be 
disclosed in the national interest, for the protection of private 
rights, or for the efficient conduct of public business to the extent 
permitted by the Freedom of Information Act, are declared to be 
available for public inspection and copying as provided in this part. 
Each member and employee of the A&TBCB is directed to cooperate to this 
end and to make records available to the public promptly and to the 
fullest extent consistent with this policy. A record may not be withheld 
from the public solely because its release might suggest administrative 
error or embarrass a member or employee of the A&TBCB.
    (b) Subject to Sec. 1120.51, any nonexempt A&TBCB record is 
available to the public upon request regardless of whether the requestor 
shows any justification or need for the record.
    (c) An A&TBCB office may waive the procedures on this subpart in 
favor of the requestor, for reasons of the public interest, simplicity, 
or speed.
    (d) If a requested record contains both exempt and nonexempt 
material, the nonexempt material shall be disclosed, after the exempt 
material has been deleted in accordance with Sec. 1120.42.



Sec. 1120.22  Requests to which this subpart applies.

    (a) This subpart applies to any written request (other than a 
request made by another Federal agency) received by the A&TBCB, whether 
or not the request cites the Freedom of Information Act, 5 U.S.C. 552, 
except with respect to records for which a less formal disclosure 
procedure is provided specifically in this part.

[[Page 278]]

    (b) Any written request to the A&TBCB for existing records prepared 
by the A&TBCB for routine public distribution, e.g., pamphlets, copies 
of speeches, press releases, and educational materials, shall be 
honored. No individual determination under Sec. 1120.32 is necessary in 
these cases, since preparation of the materials for routine public 
distribution itself constitutes that a determination that the records 
are available to the public.
    (c) This subpart applies only to records that exist at the time the 
request for information is made. (See Sec. 1120.3, Existing records.)



Sec. 1120.23  Where requests for agency records must be filed.

    A written request for records must be filed with the A&TBCB Freedom 
of Information Officer, Suite 501, 1111 18th Street NW., Washington, DC 
20036. Requests may be mailed to that address or filed in person at that 
address during the A&TBCB's normal business hours.

[45 FR 80976, Dec. 8, 1980, as amended at 55 FR 2520, Jan. 25, 1990]



Sec. 1120.24  Misdirected written requests; oral requests.

    (a) The A&TBCB cannot assure that a timely for satisfactory response 
under this subpart will be given to written requests that are addressed 
to A&TBCB offices, members, or employees other than the Freedom of 
Information Officer listed in Sec. 1120.23. Any A&TBCB member or 
employee who receives a written request for inspection or disclosure of 
A&TBCB records must promptly forward a copy of the request to the 
Freedom of Information Officer, by the fastest practicable means, and 
must, if appropriate, commence action under Sec. 1120.32.
    (b) While A&TBCB members and employees will attempt in good faith to 
comply with oral requests for inspection or disclosure of A&TBCB 
records, by telephone or otherwise, these requests are not required to 
be processed in accordance with this subpart.



Sec. 1120.25  Form of requests.

    A request must be in writing, must reasonably describe the records 
sought in a way that will permit their identification and location, and 
must be addressed to the address set forth in Sec. 1120.23, but 
otherwise need not be in any particular form. Each request under the 
Freedom of Information Act should be clearly and prominently identified 
by a legend on the first page, such as ``Freedom of Information Act 
Request.'' The envelope in which the request is sent should be 
prominently marked with the letters ``FOIA.'' It is helpful, but not 
necessary, for the requestor to include his or her phone number and the 
reason for the request. A request may state the maximum amount of fees 
which the requester is willing to pay. Under Sec. 1120.33(d), the 
failure to state willingness to pay fees as high as are anticipated by 
the A&TBCB will delay running of the time limit and delay processing of 
the request, if the responsible official anticipates that the fees 
chargeable may exceed $250.00.

[45 FR 80976, Dec. 8, 1980, as amended at 52 FR 43195, Nov. 10, 1987]



Sec. 1120.26  Deficient descriptions.

    (a) If the description of the records sought in the request is not 
sufficient to allow the A&TBCB to identify and locate the requested 
records, the office taking action under Sec. 1120.32 must notify the 
requestor (by telephone when practicable) that the request cannot be 
further processed until additional information is furnished.
    (b) The A&TBCB must make every reasonable effort to assist the 
requestor in formulating his or her request. If a request is described 
in general terms (e.g., all records having to do with a certain area), 
the A&TBCB office taking action under Sec. 1120.32 may communicate with 
the requestor (by telephone when practicable) with a view toward 
reducing the administrative burden of processing a broad request and 
minimizing the fee payable by the requestor. Such attempts must not be 
used as a means to discourage requests, but rather as a means to help 
identify with more specificity the records actually sought.

[[Page 279]]



Sec. 1120.31  A&TBCB receipt of requests; responsibilities of Freedom of 

Information Officer.

    (a) Upon receipt of a written request, the Freedom of Information 
Officer must mark the request with the date of receipt and must attach 
to the request a control slip indicating the Request Identification 
Number and other pertinent administrative information. The Freedom of 
Information Officer must immediately forward the request and control 
slip to the A&TBCB office which the FOIA Officer believes to be 
responsible for maintaining the records requested. The Freedom of 
Information Officer must retain a full copy of the request and control 
slip and must monitor the handling of the request to ensure a timely 
response.
    (b) The Freedom of Information Officer must maintain a file 
concerning each request received. The file must contain a copy of the 
request, initial and appeal determinations, and other pertinent 
correspondence and records.
    (c) The Freedom of Information Officer must collect and maintain the 
information necessary to compile the reports required by 5 U.S.C. 
552(d).



Sec. 1120.32  A&TBCB action on requests.

    (a) The FOIA Officer is delegated the authority to issue initial 
determinations concerning records which he or she believes are in the 
custody of a Board member, an employee of a member's agency, or an 
employee of a public member. When the FOIA Officer receives such a 
request, he or she shall forward it to the member, employee of a member 
agency, or employee of a public member whom the FOIA Officer believes to 
have custody of the records, requesting the records. The person to whom 
the request is forwarded shall, within three days of receipt of the FOIA 
Officer's request, either furnish the records requested to the FOIA 
Officer or inform the FOIA Officer of the time when they will be 
furnished. The FOIA Officer shall then determine whether or not to 
disclose the documents. For purposes of such requests and their 
processing under this subpart, the FOIA Officer is considered the office 
handling the requests.
    (b) Heads of staff offices are delegated the authority to issue 
initial determinations, other records which are in their respective 
custody.
    (c) Whenever an A&TBCB office receives a request forwarded by the 
FOIA Officer, the office should:
    (1) Take action under Sec. 1120.26, if required, to obtain a better 
description of the records requested;
    (2) Locate the records as promptly as possible, or determine that:
    (i) The records are not known to exist; or
    (ii) They are located at another A&TBCB office; or
    (iii) They are located at another Federal agency and not possessed 
by the A&TBCB.
    (3) When appropriate, take action under Sec. 1120.53(b) to obtain 
payment or assurance of payment;
    (4) Determine which of the requested records legally must be 
withheld, and why (see Sec. 1120.42(b), Release of exempt documents);
    (5) Of the requested records which are exempt from mandatory 
disclosure but which legally may be disclosed (see Sec. 1120.42(a)), 
determine which records will be withheld, and why;
    (6) Issue an initial determination within the allowed period (see 
Sec. 1120.31), specifying (individually or by category) which records 
will be disclosed and which will be withheld, and signed by a person 
authorized to issue the determination under paragraph (a) of this 
section (see Sec. 1120.33, Initial denials of requests);
    (7) Furnish the Freedom of Information Officer a copy of the 
determination; and
    (8) If the determination denies a request, furnish the Freedom of 
Information Officer the name of the A&TBCB member(s) or employee(s) 
having custody of the records and maintain the records in a manner 
permitting their prompt forwarding to the General Counsel upon request 
if an appeal from the initial denial is filed. (See also Sec. 1120.34.)
    (d) If it appears that some or all of the requested records are not 
in the possession of the A&TBCB office which has been assigned 
responsibility for responding to the request but may be in the 
possession of some A&TBCB office, the responding office must so inform

[[Page 280]]

the Freedom of Information officer immediately.
    (e) An initial determination to disclose documents must provide the 
requested documents or provide the opportunity to inspect and/or obtain 
copies of the documents.



Sec. 1120.33  Time allowed for initial action on requests.

    (a) Except as otherwise provided in this section, as soon as 
possible and not later than the tenth working day after the day on which 
the Freedom of Information Officer receives a request for records, the 
A&TBCB office responsible for responding to the request must issue a 
written determination to the requestor stating which of the requested 
records, will, and which will not, be released and the reason for any 
denial of a request.
    (b) The period of 10 working days is measured from the date the 
request is first received and logged in by the Freedom of Information 
Officer.
    (c) There is excluded from the period of 10 working days (or any 
extension) any time which elapses between the date that a requestor is 
notified by the A&TBCB under Sec. 1120.26 that his or her request does 
not reasonably identify the records sought, and the date that the 
requestor furnishes a reasonable identification.
    (d) There is excluded from the period of 10 working days (or any 
extension) any time which elapses between the date that a requestor is 
notified by an A&TBCB office under Sec. 1120.53(b) that prepayment of 
fees is required, and the date that the requestor pays (or makes 
suitable arrangements to pay) the charges.
    (e) The A&TBCB office taking action under Sec. 1120.31 may extend 
the basic 10-day period established under paragraph (a) of this section 
by a period not to exceed 10 additional working days if--
    (1) The office notifies the Freedom of Information Officer;
    (2) The office notifies the requestor in writing within the basic 
10-day period stating the reasons for the extension and the date by 
which the office expects to be able to issue a determination;
    (3) The extension is reasonably necessary to properly process the 
particular request; and
    (4) One or more of the following unusual circumstances require the 
extension:
    (i) There is a need to search for and collect the requested records 
from field facilities or other establishments that are separate from the 
office processing the request;
    (ii) There is a need to search for, collect, and/or appropriately 
examine a voluminous amount of separate and distinct records which are 
demanded in a single request; or
    (iii) There is need for consultation with another agency having a 
substantial interest in the determination of the request or among two or 
more components of the A&TBCB. The office must conduct the consultation 
with all practicable speed.
    (f) Should the A&TBCB fail to issue a determination within the 10-
day period or any authorized extension as to an initial request, or 
during the period for consideration of an appeal, the requestor shall be 
deemed to have exhausted his or her administrative remedies with respect 
to such.

In the latter situation, the requestor may commence an action in an 
appropriate Federal district court to obtain the records.



Sec. 1120.34  Initial denials of requests.

    (a) An initial denial of a request may be issued only for the 
following reasons:
    (1) The record is not under the A&TBCB's control;
    (2) The record has been published in the Federal Register or is 
otherwise published and available for sale;
    (3) A statutory provision, provision of this part, or court order 
requires that the information not be disclosed;
    (4) The record is exempt from mandatory disclosure under 5 U.S.C. 
552(b) and the responding office has decided not to disclose it under 
Sec. Sec. 1120.41 and 1120.42;
    (5) The record is believed to be in the A&TBCB's custody but has not 
yet been located. (See paragraph (f) of this section.)
    (b) Each initial denial of a request shall--

[[Page 281]]

    (1) Be written, signed, and dated;
    (2) Contain a reference to the Request Identification Number;
    (3) Identify the records that are being withheld (individually or, 
if the denial covers a large number of similar records, by described 
category); and
    (4) State the basis for denial of each record of category of records 
or any reasonably segregable portion(s) thereof being withheld.
    (c) If the issuance of the determination to deny a request was 
directed by some A&TBCB officer or employee other than the person 
signing the determination letter, that other person's identity and 
position must be stated in the determination letter.
    (d) Each initial determination which denies, in whole or in part, a 
request for one or more existing, located A&TBCB records must state that 
the requestor may appeal the initial denial by sending a written appeal 
to the address shown in Sec. 1120.23 within 30 days of receipt of the 
determination. (See Sec. 1120.36.)
    (e) A determination is deemed issued on the date the determination 
letter is placed in A&TBCB mailing channels for first class mailing to 
the requestor, delivered to the U.S. Postal Service for mailing, or 
personally delivered to the requestor, whichever date first occurs.
    (f) When a request must be denied because the record has not yet 
been located (although it is believed to be in the A&TBCB's possession), 
the A&TBCB office responsible for maintaining the record must continue 
to search diligently until it is located or it appears that the record 
does not exist or is not in the A&TBCB's possession, and must 
periodically inform the requestor of the office's progress.



Sec. 1120.36  Appeals from initial denials.

    (a) Any person whose request has been denied in whole or in part by 
an initial determination may appeal that denial by addressing a written 
appeal to the address shown in Sec. 1120.23.
    (b) Any appeal must be mailed or filed in person at the address 
shown in Sec. 1120.23--
    (1) In the case of a denial of an entire request, generally not 
later than 30 calendar days after the date the requestor received the 
initial determination on the request; or
    (2) In the case of a partial denial, generally not later than 30 
calendar days after the requestor receives all records being made 
available pursuant to the initial determination.

An appeal which does not meet the requirements of this paragraph may be 
treated either as a timely appeal or as a new request, at the option of 
the Freedom of Information Officer.
    (c) The appeal letter must contain--
    (1) A reference to the Request Identification Number (RIN);
    (2) The date of the initial determination;
    (3) The name and address of the person who issued the initial 
denial;
    (4) A statement of which of the records to which access was denied 
are the subjects of the appeal; and
    (5) If the applicant wishes, such facts and legal or other 
authorities as he or she considers appropriate.



Sec. 1120.37  A&TBCB action on appeals.

    (a) The General Counsel must make one of the following legal 
determinations in connection with every appeal from the initial denial 
of a request for an existing, located record:
    (1) The record must be disclosed;
    (2) The record must not be disclosed because a statute or a 
provision of this part so requires; or
    (3) The record is exempt from mandatory disclosure but legally may 
be disclosed as a matter of agency discretion.
    (b) Whenever the General Counsel has determined under paragraph 
(a)(3) of this section that a record is exempt from mandatory disclosure 
but legally may be disclosed, the matter must be referred to the 
Executive Director. If the Executive Director determines that an 
important purpose would be served by withholding the record, the General 
Counsel shall issue a determination denying the appeal. If the Executive 
Director determines that no important purpose would be served by 
withholding the record, the General Counsel must disclose the record.
    (c) The General Counsel may delegate his or her authority under this 
section to any other attorney employed by the A&TBCB in connection

[[Page 282]]

with any cateogory of appeals or any individual appeals.
    (d) A determination denying an appeal from an initial denial must--
    (1) Be in writing;
    (2) State which of the exemptions in 5 U.S.C. 552(b) apply to each 
requested existing record;
    (3) State the reason(s) for denial of the appeal;
    (4) State the name and position of each A&TBCB officer or employee 
who directed that the appeal be denied; and
    (5) State that the person whose request was denied may obtain de 
novo judicial review of the denial by complaint filed with the district 
court of the United States in the district in which the complainant 
resides, or in which the agency records are situated, or in the District 
of Columbia, pursuant to 5 U.S.C. 552(a)(4).



Sec. 1120.38  Time allowed for action on appeals.

    (a) Except as otherwise provided in this section, as soon as 
possible and not later than the twentieth working day after the day on 
which the Freedom of Information Officer receives an appeal from an 
initial denial of a request for records, the General Counsel shall issue 
a written determination stating which of the requested records (as to 
which appeal was made) will and which will not be disclosed.
    (b) The period of 20 working days shall be measured from the date an 
appeal is first received by the Freedom of Information Officer.
    (c) The General Counsel may extend the basic 20-day period 
established under paragraph (a) of this section by a period not to 
exceed 10 additional working days if--
    (1) He or she notifies the Freedom of Information Officer;
    (2) He or she notifies the requestor in writing within the basic 20-
day period stating the reasons for the extension and the date by which 
he or she expects to be able to issue a determination;
    (3) The extension is reasonably necessary to properly process the 
particular request; and
    (4) One or more of the following unusual circumstances require the 
extension:
    (i) There is a need to search for and collect the records from field 
facilities or other establishments that are separated from the office 
processing the appeal;
    (ii) There is a need to search for, collect, and/or appropriately 
examine a voluminous amount of separate and distinct records which are 
demanded in a single request; or
    (iii) There is a need for consultation with another agency or among 
two or more components of the A&TBCB. The General Counsel must conduct 
the consultation with all practicable speed.
    (d) No extension of the 20-day period may be issued under paragraph 
(c) of this section which would cause the total of all such extensions 
and of any extensions issued under Sec. 1120.33(c) to exceed 10 working 
days.



Sec. 1120.41  Exempt documents.

    (a) Generally, 5 U.S.C. 552(b) establishes nine exclusive categories 
of matters which are exempt from the mandatory disclosure requirements 
of 5 U.S.C. 552(a). No request under 5 U.S.C. 552 for an existing, 
located, unpublished record in the A&TBCB's control may be denied by any 
A&TBCB office or employee unless the record contains (or its disclosure 
would reveal) matters that are--
    (1) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and which are in fact properly classified pursuant to the 
Executive order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Interagency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Investigatory records compiled for law enforcement purposes, but 
only to

[[Page 283]]

the extent that the production of such records would--
    (i) Interfere with enforcement proceedings;
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (iii) Constitute an unwarranted invasion of personal privacy;
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (v) Disclose investigative techniques and procedures; or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (b) The fact that the applicability of an exemption permits the 
withholding of a requested record (or portion of a record) does not 
necessarily mean that the record must or should be withheld. (See Sec. 
1120.42 Release of exempt documents.)



Sec. 1120.42  Release of exempt documents.

    (a) An A&TBCB office may, in its discretion, release requested 
records despite the applicability of one or more of the exemptions 
listed in Sec. 1120.41 (a)(2), (5), or (7). Disclosure of such records 
is encouraged if no important purpose would be served by withholding the 
records.
    (b) Though the policy of the A&TBCB is to honor all requests, as 
indicated in Sec. 1120.21(a), there are circumstances when the A&TBCB 
will not disclose a record if one or more of the FOIA exemptions applies 
to the record. The exemptions usually in such circumstances are 
exemptions (2), (3), (4), (6), (8) and (9). In these cases, where the 
A&TBCB has withheld a requested record, or portions thereof, the A&TBCB 
will disclose the exempted record when ordered to do so by a Federal 
court or in exceptional circumstances under appropriate restrictions 
with the approval of the Office of General Counsel.



            Subpart E_Copies of Records and Fees for Services



Sec. 1120.51  Charges for services, generally.

    (a) It shall be the policy of the ATBCB to comply with requests for 
documents made under the FOIA using the most efficient and least costly 
methods available. Requesters will be charged fees, in accordance with 
the administrative provisions and fee schedule set forth below, for 
searching for, reviewing (in the case of commercial use requesters 
only), and duplicating requested records.
    (b) Categories of requesters. For the purpose of standard FOIA fee 
assessment, the four categories of requesters are: Commercial use 
requesters; educational and non-commercial scientific institution 
requesters; requesters who are representatives of the news media; and, 
all other requesters (see Sec. 1120.2 (l) through (o), Definitions).
    (c) Levels of fees. Levels of fees prescribed for each category of 
requester are as follows:
    (1) Commercial Use Requesters--When the ATBCB receives a request for 
documents which appears to be a request for commercial use, the Board 
may assess charges in accordance with the fee schedule set forth below, 
which recover the full direct costs of searching for, reviewing for 
release, and duplicating the records sought. Costs for time spent 
reviewing records to determine whether they are exempt from mandatory 
disclosure applies to the initial review only. No fees will be assessed 
for reviewing records, at the administrative appeal level, of the 
exemptions already applied.
    (2) Educational and Non-Commercial Scientific Institution 
Requesters--The ATBCB shall provide documents to requesters in this 
category for the cost of reproduction alone, in accordance with the fee 
schedule set forth below, excluding charges for the first 100 pages of 
reproduced documents.

[[Page 284]]

    (i) To be eligible for inclusion in this category, requesters must 
demonstrate the request is being made 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 (it the request is from a non-
commercial scientific institution) research.
    (ii) Requesters eligible for free search must reasonably describe 
the records sought.
    (3) Requesters Who Are Representatives of the News Media--The ATBCB 
shall provide documents to requesters in this category for the cost of 
reproduction alone, in accordance with the fee schedule set forth below, 
excluding charges for the first 100 pages of reproduced documents.
    (4) All Other Requestors--The ATBCB shall charge requestors who do 
not fit into any of the categories described above, fees which recover 
the full direct cost of searching for and reproducing records that are 
responsive to the request, except that the first two hours of search 
time and the first 100 pages of reproduction shall be furnished without 
charge.
    (d) Schedule of FOIA fees.
    (1) Record search (ATBCB employees)--$14.00 per hour
    (2) Document review (ATBCB employees)--$20.00 per hour
    (3) Duplication of documents (paper copy of paper original)--$.20 
per page
    (e) No charge shall be made:
    (1) If the costs of routine collection and processing of the fee are 
likely to equal or exceed the amount of the fee;
    (2) For any request made by an individual or group of individuals 
falling into the categories listed at paragraph (b) of this section, and 
described in paragraph (c) of this section, (excepting commercial use 
requests) the first two hours of search time and first 100 pages of 
duplication;
    (3) For the cost of preparing or reviewing letters of response to a 
request or appeal;
    (4) For responding to a request for one copy of the official 
personnel record of the requestor;
    (5) For furnishing records requested by either House of Congress, or 
by duly authorized committee or subcommittee or Congress, unless the 
records are requested for the benefit of an individual Member of 
Congress or for a constituent;
    (6) For furnishing records requested by and for the official use of 
other Federal agencies; or
    (7) For furnishing records needed by an A&TBCB contractor or grantee 
to perform the work required by the A&TBCB contract or grant.
    (f) Requestors may be charged for unsuccessful or unproductive 
searches or for searches when records located are determined to be 
exempt from disclosure.
    (g) Where the ATBCB reasonably believes that a requestor or group of 
requestors is attempting to break a request down into a series of 
requests for the purpose of evading the assessment of fees, the ATBCB 
shall aggregate any such requests and charge accordingly.

[55 FR 2520, Jan. 25, 1990]



Sec. 1120.52  Computerized records.

    (a) Information available in whole or in part in computerized form 
which is disclosable under the Freedom of Information Act is available 
to the public as follows:
    (1) When there is an existing printout from the computer which 
permits copying the printout, the material will be made available at the 
per page rate stated in Sec. 1120.51(a) for each 8\1/2\ by 11 inch 
page.
    (2) When there is not an existing printout of information 
disclosable under the Freedom of Information Act, a printout shall be 
made if the applicant pays the cost to the A&TBCB as stated in paragraph 
(a)(3) of this section.
    (3) Obtaining information from computerized records frequently 
involves a minimum computer time cost of approximately $100 per request. 
Multiple requests involving the same subject may cost less per request. 
Services of personnel in the nature of a search shall be charged for at 
rates prescribed in Sec. 1120.51(a). A charge shall be made for the 
computer time involved based upon the prevailing level of costs to 
Government organizations and upon the particular types of computer and 
associated equipment and the amounts

[[Page 285]]

of time on such equipment that are utilized. A charge shall also be made 
for any substantial amounts of special supplies or materials used to 
contain, present, or make available the output of computers based upon 
the prevailing levels of costs to Government organizations and upon the 
type and amount of the supplies and materials that are used.
    (b) Information in the Board's computerized records which could be 
produced only by additional programming of the computer, thus producing 
information not previously in being, is not required to be furnished 
under the Freedom of Information Act. In view of the usually heavy 
workloads of the computers used by the Board, such a service cannot 
ordinarily be offered to the public.



Sec. 1120.53  Payment of fees.

    (a) Method of payment. All fee payments shall be in the form of a 
check or money order payable to the order of the ``U.S. Architectural 
and Transportation Barriers Compliance Board'' and shall be sent 
(accompanied by a reference to the pertinent Request Indentification 
Number(s)) to the address in Sec. 1120.23.
    (b) Charging interest. The ATBCB may charge interest to those 
requestors failing to pay fees assessed in accordance with the 
procedures described in Sec. 1120.51. Interest charges, computed at the 
rate prescribed in section 3717 of title 31 U.S.C.A., will be assessed 
on the full amount billed starting on the 31st day following the day on 
which the bill was sent.
    (c) Advance payment or assurance of payment. (1) When an ATBCB 
office determines or estimates that the allowable charges a requestor 
may be required to pay are likely to exceed $250.00, the ATBCB may 
require the requestor to make an advance payment or arrangements to pay 
the entire fee before continuing to process the request. The ATBCB shall 
promptly inform the requestor (by telephone, if practicable) of the need 
to make an advance payment or arrangements to pay the fee. That office 
need not search for, review, duplicate, or disclose records in response 
to any request by that requestor until he or she pays, or makes 
acceptable arrangements to pay, the total amount of fees due (or 
estimated to become due) under this subpart.
    (2) Where a requestor has previously failed to pay a fee charged in 
a timely fashion, the ATBCB may require the requestor to pay the full 
amount owed, plus any applicable interest, as provided in paragraph (b) 
of this section, and to make an advance payment of the full amount of 
the estimated fee before any new or pending requests will be processed 
from that requestor.
    (3) In those instances described in paragraphs (c)(1) and (2) of 
this section, the administrative time limits prescribed in Sec. 
1120.33(d) will begin only after the ATBCB has received all fee payments 
due or acceptable arrangements have been made to pay all fee payments 
due.
    (d) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). 
Requestors are advised that the ATBCB shall use the authorities of the 
Debt Collection Act of 1982, including disclosure to consumer reporting 
agencies and use of collection agencies, where appropriate, to encourage 
repayment of debts arising from freedom of information act requests.
    (e) Waiver or reduction of fees. (1) Records responsive to a request 
under 5 U.S.C. 552 shall be furnished without charge or at a charge 
reduced below that establsihed under paragraph (d) of Sec. 1120.51 
where the Freedom of Information Officer determines, based upon 
information provided by a requestor in support of a fee waiver request 
or otherwise made known to the Freedom of Information Officer, that 
disclosure of the requested information is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government and is not primarily 
in the commercial interest of the requestor. Requests for a waiver or 
reduction of fees shall be considered on a case-by-case basis.
    (2) In order to determine whether the first fee waiver requirement 
is met--i.e., that disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government--
Freedom of Information Officer

[[Page 286]]

shall consider the following four factors in sequence:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government.'' The 
subject matter of the requested records, in the context of the request, 
must specifically concern identifiable operations or activities of the 
federal government--with a connection that is direct and clear, not 
remote or attenuated. Furthermore, the records must be sought for their 
informative value with respect to those government operations or 
activities; a request for access to records for their intrinsic 
informational content alone will not satisfy this threshold 
consideration.
    (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 on specific 
government operations or activities in order to hold potential for 
contributing to increase public understanding of those operations and 
activities. The disclosure of information that already is in the public 
domain, in either a duplicative or a substantially identical form, would 
not be likely to contribute to such understanding, as nothing new would 
be added to the public record.
    (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 the public at large, 
as opposed to the individual understanding of the requestor or a narrow 
segment of interested persons. A requestor's identity and 
qualifications--e.g., expertise in the subject area and ability and 
intention to effectively convey information to the general public--
should be considered. It reasonably may be presumed that a 
representative of the news media (as defined in Sec. 1120.2(o)) who has 
access to the means of public dissemination readily will be able to 
satisfy this consideration. Requests from libraries or other record 
repositories (or requestors who intend merely to disseminate information 
to such institutions) shall be analyzed, like those of other requestors 
to identify a particular person who represents that he actually will use 
the requested information in scholarly or other analytic work and then 
disseminate it to the general public.
    (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 matter in question, as compared to 
the level of public understanding existing prior to the disclosure, must 
be likely to be enhanced by the disclosure to a significant extent. 
Freedom of Information Officer shall not make separate value judgments 
as to whether information, even though it in fact would contribute 
significantly to public understanding of the operations or activities of 
the government, is ``important'' enough to be made public.
    (3) In order to determine whether the second fee waiver requirement 
is met--i.e., that disclosure of the requested information is not 
primarily in the commercial interest of the requestor--the Freedom of 
Information Officer shall consider the following two factors in 
sequence:
    (i) The existence and magnitude of a commercial interest: Whether 
the requestor has a commercial interest that would be furthered by the 
requested disclosure. The Freedom of Information Officer shall consider 
all commercial interests of the requester (with reference to the 
definition of ``commercial use'' in Sec. 1120.2(l)) or any person on 
whose behalf the requestor may be acting, but shall consider only those 
interests which would be furthered by the requested disclosure. In 
assessing the magnitude of identified commercial interests, 
consideration shall be given to the role that such FOIA-disclosed 
information plays with respect to those commercial interests, as well as 
to the extent to which FOIA disclosures serve those interests overall. 
Requestors shall be given a reasonable opportunity in the administrative 
process to provide information bearing upon this consideration.

[[Page 287]]

    (ii) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest of the requestor is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requestor.'' 
A fee waiver or reduction is warranted only where, once the ``public 
interest'' standard set out in paragraph (e)(2) of this section is 
satisfied, that public interest can fairly be regarded as greater in 
magnitude than that of the requestor's commercial interest in 
disclosure. The Freedom of Information Officer shall ordinarily presume 
that where a news media requestor has satisfied the ``public interest'' 
standard, that will be the interest primarily served by disclosure to 
that requestor. Disclosure to data brokers or others who compile and 
market government information for direct economic return shall not be 
presumed to primarily serve ``public interest.''
    (4) Where only a portion of the requested records satisfies both of 
the requirements for a waiver or reduction of fees under this paragraph, 
a waiver or reduction shall be granted only as to that portion.
    (5) Requests for the waiver or reduction of fees shall address each 
of the factors listed in paragraphs (e) (2) and (3) of this section, as 
they apply to each record request. One hundred pages of reproduction 
shall be furnished without charge.
    (6) A request for reduction or waiver of fees shall be addressed to 
the Freedom of Information Officer at the address shown in Sec. 
1120.23. The ATBCB office which is responding to the request for records 
shall initially determine whether the fee shall be reduced or waived and 
shall so inform the requestor. The initial determination may be appealed 
by letter addressed to the address shown in Sec. 1120.23. The General 
Counsel or his or her designee shall decide such appeals.

[45 FR 80976, Dec. 8, 1980, as amended at 52 FR 43196, Nov. 10, 1987; 55 
FR 2521, Jan. 25, 1990]



PART 1121_PRIVACY ACT IMPLEMENTATION--Table of Contents




Sec.
1121.1 Purpose and scope.
1121.2 Definitions.
1121.3 Procedures for requests pertaining to individuals' records in a 
          records system.
1121.4 Times, places, and requirements for the identification of the 
          individual making a request.
1121.5 Access to requested information to the individual.
1121.6 Request for correction or amendment to the record.
1121.7 Agency review of request for correction or amendment of the 
          record.
1121.8 Appeal of an initial adverse agency detemination on correction or 
          amendment of the record.
1121.9 Notification of dispute.
1121.10 Disclosure of record to a person other than the individual to 
          whom the record pertains.
1121.11 Accounting of disclosures.
1121.12 Fees.

    Authority: 5 U.S.C. 552a; Pub. L. 93-579.

    Source: 50 FR 3905, Jan. 29, 1985, unless otherwise noted.



Sec. 1121.1  Purpose and scope.

    The purposes of these regulations are to:
    (a) Establish a procedure by which an individual can determine if 
the Architectural and Transportation Barriers Compliance Board, 
hereafter known as the Board or ATBCB, maintains a system of records 
which includes a record pertaining to the individual; and
    (b) Establish a procedure by which an individual can gain access to 
a record pertaining to him or her for the purpose of review, amendment 
and/or correction.



Sec. 1121.2  Definitions.

    For the purpose of these regulations--
    (a) The term individual means a citizen of the United States or an 
alien lawfully admitted for permanent residence.
    (b) The term maintain includes maintain, collect, use or 
disseminate.
    (c) The term record means any item, collection or grouping of 
information about an individual that is maintained by the Board, 
including, but not limited to, his or her employment history, payroll 
information, and financial

[[Page 288]]

transactions and that contains his or her name, or the identifying 
number, symbol, or other identifying particular assigned to the 
individual, such as social security number.
    (d) The term system of records means a group of any records under 
control of the Board from which information is retrieved by the name of 
the individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.
    (e) The term routine use means, with respect to the disclosure of a 
record, the use of such record for a purpose which is compatible with 
the purpose for which it was collected.
    (f) The term authorized representative means a person who acts on an 
individual's behalf for purposes of these regulations, pursuant to 
written, signed instructions from the individual.



Sec. 1121.3  Procedures for requests pertaining to individuals' records in a 

records system.

    An individual or authorized representative shall submit a written 
request to the Administrative Officer to determine if a system of 
records named by the individual contains a record pertaining to the 
individual. The individual or authorized representative shall submit a 
written request to the Executive Director of the ATBCB which states the 
individual's desire to review his or her record.



Sec. 1121.4  Times, places, and requirements for the identification of the 

individual making a request.

    An individual or authorized representative making a request to the 
Administrative Officer of the ATBCB pursuant to Sec. 1121.3 shall 
present the request at the ATBCB offices, 330 C Street, SW., Room 1010, 
Washington, DC 20202, on any business day between the hours of 9 a.m. 
and 5:30 p.m. The individual or authorized representative submitting the 
request should present himself or herself at the ATBCB's offices with a 
form of identification which will permit the ATBCB to verify that the 
individual is the same individual as contained in the record requested. 
An authorized representative shall present a written document 
authorizing access. The document must be signed by the individual.



Sec. 1121.5  Access to requested information to the individual.

    Upon verification of identity the Board shall disclose to the 
individual or authorized representative the information contained in the 
record which pertains to that individual. Nothing in this section shall 
allow an individual access to any information compiled in reasonable 
anticipation of a civil action or proceeding.



Sec. 1121.6  Request for correction or amendment to the record.

    The individual or authorized representative should submit a request 
to the Administrative Officer which states the individual's desire to 
correct or to amend his or her record. This request is to be made in 
accord with provisions of Sec. 1121.4.



Sec. 1121.7  Agency review of request for correction or amendment of the 

record.

    Within ten working days of the receipt of the request to correct or 
to amend the record, the Administrative Officer will acknowledge in 
writing such receipt and promptly either--
    (a) Make any correction or amendment of any portion thereof which 
the individual believes is not accurate, relevant, timely, or complete; 
or
    (b) Inform the individual or authorized representative of his or her 
refusal to correct or to amend the record in accordance with the 
request, the reason for the refusal and the procedures established by 
the Board for the individual to request a review of that refusal.



Sec. 1121.8  Appeal of an initial adverse agency determination on correction 

or amendment of the record.

    An individual who disagrees with the refusal of the Administrative 
Officer to correct or to amend his or her record may submit a request 
for a review of such refusal to the Executive Director, ATBCB, 330 C 
Street, SW., Room 1010, Washington, DC 20202. The Executive Director 
will, not later than thirty (30) working days from the date on which the 
individual requests such review,

[[Page 289]]

complete such review and make final determination, unless, for good 
cause shown, the Executive Director extends such thirty-day period. If, 
after his or her review, the Executive Director also refuses to correct 
or to amend the record in accordance with the request, the Board shall 
permit the individual or authorized representative to file with the 
Executive Director a concise statement setting forth the reasons for his 
or her disagreement with the refusal of the Executive Director and shall 
notify the individual or authorized representative that he or she may 
seek judicial review of the Executive Director's determination under 5 
U.S.C. 552a(g)(1)(A).



Sec. 1121.9  Notification of dispute.

    In any disclosure pursuant to Sec. 1121.10 containing information 
about which the individual has previously filed a statement of 
disagreement under Sec. 1121.8, the Board shall clearly note any 
portion of the record which is disputed and provide copies of the 
statement and, if the Executive Director deems it appropriate, copies of 
a concise statement of the reasons of the Executive Director for not 
making the amendments requested.



Sec. 1121.10  Disclosure of record to a person other than the individual to 

whom the record pertains.

    The Board will not disclose a record to any individual or agency 
other than the individual to whom the record pertains, except to an 
authorized representative, unless the disclosure has been listed as a 
``routine use'' in the Board's notices of its systems of records, or 
falls within one of the special disclosure situations listed in the 
Privacy Act of 1974 (5 U.S.C. 552a(b)).



Sec. 1121.11  Accounting of disclosures.

    (a) The Board shall, except for disclosure made under sections 
(b)(1) and (b)(2) of the Privacy Act of 1974 (5 U.S.C. 552a) keep an 
accurate accounting of--
    (1) The date, nature and purpose of each disclosure of a record to 
any person or another agency made pursuant to Sec. 1121.10; and
    (2) The name and address of the person or agency to whom the 
disclosure is made.
    (b) This accounting shall be retained for at least five years or the 
life of the record, whichever is longer, after the disclosure for which 
the accounting is made;
    (c) The Board shall make this accounting available to the individual 
named in the record at his or her request, except for disclosures made 
under section (b)(7) of the Privacy Act of 1974 (5 U.S.C. 552a).
    (d) The Board shall inform any person or other agency to whom 
disclosure has been made pursuant to Sec. 1121.10 about any correction 
or notation of dispute made by the Board.



Sec. 1121.12  Fees.

    If an individual or authorized representative requests copies of his 
or her record, he or she shall be charged ten cents per page, excluding 
the cost of any search for review of the record, in advance of receipt 
of the pages.



PART 1150_PRACTICE AND PROCEDURES FOR COMPLIANCE HEARINGS--Table of Contents




                      Subpart A_General Information

Sec.
1150.1 Purpose.
1150.2 Applicability: Buildings and facilities subject to guidelines and 
          standards.
1150.3 Policy of amicable resolution.
1150.4 Definitions.
1150.5 Scope and interpretation of rules.
1150.6 Suspension of rules.

              Subpart B_Parties, Complainants, Participants

1150.11 Parties.
1150.12 Complainants.
1150.13 Participation on petition.
1150.14 Appearance.

     Subpart C_Form, Execution, Service and Filing of Documents for 
                        Proceedings on Citations

1150.21 Form of documents to be filed.
1150.22 Signature of documents.
1150.23 Filing and service.
1150.24 [Reserved]
1150.25 Date of service.
1150.26 Certificate of service.

[[Page 290]]

                             Subpart D_Time

1150.31 Computation.
1150.32 Extension of time or postponement.

     Subpart E_Proceedings Prior to Hearings; Pleadings and Motions

1150.41 Informal resolution.
1150.42 Citations.
1150.43 Answers.
1150.44 Amendments.
1150.45 Request for hearing.
1150.46 Motions.
1150.47 Disposition of motions and petitions.
1150.48 PER: Citation, answer, amendment.

             Subpart F_Responsibilities and Duties of Judge

1150.51 Who presides.
1150.52 Authority of judge.
1150.53 Disqualification of judge.

             Subpart G_Prehearing Conferences and Discovery

1150.61 Prehearing conference.
1150.62 Exhibits.
1150.63 Discovery.

                      Subpart H_Hearing Procedures

1150.71 Briefs.
1150.72 Purpose of hearing.
1150.73 Testimony.
1150.74 Exclusion of evidence.
1150.75 Objections.
1150.76 Exceptions.
1150.77 Official notice.
1150.78 Public documents.
1150.79 Offer of proof.
1150.80 Affidavits.
1150.81 Consolidated or joint hearing.
1150.82 PER proceedings.

                          Subpart I_The Record

1150.91 Record for decision.
1150.92 Official transcript.

               Subpart J_Posthearing Procedures; Decisions

1150.101 Posthearing briefs; proposed findings.
1150.102 Decision.
1150.103 PER: Posthearing briefs, decision.
1150.104 Judicial review.
1150.105 Court enforcement.

                   Subpart K_Miscellaneous Provisions

1150.111 Ex parte communications.
1150.112 Post-order proceedings.
1150.113 Amicable resolution.
1150.114 Effect of partial invalidity.

    Authority: 29 U.S.C. 792, as amended.

    Source: 45 FR 78474, Nov. 25, 1980, unless otherwise noted.



                      Subpart A_General Information



Sec. 1150.1  Purpose.

    Purpose. The purpose of the regulations in this part is to implement 
section 502(b)(1) of the Rehabilitation Act of 1973, Pub. L. 93-112, 29 
U.S.C. 792, as amended by the Rehabilitation, Comprehensive Services, 
and Developmental Disabilities Amendments of 1978, Pub. L. 95-602, 
section 118, 92 Stat. 2979, by establishing rules of procedure for 
public hearings which ensure compliance with standards issued under the 
Architectural Barriers Act of 1968, Pub. L. 90-480, as amended, 42 
U.S.C. 4151 et seq. (including standards of the U.S. Postal Service).



Sec. 1150.2  Applicability: Buildings and facilities subject to guidelines and 

standards.

    (a) Definitions. As used in this section, the term:
    Constructed or altered on behalf of the United States means acquired 
by the United States through lease-purchase arrangement, constructed or 
altered for purchase by the United States, or constructed or altered for 
the use of the United States.
    Primarily for use by able-bodied military personnel means expected 
to be occupied, used, or visited principally by military service 
personnel. Examples of buildings so intended are barracks, officers' 
quarters, and closed messes.
    Privately owned residential structure means a single or multi-family 
dwelling not owned by a unit or subunit of Federal, state, or local 
government.
    (b) Buildings and facilities covered. Except as provided in 
paragraph (c) of this section, the standards issued under the 
Architectural Barriers Act of 1968, Pub. L. 90-480, as amended, 42 
U.S.C. 4151 et seq. (including standards of the United States Postal 
Service) apply to any building or facility--
    (1) The intended use for which either--
    (i) Will require that such building or facility be accessible to the 
public, or
    (ii) May result in employment or residence therein of physically 
handicapped persons; and

[[Page 291]]

    (2) Which is--
    (i) To be constructed or altered by or on behalf of the United 
States;
    (ii) To be leased in whole or in part by the United States--
    (A) After August 12, 1968, and before January 1, 1977, after 
construction or alteration in accordance with plans and specifications 
of the United States; or
    (B) On or after January 1, 1977, including any renewal of a lease 
entered into before January 1, 1977, which renewal is on or after such 
date;
    (iii) To be financed in whole or in part by a grant or loan made by 
the United States after August 12, 1968, if the building or facility may 
be subject to standards for design, construction, or alteration issued 
under the law authorizing the grant or loan; or
    (iv) To be constructed under the authority of the National Capital 
Transportation Act of 1960, the National Capital Transportation Act of 
1965, or title III of the Washington Metropolitan Area Transit 
Regulation Compact.
    (c) Buildings and facilities not covered. The standards do not apply 
to--
    (1) Any privately owned residential structure, unless it is leased 
by the Federal government on or after January 1, 1977, for subsidized 
housing programs; or
    (2) Any building or facility on a military installation designed and 
constructed primarily for use by military personnel.
    (d) Any covered building or facility, as provided in this section, 
which is designed, constructed, or altered after the effective date of a 
standard issued which is applicable to the building or facility, shall 
be designed, constructed, altered, or leased in accordance with the 
standard. For purposes of this section, any design, construction, 
alteration or lease for which bids or offers are received before the 
effective date of an applicable standard, in response to an invitation 
for bids or request for proposals, is not subject to that standard.



Sec. 1150.3  Policy of amicable resolution.

    The policy of the Architectural and Transportation Barriers 
Compliance Board is to maximize the accessibility and usability of 
buildings, and facilities through amicable means. To this end, the 
Architectural and Transportation Barriers Compliance Board encourages 
voluntary and informal resolution of all complaints.



Sec. 1150.4  Definitions.

    A&TBCB means the Architectural and Transportation Barriers 
Compliance Board.
    Agency means Federal department, agency, or instrumentality as 
defined in sections 551(1) and 701(b)(1) of title 5 U.S.C., or an agency 
official authorized to represent the agency. It includes any executive 
department or independent establishment in the Executive Branch of the 
government, including wholly owned government corporations, and any 
establishment in the legislative or judicial branch of the government, 
except the Senate, the House of Representatives, and the Architect of 
the Capitol and any activities under his direction.
    Alteration means any change in a building or facility or its 
permanent fixtures or equipment. It includes, but is not limited to, 
remodeling, renovation, rehabilitation, reconstruction, changes or 
rearrangement in structural parts, and extraordinary repairs. It does 
not include normal maintenance, reroofing, interior decoration, or 
changes to mechanical systems.
    Architectural Barriers Act means the Architectural Barriers Act of 
1968, Pub. L. 90-480, as amended, 42 U.S.C. 4151 et seq.
    Building or facility means all or any portion of buildings, 
structures, equipment, roads, walks, parking lots, parks, sites, or 
other real property or interest in such property.
    Chair means the Chair of the A&TBCB.
    Complaint means any written notice of an alleged violation, whether 
from an individual or organization, or other written information 
reasonably indicating to the Executive Director a violation of the 
standard.
    Construction means any section of a new building or an addition to 
an existing building.
    Day means calendar day.
    Executive Director means the A&TBCB Executive Director.

[[Page 292]]

    Extraordinary repair means the replacement or renewal of any element 
of an existing building or facility for purposes other than normal 
maintenance.
    Judge means an Administrative Law Judge appointed by the A&TBCB and 
assigned to the case in accordance with either section 3105 or 3314 of 
title 5 U.S.C.
    PER means Provisional Expedited Relief.
    Respondent means a party answering the citation, including PER 
Citation.
    Section 502 of the Rehabilitation Act means section 502 of the 
Rehabilitation Act of 1973, Pub. L. 93-112, 29 U.S.C. 792, as amended.
    Standard means any standard for accessibility and usability 
prescribed under the Architectural Barriers Act.

[53 FR 39473, Oct. 7, 1988]



Sec. 1150.5  Scope and interpretation of rules.

    (a) These rules shall govern all compliance proceedings held before 
a judge and all alleged violations coming to the Executive Director as a 
complaint.
    (b) In the absence of a specific provision in these rules, procedure 
shall be in accordance with the Administrative Procedure Act, subchapter 
II of chapter 5 and chapter 7, of title 5 U.S.C., and the Federal Rules 
of Civil Procedure, in that order.
    (c) These rules and regulations shall be liberally construed to 
effectuate the purposes and provisions of the Architectural Barriers Act 
and section 502 of the Rehabilitation Act.
    (d) The rules shall be applied to secure fairness in administration 
and elimination of unjustifiable expense and delay and to ascertain the 
truth.
    (e) Words importing the singular number may extend and be applied to 
a plural and vice versa.



Sec. 1150.6  Suspension of rules.

    Upon notice to all parties, the judge, with respect to matters 
pending before him/her, may modify or waive any rule in these 
regulations upon determination that no party will be unduly prejudiced 
and that the end of justice will be served.



              Subpart B_Parties, Complainants, Participants



Sec. 1150.11  Parties.

    (a) The term parties includes (1) any agency, state or local body, 
or other person named as a respondent in a notice of hearing or 
opportunity for hearing, (2) the Executive Director and (3) any person 
named as a party by order of the judge.
    (b) The Executive Director has the sole authority to initiate 
proceedings by issuing a citation under Sec. 1150.42, on the basis of 
(1) a complaint from any person or (2) alleged violations coming to his/
her attention through any means.



Sec. 1150.12  Complainants.

    (a) Any person may submit a complaint to the A&TBCB alleging that a 
building or facility does not comply with applicable standards issued 
under the Architectural Barriers Act. Complaints must be in writing and 
should be sent to: Executive Director, Architectural and Transportation 
Barriers Compliance Board, 1111 18th Street, Suite 501, Washington, DC 
20036-3894.

A complaint form is available at the above address. Complaints may, but 
need not, contain (1) the complainant's name and where he/she may be 
reached, (2) the facility or building and, if known, the funding agency, 
and (3) a brief description of the barriers. A complaint form is 
available at the above address.
    (b) The A&TBCB shall hold in confidence the identity of all persons 
submitting complaints unless the person submits a written authorization 
otherwise.
    (c) The A&TBCB shall give or mail to the complainant a copy of these 
regulations.
    (d) A complainant is not a party to the proceedings as a matter of 
course, but may petition the judge to participate under Sec. 1150.13.
    (e) The A&TBCB shall send the complainant a copy of the final order 
issued by the judge. The complainant has standing to obtain judicial 
review of that order.

[53 FR 39473, Oct. 7, 1988]

[[Page 293]]



Sec. 1150.13  Participation on petition.

    (a) By petitioning the judge, any person may be permitted to 
participate in the proceedings when he/she claims an interest in the 
proceedings and may contribute materially to their proper disposition. A 
complainant shall be permitted to participate in the proceeding when he/
she petitions the judge.
    (b) The judge may, in his/her discretion, determine the extent of 
participation of petitioners, including as an intervening party or 
participant. The judge may, in his/her discretion, limit participation 
to submitting documents and briefs, or permit the introduction of 
evidence and questioning of witnesses.



Sec. 1150.14  Appearance.

    (a) A party may appear in person or by counsel or other 
representative and participate fully in any proceedings. An agency, 
state or local body, corporation or other association, may appear by any 
of its officers or by any employee it authorizes to appear on its 
behalf.
    (b) A representative of a party or participant shall be deemed to 
control all matters respecting the interest of such party or participant 
in the proceedings.
    (c) This section shall not be construed to require any 
representative to be an attorney-at-law.
    (d) Withdrawal of appearance of any representative is effective when 
a written notice of withdrawal is filed and served on all parties and 
participants.



     Subpart C_Form, Execution, Service and Filing of Documents for 
                        Proceedings on Citations



Sec. 1150.21  Form of documents to be filed.

    Documents to be filed under the rules in this part shall be dated, 
the original signed in ink, shall show the docket number and title of 
the proceeding and shall show the title, if any, and address of the 
signatory. Copies need not be signed; however, the name of the person 
signing the original, but not necessarily his/her signature, shall be 
reproduced. Documents shall be legible and shall not be more than 8\1/2\ 
inches wide.



Sec. 1150.22  Signature of documents.

    The signature of a party, authorized officer, employee or attorney 
constitutes a certification that he/she has read the document, that to 
the best of his/her knowledge, information, and belief there is a good 
ground to support it, and that it is not interposed for delay. If a 
document is not signed or is signed with intent to defeat the purpose of 
this section, it may be stricken as sham and false and the proceeding 
may proceed as though the document had not been filed.



Sec. 1150.23  Filing and service.

    (a) General. All notices, written motions, requests, petitions, 
memoranda, pleadings, briefs, decisions, and correspondence to the 
judge, from a party or a participant or vice versa, relating to a 
proceeding after its commencement shall be filed and served on all 
parties and participants.
    (b) Filing. Parties shall submit for filing the original and two 
copies of documents, exhibits, and transcripts of testimony. Filings 
shall be made in person or by mail, with the hearing clerk at the 
address stated in the notice of hearing or notice of opportunity for 
hearing, during regular business hours. Regular business hours are every 
Monday through Friday (Federal legal holidays excepted) from 9 a.m. to 
5:30 p.m. Standard or Daylight Savings Time, whichever is effective in 
the city where the office of the judge is located at the time.
    (c) Service. Service of one copy shall be made on each party and 
participant by personal delivery or by certified mail, return receipt 
requested, properly addressed with postage prepaid. When a party or 
participant has appeared by attorney or other representative, service 
upon the attorney or representative is deemed service upon the party or 
participant.



Sec. 1150.24  [Reserved]



Sec. 1150.25  Date of service.

    The date of service shall be the day when the matter is deposited in 
United States mail or is delivered in person,

[[Page 294]]

except that the date of service of the initial notice of hearing or 
opportunity for hearing shall be the date of its delivery, or the date 
that its attempted delivery is refused.



Sec. 1150.26  Certificate of service.

    The original of every document filed and required to be served upon 
parties to a proceeding shall be endorsed with a certificate of service 
signed by the party making service or by his/her attorney or 
representative, stating that such service has been made, the date of 
service, and the manner of service, whether by mail or personal 
delivery.



                             Subpart D_Time



Sec. 1150.31  Computation.

    In computing any period of time under these rules or in any order 
issued under them, 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 Federal legal holiday, in which event it includes 
the next following business day. When the period of time prescribed or 
allowed is less than seven (7) days, intermediate Saturdays, Sundays, 
and Federal legal holidays shall be excluded from the computation.



Sec. 1150.32  Extension of time or postponement.

    (a) Requests for extension of time shall be addressed to the judge 
and served on all parties and participants. Requests should set forth 
the reasons for the application.
    (b) If made promptly, answers to requests for extension of time are 
permitted.
    (c) The judge may grant the extension upon a showing of good cause 
by the applicant.



     Subpart E_Proceedings Prior to Hearings; Pleadings and Motions



Sec. 1150.41  Informal resolution.

    (a) The A&TBCB immediately shall send copies of complaints to all 
interested agencies and persons. In addition, the A&TBCB shall apprise 
any person who might become a party to compliance proceedings of the 
alleged instances of noncompliance and afford him/her a reasonable 
opportunity to respond or submit pertinent documents.
    (b) The Executive Director or his/her designee shall seek the 
cooperation of persons and agencies in obtaining compliance and shall 
provide assistance and guidance to help them comply voluntarily.
    (c) Upon request of the Executive Director, interested agencies or 
persons, including, but not limited to, occupant agencies, recipients of 
assistance, and lessors, shall submit to the Executive Director or his/
her designee timely, complete, and accurate reports concerning the 
particular complaint. Reports shall be completed at such times, and in 
such form containing all information as the Executive Director or his/
her designee may prescribe.
    (d) The Executive Director, or his/her designee, shall have access 
during normal business hours to books, records, accounts and other 
sources of information and facilities as may be pertinent to ascertain 
compliance. Considerations of privacy or confidentiality asserted by an 
agency or person may not bar the Executive Director from evaluating such 
materials or seeking to enforce compliance. The Executive Director may 
seek a protective order authorizing the use of allegedly confidential 
materials on terms and conditions specified by the judge.
    (e) Complaints should be resolved informally and expeditiously, by 
the interested persons or agencies. If compliance with the applicable 
standards is not achieved informally or an impasse concerning the 
allegations of compliance or noncompliance is reached, the Executive 
Director will review the matter, including previous attempts by agencies 
to resolve the complaint, and take actions including, but not limited 
to, surveying and investigating buildings, monitoring compliance 
programs of agencies, furnishing technical assistance, such as standard 
interpretation, to agencies, and obtaining assurances, certifications, 
and plans of action as may be necessary to ensure compliance.
    (f) All actions to informally resolve complaints under paragraphs 
(a) through (e) of this section shall be completed within one hundred 
eighty

[[Page 295]]

(180) days after receipt of the complaint by all affected agencies and 
persons. A complaint shall be deemed informally resolved if the person 
or agencies responsible for the alleged violation either:
    (1) Demonstrates to the Executive Director that no violation has 
occurred, or
    (2) Corrects the violation, or
    (3) Agrees in writing to implement specific compliance action within 
a definite time agreed to by the Executive Director, or
    (4) Are timely implementing a plan for compliance agreed to by the 
Executive Director.

No later than ten (10) days after the determination of the one hundred 
eighty (180) day period, the Executive Director shall either issue a 
citation under Sec. 1150.42, or determine in writing that a citation 
will not be issued at that time and the reasons that it is considered 
unnecessary.
    (g) A determination not to issue a citation shall be served in 
accordance with Sec. 1150.23 on all interested agencies and persons 
upon whom a citation would have been served if it had been issued. 
Except as otherwise provided in paragraph (i) of this section, the 
failure of the Executive Director to take action within the ten (10) day 
period after termination of the one hundred eighty (180) day informal 
resolution period shall not preclude the Executive Director from taking 
action thereafter.
    (h) Nothing in paragraphs (a) through (g) of this section shall be 
construed as precluding the Executive Director before the termination of 
the one hundred eighty (180) day informal resolution period from:
    (1) Issuing a citation if it is reasonably clear that informal 
resolution cannot be achieved within that time, or
    (2) Determining not to issue a citation if it is reasonably clear 
that compliance can be achieved or that issuance of a citation is not 
otherwise warranted.
    (i) At any time after the expiration of one hundred ninety (190) 
days after receipt of the complaint by all affected agencies and 
persons, any person or agency receiving a copy of the complaint, or the 
complainant, may serve a written request on the Executive Director to 
issue a citation or determination not to proceed within thirty (30) 
days. If the Executive Director fails to serve a written response within 
thirty (30) days of receipt of such a request, the complaint shall be 
deemed closed.

[53 FR 39474, Oct. 7, 1988]



Sec. 1150.42  Citations.

    (a) If there appears to be a failure or threatened failure to comply 
with a relevant standard, and the noncompliance or threatened 
noncompliance cannot be corrected or resolved by informal means under 
Sec. 1150.41, the Executive Director on behalf of the A&TBCB may issue 
a written citation, requesting the ordering of relief necessary to 
ensure compliance with the standards or guidelines and requirements. The 
relief may include the suspension or withholding of funds and/or 
specific corrective action.
    (b) The citation shall be served upon all interested parties, as 
appropriate, including but not limited to the complainant, the agency 
having custody, control, or use of the building or facility, and the 
agency funding by contract, grant, or loan, the allegedly noncomplying 
building or facility.
    (c) The citation shall contain:
    (1) A concise jurisdictional statement reciting the provisions of 
section 502 of the Rehabilitation Act and Architectural Barriers Act 
under which the requested action may be taken, (2) a short and plain 
basis for requesting the imposition of the sanctions, (3) a statement 
either that within fifteen (15) days a hearing date will be set or that 
the agency or affected parties may request a hearing within fifteen (15) 
days from service of the citation, and (4) a list of all pertinent 
documents necessary for the judge to make a decision on the alleged 
noncompliance, including but not limited to, contracts, invitations for 
bids, specifications, contract or grant drawings, and correspondence.
    (d) The Executive Director shall file copies of all pertinent 
documents listed in the citation simultaneously with filing the 
citation.

[[Page 296]]



Sec. 1150.43  Answers.

    (a) Answers shall be filed by respondents within fifteen (15) days 
after receipt of a citation.
    (b) The answer shall admit or deny specifically and in detail, 
matters set forth in each allegation of the citation. If the respondent 
is without knowledge, the answer shall so state and such statement shall 
be deemed a denial. Matters not specifically denied shall be deemed 
admitted. Failure to file a timely answer shall constitute an admission 
of all facts recited in the citation.
    (c) Answers shall contain a list of additional pertinent documents 
not listed in the citation when respondent reasonably believes these 
documents are necessary for the judge to make a decision. Copies of the 
listed documents shall be filed with the answer.
    (d) Answers may also contain a request for a hearing under Sec. 
1150.45.



Sec. 1150.44  Amendments.

    (a) The Executive Director may amend the citation as a matter of 
course before an answer is filed. A respondent may amend its answer once 
as a matter of course, but not later than five (5) days after the filing 
of the original answer. Other amendments of the citation or the answer 
shall be made only by leave of judge.
    (b) An amended citation shall be answered within five (5) days of 
its service, or within the time for filing an answer to the original 
citation, whichever is longer.



Sec. 1150.45  Request for hearing.

    When a citation does not state that a hearing will be scheduled, the 
respondent, either in a separate paragraph of the answer, or in a 
separate document, may request a hearing. Failure of a respondent to 
request a hearing within fifteen (15) days from service of the citation 
shall be deemed a waiver of the right to a hearing and shall constitute 
consent to the making of a decision on the basis of available 
information.



Sec. 1150.46  Motions.

    (a) Motions and petitions shall state the relief sought, the 
authority relied upon, and the facts alleged.
    (b) If made before or after the hearing, these matters shall be in 
writing. If made at the hearing, they may be stated orally or the judge 
may require that they be reduced to writing and filed and served on all 
parties.
    (c) Except as otherwise ordered by judge, responses to a written 
motion or petition shall be filed within ten (10) days after the motion 
or petition is served. An immediate oral response may be made to an oral 
motion. All oral arguments on motions will be at the discretion of the 
judge.
    (d) A reply to a response may be filed within within five (5) days 
after the response is served. The reply shall address only the contents 
of the response.



Sec. 1150.47  Disposition of motions and petitions.

    The judge may not sustain or grant a written motion or petition 
prior to expiration of the time for filing responses, but may overrule 
or deny such motion or petition without awaiting response, Providing 
however, That prehearing conferences, hearings, and decisions need not 
be delayed pending disposition of motions or petitions. All motions and 
petitions may be ruled upon immediately after reply. Motions and 
petitions not disposed of in separate rulings or in decisions will be 
deemed denied.



Sec. 1150.48  PER: Citation, answer, amendment.

    (a) Unless otherwise specified, other relevant sections shall apply 
to PER proceedings.
    (b) In addition to all other forms of relief requested, the citation 
shall request PER when it appears to the Executive Director that 
immediate and irreparable harm from noncompliance with the standard is 
occurring or is about to occur. Citations requesting PER shall recite 
specific facts and include the affidavit or the notarized complaint upon 
which the PER request is based. Citations requesting PER shall recite 
that a hearing regarding PER has been scheduled to take place eight (8) 
days after receipt of the citation. Citations requesting PER may be 
filed without prejudice to proceedings in which PER is not requested and

[[Page 297]]

without prejudice to further proceedings if PER is denied. The time and 
place of hearing fixed in the citation shall be reasonable and shall be 
subject to change for cause.
    (c) Answers to citations requesting PER shall be in the form of all 
answers, as set forth in Sec. 1150.43, and must be filed within four 
(4) days after receipt of the citation. Answers shall recite in detail, 
by affidavit or by notarized answer, why the PER requested should not be 
granted.
    (d) When a citation contains both a request for relief to ensure 
compliance with a standard and a request for PER, an answer to the PER 
request shall be filed in accordance with paragraph (c) of this section 
and an answer to a request for other relief shall be filed in accordance 
with Sec. 1150.43.
    (e) Citations and answers in PER proceedings may not be amended 
prior to hearing. Citations and answers in PER proceedings may be 
amended at the hearing with the permission of the judge.



             Subpart F_Responsibilities and Duties of Judge



Sec. 1150.51  Who presides.

    (a) A judge assigned to the case under section 3105 or 3344 of title 
5 U.S.C. (formerly section 11 of the Administrative Procedure Act), 
shall preside over the taking of evidence in any hearing to which these 
rules of procedure apply.
    (b) The A&TBCB shall, in writing, promptly notify all parties and 
participants of the assignment of the judge. This notice may fix the 
time and place of hearing.
    (c) Pending his/her assignment, the responsibilities, duties, and 
authorities of the judge under these regulations shall be executed by 
the A&TBCB, through the Chair or another member of the A&TBCB designated 
by the Chair. A Board member shall not serve in this capacity in any 
proceeding relating to the member, his/her Federal agency, or 
organization of which he/she is otherwise interested.

[53 FR 39474, Oct. 7, 1988]



Sec. 1150.52  Authority of judge.

    The judge shall have the duty to conduct a fair hearing, to take all 
necessary action to avoid delay, and maintain order. He/she shall have 
all powers necessary to effect these ends, including (but not limited 
to) the power to:
    (a) Arrange and issue notice of the date, time, and place of 
hearings previously set.
    (b) Hold conferences to settle, simplify, or fix the issues in 
proceedings, or to consider other matters that may aid in the 
expeditious disposition of the proceedings.
    (c) Require parties and participants to state their position with 
respect to the various issues in the proceedings.
    (d) Administer oaths and affirmations.
    (e) Rule on motions, and other procedural items on matters pending 
before him/her.
    (f) Regulate the course of the hearing and conduct of counsel.
    (g) Examine witnesses and direct witnesses to testify.
    (h) Receive, rule on, exclude or limit evidence.
    (i) Fix time for filing motions, petitions, briefs, or other items 
in matters pending before him/her.
    (j) Issue decisions.
    (k) Take any action authorized by the rules in this part or the 
provisions of sections 551 through 559 of title 5 U.S.C. (the 
Administrative Procedure Act).

[45 FR 78474, Nov. 25, 1980. Redesignated at 53 FR 39474, Oct. 7, 1988]



Sec. 1150.53  Disqualification of judge.

    (a) A judge shall disqualify himself/herself whenever in his/her 
opinion it is improper for him/her to preside at the proceedings.
    (b) At any time following appointment of the judge and before the 
filing of the decision, any party may request the judge to withdraw on 
grounds of personal bias or prejudice either against it or in favor of 
any adverse party, by promptly filing with him/her an affidavit setting 
forth in detail the alleged grounds for disqualification.
    (c) If, in the opinion of the judge, the affidavit referred to in 
paragraph (b) of this section is filed with due diligence

[[Page 298]]

and is sufficient on its face, the judge shall promptly disqualify 
himself/herself.
    (d) If the judge does not disqualify himself/herself, he/she shall 
so rule upon the record, stating the grounds for his/her ruling. Then, 
he/she shall proceed with the hearing, or, if the hearing has closed, 
he/she shall proceed with the issuance of the decision.

[45 FR 78474, Nov. 25, 1980. Redesignated at 53 FR 39474, Oct. 7, 1988]



             Subpart G_Prehearing Conferences and Discovery



Sec. 1150.61  Prehearing conference.

    (a) At any time before a hearing, the judge on his/her own motion or 
on motion of a party, may direct the parties or their representative to 
exchange information or to participate in a prehearing conference for 
the purpose of considering matters which tend to simplify the issues or 
expedite the proceedings.
    (b) The judge may issue a prehearing order which includes the 
agreements reached by the parties. Such order shall be served upon all 
parties and participants and shall be a part of the record.



Sec. 1150.62  Exhibits.

    (a) Proposed exhibits shall be exhanged at the prehearing 
conference, or otherwise prior to the hearing if the judge so requires. 
Proposed exhibits not so exchanged may be denied admission as evidence.
    (b) The authenticity of all proposed exhibits will be deemed 
admitted unless written objection to them is filed prior to the hearing 
or unless good cause is shown at the hearing for failure to file such 
written objection.



Sec. 1150.63  Discovery.

    (a) Parties are encouraged to engage in voluntary discovery 
procedures. For good cause shown under appropriate circumstances, but 
not as a matter of course, the judge may entertain motions for 
permission for discovery and issue orders including orders--(1) to 
submit testimony upon oral examination or written interrogatories before 
an officer authorized to administer oaths, (2) to permit service of 
written interrogatories upon the opposing party, (3) to produce and 
permit inspection of designated documents, and (4) to permit service 
upon the opposing parties of a request for the admission of specified 
facts.
    (b) Motions for discovery shall be granted only to the extent and 
upon such terms as the judge in his/her discretion considers to be 
consistent with and essential to the objective of securing a just and 
inexpensive determination of the merits of the citation without 
unnecessary delay.
    (c) In connection with any discovery procedure, the judge may make 
any order which justice requires to protect a party or person from 
annoyance, embarrassment, oppression or undue burden or expense, 
including limitations on the scope, method, time and place for 
discovery, and provisions for protecting the secrecy of confidential 
information or documents. If any party fails to comply with a discovery 
order of the judge, without an excuse or explanation satisfactory to the 
judge, the judge may decide the fact or issue relating to the material 
requested to be produced, or the subject matter of the probable 
testimony, in accordance with claims of the other party in interest or 
in accordance with the other evidence available to the judge, or make 
such other ruling as he/she determines just and proper.



                      Subpart H_Hearing Procedures



Sec. 1150.71  Briefs.

    The judge may require parties and participants to file written 
statements of position before the hearing begins. The judge may also 
require the parties to submit trial briefs.



Sec. 1150.72  Purpose of hearing.

    Hearings for the receipt of evidence will be held only in cases 
where issues of fact must be resolved. Where it appears from the 
citation, the answer, stipulations, or other documents in the record, 
that there are no matters of material fact in dispute, the judge may 
enter an order so finding, vacating the hearing date, if one has been 
set, and fixing the time for filing briefs.

[[Page 299]]



Sec. 1150.73  Testimony.

    (a) Formal rules of evidence shall not apply, but rules or 
principles designed to assure production of the most probative evidence 
available do apply. Testimony shall be given orally under oath or 
affirmation; but the judge, in his/her discretion, may require or permit 
the direct testimony of any witness to be prepared in writing and served 
on all parties in advance of the hearing. Such testimony may be adopted 
by the witness at the hearing and filed as part of the record.
    (b) All witnesses shall be available for cross-examination and, at 
the discretion of the judge, may be cross-examined without regard to the 
scope of direct examination as to any matter which is relevant and 
material to the proceeding.
    (c) When testimony is taken by deposition, an opportunity shall be 
given, with appropriate notice, for all parties to cross-examine the 
witness. Objections to any testimony or evidence presented shall be 
deemed waived unless raised at the time of the deposition.
    (d) Witnesses appearing before the judge shall be paid the same fees 
and mileage that are paid witnesses in the courts of the United States. 
Witnesses whose depositions are taken and the persons taking the same 
shall be entitled to the same fees as are paid for like services in the 
courts of the United States. Witness fees and mileage shall be paid by 
the party requesting the witness to appear, and the person taking a 
deposition shall be paid by the party requesting the taking of the 
deposition.



Sec. 1150.74  Exclusion of evidence.

    The judge may exclude evidence which is immaterial, irrelevant, 
unreliable, or unduly repetitious.



Sec. 1150.75  Objections.

    Objections to evidence or testimony shall be timely and may briefly 
state the grounds.



Sec. 1150.76  Exceptions.

    Exceptions to rulings of the judge are unnecessary. It is sufficient 
that a party at the time the ruling of the judge is sought, makes known 
the action which he/she desires the judge to take, or his/her objection 
to an action taken, and his/her grounds for it.



Sec. 1150.77  Official notice.

    Where official notice is taken or is to be taken of a material fact 
not appearing in the evidence of record, any party on timely request, 
shall be afforded an opportunity to question the propriety of taking 
notice or to rebut the fact noticed.



Sec. 1150.78  Public documents.

    When a party or paticipant offers, in whole or in part, a public 
document, such as an official report, decision, opinion, or published 
scientific or economic statistical data issued by any of the executive 
departments, or their subdivisions, legislative agencies or committees 
or administrative agencies of the Federal government (including 
government-owned corporations), or a similar document issued by a State 
or local government or their agencies, and such document (or part 
thereof) has been shown by the offeror to be reasonably available to the 
public, such document need not be produced or marked for identification, 
but may be offered for official notice, as a public document by 
specifying the document or its relevant part.



Sec. 1150.79  Offer of proof.

    An offer of proof made in connection with an objection taken to a 
ruling of the judge rejecting or excluding proffered oral testimony 
shall consist of a statement of the substance of the evidence which 
counsel contends would be adduced by such testimony. If the excluded 
evidence consists of evidence in documentary or written form or refers 
to documents or records, a copy of the evidence shall be marked for 
identification and shall accompany the record as the offer of proof.



Sec. 1150.80  Affidavits.

    An affidavit is not inadmissible as such. Unless the judge fixes 
other time periods, affidavits shall be filed and served on the parties 
not later than fifteen (15) days prior to the hearing. Not less than 
seven (7) days prior to hearing, a party may file and serve written 
objections to any affidavit on the

[[Page 300]]

ground that he/she believes it necessary to test the truth of its 
assertions at hearing. In such event the assertions objected to will not 
be received in evidence unless the affiant is made available for cross-
examination, or the judge determines that cross-examination is not 
necessary for the full and true disclosure of facts referred to in such 
assertions. Not withstanding any objection, however, affidavits may be 
considered in the case of any respondent who waives a hearing.



Sec. 1150.81  Consolidated or joint hearing.

    In cases in which the same or related facts are asserted to 
constitute noncompliance with standards or guidelines and requirements, 
the judge may order all related cases consolidated and may make other 
orders concerning the proceedings as will be consistent with the 
objective of securing a just and inexpensive determination of the case 
without unnecessary delay.



Sec. 1150.82  PER proceedings.

    (a) In proceedings in which a citation, or part of one, seeking PER 
has been filed, the judge shall make necessary rulings with respect to 
time for filing of pleadings, the conduct of the hearing, and to all 
other matters. He/she shall do all other things necessary to complete 
the proceeding in the minimum time consistent with the objective of 
securing an expeditious, just and inexpensive determination of the case. 
The times for actions set forth in these rules shall be followed unless 
otherwise ordered by the judge.
    (b) The judge shall determine the terms and conditions for orders of 
PER. These orders must be consistent with preserving the rights of all 
parties so as to permit the timely processing of the citation, or part 
of it, not requesting PER, as well as consistent with the provisions and 
objectives of the Architectural Barriers Act and section 502 of the 
Rehabilitation Act. In issuing an order for PER, the judge shall make 
the following specific findings of fact and conclusions of law--
    (1) The Executive Director is likely to succeed on the merits of the 
proceedings;
    (2) The threatened injury or violation outweighs the threatened harm 
to the respondent if PER is granted; and
    (3) Granting PER is in the public interest.
    (c) The judge may dismiss any citation or part of a citation seeking 
PER when the judge finds that the timely processing of a citation not 
requesting PER will adequately ensure the objectives of section 502 of 
the Rehabilitation Act and that immediate and irreparable harm caused by 
noncompliance with the standards or guidelines and requirements is not 
occurring or about to occur.



                          Subpart I_The Record



Sec. 1150.91  Record for decision.

    The transcript of testimony, exhibits and all papers, documents and 
requests filed in the proceeding, including briefs and proposed findings 
and conclusions, shall constitute the record for decision.



Sec. 1150.92  Official transcript.

    The official transcripts of testimony, and any exhibits, briefs, or 
memoranda of law filed with them, shall be filed with the judge. 
Transcripts of testimony in hearings may be obtained from the official 
reporter by the parties and the public at rates not to exceed the 
maximum rates fixed by the contract between the A&TBCB and the reporter. 
Upon notice to all parties, the judge may authorize corrections to the 
transcript as are necessary to reflect accurately the testimony.



               Subpart J_Posthearing Procedures; Decisions



Sec. 1150.101  Posthearing briefs; proposed findings.

    The judge shall fix the terms, including time, for filing post-
hearing statements of position or briefs, which may contain proposed 
findings of fact and conclusions of law. The judge may fix a reasonable 
time for such filing, but this period shall not exceed thirty (30) days 
from the receipt by the parties of the transcript of the hearing.

[[Page 301]]



Sec. 1150.102  Decision.

    (a) The judge shall issue a decision within thirty (30) days after 
the hearing ends or, when the parties submit posthearing briefs, within 
thirty (30) days after the filing of the briefs.
    (b) The decision shall contain (1) all findings of fact and 
conclusions of law regarding all material issues of fact and law 
presented in the record, (2) the reasons for each finding of fact and 
conclusion of law, and (3) other provisions which effectuate the 
purposes of the Architectural Barriers Act and section 502 of the 
Rehabilitation Act. The decision may direct the parties to take specific 
action or may order the suspension or withholding of Federal funds.
    (c) The decision shall be served on all parties and participants to 
the proceedings.



Sec. 1150.103  Posthearing briefs, decision.

    (a) No briefs or posthearing statements of position shall be 
required in proceedings seeking PER unless specifically ordered by the 
judge.
    (b) In proceedings seeking PER the decision may be given orally at 
the close of the hearing and shall be made in writing within three (3) 
days after the hearing.



Sec. 1150.104  Judicial review.

    Any complainant or participant in a proceeding may obtain judicial 
review of a final order issued in a compliance proceeding.



Sec. 1150.105  Court enforcement.

    The Executive Director, at the direction of the Board, shall bring a 
civil action in any appropriate United States district court to enforce, 
in whole or in part, any final compliance order. No member of the A&TBCB 
shall participate in any decision of the A&TBCB concerning a proceeding 
relating to the member, his/her Federal agency, or organization to which 
he/she is a member or in which he/she is otherwise interested.



                   Subpart K_Miscellaneous Provisions



Sec. 1150.111  Ex parte communications.

    (a) No party, participant or other person having an interest in the 
case shall make or cause to be made an ex parte communication to the 
judge with respect to the case.
    (b) A request for information directed to the judge which merely 
inquiries about the status of a proceeding without discussing issues or 
expressing points of view is not deemed an ex parte communication. 
Communications with respect to minor procedural matters or inquires or 
emergency requests for extensions of time are not deemed ex parte 
communications prohibited by paragraph (a) of this section. Where 
feasible, however, such communications should be by letter, with copies 
delivered to all parties. Ex parte communications between a party or 
participant and the Executive Director with respect to securing 
compliance are not prohibited.
    (c) In the event an ex parte communication occurs, the judge shall 
issue orders and take action as fairness requires. A prohibited 
communication in writing received by the judge shall be made public by 
placing it in the correspondence file of the docket in the case and will 
not be considered as part of the record for decision. If the prohibited 
communication is received orally, a memorandum setting forth its 
substance shall be made and filed in the correspondence section of the 
docket in the case. A person referred to in this memorandum may file a 
comment for inclusion in the docket if he/she considers the memorandum 
to be incorrect.



Sec. 1150.112  Post-order proceedings.

    (a) Any party adversely affected by the compliance order issued by a 
judge may make a motion to the judge to have such order vacated upon a 
showing that the building or facility complies with the order.
    (b) Notice of motions and copies of all pleadings shall be served on 
all parties and participants to the original proceeding. Responses to 
the motion to vacate shall be filed within ten (10) days after receipt 
of the motion unless

[[Page 302]]

the judge for good cause shown grants additional time to respond.
    (c) Oral arguments on the motion may be ordered by the judge. The 
judge shall fix the terms of the argument so that they are consistent 
with the objective of securing a prompt, just, and inexpensive 
determination of the motion.
    (d) Within ten (10) days after receipt of all answers to the motion, 
the judge shall issue his/her decision in accordance with Sec. 1150.102 
(b) and (c).



Sec. 1150.113  Amicable resolution.

    (a) Amicable resolution is encouraged at any stage of proceedings 
where such resolution is consistent with the provisions and objectives 
of the Architectural Barriers Act and section 502 of the Rehabilitation 
Act.
    (b) Agreements to amicably resolve pending proceedings shall be 
submitted by the parties and shall be accompanied by an appropriate 
proposed order.
    (c) The Executive Director is authorized to resolve any proceeding 
on behalf of the A&TBCB unless otherwise specifically directed by the 
A&TBCB and afterwards may file appropriate stipulations or notice that 
the proceeding is discontinued.



Sec. 1150.114  Effect of partial invalidity.

    If any section, subsection, paragraph, sentence, clause or phrase of 
these regulations is declared invalid for any reason, the remaining 
portions of these regulations that are severable from the invalid part 
shall remain in full force and effect. If a part of these regulations is 
invalid in one or more of its applications, the part shall remain in 
effect in all valid applications that are severable from the invalid 
applications.



PART 1151_BYLAWS--Table of Contents




Sec.
1151.1 Establishment.
1151.2 Authority.
1151.3 Officers.
1151.4 Delegations.
1151.5 Board meetings.
1151.6 Committees.
1151.7 Amendments to the bylaws.

    Authority: 29 U.S.C. 792.

    Source: 63 FR 1924, Jan. 13, 1998, unless otherwise noted.



Sec. 1151.1  Establishment.

    The Architectural and Transportation Barriers Compliance Board was 
established pursuant to section 502 of the Rehabilitation Act of 1973, 
as amended. The agency is also known and often referred to as the 
``Access Board'' or simply the ``Board.''



Sec. 1151.2  Authority.

    The Board shall have the authority and responsibilities as set forth 
in section 502 of the Rehabilitation Act of 1973 (29 U.S.C. 792); 
section 504 of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12204); and section 225(e) of the Telecommunications Act of 1996 (47 
U.S.C. 255(e)).



Sec. 1151.3  Officers.

    (a) Board. The Board is the governing body of the agency.
    (b) Chair, Vice-Chair. The head of the agency is the Chair of the 
Board and, in his or her absence or disqualification, the Vice-Chair of 
the Board. As head of the agency, the Chair represents the Board 
whenever an applicable Federal statute or regulation imposes a duty or 
grants a right or authority to the head of the agency and has the 
authority to act in all matters relating to the operation of the Board. 
The Chair may delegate any such duties and responsibilities by written 
delegation of authority. The Chair supervises the Executive Director and 
evaluates his or her performance and approves performance evaluations of 
employees who report directly to the Executive Director. The authority 
to supervise, evaluate and approve performance evaluations of the 
Executive Director and those employees who report directly to the 
Executive Director may only be delegated to the Vice-Chair of the Board.
    (c) Election, term. The Chair and the Vice-Chair of the Board shall 
be elected by a majority of the membership of the Board (as fixed by 
statute) and serve for terms of one year. Elections shall be held as 
soon as possible upon completion of the one year term of the Chair and 
Vice-Chair. If no new Chair or Vice-Chair has been elected at the

[[Page 303]]

end of the one-year term, the incumbents shall continue to serve in that 
capacity until a successor Chair or Vice-Chair has been elected. When 
the Chair is a public member, the Vice-Chair shall be a Federal member; 
and when the Chair is a Federal member, the Vice-Chair shall be a public 
member. Upon the expiration of the term as Chair of a Federal member, 
the subsequent Chair shall be a public member; and vice versa.
    (d) Executive Director. The Executive Director is nominated by the 
Chair and confirmed by the Board. The Executive Director provides 
administrative leadership, and supervision and management of staff 
activities in carrying out the policies and decisions of the Board under 
the direction and supervision of the Chair. The Executive Director has 
the authority to execute contracts, agreements and other documents 
necessary for the operation of the Board; hire, fire and promote staff 
(including temporary or intermittent experts and consultants); procure 
space, equipment and supplies; and obtain interagency and commercial 
support services. The Executive Director directs compliance and 
enforcement activities in accordance with the procedures set forth in 36 
CFR part 1150, including issuing citations and determinations not to 
proceed, conducting negotiations for compliance, entering into 
agreements for voluntary compliance and performing all other actions 
authorized by law pertaining to compliance and enforcement not otherwise 
reserved to the Board.
    (e) General Counsel. The General Counsel is nominated by the Chair 
and confirmed by the Board. The General Counsel is responsible to the 
Board under the supervision of the Executive Director.



Sec. 1151.4  Delegations.

    (a) Executive Committee. The Board may delegate to the Executive 
Committee authority to implement its decisions by a majority vote of the 
members present at a meeting and any proxies. To the extent permitted by 
law, the Board may delegate to the Executive Committee any other of its 
authorities by two-thirds vote of the members present at a meeting and 
any proxies. A separate delegation is necessary for each action the 
Board desires the Executive Committee to implement.
    (b) Other. To the extent permitted by law, the Board may delegate 
other duties to its officers or committees by a vote of two-thirds of 
the members present at a meeting and any proxies.
    (c) Redelegation. Unless expressly prohibited in the original 
delegation, an officer or committee may redelegate authority.



Sec. 1151.5  Board meetings.

    (a) Number. The Chair shall schedule five regular meetings of the 
Board each year. In addition, the Board shall schedule one Board 
sponsored public event.
    (b) Timing. Regular meetings of the Board and at least one Board 
sponsored event shall ordinarily be held on the Wednesday following the 
second Tuesday of every other month. The Chair may reschedule a regular 
meeting of the Board to another date, no more than one month earlier or 
later than the regularly scheduled date.
    (c) Agenda. The Chair establishes the agenda for the meetings. 
Members or committees shall forward submissions for agenda items to the 
Chair. Except for items concerning the adoption, amendment or recision 
of the bylaws in this part, an item may be placed before the Board for 
consideration without the approval of the Chair upon a two-thirds vote 
of the members present at a Board meeting and any proxies to suspend the 
rules of order. Items concerning the adoption, amendment or recision of 
the bylaws in this part may be placed on a future Board agenda without 
the approval of the Chair upon a vote of two-thirds of the membership of 
the Board (as fixed by statute).
    (d) Notice. The Chair shall provide a written notice of scheduled 
Board meetings, including the agenda and supporting materials for the 
meeting, to each Board member at least ten (10) work days prior to the 
meeting. The ten (10) days notice requirement may be waived upon a two-
thirds vote by the members present at the Board meeting and any proxies 
to suspend the rules of order.
    (e) Cancellation. The Chair may cancel a regular meeting of the 
Board by

[[Page 304]]

giving written notice of the cancellation at least ten (10) work days 
prior to the meeting where practical.
    (f) Special meetings. The Chair may call special meetings of the 
Board to deal with important matters arising between regular meetings 
which require action by the Board prior to the next regular meeting. 
Voting and discussion shall be limited to the subject matter which 
necessitated the call of the special meeting. All Board members shall 
receive reasonable advance notice of the time, place, and purpose of the 
special meeting.
    (g) Record. The Executive Director shall maintain a permanent record 
of the minutes of the meeting and attendance. The Board shall approve 
the final minutes after all corrections and additions have been 
incorporated.
    (h) Rules for Board meetings. Meetings of the Board shall be held in 
accordance with Robert's Rules of Order, except as otherwise prescribed 
in the bylaws in this part.
    (i) Quorum. (1) A quorum shall be the majority of the membership of 
the Board (as fixed by statute). At least half of the members required 
for a quorum shall be public members.
    (2) Proxies shall not be counted for purposes of establishing a 
quorum.
    (3) If a quorum is not present, a meeting shall be held only for the 
purpose of discussion and no vote may be taken.
    (j) Voting. (1) Only Board members may vote.
    (2) Except as otherwise prescribed in the bylaws in this part, a 
majority vote of the members present and any proxies is necessary for 
action by the Board.
    (3) The presiding officer shall have the same right to vote as any 
other member.
    (4) Any member may give his or her directed or undirected proxy to 
any other Board member, present at the meeting. Proxies shall be given 
in writing and submitted to the Chair prior to or at the meeting. A 
directed proxy shall be voided as to a specific issue if the question on 
which the vote is eventually taken differs from the question to which 
the proxy is directed.
    (5) The Board may act on items of business between meetings by 
notational voting. At the request of the Chair, the Executive Director 
shall send a written ballot to each Board member describing each item 
submitted for notational voting. If any Board member requests discussion 
on an item, the ballots shall not be counted and the Chair shall place 
the item on the next Board meeting agenda for discussion and voting.
    (k) Telecommunications. A member of the Board shall be considered 
present at a meeting when he or she participates in person or by 
conference telephone or similar communication equipment which enables 
all persons participating in the meeting to communicate with each other.



Sec. 1151.6  Committees.

    (a) Executive Committee--(1) Establishment. The Board shall have an 
Executive Committee to serve as a leadership and coordinating committee. 
The Executive Committee acts on behalf of the Board in between regularly 
scheduled Board meetings as necessary and as authorized by delegation of 
the Board. In addition, the Executive Committee has the following duties 
and responsibilities:
    (i) To review and consider recommendations and proposals from the 
various subject matter committees;
    (ii) To review and make recommendations to the Board to amend or 
approve the Board's bylaws; and
    (iii) To request and review all committee charters.
    (2) Chair. The Vice-Chair of the Board shall serve as Chair of the 
Executive Committee.
    (3) Membership. The Executive Committee shall be composed of a 
minimum of six members, three Federal and three public members, which 
shall include the Chair and the Vice-Chair of the Board, the chairs of 
each of the subject matter committees, and two at large members. The two 
at large members shall balance the number of Federal and public members 
and shall be elected by the Board after the election of the Chair and 
Vice-Chair of the Board and the chairs of the subject matter committees. 
In the event that the Board should establish three or

[[Page 305]]

more subject matter committees, additional at-large members shall be 
elected as necessary to balance the Federal and public membership of the 
committee.
    (4) Quorum. A quorum in the Executive Committee shall be a majority 
of the membership, present at the meeting. In the absence of their 
Federal member, the liaison may count toward a quorum. If a quorum is 
not present, a meeting can be held only for the purpose of discussion 
and no vote may be taken.
    (5) Voting. (i) The presiding officer shall have the same right to 
vote as any other member.
    (ii) On matters subject to Board review, liaisons are permitted to 
vote in the absence of their Federal member. A majority vote of the 
members (or liaisons) present at the meeting and any directed or 
undirected proxies is necessary for action by the committee.
    (iii) On matters of final action, not subject to Board review, a 
majority vote of the membership of the committee, present at the meeting 
or by directed proxy, is necessary for action by the committee. In the 
absence of their Federal member, liaisons are permitted to cast a 
directed proxy only.
    (b) Subject matter committees--(1) Establishment. The Board may 
establish or dissolve subject matter committees by a two-thirds vote of 
the members present and any proxies.
    (2) (2) Chair, Vice-Chair. The Chair and Vice-Chair of a subject 
matter committee shall be elected by the Board after the election of the 
Chair and Vice-Chair of the Board. The Chair of a subject matter 
committee shall serve as a member of the Board's Executive Committee.
    (3) Membership. Each subject matter committee shall be comprised of 
a minimum of seven, and a maximum of nine, members. Except for the Chair 
of the committee who is elected by the Board, the members of the 
committee shall be appointed by the Chair of the Board. Members shall 
serve a term of one year corresponding to that of the Chair of the 
Board, and continue their duties until their successors have been 
appointed.
    (4) Quorum. A quorum shall be a majority of the actual membership of 
the committee. A liaison may represent the Federal member for purposes 
of a quorum. If a quorum is not present, a meeting shall be held only 
for the purpose of discussion and no vote may be taken.
    (5) Voting. Directed or undirected proxies are permitted. In the 
absence of their Federal member, liaisons are permitted to vote on all 
matters which are subject to review by the full Board. The presiding 
officer shall have the same right to vote as any other member. A 
majority vote of the members (or liaisons) present at the meeting and 
any directed or undirected proxies is necessary for action by the 
committee.
    (c) Special committees. The Chair, the Board, the Executive 
Committee or a subject matter committee may appoint a special committee 
to carry out a specific task. A special committee shall dissolve upon 
completion of its task or when dissolved by its creator. A special 
committee shall be governed by the same rules and procedures applicable 
to subject matter committees unless other rules or procedures are 
approved by the creator of the committee.
    (d) Telecommunications. A member of a committee shall be considered 
present at a meeting when he or she participates in person or by 
conference telephone or similar communication equipment which enables 
all persons participating in the meeting to communicate with each other.
    (e) Charter. With the exception of a Committee of the Whole, each 
committee shall establish a charter and may establish any additional 
procedures provided that they do not conflict with the provisions of the 
bylaws in this part.
    (f) Procedure. Committee meetings shall be held in accordance with 
Robert's Rules of Order, except as otherwise prescribed in the bylaws in 
this part or committee charters.
    (g) Records. Committees shall maintain written records of the 
meetings.

[63 FR 1924, Jan. 13, 1998, as amended at 71 FR 33254, June 8, 2006]



Sec. 1151.7  Amendments to the bylaws.

    In order to amend the bylaws in this part, a vote of two-thirds of 
the membership of the Board (as fixed by statute) at the time the vote 
is taken shall

[[Page 306]]

be required. The Board shall not suspend the rules in taking any action 
concerning adoption, amendment or recision of the bylaws in this part 
except that by vote of two-thirds of the membership of the Board (as 
fixed by statute), an item concerning the adoption, amendment or 
recision of the bylaws in this part may be placed on an agenda for Board 
consideration at a future meeting.



PART 1154_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE ARCHITECTURAL AND TRANSPORTATION 

BARRIERS COMPLIANCE BOARD--Table of Contents




Sec.
1154.101 Purpose.
1154.102 Application.
1154.103 Definitions.
1154.104-1154.109 [Reserved]
1154.110 Self-evaluation.
1154.111 Notice.
1154.112-1154.129 [Reserved]
1154.130 General prohibitions against discrimination.
1154.131-1154.139 [Reserved]
1154.140 Employment.
1154.141-1154.148 [Reserved]
1154.149 Program accessibility: Discrimination prohibited.
1154.150 Program accessibility: Existing facilities.
1154.151 Program accessibility: New construction and alterations.
1154.152-1154.159 [Reserved]
1154.160 Communications.
1154.161-1154.169 [Reserved]
1154.170 Compliance procedures.

    Authority: 29 U.S.C. 794.

    Source: 52 FR 16380, May 5, 1987, unless otherwise noted.



Sec. 1154.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Service, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec. 1154.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 1154.103  Definitions.

    For purposes of this part, the term--
    Agency means the Architectural and Transportation Barriers 
Compliance Board.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means service or devices that enable persons with 
impaired sensory, manual, and/or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephones handset amplifiers, telephone compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discriminations.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--

[[Page 307]]

    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamantal alteration in its nature; and
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified Handicapped Person is defined for purposes of 
employment in 29 CFR 1613.702(f) which is made applicable to this part 
by Sec. 1154.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.



Sec. Sec. 1154.104-1154.109  [Reserved]



Sec. 1154.110  Self-evaluation.

    (a) By July 6, 1988, the agency shall evaluate its current policies 
and practices, and the effects thereof, that do not or may not meet the 
requirements of this part, and, to the extent modification of any such 
policies and practices is required, the agency shall proceed to make the 
necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, for all least three years following completion 
of the evaluation required under paragraph (a) of this section, maintain 
on file and make available for public inspection--
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 1154.111  Notice.

    The agency shall make available to employees, applicants, 
participants,

[[Page 308]]

beneficiaries, and other interested persons such information regarding 
the provisions of this part and its applicability to the programs or 
activities conducted by the agency, and made such information available 
to them in such manner as the agency head finds necessary to apprise 
effectively such persons of the protections against discrimination 
assured them by section 504 and this regulation.



Sec. Sec. 1154.112-1154.129  [Reserved]



Sec. 1154.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or servcies to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate of 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.

[[Page 309]]



Sec. Sec. 1154.131-1154.139  [Reserved]



Sec. 1154.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally-conducted programs or 
activities.



Sec. Sec. 1154.141-1154.148  [Reserved]



Sec. 1154.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1154.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 1154.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons; or
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 1154.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his/her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualfied handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by September 4, 1987 except 
that where structural changes in facilities are undertaken, such changes 
shall be made by July 6, 1990, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop by January 6, 1988, a transition plan setting forth 
the steps necessary to complete such changes. The agency shall

[[Page 310]]

provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementatin of the plan.



Sec. 1154.151  Program accessibility: New construction and alterations.

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



Sec. Sec. 1154.152-1154.159  [Reserved]



Sec. 1154.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, the program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants, beneficiaries, 
and members of the public by telephone, telecommunications devices for 
deaf persons (TDD's) or equally effective telecommunication systems 
shall be used.
    (b) The agency shall ensure that interested person, including 
persons with impaired vision, speech or hearing, can obtain information 
as to the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens.

In those circumstances where agency personnel believe that the proposed 
action would fundamentally alter the program or activity or would result 
in undue financial and administrative burdens, the agency has the burden 
of proving that compliance with Sec. 1154.160 would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his/her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the agency shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
handicapped persons

[[Page 311]]

receive the benefits and services of the program or activity.

[52 FR 16380, May 5, 1987, as amended at 53 FR 24265, June 28, 1988]



Sec. Sec. 1154.161-1154.169  [Reserved]



Sec. 1154.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) Responsiblity for implementation and operation of this section 
shall be vested in the Equal Employment Opportunity Director.
    (d) Complaints may be delivered or mailed to the Equal Employment 
Opportunity Director, ATBCB, 330 C Street, SW., Rm. 1010, Washington, DC 
20202.
    (e) The agency shall accept and investigate all complete complaints 
over which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (f) If the Equal Employment Opportunity Director receives a 
complaint that is not complete, he or she shall notify the complainant, 
within 30 days of receipt of the incomplete complaint, that additional 
information is needed. If the complainant fails to complete the 
complaint within 30 days of receipt of this notice, the Equal Employment 
Opportunity Director shall dismiss the complaint without prejudice, and 
shall notify the complainant of such dismissal.
    (g) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (h) The agency shall notify the Director of the Compliance and 
Enforcement Division of any complaint alleging that a building or 
facility is not readily accessible to and usable by handicapped persons. 
The Director of the Compliance and Enforcement Division shall determine 
whether or not the building or facility is subject to the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 
of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792).
    (i) Within 180 days of the receipt of a complete complaint over 
which it has jurisdiction, the agency shall notify the complainant of 
the results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (j) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 1154.170(g). The agency may 
extend this time for good cause.
    (k) Timely appeals shall be accepted and processed by the head of 
the agency.
    (l) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he/she shall have 60 days from the date of receipt 
of the additional information to make his/her determination on the 
appeal.
    (m) The time limits cited in paragraphs (i) and (l) of this section 
may be extended with the permission of the Assistant Attorney General.
    (n) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.



PART 1191_AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY GUIDELINES FOR 

BUILDINGS AND FACILITIES; ARCHITECTURAL BARRIERS ACT (ABA) ACCESSIBILITY 

GUIDELINES--Table of Contents




Sec.
1191.1 Accessibility guidelines.

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Appendix A to Part 1191--Table of Contents
Appendix B to Part 1191--Americans With Disabilities Act: Scoping
Appendix C to Part 1191--Architectural Barriers Act: Scoping
Appendix D to Part 1191--Technical
Appendix E to Part 1191--List of Figures and Index
Appendix F to Part 1191--Modifications Adopted by the Department of 
          Transportation

    Authority: 29 U.S.C. 792(b)(3); 42 U.S.C. 12204.

    Source: 69 FR 44151, July 23, 2004, unless otherwise noted.



Sec. 1191.1  Accessibility guidelines.

    (a) The accessibility guidelines for buildings and facilities 
covered by the Americans with Disabilities Act are set forth in 
Appendices B and D to this part. The guidelines serve as the basis for 
accessibility standards adopted by the Department of Justice and the 
Department of Transportation under the Americans with Disabilities Act.
    Note 1 to paragraph (a): 1. The Department of Transportation has 
adopted by reference Appendices B and D to this part with modifications 
as the regulatory standards for the construction and alteration of 
transportation facilities subject to its regulations under the Americans 
with Disabilities Act, effective November 29, 2006. 49 CFR 37.9 and 
Appendix A to 49 CFR part 37, as amended at 71 FR 63263, October 30, 
2006; and corrected at 72 FR 11089, March 12, 2007. The Department of 
Transportation has modified section 206.3 in Appendix B to this part; 
and sections 406, 810.2.2, and 810.5.3 in Appendix D to this part. The 
modified sections adopted by the Department of Transportation are 
reprinted in Appendix F to this part. Entities that are required to 
comply with the Department of Transportation's regulatory standards, 
must comply with the modified sections adopted by the Department of 
Transportation that are reprinted in Appendix F to this part.
    (b) The accessibility guidelines for buildings and facilities 
covered by the Architectural Barriers Act are set forth in Appendices C 
and D to this part. The guidelines serve as the basis for accessibility 
standards adopted by the General Services Administration, the Department 
of Defense, the Department of Housing and Urban Development, and the 
United States Postal Service under the Architectural Barriers Act.
    Note 1 to paragraph (b): 1. The General Services Administration has 
adopted by reference Appendices C and D to this part as the regulatory 
standards for buildings and facilities subject to its regulations under 
the Architectural Barriers Act. 41 CFR 102-76.65, as added at 70 FR 
67786, November 8, 2005; amended at 71 FR 52498, September 6, 2006; and 
further amended at 72 FR 5942, February 8, 2007. The General Services 
Administration refers to its regulatory standards as the Architectural 
Barriers Act Accessibility Standard (ABAAS). ABAAS applies to the 
construction and alteration of facilities commenced after May 8, 2006; 
to leases awarded for lease construction buildings on or after June 30, 
2006; and to all other leases awarded pursuant to solicitations issued 
after February 6, 2007. Section 3.5 of the Facilities Standards for the 
Public Building Service PBS--P100 (March 2005) [available on the 
Internet at: http://www.gsa.gov/P100] establishes an additional 
requirement for General Services Administration owned buildings and 
lease construction with government option to purchase buildings to 
provide at least one automatic or power-assisted door complying with 
section 404.3 of ABAAS at each new or altered accessible entrance 
required by section F206.4.1 of ABAAS.
    Note 2 to paragraph (b): 2. The United States Postal Service has 
adopted by reference Appendices C and D to this part, with the exception 
of the advisory notes, as the regulatory standards for its postal 
facilities subject to the Architectural Barriers Act, effective October 
1, 2005. 39 CFR 254.1, as added at 70 FR 28213, May 17, 2005.

[69 FR 44151, July 23, 2004, as amended at 72 FR 13707, Mar. 23, 2007]

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             Sec. Appendix A to Part 1191--Table of Contents
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 Sec. Appendix B to Part 1191--Americans With Disabilities Act: Scoping

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[69 FR 44151, July 23, 2004, as amended at 70 FR 45284, Aug. 5, 2005]

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    Sec. Appendix C to Part 1191--Architectural Barriers Act: Scoping

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[69 FR 44151, July 23, 2004, as amended at 70 FR 45291, Aug. 5, 2005]

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                 Sec. Appendix D to Part 1191--Technical

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[69 FR 44151, July 23, 2004, as amended at 70 FR 45298, Aug. 5, 2005]

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[69 FR 44151, July 23, 2004, as amended at 70 FR 45308, Aug. 5, 2005]



Sec. Appendix F to Part 1191--Modifications Adopted by the Department of 
                             Transportation

    The Department of Transportation has adopted by reference Appendices 
B and D to this part with modifications as the regulatory standards for 
the construction and alteration of transportation facilities subject to 
its regulations under the Americans with Disabilities Act, effective 
November 29, 2006. 49 CFR 37.9 and Appendix A to 49 CFR part

[[Page 617]]

37, as amended at 71 FR 63263, October 30, 2006; and corrected at 72 FR 
11089, March 12, 2007. The Department of Transportation has modified 
section 206.3 in Appendix B to this part; and sections 406, 810.2.2, and 
810.5.3 in Appendix D to this part. The modified sections adopted by the 
Department of Transportation are reprinted in this appendix. Entities 
that are required to comply with the Department of Transportation's 
regulatory standards, must comply with modified sections adopted by the 
Department of Transportation that are reprinted in this appendix. The 
Department of Transportation has provided supplemental information on 
the modified sections in Appendix D to 49 CFR part 37.

                   Modification to 206.3 of Appendix B

    206.3 Location. Accessible routes shall coincide with, or be located 
in the same area as general circulation paths. Where circulation paths 
are interior, required accessible routes shall also be interior. 
Elements such as ramps, elevators, or other circulation devices, fare 
vending or other ticketing areas, and fare collection areas shall be 
placed to minimize the distance which wheelchair users and other persons 
who cannot negotiate steps may have to travel compared to the general 
public.

                    Modification to 406 of Appendix D

    406.8 Detectable Warnings. A curb ramp shall have a detectable 
warning complying with 705. The detectable warning shall extend the full 
width of the curb ramp (exclusive of flared sides) and shall extend 
either the full depth of the curb ramp or 24 inches (610 mm) deep 
minimum measured from the back of the curb on the ramp surface.

                  Modification to 810.2.2 of Appendix D

    810.2.2 Dimensions. Bus boarding and alighting areas shall provide a 
clear length of 96 inches (2440 mm), measured perpendicular to the curb 
or vehicle roadway edge, and a clear width of 60 inches (1525 mm), 
measured parallel to the vehicle roadway. Public entities shall ensure 
that the construction of bus boarding and alighting areas comply with 
810.2.2, to the extent the construction specifications are within their 
control.

                  Modification to 810.5.3 of Appendix D

    810.5.3 Platform and Vehicle Floor Coordination. Station platforms 
shall be positioned to coordinate with vehicles in accordance with the 
applicable requirements of 36 CFR part 1192. Low-level platforms shall 
be 8 inches (205 mm) minimum above top of rail. In light rail, commuter 
rail, and intercity rail systems where it is not operationally or 
structurally feasible to meet the horizontal gap or vertical difference 
requirements of part 1192 or 49 CFR part 38, mini-high platforms, car-
borne or platform-mounted lifts, ramps or bridge plates or similarly 
manually deployed devices, meeting the requirements of 49 CFR part 38, 
shall suffice.
    Exception: Where vehicles are boarded from sidewalks or street-
level, low-level platforms shall be permitted to be less than 8 inches 
(205 mm).

[72 FR 13707, Mar. 23, 2007]



PART 1192_AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY GUIDELINES FOR 

TRANSPORTATION VEHICLES--Table of Contents




                            Subpart A_General

Sec.
1192.1 Purpose.
1192.2 Equivalent facilitation.
1192.3 Definitions.
1192.4 Miscellaneous instructions.

                    Subpart B_Buses, Vans and Systems

1192.21 General.
1192.23 Mobility aid accessibility.
1192.25 Doors, steps and thresholds.
1192.27 Priority seating signs.
1192.29 Interior circulation, handrails and stanchions.
1192.31 Lighting.
1192.33 Fare box.
1192.35 Public information system.
1192.37 Stop request.
1192.39 Destination and route signs.

                Subpart C_Rapid Rail Vehicles and Systems

1192.51 General.
1192.53 Doorways.
1192.55 Priority seating signs.
1192.57 Interior circulation, handrails and stanchions.
1192.59 Floor surfaces.
1192.61 Public information system.
1192.63 Between-car barriers.

                Subpart D_Light Rail Vehicles and Systems

1192.71 General.
1192.73 Doorways.
1192.75 Priority seating signs.
1192.77 Interior circulation, handrails and stanchions.
1192.79 Floors, steps and thresholds.
1192.81 Lighting.
1192.83 Mobility aid accessibility.
1192.85 Between-car barriers.
1192.87 Public information system.

[[Page 618]]

                Subpart E_Commuter Rail Cars and Systems

1192.91 General.
1192.93 Doorways.
1192.95 Mobility aid accessibility.
1192.97 Interior circulation, handrails and stanchions.
1192.99 Floors, steps and thresholds.
1192.101 Lighting.
1192.103 Public information system.
1192.105 Priority seating signs.
1192.107 Restrooms.
1192.109 Between-car barriers.

                Subpart F_Intercity Rail Cars and Systems

1192.111 General.
1192.113 Doorways.
1192.115 Interior circulation, handrails and stanchions.
1192.117 Floors, steps and thresholds.
1192.119 Lighting.
1192.121 Public information system.
1192.123 Restrooms.
1192.125 Mobility aid accessibility.
1192.127 Sleeping compartments.

                Subpart G_Over-the-Road Buses and Systems

1192.151 General.
1192.153 Doors, steps and thresholds.
1192.155 Interior circulation, handrails and stanchions.
1192.157 Lighting.
1192.159 Mobility aid accessibility.
1192.161 Moveable aisle armrests.

                  Subpart H_Other Vehicles and Systems

1192.171 General.
1192.173 Automated guideway transit vehicles and systems.
1192.175 High-speed rail cars, monorails and systems.
1192.177 Ferries, excursion boats and other vessels. [Reserved]
1192.179 Trams, similar vehicles and systems.

Figures to Part 1192
Appendix to Part 1192--Advisory Guidance

    Authority: 42 U.S.C. 12204.

    Source: 56 FR 45558, Sept. 6, 1991, unless otherwise noted.



                            Subpart A_General



Sec. 1192.1  Purpose.

    This part provides minimum guidelines and requirements for 
accessibility standards to be issued by the Department of Transportation 
in 49 CFR part 37 for transportation vehicles required to be accessible 
by the Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. 12101 et 
seq).



Sec. 1192.2  Equivalent facilitation.

    Departures from particular technical and scoping requirements of 
these guidelines by use of other designs and technologies are permitted 
where the alternative designs and technologies used will provide 
substantially equivalent or greater access to and usability of the 
vehicle. Departures are to be considered on a case-by-case basis by the 
Department of Transportation under the procedure set forth in 49 CFR 
37.7.



Sec. 1192.3  Definitions.

    Accessible means, with respect to vehicles covered by this part, 
compliance with the provisions of this part.
    Automated guideway transit (AGT) system means a fixed-guideway 
transportation system which operates with automated (driverless) 
individual vehicles or multi-car trains. Service may be on a fixed 
schedule or in response to a passenger-activated call button. Such 
systems using small, slow moving vehicles, often operated in airports 
and amusement parks, are sometimes called people movers.
    Bus means any of several types of self-propelled vehicles, other 
than an over-the-road bus, generally rubber tired, intended for use on 
city streets, highways, and busways, including but not limited to 
minibuses, forty- and thirty-foot transit buses, articulated buses, 
double-deck buses, and electric powered trolley buses, used to provide 
designated or specified public transportation services. Self-propelled, 
rubber tire vehicles designed to look like antique or vintage trolleys 
or streetcars are considered buses.
    Common wheelchairs and mobility aids means belonging to a class of 
three or four wheeled devices, usable indoors, designed for and used by 
persons with mobility impairments which do not exceed 30 inches in width 
and 48 inches in length, measured 2 inches above the ground, and do not 
weigh more than 600 pounds when occupied.
    Commuter rail car means a rail passenger car obtained by a commuter 
authority (as defined by 49 CFR 37.3) for use in commuter rail 
transportation.

[[Page 619]]

    Commuter rail transportation means short-haul rail passenger service 
operating in metropolitan and suburban areas, operated by a commuter 
authority, whether within or across the geographical boundaries of a 
state, usually characterized by reduced fare, multiple ride, and 
commutation tickets and by morning and evening peak period operations. 
This term does not include light or rapid rail transportation.
    Demand responsive system means any system of transporting 
individuals, including the provision of designated public transportation 
service by public entities and the provision of transportation service 
by private entities, including but not limited to specified public 
transportation service, which is not a fixed route system.
    Designated public transportation means transportation provided by a 
public entity (other than public school transportation) by bus, rail, or 
other conveyance (other than transportation by aircraft or intercity or 
commuter rail transportation) that provides the general public with 
general or special service, including charter service, on a regular and 
continuing basis.
    Fixed route system means a system of transporting individuals (other 
than by aircraft), including the provision of designated public 
transportation service by public entities and the provision of 
transportation service by private entities, including but not limited to 
specified public transportation service, on which a vehicle is operated 
along a prescribed route according to a fixed schedule.
    High speed rail means an intercity-type rail service which operates 
primarily on a dedicated guideway or track not used, for the most part, 
by freight, including, but not limited to, trains on welded rail, 
magnetically levitated (maglev) vehicles on a special guideway, or other 
advanced technology vehicles, designed to travel at speeds in excess of 
those possible on other types of railroads.
    Intercity rail passenger car means a rail car intended for use by 
revenue passengers obtained by the National Railroad Passenger 
Corporation (Amtrak) for use in intercity rail transportation.
    Intercity rail transportation means transportation provided by 
Amtrak.
    Light rail means a streetcar-type vehicle railway operated on city 
streets, semi-private rights-of-way, or exclusive private rights-of-way. 
Service may be provided by step-entry vehicles or by level-boarding.
    New vehicle means a vehicle which is offered for sale or lease after 
manufacture without any prior use.
    Over-the-road bus means a vehicle characterized by an elevated 
passenger deck located over a baggage compartment.
    Rapid rail means a subway-type transit vehicle railway operated on 
exclusive private rights-of-way with high-level platform stations. Rapid 
rail may also operate on elevated or at-grade level track separated from 
other traffic.
    Remanufactured vehicle means a vehicle which has been structurally 
restored and has had new or rebuilt major components installed to extend 
its service life.
    Specified public transportation means transportation by bus, rail, 
or any other conveyance (other than aircraft) provided by a private 
entity to the general public, with general or special service (including 
charter service) on a regular and continuing basis.
    Tram means any of several types of motor vehicles consisting of a 
tractor unit, with or without passenger accommodations, and one or more 
passenger trailer units, including but not limited to vehicles providing 
shuttle service to remote parking areas, between hotels and other public 
accommodations, and between and within amusement parks and other 
recreation areas.
    Used vehicle means a vehicle with prior use.



Sec. 1192.4  Miscellaneous instructions.

    (a) Dimensional conventions. Dimensions that are not noted as 
minimum or maximum are absolute.
    (b) Dimensional tolerances. All dimensions are subject to 
conventional engineering tolerances for material properties and field 
conditions, including normal anticipated wear not exceeding accepted 
industry-wide standards and practices.

[[Page 620]]

    (c) Notes. The text of these guidelines does not contain notes or 
footnotes. Additional information, explanations, and advisory materials 
are located in the appendix.
    (d) General terminology. The terms used in this part shall have the 
following meanings:
    (1) Comply with means meet one or more specification of these 
guidelines.
    (2) If or if * * * then denotes a specification that applies only 
when the conditions described are present.
    (3) May denotes an option or alternative.
    (4) Shall denotes a mandatory specification or requirement.
    (5) Should denotes an advisory specification or recommendation and 
is used only in the appendix to this part.



                    Subpart B_Buses, Vans and Systems



Sec. 1192.21  General.

    (a) New, used or remanufactured buses and vans (except over-the-road 
buses covered by subpart G of this part), to be considered accessible by 
regulations issued by the Department of Transportation in 49 CFR part 
37, shall comply with the applicable provisions of this subpart.
    (b) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible buses be retrofitted with 
lifts, ramps or other boarding devices.



Sec. 1192.23  Mobility aid accessibility.

    (a) General. All vehicles covered by this subpart shall provide a 
level-change mechanism or boarding device (e.g., lift or ramp) complying 
with paragraph (b) or (c) of this section and sufficient clearances to 
permit a wheelchair or other mobility aid user to reach a securement 
location. At least two securement locations and devices, complying with 
paragraph (d) of this section, shall be provided on vehicles in excess 
of 22 feet in length; at least one securement location and device, 
complying with paragraph (d) of this section, shall be provided on 
vehicles 22 feet in length or less.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds. Working parts, such as cables, pulleys, and 
shafts, which can be expected to wear, and upon which the lift depends 
for support of the load, shall have a safety factor of at least six, 
based on the ultimate strength of the material. Nonworking parts, such 
as platform, frame, and attachment hardware which would not be expected 
to wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, transmission, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the vehicle cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all levels (i.e., ground, curb, and intermediate positions) normally 
encountered in the operating environment. Where provided, each control 
for deploying, lowering, raising, and stowing the lift and lowering the 
roll-off barrier shall be of a momentary contact type requiring 
continuous manual pressure by the operator and shall not allow improper 
lift sequencing when the lift platform is occupied. The controls shall 
allow reversal of the lift operation sequence, such as raising or 
lowering a platform that is part way down, without allowing an occupied 
platform to fold or retract into the stowed position.
    (ii) Exception. Where the lift is designed to deploy with its long 
dimension parallel to the vehicle axis and which pivots into or out of 
the vehicle while occupied (i.e., rotary lift), the requirements of this 
paragraph prohibiting the lift from being stowed while occupied shall 
not apply if the stowed position is within the passenger compartment and 
the lift is intended to be stowed while occupied.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method,

[[Page 621]]

manual or otherwise, shall be capable of being operated in a manner that 
could be hazardous to the lift occupant or to the operator when operated 
according to manufacturer's instructions, and shall not permit the 
platform to be stowed or folded when occupied, unless the lift is a 
rotary lift and is intended to be stowed while occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the platform during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the platform is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches high. Such barriers shall not interfere with maneuvering 
into or out of the aisle. The loading-edge barrier (outer barrier) which 
functions as a loading ramp when the lift is at ground level, shall be 
sufficient when raised or closed, or a supplementary system shall be 
provided, to prevent a power wheelchair or mobility aid from riding over 
or defeating it. The outer barrier of the lift shall automatically raise 
or close, or a supplementary system shall automatically engage, and 
remain raised, closed, or engaged at all times that the platform is more 
than 3 inches above the roadway or sidewalk and the platform is 
occupied. Alternatively, a barrier or system may be raised, lowered, 
opened, closed, engaged, or disengaged by the lift operator, provided an 
interlock or inherent design feature prevents the lift from rising 
unless the barrier is raised or closed or the supplementary system is 
engaged.
    (6) Platform surface. The platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the platform surface to 30 inches above the platform, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface of the platform. 
(See Fig. 1)
    (7) Platform gaps. Any openings between the platform surface and the 
raised barriers shall not exceed \5/8\ inch in width. When the platform 
is at vehicle floor height with the inner barrier (if applicable) down 
or retracted, gaps between the forward lift platform edge and the 
vehicle floor shall not exceed \1/2\ inch horizontally and \5/8\ inch 
vertically. Platforms on semi-automatic lifts may have a hand hold not 
exceeding 1\1/2\ inches by 4\1/2\ inches located between the edge 
barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, measured on 
level ground, for a maximum rise of 3 inches, and the transition from 
roadway or sidewalk to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll or pitch) in any direction between its unloaded position 
and its position when loaded with 600 pounds applied through a 26 inch 
by 26 inch test pallet at the centroid of the platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchair and mobility aid users.
    (12) Use by standees. Lifts shall accommodate persons using walkers,

[[Page 622]]

crutches, canes or braces or who otherwise have difficulty using steps. 
The platform may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 80 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall be placed to 
provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface. Handrails shall not interfere with wheelchair or 
mobility aid maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp--(1) Design load. Ramps 30 inches or longer shall 
support a load of 600 pounds, placed at the centroid of the ramp 
distributed over an area of 26 inches by 26 inches, with a safety factor 
of at least 3 based on the ultimate strength of the material. Ramps 
shorter than 30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp surface shall be continuous and slip 
resistant; shall not have protrusions from the surface greater than \1/
4\ inch high; shall have a clear width of 30 inches; and shall 
accommodate both four-wheel and three-wheel mobility aids.
    (3) Ramp threshold. The transition from roadway or sidewalk and the 
transition from vehicle floor to the ramp may be vertical without edge 
treatment up to \1/4\ inch. Changes in level between \1/4\ inch and \1/
2\ inch shall be beveled with a slope no greater than 1:2.
    (4) Ramp barriers. Each side of the ramp shall have barriers at 
least 2 inches high to prevent mobility aid wheels from slipping off.
    (5) Slope. Ramps shall have the least slope practicable and shall 
not exceed 1:4 when deployed to ground level. If the height of the 
vehicle floor from which the ramp is deployed is 3 inches or less above 
a 6-inch curb, a maximum slope of 1:4 is permitted; if the height of the 
vehicle floor from which the ramp is deployed is 6 inches or less, but 
greater than 3 inches, above a 6-inch curb, a maximum slope of 1:6 is 
permitted; if the height of the vehicle floor from which the ramp is 
deployed is 9 inches or less, but greater than 6 inches, above a 6-inch 
curb, a maximum slope of 1:8 is permitted; if the height of the vehicle 
floor from which the ramp is deployed is greater than 9 inches above a 
6-inch curb, a slope of 1:12 shall be achieved. Folding or telescoping 
ramps are permitted provided they meet all structural requirements of 
this section.
    (6) Attachment. When in use for boarding or alighting, the ramp 
shall be firmly attached to the vehicle so that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that no gap between vehicle and ramp exceeds \5/8\ inch.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps, including portable 
ramps stowed in the passenger area, do not impinge on a passenger's 
wheelchair or mobility aid or pose any hazard to passengers in the event 
of a sudden stop or maneuver.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches and 38 inches above the ramp 
surface. The handrails shall be capable of withstanding a force of 100 
pounds concentrated at any point on the handrail without permanent 
deformation of the rail or its supporting structure. The handrail shall 
have a cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches 
or shall provide an equivalent grasping surface, and have eased edges 
with corner radii of not less than \1/8\ inch. Handrails shall

[[Page 623]]

not interfere with wheelchair or mobility aid maneuverability when 
entering or leaving the vehicle.
    (d) Securement devices--(1) Design load. Securement systems on 
vehicles with GVWRs of 30,000 pounds or above, and their attachments to 
such vehicles, shall restrain a force in the forward longitudinal 
direction of up to 2,000 pounds per securement leg or clamping mechanism 
and a minimum of 4,000 pounds for each mobility aid. Securement systems 
on vehicles with GVWRs of up to 30,000 pounds, and their attachments to 
such vehicles, shall restrain a force in the forward longitudinal 
direction of up to 2,500 pounds per securement leg or clamping mechanism 
and a minimum of 5,000 pounds for each mobility aid.
    (2) Location and size. The securernent system shall be placed as 
near to the accessible entrance as practicable and shall have a clear 
floor area of 30 inches by 48 inches. Such space shall adjoin, and may 
overlap, an access path. Not more than 6 inches of the required clear 
floor space may be accommodated for footrests under another seat 
provided there is a minimum of 9 inches from the floor to the lowest 
part of the seat overhanging the space. Securement areas may have fold-
down seats to accommodate other passengers when a wheelchair or mobility 
aid is not occupying the area, provided the seats, when folded up, do 
not obstruct the clear floor space required. (See Fig. 2)
    (3) Mobility aids accommodated. The securement system shall secure 
common wheelchairs and mobility aids and shall either be automatic or 
easily attached by a person familiar with the system and mobility aid 
and having average dexterity.
    (4) Orientation. In vehicles in excess of 22 feet in length, at 
least one securement device or system required by paragraph (a) of this 
section shall secure the wheelchair or mobility aid facing toward the 
front of the vehicle. In vehicles 22 feet in length or less, the 
required securement device may secure the wheelchair or mobility aid 
either facing toward the front of the vehicle or rearward. Additional 
securement devices or systems shall secure the wheelchair or mobility 
aid facing forward or rearward. Where the wheelchair or mobility aid is 
secured facing the rear of the vehicle, a padded barrier shall be 
provided. The padded barrier shall extend from a height of 38 inches 
from the vehicle floor to a height of 56 inches from the vehicle floor 
with a width of 18 inches, laterally centered immediately in back of the 
seated individual. Such barriers need not be solid provided equivalent 
protection is afforded.
    (5) Movement. When the wheelchair or mobility aid is secured in 
accordance with manufacturer's instructions, the securement system shall 
limit the movement of an occupied wheelchair or mobility aid to no more 
than 2 inches in any direction under normal vehicle operating 
conditions.
    (6) Stowage. When not being used for securement, or when the 
securement area can be used by standees, the securement system shall not 
interfere with passenger movement, shall not present any hazardous 
condition, shall be reasonably protected from vandalism, and shall be 
readily accessed when needed for use.
    (7) Seat belt and shoulder harness. For each wheelchair or mobility 
aid securement device provided, a passenger seat belt and shoulder 
harness, complying with all applicable provisions of 49 CFR part 571, 
shall also be provided for use by wheelchair or mobility aid users. Such 
seat belts and shoulder harnesses shall not be used in lieu of a device 
which secures the wheelchair or mobility aid itself.



Sec. 1192.25  Doors, steps and thresholds.

    (a) Slip resistance. All aisles, steps, floor areas where people 
walk and floors in securement locations shall have slip-resistant 
surfaces.
    (b) Contrast. All step edges, thresholds, and the boarding edge of 
ramps or lift platforms shall have a band of color(s) running the full 
width of the step or edge which contrasts from the step tread and riser, 
or lift or ramp surface, either light-on-dark or dark-on-light.
    (c) Door height. For vehicles in excess of 22 feet in length, the 
overhead clearance between the top of the door opening and the raised 
lift platform, or

[[Page 624]]

highest point of a ramp, shall be a minimum of 68 inches. For vehicles 
of 22 feet in length or less, the overhead clearance between the top of 
the door opening and the raised lift platform, or highest point of a 
ramp, shall be a minimum of 56 inches.



Sec. 1192.27  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that seats in 
the front of the vehicle are priority seats for persons with 
disabilities, and that other passengers should make such seats available 
to those who wish to use them. At least one set of forward-facing seats 
shall be so designated.
    (b) Each securement location shall have a sign designating it as 
such.
    (c) Characters on signs required by paragraphs (a) and (b) of this 
section shall have a width-to-height ratio between 3:5 and 1:1 and a 
stroke width-to-height ratio between 1:5 and 1:10, with a minimum 
character height (using an upper case ``X'') of \5/8\ inch, with 
``wide'' spacing (generally, the space between letters shall be \1/16\ 
the height of upper case letters), and shall contrast with the 
background either light-on-dark or dark-on-light.



Sec. 1192.29  Interior circulation, handrails and stanchions.

    (a) Interior handrails and stanchions shall permit sufficient 
turning and maneuvering space for wheelchairs and other mobility aids to 
reach a securement location from the lift or ramp.
    (b) Handrails and stanchions shall be provided in the entrance to 
the vehicle in a configuration which allows persons with disabilities to 
grasp such assists from outside the vehicle while starting to board, and 
to continue using such assists throughout the boarding and fare 
collection process. Handrails shall have a cross-sectional diameter 
between 1\1/4\ inches and 1\1/2\ inches or shall provide an equivalent 
grasping surface, and have eased edges with corner radii of not less 
than \1/8\ inch. Handrails shall be placed to provide a minimum 1\1/2\ 
inches knuckle clearance from the nearest adjacent surface. Where on-
board fare collection devices are used on vehicles in excess of 22 feet 
in length, a horizontal passenger assist shall be located across the 
front of the vehicle and shall prevent passengers from sustaining 
injuries on the fare collection device or windshield in the event of a 
sudden deceleration. Without restricting the vestibule space, the assist 
shall provide support for a boarding passenger from the front door 
through the boarding procedure. Passengers shall be able to lean against 
the assist for security while paying fares.
    (c) For vehicles in excess of 22 feet in length, overhead 
handrail(s) shall be provided which shall be continuous except for a gap 
at the rear doorway.
    (d) Handrails and stanchions shall be sufficient to permit safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (e) For vehicles in excess of 22 feet in length with front-door 
lifts or ramps, vertical stanchions immediately behind the driver shall 
either terminate at the lower edge of the aisle-facing seats, if 
applicable, or be ``dog-legged'' so that the floor attachment does not 
impede or interfere with wheelchair footrests. If the driver seat 
platform must be passed by a wheelchair or mobility aid user entering 
the vehicle, the platform, to the maximum extent practicable, shall not 
extend into the aisle or vestibule beyond the wheel housing.
    (f) For vehicles in excess of 22 feet in length, the minimum 
interior height along the path from the lift to the securement location 
shall be 68 inches. For vehicles of 22 feet in length or less, the 
minimum interior height from lift to securement location shall be 56 
inches.



Sec. 1192.31  Lighting.

    (a) Any stepwell or doorway immediately adjacent to the driver shall 
have, when the door is open, at least 2 foot-candles of illumination 
measured on the step tread or lift platform.
    (b) Other stepwells and doorways, including doorways in which lifts 
or ramps are installed, shall have, at all times, at least 2 foot-
candles of illumination measured on the step tread, or lift or ramp, 
when deployed at the vehicle floor level.
    (c) The vehicle doorways, including doorways in which lifts or ramps 
are installed, shall have outside light(s)

[[Page 625]]

which, when the door is open, provide at least 1 foot-candle of 
illumination on the street surface for a distance 3 feet (915 mm) 
perpendicular to the bottom step tread or lift outer edge. Such light(s) 
shall be shielded to protect the eyes of entering and exiting 
passengers.

[56 FR 45558, Sept. 6, 1991, as amended at 63 FR 51697, 51702, Sept. 28, 
1998]



Sec. 1192.33  Fare box.

    Where provided, the farebox shall be located as far forward as 
practicable and shall not obstruct traffic in the vestibule, especially 
wheelchairs or mobility aids.



Sec. 1192.35  Public information system.

    (a) Vehicles in excess of 22 feet in length, used in multiple-stop, 
fixed-route service, shall be equipped with a public address system 
permitting the driver, or recorded or digitized human speech messages, 
to announce stops and provide other passenger information within the 
vehicle.
    (b) [Reserved]



Sec. 1192.37  Stop request.

    (a) Where passengers may board or alight at multiple stops at their 
option, vehicles in excess of 22 feet in length shall provide controls 
adjacent to the securement location for requesting stops and which 
alerts the driver that a mobility aid user wishes to disembark. Such a 
system shall provide auditory and visual indications that the request 
has been made.
    (b) Controls required by paragraph (a) of this section shall be 
mounted no higher than 48 inches and no lower than 15 inches above the 
floor, shall be operable with one hand and shall not require tight 
grasping, pinching, or twisting of the wrist. The force required to 
activate controls shall be no greater than 5 lbf (22.2 N).



Sec. 1192.39  Destination and route signs.

    (a) Where destination or route information is displayed on the 
exterior of a vehicle, each vehicle shall have illuminated signs on the 
front and boarding side of the vehicle.
    (b) Characters on signs required by paragraph (a) of this section 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of 1 inch for signs on the boarding 
side and a minimum character height of 2 inches for front ``headsigns'', 
with ``wide'' spacing (generally, the space between letters shall be \1/
16\ the height of upper case letters), and shall contrast with the 
background, either dark-on-light or light-on-dark.



                Subpart C_Rapid Rail Vehicles and Systems



Sec. 1192.51  General.

    (a) New, used and remanufactured rapid rail vehicles, to be 
considered accessible by regulations issued by the Department of 
Transportation in 49 CFR part 37, shall comply with this subpart.
    (b) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible vehicles be retrofitted 
with lifts, ramps or other boarding devices.
    (c) Existing vehicles which are retrofitted to comply with the 
``one-car-per-train rule'' of 49 CFR 37.93 shall comply with Sec. Sec. 
1192.55, 1192.57(b), 1192.59 and shall have, in new and key stations, at 
least one door complying with Sec. 1192.53(a)(1), (b) and (d). Removal 
of seats is not required. Vehicles previously designed and manufactured 
in accordance with the accessibility requirements of 49 CFR part 609 or 
Department of Transportation regulations implementing section 504 of the 
Rehabilitation Act of 1973 that were in effect before October 7, 1991, 
and which can be entered and used from stations in which they are to be 
operated, may be used to satisfy the requirements of 49 CFR 37.93.



Sec. 1192.53  Doorways.

    (a) Clear width. (1) Passenger doorways on vehicle sides shall have 
clear openings at least 32 inches wide when open.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided,

[[Page 626]]

and if such doorway is connected by an aisle with a minimum clear width 
of 30 inches to one or more spaces where wheelchair or mobility aid 
users can be accommodated, then such doorway shall have a minimum clear 
opening of 30 inches to permit wheelchair and mobility aid users to be 
evacuated to an adjoining vehicle in an emergency.
    (b) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of accessible vehicles operating on an 
accessible and rapid rail system unless all vehicles area accessible and 
are not marked by the access symbol. (See Fig. 6)
    (c) Signals. Auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platform--(1) Requirements. Where new 
vehicles will operate in new stations, the design of vehicles shall be 
coordinated with the boarding platform design such that the horizontal 
gap between each vehicle door at rest and the platform shall be no 
greater than 3 inches and the height of the vehicle floor shall be 
within plus or minus \5/8\ inch of the platform height under all normal 
passenger load conditions. Vertical alignment may be accomplished by 
vehicle air suspension or other suitable means of meeting the 
requirement.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one door of 
each such vehicle and the platform shall be no greater than 3 inches.
    (3) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.



Sec. 1192.55  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that certain 
seats are priority seats for persons with disabilities, and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Characters on signs required by paragraph (a) of this section 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of \5/8\ inch, with ``Wide'' spacing 
(generally, the space between letters shall be \1/16\ the height of 
upper case letters), and shall contrast with the background, either 
light-on-dark or dark-on-light.



Sec. 1192.57  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be provided to assist safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (b) Handrails, stanchions, and seats shall allow a route at least 32 
inches wide so that at least two wheelchair or mobility aid users can 
enter the vehicle and position the wheelchairs or mobility aids in 
areas, each having a minimum clear space of 48 inches by 30 inches, 
which do not unduly restrict movement of other passengers. Space to 
accommodate wheelchairs and mobility aids may be provided within the 
normal area used by standees and designation of specific spaces is not 
required. Particular attention shall be given to ensuring maximum 
maneuverability immediately inside doors. Ample vertical stanchions from 
ceiling to seat-back rails shall be provided. Vertical stanchions from 
ceiling to floor shall not interfere with wheelchair or mobility aid 
user circulation and shall be kept to a minimum in the vicinity of 
doors.
    (c) The diameter or width of the gripping surface of handrails and 
stanchions shall be 1\1/4\ inches to 1\1/2\ inches or provide an 
equivalent gripping surface and shall provide a minimum 1\1/2\ inches 
knuckle clearance from the nearest adjacent surface.



Sec. 1192.59  Floor surfaces.

    Floor surfaces on aisles, places for standees, and areas where 
wheelchair and mobility aid users are to be accommodated shall be slip-
resistant.

[[Page 627]]



Sec. 1192.61  Public information system.

    (a)(1) Requirements. Each vehicle shall be equipped with a public 
address system permitting transportation system personnel, or recorded 
or digitized human speech messages, to announce stations and provide 
other passenger information. Alternative systems or devices which 
provide equivalent access are also permitted. Each vehicle operating in 
stations having more than one line or route shall have an external 
public address system to permit transportation system personnel, or 
recorded or digitized human speech messages, to announce train, route, 
or line identification information.
    (2) Exception. Where station announcement systems provide 
information on arriving trains, an external train speaker is not 
required.
    (b) [Reserved]



Sec. 1192.63  Between-car barriers.

    (a) Requirement. Suitable devices or systems shall be provided to 
prevent, deter or warn individuals from inadvertently stepping off the 
platform between cars. Acceptable solutions include, but are not limited 
to, pantograph gates, chains, motion detectors or similar devices.
    (b) Exception. Between-car barriers are not required where platform 
screens are provided which close off the platform edge and open only 
when trains are correctly aligned with the doors.



                Subpart D_Light Rail Vehicles and Systems



Sec. 1192.71  General.

    (a) New, used and remanufactured light rail vehicles, to be 
considered accessible by regulations issued by the Department of 
Transportation in 49 CFR part 37, shall comply with this subpart.
    (b)(1) Vehicles intended to be operated solely in light rail systems 
confined entirely to a dedicated right-of-way, and for which all 
stations or stops are designed and constructed for revenue service after 
the effective date of standards for design and construction issued 
pursuant to subpart C of 49 CFR part 37, shall provide level boarding 
and shall comply with Sec. Sec. 1192.73(d)(1) and 1192.85.
    (2) Vehicles designed for, and operated on, pedestrian malls, city 
streets, or other areas where level boarding is not practicable shall 
provide wayside or car-borne lifts, mini-high platforms, or other means 
of access in compliance with Sec. 1192.83 (b) or (c).
    (c) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible vehicles be retrofitted 
with lifts, ramps or other boarding devices.
    (d) Existing vehicles retrofitted to comply with the ``one-car-per-
train rule'' at 49 CFR 37.93 shall comply with Sec. Sec. 1192.75, 
1192.77(c), 1192.79(a) and 1192.83(a) and shall have, in new and key 
stations, at least one door which complies with Sec. 1192.73 (a)(1), 
(b) and (d). Vehicles previously designed and manufactured in accordance 
with the accessibility requirements of 49 CFR part 609 or Department of 
Transportation regulations implementing section 504 of the 
Rehabilitation Act of 1973 that were in effect before October 7, 1991, 
and which can be entered and used from stations in which they are to be 
operated, may be used to satisfy the requirements of 49 CFR 37.93.



Sec. 1192.73  Doorways.

    (a) Clear width. (1) All passenger doorways on vehicle sides shall 
have minimum clear openings of 32 inches when open.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have a 
minimum clear opening of 30 inches to permit wheelchair and mobility aid 
users to be evacuated to an adjoining vehicle in an emergency.
    (b) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of each vehicle operating on an accessible 
light rail system unless all vehicles are accessible and

[[Page 628]]

are not marked by the access symbol (See Fig. 6).
    (c) Signals. Auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platform--(1) Requirements. The 
design of level-entry vehicles shall be coordinated with the boarding 
platform or mini-high platform design so that the horizontal gap between 
a vehicle at rest and the platform shall be no greater than 3 inches and 
the height of the vehicle floor shall be within plus or minus \5/8\ inch 
of the platform height. Vertical alignment may be accomplished by 
vehicle air suspension, automatic ramps or lifts, or any combination.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one door of 
each such vehicle and the platform shall be no greater than 3 inches.
    (3) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (4) Exception. Where it is not operationally or structurally 
practicable to meet the horizontal or vertical requirements of 
paragraphs (d) (1), (2) or (3) of this section, platform or vehicle 
devices complying with Sec. 1192.83(b) or platform or vehicle mounted 
ramps or bridge plates complying with Sec. 1192.83(c) shall be 
provided.



Sec. 1192.75  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that certain 
seats are priority seats for persons with disabilities, and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Where designated wheelchair or mobility aid seating locations 
are provided, signs shall indicate the location and advise other 
passengers of the need to permit wheelchair and mobility aid users to 
occupy them.
    (c) Characters on signs required by paragraph (a) or (b) of this 
section shall have a width-to-height ratio between 3:5 and 1:1 and a 
stroke width-to-height ratio between 1:5 and 1:10, with a minimum 
character height (using an upper case ``X'') of \5/8\ inch, with 
``wide'' spacing (generally, the space between letters shall be \1/16\ 
the height of upper case letters), and shall contrast with the 
background, either light-on-dark or dark-on-light.



Sec. 1192.77  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be sufficient to permit safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (b) At entrances equipped with steps, handrails and stanchions shall 
be provided in the entrance to the vehicle in a configuration which 
allows passengers to grasp such assists from outside the vehicle while 
starting to board, and to continue using such handrails or stanchions 
throughout the boarding process. Handrails shall have a cross-sectional 
diameter between 1\1/4\ inches and 1\1/2\ inches or shall provide an 
equivalent grasping surface, and have eased edges with corner radii of 
not less than \1/8\ inch. Handrails shall be placed to provide a minimum 
1\1/2\ inches knuckle clearance from the nearest adjacent surface. Where 
on-board fare collection devices are used, a horizontal passenger assist 
shall be located between boarding passengers and the fare collection 
device and shall prevent passengers from sustaining injuries on the fare 
collection device or windshield in the event of a sudden deceleration. 
Without restricting the vestibule space, the assist shall provide 
support for a boarding passenger from the door through the boarding 
procedure. Passengers shall be able to lean against the assist for 
security while paying fares.
    (c) At all doors on level-entry vehicles, and at each entrance 
accessible by lift, ramp, bridge plate or other suitable means, 
handrails, stanchions, passenger seats, vehicle driver seat platforms, 
and fare boxes, if applicable, shall be located so as to allow a route 
at least 32 inches wide so that at least

[[Page 629]]

two wheelchair or mobility aid users can enter the vehicle and position 
the wheelchairs or mobility aids in areas, each having a minimum clear 
space of 48 inches by 30 inches, which do not unduly restrict movement 
of other passengers. Space to accommodate wheelchairs and mobility aids 
may be provided within the normal area used by standees and designation 
of specific spaces is not required. Particular attention shall be given 
to ensuring maximum maneuverability immediately inside doors. Ample 
vertical stanchions from ceiling to seat-back rails shall be provided. 
Vertical stanchions from ceiling to floor shall not interfere with 
wheelchair or mobility aid circulation and shall be kept to a minimum in 
the vicinity of accessible doors.



Sec. 1192.79  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads, places for standees, and 
areas where wheelchair and mobility aid users are to be accommodated 
shall be slip-resistant.
    (b) All thresholds and step edges shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec. 1192.81  Lighting.

    (a) Any stepwell or doorway with a lift, ramp or bridge plate 
immediately adjacent to the driver shall have, when the door is open, at 
least 2 footcandles of illumination measured on the step tread or lift 
platform.
    (b) Other stepwells, and doorways with lifts, ramps or bridge 
plates, shall have, at all times, at least 2 footcandles of illumination 
measured on the step tread or lift or ramp, when deployed at the vehicle 
floor level.
    (c) The doorways of vehicles not operating at lighted station 
platforms shall have outside lights which provide at least 1 footcandle 
of illumination on the station platform or street surface for a distance 
of 3 feet perpendicular to all points on the bottom step tread. Such 
lights shall be located below window level and shielded to protect the 
eyes of entering and exiting passengers.



Sec. 1192.83  Mobility aid accessibility.

    (a)(1) General. All new light rail vehicles, other than level entry 
vehicles, covered by this subpart shall provide a level-change mechanism 
or boarding device (e.g., lift, ramp or bridge plate) complying with 
either paragraph (b) or (c) of this section and sufficient clearances to 
permit at least two wheelchair or mobility aid users to reach areas, 
each with a minimum clear floor space of 48 inches by 30 inches, which 
do not unduly restrict passenger flow. Space to accommodate wheelchairs 
and mobility aids may be provided within the normal area used by 
standees and designation of specific spaces is not required.
    (2) Exception. If lifts, ramps or bridge plates meeting the 
requirements of this section are provided on station platforms or other 
stops, or mini-high platforms complying with Sec. 1192.73(d) are 
provided, at stations or stops required to be accessible by 49 CFR part 
37, the vehicle is not required to be equipped with a car-borne device. 
Where each new vehicle is compatible with a single platform-mounted 
access system or device, additional systems or devices are not required 
for each vehicle provided that the single device could be used to 
provide access to each new vehicle if passengers using wheelchairs or 
mobility aids could not be accommodated on a single vehicle.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds. Working parts, such as cables, pulleys, and 
shafts, which can be expected to wear, and upon which the lift depends 
for support of the load, shall have a safety factor of at least six, 
based on the ultimate strength of the material. Nonworking parts, such 
as platform, frame, and attachment hardware which would not be expected 
to wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, propulsion system, or door, or shall provide 
other appropriate mechanisms or systems, to ensure that the vehicle 
cannot be moved when the lift is not stowed and so the lift cannot be 
deployed unless the interlocks or

[[Page 630]]

systems are engaged. The lift shall deploy to all levels (i.e., ground, 
curb, and intermediate positions) normally encountered in the operating 
environment. Where provided, each control for deploying, lowering, 
raising, and stowing the lift and lowering the roll-off barrier shall be 
of a momentary contact type requiring continuous manual pressure by the 
operator and shall not allow improper lift sequencing when the lift 
platform is occupied. The controls shall allow reversal of the lift 
operation sequence, such as raising or lowering a platform that is part 
way down, without allowing an occupied platform to fold or retract into 
the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the vehicle axis, the transportation entity may specify 
a lift which is designed to deploy with its long dimension parallel to 
the vehicle axis and which pivots into or out of the vehicle while 
occupied (i.e., ``rotary lift''). The requirements of paragraph 
(b)(2)(i) of this section prohibiting the lift from being stowed while 
occupied shall not apply to a lift design of this type if the stowed 
position is within the passenger compartment and the lift is intended to 
be stowed while occupied.
    (iii) Exception. The brake or propulsion system interlocks 
requirement does not apply to a station platform mounted lift provided 
that a mechanical, electrical or other system operates to ensure that 
vehicles do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method, manual or otherwise, shall be capable of being 
operated in a manner that could be hazardous to the lift occupant or to 
the operator when operated according to manufacturer's instructions, and 
shall not permit the platform to be stowed or folded when occupied, 
unless the lift is a rotary lift intended to be stowed while occupied.
    (4) Power or equipment failure. Lift platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the lift is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches high. Such barriers shall not interfere with maneuvering 
into or out of the aisle. The loading-edge barrier (outer barrier) which 
functions as a loading ramp when the lift is at ground level, shall be 
sufficient when raised or closed, or a supplementary system shall be 
provided, to prevent a power wheelchair or mobility aid from riding over 
or defeating it. The outer barrier of the lift shall automatically rise 
or close, or a supplementary system shall automatically engage, and 
remain raised, closed, or engaged at all times that the lift is more 
than 3 inches above the station platform or roadway and the lift is 
occupied. Alternatively, a barrier or system may be raised, lowered, 
opened, closed, engaged or disengaged by the lift operator provided an 
interlock or inherent design feature prevents the lift from rising 
unless the barrier is raised or closed or the supplementary system is 
engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1)
    (7) Platform gaps. Any openings between the lift platform surface 
and the

[[Page 631]]

raised barriers shall not exceed \5/8\ inch wide. When the lift is at 
vehicle floor height with the inner barrier (if applicable) down or 
retracted, gaps between the forward lift platform edge and vehicle floor 
shall not exceed \1/2\ inch horizontally and \5/8\ inch vertically. 
Platforms on semiautomatic lifts may have a hand hold not exceeding 1\1/
2\ inches by 4\1/2\ inches located between the edge barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8 measured on 
level ground, for a maximum rise of 3 inches, and the transition from 
the station platform or roadway to ramp may be vertical without edge 
treatment up to \1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch 
high shall be beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll) in any direction between its unloaded position and its 
position when loaded with 600 pounds applied through a 26 inch by 26 
inch test pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The lift may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails, 
on two sides, which move in tandem with the lift which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. Handrails shall have a cross-
sectional diameter between 1\1/4\ inches and 1\1/2\ inches or shall 
provide an equivalent grasping surface, and have eased edges with corner 
radii of not less than \1/8\ inch. Handrails shall be placed to provide 
a minimum 1\1/2\ inches knuckle clearance from the nearest adjacent 
surface. Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp or bridge plate--(1) Design load. Ramps or bridge 
plates 30 inches or longer shall support a load of 600 pounds, placed at 
the centroid of the ramp or bridge plate distributed over an area of 26 
inches by 26 inches, with a safety factor of at least 3 based on the 
ultimate strength of the material. Ramps or bridge plates shorter than 
30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp or bridge plate surface shall be 
continuous and slip resistant, shall not have protrusions from the 
surface greater than \1/4\ inch, shall have a clear width of 30 inches, 
and shall accommodate both four-wheel and three-wheel mobility aids.
    (3) Ramp threshold. The transition from roadway or station platform 
and the transition from vehicle floor to the ramp or bridge plate may be 
vertical without edge treatment up to \1/4\ inch. Changes in level 
between \1/4\ inch and \1/2\ inch shall be beveled with a slope no 
greater than 1:2.
    (4) Ramp barriers. Each side of the ramp or bridge plate shall have 
barriers at least 2 inches high to prevent mobility aid wheels from 
slipping off.
    (5) Slope. Ramps or bridge plates shall have the least slope 
practicable. If the height of the vehicle floor, under 50% passenger 
load, from which the ramp is deployed is 3 inches or less above the 
station platform a maximum slope of 1:4 is permitted; if the height of 
the vehicle floor, under 50% passenger load, from which the ramp is 
deployed is 6

[[Page 632]]

inches or less, but more than 3 inches, above the station platform a 
maximum slope of 1:6 is permitted; if the height of the vehicle floor, 
under 50% passenger load, from which the ramp is deployed is 9 inches or 
less, but more than 6 inches, above the station platform a maximum slope 
of 1:8 is permitted; if the height of the vehicle floor, under 50% 
passenger load, from which the ramp is deployed is greater than 9 inches 
above the station platform a slope of 1:12 shall be achieved. Folding or 
telescoping ramps are permitted provided they meet all structural 
requirements of this section.
    (6) Attachment--(i) Requirement. When in use for boarding or 
alighting, the ramp or bridge plate shall be attached to the vehicle, or 
otherwise prevented from moving such that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that any gaps between vehicle and ramp or bridge plate, and station 
platform and ramp or bridge plate, shall not exceed \5/8\ inch.
    (ii) Exception. Ramps or bridge plates which are attached to, and 
deployed from, station platforms are permitted in lieu of vehicle 
devices provided they meet the displacement requirements of paragraph 
(c)(6)(i) of this section.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps or bridge plates, 
including portable ramps or bridge plates stowed in the passenger area, 
do not impinge on a passenger's wheelchair or mobility aid or pose any 
hazard to passengers in the event of a sudden stop.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches and 38 inches above the ramp 
surface. The handrails shall be capable of withstanding a force of 100 
pounds concentrated at any point on the handrail without permanent 
deformation of the rail or its supporting structure. The handrail shall 
have a cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches 
or shall provide an equivalent grasping surface, and have eased edges 
with corner radii of not less than \1/8\ inch. Handrails shall not 
interfere with wheelchair or mobility aid maneuverability when entering 
or leaving the vehicle.



Sec. 1192.85  Between-car barriers.

    Where vehicles operate in a high-platform, level-boarding mode, 
devices or systems shall be provided to prevent, deter or warn 
individuals from inadvertently stepping off the platform between cars. 
Appropriate devices include, but are not limited to, pantograph gates, 
chains, motion detectors or other suitable devices.



Sec. 1192.87  Public information system.

    (a) Each vehicle shall be equipped with an interior public address 
system permitting transportation system personnel, or recorded or 
digitized human speech messages, to announce stations and provide other 
passenger information. Alternative systems or devices which provide 
equivalent access are also permitted.
    (b) [Reserved]



                Subpart E_Commuter Rail Cars and Systems



Sec. 1192.91  General.

    (a) New, used and remanufactured commuter rail cars, to be 
considered accessible by regulations issued by the Department of 
Transportation in 49 CFR part 37, shall comply with this subpart.
    (b) If portions of the car are modified in such a way that it 
affects or could affect accessibility, each such portion shall comply, 
to the extent practicable, with the applicable provisions of this 
subpart. This provision does not require that inaccessible cars be 
retrofitted with lifts, ramps or other boarding devices.
    (c)(1) Commuter rail cars shall comply with Sec. Sec. 1192.93(d) 
and 1192.109 for level boarding wherever structurally and operationally 
practicable.
    (2) Where level boarding is not structurally or operationally 
practicable, commuter rail cars shall comply with Sec. 1192.95.
    (d) Existing vehicles retrofitted to comply with the ``one-car-per-
train rule'' at 49 CFR 37.93 shall comply with Sec. Sec. 1192.93(e), 
1192.95(a) and 1192.107 and

[[Page 633]]

shall have, in new and key stations, at least one door on each side from 
which passengers board which complies with Sec. 1192.93(d). Vehicles 
previously designed and manufactured in accordance with the program 
accessibility requirements of section 504 of the Rehabilitation Act of 
1973, or implementing regulations issued by the Department of 
Transportation that were in effect before October 7, 1991, and which can 
be entered and used from stations in which they are to be operated, may 
be used to satisfy the requirements of 49 CFR 37.93.



Sec. 1192.93  Doorways.

    (a) Clear width. (1) At least one door on each side of the car from 
which passengers board opening onto station platforms and at least one 
adjacent doorway into the passenger coach compartment, if provided, 
shall have a minimum clear opening of 32 inches.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have, to 
the maximum extent practicable in accordance with the regulations issued 
under the Federal Railroad Safety Act of 1970 (49 CFR parts 229 and 
231), a clear opening of 30 inches.
    (b) Passageways. A route at least 32 inches wide shall be provided 
from doors required to be accessible by paragraph (a)(1) of this section 
to seating locations complying with Sec. 1192.95(d). In cars where such 
doorways require passage through a vestibule, such vestibule shall have 
a minimum width of 42 inches. (See Fig. 3)
    (c) Signals. If doors to the platform close automatically or from a 
remote location, auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platform--(1) Requirements. Cars 
operating in stations with high platforms, or mini-high platforms, shall 
be coordinated with the boarding platform design such that the 
horizontal gap between a car at rest and the platform shall be no 
greater than 3 inches and the height of the car floor shall be within 
plus or minus \5/8\ inch of the platform height. Vertical alignment may 
be accomplished by car air suspension, platform lifts or other devices, 
or any combination.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one 
accessible door of each such vehicle and the platform shall be no 
greater than 3 inches.
    (3) Exception. Where platform set-backs do not allow the horizontal 
gap or vertical alignment specified in paragraph (d) (1) or (2) of this 
section, car, platform or portable lifts complying with Sec. 
1192.95(b), or car or platform ramps or bridge plates, complying with 
Sec. 1192.95(c), shall be provided.
    (4) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (e) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of all doors complying with this section 
unless all cars are accessible and are not marked by the access symbol 
(See Fig. 6). Appropriate signage shall also indicate which accessible 
doors are adjacent to an accessible restroom, if applicable.



Sec. 1192.95  Mobility aid accessibility.

    (a)(1) General. All new commuter rail cars, other than level entry 
cars, covered by this subpart shall provide a level-change mechanism or 
boarding device (e.g., lift, ramp or bridge plate) complying with either 
paragraph (b) or (c) of this section; sufficient clearances to permit a 
wheelchair or mobility aid user to reach a seating location; and at 
least two wheelchair or mobility aid seating locations complying with 
paragraph (d) of this section.
    (2) Exception. If portable or platform lifts, ramps or bridge plates 
meeting the applicable requirements of this section are provided on 
station platforms or other stops, or mini-high platforms

[[Page 634]]

complying with Sec. 1192.93(d) are provided, at stations or stops 
required to be accessible by 49 CFR part 37, the car is not required to 
be equipped with a car-borne device. Where each new car is compatible 
with a single platform-mounted access system or device, additional 
systems or devices are not required for each car provided that the 
single device could be used to provide access to each new car if 
passengers using wheelchairs or mobility aids could not be accommodated 
on a single car.
    (b) Car Lift--(1) Design load. The design load of the lift shall be 
at least 600 pounds. Working parts, such as cables, pulleys, and shafts, 
which can be expected to wear, and upon which the lift depends for 
support of the load, shall have a safety factor of at least six, based 
on the ultimate strength of the material. Nonworking parts, such as 
platform, frame, and attachment hardware which would not be expected to 
wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the car brakes, propulsion system, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the car cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all platform levels normally encountered in the operating environment. 
Where provided, each control for deploying, lowering, raising, and 
stowing the lift and lowering the roll-off barrier shall be of a 
momentary contact type requiring continuous manual pressure by the 
operator and shall not allow improper lift sequencing when the lift 
platform is occupied. The controls shall allow reversal of the lift 
operation sequence, such as raising or lowering a platform that is part 
way down, without allowing an occupied platform to fold or retract into 
the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the car axis, the transportation entity may specify a 
lift which is designed to deploy with its long dimension parallel to the 
car axis and which pivots into or out of the car while occupied (i.e., 
``rotary lift''). The requirements of paragraph (b)(2)(i) of this 
section prohibiting the lift from being stowed while occupied shall not 
apply to a lift design of this type if the stowed position is within the 
passenger compartment and the lift is intended to be stowed while 
occupied.
    (iii) Exception. The brake or propulsion system interlock 
requirement does not apply to a platform mounted or portable lift 
provided that a mechanical, electrical or other system operates to 
ensure that cars do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground or platform level with a lift 
occupant, and raising and stowing the empty lift if the power to the 
lift fails. No emergency method, manual or otherwise, shall be capable 
of being operated in a manner that could be hazardous to the lift 
occupant or to the operator when operated according to manufacturer's 
instructions, and shall not permit the platform to be stowed or folded 
when occupied, unless the lift is a rotary lift intended to be stowed 
while occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the car until the lift is in its fully 
raised position. Each side of the lift platform which, in its raised 
position, extends beyond the car shall have a barrier a minimum 1\1/2\ 
inches high. Such barriers shall not interfere with maneuvering into or 
out of the car. The loading-edge barrier (outer barrier) which functions 
as a loading ramp when the

[[Page 635]]

lift is at ground or station platform level, shall be sufficient when 
raised or closed, or a supplementary system shall be provided, to 
prevent a power wheelchair or mobility aid from riding over or defeating 
it. The outer barrier of the lift shall automatically rise or close, or 
a supplementary system shall automatically engage, and remain raised, 
closed, or engaged at all times that the lift platform is more than 3 
inches above the station platform and the lift is occupied. 
Alternatively, a barrier or system may be raised, lowered, opened, 
closed, engaged or disengaged by the lift operator provided an interlock 
or inherent design feature prevents the lift from rising unless the 
barrier is raised or closed or the supplementary system is engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at car floor height with the inner barrier down (if applicable) or 
retracted, gaps between the forward lift platform edge and car floor 
shall not exceed \1/2\ inch horizontally and \5/8\ inch vertically. 
Platforms on semi-automatic lifts may have a hand hold not exceeding 
1\1/2\ inches by 4\1/2\ inches located between the edge barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, when measured 
on level ground, for a maximum rise of 3 inches, and the transition from 
station platform to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll) in any direction between its unloaded position and its 
position when loaded with 600 pounds applied through a 26 inch by 26 
inch test pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The lift may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails, 
on two sides, which move in tandem with the lift which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall be placed to 
provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface. Handrails shall not interfere with wheelchair or 
mobility aid maneuverability when entering or leaving the car.
    (c) Car ramp or bridge plate--(1) Design load. Ramps or bridge 
plates 30 inches or longer shall support a load of 600 pounds, placed at 
the centroid of the ramp or bridge plate distributed over

[[Page 636]]

an area of 26 inches by 26 inches, with a safety factor of at least 3 
based on the ultimate strength of the material. Ramps or bridge plates 
shorter than 30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp or bridge plate surface shall be 
continuous and slip resistant, shall not have protrusions from the 
surface greater than \1/4\ inch high, shall have a clear width of 30 
inches and shall accommodate both four-wheel and three-wheel mobility 
aids.
    (3) Ramp threshold. The transition from station platform to the ramp 
or bridge plate and the transition from car floor to the ramp or bridge 
plate may be vertical without edge treatment up to \1/4\ inch. Changes 
in level between \1/4\ inch and \1/2\ inch shall be beveled with a slope 
no greater than 1:2.
    (4) Ramp barriers. Each side of the ramp or bridge plate shall have 
barriers at least 2 inches high to prevent mobility aid wheels from 
slipping off.
    (5) Slope. Ramps or bridge plates shall have the least slope 
practicable. If the height of the vehicle floor, under 50% passenger 
load, from which the ramp is deployed is 3 inches or less above the 
station platform a maximum slope of 1:4 is permitted; if the height of 
the vehicle floor, under 50% passenger load, from which the ramp is 
deployed is 6 inches or less, but more than 3 inches, above the station 
platform a maximum slope of 1:6 is permitted; if the height of the 
vehicle floor, under 50% passenger load, from which the ramp is deployed 
is 9 inches or less, but more than 6 inches, above the station platform 
a maximum slope of 1:8 is permitted; if the height of the vehicle floor, 
under 50% passenger load, from which the ramp is deployed is greater 
than 9 inches above the station platform a slope of 1:12 shall be 
achieved. Folding or telescoping ramps are permitted provided they meet 
all structural requirements of this section.
    (6) Attachment--(i) Requirement. When in use for boarding or 
alighting, the ramp or bridge plate shall be attached to the vehicle, or 
otherwise prevented from moving such that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that any gaps between vehicle and ramp or bridge plates, and station 
platform and ramp or bridge plate, shall not exceed \5/8\ inch.
    (ii) Exception. Ramps or bridge plates which are attached to, and 
deployed from, station platforms are permitted in lieu of car devices 
provided they meet the displacement requirements of paragraph (c)(6)(i) 
of this section.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps or bridge plates, 
including portable ramps or bridge plates stowed in the passenger area, 
do not impinge on a passenger's wheelchair or mobility aid or pose any 
hazard to passengers in the event of a sudden stop.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the car while starting to board, 
and to continue to use them throughout the boarding process, and shall 
have the top between 30 inches and 38 inches above the ramp surface. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall not interfere 
with wheelchair or mobility aid maneuverability when entering or leaving 
the car.
    (d) Mobility aid seating location. Spaces for persons who wish to 
remain in their wheelchairs or mobility aids shall have a minimum clear 
floor space 48 inches by 30 inches. Such spaces shall adjoin, and may 
overlap, an accessible path. Not more than 6 inches of the required 
clear floor space may be accommodated for footrests under another seat 
provided there is a minimum of 9 inches from the floor to the lowest 
part of the seat overhanging the space. Seating spaces may have fold-
down or removable seats to accommodate other passengers when a 
wheelchair or mobility aid user is not occupying the area, provided the 
seats, when folded up, do not obstruct the clear floor space required. 
(See Fig. 2)

[[Page 637]]



Sec. 1192.97  Interior circulation, handrails and stanchions.

    (a) Where provided, handrails or stanchions within the passenger 
compartment shall be placed to permit sufficient turning and maneuvering 
space for wheelchairs and other mobility aids to reach a seating 
location, complying with Sec. 1192.95(d), from an accessible entrance. 
The diameter or width of the gripping surface of interior handrails and 
stanchions shall be 1\1/4\ inches to 1\1/2\ inches or shall provide an 
equivalent gripping surface. Handrails shall be placed to provide a 
minimum 1\1/2\ inches knuckle clearance from the nearest adjacent 
surface.
    (b) Where provided, handrails or stanchions shall be sufficient to 
permit safe boarding, on-board circulation, seating and standing 
assistance, and alighting by persons with disabilities.
    (c) At entrances equipped with steps, handrails or stanchions shall 
be provided in the entrance to the car in a configuration which allows 
passengers to grasp such assists from outside the car while starting to 
board, and to continue using such assists throughout the boarding 
process, to the extent permitted by 49 CFR part 231.



Sec. 1192.99  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads, places for standees, and 
areas where wheelchair and mobility aid users are to be accommodated 
shall be slip-resistant.
    (b) All thresholds and step edges shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec. 1192.101  Lighting.

    (a) Any stepwell or doorway with a lift, ramp or bridge plate shall 
have, when the door is open, at least 2 footcandles of illumination 
measured on the step tread, ramp, bridge plate, or lift platform.
    (b) The doorways of cars not operating at lighted station platforms 
shall have outside lights which, when the door is open, provide at least 
1 footcandle of illumination on the station platform surface for a 
distance of 3 feet perpendicular to all points on the bottom step tread 
edge. Such lights shall be shielded to protect the eyes of entering and 
exiting passengers.



Sec. 1192.103  Public information system.

    (a) Each car shall be equipped with an interior public address 
system permitting transportation system personnel, or recorded or 
digitized human speech messages, to announce stations and provide other 
passenger information. Alternative systems or devices which provide 
equivalent access are also permitted.
    (b) [Reserved]



Sec. 1192.105  Priority seating signs.

    (a) Each car shall contain sign(s) which indicate that certain seats 
are priority seats for persons with disabilities and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Characters on signs required by paragraph (a) shall have a 
width-to-height ratio between 3:5 and 1:1 and a stroke width-to-height 
ratio between 1:5 and 1:10, with a minimum character height (using an 
upper case ``X'') of \5/8\ inch, with ``wide'' spacing (generally, the 
space between letters shall be \1/16\ the height of upper case letters), 
and shall contrast with the background either light-on-dark or dark-on-
light.



Sec. 1192.107  Restrooms.

    (a) If a restroom is provided for the general public, it shall be 
designed so as to allow a person using a wheelchair or mobility aid to 
enter and use such restroom as specified in paragraphs (a) (1) through 
(5) of this section.
    (1) The minimum clear floor area shall be 35 inches by 60 inches. 
Permanently installed fixtures may overlap this area a maximum of 6 
inches, if the lowest portion of the fixture is a minimum of 9 inches 
above the floor, and may overlap a maximum of 19 inches, if the lowest 
portion of the fixture is a minimum of 29 inches above the floor, 
provided such fixtures do not interfere with access to the water closet. 
Fold-down or retractable seats or shelves may overlap the clear floor 
space at a lower height provided they can be easily folded up or moved 
out of the way.
    (2) The height of the water closet shall be 17 inches to 19 inches 
measured

[[Page 638]]

to the top of the toilet seat. Seats shall not be sprung to return to a 
lifted position.
    (3) A grab bar at least 24 inches long shall be mounted behind the 
water closet, and a horizontal grab bar at least 40 inches long shall be 
mounted on at least one side wall, with one end not more than 12 inches 
from the back wall, at a height between 33 inches and 36 inches above 
the floor.
    (4) Faucets and flush controls shall be operable with one hand and 
shall not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls shall be no greater than 5 lbf 
(22.2 N). Controls for flush valves shall be mounted no more than 44 
inches above the floor.
    (5) Doorways on the end of the enclosure, opposite the water closet, 
shall have a minimum clear opening width of 32 inches. Doorways on the 
side wall shall have a minimum clear opening width of 39 inches. Door 
latches and hardware shall be operable with one hand and shall not 
require tight grasping, pinching, or twisting of the wrist.
    (b) Restrooms required to be accessible shall be in close proximity 
to at least one seating location for persons using mobility aids and 
shall be connected to such a space by an unobstructed path having a 
minimum width of 32 inches.



Sec. 1192.109  Between-car barriers.

    Where vehicles operate in a high-platform, level-boarding mode, and 
where between-car bellows are not provided, devices or systems shall be 
provided to prevent, deter or warn individuals from inadvertently 
stepping off the platform between cars. Appropriate devices include, but 
are not limited to, pantograph gates, chains, motion detectors or other 
suitable devices.



                Subpart F_Intercity Rail Cars and Systems



Sec. 1192.111  General.

    (a) New, used and remanufactured intercity rail cars, to be 
considered accessible by regulations issued by the Department of 
Transportation in 49 CFR part 37, shall comply with this subpart to the 
extent required for each type of car as specified below.
    (1) Single-level rail passenger coaches and food service cars (other 
than single-level dining cars) shall comply with Sec. Sec. 1192.113 
through 1192.123. Compliance with Sec. 1192.125 shall be required only 
to the extent necessary to meet the requirements of paragraph (d) of 
this section.
    (2) Single-level dining and lounge cars shall have at least one 
connecting doorway complying with Sec. 1192.113(a)(2), connected to a 
car accessible to persons using wheelchairs or mobility aids, and at 
least one space complying with Sec. 1192.125(d) (2) and (3), to provide 
table service to a person who wishes to remain in his or her wheelchair, 
and space to fold and store a wheelchair for a person who wishes to 
transfer to an existing seat.
    (3) Bi-level dining cars shall comply with Sec. Sec. 
1192.113(a)(2), 1192.115(b), 1192.117(a), and 1192.121.
    (4) Bi-level lounge cars shall have doors on the lower level, on 
each side of the car from which passengers board, complying with Sec. 
1192.113, a restroom complying with Sec. 1192.123, and at least one 
space complying with Sec. 1192.125(d) (2) and (3) to provide table 
service to a person who wishes to remain in his or her wheelchair and 
space to fold and store a wheelchair for a person who wishes to transfer 
to an existing seat.
    (5) Restrooms complying with Sec. 1192.123 shall be provided in 
single-level rail passenger coaches and food service cars adjacent to 
the accessible seating locations required by paragraph (d) of this 
section. Accessible restrooms are required in dining and lounge cars 
only if restrooms are provided for other passengers.
    (6) Sleeper cars shall comply with Sec. Sec. 1192.113 (b) through 
(d), 1192.115 through 1192.121, and 1192.125, and have at least one 
compartment which can be entered and used by a person using a wheelchair 
or mobility aid and complying with Sec. 1192.127.
    (b)(1) If physically and operationally practicable, intercity rail 
cars shall comply with Sec. 1192.113(d) for level boarding.
    (2) Where level boarding is not structurally or operationally 
practicable, intercity rail cars shall comply with Sec. 1192.125.

[[Page 639]]

    (c) If portions of the car are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible cars be retrofitted with 
lifts, ramps or other boarding devices.
    (d) Passenger coaches or food service cars shall have the number of 
spaces complying with Sec. 1192.125(d)(2) and the number of spaces 
complying with Sec. 1192.125(d)(3), as required by 49 CFR 37.91.
    (e) Existing cars retrofitted to meet the seating requirements of 49 
CFR 37.91 shall comply with Sec. Sec. 1192.113(e), 1192.123, 
1192.125(d) and shall have at least one door on each side from which 
passengers board complying with Sec. 1192.113(d). Existing cars 
designed and manufactured to be accessible in accordance with Department 
of Transportation regulations implementing section 504 of the 
Rehabilitation Act of 1973 that were in effect before October 7, 1991, 
shall comply with Sec. 1192.125(a).



Sec. 1192.113  Doorways.

    (a) Clear width. (1) At least one doorway, on each side of the car 
from which passengers board, of each car required to be accessible by 
Sec. 1192.111(a) and where the spaces required by Sec. 1192.111(d) are 
located, and at least one adjacent doorway into coach passenger 
compartments shall have a minimum clear opening width of 32 inches.
    (2) Doorways at ends of cars connecting two adjacent cars, to the 
maximum extent practicable in accordance with regulations issued under 
the Federal Railroad Safety Act of 1970 (49 CFR parts 229 and 231), 
shall have a clear opening width of 32 inches to permit wheelchair and 
mobility aid users to enter into a single-level dining car, if 
available.
    (b) Passaway. Doorways required to be accessible by paragraph (a) of 
this section shall permit access by persons using mobility aids and 
shall have an unobstructed passageway at least 32 inches wide leading to 
an accessible sleeping compartment complying with Sec. 1192.127 or 
seating locations complying with Sec. 1192.125(d). In cars where such 
doorways require passage through a vestibule, such vestibule shall have 
a minimum width of 42 inches. (see Fig. 4)
    (c) Signals. If doors to the platform close automatically or from a 
remote location, auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platforms--(1) Requirements. Cars 
which provide level-boarding in stations with high platforms shall be 
coordinated with the boarding platform or mini-high platform design such 
that the horizontal gap between a car at rest and the platform shall be 
no greater than 3 inches and the height of the car floor shall be within 
plus or minus \5/8\ inch of the platform height. Vertical alignment may 
be accomplished by car air suspension, platform lifts or other devices, 
or any combination.
    (2) Exception. New cars operating in existing stations may have a 
floor height within plus or minus 1\1/2\ inches of the platform height.
    (3) Exception. Where platform set-backs do not allow the horizontal 
gap or vertical alignment specified in paragraph (d) (1) or (2) of this 
section, platform or portable lifts complying with Sec. 1192.125(b), or 
car or platform bridge plates, complying with Sec. 1192.125(c), may be 
provided.
    (4) Exception. Retrofitted vehicles shall be coordinated with the 
platform in existing stations such that the horizontal gap shall be no 
greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (e) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of all doors complying with this section 
unless all cars and doors are accessible and are not marked by the 
access symbol (see Fig. 6). Appropriate signage shall also indicate 
which accessible doors are adjacent to an accessible restroom, if 
applicable.



Sec. 1192.115  Interior circulation, handrails and stanchions.

    (a) Where provided, handrails or stanchions within the passenger 
compartment shall be placed to permit sufficient turning and maneuvering 
space

[[Page 640]]

for wheelchairs and other mobility aids to reach a seating location, 
complying with Sec. 1192.125(d), from an accessible entrance. The 
diameter or width of the gripping surface of interior handrails and 
stanchions shall be 1\1/4\ inches to 1\1/2\ inches or shall provide an 
equivalent gripping surface. Handrails shall be placed to provide a 
minimum 1\1/2\ inches knuckle clearance from the nearest adjacent 
surface.
    (b) Where provided, handrails and stanchions shall be sufficient to 
permit safe boarding, on-board circulation, seating and standing 
assistance, and alighting by persons with disabilities.
    (c) At entrances equipped with steps, handrails or stanchions shall 
be provided in the entrance to the car in a configuration which allows 
passengers to grasp such assists from outside the car while starting to 
board, and to continue using such assists throughout the boarding 
process, to the extent permitted by 49 CFR part 231.



Sec. 1192.117  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads and areas where wheelchair 
and mobility aid users are to be accommodated shall be slip-resistant.
    (b) All step edges and thresholds shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec. 1192.119  Lighting.

    (a) Any stepwell, or doorway with a lift, ramp or bridge plate, 
shall have, when the door is open, at least 2 footcandles of 
illumination measured on the step tread, ramp, bridge plate or lift 
platform.
    (b) The doorways of cars not operating at lighted station platforms 
shall have outside lights which, when the door is open, provide at least 
1 footcandle of illumination on the station platform surface for a 
distance of 3 feet perpendicular to all points on the bottom step tread 
edge. Such lights shall be shielded to protect the eyes of entering and 
exiting passengers.



Sec. 1192.121  Public information system.

    (a) Each car shall be equipped with a public address system 
permitting transportation system personnel, or recorded or digitized 
human speech messages, to announce stations and provide other passenger 
information. Alternative systems or devices which provide equivalent 
access are also permitted.
    (b) [Reserved]



Sec. 1192.123  Restrooms.

    (a) If a restroom is provided for the general public, and an 
accessible restroom is required by Sec. 1192.111 (a) and (e), it shall 
be designed so as to allow a person using a wheelchair or mobility aid 
to enter and use such restroom as specified in paragraphs (a) (1) 
through (5) of this section.
    (1) The minimum clear floor area shall be 35 inches by 60 inches. 
Permanently installed fixtures may overlap this area a maximum of 6 
inches, if the lowest portion of the fixture is a minimum of 9 inches 
above the floor, and may overlap a maximum of 19 inches, if the lowest 
portion of the fixture is a minimum of 29 inches above the floor. 
Fixtures shall not interfere with access to and use of the water closet. 
Fold-down or retractable seats or shelves may overlap the clear floor 
space at a lower height provided they can be easily folded up or moved 
out of the way.
    (2) The height of the water closet shall be 17 inches to 19 inches 
measured to the top of the toilet seat. Seats shall not be sprung to 
return to a lifted position.
    (3) A grab bar at least 24 inches long shall be mounted behind the 
water closet, and a horizontal grab bar at least 40 inches long shall be 
mounted on at least one side wall, with one end not more than 12 inches 
from the back wall, at a height between 33 inches and 36 inches above 
the floor.
    (4) Faucets and flush controls shall be operable with one hand and 
shall not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls shall be no greater than 5 lbf 
(22.2 N). Controls for flush valves shall be mounted no more than 44 
inches above the floor.
    (5) Doorways on the end of the enclosure, opposite the water closet, 
shall have a minimum clear opening width of 32 inches. Doorways on the 
side wall shall have a minimum clear opening

[[Page 641]]

width of 39 inches. Door latches and hardware shall be operable with one 
hand and shall not require tight grasping, pinching, or twisting of the 
wrist.
    (b) Restrooms required to be accessible shall be in close proximity 
to at least one seating location for persons using mobility aids 
complying with Sec. 1192.125(d) and shall be connected to such a space 
by an unobstructed path having a minimum width of 32 inches.



Sec. 1192.125  Mobility aid accessibility.

    (a)(1) General. All intercity rail cars, other than level entry 
cars, required to be accessible by Sec. 1192.111 (a) and (e) of this 
subpart shall provide a level-change mechanism or boarding device (e.g., 
lift, ramp or bridge plate) complying with either paragraph (b) or (c) 
of this section and sufficient clearances to permit a wheelchair or 
other mobility aid user to reach a seating location complying with 
paragraph (d) of this section.
    (2) Exception. If portable or platform lifts, ramps or bridge plates 
meeting the applicable requirements of this section are provided on 
station platforms or other stops, or mini-high platforms complying with 
Sec. 1192.113(d) are provided, at stations or stops required to be 
accessible by 49 CFR part 37, the car is not required to be equipped 
with a car-borne device.
    (b) Car Lift--(1) Design load. The design load of the lift shall be 
at least 600 pounds. Working parts, such as cables, pulleys, and shafts, 
which can be expected to wear, and upon which the lift depends for 
support of the load, shall have a safety factor of at least six, based 
on the ultimate strength of the material. Nonworking parts, such as 
platform, frame, and attachment hardware which would not be expected to 
wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the car brakes, propulsion system, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the car cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all platform levels normally encountered in the operating environment. 
Where provided, each control for deploying, lowering, raising, and 
stowing the lift and lowering the roll-off barrier shall be of a 
momentary contact type requiring continuous manual pressure by the 
operator and shall not allow improper lift sequencing when the lift 
platform is occupied. The controls shall allow reversal of the lift 
operation sequence, such as raising or lowering a platform that is part 
way down, without allowing an occupied platform to fold or retract into 
the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the car axis, the transportation entity may specify a 
lift which is designed to deploy with its long dimension parallel to the 
car axis and which pivots into or out of the car while occupied (i.e., 
``rotary lift''). The requirements of paragraph (b)(2)(i) of this 
section prohibiting the lift from being stowed while occupied shall not 
apply to a lift design of this type if the stowed position is within the 
passenger compartment and the lift is intended to be stowed while 
occupied.
    (iii) Exception. The brake or propulsion system interlocks 
requirement does not apply to platform mounted or portable lifts 
provided that a mechanical, electrical or other system operates to 
ensure that cars do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground or station platform level with a 
lift occupant, and raising and stowing the empty lift if the power to 
the lift fails. No emergency method, manual or otherwise, shall be 
capable of being operated in a manner that could be hazardous to the 
lift occupant or to the operator when operated according to 
manufacturer's instructions, and shall not permit the platform to be 
stowed or folded when occupied, unless the lift is a rotary lift and is 
intended to be stowed while occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their

[[Page 642]]

deploying, failing, or folding any faster than 12 inches/second or their 
dropping of an occupant in the event of a single failure of any load 
carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the car until the lift is in its fully 
raised position. Each side of the lift platform which, in its raised 
position, extends beyond the car shall have a barrier a minimum 1\1/2\ 
inches high. Such barriers shall not interfere with maneuvering into or 
out of the car. The loading-edge barrier (outer barrier) which functions 
as a loading ramp when the lift is at ground or station platform level, 
shall be sufficient when raised or closed, or a supplementary system 
shall be provided, to prevent a power wheelchair or mobility aid from 
riding over or defeating it. The outer barrier of the lift shall 
automatically rise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the lift platform is more than 3 inches above the station platform 
and the lift is occupied. Alternatively, a barrier or system may be 
raised, lowered, opened, closed, engaged or disengaged by the lift 
operator provided an interlock or inherent design feature prevents the 
lift from rising unless the barrier is raised or closed or the 
supplementary system is engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1.)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at car floor height with the inner barrier (if applicable) down or 
retracted, gaps between the forward lift platform edge and car floor 
shall not exceed \1/2\ inch horizontally and \5/8\ inch vertically. 
Platforms on semi-automatic lifts may have a hand hold not exceeding 
1\1/2\ inches by 4\1/2\ inches located between the edge barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, when measured 
on level ground, for a maximum rise of 3 inches, and the transition from 
station platform to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of car 
roll) in any direction between its unloaded position and its position 
when loaded with 600 pounds applied through a 26 inch by 26 inch test 
pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The lift may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails, 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest

[[Page 643]]

portion a maximum 38 inches above the platform. The handrails shall be 
capable of withstanding a force of 100 pounds concentrated at any point 
on the handrail without permanent deformation of the rail or its 
supporting structure. The handrail shall have a cross-sectional diameter 
between 1\1/4\ inches and 1\1/2\ inches or shall provide an equivalent 
grasping surface, and have eased edges with corner radii of not less 
than \1/8\ inch. Handrails shall be placed to provide a minimum 1\1/2\ 
inches knuckle clearance from the nearest adjacent surface. Handrails 
shall not interfere with wheelchair or mobility aid maneuverability when 
entering or leaving the car.
    (c) Car ramp or bridge plate--(1) Design load. Ramps or bridge 
plates 30 inches or longer shall support a load of 600 pounds, placed at 
the centroid of the ramp or bridge plate distributed over an area of 26 
inches by 26 inches, with a safety factor of at least 3 based on the 
ultimate strength of the material. Ramps or bridge plates shorter than 
30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp or bridge plate surface shall be 
continuous and slip resistant, shall not have protrusions from the 
surface greater than \1/4\ inch high, shall have a clear width of 30 
inches and shall accommodate both four-wheel and three-wheel mobility 
aids.
    (3) Ramp threshold. The transition from station platform to the ramp 
or bridge plate and the transition from car floor to the ramp or bridge 
plate may be vertical without edge treatment up to \1/4\ inch. Changes 
in level between \1/4\ inch and \1/2\ inch shall be beveled with a slope 
no greater than 1:2.
    (4) Ramp barriers. Each side of the ramp or bridge plate shall have 
barriers at least 2 inches high to prevent mobility aid wheels from 
slipping off.
    (5) Slope. Ramps or bridge plates shall have the least slope 
practicable. If the height of the vehicle floor, under 50% passenger 
load, from which the ramp is deployed is 3 inches or less above the 
station platform a maximum slope of 1:4 is permitted; if the height of 
the vehicle floor, under 50% passenger load, from which the ramp is 
deployed is 6 inches or less, but more than 3 inches, above the station 
platform a maximum slope of 1:6 is permitted; if the height of the 
vehicle floor, under 50% passenger load, from which the ramp is deployed 
is 9 inches or less, but more than 6 inches, above the station platform 
a maximum slope of 1:8 is permitted; if the height of the vehicle floor, 
under 50% passenger load, from which the ramp is deployed is greater 
than 9 inches above the station platform a slope of 1:12 shall be 
achieved. Folding or telescoping ramps are permitted provided they meet 
all structural requirements of this section.
    (6) Attachment--(i) Requirement. When in use for boarding or 
alighting, the ramp or bridge plate shall be attached to the vehicle, or 
otherwise prevented from moving such that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that any gaps between vehicle and ramp or bridge plate, and station 
platform and ramp or bridge plate, shall not exceed \5/8\ inch.
    (ii) Exception. Ramps or bridge plates which are attached to, and 
deployed from, station platforms are permitted in lieu of car devices 
provided they meet the displacement requirements of paragraph (c)(6)(i) 
of this section.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps or bridge plates, 
including portable ramps or bridge plates stowed in the passenger area, 
do not impinge on a passenger's wheelchair or mobility aid or pose any 
hazard to passengers in the event of a sudden stop.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the car while starting to board, 
and to continue to use them throughout the boarding process, and shall 
have the top between 30 inches and 38 inches above the ramp surface. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall not interfere

[[Page 644]]

with wheelchair or mobility aid maneuverability when entering or leaving 
the car.
    (d) Seating--(1) Requirements. All intercity rail cars required to 
be accessible by Sec. 1192.111 (a) and (e) of this subpart shall 
provide at least one, but not more than two, mobility aid seating 
location(s) complying with paragraph (d)(2) of this section; and at 
least one, but not more than two, seating location(s) complying with 
paragraph (d)(3) of this section which adjoin or overlap an accessible 
route with a minimum clear width of 32 inches.
    (2) Wheelchair or mobility aid spaces. Spaces for persons who wish 
to remain in their wheelchairs or mobility aids shall have a minimum 
clear floor area 48 inches by 30 inches. Such space may have fold-down 
or removable seats for use when not occupied by a wheelchair or mobility 
aid user. (See Fig. 2)
    (3) Other spaces. Spaces for individuals who wish to transfer shall 
include a regular coach seat or dining car booth or table seat and space 
to fold and store the passenger's wheelchair.



Sec. 1192.127  Sleeping compartments.

    (a) Sleeping compartments required to be accessible shall be 
designed so as to allow a person using a wheelchair or mobility aid to 
enter, maneuver within and approach and use each element within such 
compartment. (See Fig. 5.)
    (b) Each accessible compartment shall contain a restroom complying 
with Sec. 1192.123(a) which can be entered directly from such 
compartment.
    (c) Controls and operating mechanisms (e.g., heating and air 
conditioning controls, lighting controls, call buttons, electrical 
outlets, etc.) shall be mounted no more than 48 inches, and no less than 
15 inches, above the floor and shall have a clear floor area directly in 
front a minimum of 30 inches by 48 inches. Controls and operating 
mechanisms shall be operable with one hand and shall not require tight 
grasping, pinching, or twisting of the wrist.



                Subpart G_Over-the-Road Buses and Systems



Sec. 1192.151  General.

    (a) New, used and remanufactured over-the-road buses, to be 
considered accessible by regulations issued by the Department of 
Transportation in 49 CFR part 37, shall comply with this subpart.
    (b) Over-the-road buses covered by 49 CFR 37.7(c) shall comply with 
Sec. 1192.23 and this subpart.



Sec. 1192.153  Doors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads and areas where wheelchair 
and mobility aid users are to be accommodated shall be slip-resistant.
    (b) All step edges shall have a band of color(s) running the full 
width of the step which contrasts from the step tread and riser, either 
dark-on-light or light-on-dark.
    (c)(1) Doors shall have a minimum clear width when open of 30 inches 
(760 mm), measured from the lowest step to a height of at least 48 
inches (1220 mm), from which point they may taper to a minimum width of 
18 inches (457 mm). The clear width may be reduced by a maximum of 4 
inches (100 mm) by protrusions of hinges or other operating mechanisms.
    (2) Exception. Where compliance with the door width requirement of 
paragraph (c)(1) of this section is not feasible, the minimum door width 
shall be 27 in (685 mm).
    (d) The overhead clearance between the top of the lift door opening 
and the sill shall be the maximum practicable but not less than 65 
inches (1651 mm).

[56 FR 45558, Sept. 6, 1991, as amended at 63 FR 51698, 51702, Sept. 28, 
1998]



Sec. 1192.155  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be provided in the entrance to 
the vehicle in a configuration which allows passengers to grasp such 
assists from outside the vehicle while starting to board, and to 
continue using such handrails or stanchions throughout the boarding 
process. Handrails shall have a cross-sectional diameter between 1\1/4\ 
inches and 1\1/2\ inches or shall provide

[[Page 645]]

an equivalent grasping surface, and have eased edges with corner radii 
of not less than \1/8\ inch. Handrails shall be placed to provide a 
minimum 1\1/2\ inches knuckle clearance from the nearest adjacent 
surface. Where on-board fare collection devices are used, a horizontal 
passenger assist shall be located between boarding passengers and the 
fare collection device and shall prevent passengers from sustaining 
injuries on the fare collection device or windshield in the event of a 
sudden deceleration. Without restricting the vestibule space, the assist 
shall provide support for a boarding passenger from the door through the 
boarding procedure. Passengers shall be able to lean against the assist 
for security while paying fares.
    (b) Where provided within passenger compartments, handrails or 
stanchions shall be sufficient to permit safe on-board circulation, 
seating and standing assistance, and alighting by persons with 
disabilities.



Sec. 1192.157  Lighting.

    (a) Any stepwell or doorway immediately adjacent to the driver shall 
have, when the door is open, at least 2 foot-candles of illumination 
measured on the step tread.
    (b) The vehicle doorway shall have outside light(s) which, when the 
door is open, provide at least 1 foot-candle of illumination on the 
pathway to the door for a distance of 3 feet (915 mm) to the bottom step 
tread or lift outer edge. Such light(s) shall be shielded to protect the 
eyes of entering and exiting passengers.

[56 FR 45558, Sept. 6, 1991, as amended at 63 FR 51698, 51702, Sept. 28, 
1998]



Sec. 1192.159  Mobility aid accessibility.

    (a)(1) General. All vehicles covered by this subpart shall provide a 
level-change mechanism or boarding device (e.g., lift or ramp) complying 
with paragraph (b) or (c) of this section and sufficient clearances to 
permit a wheelchair or other mobility aid user to reach a securement 
location. At least two securement locations and devices, complying with 
paragraph (d) of this section, shall be provided.
    (2) Exception. If portable or station-based lifts, ramps or bridge 
plates meeting the applicable requirements of this section are provided 
at stations or other stops required to be accessible under regulations 
issued by the Department of Transportation, the bus is not required to 
be equipped with a vehicle-borne device.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds (2665 N). Working parts, such as cables, pulleys, 
and shafts, which can be expected to wear, and upon which the lift 
depends for support of the load, shall have a safety factor of at least 
six, based on the ultimate strength of the material. Nonworking parts, 
such as platform, frame and attachment hardware which would not be 
expected to wear, shall have a safety factor of at least three, based on 
the ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, transmission, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the vehicle cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all levels (i.e., ground, curb, and intermediate positions) normally 
encountered in the operating environment. Where provided, each control 
for deploying, lowering, raising, and stowing the lift and lowering the 
roll-off barrier shall be of a momentary contact type requiring 
continuous manual pressure by the operator and shall not allow improper 
lift sequencing when the lift platform is occupied. The controls shall 
allow reversal of the lift operation sequence, such as raising or 
lowering a platform that is part way down, without allowing an occupied 
platform to fold or retract into the stowed position.
    (ii) Exception. Where the lift is designed to deploy with its long 
dimension parallel to the vehicle axis and which pivots into or out of 
the vehicle while occupied (i.e., ``rotary lift''), the requirements of 
this paragraph (b)(2) prohibiting the lift from being stowed while 
occupied shall not apply if the stowed position is within the passenger 
compartment and the lift is intended to be stowed while occupied.

[[Page 646]]

    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method, manual or otherwise, shall be capable of being 
operated in a manner that could be hazardous to the lift occupant or to 
the operator when operated according to manufacturer's instructions, and 
shall not permit the platform to be stowed or folded when occupied, 
unless the lift is a rotary lift and is intended to be stowed while 
occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second (305 mm/sec) or their dropping of an occupant in the event of a 
single failure of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the platform during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the platform is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches (13 mm) high. Such barriers shall not interfere with 
maneuvering into or out of the aisle. The loading-edge barrier (outer 
barrier) which functions as a loading ramp when the lift is at ground 
level, shall be sufficient when raised or closed, or a supplementary 
system shall be provided, to prevent a power wheelchair or mobility aid 
from riding over or defeating it. The outer barrier of the lift shall 
automatically raise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the platform is more than 3 inches (75 mm) above the roadway or 
sidewalk and the platform is occupied. Alternatively, a barrier or 
system may be raised, lowered, opened, closed, engaged, or disengaged by 
the lift operator, provided an interlock or inherent design feature 
prevents the lift from rising unless the barrier is raised or closed or 
the supplementary system is engaged.
    (6) Platform surface. The platform surface shall be free of any 
protrusions of \1/4\ inch (6.5 mm) high and shall be slip resistant. The 
platform shall have a minimum clear width of 28\1/2\ inches (725 mm) at 
the platform, a minimum clear width of 30 inches (760 mm) measured from 
2 inches (50 mm) above the platform surface to 30 inches (760 mm) above 
the platform, and a minimum clear length of 48 inches (1220 mm) measured 
from 2 inches (50 mm) above the surface of the platform to 30 inches 
(760 mm) above the surface of the platform. (See Figure 1 to this part.)
    (7) Platform gaps. Any openings between the platform surface and the 
raised barriers shall not exceed \5/8\ inch (16 mm) in width. When the 
platform is at vehicle floor height with the inner barrier (if 
applicable) down or retracted, gaps between the forward lift platform 
edge and the vehicle floor shall not exceed \1/2\ inch (13 mm) 
horizontally and \5/8\ inch (16 mm) vertically. Platforms on semi-
automatic lifts may have a hand hold not exceeding 1\1/2\ inches (28 mm) 
by 4\1/2\ inches (113 mm) located between the edge barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, measured on 
level ground, for a maximum rise of 3 inches (75 mm), and the transition 
from roadway or sidewalk to ramp may be vertical without edge treatment 
up to \1/4\ inch (6.5 mm) . Thresholds between \1/4\ inch (6.5 mm) and 
\1/2\ inch (13 mm) high shall be beveled with a slope no greater than 
1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll or pitch) in any direction between its unloaded position 
and its position when loaded with 600 pounds (2665 N) applied through a 
26 inch (660 mm) by 26 inch test pallet at the centroid of the platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second (150 mm/sec) during lowering and lifting an 
occupant, and shall not exceed 12 inches/second (300 mm/sec) during 
deploying or stowing.

[[Page 647]]

This requirement does not apply to the deployment or stowage cycles of 
lifts that are manually deployed or stowed. The maximum platform 
horizontal and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchair and mobility aid users.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The platform may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
(200 mm) long with the lowest portion a minimum 30 inches (760 mm) above 
the platform and the highest portion a maximum 38 inches (965 mm) above 
the platform. The handrails shall be capable of withstanding a force of 
100 pounds (445 N) concentrated at any point on the handrail without 
permanent deformation of the rail or its supporting structure. The 
handrail shall have a cross-sectional diameter between 1\1/4\ inches (32 
mm) and 1\1/2\ inches (38 mm) or shall provide an equivalent grasping 
surface, and have eased edges with corner radii of not less than \5/8\ 
inch (3.5 mm). Handrails shall be placed to provide a minimum 1\1/2\ 
inches (38 mm) knuckle clearance from the nearest adjacent surface. 
Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp--(1) Design load. Ramps 30 inches (760 mm) or 
longer shall support a load of 600 pounds (2665 N), placed at the 
centroid of the ramp distributed over an area of 26 inches by 26 inches 
(660 mm by 660 mm), with a safety factor of at least 3 based on the 
ultimate strength of the material. Ramps shorter than 30 inches (760 mm) 
shall support a load of 300 pounds (1332 N).
    (2) Ramp surface. The ramp surface shall be continuous and slip 
resistant; shall not have protrusions from the surface greater than \1/
4\ inch (6.5 mm) high; shall have a clear width of 30 inches (760 mm); 
and shall accommodate both four-wheel and three-wheel mobility aids.
    (3) Ramp threshold. The transition from roadway or sidewalk and the 
transition from vehicle floor to the ramp may be vertical without edge 
treatment up to \1/4\ inch (6.5 mm). Changes in level between \1/4\ inch 
(6.5 mm) and \1/2\ inch (13 mm) shall be beveled with a slope no greater 
than 1:2.
    (4) Ramp barriers. Each side of the ramp shall have barriers at 
least 2 inches (50 mm) high to prevent mobility aid wheels from slipping 
off.
    (5) Slope. Ramps shall have the least slope practicable and shall 
not exceed 1:4 when deployed to ground level. If the height of the 
vehicle floor from which the ramp is deployed is 3 inches (75 mm) or 
less above a 6 inch (150 mm) curb, a maximum slope of 1:4 is permitted; 
if the height of the vehicle floor from which the ramp is deployed is 6 
inches (150 mm) or less, but greater than 3 inches (75 mm), above a 6 
inch (150 mm) curb, a maximum slope of 1:6 is permitted; if the height 
of the vehicle floor from which the ramp is deployed is 9 inches (225 
mm) or less, but greater than 6 inches (150 mm), above a 6 inch curb, a 
maximum slope of 1:8 is permitted; if the height of the vehicle floor 
from which the ramp is deployed is greater than 9 inches (225 mm) above 
a 6 inch (150 mm) curb, a slope of 1:12 shall be achieved. Folding or 
telescoping ramps are permitted provided they meet all structural 
requirements of this section.
    (6) Attachment. When in use for boarding or alighting, the ramp 
shall be firmly attached to the vehicle so that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that no gap between vehicle and ramp exceeds \5/8\ inch (16 mm).
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps, including portable 
ramps stowed in the passenger area, do not impinge on a passenger's 
wheelchair or mobility aid or pose any hazard to passengers in the event 
of a sudden stop or maneuver.

[[Page 648]]

    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches (760 mm) above the ramp surface. 
The handrails shall be capable of withstanding a force of 100 pounds 
(445 N) concentrated at any point on the handrail without permanent 
deformation of the rail or its supporting structure. The handrail shall 
have a cross-sectional diameter between 1\1/4\ inches (32 mm) and 1\1/2\ 
inches (38 mm) or shall provide an equivalent grasping surface, and have 
eased edges with corner radii of not less than \1/8\ inch (3.5 mm). 
Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (d) Securement devices--(1) Design load. Securement systems, and 
their attachments to vehicles, shall restrain a force in the forward 
longitudinal direction of up to 2,000 pounds (8,880 N) per securement 
leg or clamping mechanism and a minimum of 4,000 pounds (17,760 N) for 
each mobility aid.
    (2) Location and size. The securement system shall be placed as near 
to the accessible entrance as practicable and shall have a clear floor 
area of 30 inches (760 mm) by 48 inches (1220 mm). Such space shall 
adjoin, and may overlap, an access path. Not more than 6 inches (150 mm) 
of the required clear floor space may be accommodated for footrests 
under another seat, modesty panel, or other fixed element provided there 
is a minimum of 9 inches (230 mm) from the floor to the lowest part of 
the seat overhanging the space. Securement areas may have fold-down 
seats to accommodate other passengers when a wheelchair or mobility aid 
is not occupying the area, provided the seats, when folded up, do not 
obstruct the clear floor space required. (See Figure 2 to this part.)
    (3) Mobility aids accommodated. The securement system shall secure 
common wheelchairs and mobility aids and shall either be automatic or 
easily attached by a person familiar with the system and mobility aid 
and having average dexterity.
    (4) Orientation. At least one securement device or system required 
by paragraph (a) of this section shall secure the wheelchair or mobility 
aid facing toward the front of the vehicle. Additional securement 
devices or systems shall secure the wheelchair or mobility aid facing 
forward or rearward. Where the wheelchair or mobility aid is secured 
facing the rear of the vehicle, a padded barrier shall be provided. The 
padded barrier shall extend from a height of 38 inches (965 mm) from the 
vehicle floor to a height of 56 inches (1420 mm) from the vehicle floor 
with a width of 18 inches (455 mm), laterally centered immediately in 
back of the seated individual. Such barriers need not be solid provided 
equivalent protection is afforded.
    (5) Movement. When the wheelchair or mobility aid is secured in 
accordance with manufacturer's instructions, the securement system shall 
limit the movement of an occupied wheelchair or mobility aid to no more 
than 2 inches (50 mm) in any direction under normal vehicle operating 
conditions.
    (6) Stowage. When not being used for securement, or when the 
securement area can be used by standees, the securement system shall not 
interfere with passenger movement, shall not present any hazardous 
condition, shall be reasonably protected from vandalism, and shall be 
readily accessed when needed for use.
    (7) Seat belt and shoulder harness. For each wheelchair or mobility 
aid securement device provided, a passenger seat belt and shoulder 
harness, complying with all applicable provisions of the Federal Motor 
Vehicle Safety Standards (49 CFR part 571), shall also be provided for 
use by wheelchair or mobility aid users. Such seat belts and shoulder 
harnesses shall not be used in lieu of a device which secures the 
wheelchair or mobility aid itself.

[63 FR 51698, 51702, Sept. 28, 1998]



Sec. 1192.161  Moveable aisle armrests.

    A minimum of 50% of aisle seats, including all moveable or removable 
seats at wheelchair or mobility aide securement locations, shall have an 
armrest on the aisle side which can be

[[Page 649]]

raised, removed, or retracted to permit easy entry or exit.

[63 FR 51700, 51702, Sept. 28, 1998]



                  Subpart H_Other Vehicles and Systems



Sec. 1192.171  General.

    (a) New, used and remanufactured vehicles and conveyances for 
systems not covered by other subparts of this part, to be considered 
accessible by regulations issued by the Department of Transportation in 
49 CFR part 37, shall comply with this subpart.
    (b) If portions of the vehicle or conveyance are modified in a way 
that affects or could affect accessibility, each such portion shall 
comply, to the extent practicable, with the applicable provisions of 
this subpart. This provision does not require that inaccessible vehicles 
be retrofitted with lifts, ramps or other boarding devices.
    (c) Requirements for vehicles and systems not covered by this part 
shall be determined on a case-by-case basis by the Department of 
Transportation in consultation with the U.S. Architectural and 
Transportation Barriers Compliance Board (Access Board).



Sec. 1192.173  Automated guideway transit vehicles and systems.

    (a) Automated Guideway Transit (AGT) vehicles and systems, sometimes 
called ``people movers'', operated in airports and other areas where AGT 
vehicles travel at slow speed, shall comply with the provisions of 
Sec. Sec. 1192.53 (a) through (c), and 1192.55 through 1192.61 for 
rapid rail vehicles and systems.
    (b) Where the vehicle covered by paragraph (a) of this section will 
operate in an accessible station, the design of vehicles shall be 
coordinated with the boarding platform design such that the horizontal 
gap between a vehicle door at rest and the platform shall be no greater 
than 1 inch and the height of the vehicle floor shall be within plus or 
minus \1/2\ inch of the platform height under all normal passenger load 
conditions. Vertical alignment may be accomplished by vehicle air 
suspension or other suitable means of meeting the requirement.
    (c) In stations where open platforms are not protected by platform 
screens, a suitable device or system shall be provided to prevent, deter 
or warn individuals from stepping off the platform between cars. 
Acceptable devices include, but are not limited to, pantograph gates, 
chains, motion detectors or other appropriate devices.
    (d) Light rail and rapid rail AGT vehicles and systems shall comply 
with subparts D and C of this part, respectively.



Sec. 1192.175  High-speed rail cars, monorails and systems.

    (a) All cars for high-speed rail systems, including but not limited 
to those using ``maglev'' or high speed steel-wheel-on-steel-rail 
technology, and monorail systems operating primarily on dedicated rail 
(i.e., not used by freight trains) or guideway, in which stations are 
constructed in accordance with subpart C of 49 CFR part 37, shall be 
designed for high-platform, level boarding and shall comply with Sec. 
1192.111(a) for each type of car which is similar to intercity rail, 
Sec. Sec. 1192.111(d), 1192.113 (a) through (c) and (e), 1192.115 (a) 
and (b), 1192.117 (a) and (b), 1192.121 through 1192.123, 1192.125(d), 
and 1192.127 (if applicable). The design of cars shall be coordinated 
with the boarding platform design such that the horizontal gap between a 
car door at rest and the platform shall be no greater than 3 inches and 
the height of the car floor shall be within plus or minus \5/8\ inch of 
the platform height under all normal passenger load conditions. Vertical 
alignment may be accomplished by car air suspension or other suitable 
means of meeting the requirement. All doorways shall have, when the door 
is open, at least 2 foot-candles of illumination measured on the door 
threshold.
    (b) All other high-speed rail cars shall comply with the similar 
provisions of subpart F of this part.



Sec. 1192.177  Ferries, excursion boats and other vessels. [Reserved]



Sec. 1192.179  Trams, similar vehicles and systems.

    (a) New and used trams consisting of a tractor unit, with or without 
passenger accommodations, and one or

[[Page 650]]

more passenger trailer units, including but not limited to vehicles 
providing shuttle service to remote parking areas, between hotels and 
other public accommodations, and between and within amusement parks and 
other recreation areas, shall comply with this section. For purposes of 
determining applicability of 49 CFR 37.101, 37.103, or 37.105, the 
capacity of such a vehicle or ``train'' shall consist of the total 
combined seating capacity of all units, plus the driver, prior to any 
modification for accessibility.
    (b) Each tractor unit which accommodates passengers and each trailer 
unit shall comply with Sec. Sec. 1192.25 and 1192.29. In addition, each 
such unit shall comply with Sec. 1192.23 (b) or (c) and shall provide 
at least one space for wheelchair or mobility aid users complying with 
Sec. 1192.23(d) unless the complete operating unit consisting of 
tractor and one or more trailers can already accommodate at least two 
wheelchair or mobility aid users.

[[Page 651]]



                        Sec. Figures to Part 1192
[GRAPHIC] [TIFF OMITTED] TR28SE98.000


[63 FR 51701, 51702, Sept. 28, 1998]

[[Page 652]]

[GRAPHIC] [TIFF OMITTED] TC29OC91.131


[[Page 653]]


[GRAPHIC] [TIFF OMITTED] TC29OC91.132


[[Page 654]]


[GRAPHIC] [TIFF OMITTED] TC29OC91.133



              Sec. Appendix to Part 1192--Advisory Guidance

    This appendix contains materials of an advisory nature and provides 
additional information that should help the reader to understand the 
minimum requirements of the guidelines or to design vehicles for greater 
accessibility. Each entry is applicable to all subparts of this part 
except where noted. Nothing in this appendix shall in any way obviate 
any obligation to comply with the requirements of the guidelines 
themselves.

  I. Slip Resistant Surfaces--Aisles, Steps, Floor Areas Where People 
    Walk, Floor Areas in Securement Locations, Lift Platforms, Ramps

    Slip resistance is based on the frictional force necessary to keep a 
shoe heel or crutch tip from slipping on a walking surface under 
conditions likely to be found on the surface. While the dynamic 
coefficient of friction during walking varies in a complex and non-
uniform way, the static coefficient of friction, which can be measured 
in several ways, provides a close approximation of the slip resistance 
of a surface. Contrary to popular belief, some slippage is necessary to 
walking, especially for persons with restricted gaits; a

[[Page 655]]

truly ``non-slip'' surface could not be negotiated.
    The Occupational Safety and Health Administration recommends that 
walking surfaces have a static coefficient of friction of 0.5. A 
research project sponsored by the Architectural and Transportation 
Barriers Compliance Board (Access Board) conducted tests with persons 
with disabilities and concluded that a higher coefficient of friction 
was needed by such persons. A static coefficient of friction of 0.6 is 
recommended for steps, floors, and lift platforms and 0.8 for ramps.
    The coefficient of friction varies considerably due to the presence 
of contaminants, water, floor finishes, and other factors not under the 
control of transit providers and may be difficult to measure. 
Nevertheless, many common materials suitable for flooring are now 
labeled with information on the static coefficient of friction. While it 
may not be possible to compare one product directly with another, or to 
guarantee a constant measure, transit operators or vehicle designers and 
manufacturers are encouraged to specify materials with appropriate 
values. As more products include information on slip resistance, 
improved uniformity in measurement and specification is likely. The 
Access Board's advisory guidelines on Slip Resistant Surfaces provides 
additional information on this subject.

           II. Color Contrast--Step Edges, Lift Platform Edges

    The material used to provide contrast should contrast by at least 
70%. Contrast in percent is determined by:

Contrast=[(B1-B2)/B1]x100

where B1=light reflectance value (LRV) of the lighter area
and B2=light reflectance value (LRV) of the darker area.

Note that in any application both white and black are never absolute; 
thus, B1 never equals 100 and B2 is always greater 
than 0.

                      III. Handrails and Stanchions

    In addition to the requirements for handrails and stanchions for 
rapid, light, and commuter rail vehicles, consideration should be given 
to the proximity of handrails or stanchions to the area in which 
wheelchair or mobility aid users may position themselves. When 
identifying the clear floor space where a wheelchair or mobility aid 
user can be accommodated, it is suggested that at least one such area be 
adjacent or in close proximity to a handrail or stanchion. Of course, 
such a handrail or stanchion cannot encroach upon the required 32 inch 
width required for the doorway or the route leading to the clear floor 
space which must be at least 30 by 48 inches in size.

              IV. Priority Seating Signs and Other Signage

                         A. Finish and Contrast

    The characters and background of signs should be eggshell, matte, or 
other non-glare finish. An eggshell finish (11 to 19 degree gloss on 60 
degree glossimeter) is recommended. Characters and symbols should 
contrast with their background--either light characters on a dark 
background or dark characters on a light background. Research indicates 
that signs are more legible for persons with low vision when characters 
contrast with their background by at least 70 percent. Contrast in 
percent is determined by:

Contrast=[(B1-B2)/B1]x100

where B1=light reflectance value (LRV) of the lighter area
and B2=light reflectance value (LRV) of the darker area.

Note that in any application both white and black are never absolute; 
thus, B1 never equals 100 and B2 is always greater 
than 0.
    The greatest readability is usually achieved through the use of 
light-colored characters or symbols on a dark background.

                     B. Destination and Route Signs

    The following specifications, which are required for buses (Sec. 
1192.39), are recommended for other types of vehicles, particularly 
light rail vehicles, where appropriate.
    1. Where destination or route information is displayed on the 
exterior of a vehicle, each vehicle should have illuminated signs on the 
front and boarding side of the vehicle.
    2. Characters on signs covered by paragraph IV.B.1 of this appendix 
should have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of 1 inch for signs on the boarding 
side and a minimum character height of 2 inches for front ``headsigns'', 
with ``wide'' spacing (generally, the space between letters shall be \1/
16\ the height of upper case letters), and should contrast with the 
background, either dark-on-light or light-on-dark, or as recommended 
above.

                  C. Designation of Accessible Vehicles

    The International Symbol of Accessibility should be displayed as 
shown in Figure 6.

                      V. Public Information Systems

    There is currently no requirement that vehicles be equipped with an 
information system which is capable of providing the same or equivalent 
information to persons with hearing loss. While the Department of 
Transportation assesses available and soon-to-be

[[Page 656]]

available technology during a study to be conducted during Fiscal Year 
1992, entities are encouraged to employ whatever services, signage or 
alternative systems or devices that provide equivalent access and are 
available. Two possible types of devices are visual display systems and 
listening systems. However, it should be noted that while visual display 
systems accommodate persons who are deaf or are hearing impaired, 
assistive listening systems aid only those with a partial loss of 
hearing.

                        A. Visual Display Systems

    Announcements may be provided in a visual format by the use of 
electronic message boards or video monitors.
    Electronic message boards using a light emitting diode (LED) or 
``flip-dot'' display are currently provided in some transit stations and 
terminals and may be usable in vehicles. These devices may be used to 
provide real time or pre-programmed messages; however, real time message 
displays require the availability of an employee for keyboard entry of 
the information to be announced.
    Video monitor systems, such as visual paging systems provided in 
some airports (e.g., Baltimore-Washington International Airport), are 
another alternative. The Architectural and Transportation Barriers 
Compliance Board (Access Board) can provide technical assistance and 
information on these systems (``Airport TDD Access: Two Case Studies,'' 
(1990)).

                     B. Assistive Listening Systems

    Assistive listening systems (ALS) are intended to augment standard 
public address and audio systems by providing signals which can be 
received directly by persons with special receivers or their own hearing 
aids and which eliminate or filter background noise. Magnetic induction 
loops, infra-red and radio frequency systems are types of listening 
systems which are appropriate for various applications.
    An assistive listening-system appropriate for transit vehicles, 
where a group of persons or where the specific individuals are not known 
in advance, may be different from the system appropriate for a 
particular individual provided as an auxiliary aid or as part of a 
reasonable accommodation. The appropriate device for an individual is 
the type that individual can use, whereas the appropriate system for a 
station or vehicle will necessarily be geared toward the ``average'' or 
aggregate needs of various individuals. Earphone jacks with variable 
volume controls can benefit only people who have slight hearing loss and 
do not help people who use hearing aids. At the present time, magnetic 
induction loops are the most feasible type of listening system for 
people who use hearing aids equipped with ``T-coils'', but people 
without hearing aids or those with hearing aids not equipped with 
inductive pick-ups cannot use them without special receivers. Radio 
frequency systems can be extremely effective and inexpensive. People 
without hearing aids can use them, but people with hearing aids need a 
special receiver to use them as they are presently designed. If hearing 
aids had a jack to allow a by-pass of microphones, then radio frequency 
systems would be suitable for people with and without hearing aids. Some 
listening systems may be subject to interference from other equipment 
and feedback from hearing aids of people who are using the systems. Such 
interference can be controlled by careful engineering design that 
anticipates feedback sources in the surrounding area.
    The Architectural and Transportation Barriers Compliance Board 
(Access Board) has published a pamphlet on Assistive Listening Systems 
which lists demonstration centers across the country where technical 
assistance can be obtained in selecting and installing appropriate 
systems. The state of New York has also adopted a detailed technical 
specification which may be useful.

                         VI. Over-the-Road Buses

                              A. Door Width

    Achieving a 30 inch wide front door on an over-the-road bus is 
considered not feasible if doing so would necessitate reduction of the 
bus approach angle, relocating the front axle rearward, or increasing 
the bus overall length.

                              B. Restrooms

    The following is provided to assist manufacturers and designers to 
create restrooms which can be used by people with disabilities. These 
specifications are derived from requirements for rail vehicles and 
represent compromises between space needed for use and constraints 
imposed by vehicle dimensions. As a result, some persons with 
disabilities cannot use a restroom which meets these specifications and 
operators who do provide such restrooms should provide passengers with 
disabilities sufficient advance information about design so that those 
passengers can assess their ability to use them. Designers should 
provide additional space beyond these minimum specifications whenever 
possible.
    (1) If an accessible restroom is provided, it should be designed so 
as to allow a person using a wheelchair or mobility aid to enter and use 
such restroom as specified in paragraphs (1)(a) through (e) of section 
VI.B of this appendix.
    (a) The minimum clear floor area should be 35 inches (890 mm) by 60 
inches (1525 mm). Permanently installed fixtures may overlap this area a 
maximum of 6 inches (150 mm), if

[[Page 657]]

the lowest portion of the fixture is a minimum of 9 inches (230 mm) 
above the floor, and may overlap a maximum of 19 inches (485 mm), if the 
lowest portion of the fixture is a minimum of 29 inches (740 mm) above 
the floor, provided such fixtures do not interfere with access to the 
water closet. Fold-down or retractable seats or shelves may overlap the 
clear floor space at a lower height provided they can be easily folded 
up or moved out of the way.
    (b) The height of the water closet should be 17 inches (430 mm) to 
19 inches (485 mm) measured to the top of the toilet seat. Seats should 
not be sprung to return to a lifted position.
    (c) A grab bar at least 24 inches (610 mm) long should be mounted 
behind the water closet, and a horizontal grab bar at least 40 inches 
(1015 mm) long should be mounted on at least one side wall, with one end 
not more than 12 inches (305 mm) from the back wall, at a height between 
33 inches (840 mm) and 36 inches (915 mm) above the floor.
    (d) Faucets and flush controls should be operable with one hand and 
should not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls should be no greater than 5 lbs 
(22.2 N). Controls for flush valves should be mounted no more than 44 
inches (1120 mm) above the floor.
    (e) Doorways on the end of the enclosure, opposite the water closet, 
should have a minimum clear opening width of 32 inches (815 mm). Door 
latches and hardware should be operable with one hand and should not 
require tight grasping, pinching, or twisting of the wrist.
    (2) Accessible restrooms should be in close proximity to at least 
one seating location for persons using mobility aids and should be 
connected to such a space by an unobstructed path having a minimum width 
of 32 inches (815 mm).

                     C. Visibility Through a Window

    Care should be taken so that the lift does not obscure the vision of 
the person occupying the securement position.

[56 FR 45558, Sept. 6, 1991, as amended at 63 FR 51702, Sept. 28, 1998]



PART 1193_TELECOMMUNICATIONS ACT ACCESSIBILITY GUIDELINES--Table of Contents




                            Subpart A_General

Sec.
1193.1 Purpose.
1193.2 Scoping.
1193.3 Definitions.

                     Subpart B_General Requirements

1193.21 Accessibility, usability, and compatibility.
1193.23 Product design, development, and evaluation.

         Subpart C_Requirements for Accessibility and Usability

1193.31 Accessibility and usability.
1193.33 Information, documentation, and training.
1193.35 Redundancy and selectability. [Reserved]
1193.37 Information pass through.
1193.39 Prohibited reduction of accessibility, usability, and 
          compatibility.
1193.41 Input, control, and mechanical functions.
1193.43 Output, display, and control functions.

  Subpart D_Requirements for Compatibility With Peripheral Devices and 
                 Specialized Customer Premises Equipment

1193.51 Compatibility.

Appendix to Part 1193--Advisory Guidance

    Authority: 47 U.S.C. 255(e).

    Source: 63 FR 5630, Feb. 3, 1998, unless otherwise noted.



                            Subpart A_General



Sec. 1193.1  Purpose.

    This part provides requirements for accessibility, usability, and 
compatibility of telecommunications equipment and customer premises 
equipment covered by the Telecommunications Act of 1996 (47 U.S.C. 255).



Sec. 1193.2  Scoping.

    This part provides requirements for accessibility, usability, and 
compatibility of new products and existing products which undergo 
substantial change or upgrade, or for which new releases are 
distributed. This part does not apply to minor or insubstantial changes 
to existing products that do not affect functionality.



Sec. 1193.3  Definitions.

    Terms used in this part shall have the specified meaning unless 
otherwise stated. Words, terms and phrases used in the singular include 
the plural, and use of the plural includes the singular.

[[Page 658]]

    Accessible. Telecommunications equipment or customer premises 
equipment which comply with the requirements of subpart C of this part.
    Alternate formats. Alternate formats may include, but are not 
limited to, Braille, ASCII text, large print, and audio cassette 
recording.
    Alternate modes. Different means of providing information to users 
of products including product documentation and information about the 
status or operation of controls. Examples of alternate modes may 
include, but are not limited to, voice, fax, relay service, TTY, 
Internet posting, captioning, text-to-speech synthesis, and video 
description.
    Compatible. Telecommunications equipment or customer premises 
equipment which comply with the requirements of subpart D of this part.
    Customer premises equipment. Equipment employed on the premises of a 
person (other than a carrier) to originate, route, or terminate 
telecommunications.
    Manufacturer. A manufacturer of telecommunications equipment or 
customer premises equipment that sells to the public or to vendors that 
sell to the public; a final assembler.
    Peripheral devices. Devices employed in connection with 
telecommunications equipment or customer premises equipment to 
translate, enhance, or otherwise transform telecommunications into a 
form accessible to individuals with disabilities.
    Product. Telecommunications equipment or customer premises 
equipment.
    Readily achievable. Easily accomplishable and able to be carried out 
without much difficulty or expense.
    Specialized customer premises equipment. Equipment, employed on the 
premises of a person (other than a carrier) to originate, route, or 
terminate telecommunications, which is commonly used by individuals with 
disabilities to achieve access.
    Telecommunications. The transmission, between or among points 
specified by the user, of information of the user's choosing, without 
change in the form or content of the information as sent and received.
    Telecommunications equipment. Equipment, other than customer 
premises equipment, used by a carrier to provide telecommunications 
services, and includes software integral to such equipment (including 
upgrades).
    Telecommunications service. The offering of telecommunications for a 
fee directly to the public, or to such classes of users as to be 
effectively available directly to the public, regardless of the 
facilities used.
    TTY. An abbreviation for teletypewriter. Machinery or equipment that 
employs interactive text based communications through the transmission 
of coded signals across the standard telephone network. TTYs can 
include, for example, devices known as TDDs (telecommunication display 
devices or telecommunication devices for deaf persons) or computers with 
special modems. TTYs are also called text telephones.
    Usable. Means that individuals with disabilities have access to the 
full functionality and documentation for the product, including 
instructions, product information (including accessible feature 
information), documentation, and technical support functionally 
equivalent to that provided to individuals without disabilities.



                     Subpart B_General Requirements



Sec. 1193.21  Accessibility, usability, and compatibility.

    Where readily achievable, telecommunications equipment and customer 
premises equipment shall comply with the requirements of subpart C of 
this part. Where it is not readily achievable to comply with subpart C 
of this part, telecommunications equipment and customer premises 
equipment shall comply with the requirements of subpart D of this part, 
if readily achievable.



Sec. 1193.23  Product design, development, and evaluation.

    (a) Manufacturers shall evaluate the accessibility, usability, and 
compatibility of telecommunications equipment and customer premises 
equipment and shall incorporate such evaluation throughout product 
design, development, and fabrication, as early

[[Page 659]]

and consistently as possible. Manufacturers shall identify barriers to 
accessibility and usability as part of such a product design and 
development process.
    (b) In developing such a process, manufacturers shall consider the 
following factors, as the manufacturer deems appropriate:
    (1) Where market research is undertaken, including individuals with 
disabilities in target populations of such research;
    (2) Where product design, testing, pilot demonstrations, and product 
trials are conducted, including individuals with disabilities in such 
activities;
    (3) Working cooperatively with appropriate disability-related 
organizations; and
    (4) Making reasonable efforts to validate any unproven access 
solutions through testing with individuals with disabilities or with 
appropriate disability-related organizations that have established 
expertise with individuals with disabilities.



         Subpart C_Requirements for Accessibility and Usability



Sec. 1193.31  Accessibility and usability.

    When required by Sec. 1193.21, telecommunications equipment and 
customer premises equipment shall be accessible to and usable by 
individuals with disabilities and shall comply with Sec. Sec. 1193.33 
through 1193.43 as applicable.



Sec. 1193.33  Information, documentation, and training.

    (a) Manufacturers shall ensure access to information and 
documentation it provides to its customers. Such information and 
documentation includes user guides, installation guides for end-user 
installable devices, and product support communications, regarding both 
the product in general and the accessibility features of the product. 
Manufacturers shall take such other steps as necessary including:
    (1) Providing a description of the accessibility and compatibility 
features of the product upon request, including, as needed, in alternate 
formats or alternate modes at no additional charge;
    (2) Providing end-user product documentation in alternate formats or 
alternate modes upon request at no additional charge; and
    (3) Ensuring usable customer support and technical support in the 
call centers and service centers which support their products at no 
additional charge.
    (b) Manufacturers shall include in general product information the 
contact method for obtaining the information required by paragraph (a) 
of this section.
    (c) Where manufacturers provide employee training, they shall ensure 
it is appropriate to an employee's function. In developing, or 
incorporating existing training programs, consideration shall be given 
to the following factors:
    (1) Accessibility requirements of individuals with disabilities;
    (2) Means of communicating with individuals with disabilities;
    (3) Commonly used adaptive technology used with the manufacturer's 
products;
    (4) Designing for accessibility; and
    (5) Solutions for accessibility and compatibility.



Sec. 1193.35  Redundancy and selectability. [Reserved]



Sec. 1193.37  Information pass through.

    Telecommunications equipment and customer premises equipment shall 
pass through cross-manufacturer, non-proprietary, industry-standard 
codes, translation protocols, formats or other information necessary to 
provide telecommunications in an accessible format. In particular, 
signal compression technologies shall not remove information needed for 
access or shall restore it upon decompression.



Sec. 1193.39  Prohibited reduction of accessibility, usability, and 

compatibility.

    (a) No change shall be undertaken which decreases or has the effect 
of decreasing the net accessibility, usability, or compatibility of 
telecommunications equipment or customer premises equipment.
    (b) Exception: Discontinuation of a product shall not be prohibited.



Sec. 1193.41  Input, control, and mechanical functions.

    Input, control, and mechanical functions shall be locatable, 
identifiable,

[[Page 660]]

and operable in accordance with each of the following, assessed 
independently:
    (a) Operable without vision. Provide at least one mode that does not 
require user vision.
    (b) Operable with low vision and limited or no hearing. Provide at 
least one mode that permits operation by users with visual acuity 
between 20/70 and 20/200, without relying on audio output.
    (c) Operable with little or no color perception. Provide at least 
one mode that does not require user color perception.
    (d) Operable without hearing. Provide at least one mode that does 
not require user auditory perception.
    (e) Operable with limited manual dexterity. Provide at least one 
mode that does not require user fine motor control or simultaneous 
actions.
    (f) Operable with limited reach and strength. Provide at least one 
mode that is operable with user limited reach and strength.
    (g) Operable without time-dependent controls. Provide at least one 
mode that does not require a response time. Alternatively, a response 
time may be required if it can be by-passed or adjusted by the user over 
a wide range.
    (h) Operable without speech. Provide at least one mode that does not 
require user speech.
    (i) Operable with limited cognitive skills. Provide at least one 
mode that minimizes the cognitive, memory, language, and learning skills 
required of the user.



Sec. 1193.43  Output, display, and control functions.

    All information necessary to operate and use the product, including 
but not limited to, text, static or dynamic images, icons, labels, 
sounds, or incidental operating cues, shall comply with each of the 
following, assessed independently:
    (a) Availability of visual information. Provide visual information 
through at least one mode in auditory form.
    (b) Availability of visual information for low vision users. Provide 
visual information through at least one mode to users with visual acuity 
between 20/70 and 20/200 without relying on audio.
    (c) Access to moving text. Provide moving text in at least one 
static presentation mode at the option of the user.
    (d) Availability of auditory information. Provide auditory 
information through at least one mode in visual form and, where 
appropriate, in tactile form.
    (e) Availability of auditory information for people who are hard of 
hearing. Provide audio or acoustic information, including any auditory 
feedback tones that are important for the use of the product, through at 
least one mode in enhanced auditory fashion (i.e., increased 
amplification, increased signal-to-noise ratio, or combination). For 
transmitted voice signals, provide a gain adjustable up to a minimum of 
20 dB. For incremental volume control, provide at least one intermediate 
step of 12 dB of gain.
    (f) Prevention of visually-induced seizures. Visual displays and 
indicators shall minimize visual flicker that might induce seizures in 
people with photosensitive epilepsy.
    (g) Availability of audio cutoff. Where a product delivers audio 
output through an external speaker, provide an industry standard 
connector for headphones or personal listening devices (e.g., phone-like 
handset or earcup) which cuts off the speaker(s) when used.
    (h) Non-interference with hearing technologies. Reduce interference 
to hearing technologies (including hearing aids, cochlear implants, and 
assistive listening devices) to the lowest possible level that allows a 
user to utilize the product.
    (i) Hearing aid coupling. Where a product delivers output by an 
audio transducer which is normally held up to the ear, provide a means 
for effective wireless coupling to hearing aids.



  Subpart D_Requirements for Compatibility With Peripheral Devices and 
                 Specialized Customer Premises Equipment



Sec. 1193.51  Compatibility.

    When required by subpart B of this part, telecommunications 
equipment and customer premises equipment shall be compatible with 
peripheral devices and specialized customer premises

[[Page 661]]

equipment commonly used by individuals with disabilities to achieve 
accessibility, and shall comply with the following provisions, as 
applicable:
    (a) External electronic access to all information and control 
mechanisms. Information needed for the operation of products (including 
output, alerts, icons, on-line help, and documentation) shall be 
available in a standard electronic text format on a cross-industry 
standard port and all input to and control of a product shall allow for 
real time operation by electronic text input into a cross-industry 
standard external port and in cross-industry standard format. The cross-
industry standard port shall not require manipulation of a connector by 
the user.
    (b) Connection point for external audio processing devices. Products 
providing auditory output shall provide the auditory signal at a 
standard signal level through an industry standard connector.
    (c) Compatibility of controls with prosthetics. Touchscreen and 
touch-operated controls shall be operable without requiring body contact 
or close body proximity.
    (d) TTY connectability. Products which provide a function allowing 
voice communication and which do not themselves provide a TTY 
functionality shall provide a standard non-acoustic connection point for 
TTYs. It shall also be possible for the user to easily turn any 
microphone on and off to allow the user to intermix speech with TTY use.
    (e) TTY signal compatibility. Products, including those providing 
voice communication functionality, shall support use of all cross-
manufacturer non-proprietary standard signals used by TTYs.



              Sec. Appendix to Part 1193--Advisory Guidance

                              Introduction

    1. This appendix provides examples of strategies and notes to assist 
in understanding the guidelines and are a source of ideas for alternate 
strategies for achieving accessibility. These strategies and notes are 
not mandatory. A manufacturer is not required to incorporate all of 
these examples or any specific example. Manufacturers are free to use 
these or other strategies in addressing the guidelines. The examples 
listed here are not comprehensive, nor does adopting or incorporating 
them guarantee an accessible product. They are meant to provide a useful 
starting point for evaluating the accessibility of a product or 
conceptual design and are not intended to inhibit innovation. For a more 
complete list of all of the published strategies to date, as well as for 
further information and links to on-going discussions, the reader is 
referred to the National Institute on Disability and Rehabilitation 
Research's Rehabilitation Engineering Center on Access to 
Telecommunications System's strategies Web site (http://trace.wisc.edu/
world/telecomm/).
    2. This appendix is organized to correspond to the sections and 
paragraphs of the guidelines in this part to which the explanatory 
material relates. This appendix does not contain explanatory material 
for every section and paragraph of the guidelines in this part.

                           Subpart A--General

                       Section 1193.3 Definitions

                           Readily Achievable

    1. Section 255 defines ``readily achievable'' as having the same 
meaning as in the Americans with Disabilities Act (ADA). However, the 
ADA applies the term to the removal of barriers in existing public 
accommodations. Not all of the factors cited in the ADA or the 
Department of Justice (DOJ) implementing regulations (July 26, 1991) are 
easy to translate to the telecommunications context where the term 
applies to telecommunications equipment and customer premises equipment 
which is designed, developed and fabricated after February 8, 1996, the 
effective date of the Telecommunications Act of 1996.
    2. It may not be readily achievable to make every product accessible 
or compatible. Depending on the design, technology, or several other 
factors, it may be determined that providing accessibility to all 
products in a product line is not readily achievable. The guidelines do 
not require accessibility or compatibility when that determination has 
been made, and it is up to the manufacturer to make it. However, the 
assessment as to whether it is or is not readily achievable cannot be 
bypassed simply because another product is already accessible. For this 
purpose, two products are considered to be different if they have 
different functions or features. Products which differ only 
cosmetically, where such differences do not affect functionality, are 
not considered separate products.
    3. Below is a list of factors provided as interim guidance to 
manufacturers to assist them in making readily achievable assessments. 
The factors are derived from the ADA itself and the DOJ regulations and 
are presented in the order in which they appear in

[[Page 662]]

those sources. Ultimately, the priority or weight of these factors is a 
compliance issue, under the jurisdiction of the Federal Communications 
Commission (FCC). Factors applicable to a determination of whether an 
action is readily achievable include: the nature and cost of the action 
needed to provide accessibility or compatibility; the overall resources 
of the manufacturer, including financial resources, technical expertise, 
component supply sources, equipment, or personnel; the overall financial 
resources of any parent corporation or entity, only to the extent such 
resources are available to the manufacturer; and whether the 
accessibility solution results in a fundamental alteration of the 
product.
    a. One factor in making readily achievable assessments is the nature 
and cost of the action needed to provide accessibility or compatibility. 
The term readily achievable means that an action is ``easily 
accomplishable and able to be carried out without much difficulty or 
expense.'' The nature of the action or solution involves how easy it is 
to accomplish, including the availability of technology and expertise, 
and the ability to incorporate the solution into the production process. 
Obviously, knowing about an accessibility solution, even in detail, does 
not mean it is readily achievable for a specific manufacturer to 
implement it immediately. Even if it only requires substituting a 
different, compatible part, the new part must be ordered and integrated 
into the manufacturing process. A more extreme implementation might 
require re-tooling or redesign. On the other hand, a given solution 
might be so similar to the current design, development and fabrication 
process that it is readily achievable to implement it virtually 
overnight.
    b. Another factor in making readily achievable assessments is the 
overall resources of the manufacturer, including financial resources, 
technical expertise, component supply sources, equipment, or personnel. 
The monetary resources of a manufacturer are obviously a factor in 
determining whether an action is readily achievable, but it may be 
appropriate to consider other resources, as well. For example, a company 
might have ample financial resources and, at first glance, appear to 
have no reason for not including a particular accessibility feature in a 
given product. However, it might be that the company lacks personnel 
with experience in software development, for example, needed to 
implement the design solution. One might reason that, if the financial 
resources are available, the company should hire the appropriate 
personnel, but, if it does, it may no longer have the financial 
resources to implement the design solution. One would expect that the 
company would develop the technical expertise over time and that 
eventually the access solution might become readily achievable.
    c. Another factor in making readily achievable assessments is the 
overall financial resources of any parent corporation or entity, only to 
the extent such resources are available to the manufacturer. Both the 
ADA statutory definition of readily achievable and the DOJ regulations 
define the resources of a parent company as a factor. However, such 
resources are considered only to the extent those resources are 
available to the subsidiary. If, for example, the subsidiary is 
responsible for product design but the parent company is responsible for 
overall marketing, it may be appropriate to expect the parent company to 
address some of the marketing goals. If, on the other hand, the 
resources of a parent company are not available to the subsidiary, they 
may not be relevant. This determination would be made on a case-by-case 
basis.
    d. A fourth factor in making readily achievable assessments is 
whether the accessibility solution results in a fundamental alteration 
of the product. This factor, derived by extension from the ``undue 
burden'' criteria of the ADA, takes into consideration the effect adding 
an accessibility feature might have on a given product. For example, it 
may not be readily achievable to add a large display for low vision 
users to a small pager designed to fit in a pocket, because making the 
device significantly larger would be a fundamental alteration of the 
device. On the other hand, adding a voice output may not involve a 
fundamental alteration and would serve both blind and low vision users. 
In addition, adding an infrared port might be readily achievable and 
would allow a large-display peripheral device to be coupled to it. Of 
course fundamental alteration means a change in the fundamental 
characteristic of the product, not merely a cosmetic or esthetic change.

                     Subpart B--General Requirements

       Section 1193.23 Product Design, Development and Evaluation

                              Paragraph (a)

    1. This section requires manufacturers to evaluate the 
accessibility, usability, and compatibility of telecommunications 
equipment and customer premises equipment and incorporate such 
evaluation throughout product design, development, and fabrication, as 
early and consistently as possible. Manufacturers must develop a process 
to ensure that products are designed, developed and fabricated to be 
accessible whenever it is readily achievable. Since what is readily 
achievable will vary according to the stage of development (i.e., some 
things will be readily achievable in the design phase which

[[Page 663]]

may not be in later phases), barriers to accessibility and usability 
must be identified throughout product design and development, from 
conceptualization to production. Moreover, usability can be seriously 
affected even after production, if information is not provided in an 
effective manner.
    2. The details of such an evaluation process will vary from one 
company to the next, so this section does not specify its structure or 
specific content. Instead, this section sets forth a series of factors 
that a manufacturer must consider in developing such a process. How, and 
to what extent, each of the factors is incorporated in a specific 
process is up to the manufacturer.
    3. Different manufacturers, or even the same manufacturer at 
different times, have the flexibility to tailor any such plan to its own 
particular needs. This section does not prescribe any particular plan or 
content. It does not require that such a process be submitted to any 
entity or that it even be in writing. The requirement is outcome-
oriented, and a process could range from purely conceptual to formally 
documented, as suits the manufacturer.
    4. The goal is for designers to be aware of access and incorporate 
such considerations in the conceptualization of new products. When an 
idea is just beginning to take shape, a designer would ask, ``How would 
a blind person use this product? How would a deaf person use it?'' The 
sooner a manufacturer makes its design team cognizant of design issues 
for achieving accessibility; and proven solutions for accessibility and 
compatibility, the easier this process will be.

                            Paragraph (b)(1)

                             Market Research

    1. The guidelines do not require market research, testing or 
consultation, only that they be considered and incorporated to the 
extent deemed appropriate for a given manufacturer. If a manufacturer 
has a large marketing effort, involving surveys and focus groups, it may 
be appropriate to include persons with disabilities in such groups. On 
the other hand, some small companies do not do any real marketing, per 
se, but may just notice that a product made by XYZ Corporation is 
selling well and, based on this ``marketing survey'' it decides it can 
make a cheaper one. Clearly, ``involvement'' of persons with 
disabilities is not appropriate in this case.
    2. A manufacturer must consider how it could include individuals 
with disabilities in target populations of market research. It is 
important to realize that any target population for which a manufacturer 
might wish to focus a product contains individuals with disabilities, 
whether it is teenagers, single parents, women between the ages of 25 
and 40, or any other subgroup, no matter how narrowly defined. Any 
market research which excludes individuals with disabilities will be 
deficient.

                            Paragraph (b)(2)

    Product Design, Testing, Pilot Demonstrations, and Product Trials

    1. Including individuals with disabilities in product design, 
testing, pilot demonstrations, and product trials will encourage 
appropriate design solutions to accessibility barriers. In addition, 
such involvement may result in designs which have an appeal to a broader 
market.

                            Paragraph (b)(3)

 Working Cooperatively With Appropriate Disability-Related Organizations

    1. Working cooperatively with appropriate disability-related 
organizations is one of the factors that manufacturers must consider in 
their product design and development process. The primary reason for 
working cooperatively is to exchange relevant information. This is a 
two-way process since the manufacturer will get information on barriers 
to the use of its products, and may also be alerted to possible sources 
for solutions. The process will also serve to inform individuals with 
disabilities about what is readily achievable. In addition, 
manufacturers will have a conduit to a source of subjects for market 
research and product trials.
    2. Manufacturers should consult with representatives from a cross-
section of disability groups, particularly individuals whose 
disabilities affect hearing, vision, movement, manipulation, speech, and 
interpretation of information.
    3. Because of the complex interrelationship between equipment and 
services in providing accessibility to telecommunications products, 
coordination and cooperation between manufacturers and service providers 
will be beneficial. Involving service providers in the product 
development process will encourage appropriate design solutions to 
accessibility barriers and permit the exchange of relevant information.

                            Paragraph (b)(4)

     Making Reasonable Efforts To Validate Unproven Access Solutions

    1. Manufacturers must consider how they can make reasonable efforts 
to validate any unproven access solutions through testing with 
individuals with disabilities or with appropriate disability-related 
organizations that have established expertise with individuals with 
disabilities. It is important to obtain input from persons or 
organizations with established expertise to ensure that input is not 
based merely on individual preferences or limited experience.

[[Page 664]]

    2. This input should be sought from representatives from a cross-
section of disability groups, particularly individuals whose 
disabilities affect hearing, vision, movement, manipulation, speech, and 
interpretation of information.

         Subpart C--Requirements for Accessibility and Usability

        Section 1193.33 Information, Documentation, and Training

                              Paragraph (a)

    1. This section requires that manufacturers provide access to 
information and documentation. The information and documentation 
includes user guides, installation guides, and product support 
communications, regarding both the product in general and the 
accessibility features of the product. Information and documentation 
should be provided to people with disabilities at no additional charge. 
Alternate formats or alternate modes of this information is also 
required to be available. Manufacturers should also encourage 
distributors of their products to establish information dissemination 
and technical support programs similar to those established by the 
manufacturer.

                  Alternate Formats and Alternate Modes

    1. Alternate formats may include, but are not limited to, Braille, 
ASCII text, large print, and audio cassette recording. Alternate modes 
may include, but are not limited to, voice, fax, relay service, TTY, 
Internet posting, captioning, text-to-speech synthesis, and video 
description.
    2. In considering how to best provide product information to people 
with disabilities, it is essential that information be provided in an 
alternate format or mode that is usable by the person needing the 
information. For example, some individuals who are blind might require a 
manual in Braille to understand and use the product effectively. Other 
persons who are blind may prefer this information on a computer disk. 
Persons with limited reading skills may need this information recorded 
on audio cassette tape so they can listen to the manual. Still other 
persons with low vision may be able to read the text version of the 
manual if it is provided in a larger font. Likewise, if a tutorial video 
is provided, persons who are deaf may require a captioned version so 
that they will understand how to use the product effectively. Finally, 
individuals who rely on TTYs will need direct TTY access to a customer 
service line so they can ask questions about a product like everyone 
else.
    3. This portion of the appendix explains how to provide information 
in alternate formats (Braille, ASCII text, large print, audio cassette) 
to persons with disabilities. \1\
---------------------------------------------------------------------------

    \1\ This information was provided by the American Foundation for the 
Blind.
---------------------------------------------------------------------------

                                 Braille

    4. Some persons who are blind rely on the use of Braille in order to 
obtain information that is typically provided in print. These persons 
may need Braille because of the nature of their disability (such as 
persons who are deaf-blind) or because of the complexity of the 
material. Most large urban areas have companies or organizations which 
can translate printed material to Braille. On the other hand, 
manufacturers may wish to consider producing Braille documents ``in 
house'' using a personal computer, Braille translation software, and a 
Braille printer. The disadvantage is the difficulty in ensuring quality 
control and accuracy. Software programs exist which can translate common 
word processing formats directly into Braille, but they are not always 
error free, especially if the document contains special characters, 
jargon, graphics, or charts. Since the typical office worker will not be 
able to proofread a Braille document, the initial apparent cost saving 
may be quickly lost by having to re-do documents. The Braille 
translation software costs approximately $500 and most Braille printers 
sold range from $2,000 to $5,000, however some Braille printers, 
depending on the speed and other features, do cost more. Depending on 
the quality of Braille to be generated, a Braille printer in the $4,000 
range should be adequate for most users. By using automatic translation 
software, individuals who do not have knowledge of Braille or who have 
limited computer skills may be able to produce simple Braille documents 
without much trouble. If the document is of a complex format, however, 
such as a text box over multiple columns, a sophisticated knowledge of 
Braille translation software and formatting will be required.

                             Electronic Text

    5. People who are blind or have low vision and who have access to 
computers may be able to use documents in electronic form. Electronic 
text must be provided in ASCII or a properly formatted word processor 
file. Using electronic text allows this information to be transmitted 
through e-mail or other on-line telecommunications. Blind or low vision 
persons who have access to a personal computer can then read the 
document using synthetic speech, an electronic Braille display, a large 
print computer monitor, or they can produce a hard copy in large print 
or Braille.

[[Page 665]]

    6. Documents prepared for electronic transmission should be in 
ASCII. Documents supplied on disk should also be provided in either 
ASCII or a word processor format usable by the customer. Word processing 
documents should be properly formatted before distribution or conversion 
to ASCII. To be correctly formatted, the document should be in Courier 
10 point size and formatted for an 80 character line. Tables should be 
converted to plain text. Graphics or text boxes should be deleted and 
explained or described in text format. This will allow the reader to 
understand all of the documentation being presented. Replace bullets 
() with ``*'' or ``-'' and convert other extended 
ASCII characters into text. When converting a document into ASCII or 
word processor formats, it is important to utilize the appropriate ``tab 
key'' and ``centering key'' rather than using the space bar. This is 
necessary because Braille translation software relies on the proper use 
of commands to automate the formatting of a Braille document.

                               Large Print

    7. Persons with low vision may require documentation to be provided 
in large print. Large print documents can easily be produced using a 
scalable font from any good word processing program and a standard laser 
printer. Using the document enlargement option on a photocopier will 
usually yield unsatisfactory results.
    8. To obtain the best results follow these guidelines:
    a. It is preferable to use paper that is standard 8\1/2\ x 11 
inches. Larger paper may be used, but care should be taken that a 
document does not become too bulky, thus making it difficult to read. 
Always use 1 inch margins. Lines longer than 6\1/3\ inches will not 
track well for individuals who must use a magnifier.
    b. The best contrast with the least glare is achieved on very pale 
yellow or cream-colored non-glossy paper, such as paper that is used for 
photocopying purposes. To produce a more aesthetic looking document, an 
off-white paper may be used and will still give good contrast while 
producing less glare than white. Do not use dark colors and shades of 
red. Double-sided copying (if print does not bleed through) will produce 
a less bulky document.
    c. Remove formatting codes that can make reading more difficult. For 
example, centered or indented text could be difficult to track because 
only a few words will fit on a line. All text should begin at the left 
margin. Use only left margin justification to maintain uniform spacing 
across lines. Right margin justification can produce uneven spacing 
between letters and words. Use 1\1/4\ (1.25) line spacing; do not double 
space. Replace tabs with two spaces. Page numbering should be at the top 
or bottom left. Avoid columns. If columns are absolutely necessary, use 
minimum space between columns. Use dot leaders for tabular material. For 
those individuals who are able to read graphics (via the use of a 
magnifier or other assistive device) graphics should be included, but 
placed on a separate page from the text. For those individuals with low 
vision who are unable to read graphics, tables, and charts this material 
must be removed from the document and an accurate description of this 
material should be included in a text format.
    d. There is no standard typeface or point size. For more universal 
access, use 18 point type; anything larger could make text too choppy to 
read comfortably. Use a good strong bold typeface. Do not use italics, 
fine, or fancy typefaces. Do not use compressed typefaces; there should 
be normal ``white space'' between characters.
    e. Use upper and lowercase letters.
    f. Using these instructions, one page of print (11-12 point type) 
will equal approximately three pages of large print (14-18 point) 
depending on the density of the text.

                           Cassette Recordings

    9. Some persons who are blind or who have learning disabilities may 
require documentation on audio cassettes. Audio materials can be 
produced commercially or in-house. Agencies sometimes record material 
in-house and purchase a high speed tape duplicator ($1,000-2,000) which 
is used to make cassette copies from the master. The cost of a 
duplicator can be higher depending upon the number of copies produced on 
a single run, and whether the duplicator can produce standard speed two-
sided copies or half-speed four-sided copies. Although unit costs can be 
reduced by using the four-track, half-speed format, this will require 
the reader to use a specially designed playback machine. Tapes should be 
produced with ``tone indexing'' to allow a user to skip back and forth 
from one section to another. By following a few simple guidelines for 
selecting readers and creating recordings, most organizations will be 
able to successfully record most simple documents.
    10. Further guidance in making cassette recordings includes:
    a. The reader should be proficient in the language being recorded.
    b. The reader should be familiar with the subject. Someone who is 
somewhat familiar with the technical aspects of a product but who can 
explain functions in ordinary language would be a logical person to 
record an audio cassette.
    c. The reader should have good diction. Recording should be done in 
a conversational tone and at a conversational pace; neither too slow nor 
too fast.
    d. The reader should be familiar with the material to minimize 
stumbling and hesitation.

[[Page 666]]

    e. The reader should not editorialize. When recording a document, it 
should be read in full. Graphic and pictorial information available to 
sighted readers should be described in the narrated text. Tables and 
charts whose contents are not already contained in text should be 
converted into text and included in the recording.
    f. The reader should spell difficult or unusual words and words of 
foreign origin.
    g. At the beginning of the tape, identify the reader, i.e., ``This 
document is being read by John Smith.''
    h. On each side of the tape, identify the document and the page 
number where the reader is continuing, i.e., ``tape 2, side 1, Guide to 
Barrier Free Meetings, continuing on page 75.''
    i. For blind users, all cassettes should be labeled in Braille so 
that they can easily be referenced in the appropriate order.

                             Alternate Modes

    11. Information is provided increasingly through a variety of means 
including television advertisements, Internet postings, information 
seminars, and telephone. This portion of the appendix explains how to 
provide information in some alternate modes (captioning, video 
description, Internet postings, relay service, and TTY).

                               Captioning

    12. When manufacturers of telecommunications equipment or customer 
premises equipment provide videos with their products (such as tutorials 
or information explaining various components of a product) the video 
should be available with captioning. Closed captioning refers to 
assistive technology designed to provide access to television for 
persons with hearing disabilities that is visible only through the use 
of a decoder. Open captions are visible at all times. Captioning is 
similar to subtitles in that the audio portion of a television program 
is displayed as printed words on the television screen. Captions should 
be carefully placed to identify speakers, on-and off-screen sound 
effects, music and laughter. Increased captioning was made possible 
because of the Television Decoder Circuitry Act which requires all 
television sets sold in the United States with screens 13 inches or 
larger to have built-in decoder circuitry.
    13. Although captioning technology was developed specifically to 
make television and video presentations accessible to deaf and hard of 
hearing people, there has been widespread interest in using this 
technology to provide similar access to meetings, classroom teaching, 
and conferences. For meetings, video-conferences, information seminars, 
and the like, real-time captioning is sometimes provided. Real-time 
captioning uses a stenographic machine connected to a computer with 
translation software. The output is then displayed on a monitor or 
projected on a screen.

                            Video Description

    14. Just as manufacturers of telecommunications equipment and 
customer premises equipment need to make their videos accessible to 
persons who are deaf or hard of hearing, they must also be accessible to 
persons who are blind or have low vision. This process is known as video 
description. Video description may either be a separate audio track that 
can be played simultaneously with the regular audio portion of the video 
material (adding description during pauses in the regular audio), or it 
can be added to (or ``mixed'' with) an existing soundtrack. The latter 
is the technique used for videotapes.

                            Internet Postings

    15. The fastest growing way to obtain information about a product is 
through use of the Internet, and specifically the World Wide Web. 
However, many Internet users with disabilities have difficulty obtaining 
this information if it is not correctly formatted. This section provides 
information on how to make a World Wide Web site more accessible to 
persons with disabilities \2\. Because of its structure, the Web 
provides tremendous power and flexibility in presenting information in 
multiple formats (text, audio, video, and graphic). However, the 
features that provide power and elegance for some users present 
potential barriers for people with sensory disabilities. The 
indiscriminate use of graphic images and video restrict access for 
people who are blind or have low vision. Use of audio and non-captioned 
video restrict access for people who are deaf or hard of hearing.
---------------------------------------------------------------------------

    \2\ This information is based on the document ``Writing HTML 
Documents and Implementing Accessibility for the World Wide Web'' by 
Paul Fountaine, Center for Information Technology Accommodation, General 
Services Administration. For further information, see http://
www.gsa.gov/coca.
---------------------------------------------------------------------------

    16. The level of accessibility of the information on the Web is 
dependent on the format of the information, the transmission media, and 
the display system. Many of the issues related to the transmission media 
and the display system cannot be affected by the general user. On the 
other hand, anyone creating information for a Web server has control of 
the accessibility of the information. Careful design and coding of 
information will provide access to all people without compromising the 
power and elegance of the Web site.
    17. A few suggestions are:

[[Page 667]]

    a. Every graphic image should have associated text. This will enable 
a person using a character-based program, such as Lynx, to understand 
the material being presented in the graphical format. It also allows 
anyone who does not want to wait for graphics to load to have quick 
access to the information on the site.
    b. Provide text transcriptions or descriptions for all audio output. 
This will enable people who are deaf or hard of hearing to have access 
to this information, as well as individuals who do not have sound cards.
    c. Make any link text descriptive, but not verbose. For example, 
words like ``this'', ``here'', and ``click'' do not convey enough 
information about the nature of the link, especially to people who are 
blind. Link text should consist of substantive, descriptive words which 
can be quickly reviewed by the user. Conversely, link text which is too 
long bogs down efficient browsing.
    d. Provide alternate mechanisms for on-line forms. Forms are not 
supported by all browsers. Therefore, it is important to provide the 
user with an opportunity to select alternate methods to access such 
forms.
    e. All Web pages should be tested using multiple viewers. At a 
minimum, pages should be tested with the latest version of Lynx to 
ensure that they can be used with screen reader software.

                 Telecommunications Relay Services (TRS)

    18. By using telecommunications relay services (TRS), it has now 
become easier for persons with hearing and speech disabilities to 
communicate by the telephone. TRS links TTY users with those who do not 
have a TTY and use standard telephones. With TRS, a TTY user 
communicates with another person with the help of a communications 
assistant who is able to talk on the telephone and then communicate by 
typing the message verbatim, to the TTY user. The communications 
assistant also reads the message typed by the TTY user, or the TTY user 
may speak for him or herself using voice carry over.
    19. There are now TRS programs in every state. Although TRS is very 
valuable, it does have limitations. For example, relay calls take 
longer, since they always involve a third party, and typing words takes 
longer than speaking words.

                         Text Telephones (TTYs)

    20. A TTY also provides direct two-way typed conversations. The cost 
of these devices begins at approximately $200 and they can be operated 
by anyone who can type.
    21. The following information is excerpted from the brochure ``Using 
a TTY'' which is available free of charge from the Access Board:
    a. If the TTY line is also used for incoming voice calls, be sure 
the person who answers the phone knows how to recognize and answer a TTY 
call. You will usually hear silence, a high-pitched, electronic beeping 
sound, or a pre-recorded voice message when it is a TTY call. If there 
is silence, assume it is a TTY call.
    b. TTYs should be placed near a standard telephone so there is 
minimal delay in answering incoming TTY calls.
    c. To initiate a TTY call, place the telephone headset in the 
acoustic cups of the TTY adapter. If the TTY unit is directly connected 
to the phone line, there is no need to put the telephone headset in the 
acoustic cups. Turn the TTY on. Make sure there is a dial tone by 
checking for a steady light on the TTY status indicator.
    d. Dial the number and watch the status indicator light to see if 
the dialed number is ringing. The ring will make a long slow flash or 
two short flashes with a pause in between. If the line is busy, you will 
see short, continuous flashes on the indicator light. When the phone is 
answered, you will see an irregular light signal as the phone is picked 
up and placed in the cradle. If you are calling a combination TTY and 
voice number, tap the space bar several times to help the person on the 
other end identify this as a TTY call.
    e. The person who answers the call is the first to type. Answer the 
phone as you would by voice, then type ``GA''.
    f. ``GA'' means ``I'm done, go ahead and type''. ``HD'' means hold. 
``GA or SK'' means ``Is there anything more, I'm done''. ``SK'' means 
stop keying. This is how you show that the conversation is ended and 
that you will hang up. It is polite to type good-bye, thank you for 
calling, or some other closing remark before you type ``SK''. Stay on 
the line until both parties type SKSK.
    22. Because of the amount of time it takes to send and receive 
messages, it is important to remember that short words and sentences are 
desired by both parties. With some TTY calls it is often not possible to 
interrupt when the other person is typing. If you get a garbled message 
in all numbers or mixed numbers and letters, tap the space bar and see 
if the message clears up. If not, when the person stops typing, you 
should type, ``Message garbled, please repeat.'' If the garbled messages 
continue, this may mean that one of the TTYs is not working properly, 
there is background noise causing interference, or that you may have a 
bad connection. In this case you should say something like, ``Let's hang 
up and I'll call you back.''
    23. The typical TTY message will include many abbreviations and 
jargon. The message may also include misspelled words because, if the 
meaning is clear, many callers will not bother to correct spelling since 
it takes more time. Also, some TTY users communicate in American sign 
language, a language with its own grammar and syntax. English may be a 
second language. Extend the same patience

[[Page 668]]

and courtesy to TTY callers as you do to all others.

                              Paragraph (b)

    1. This paragraph requires manufacturers to supply a point of 
contact for obtaining information about accessibility features of the 
product and how to obtain documents in alternate formats. This could be 
the name of a specific person, a department or an office. Supplying a 
telephone number, and preferably a separate TTY number, is the most 
universal method. Web site and e-mail addresses are also desirable, but 
should not substitute for a telephone number since many more people have 
access to a telephone than have e-mail or Internet access. Of course, 
the means for requesting additional accessibility information must, 
itself, be accessible.
    2. Automated voice response systems are not usable by deaf and hard 
of hearing persons. An approach to consider is to augment an automated 
voice response system with an automated TTY response system that also 
detects whether a caller is using voice or TTY.
    3. The phone number should be prominently displayed in product 
literature. Ideally, it should be displayed on the outside of the 
package so that a potential buyer can obtain information about the 
accessibility before purchase. In addition, manufacturers should 
acquaint their distributors with this information so that they can 
assist customers with disabilities, such as a blind person unable to 
read the package information.

                              Paragraph (c)

    1. This paragraph requires manufacturers to consider including 
information on accessibility in training a manufacturer provides to its 
staff. For example, if technical support staff are trained on how to 
provide good technical support, such a program should be expanded to 
include information on accessibility features of the manufacturer's 
products and peripheral devices that are compatible with them. Such 
staff should also have basic information on how to handle TTY and relay 
calls. Personnel who deal directly with the public, including market 
researchers, should be trained in basic disability ``etiquette.''

         Section 1193.35 Redundancy and Selectability [Reserved]

    1. Although this section is reserved, manufacturers of 
telecommunications equipment and customer premises equipment are 
encouraged to provide redundancy such that input and output functions 
are available in more than one mode.
    2. Alternate input and output modes should be selectable by the 
user.
    3. Products should incorporate multiple modes for input and output 
functions so the user is able to select the desired mode.
    a. Since there is no single interface design that accommodates all 
disabilities, accessibility is likely to be accomplished through various 
product designs which emphasize interface flexibility to maximize user 
configurability and multiple, alternative and redundant modalities of 
input and output.
    b. Selectability is especially important where an accessibility 
feature for one group of individuals with disabilities may conflict with 
an accessibility feature for another. This potential problem could be 
solved by allowing the user to switch one of the features on and off. 
For example, a conflict may arise between captioning (provided for 
persons who are deaf or hard of hearing) and a large font size (provided 
for persons with low vision). The resulting caption would either be so 
large that it obscures the screen or need to be scrolled or displayed in 
segments for a very short period of time.
    c. It may not be readily achievable to provide all input and output 
functions in a single product or to permit all functions to be 
selectable. For example, switching requires control mechanisms which 
must be accessible and it may be more practical to have multiple modes 
running simultaneously. Whenever possible, it is preferable for the user 
to be able to turn on or off a particular mode.
    4. Some experiments with smart cards are showing promise for 
enhancing accessibility. Instead of providing additional buttons or menu 
items to select appropriate input and output modes, basic user 
information can be stored on a smart card that triggers a custom 
configuration. For example, insertion of a particular card can cause a 
device to increase the font size on a display screen or activate speech 
output. Another might activate a feature to increase volume output, 
lengthen the response time between sequential operations, or allow two 
keys to be pressed sequentially instead of simultaneously. This 
technology, which depends on the issuance of a customized card to a 
particular individual, would allow redundancy and selectability without 
adding additional controls which would complicate the operation. As more 
and more functions are provided by software rather than hardware, this 
option may be more readily achievable.
    5. The increasing use of ``plug-ins'' allow a product to be 
customized to the user's needs. Plug-ins function somewhat like 
peripheral devices to provide accessibility and there is no fundamental 
problem in using plug-ins to provide access, as long as the 
accessibility plug-ins are provided with the product. For example, at 
least one computer operating system comes packaged with accessibility 
enhancements which a user can install if wanted. In addition, modems are 
typically

[[Page 669]]

sold with bundled software that provides the customer premises equipment 
functionality. A compatible screen reader program, for example, could be 
bundled with it. At least one software company has developed a 
generalized set of accessibility tools designed to be bundled with a 
variety of software products to provide access. As yet, such 
developments are not fully mature; most products are still installed by 
providing on-screen visual prompts, not accompanied by meaningful 
sounds.

        Section 1193.41 Input, Controls, and Mechanical Functions

                              Paragraph (a)

                         Operable Without Vision

    1. Individuals who are blind or have low vision cannot locate or 
identify controls, latches, or input slits by sight or operate controls 
that require sight. Products should be manufactured to be usable 
independently by these individuals. For example, individuals who cannot 
see must use either touch or sound to locate and identify controls. If a 
product uses a flat, smooth touch screen or touch membrane, the user 
without vision will not be able to locate the controls without auditory 
or tactile cues.
    2. Once the controls have been located, the user must be able to 
identify the various functions of the controls. Having located and 
identified the controls, individuals must be able to operate them.
    3. Below are some examples of ways to make products accessible to 
persons with visual disabilities:
    a. If buttons are used on a product, make them discrete buttons 
which can be felt and located by touch. If a flat membrane is used for a 
keyboard, provide a raised edge around the control areas or buttons to 
make it possible to locate the keys by touch. Once an individual locates 
the different controls, he or she needs to identify what the keys are. 
If there is a standard number pad arrangement, putting a nib on the 
``5'' key may be all that is necessary for identifying the numbers. On a 
QWERTY keyboard, putting a tactile nib on the ``F'' and ``J'' keys 
allows touch typists to easily locate their hands on the key.
    b. Provide distinct shapes for keys to indicate their function or 
make it easy to tell them apart. Provide Braille labels for keys and 
controls for those who read Braille to determine the function and use of 
controls.
    c. Provide large raised letters for short labels on large objects. 
Where it is not possible to use raised large letters, a voice mode 
selection could be incorporated that announces keys when pressed, but 
does not activate them. This would allow people to turn on the voice 
mode long enough to explore and locate the item they are interested in, 
then release the voice mode and press the control. If it is an 
adjustable control, voice confirmation of the status may also be 
important.
    d. Provide tactile indication on a plug which is not a self-
orienting plug. Wireless connections, which eliminate the need to orient 
or insert connectors, also solve the problem.
    e. Avoid buttons that are activated when touched to allow an 
individual to explore the controls to find the desired button. If touch-
activated controls cannot be avoided (for example, on a touch screen), 
provide an alternate mode where a confirm button is used to confirm 
selections (for example, items are read when touched, and activated when 
the confirm button is pressed). All actions should be reversible, or 
require confirmation before executing non-reversible actions.
    f. Once controls have been located and users know what the functions 
are, they must be operable. Some types of controls, including mouse 
devices, track balls, dials without markings or stops, and push-button 
controls with only one state, where the position or setting is indicated 
only by a visual cue, will not be usable by persons who are blind or 
have low vision. Providing a rotational or linear stop and tactile or 
audio detents is a useful strategy. Another is to provide keyboard or 
push-button access to the functions. If the product has an audio system 
and microprocessor, use audio feedback of the setting. For simple 
products, tactile markings may be sufficient.
    g. Controls may also be shaped so that they can easily be read by 
touch (e.g., a twist knob shaped like a pie wedge). For keys which do 
not have any physical travel, some type of audio or tactile feedback 
should be provided so that the individual knows when the key has been 
activated. A two-state key (on/off) should be physically different in 
each position (e.g., a toggle switch or a push-in/pop-out switch), so 
the person can tell what state the key is in by feeling it.
    h. If an optional voice mode is provided for operating a product, a 
simple ``query'' mode can also be provided, which allows an individual 
to find out the function and state of a switch without actually 
activating it. In some cases, there may be design considerations which 
make the optimal mode for a sighted person inaccessible to someone 
without vision (e.g., use of a touch screen or mouse). In these cases, a 
primary strategy may be to provide a closely linked parallel method for 
efficiently achieving the same results (e.g., keyboard access) if there 
is a keyboard, or ``SpeedList'' access for touch screens.

[[Page 670]]

                              Paragraph (b)

           Operable With Low Vision and Limited or No Hearing

    1. Individuals with low vision often also have hearing disabilities, 
especially older individuals. These persons cannot rely solely on audio 
access modes commonly used by people who are blind. Tactile strategies 
are still quite useful, although many older persons may not be familiar 
with Braille. The objective, therefore, is to maximize the number of 
people who can use their residual vision, combined with tactile senses, 
to operate a product.
    2. Strategies for addressing this provision may include the 
following: a. Make the information on the product easier to see. Use 
high-contrast print symbols and visual indicators, minimize glare on the 
display and control surfaces, provide adequate lighting, position 
controls near the items they control to make them easy to find, and use 
Arabic instead of Roman numerals.
    b. The type-face and type-spacing used can greatly affect 
legibility. The spacing between letters should be approximately 1/16 the 
height of uppercase letters and the spacing should be uniform from one 
label to the next. Also, symbols can sometimes be used which are much 
more legible and understandable than fine print.
    c. Where the display is dynamic, provide a means for the user to 
enlarge the display and to ``freeze'' it. In addition to making it 
easier to see, there are strategies which can be used to reduce the need 
to see things clearly in order to operate them.
    d. A judicious use of color-coding, always redundant with other 
cues, is extremely helpful to persons with low vision. These cues should 
follow standard conventions, and can be used to reduce the need to read 
labels (or read labels more than the first time). In addition, all of 
the tactile strategies discussed under section 1193.41 (a) can also be 
used here.

                              Paragraph (c)

               Operable With Little or No Color Perception

    1. Many people are unable to distinguish between certain color 
combinations. Others are unable to see color at all.
    2. Strategies for addressing this provision include:
    a. Eliminate the need for a person see color to operate the product. 
This does not eliminate the use of color completely but rather requires 
that any information essential to the operation of a product also be 
conveyed in some other fashion.
    b. Avoid color pairs such as red/green and blue/yellow, that are 
indistinguishable by people with limited color perception.
    c. Provide colors with different hues and intensity so that colored 
objects can be distinguished even on a black and white screen by their 
different appearance. Depending upon the product, the manufacturer may 
also be able to allow users to adjust colors to match their preferences 
and visual abilities.
    d. Avoid colors with a low luminance.

                              Paragraph (d)

                        Operable Without Hearing

    1. Individuals who are deaf or hard of hearing cannot locate or 
identify controls that require hearing. Products that provide only audio 
prompts cannot be used by individuals who are deaf or hard of hearing. 
For example, a voice-based interactive product that can be controlled 
only by listening to menu items and then pressing buttons is not 
accessible. By addressing the output issues under section 1193.43(d) 
many accessibility problems that affect input under this section can be 
solved.
    2. Some strategies include:
    a. Text versions of audio prompts could be provided which are 
synchronized with the audio so that the timing is the same.
    b. If prompts are provided visually and no speech or vocalization is 
required, most problems associated with locating, identifying, and 
operating controls without hearing will be solved.

                              Paragraph (e)

                 Operable With Limited Manual Dexterity

    1. Individuals may have difficulty manipulating controls on products 
for any number of reasons. Though these disabilities may vary widely, 
these persons have difficulty grasping, pinching, or twisting objects 
and often have difficulty with finer motor coordination. Some persons 
may use a headstick, mouthstick, or artificial limb.
    2. Below are some strategies which will assist in designing products 
which will meet the needs of these persons:
    a. Provide larger buttons and controls, or buttons which are more 
widely spaced, to reduce the likelihood that a user will accidentally 
activate an adjacent control.
    b. Provide guard bars between the buttons or near the buttons so 
that accidental movements would hit the guard bars rather than 
accidentally bumping switches.
    c. Provide an optional mode where buttons must be depressed for a 
longer period of time (e.g., SlowKeys) before they would accept input to 
help separate between inadvertent motions or bumps and desired 
activation.
    d. Where two buttons must be depressed simultaneously, provide an 
option to allow them to be activated sequentially (e.g., StickiKeys).
    e. Avoid buttons which are activated merely by touch, such as 
capacitance switches. Where that is difficult to do (e.g., with 
touchscreens), provide a ``confirm'' button

[[Page 671]]

which an individual can use to confirm that the item touched is the 
desired one. Also, make all actions reversible, or request confirmation 
before initiating non-reversible actions.
    f. Avoid latches, controls, or key combinations which require 
simultaneous activation of two or more buttons, or latches. Also, avoid 
very small controls or controls which require rotation of the wrist or 
pinching and twisting. Where this is not possible, provide alternate 
means for achieving the same functions.
    g. Controls which have non-slip surfaces and those that can be 
operated with the side of the hand, elbow or pencil can be used to 
minimize physical activity required. In some cases, rotary controls can 
be used if they can be operated without grasping and twisting (e.g., a 
thin pie slice shape control or an edge control). Providing a concave 
top on buttons makes them easier to use.
    h. Make it easier to insert cards or connectors by providing a bevel 
around the slot or connector, or use cards or connectors which can be 
inserted in any orientation or which self-center or self-align. Placing 
the slot or connector on the front and near a ledge or open space allows 
individuals to brace their hands or arms to make use of the slot or 
connector easier.
    i. For some designs, controls which pose problems for individuals 
with disabilities may be the most efficient, logical or effective 
mechanism for a majority of users. In these cases, provide alternate 
strategies for achieving the same functions, but which do not require 
fine manipulation. Speech input or voice recognition could be provided 
as an alternate input, although it should not be the only input 
technique.

                              Paragraph (f)

                Operable With Limited Reach and Strength

    1. Some individuals may have difficulty operating systems which 
require reach or strength. The most straight-forward solution to this 
problem is to place the controls where they can be easily reached with 
minimal changes to body position. Many products also have controls 
located on different parts of the product.
    2. When this is the case, the following strategies may be used:
    a. Allow the functions to be controlled from the keyboard, which is 
located directly in front of the user.
    b. Allow voice recognition to be used as an option. This provides 
input flexibility, but should never be the only means for achieving a 
function.
    c. Provide a remote control option that moves all of the controls 
for the product together on a unit that can be positioned optimally for 
the individual. This allows the individual to operate the product 
without having to move to it. If this strategy is used, a standard 
communication format would be important to allow the use of alternate 
remote controls for those who cannot use the standard remote control.
    d. Reduce the force needed to operate controls or latches and avoid 
the need for sustained pressure or activity (e.g., use guards rather 
than increased strength requirements to avoid accidental activation of 
crucial switches).
    e. Provide arm or wrist rests or supports, create short cuts that 
reduce the number of actions needed, or completely eliminate the need to 
operate controls wherever possible by having automatic adjustments.
    f. Section 4.34.3 of the Americans with Disabilities Act 
Accessibility Guidelines (ADAAG) also contains specific information 
concerning reach ranges. ADAAG gives specific guidance concerning access 
to the built environment. Section 4.34.3 indicates the reach ranges for 
a front or parallel approach to equipment for individuals using a 
wheelchair. This information may prove useful for those 
telecommunications manufacturers whose equipment is stationary, such as 
an information kiosk.

                              Paragraph (g)

                Operable Without Time-Dependent Controls

    1. Many persons find it very difficult to operate time-dependent 
controls.
    2. Some strategies which address this problem include:
    a. Avoid any timed-out situations or provide instances where the 
user must respond to a question or moving display in a set amount of 
time or at a specific time (e.g., a rotating display).
    b. Where timed responses are required or appropriate, allow the user 
to adjust them or set the amount of time allotted to complete a given 
task. Warn users that time is running out and allow them to secure 
extended time.
    c. If the standard mode of operation would be awkward or 
inefficient, then provide an alternate mode of operation that offers the 
same functions.

                              Paragraph (h)

                         Operable Without Speech

    1. Many individuals cannot speak or speak clearly. Products which 
require speech in order to operate them should also provide an alternate 
way to achieve the same function.
    2. Some strategies to achieve this include:
    a. Provide an alternate mechanism for achieving all of the functions 
which are controlled by speech. If a product includes speech 
identification or verification, provide an alternate mechanism for this 
function as well.

[[Page 672]]

    b. Include individuals who are deaf or who have speech disabilities 
in the subject populations that are used to develop voice recognition 
algorithms, so that the algorithms will better accommodate a wider range 
of speech patterns.

                              Paragraph (i)

                 Operable With Limited Cognitive Skills

    1. Many individuals have reduced cognitive abilities, including 
reduced memory, sequence tracking, and reading skills. This does not 
necessarily prevent these persons from using a telecommunications 
product or feature.
    2. The following strategies are extensions of techniques for making 
products easier for everyone to learn and use:
    a. Use standard colors and shapes and group similar functions 
together. On products which have some controls that are used by everyone 
and other controls which would only be used by advanced users, it is 
generally good practice to separate the two, putting the more advanced 
features behind a door or under a separate menu item.
    b. Products which read the contents of the display aloud, or 
controls which announce their settings, are easier for individuals who 
have difficulty reading.
    c. Design products that are self-adjusting to eliminate additional 
controls which must be learned, and reduce the visual clutter.
    d. On products which have sign-in procedures, allow user settings to 
be associated with them when they sign in or insert their identification 
card. The system can then autoconfigure to them. Some new ``smart 
cards'' are being designed with user preferences encoded on the card.
    e. Where a complex series of steps is required, provide cuing to 
help lead the person through the process. It is also helpful to provide 
an ``undo'' or back up function, so that any mistakes can be easily 
corrected. Most people will find this function helpful.
    f. Where functions are not reversible, request some type of 
confirmation from the user before proceeding. On labels and 
instructions, it is helpful to use short and simple phrases or 
sentences. Avoid abbreviations wherever possible. Eliminate the need to 
respond within a certain time or to read text within a certain time.

         Section 1193.43 Output, Displays, and Control Functions

                              Paragraph (a)

                   Availability of Visual Information

    1. Just as persons with visual or cognitive disabilities need to be 
able to operate the input, controls, and mechanical functions of a 
product, they must also have access to the output functions.
    2. The following are strategies for addressing this provision:
    a. Provide speech output of all displayed text and labels. For 
information which is presented in non-text form (e.g., a picture or 
graphic), provide a verbal description unless the graphic is just 
decorative. When speech output is provided, allow for the spoken message 
to be repeated if the message is very long. Also, if the information 
being provided is personal in nature, it is recommended that headphones 
be provided in order to assure privacy. A message for stepping through 
menus is also helpful.
    b. Providing Braille labels for controls is an extremely effective 
mechanism for those individuals who read Braille.
    c. Large raised print can also be used but is generally restricted 
to rather large objects due to the size of the letters.

                              Paragraph (b)

         Availability of Visual Information for Low Vision Users

    1. Individuals with low vision often also have hearing disabilities, 
especially older individuals. These persons cannot rely solely on audio 
access modes commonly used by people who are blind. Tactile strategies 
are still quite useful. Many people who have low vision can use their 
vision to access visually presented information on a product.
    2. Strategies for meeting this provision involve:
    a. Provide larger, higher contrast text and graphics. Individuals 
with 20/200 vision can see lettering if they get close to it, unless it 
is very small or has very poor contrast. Although 14 or 18 point type is 
recommended for visual displays, it is usually not possible to put this 
size text on small products.
    b. Make the lettering as large and high contrast as possible to 
maximize the number of people who can use the product.
    c. On displays where the font size can be varied, allow the user to 
increase the font size, even if it means that the user must pan or move 
in order to see the full display.

                              Paragraph (c)

                          Access to Moving Text

    1. Moving text can be an access problem because individuals with low 
vision, or other disabilities may find it difficult or impossible to 
track moving text with their eyes.
    2. Strategies to address this requirement may include the following:
    a. Provide a mechanism for freezing the text. Thus, persons could 
read the stationary text and obtain the same information.
    b. Provide scrolling to display one full line at a time, with a 
pause before the next line replaces it.
    c. Provide the same information in another type of display which 
does not move. The

[[Page 673]]

right-to-left scrolling text on a TTY does not usually present a problem 
because it can be controlled by asking the sender to type slower or 
pause at specified intervals.

                              Paragraph (d)

                  Availability of Auditory Information

    1. Individuals who have hearing disabilities are unable to receive 
auditory output, or mechanical and other sounds that are emitted by a 
product. These sounds are often important for the safe or effective 
operation of the product. Therefore, information which is presented 
auditorial should be available to all users.
    2. Some strategies to achieve this include the following:
    a. Provide a visual or tactile signal that will attract the person's 
attention and alert the user to a call, page, or other message, or to 
warn the user of significant mechanical difficulties in the product.
    b. In portable products, a tactile signal such as vibration is often 
more effective than a visual signal because a visual signal may be 
missed. An auxiliary vibrating signaler might be effective if it is not 
readily achievable or effective to build vibration into a portable 
product.
    c. For stationary products, a prominent visual indicator in the 
field of vision (e.g., a screen flash for a computer, or a flashing 
light for a telephone) is effective. To inform the user of the status of 
a process (e.g., line status on a telephone call, power on, saving to 
disk, or disconnected), text messages may be used. It is also desirable 
to have an image or light that is activated whenever acoustic energy is 
present on a telephone line.
    d. Speech messages should be portrayed simultaneously in text form 
and displayed where easily seen by the user. Such captions should 
usually be verbatim and displayed long enough to be easily read. If the 
product provides speech messages and the user must respond to those 
messages (e.g., interactive voice response and voice mail), a TTY 
accessible method of accessing the product could be provided.
    e. TTY to TTY long distance and message unit calls from pay 
telephones are often not possible because an operator says how much 
money must be deposited. Technology exists to have this information 
displayed on the telephone and a test installation is currently 
operating at the Butler plaza on the Pennsylvania Turnpike. In addition, 
if the product provides interactive communication using speech and 
video, it would be helpful to provide a method and channel for allowing 
non-speech communication (e.g., text conversation) in parallel with the 
video.
    f. Certain operations of products make sounds that give status 
information, although these sounds are not programmed signals. Examples 
include the whir of an operating disk drive and the click of a key being 
pushed. Where sounds of this type provide information important for 
operating the product, such as a ``beep'' when a key is activated, 
provide a light or other visual confirmation of activation.

                              Paragraph (e)

 Availability of Auditory Information for People Who Are Hard of Hearing

    1. People who are hard of hearing but not deaf can often use their 
hearing to access auditory information on a product.
    2. Strategies for addressing this requirement may include the 
following:
    a. Improve the signal to noise ratio by making the volume 
adjustable, between 18-25 dB, increasing the maximum undistorted volume, 
and minimizing background noise by such methods as better coupling 
between the signal source and the user.
    b. Alerting tones are most likely to be heard if they involve 
multiple tones, separated in frequency, which contrast with the 
environment.
    c. Occasionally, varying tones may be preferred for attracting 
attention. If speech is used, it is best to test its intelligibility 
with individuals who are hard of hearing to maximize its clarity and 
ease of understanding. Provide the ability for the user to have any 
messages repeated or to repeat the message if no response is received 
from the user.
    d. For essential auditory information, the information might be 
repeated and an acknowledgment from the user requested.
    e. The intelligibility of the output can also be maximized by the 
location of the speakers and by keeping the speakers away from noise 
sources. However, visual displays are often more desirable than loud 
prompts or alerts, because the latter reduce privacy and can annoy 
others unless the amplified signal is isolated by means of a headphone, 
induction coupling, direct plug-in to a hearing aid, or other methods.
    f. The use of a telephone handset or earcup which can be held up to 
the ear can improve intelligibility without disturbing others in the 
area. If a handset or earcup is used, making it compatible with a 
hearing aid allows users to directly couple the auditory signal to their 
hearing aids. If the microphone in the handset is not being used, 
turning it off will also reduce the amount of background noise which the 
person hears in the earpiece. Providing a headphone jack also allows 
individuals to plug in headphones, induction loops, or amplifiers which 
they may use to hear better.

                              Paragraph (f)

                 Prevention of Visually-Induced Seizures

    1. Individuals with photo-sensitive epilepsy can have a seizure 
triggered by displays

[[Page 674]]

which flicker or flash, particularly if the flash has a high intensity 
and within certain frequency ranges.
    2. Strategies to address this requirement involve reducing or 
eliminating screen flicker or image flashing to the extent possible. In 
particular, the rates of 2 Hz or lower or 70 Hz or higher are 
recommended. This recommendation reflects current research data on 
people with photosensitive epilepsy which indicates that the peak 
sensitivity for these individuals is 20 Hz and that the sensitivity then 
drops off in both directions.
    3. The chance of triggering seizures can also be reduced by avoiding 
very bright flashes which occupy a large part of the visual field 
(particularly in the center of the visual field) in order to minimize 
the impact on the visual cortex.

                              Paragraph (g)

                      Availability of Audio Cutoff

    1. Individuals using the audio access mode, as well as those using a 
product with the volume turned up, need a way to limit the range of 
audio broadcast.
    2. If an audio headphone jack is provided, a cut-off switch can be 
included in the jack so that insertion of the jack would cut off the 
speaker. If a telephone-like handset is used, the external speakers can 
be turned off when the handset is removed from the cradle.

                              Paragraph (h)

               Non-Interference With Hearing Technologies

    1. Individuals who are hard of hearing use hearing aids and other 
assistive listening devices but these devices cannot be used if a 
telecommunications product introduces noise into the listening aids 
because of stray electromagnetic interference.
    2. Strategies for reducing this interference (as well as improving 
hearing aid immunity) are being researched. The most desirable strategy 
is to avoid the root causes of interference when a product is initially 
designed. If the root sources of interference cannot be removed, then 
shielding, placement of components to avoid hearing aid interference, 
and field-canceling techniques may be effective. Standards are being 
developed to limit interference to acceptable levels, but complete 
elimination for some technologies may not yet be practical.
    3. In April 1996, the American National Standards Institute (ANSI) 
established a task group (ANSI C63) under its subcommittee on medical 
devices to develop standards to measure hearing aid compatibility and 
accessibility to digital wireless telecommunications. The C63.19 task 
group is continuing to develop its standard, C63.19-199X, American 
National Standard for Methods of Measurement for Hearing Aid 
Compatibility with Wireless Communications Devices. When the standard is 
completed, the Board intends to reference it in this appendix.

                              Paragraph (i)

                          Hearing Aid Coupling

    1. Many individuals who are hard of hearing use hearing aids with a 
T-coil (or telecoil) feature to allow them to listen to audio output of 
products without picking up background noise and to avoid problems with 
feedback, signal attenuation or degradation.
    2. The Hearing Aid Compatibility (HAC) Act defines a telephone as 
hearing aid compatible if it provides internal means for effective use 
with hearing aids and meets established technical standards for hearing 
aid compatibility.
    3. The technical standards for HAC telephones are specified in ANSI/
EIA-504-1989, ``Magnetic Field Intensity Criteria for Telephone 
Compatibility with Hearing Aids,'' ANSI/TIA/EIA-504-1-1994, ``An 
Addendum to EIA-504,'' which adds the HAC requirements, and the FCC 
regulations at 47 CFR 68.317 (a).
    4. A good strategy for addressing this requirement for any product 
held up to the ear would be to meet these same technical requirements. 
If not readily achievable to provide built-in telecoil compatibility, 
other means of providing the electro-magnetic signal is the next 
strategy to be considered.

 Subpart D--Requirements for Compatibility With Peripheral Devices and 
                 Specialized Customer Premises Equipment

                      Section 1193.51 Compatibility

                              Paragraph (a)

  External Electronic Access to All Information and Control Mechanisms

    1. Some individuals with severe or multiple disabilities are unable 
to use the built-in displays and control mechanisms on a product.
    2. The two most common forms of manipulation-free connections are an 
infrared connection or a radio frequency connection point. Currently, 
the Infrared Data Association (IrDA) infrared connection point is the 
most universally used approach.
    3. The Infrared Data Association together with dominant market 
players in the cellular and paging industries, Ericsson, Matsushita/
Panasonic, Motorola, NEC, Nokia, NTT DoCoMo, Puma, and TU-KA Phone 
Kansai, announced on April 25, 1997 a proposed set of standards that 
will empower wireless communication devices, such as cellular phones, 
pagers and personal computers to transfer useful information over short 
distances using IrDA infrared data communication ports. Because the 
proposed standard is designed to be scalable, it is easy-to-adopt by a 
wide range of wireless devices from pagers

[[Page 675]]

to more enhanced communications tools such as smart phones. (See http://
www.irda.org).
    4. Adding an infrared connector to the serial port of a peripheral 
device or specialized customer premises equipment will make these 
products more compatible with each other and with customer premises 
equipment.
    5. An infrared link can provide a mechanism for providing access to 
smaller, more advanced telecommunication devices and provide a safety 
net for products which are unable to incorporate other technologies. 
There is a joint international effort to develop a Universal Remote 
Console Communication (URCC) protocol which would achieve this 
functionality. (See http://trace.wisc.edu/world/urc/).

                              Paragraph (b)

         Connection Point for External Audio Processing Devices

    1. Individuals using audio peripheral devices such as amplifiers, 
telecoil adapters, or direct-connection into a hearing aid need a 
standard, noise free way to tap into the audio generated by a product.
    2. Individuals who cannot hear well can often use products if they 
can isolate and enhance the audio output. For example, they could plug 
in a headphone which makes the audio louder and helps shut out 
background noise; they might feed the signal through an amplifier to 
make it louder, or through filters or frequency shifters to make it 
better fit their audio profile. If they are wearing a hearing aid, they 
may directly connect their hearing aid to the audio signal or plug in a 
small audio loop which allows them to couple the audio signal through 
their hearing aid's built-in T-coil.
    3. Devices which can process the information and provide visual and/
or tactile output are also possible. The most common strategy for 
achieving this requirement is the use of a standard 9 mm miniature plug-
in jack, common to virtually every personal tape player or radio. For 
small products, a subminiature phone jack could be used.

                              Paragraph (c)

               Compatibility of Controls With Prosthetics

    1. Individuals who have artificial hands or use headsticks or 
mouthsticks to operate products have difficulty with capacitive or heat-
operated controls which require contact with a person's body rather than 
a tool. Individuals who wear prosthetics are unable to operate some 
types of products because they either require motions that cannot easily 
be made with a prosthetic hand, or because products are designed which 
require touch of the human skin to operate them (e.g., capacitive 
touchscreen kiosks), making it impossible for individuals with 
artificial arms or hands to operate, except perhaps with their nose or 
chin. Some individuals who do not have the use of their arms use either 
a headstick or a mouthstick to operate products. Controls and mechanisms 
which require a grasping and twisting motion should be avoided.

                              Paragraph (d)

                           TTY Connectability

    1. Acoustic coupling is subject to interference from ambient noise, 
as many handsets do not provide an adequate seal with TTYs. Therefore, 
alternate (non-acoustic) connections are needed. Control of the 
microphone is needed for situations such as pay-phone usage, where 
ambient noise picked up by the mouthpiece often garbles the signal. For 
the use of voice carry-over, where the person can speak but not hear, 
the user needs to be able to turn the microphone on to speak and off to 
allow them to receive the TTY text replies.
    2. A TTY can be connected to and used with any telecommunications 
product supporting speech communication without requiring purchase of a 
special adapter, and the user is able to intermix speech and clear TTY 
communication. The most common approach today is to provide an RJ-11 
jack. On very small products, where there may not be room for this large 
jack, a miniature or subminiature phone-jack wired as a ``headset'' jack 
(with both speaker and microphone connections) could be used as an 
alternate approach. In either case, a mechanism for turning the phone 
mouthpiece (microphone) on and off would reduce garbling in noisy 
environments, while allowing the user to speak into the microphone when 
desired (to conduct conversations with mixed voice and TTY). For 
equipment that combines voice communications, displays, keyboards and 
data communication functions, it is desirable to build in direct TTY 
capability.

                              Paragraph (e)

                        TTY Signal Compatibility

    1. Some telecommunications systems compress the audio signal in such 
a manner that standard signals used by a TTY is distorted or attenuated 
preventing successful TTY communication over the system. A TTY can be 
used with any product providing voice communication function.
    2. The de facto standard of domestic TTYs is Baudot which has been 
defined in ITU-T Recommendation V.18. Although the V.18 standard has 
been adopted, products are not yet available which meet its 
requirements.
    3. This provision can be addressed by ensuring that the tones used 
can travel

[[Page 676]]

through the phones compression circuits undistorted. It is even more 
desirable to provide undistorted connectivity to the telephone line in 
the frequency range of 390 Hz to 2300 Hz (ITU-T Recommendation V.18), as 
this range covers all of the TTY protocols known throughout the world. 
Although it may not be achievable with current technology, an alternate 
strategy might be to recognize the tones, transmit them as codes, and 
resynthesize them at the other end. In addition, it should be possible 
for individuals using TTYs to conduct conversations with mixed voice and 
TTY, and to control all aspects of the product and receive any messages 
generated by the product.



PART 1194_ELECTRONIC AND INFORMATION TECHNOLOGY ACCESSIBILITY STANDARDS--Table 

of Contents




                            Subpart A_General

Sec.
1194.1 Purpose.
1194.2 Application.
1194.3 General exceptions.
1194.4 Definitions.
1194.5 Equivalent facilitation.

                      Subpart B_Technical Standards

1194.21 Software applications and operating systems.
1194.22 Web-based intranet and internet information and applications.
1194.23 Telecommunications products.
1194.24 Video and multimedia products.
1194.25 Self contained, closed products.
1194.26 Desktop and portable computers.

                Subpart C_Functional Performance Criteria

1194.31 Functional performance criteria.

            Subpart D_Information, Documentation, and Support

1194.41 Information, documentation, and support.

Figures to Part 1194

    Authority: 29 U.S.C. 794d.

    Source: 65 FR 80523, Dec. 21, 2000, unless otherwise noted.



                            Subpart A_General



Sec. 1194.1  Purpose.

    The purpose of this part is to implement section 508 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 794d). Section 508 
requires that when Federal agencies develop, procure, maintain, or use 
electronic and information technology, Federal employees with 
disabilities have access to and use of information and data that is 
comparable to the access and use by Federal employees who are not 
individuals with disabilities, unless an undue burden would be imposed 
on the agency. Section 508 also requires that individuals with 
disabilities, who are members of the public seeking information or 
services from a Federal agency, have access to and use of information 
and data that is comparable to that provided to the public who are not 
individuals with disabilities, unless an undue burden would be imposed 
on the agency.



Sec. 1194.2  Application.

    (a) Products covered by this part shall comply with all applicable 
provisions of this part. When developing, procuring, maintaining, or 
using electronic and information technology, each agency shall ensure 
that the products comply with the applicable provisions of this part, 
unless an undue burden would be imposed on the agency.
    (1) When compliance with the provisions of this part imposes an 
undue burden, agencies shall provide individuals with disabilities with 
the information and data involved by an alternative means of access that 
allows the individual to use the information and data.
    (2) When procuring a product, if an agency determines that 
compliance with any provision of this part imposes an undue burden, the 
documentation by the agency supporting the procurement shall explain 
why, and to what extent, compliance with each such provision creates an 
undue burden.
    (b) When procuring a product, each agency shall procure products 
which comply with the provisions in this part when such products are 
available in the commercial marketplace or when such products are 
developed in response to a Government solicitation. Agencies cannot 
claim a product as a whole is not commercially available because no 
product in the marketplace meets all the standards. If products are 
commercially available that meet some but not all of the standards, the 
agency must procure the product that best meets the standards.

[[Page 677]]

    (c) Except as provided by Sec. 1194.3(b), this part applies to 
electronic and information technology developed, procured, maintained, 
or used by agencies directly or used by a contractor under a contract 
with an agency which requires the use of such product, or requires the 
use, to a significant extent, of such product in the performance of a 
service or the furnishing of a product.



Sec. 1194.3  General exceptions.

    (a) This part does not apply to any electronic and information 
technology operated by agencies, the function, operation, or use of 
which involves intelligence activities, cryptologic activities related 
to national security, command and control of military forces, equipment 
that is an integral part of a weapon or weapons system, or systems which 
are critical to the direct fulfillment of military or intelligence 
missions. Systems which are critical to the direct fulfillment of 
military or intelligence missions do not include a system that is to be 
used for routine administrative and business applications (including 
payroll, finance, logistics, and personnel management applications).
    (b) This part does not apply to electronic and information 
technology that is acquired by a contractor incidental to a contract.
    (c) Except as required to comply with the provisions in this part, 
this part does not require the installation of specific accessibility-
related software or the attachment of an assistive technology device at 
a workstation of a Federal employee who is not an individual with a 
disability.
    (d) When agencies provide access to the public to information or 
data through electronic and information technology, agencies are not 
required to make products owned by the agency available for access and 
use by individuals with disabilities at a location other than that where 
the electronic and information technology is provided to the public, or 
to purchase products for access and use by individuals with disabilities 
at a location other than that where the electronic and information 
technology is provided to the public.
    (e) This part shall not be construed to require a fundamental 
alteration in the nature of a product or its components.
    (f) Products located in spaces frequented only by service personnel 
for maintenance, repair, or occasional monitoring of equipment are not 
required to comply with this part.



Sec. 1194.4  Definitions.

    The following definitions apply to this part:
    Agency. Any Federal department or agency, including the United 
States Postal Service.
    Alternate formats. Alternate formats usable by people with 
disabilities may include, but are not limited to, Braille, ASCII text, 
large print, recorded audio, and electronic formats that comply with 
this part.
    Alternate methods. Different means of providing information, 
including product documentation, to people with disabilities. Alternate 
methods may include, but are not limited to, voice, fax, relay service, 
TTY, Internet posting, captioning, text-to-speech synthesis, and audio 
description.
    Assistive technology. Any item, piece of equipment, or system, 
whether acquired commercially, modified, or customized, that is commonly 
used to increase, maintain, or improve functional capabilities of 
individuals with disabilities.
    Electronic and information technology. Includes information 
technology and any equipment or interconnected system or subsystem of 
equipment, that is used in the creation, conversion, or duplication of 
data or information. The term electronic and information technology 
includes, but is not limited to, telecommunications products (such as 
telephones), information kiosks and transaction machines, World Wide Web 
sites, multimedia, and office equipment such as copiers and fax 
machines. The term does not include any equipment that contains embedded 
information technology that is used as an integral part of the product, 
but the principal function of which is not the acquisition, storage, 
manipulation, management, movement, control, display, switching, 
interchange, transmission, or reception of data or information.

[[Page 678]]

For example, HVAC (heating, ventilation, and air conditioning) equipment 
such as thermostats or temperature control devices, and medical 
equipment where information technology is integral to its operation, are 
not information technology.
    Information technology. Any equipment or interconnected system or 
subsystem of equipment, that is used in the automatic acquisition, 
storage, manipulation, management, movement, control, display, 
switching, interchange, transmission, or reception of data or 
information. The term information technology includes computers, 
ancillary equipment, software, firmware and similar procedures, services 
(including support services), and related resources.
    Operable controls. A component of a product that requires physical 
contact for normal operation. Operable controls include, but are not 
limited to, mechanically operated controls, input and output trays, card 
slots, keyboards, or keypads.
    Product. Electronic and information technology.
    Self Contained, Closed Products. Products that generally have 
embedded software and are commonly designed in such a fashion that a 
user cannot easily attach or install assistive technology. These 
products include, but are not limited to, information kiosks and 
information transaction machines, copiers, printers, calculators, fax 
machines, and other similar types of products.
    Telecommunications. The transmission, between or among points 
specified by the user, of information of the user's choosing, without 
change in the form or content of the information as sent and received.
    TTY. An abbreviation for teletypewriter. Machinery or equipment that 
employs interactive text based communications through the transmission 
of coded signals across the telephone network. TTYs may include, for 
example, devices known as TDDs (telecommunication display devices or 
telecommunication devices for deaf persons) or computers with special 
modems. TTYs are also called text telephones.
    Undue burden. Undue burden means significant difficulty or expense. 
In determining whether an action would result in an undue burden, an 
agency shall consider all agency resources available to the program or 
component for which the product is being developed, procured, 
maintained, or used.



Sec. 1194.5  Equivalent facilitation.

    Nothing in this part is intended to prevent the use of designs or 
technologies as alternatives to those prescribed in this part provided 
they result in substantially equivalent or greater access to and use of 
a product for people with disabilities.



                      Subpart B_Technical Standards



Sec. 1194.21  Software applications and operating systems.

    (a) When software is designed to run on a system that has a 
keyboard, product functions shall be executable from a keyboard where 
the function itself or the result of performing a function can be 
discerned textually.
    (b) Applications shall not disrupt or disable activated features of 
other products that are identified as accessibility features, where 
those features are developed and documented according to industry 
standards. Applications also shall not disrupt or disable activated 
features of any operating system that are identified as accessibility 
features where the application programming interface for those 
accessibility features has been documented by the manufacturer of the 
operating system and is available to the product developer.
    (c) A well-defined on-screen indication of the current focus shall 
be provided that moves among interactive interface elements as the input 
focus changes. The focus shall be programmatically exposed so that 
assistive technology can track focus and focus changes.
    (d) Sufficient information about a user interface element including 
the identity, operation and state of the element shall be available to 
assistive technology. When an image represents a program element, the 
information conveyed by the image must also be available in text.
    (e) When bitmap images are used to identify controls, status 
indicators, or

[[Page 679]]

other programmatic elements, the meaning assigned to those images shall 
be consistent throughout an application's performance.
    (f) Textual information shall be provided through operating system 
functions for displaying text. The minimum information that shall be 
made available is text content, text input caret location, and text 
attributes.
    (g) Applications shall not override user selected contrast and color 
selections and other individual display attributes.
    (h) When animation is displayed, the information shall be 
displayable in at least one non-animated presentation mode at the option 
of the user.
    (i) Color coding shall not be used as the only means of conveying 
information, indicating an action, prompting a response, or 
distinguishing a visual element.
    (j) When a product permits a user to adjust color and contrast 
settings, a variety of color selections capable of producing a range of 
contrast levels shall be provided.
    (k) Software shall not use flashing or blinking text, objects, or 
other elements having a flash or blink frequency greater than 2 Hz and 
lower than 55 Hz.
    (l) When electronic forms are used, the form shall allow people 
using assistive technology to access the information, field elements, 
and functionality required for completion and submission of the form, 
including all directions and cues.



Sec. 1194.22  Web-based intranet and internet information and applications.

    (a) A text equivalent for every non-text element shall be provided 
(e.g., via ``alt'', ``longdesc'', or in element content).
    (b) Equivalent alternatives for any multimedia presentation shall be 
synchronized with the presentation.
    (c) Web pages shall be designed so that all information conveyed 
with color is also available without color, for example from context or 
markup.
    (d) Documents shall be organized so they are readable without 
requiring an associated style sheet.
    (e) Redundant text links shall be provided for each active region of 
a server-side image map.
    (f) Client-side image maps shall be provided instead of server-side 
image maps except where the regions cannot be defined with an available 
geometric shape.
    (g) Row and column headers shall be identified for data tables.
    (h) Markup shall be used to associate data cells and header cells 
for data tables that have two or more logical levels of row or column 
headers.
    (i) Frames shall be titled with text that facilitates frame 
identification and navigation.
    (j) Pages shall be designed to avoid causing the screen to flicker 
with a frequency greater than 2 Hz and lower than 55 Hz.
    (k) A text-only page, with equivalent information or functionality, 
shall be provided to make a web site comply with the provisions of this 
part, when compliance cannot be accomplished in any other way. The 
content of the text-only page shall be updated whenever the primary page 
changes.
    (l) When pages utilize scripting languages to display content, or to 
create interface elements, the information provided by the script shall 
be identified with functional text that can be read by assistive 
technology.
    (m) When a web page requires that an applet, plug-in or other 
application be present on the client system to interpret page content, 
the page must provide a link to a plug-in or applet that complies with 
Sec. 1194.21(a) through (l).
    (n) When electronic forms are designed to be completed on-line, the 
form shall allow people using assistive technology to access the 
information, field elements, and functionality required for completion 
and submission of the form, including all directions and cues.
    (o) A method shall be provided that permits users to skip repetitive 
navigation links.
    (p) When a timed response is required, the user shall be alerted and 
given sufficient time to indicate more time is required.

    Note to Sec. 1194.22: 1. The Board interprets paragraphs (a) 
through (k) of this section as consistent with the following priority 1

[[Page 680]]

Checkpoints of the Web Content Accessibility Guidelines 1.0 (WCAG 1.0) 
(May 5, 1999) published by the Web Accessibility Initiative of the World 
Wide Web Consortium:

------------------------------------------------------------------------
                                                               WCAG 1.0
                 Section 1194.22  paragraph                   checkpoint
------------------------------------------------------------------------
(a)........................................................          1.1
(b)........................................................          1.4
(c)........................................................          2.1
(d)........................................................          6.1
(e)........................................................          1.2
(f)........................................................          9.1
(g)........................................................          5.1
(h)........................................................          5.2
(i)........................................................         12.1
(j)........................................................          7.1
(k)........................................................         11.4
------------------------------------------------------------------------

     2. Paragraphs (l), (m), (n), (o), and (p) of this section are 
different from WCAG 1.0. Web pages that conform to WCAG 1.0, level A 
(i.e., all priority 1 checkpoints) must also meet paragraphs (l), (m), 
(n), (o), and (p) of this section to comply with this section. WCAG 1.0 
is available at http://www.w3.org/TR/1999/WAI-WEBCONTENT-19990505.



Sec. 1194.23  Telecommunications products.

    (a) Telecommunications products or systems which provide a function 
allowing voice communication and which do not themselves provide a TTY 
functionality shall provide a standard non-acoustic connection point for 
TTYs. Microphones shall be capable of being turned on and off to allow 
the user to intermix speech with TTY use.
    (b) Telecommunications products which include voice communication 
functionality shall support all commonly used cross-manufacturer non-
proprietary standard TTY signal protocols.
    (c) Voice mail, auto-attendant, and interactive voice response 
telecommunications systems shall be usable by TTY users with their TTYs.
    (d) Voice mail, messaging, auto-attendant, and interactive voice 
response telecommunications systems that require a response from a user 
within a time interval, shall give an alert when the time interval is 
about to run out, and shall provide sufficient time for the user to 
indicate more time is required.
    (e) Where provided, caller identification and similar 
telecommunications functions shall also be available for users of TTYs, 
and for users who cannot see displays.
    (f) For transmitted voice signals, telecommunications products shall 
provide a gain adjustable up to a minimum of 20 dB. For incremental 
volume control, at least one intermediate step of 12 dB of gain shall be 
provided.
    (g) If the telecommunications product allows a user to adjust the 
receive volume, a function shall be provided to automatically reset the 
volume to the default level after every use.
    (h) Where a telecommunications product delivers output by an audio 
transducer which is normally held up to the ear, a means for effective 
magnetic wireless coupling to hearing technologies shall be provided.
    (i) Interference to hearing technologies (including hearing aids, 
cochlear implants, and assistive listening devices) shall be reduced to 
the lowest possible level that allows a user of hearing technologies to 
utilize the telecommunications product.
    (j) Products that transmit or conduct information or communication, 
shall pass through cross-manufacturer, non-proprietary, industry-
standard codes, translation protocols, formats or other information 
necessary to provide the information or communication in a usable 
format. Technologies which use encoding, signal compression, format 
transformation, or similar techniques shall not remove information 
needed for access or shall restore it upon delivery.
    (k) Products which have mechanically operated controls or keys, 
shall comply with the following:
    (1) Controls and keys shall be tactilely discernible without 
activating the controls or keys.
    (2) Controls and keys shall be operable with one hand and shall not 
require tight grasping, pinching, or twisting of the wrist. The force 
required to activate controls and keys shall be 5 lbs. (22.2 N) maximum.
    (3) If key repeat is supported, the delay before repeat shall be 
adjustable to at least 2 seconds. Key repeat rate shall be adjustable to 
2 seconds per character.
    (4) The status of all locking or toggle controls or keys shall be 
visually discernible, and discernible either through touch or sound.

[[Page 681]]



Sec. 1194.24  Video and multimedia products.

    (a) All analog television displays 13 inches and larger, and 
computer equipment that includes analog television receiver or display 
circuitry, shall be equipped with caption decoder circuitry which 
appropriately receives, decodes, and displays closed captions from 
broadcast, cable, videotape, and DVD signals. As soon as practicable, 
but not later than July 1, 2002, widescreen digital television (DTV) 
displays measuring at least 7.8 inches vertically, DTV sets with 
conventional displays measuring at least 13 inches vertically, and 
stand-alone DTV tuners, whether or not they are marketed with display 
screens, and computer equipment that includes DTV receiver or display 
circuitry, shall be equipped with caption decoder circuitry which 
appropriately receives, decodes, and displays closed captions from 
broadcast, cable, videotape, and DVD signals.
    (b) Television tuners, including tuner cards for use in computers, 
shall be equipped with secondary audio program playback circuitry.
    (c) All training and informational video and multimedia productions 
which support the agency's mission, regardless of format, that contain 
speech or other audio information necessary for the comprehension of the 
content, shall be open or closed captioned.
    (d) All training and informational video and multimedia productions 
which support the agency's mission, regardless of format, that contain 
visual information necessary for the comprehension of the content, shall 
be audio described.
    (e) Display or presentation of alternate text presentation or audio 
descriptions shall be user-selectable unless permanent.



Sec. 1194.25  Self contained, closed products.

    (a) Self contained products shall be usable by people with 
disabilities without requiring an end-user to attach assistive 
technology to the product. Personal headsets for private listening are 
not assistive technology.
    (b) When a timed response is required, the user shall be alerted and 
given sufficient time to indicate more time is required.
    (c) Where a product utilizes touchscreens or contact-sensitive 
controls, an input method shall be provided that complies with Sec. 
1194.23 (k) (1) through (4).
    (d) When biometric forms of user identification or control are used, 
an alternative form of identification or activation, which does not 
require the user to possess particular biological characteristics, shall 
also be provided.
    (e) When products provide auditory output, the audio signal shall be 
provided at a standard signal level through an industry standard 
connector that will allow for private listening. The product must 
provide the ability to interrupt, pause, and restart the audio at 
anytime.
    (f) When products deliver voice output in a public area, incremental 
volume control shall be provided with output amplification up to a level 
of at least 65 dB. Where the ambient noise level of the environment is 
above 45 dB, a volume gain of at least 20 dB above the ambient level 
shall be user selectable. A function shall be provided to automatically 
reset the volume to the default level after every use.
    (g) Color coding shall not be used as the only means of conveying 
information, indicating an action, prompting a response, or 
distinguishing a visual element.
    (h) When a product permits a user to adjust color and contrast 
settings, a range of color selections capable of producing a variety of 
contrast levels shall be provided.
    (i) Products shall be designed to avoid causing the screen to 
flicker with a frequency greater than 2 Hz and lower than 55 Hz.
    (j) Products which are freestanding, non-portable, and intended to 
be used in one location and which have operable controls shall comply 
with the following:
    (1) The position of any operable control shall be determined with 
respect to a vertical plane, which is 48 inches in length, centered on 
the operable control, and at the maximum protrusion of the product 
within the 48 inch length (see Figure 1 of this part).

[[Page 682]]

    (2) Where any operable control is 10 inches or less behind the 
reference plane, the height shall be 54 inches maximum and 15 inches 
minimum above the floor.
    (3) Where any operable control is more than 10 inches and not more 
than 24 inches behind the reference plane, the height shall be 46 inches 
maximum and 15 inches minimum above the floor.
    (4) Operable controls shall not be more than 24 inches behind the 
reference plane (see Figure 2 of this part).



Sec. 1194.26  Desktop and portable computers.

    (a) All mechanically operated controls and keys shall comply with 
Sec. 1194.23(k)(1) through (4).
    (b) If a product utilizes touchscreens or touch-operated controls, 
an input method shall be provided that complies with Sec. 1194.23 (k) 
(1) through (4).
    (c) When biometric forms of user identification or control are used, 
an alternative form of identification or activation, which does not 
require the user to possess particular biological characteristics, shall 
also be provided.
    (d) Where provided, at least one of each type of expansion slots, 
ports and connectors shall comply with publicly available industry 
standards.



                Subpart C_Functional Performance Criteria



Sec. 1194.31  Functional performance criteria.

    (a) At least one mode of operation and information retrieval that 
does not require user vision shall be provided, or support for assistive 
technology used by people who are blind or visually impaired shall be 
provided.
    (b) At least one mode of operation and information retrieval that 
does not require visual acuity greater than 20/70 shall be provided in 
audio and enlarged print output working together or independently, or 
support for assistive technology used by people who are visually 
impaired shall be provided.
    (c) At least one mode of operation and information retrieval that 
does not require user hearing shall be provided, or support for 
assistive technology used by people who are deaf or hard of hearing 
shall be provided.
    (d) Where audio information is important for the use of a product, 
at least one mode of operation and information retrieval shall be 
provided in an enhanced auditory fashion, or support for assistive 
hearing devices shall be provided.
    (e) At least one mode of operation and information retrieval that 
does not require user speech shall be provided, or support for assistive 
technology used by people with disabilities shall be provided.
    (f) At least one mode of operation and information retrieval that 
does not require fine motor control or simultaneous actions and that is 
operable with limited reach and strength shall be provided.



            Subpart D_Information, Documentation, and Support



Sec. 1194.41  Information, documentation, and support.

    (a) Product support documentation provided to end-users shall be 
made available in alternate formats upon request, at no additional 
charge.
    (b) End-users shall have access to a description of the 
accessibility and compatibility features of products in alternate 
formats or alternate methods upon request, at no additional charge.
    (c) Support services for products shall accommodate the 
communication needs of end-users with disabilities.

[[Page 683]]



                        Sec. Figures to Part 1194

[GRAPHIC] [TIFF OMITTED] TR21DE00.000

                       PARTS 1195-1199 [RESERVED]

[[Page 685]]



        CHAPTER XII--NATIONAL ARCHIVES AND RECORDS ADMINISTRATION




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


  Editorial Note: Nomenclature changes to chapter XII appear at 69 FR 
18803, Apr. 9, 2004.

                       SUBCHAPTER A--GENERAL RULES
Part                                                                Page
1200            Official seals..............................         687
1201            Collection of claims........................         697
1202            Regulations implementing the Privacy Act of 
                    1974....................................         711
1206            National Historical Publications and Records 
                    Commission..............................         722
1207            Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    state and local governments.............         730
1208            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the National 
                    Archives and Records Administration.....         757
1210            Uniform administrative requirements for 
                    grants and agreements with institutions 
                    of higher education, hospitals, and 
                    other non-profit organizations..........         764
1211            Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving federal financial assistance..         789
1212            Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         811
                    SUBCHAPTER B--RECORDS MANAGEMENT
1220            Federal records; general....................         817
1222            Creation and maintenance of Federal records.         824
1228            Disposition of Federal records..............         830
1230            Micrographic records management.............         881
1232            Audiovisual records management..............         889
1234            Electronic records management...............         893
1236            Management of vital records.................         900

[[Page 686]]

1238            Program assistance..........................         903
                SUBCHAPTER C--PUBLIC AVAILABILITY AND USE
1250            Public availability and use of Federal 
                    Records.................................         904
1251            Testimony by NARA employees relating to 
                    agency information and production of 
                    records in legal proceedings............         913
1252            Public use of records, donated historical 
                    materials, and facilities; general......         919
1253            Location of records and hours of use........         920
1254            Using records and donated historical 
                    materials...............................         923
1256            Access to records and donated historical 
                    materials...............................         941
1258            Fees........................................         952
                     SUBCHAPTER D--DECLASSIFICATION
1260            Declassification of national security 
                    information.............................         955
                   SUBCHAPTER E--PRESIDENTIAL RECORDS
1270            Presidential records........................         965
               SUBCHAPTER F--NIXON PRESIDENTIAL MATERIALS
1275            Preservation and protection of and access to 
                    the Presidential historical materials of 
                    the Nixon Administration................         970
                      SUBCHAPTER G--NARA FACILITIES
1280            Use of NARA facilities......................         987
1281            Presidential library facilities.............         999
1284            Exhibits....................................        1003
                 SUBCHAPTER H--JFK ASSASSINATION RECORDS
1290            Guidance for interpretation and 
                    implementation of the President John F. 
                    Kennedy Assassination Records Collection 
                    Act of 1992 (JFK Act)...................        1005
1291-1299

 [Reserved]

[[Page 687]]



                       SUBCHAPTER A_GENERAL RULES



PART 1200_OFFICIAL SEALS--Table of Contents




                            Subpart A_General

Sec.
1200.1 Definitions.

  Subpart B_How are NARA's Official Seals and Logos Designed and Used?

1200.2 How is each NARA seal designed?
1200.4 How does NARA use its official seals?
1200.6 Who is authorized to apply the official seals on documents or 
          other materials?
1200.7 What are NARA logos and how are they used?

 Subpart C_Procedures for the Public To Request and Use NARA Seals and 
                                  Logos

1200.8 How do I request to use the official seals?
1200.10 What are NARA's criteria for approval?
1200.12 How does NARA notify me of the determination?
1200.14 What are NARA's conditions for the use of the official seals and 
          logos?

         Subpart D_Penalties for Misuse of NARA Seals and Logos

1200.16 Will I be penalized for misusing the official seals and logos?

    Authority: 18 U.S.C. 506, 701, and 1017; 44 U.S.C. 2104(e), 2116(b), 
2302.

    Source: 67 FR 72101, Dec. 4, 2002, unless otherwise noted.



                            Subpart A_General



Sec. 1200.1  Definitions.

    The following definitions apply to this part:
    Embossing seal means a display of the form and content of the 
official seal made on a die so that the seal can be embossed on paper or 
other medium.
    NARA means all organizational units of the National Archives and 
Records Administration.
    NARA logo means a name, trademark, service mark, or symbol used by 
NARA in connection with its programs, products, or services.
    Official seal means the original(s) of the seal showing the exact 
form and content.
    Replica or reproduction means a copy of an official seal or NARA 
logo displaying the form and content.

[67 FR 72101, Dec. 4, 2002, as amended at 69 FR 26046, May 11, 2004]



  Subpart B_How are NARA's Official Seals and Logos Designed and Used?



Sec. 1200.2  How is each NARA seal designed?

    NARA's three official seals are illustrated in Figures 1, 2, and 30.
    A description of each seal is as follows:
    (a) The National Archives and Records Administration seal. The 
design is illustrated below in Figure 1 and described as follows:
    (1) The seal is centered on a disc with a double-line border.
    (2) The words ``NATIONAL ARCHIVES AND RECORDS ADMINISTRATION'' 
encircle the inside of the seal and the date 1985 is at the bottom 
center.
    (3) A solid line rendition of a heraldic eagle displayed holding in 
its left talon 13 arrows, in its right talon a branch of olive, bearing 
on its breast a representation of the shield of the United States.
    (4) Displayed above the eagle's head is a partially unrolled scroll 
inscribed with the words ``LITTERA SCRIPTA MANET'' one above the other.

[[Page 688]]

[GRAPHIC] [TIFF OMITTED] TR04DE02.051

    (b) National Archives seal. The design is illustrated below and 
described as in paragraph (a) of this section. However, the words ``THE 
NATIONAL ARCHIVES OF THE UNITED STATES'' encircle the inside of the seal 
and the date 1934 is at the bottom center.

[[Page 689]]

[GRAPHIC] [TIFF OMITTED] TR04DE02.052

    (c) National Archives Trust Fund Board seal. The design is 
illustrated below and described as in paragraph (a) of this section. 
However, the words ``NATIONAL ARCHIVES TRUST FUND BOARD'' encircle the 
inside of the seal and the date 1941 is at the bottom center.

[[Page 690]]

[GRAPHIC] [TIFF OMITTED] TR04DE02.053



Sec. 1200.4  How does NARA use its official seals?

    NARA uses its three official seals to authenticate various copies of 
documents and for informational purposes as follows:
    (a) The National Archives and Records Administration seal, dated 
1985, is used:
    (1) For official business, e.g., stationery;
    (2) To authenticate copies of Federal records in NARA's temporary 
custody and copies of NARA operational records; and
    (3) For informational purposes with NARA's prior approval (includes 
use by NARA employees, the public, and other Federal agencies).
    (b) The National Archives seal, dated 1934, is used to authenticate 
copies of documents in NARA's permanent legal custody.
    (c) The National Archives Trust Fund Board seal, dated 1941, is used 
for Trust Fund documents and publications.



Sec. 1200.6  Who is authorized to apply the official seals on documents or 

other materials?

    The Archivist of the United States (and the Archivist's designee) is 
the only individual authorized to apply NARA official seals, embossing 
seals, and replicas and reproductions of seals to appropriate documents, 
authentications, and other material. NARA accepts requests to use the 
official seals and approves or denies them based on the criteria 
identified in Sec. 1200.10.



Sec. 1200.7  What are NARA logos and how are they used?

    (a) NARA's official logos include, but are not limited to, those 
illustrated as follows:
    (1) The Federal Records Center Program;

[[Page 691]]

[GRAPHIC] [TIFF OMITTED] TR09MY06.000

    (2) The National Historical Publications and Records Commission;
    [GRAPHIC] [TIFF OMITTED] TR09MY06.001
    
    (3) American Originals;
    [GRAPHIC] [TIFF OMITTED] TR11MY04.002
    
    (4) Electronic Records Archives;

[[Page 692]]

[GRAPHIC] [TIFF OMITTED] TR11MY04.003

    (5) The Archival Research Catalog;
    [GRAPHIC] [TIFF OMITTED] TR11MY04.004
    
    (6) The Archives Library Information Center;

[[Page 693]]

[GRAPHIC] [TIFF OMITTED] TR11MY04.005

    (7) Presidential Libraries; and
    [GRAPHIC] [TIFF OMITTED] TR11MY04.006
    
    (8) Federal Register publications.
    (i) Electronic Code of Federal Regulations.
    [GRAPHIC] [TIFF OMITTED] TR11MY04.007
    
    (ii) Regulations.gov and FedReg.gov Web sites.

[[Page 694]]

[GRAPHIC] [TIFF OMITTED] TR11MY04.008

    (iii) Federal Register paper edition.
    [GRAPHIC] [TIFF OMITTED] TR11MY04.009
    

[[Page 695]]


    (iv) Code of Federal Regulations paper edition.

    [GRAPHIC] [TIFF OMITTED] TR11MY04.010
    

[[Page 696]]


    (b) Other official NARA logos. For inquiries on other official NARA 
logos, contact the Office of General Counsel (NGC). Send written 
inquiries to the Office of General Counsel (NGC), Room 3110, 8601 
Adelphi Rd., College Park, MD 20740-6001.
    (c) NARA uses its logos for official business which includes but is 
not limited to:
    (1) Exhibits;
    (2) Publicity and other materials associated with a one-time or 
recurring NARA event or activity;
    (3) NARA Web sites (Intranet and Internet);
    (4) Officially approved internal and external publications; and
    (5) Presentations.
    (d) NARA logos may be used by the public and other Federal agencies 
for events or activities co-sponsored by NARA, but only with the 
approval of the Archivist. See subpart C for procedures to request 
approval for use.

[69 FR 26046, May 11, 2004, as amended at 71 FR 26834, May 9, 2006]



 Subpart C_Procedures for the Public To Request and Use NARA Seals and 
                                  Logos



Sec. 1200.8  How do I request to use the official seals?

    You may only use the official seals and logos if NARA approves your 
written request. Follow the procedures in this section to request 
authorization.
    (a) Prepare a written request explaining, in detail:
    (1) The name of the individual/organization requesting use and how 
it is associated with NARA;
    (2) Which of the official seals and/or logos you want to use and how 
each is going to be displayed. Provide a sample of the document or other 
material on which the seal(s) and/or logo(s) would appear, marking the 
sample in all places where the seal(s) and/or logo(s) would be 
displayed;
    (3) How the intended use of the official seal(s) and/or logo(s) is 
connected to your work with NARA on an event or activity (example: 
requesting to use the official NARA seal(s) and/or logo(s) on a program 
brochure, poster, or other publicity announcing a co-sponsored symposium 
or conference.); and
    (4) The dates of the event or activity for which you intend to 
display the seal(s) and/or logo(s).
    (b) You must submit the request at least six weeks before you intend 
to use it to the Archivist of the United States (N), 8601 Adelphi Rd., 
College Park, MD 20740-6001.
    (c) The OMB control number 3095-0052 has been assigned to the 
information collection contained in this section.

[67 FR 72101, Dec. 4, 2002, as amended at 69 FR 26051, May 11, 2004]



Sec. 1200.10  What are NARA's criteria for approval?

    NARA's criteria for approval are as follows:
    (a) NARA must be participating in the event or activity by providing 
speakers, space, or other similar services (example: NARA co-sponsoring 
a symposium or conference).
    (b) Seals and logos will not be used on any article or in any manner 
that reflects unfavorably on NARA or endorses, either directly or by 
implication, commercial products or services, or a requestor's policies 
or activities.

[67 FR 72101, Dec. 4, 2002, as amended at 69 FR 26051, May 11, 2004]



Sec. 1200.12  How does NARA notify me of the determination?

    NARA will notify you by mail of the final decision, usually within 3 
weeks from the date we receive your request. If NARA approves your 
request, we will send you a camera-ready copy of the official seal(s) 
and/or logo(s) along with an approval letter that will:
    (a) Reference back to the submitted request (either through the date 
or another distinguishing characteristic) indicating approval of the 
specific use, as defined in the request; and
    (b) Include NARA's conditions for use, which are identified in Sec. 
1200.14.

[67 FR 72101, Dec. 4, 2002, as amended at 69 FR 26051, May 11, 2004]



Sec. 1200.14  What are NARA's conditions for the use of the official seals and 

logos?

    If your request is approved, you must follow these conditions:

[[Page 697]]

    (a) Use the official seals and/or logos only for the specific 
purpose for which approval was granted;
    (b) Submit additional written requests for any uses other than the 
use granted in the approval letter;
    (c) Do not delegate the approval to another individual(s) or 
organization without NARA's prior approval; and
    (d) Do not change the official seals and/or logos themselves. They 
must visually and physically appear as NARA originally designed them, 
with no alterations.
    (e) Only use the official seal(s) and/or logo(s) for the time period 
designated in the approval letter (example: for the duration of a 
conference or exhibit).

[67 FR 72101, Dec. 4, 2002, as amended at 69 FR 26051, May 11, 2004]



         Subpart D_Penalties for Misuse of NARA Seals and Logos



Sec. 1200.16  Will I be penalized for misusing the official seals and logos?

    (a) Seals. (1) If you falsely make, forge, counterfeit, mutilate, or 
alter official seals, replicas, reproductions or embossing seals, or 
knowingly use or possess with fraudulent intent any altered seal, you 
are subject to penalties under 18 U.S.C. 506.
    (2) If you use the official seals, replicas, reproductions, or 
embossing seals in a manner inconsistent with the provisions of this 
part, you are subject to penalties under 18 U.S.C. 1017 and to other 
provisions of law as applicable.
    (b) Logos. If you use the official logos, replicas or reproductions, 
of logos in a manner inconsistent with the provisions of this part, you 
are subject to penalties under 18 U.S.C. 701.

[69 FR 26051, May 11, 2004]



PART 1201_COLLECTION OF CLAIMS--Table of Contents




                         Subpart A_Introduction

Sec.
1201.1 Why is NARA issuing these regulations?
1201.2 Under what authority does NARA issue these regulations?
1201.3 What definitions apply to the regulations in this part?
1201.4 What types of claims are excluded from these regulations?
1201.5 If a claim is not excluded from these regulations, may it be 
          compromised, suspended, terminated, or waived?
1201.6 What is a claim or debt?
1201.7 Why does NARA have to collect debts?
1201.8 What action might NARA take to collect debts?
1201.9 What rights do I have as a debtor?

                      Subpart B_General Provisions

1201.10 Will NARA use a cross-servicing agreement with the Department of 
          the Treasury to collect its claims?
1201.11 Will NARA refer claims to the Department of Justice?
1201.12 Will NARA provide information to credit reporting agencies?
1201.13 How will NARA contract for collection services?
1201.14 What should I expect to receive from NARA if I owe a debt to 
          NARA?
1201.15 What will the notice tell me regarding collection actions that 
          might be taken if the debt is not paid within 60 days of the 
          notice, or arrangements to pay the debt are not made within 60 
          days of the notice?
1201.16 What will the notice tell me about my opportunity for review of 
          my debt?
1201.17 What must I do to obtain a review of my debt, and how will the 
          review process work?
1201.18 What interest, penalty charges, and administrative costs will I 
          have to pay on a debt owed to NARA?
1201.19 How can I resolve my debt through voluntary repayment?
1201.20 What is the extent of the Archivist's authority to compromise 
          debts owed to NARA, or to suspend or terminate collection 
          action on such debts?
1201.21 May NARA's failure to comply with these regulations be used as a 
          defense to a debt?

                         Subpart C_Salary Offset

1201.30 What debts are included or excluded from coverage of these 
          regulations on salary offset?
1201.31 May I ask NARA to waive an overpayment that otherwise would be 
          collected by offsetting my salary as a Federal employee?
1201.32 What are NARA's procedures for salary offset?
1201.33 How will NARA coordinate salary offsets with other agencies?
1201.34 Under what conditions will NARA make a refund of amounts 
          collected by salary offset?

[[Page 698]]

1201.35 Will the collection of a claim by salary offset act as a waiver 
          of my rights to dispute the claimed debt?

                       Subpart D_Tax Refund Offset

1201.40 Which debts can NARA refer to the Department of the Treasury for 
          collection by offsetting tax refunds?
1201.41 What are NARA's procedures for collecting debts by tax refund 
          offset?

                     Subpart E_Administrative Offset

1201.50 Under what circumstances will NARA collect amounts that I owe to 
          NARA (or some other Federal agency) by offsetting the debt 
          against payments that NARA (or some other Federal agency) owes 
          me?
1201.51 How will NARA request that my debt to NARA be collected by 
          offset against some payment that another Federal agency owes 
          me?
1201.52 What procedures will NARA use to collect amounts I owe to a 
          Federal agency by offsetting a payment that NARA would 
          otherwise make to me?
1201.53 When may NARA make an offset in an expedited manner?
1201.54 Can a judgment I have obtained against the United States be used 
          to satisfy a debt that I owe to NARA?

                Subpart F_Administrative Wage Garnishment

1201.55 How will NARA collect debts through Administrative Wage 
          Garnishment?

    Authority: 5 U.S.C. 5514; 31 U.S.C. 3701-3720A, 3720D; 44 U.S.C. 
2104(a).

    Source: 67 FR 44757, July 5, 2002, unless otherwise noted.



                         Subpart A_Introduction



Sec. 1201.1  Why is NARA issuing these regulations?

    (a) NARA is issuing these regulations to inform the public of 
procedures that may be used by NARA for the collection of debt.
    (b) These regulations provide that NARA will attempt to collect 
debts owed to it or other Government agencies either directly, or by 
other means including salary, administrative, tax refund offsets, or 
administrative wage garnishment.
    (c) These regulations also provide that NARA may enter a cross-
servicing agreement with the U.S. Department of the Treasury (Treasury) 
under which the Treasury will take authorized action to collect amounts 
owed to NARA.



Sec. 1201.2  Under what authority does NARA issue these regulations?

    (a) NARA is issuing the regulations in this part under the authority 
of 31 U.S.C. Chapter 37, 3701-3720A and 3720D. These sections implement 
the requirements of the Federal Claims Collection Act of 1966, as 
amended by the Debt Collection Act of 1982 and the Debt Collection 
Improvement Act of 1996.
    (b) NARA is also issuing the regulations in this part to conform to 
the Federal Claims Collection Standards (FCCS), which prescribe 
standards for handling the Federal Government's claims for money or 
property. The FCCS are issued by the Department of Justice (DOJ) and the 
Treasury at 31 CFR Chapter IX, Parts 900-904. NARA adopts those 
standards without change. The regulations in this part supplement the 
FCCS by prescribing procedures necessary and appropriate for NARA 
operations.
    (c) NARA is also issuing the regulations in this part to conform to 
the standards for handling Administrative Wage Garnishment processing by 
the Federal Government. The standards are issued by the Treasury at 31 
CFR 285.11. NARA adopts those standards without change. The regulations 
in this part supplement the standards by prescribing procedures 
necessary and appropriate for NARA operations.
    (d) NARA is further issuing the regulations in this part under the 
authority of 5 U.S.C. 5514, and the salary offset regulations published 
by the Office of Personnel and Management at 5 CFR part 550, subpart K.
    (e) All of these claims collection regulations are issued under 
NARA's authority under 44 U.S.C. 2104(a).



Sec. 1201.3  What definitions apply to the regulations in this part?

    As used in this part:
    Administrative offset means withholding funds payable by the United 
States (including funds payable by the United States on behalf of a 
State government) to, or held by the United States for, a person to 
satisfy a claim.
    Administrative Wage Garnishment means a process whereby a Federal

[[Page 699]]

agency may, without first obtaining a court order, order an employer to 
withhold up to 15 percent of your wages for payment to the Federal 
agency to satisfy a delinquent non-tax debt.
    Agency means a department, agency, court, court administrative 
office, or instrumentality in the executive, judicial, or legislative 
branch of government, including a government corporation.
    Archivist means the Archivist of the United States, or his or her 
designee.
    Certification means a written statement received by a paying agency 
or disbursing official from a creditor agency that requests the paying 
agency or disbursing official to offset the salary of an employee and 
specifies that required procedural protections have been afforded the 
employee.
    Claim (see definition of debt in this section).
    Compromise means the settlement or forgiveness of a debt.
    Creditor agency means the agency to which the debt is owed, 
including a debt collection center when acting on behalf of the creditor 
agency.
    Day means calendar day. To count days, include the last day of the 
period unless it is a Saturday, a Sunday, or a Federal legal holiday.
    Debt collection center means the Treasury or any other agency or 
division designated by the Secretary of the Treasury with authority to 
collect debts on behalf of creditor agencies.
    Debt and claim are deemed synonymous and interchangeable. These 
terms mean an amount of money, funds, or property that has been 
determined by an agency official to be due the United States from any 
person, organization, or entity except another Federal agency. For the 
purpose of administrative offset under 31 U.S.C. 3716 and subpart E of 
these regulations, the terms, ``debt'' and ``claim'' also include money, 
funds or property owed by a person to a State (including past-due 
support being enforced by a State); the District of Columbia; American 
Samoa; Guam; the United States Virgin Islands; the Commonwealth of the 
Northern Marina Islands; or the Commonwealth of Puerto Rico.
    Debtor means a person, organization, or entity, except another 
Federal agency, who owes a debt. Use of the terms ``I,'' ``you,'' 
``me,'' and similar references to the reader of the regulations in this 
part are meant to apply to debtors as defined in this paragraph.
    Delinquent debt means a debt that has not been paid by the date 
specified in NARA's initial written demand for payment or applicable 
agreement or instrument (including a post-delinquency payment 
agreement), unless other satisfactory payment arrangements have been 
made.
    Disposable pay means the part of an employee's pay that remains 
after deductions that are required to be withheld by law have been made.
    Employee means a current employee of an agency, including a current 
member of the Armed Forces or Reserve of the Armed Forces of the United 
States.
    Federal Claims Collection Standards (FCCS) means the standards 
currently published by DOJ and the Treasury at 31 CFR parts 900-904.
    NARA means the National Archives and Records Administration.
    Paying agency means any agency that is making payments of any kind 
to a debtor. In some cases, NARA may be both the creditor agency and the 
paying agency.
    Payroll office means the office that is primarily responsible for 
payroll records and the coordination of pay matters with the appropriate 
personnel office.
    Person includes a natural person or persons, profit or non-profit 
corporation, partnership, association, trust, estate, consortium, state 
or local government, or other entity that is capable of owing a debt to 
the United States; however, agencies of the United States are excluded.
    Private collection contractor means a private debt collector under 
contract with an agency to collect a non-tax debt owed to the United 
States.
    Salary offset means a payroll procedure to collect a debt under 5 
U.S.C. 5514 and 31 U.S.C. 3716 by deduction(s) at one or more officially 
established pay intervals from the current pay account of an employee, 
without his or her consent.
    Tax refund offset means the reduction of a tax refund by the amount 
of a

[[Page 700]]

past-due legally enforceable debt owed to NARA or any other Federal 
agency.
    Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt.
    Withholding order means any order for withholding or garnishment of 
pay issued by an agency, or judicial or administrative body.



Sec. 1201.4  What types of claims are excluded from these regulations?

    The following types of claims are excluded:
    (a) Debts or claims arising under the Internal Revenue Code (26 
U.S.C. 1 et seq.) or the tariff laws of the United States, or the Social 
Security Act (42 U.S.C. 301 et seq.); except as provided under sec. 
204(f) and 1631 (42 U.S.C. 404(f) and 1383(b)(4)(A)).
    (b) Any case to which the Contract Disputes Act (41 U.S.C. 601 et 
seq.) applies;
    (c) Any case where collection of a debt is explicitly provided for 
or provided by another statute, e.g., travel advances under 5 U.S.C. 
5705 and employee training expenses under 5 U.S.C. 4108, or, as provided 
for by title 11 of the United States Code, when the claims involve 
bankruptcy;
    (d) Any debt based in whole or in part on conduct in violation of 
the antitrust laws or involving fraud, the presentation of a false 
claim, or misrepresentation on the part of the debtor or any party 
having an interest in the claim, as described in the FCCS, unless DOJ 
authorizes NARA to handle the collection;
    (e) Claims between Federal agencies;
    (f) Unless otherwise provided by law, administrative offset of 
payments under the authority of 31 U.S.C. 3716 to collect a debt may not 
be initiated more than 10 years after the Government's right to collect 
the debt first accrued. (Exception: The 10-year limit does not apply if 
facts material to the Federal Government's right to collect the debt 
were not known and could not reasonably have been known by the official 
or officials of the Government who were charged with the responsibility 
to discover and collect such debts.) The 10-year limitation also does 
not apply to debts reduced to a judgement; and
    (g) Unless otherwise stated, claims which have been transferred to 
Treasury or referred to the Department of Justice will be collected in 
accordance with the procedures of those agencies.



Sec. 1201.5  If a claim is not excluded from these regulations, may it be 

compromised, suspended, terminated, or waived?

    Nothing in this part precludes:
    (a) The compromise, suspension, or termination of collection 
actions, where appropriate under the FCCS, or the use of alternative 
dispute resolution methods if they are consistent with applicable law 
and regulations.
    (b) An employee from requesting waiver of an erroneous payment under 
5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 716, or from questioning the 
amount or validity of a debt, in the manner set forth in this part.



Sec. 1201.6  What is a claim or debt?

    A claim or debt is an amount of money, funds, or property that has 
been determined by an agency official to be due the United States from 
any person, organization, or entity except another Federal agency (see 
Sec. 1201.3).



Sec. 1201.7  Why does NARA have to collect debts?

    Federal agencies are required to try to collect claims of the 
Federal Government for money, funds, or property arising out of the 
agency's activities.



Sec. 1201.8  What action might NARA take to collect debts?

    (a) There are a number of actions that NARA is permitted to take 
when attempting to collect debts. These actions include:
    (1) Salary, tax refund or administrative offset, or administrative 
wage garnishment (see subparts C, D, E, and F of this part 
respectively); or
    (2) Using the services of private collection contractors.
    (b) In certain instances, usually after collection efforts have 
proven unsuccessful, NARA transfers debts to the Treasury for collection 
or refers them to the DOJ for litigation (see Sec. Sec. 1201.10 and 
1201.11).

[[Page 701]]



Sec. 1201.9  What rights do I have as a debtor?

    As a debtor you have several basic rights. You have a right to:
    (a) Notice as set forth in these regulations (see Sec. 1201.14);
    (b) Inspect the records that NARA has used to determine that you owe 
a debt (see Sec. 1201.14);
    (c) Request review of the debt and possible payment options (see 
Sec. 1201.17);
    (d) Propose a voluntary repayment agreement (see Sec. 1201.19); 
and/or
    (e) Question if the debt is excluded from these regulations (see 
Sec. 1201.5(b)).



                      Subpart B_General Provisions.



Sec. 1201.10  Will NARA use a cross-servicing agreement with the Department of 

the Treasury to collect its claims?

    (a) NARA may enter into a cross-servicing agreement that authorizes 
the Treasury to take the collection actions described in this part on 
behalf of NARA. This agreement will describe procedures that the 
Treasury uses to collect debts. The debt collection procedures that the 
Treasury uses are based on 31 U.S.C. chapter 37.
    (b) NARA must transfer to the Treasury any debt that has been 
delinquent for a period of 180 days or more so that the Secretary of the 
Treasury may take appropriate action to collect the debt or terminate 
collection action. NARA may also transfer to the Treasury any debt that 
is less than 180 days delinquent.
    (c) Paragraph (b) of this section will not apply to any debt or 
claim that:
    (1) Is in litigation or foreclosure;
    (2) Will be disposed of under an approved asset sales program;
    (3) Has been referred to a private collection contractor for 
collection for a period of time acceptable to the Secretary of the 
Treasury;
    (4) Is at a debt collection center for a period of time acceptable 
to the Secretary of the Treasury;
    (5) Will be collected under internal offset procedures within 3 
years after the date the debt or claim is first delinquent; or
    (6) Is exempt from this requirement based on a determination by the 
Secretary of the Treasury.



Sec. 1201.11  Will NARA refer claims to the Department of Justice?

    NARA will refer to DOJ for litigation claims on which aggressive 
collection actions have been taken, but which could not be collected, 
compromised, suspended, or terminated. Referrals will be made as early 
as possible, consistent with aggressive NARA collection action, and 
within the period for bringing a timely suit against the debtor.



Sec. 1201.12  Will NARA provide information to credit reporting agencies?

    (a) NARA will report certain delinquent debts to appropriate 
consumer credit reporting agencies by providing the following 
information:
    (1) A statement that the debt is valid and overdue;
    (2) The name, address, taxpayer identification number, and any other 
information necessary to establish the identity of the debtor;
    (3) The amount, status, and history of the debt; and
    (4) The program or pertinent activity under which the debt arose.
    (b) Before disclosing debt information to a credit reporting agency, 
NARA:
    (1) Takes reasonable action to locate the debtor if a current 
address is not available;
    (2) Provides the notice required under Sec. 1201.14 if a current 
address is available; and
    (3) Obtains satisfactory assurances from the credit reporting agency 
that it complies with the Fair Credit Reporting Act (15 U.S.C. 1681 et 
seq.) and other Federal laws governing the provision of credit 
information.
    (c) At the time debt information is submitted to a credit reporting 
agency, NARA provides a written statement to the reporting agency that 
all required actions have been taken. In addition, NARA thereafter 
ensures that the credit reporting agency is promptly informed of any 
substantive change in the conditions or amount of the debt, and promptly 
verifies or corrects information relevant to the debt.
    (d) If a debtor disputes the validity of the debt, the credit 
reporting agency refers the matter to the appropriate NARA official. The 
credit reporting

[[Page 702]]

agency excludes the debt from its reports until NARA certifies in 
writing that the debt is valid.
    (e) NARA may disclose to a commercial credit bureau information 
concerning a commercial debt, including the following:
    (1) Information necessary to establish the name, address, and 
employer identification number of the commercial debtor;
    (2) The amount, status, and history of the debt; and
    (3) The program or pertinent activity under which the debt arose.



Sec. 1201.13  How will NARA contract for collection services?

    NARA uses the services of a private collection contractor where it 
determines that such use is in NARA's best interest. When NARA 
determines that there is a need to contract for collection services, 
NARA:
    (a) Retains sole authority to:
    (1) Resolve any dispute with the debtor regarding the validity of 
the debt;
    (2) Compromise the debt;
    (3) Suspend or terminate collection action;
    (4) Refer the debt to the DOJ for litigation; and
    (5) Take any other action under this part;
    (b) Requires the contractor to comply with the:
    (1) Privacy Act of 1974, as amended, to the extent specified in 5 
U.S.C. 552a(m);
    (2) Fair Debt Collection Practices Act (15 U.S.C. 1692-1692o); and
    (3) Other applicable Federal and State laws pertaining to debt 
collection practices and applicable regulations of NARA in this part;
    (c) Requires the contractor to account accurately and fully for all 
amounts collected; and
    (d) Requires the contractor to provide to NARA, upon request, all 
data and reports contained in its files related to its collection 
actions on a debt.



Sec. 1201.14  What should I expect to receive from NARA if I owe a debt to 

NARA?

    (a) NARA will send you a written notice when we determine that you 
owe a debt to NARA. The notice will be hand-delivered or sent to you at 
the most current address known to NARA. The notice will inform you of 
the following:
    (1) The amount, nature, and basis of the debt;
    (2) That a designated NARA official has reviewed the claim and 
determined that it is valid;
    (3) That payment of the debt is due as of the date of the notice, 
and that the debt will be considered delinquent if you do not pay it 
within 30 days of the date of the notice;
    (4) NARA's policy concerning interest, penalty charges, and 
administrative costs (see Sec. 1201.18), including a statement that 
such assessments must be made against you unless excused in accordance 
with the FCCS and this part;
    (5) That you have the right to inspect and copy disclosable NARA 
records pertaining to your debt, or to receive copies of those records 
if personal inspection is impractical;
    (6) That you have the opportunity to enter into an agreement, in 
writing and signed by both you and the designated NARA official, for 
voluntary repayment of the debt (see Sec. 1201.19);
    (7) The address, telephone number, and name of the NARA official 
available to discuss the debt;
    (8) Possible collection actions that might be taken if the debt is 
not paid within 60 days of the notice, or arrangements to pay the debt 
are not made within 60 days of the notice (see Sec. 1201.15 for a 
fuller description of possible actions);
    (9) That NARA may suspend or revoke any licenses, permits, or other 
privileges for failure to pay a debt; and
    (10) Information on your opportunity to obtain a review of the debt 
(see Sec. 1201.16).
    (b) NARA will respond promptly to communications from you.
    (c) Exception to entitlement to notice, hearing, written responses, 
and final decisions. With respect to the regulations covering internal 
salary offset collections (see Sec. 1230.32), NARA excepts from the 
provisions of paragraph (a) of this section--
    (1) Any adjustment to pay arising out of an employee's election of 
coverage

[[Page 703]]

or a change in coverage under a Federal benefits program requiring 
periodic deductions from pay, if the amount to be recovered was 
accumulated over 4 pay periods or less;
    (2) A routine intra-agency adjustment of pay that is made to correct 
an overpayment of pay attributable to clerical or administrative errors 
or delays in processing pay documents, if the overpayment occurred 
within the 4 pay periods preceding the adjustment and, at the time of 
such adjustment, or as soon thereafter as practical, the individual is 
provided written notice of the nature and the amount of the adjustment 
and point of contact for contesting such adjustment; or
    (3) Any adjustment to collect a debt amounting to $50 or less, if, 
at the time of such adjustment, or as soon thereafter as practical, the 
individual is provided written notice of the nature and the amount of 
the adjustment and a point of contact for contesting such adjustment.



Sec. 1201.15  What will the notice tell me regarding collection actions that 

might be taken if the debt is not paid within 60 days of the notice, or 

arrangements to pay the debt are not made within 60 days of the notice?

    The notice provided under Sec. 1201.14 will advise you that within 
60 days of the date of the notice, your debt (including any interest, 
penalty charges, and administrative costs) must be paid or you must 
enter into a voluntary repayment agreement. If you do not pay the debt 
or enter into the agreement within that deadline, NARA may enforce 
collection of the debt by any or all of the following methods:
    (a) By referral to a credit reporting agency (see Sec. 1201.12), 
private collection contractor (see Sec. 1201.13), or the DOJ (see Sec. 
1201.11).
    (b) By transferring any debt to the Treasury for collection, 
including under a cross-servicing agreement with the Treasury (see Sec. 
1201.10).
    (c) If you are a NARA employee, by deducting money from your 
disposable pay account until the debt (and all accumulated interest, 
penalty charges, and administrative costs) is paid in full (see subpart 
C of this part). NARA will specify the amount, frequency, approximate 
beginning date, and duration of the deduction. 5 U.S.C. 5514 and 31 
U.S.C. 3716 govern such proceedings;
    (d) If you are an employee of a Federal agency other than NARA, by 
initiating certification procedures to implement a salary offset by that 
Federal agency (see subpart C of this part). 5 U.S.C. 5514 governs such 
proceedings;
    (e) By referring the debt to the Treasury for offset against any 
refund of overpayment of tax (see subpart D of this part);
    (f) By administrative offset (see subpart E of this part);
    (g) By administrative wage garnishment (see subpart F of this part); 
or
    (h) By liquidation of security or collateral. NARA has the right to 
hold security or collateral, liquidate it, and apply the proceeds to 
your debt through the exercise of a power of sale in the security 
instrument or a foreclosure. NARA will not follow the procedures in this 
paragraph (h) if the cost of disposing the collateral will be 
disproportionate to its value.



Sec. 1201.16  What will the notice tell me about my opportunity for review of 

my debt?

    The notice provided by NARA under Sec. Sec. 1201.14 and 1201.15 
will also advise you of the opportunity to obtain a review within NARA 
concerning the existence or amount of the debt or the proposed schedule 
for offset of Federal employee salary payments. The notice will also 
advise you of the following:
    (a) The name, address, and telephone number of a NARA official whom 
you may contact concerning procedures for requesting a review;
    (b) The method and time period for requesting a review;
    (c) That the filing of a request for a review on or before the 60th 
day following the date of the notice will stay the commencement of 
collection proceedings;
    (d) The name and address of the NARA official to whom you should 
send the request for a review;
    (e) That a final decision on the review (if one is requested) will 
be issued in writing at the earliest practical date, but not later than 
60 days after the receipt of the request for a review,

[[Page 704]]

unless you request, and the review official grants, a delay in the 
proceedings;
    (f) That any knowingly false or frivolous statements, 
representations, or evidence may subject you to:
    (1) Disciplinary procedures appropriate under 5 U.S.C. Chapter 75, 5 
CFR part 752, or any other applicable statute or regulations;
    (2) Penalties under the False Claims Act (31 U.S.C. 3729-3733) or 
any other applicable statutory authority; and
    (3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002, or 
any other applicable statutory authority;
    (g) Any other rights available to you to dispute the validity of the 
debt or to have recovery of the debt waived, or remedies available to 
you under statutes or regulations governing the program for which the 
collection is being made; and
    (h) That unless there are applicable contractual or statutory 
provisions to the contrary, amounts paid on or deducted for the debt 
that are later waived or found not owed will be promptly refunded to 
you.



Sec. 1201.17  What must I do to obtain a review of my debt, and how will the 

review process work?

    (a) Request for review. (1) You have the right to request a review 
by NARA of the existence or amount of your debt, the proposed schedule 
for offset of Federal employee salary payments, or whether the debt is 
past due or legally enforceable. If you want a review, you must send a 
written request to the NARA official designated in the notice (see Sec. 
1201.16(d)).
    (2) You must sign your request for review and fully identify and 
explain with reasonable specificity all the facts, evidence, and 
witnesses that support your position. Your request for review should be 
accompanied by available evidence to support your contentions.
    (3) Your request for review must be received by the designated 
officer or employee of NARA on or before the 60th calendar day following 
the date of the notice. Timely filing will stay the commencement of 
collection procedures. NARA may consider requests filed after the 60-day 
period provided for in this section if you:
    (i) Can show that the delay was the result of circumstances beyond 
your control; or
    (ii) Did not receive notice of the filing deadline (unless you had 
actual notice of the filing deadline).
    (b) Inspection of NARA records related to the debt. (1) If you want 
to inspect or copy NARA records related to the debt (see Sec. 
1201.14(a)(5)), you must send a letter to the NARA official designated 
in the notice. Your letter must be received within 30 days of the date 
of the notice.
    (2) In response to the timely request described in paragraph (b)(1) 
of this section, the designated NARA official will notify you of the 
location and time when you may inspect and copy records related to the 
debt.
    (3) If personal inspection of NARA records related to the debt is 
impractical, reasonable arrangements will be made to send you copies of 
those records.
    (c) Review official. (1) When required by Federal law or regulation, 
such as in a salary offset situation, NARA will request an 
administrative law judge, or hearing official from another agency who is 
not under the supervision or control of the Archivist, to conduct the 
review. In these cases, the hearing official will, following the review, 
submit the review decision to the Archivist for the issuance of NARA's 
final decision (see paragraph (f) of this section for content of the 
review decision).
    (2) When Federal law or regulation does not require NARA to have the 
review conducted by an administrative law judge, or by a hearing 
official from another agency who is not under the supervision or control 
of the Archivist, NARA has the right to appoint a hearing official to 
conduct the review. In these cases, the hearing official will, following 
the review, submit the review decision to the Archivist for the issuance 
of NARA's final decision (see paragraph (f) of this section for the 
content of the review decision).
    (d) Review procedure. If you request a review, the review official 
will notify you of the form of the review to be provided. The review 
official will determine whether an oral hearing is required, or if a 
review of the written record is sufficient, in accordance with

[[Page 705]]

the FCCS. Although you may request an oral hearing, such a hearing is 
required only when a review of the documentary evidence cannot determine 
the question of indebtedness, such as when the validity of the debt 
turns on an issue of credibility or truthfulness. In either case, the 
review official will conduct the review in accordance with the FCCS. If 
the review will include an oral hearing, the notice sent to you by the 
review official will set forth the date, time, and location of the 
hearing.
    (e) Date of decision. (1) The review official will issue a written 
decision, based upon either the written record or documentary evidence 
and information developed at an oral hearing. This decision will be 
issued as soon as practical, but not later than 60 days after the date 
on which NARA received your request for a review, unless you request, 
and the review official grants, a delay in the proceedings.
    (2) If NARA is unable to issue a decision within 60 days after the 
receipt of the request for a hearing:
    (i) NARA may not issue a withholding order or take other action 
until the hearing (in whatever form) is held and a decision is rendered; 
and
    (ii) If NARA previously issued a withholding order to the debtor's 
employer, NARA must suspend the withholding order beginning on the 61st 
day after the receipt of the hearing request and continuing until a 
hearing (in whatever form) is held and a decision is rendered.
    (f) Content of review decision. The review official will prepare a 
written decision that includes:
    (1) A statement of the facts presented to support the origin, 
nature, and amount of the debt;
    (2) The review official's findings, analysis, and conclusions; and
    (3) The terms of any repayment schedule, if applicable.
    (g) Interest, penalty charge, and administrative cost accrual during 
review period. Interest, penalty charges, and administrative costs 
authorized by law will continue to accrue during the review period.



Sec. 1201.18  What interest, penalty charges, and administrative costs will I 

have to pay on a debt owed to NARA?

    (a) Interest. (1) NARA will assess interest on all delinquent debts 
unless prohibited by statute, regulation, or contract.
    (2) Interest begins to accrue on all debts from the date that the 
debt becomes delinquent. NARA will not recover interest if you pay the 
debt within 30 days of the date on which interest begins to accrue. NARA 
will assess interest at the rate established annually by the Secretary 
of the Treasury under 31 U.S.C. 3717, unless a different rate is either 
necessary to protect the interests of NARA or established by a contract, 
repayment agreement, or statute. NARA will notify you of the basis for 
its finding when a different rate is necessary to protect the interests 
of NARA.
    (3) The Archivist may extend the 30-day period for payment without 
interest where he or she determines that such action is in the best 
interest of NARA. A decision to extend or not to extend the payment 
period is final and is not subject to further review.
    (b) Penalty. NARA will assess a penalty charge of 6 percent a year 
on any portion of a debt that is delinquent for more than 90 days.
    (c) Administrative costs. NARA will assess charges to cover 
administrative costs incurred as a result of your failure to pay a debt 
before it becomes delinquent. Administrative costs include the 
additional costs incurred in processing and handling the debt because it 
became delinquent, such as costs incurred in obtaining a credit report 
or in using a private collection contractor, or service fees charged by 
a Federal agency for collection activities undertaken on behalf of NARA.
    (d) Allocation of payments. A partial or installment payment by a 
debtor will be applied first to outstanding penalty assessments, second 
to administrative costs, third to accrued interest, and fourth to the 
outstanding debt principal.
    (e) Additional authority. NARA may assess interest, penalty charges, 
and administrative costs on debts that are

[[Page 706]]

not subject to 31 U.S.C. 3717 to the extent authorized under common law 
or other applicable statutory authority.
    (f) Waiver. (1) The Archivist may (without regard to the amount of 
the debt) waive collection of all or part of accrued interest, penalty 
charges, or administrative costs, if he or she determines that 
collection of these charges would be against equity and good conscience 
or not in the best interest of NARA.
    (2) A decision to waive interest, penalty charges, or administrative 
costs may be made at any time before a debt is paid. However, and unless 
otherwise stated in these regulations, where these charges have been 
collected before the waiver decision, they will not be refunded. The 
Archivist's decision to waive or not waive collection of these charges 
is final and is not subject to further review.



Sec. 1201.19  How can I resolve my debt through voluntary repayment?

    (a) In response to a notice of debt, you may propose to NARA that 
you be allowed to repay the debt through a voluntary repayment agreement 
in lieu of NARA taking other collection actions under this part.
    (b) Your request to enter into a voluntary repayment agreement must:
    (1) Be in writing;
    (2) Admit the existence of the debt; and
    (3) Either propose payment of the debt (together with interest, 
penalty charges, and administrative costs) in a lump sum, or set forth a 
proposed repayment schedule.
    (c) NARA will collect claims in one lump sum whenever feasible. 
However, if you are unable to pay your debt in one lump sum, NARA may 
accept payment in regular installments that bear a reasonable 
relationship to the size of the debt and your ability to pay.
    (d) NARA will consider a request to enter into a voluntary repayment 
agreement in accordance with the FCCS. The Archivist may request 
additional information from you, including financial statements if you 
request to make payments in installments, in order to determine whether 
to accept a voluntary repayment agreement. It is within the Archivist's 
discretion to accept a repayment agreement instead of proceeding with 
other collection actions under this part, and to set the necessary terms 
of any voluntary repayment agreement. No repayment agreement will be 
binding on NARA unless it is in writing and signed by both you and the 
Archivist. At NARA's option, you may be required to provide security as 
part of the agreement to make payments in installments. Notwithstanding 
the provisions of this section, 31 U.S.C. 3711 will govern any reduction 
or compromise of a claim.



Sec. 1201.20  What is the extent of the Archivist's authority to compromise 

debts owed to NARA, or to suspend or terminate collection action on such 

debts?

    (a) The Archivist may compromise, suspend, or terminate collection 
action on those debts owed to NARA that do not exceed $100,000 excluding 
interest, in conformity with the Federal Claims Collection Act of 1966, 
as amended. NARA will follow the policies in Sec. 902.2 of the FCCS.
    (b) The uncollected portion of a debt owed to NARA that is not 
recovered as the result of a compromise will be reported to the Internal 
Revenue Service (IRS) as income to the debtor in accordance with IRS 
procedures if the debt is at least $600.00.



Sec. 1201.21  May NARA's failure to comply with these regulations be used as a 

defense to a debt?

    No, the failure of NARA to comply with any standard in the FCCS or 
these regulations will not be available to any debtor as a defense.



                         Subpart C_Salary Offset



Sec. 1201.30  What debts are included or excluded from coverage of these 

regulations on salary offset?

    (a) The regulations in this subpart provide NARA procedures for the 
collection by salary offset of a Federal employee's pay to satisfy 
certain debts owed to NARA or to other Federal agencies.
    (b) The regulations in this subpart do not apply to any case where 
collection of a debt by salary offset is explicitly provided for or 
prohibited by another statute.

[[Page 707]]

    (c) Nothing in the regulations in this subpart precludes the 
compromise, suspension, or termination of collection actions under the 
Federal Claims Collection Act of 1966, as amended, or the FCCS.
    (d) A levy imposed under the Internal Revenue Code takes precedence 
over a salary offset under this subpart, as provided in 5 U.S.C. 
5514(d).



Sec. 1201.31  May I ask NARA to waive an overpayment that otherwise would be 

collected by offsetting my salary as a Federal employee?

    Yes, the regulations in this subpart do not preclude you from 
requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 10 
U.S.C. 2774, 32 U.S.C. 716, or other statutory provisions pertaining to 
the particular debts being collected.



Sec. 1201.32  What are NARA's procedures for salary offset?

    (a) NARA will coordinate salary deductions under this subpart as 
appropriate.
    (b) If you are a NARA employee who owes a debt to NARA, NARA's 
payroll office will determine the amount of your disposable pay and will 
implement the salary offset.
    (c) Deductions will begin within three official pay periods 
following receipt by NARA's payroll office of certification of debt from 
the creditor agency.
    (d) The Notice provisions of these regulations do not apply to 
certain debts arising under this section (see Sec. 1201.14(c)).
    (e) Types of collection. (1) Lump-sum offset. If the amount of the 
debt is equal to or less than 15 percent of disposable pay, the debt 
generally will be collected through one lump-sum offset.
    (2) Installment deductions. Installment deductions will be made over 
a period not greater than the anticipated period of employment. The size 
and frequency of installment deductions will bear a reasonable relation 
to the size of the debt and your ability to pay. However, the amount 
deducted from any period will not exceed 15 percent of the disposable 
pay from which the deduction is made unless you have agreed in writing 
to the deduction of a greater amount. If possible, installment payments 
will be sufficient in size and frequency to liquidate the debt in three 
years or less.
    (3) Deductions from final check. A deduction exceeding the 15 
percent of disposable pay limitation may be made from any final salary 
payment under 31 U.S.C. 3716 and the FCCS in order to liquidate the 
debt, whether the employee is being separated voluntarily or 
involuntarily.
    (4) Deductions from other sources. If an employee subject to salary 
offset is separated from NARA and the balance of the debt cannot be 
liquidated by offset of the final salary check, NARA may offset later 
payments of any kind against the balance of the debt, as allowed by 31 
U.S.C. 3716 and the FCCS.
    (f) Multiple debts. In instances where two or more creditor agencies 
are seeking salary offsets, or where two or more debts are owed to a 
single creditor agency, NARA's payroll office may, at its discretion, 
determine whether one or more debts should be offset simultaneously 
within the 15 percent limitation.



Sec. 1201.33  How will NARA coordinate salary offsets with other agencies?

    (a) Responsibilities of NARA as the creditor agency (i.e. when the 
debtor owes a debt to NARA and is an employee of another agency). Upon 
completion of the procedures established in this subpart and pursuant to 
5 U.S.C. 5514 and 31 U.S.C. 3716, NARA must submit a claim to a paying 
agency or disbursing official.
    (1) In its claim, NARA must certify, in writing, the following:
    (i) That the employee owes the debt;
    (ii) The amount and basis of the debt;
    (iii) The date NARA's right to collect the debt first accrued;
    (iv) That NARA's regulations in this subpart have been approved by 
OPM under 5 CFR part 550, subpart K; and
    (v) That NARA has met the certification requirements of the paying 
agency.
    (2) If the collection must be made in installments, NARA's claim 
will also advise the paying agency of the amount or percentage of 
disposable pay to be collected in each installment. NARA may also advise 
the paying

[[Page 708]]

agency of the number of installments to be collected and the date of the 
first installment, if that date is other than the next officially 
established pay period.
    (3) NARA will also include in its claim:
    (i) The employee's written consent to the salary offset;
    (ii) The employee's signed statement acknowledging receipt of the 
procedures required by 5 U.S.C. 5514; or
    (iii) Information regarding the completion of procedures required by 
5 U.S.C. 5514, including the actions taken and the dates of those 
actions.
    (4) If the employee is in the process of separating and has not 
received a final salary check or other final payment(s) from the paying 
agency, NARA must submit its claim to the paying agency or disbursing 
official for collection under 31 U.S.C. 3716. The paying agency will 
(under its regulations adopted under 5 U.S.C. 5514 and 5 CFR part 550, 
subpart K), certify the total amount of its collection on the debt and 
notify the employee and NARA. If the paying agency's collection does not 
fully satisfy the debt, and the paying agency is aware that the debtor 
is entitled to payments from the Civil Service Retirement and Disability 
Fund or other similar payments that may be due the debtor employee from 
other Federal government sources, then (under its regulations adopted 
under 5 U.S.C. 5514 and 5 CFR part 550, subpart K), the paying agency 
will provide written notice of the outstanding debt to the agency 
responsible for making the other payments to the debtor employee. The 
written notice will state that the employee owes a debt, the amount of 
the debt, and that the provisions of this section have been fully 
complied with. However, NARA must submit a properly certified claim 
under this paragraph (a)(4) to the agency responsible for making the 
other payments before the collection can be made.
    (5) If the employee is already separated and all payments due from 
his or her former paying agency have been paid, NARA may request, unless 
otherwise prohibited, that money due and payable to the employee from 
the Civil Service Retirement and Disability Fund or other similar funds 
be administratively offset to collect the debt.
    (6) Employee transfer. When an employee transfers from one paying 
agency to another paying agency, NARA will not repeat the due process 
procedures described in 5 U.S.C. 5514 and this subpart to resume the 
collection. NARA will submit a properly certified claim to the new 
paying agency and will subsequently review the debt to ensure that the 
collection is resumed by the new paying agency.
    (b) Responsibilities of NARA as the paying agency (i.e. when the 
debtor owes a debt to another agency and is an employee of NARA). (1) 
Complete claim. When NARA receives a certified claim from a creditor 
agency (under the creditor agency's regulations adopted under 5 U.S.C. 
5514 and 5 CFR part 550, subpart K), deductions should be scheduled to 
begin within three officially established pay intervals. Before 
deductions can begin, NARA sends the employee a written notice 
containing:
    (i) A statement that NARA has received a certified claim from the 
creditor agency;
    (ii) The amount of the claim;
    (iii) The date salary offset deductions will begin; and
    (iv) The amount of such deductions.
    (2) Incomplete claim. When NARA receives an incomplete certification 
of debt from a creditor agency, NARA will return the claim with a notice 
that the creditor agency must:
    (i) Comply with the procedures required under 5 U.S.C. 5514 and 5 
CFR part 550, subpart K, and
    (ii) Properly certify a claim to NARA before NARA will take action 
to collect from the employee's current pay account.
    (3) NARA is not authorized to review the merits of the creditor 
agency's determination with respect to the amount or validity of the 
debt certified by the creditor agency.
    (4) Employees who transfer from NARA to another paying agency. If, 
after the creditor agency has submitted the claim to NARA, the employee 
transfers from NARA to a different paying agency before the debt is 
collected in full, NARA will certify the total amount collected on the 
debt and notify the employee and the creditor

[[Page 709]]

agency in writing. The notification to the creditor agency will include 
information on the employee's transfer.



Sec. 1201.34  Under what conditions will NARA make a refund of amounts 

collected by salary offset?

    (a) If NARA is the creditor agency, it will promptly refund any 
amount deducted under the authority of 5 U.S.C. 5514, when:
    (1) The debt is waived or all or part of the funds deducted are 
otherwise found not to be owed (unless expressly prohibited by statute 
or regulation); or
    (2) An administrative or judicial order directs NARA to make a 
refund.
    (b) Unless required or permitted by law or contract, refunds under 
this section will not bear interest.



Sec. 1201.35  Will the collection of a claim by salary offset act as a waiver 

of my rights to dispute the claimed debt?

    No, your involuntary payment of all or any portion of a debt under 
this subpart will not be construed as a waiver of any rights that you 
may have under 5 U.S.C. 5514 or other provisions of a law or written 
contract, unless there are statutory or contractual provisions to the 
contrary.



                       Subpart D_Tax Refund Offset



Sec. 1201.40  Which debts can NARA refer to the Treasury for collection by 

offsetting tax refunds?

    (a) The regulations in this subpart implement 31 U.S.C. 3720A, which 
authorizes the Treasury to reduce a tax refund by the amount of a past-
due, legally enforceable debt owed to a Federal agency.
    (b) For purposes of this section, a past-due, legally enforceable 
debt referrable to the Treasury for tax refund offset is a debt that is 
owed to NARA and:
    (1) Is at least $25.00;
    (2) Except in the case of a judgment debt, has been delinquent for 
at least three months and will not have been delinquent more than 10 
years at the time the offset is made;
    (3) With respect to which NARA has:
    (i) Given the debtor at least 60 days to present evidence that all 
or part of the debt is not past due or legally enforceable;
    (ii) Considered evidence presented by the debtor; and
    (iii) Determined that an amount of the debt is past due and legally 
enforceable;
    (4) With respect to which NARA has notified or has made a reasonable 
attempt to notify the debtor that:
    (i) The debt is past due, and
    (ii) Unless repaid within 60 days of the date of the notice, the 
debt may be referred to the Treasury for offset against any refund of 
overpayment of tax; and
    (5) All other requirements of 31 U.S.C. 3720A and the Treasury 
regulations relating to the eligibility of a debt for tax return offset 
(31 CFR 285.2) have been satisfied.



Sec. 1201.41  What are NARA's procedures for collecting debts by tax refund 

offset?

    (a) NARA's Financial Services Division will be the point of contact 
with the Treasury for administrative matters regarding the offset 
program.
    (b) NARA will ensure that the procedures prescribed by the Treasury 
are followed in developing information about past-due debts and 
submitting the debts to the Treasury.
    (c) NARA will submit to the Treasury a notification of a taxpayer's 
liability for past-due legally enforceable debt. This notification will 
contain the following:
    (1) The name and taxpayer identification number of the debtor;
    (2) The amount of the past-due and legally enforceable debt;
    (3) The date on which the original debt became past due;
    (4) A statement certifying that, with respect to each debt reported, 
all of the requirements of Sec. 1201.40(b) have been satisfied; and
    (5) Any other information as prescribed by Treasury.
    (d) For purposes of this section, notice that collection of the debt 
is stayed by a bankruptcy proceeding involving the debtor will bar 
referral of the debt to the Treasury.
    (e) NARA will promptly notify the Treasury to correct data when 
NARA:

[[Page 710]]

    (1) Determines that an error has been made with respect to a debt 
that has been referred;
    (2) Receives or credits a payment on the debt; or
    (3) Receives notice that the person owing the debt has filed for 
bankruptcy under Title 11 of the United States Code and the automatic 
stay is in effect or has been adjudicated bankrupt and the debt has been 
discharged.
    (f) When advising debtors of NARA's intent to refer a debt to the 
Treasury for offset, NARA will also advise debtors of remedial actions 
(see Sec. Sec. 1201.9 and 1201.14 through 1201.16 of this part) 
available to defer the offset or prevent it from taking place.



                     Subpart E_Administrative Offset



Sec. 1201.50  Under what circumstances will NARA collect amounts that I owe to 

NARA (or some other Federal agency) by offsetting the debt against payments 

that NARA (or some other Federal agency) owes me?

    (a) The regulations in this subpart apply to the collection of any 
debts you owe to NARA, or to any request from another Federal agency 
that NARA collect a debt you owe by offsetting your debt against a 
payment NARA owes you. Administrative offset is authorized under section 
5 of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 
3716). NARA will carry out administrative offset in accordance with the 
provisions of the FCCS. The regulations in this subpart are intended 
only to supplement the provisions of the Federal Claims Collection 
Standards.
    (b) The Archivist, after attempting to collect a debt you owe to 
NARA under Section 3(a) of the Federal Claims Collection Act of 1966, as 
amended (31 U.S.C. 3711(a)), may collect the debt by administrative 
offset only after giving you:
    (1) Written notice of the type and amount of the claim, the 
intention of the head of the agency to collect the claim by 
administrative offset, and an explanation of the rights of the debtor;
    (2) An opportunity to inspect and copy the records of the agency 
related to the claim;
    (3) An opportunity for a review within the agency of the decision of 
the agency related to the claim; and
    (4) An opportunity to make a written agreement with the head of the 
agency to repay the amount of the claim.
    (c) No collection by administrative offset will be made on any debt 
that has been outstanding for more than 10 years, unless facts material 
to NARA or a Federal agency's right to collect the debt were not known, 
and reasonably could not have been known, by the official or officials 
responsible for discovering and collecting the debt.
    (d) The regulations in this subpart do not apply to:
    (1) A case in which administrative offset of the type of debt 
involved is explicitly prohibited by statute; or
    (2) Debts owed to NARA by Federal agencies.



Sec. 1201.51  How will NARA request that my debt to NARA be collected by 

offset against some payment that another Federal agency owes me?

    The Archivist may request that funds due and payable to you by 
another Federal agency instead be paid to NARA to satisfy a debt you owe 
to NARA. NARA will refer debts to the Treasury for centralized 
administrative offset in accordance with the FCCS and the procedures 
established by the Treasury. Where centralized offset is not available 
or appropriate, NARA may request offset directly from the Federal agency 
that is holding funds for you. In requesting administrative offset, NARA 
will certify in writing to the Federal agency that is holding funds for 
you:
    (a) That you owe the debt;
    (b) The amount and basis of the debt; and
    (c) That NARA has complied with the requirements of 31 U.S.C. 3716, 
its own administrative offset regulations in this subpart, the 
applicable administrative offset regulations of the agency holding the 
funds, and the applicable provisions of the FCCS with respect to 
providing you with due process.

[[Page 711]]



Sec. 1201.52  What procedures will NARA use to collect amounts I owe to a 

Federal agency by offsetting a payment that NARA would otherwise make to me?

    (a) Any Federal agency may request that NARA administratively offset 
funds due and payable to you in order to collect a debt you owe to that 
agency. NARA will initiate the requested offset only upon:
    (1) Receipt of written certification from the creditor agency 
stating:
    (i) That you owe the debt;
    (ii) The amount and basis of the debt;
    (iii) That the agency has prescribed regulations for the exercise of 
administrative offset; and
    (iv) That the agency has complied with its own administrative offset 
regulations and with the applicable provisions of the FCCS, including 
providing you with any required hearing or review; and
    (2) A determination by the Archivist that offsetting funds payable 
to you by NARA in order to collect a debt owed by you would be in the 
best interest of the United States as determined by the facts and 
circumstances of the particular case, and that such an offset would not 
otherwise be contrary to law.
    (b) Multiple debts. In instances where two or more creditor agencies 
are seeking administrative offsets, or where two or more debts are owed 
to a single creditor agency, NARA may, in its discretion, allocate the 
amount it owes to you to the creditor agencies in accordance with the 
best interest of the United States as determined by the facts and 
circumstances of the particular case, paying special attention to 
applicable statutes of limitations.



Sec. 1201.53  When may NARA make an offset in an expedited manner?

    NARA may effect an administrative offset against a payment to be 
made to you before completion of the procedures required by Sec. Sec. 
1201.51 and 1201.52 if failure to take the offset would substantially 
jeopardize NARA's ability to collect the debt and the time before the 
payment is to be made does not reasonably permit the completion of those 
procedures. An expedited offset will be followed promptly by the 
completion of those procedures. Amounts recovered by offset, but later 
found not to be owed to the United States, will be promptly refunded.



Sec. 1201.54  Can a judgment I have obtained against the United States be used 

to satisfy a debt that I owe to NARA?

    Collection by offset against a judgment obtained by a debtor against 
the United States will be accomplished in accordance with 31 U.S.C. 3728 
and 31 U.S.C. 3716.



                Subpart F_Administrative Wage Garnishment



Sec. 1201.55  How will NARA collect debts through Administrative Wage 

Garnishment?

    NARA will collect debts through Administrative Wage Garnishment in 
accordance with the Administrative Wage Garnishment regulations issued 
by the Treasury. NARA adopts, for the purposes of this subpart, the 
Treasury's Administrative Wage Garnishment regulations in 31 CFR 285.11.



PART 1202_REGULATIONS IMPLEMENTING THE PRIVACY ACT OF 1974--Table of Contents




           Subpart A_General Information About the Privacy Act

Sec.
1202.1 What does this part cover?
1202.2 What this part does not cover.
1202.4 Definitions.
1202.6 Whom should I contact for Privacy Act matters at NARA?
1202.8 How does NARA handle records that are in Government-wide Privacy 
          Act systems?
1202.10 Does NARA handle access to and disclosure of records of defunct 
          agencies in the custody of NARA?

                    Subpart B_Collecting Information

1202.18 How does NARA collect information about individuals?
1202.20 What advisory information does NARA provide before collecting 
          information from me?
1202.22 Will NARA need my Social Security Number?
1202.24 Will NARA ever request information about me from someone else?

[[Page 712]]

1202.26 Who will make sure that my record is accurate?
1202.28 What rules do NARA employees follow in managing personal 
          information?
1202.30 How does NARA safeguard its systems of records?

                 Subpart C_Individual Access to Records

1202.40 How can I gain access to NARA records about myself?
1202.42 How are requests for access to medical records handled?
1202.44 How long will it take for NARA to process my request?
1202.46 In what ways will NARA provide access?
1202.48 Will I have to pay for copies of records?
1202.50 Does NARA require prepayment of fees?
1202.52 How do I pay?
1202.54 On what grounds can NARA deny my Privacy Act request?
1202.56 How do I appeal a denial of my Privacy Act request?
1202.58 How are appeals processed?

                     Subpart D_Disclosure of Records

1202.60 When does NARA disclose a record in a Privacy Act system of 
          records?
1202.62 What are the procedures for disclosure of records to a third 
          party?
1202.64 How do I appeal a denial of disclosure?
1202.66 How does NARA keep account of disclosures?

                   Subpart E_Request To Amend Records

1202.70 Whom should I contact at NARA to amend records about myself?
1202.72 How does NARA handle requests to amend records?
1202.74 How will I know if NARA approved my amendment request?
1202.76 Can NARA deny my request for amendment?
1202.78 How do I accept an alternative amendment?
1202.80 How do I appeal the denial of a request to amend a record?
1202.82 How do I file a Statement of Disagreement?
1202.84 Can I seek judicial review?

                          Subpart F_Exemptions

1202.90 What NARA systems of records are exempt from release under the 
          National Security Exemption of the Privacy Act?
1202.92 What NARA systems of records are exempt from release under the 
          Law Enforcement Exemption of the Privacy Act?
1202.94 What NARA systems of records are exempt from release under the 
          Investigatory Information Material Exemption of the Privacy 
          Act?

    Authority: 5 U.S.C. 552a; 44 U.S.C. 2104(a).

    Source: 66 FR 65652, Dec. 20, 2001, unless otherwise noted.



           Subpart A_General Information About the Privacy Act



Sec. 1202.1  What does this part cover?

    (a) This part covers requests under the Privacy Act (5 U.S.C. 552a) 
for NARA operational records and records of defunct agencies stored in 
NARA record centers.
    (b) This part explains how NARA collects, uses and maintains records 
about you that are filed by your name or other personal identifiers and 
which are contained in a ``system of records'' as defined by 5 U.S.C. 
552a(a)(5).
    (c) This part describes the procedures to gain access to and contest 
the contents of your records, and the conditions under which NARA 
discloses such records to others.



Sec. 1202.2  What this part does not cover.

    This part does not cover:
    (a) Records that have been transferred into the National Archives of 
the United States for permanent preservation. Archival records that are 
contained in systems of records that become part of the National 
Archives of the United States are exempt from most provisions of the 
Privacy Act (see 5 U.S.C. 552a(l)(2) and (l)(3)). See subchapter C of 
this chapter for rules governing access to these type records.
    (b) Records of other agencies that are stored in NARA record centers 
on behalf of that agency are governed by the Privacy Act rules of the 
transferring agency. Send your request for those records directly to 
those agencies.
    (c) Personnel and medical records held by the National Personnel 
Records Center (NPRC) on behalf of the Department of Defense and the 
Office of Personnel Management. Privacy Act requests for these records 
should come to the NPRC.



Sec. 1202.4  Definitions.

    For the purposes of this part, the term:

[[Page 713]]

    (a) Access means a transfer of a record, a copy of a record, or the 
information in a record to the subject individual, or the review of a 
record by the subject individual.
    (b) Agency means any executive department, military department, 
Government corporation, Government-controlled corporation, or other 
establishment in the executive branch of the Government (including the 
Executive Office of the President), or any independent regulatory 
agency.
    (c) Defunct agency means an agency that has ceased to exist, and has 
no successor in function.
    (d) Defunct agency records means the records in a Privacy Act system 
of a defunct agency that are stored in a NARA records center.
    (e) Disclosure means a transfer by any means of a record, a copy of 
a record, or the information contained in a record to a recipient other 
than the subject individual, or the review of a record by someone other 
than the subject individual.
    (f) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (g) Maintain includes maintain, collect, use, or disseminate.
    (h) NARA Privacy Act Appeal Official means the Deputy Archivist of 
the United States for appeals of denials of access to or amendment of 
records maintained in a system of records, except where the system 
manager is the Inspector General; then the term means the Archivist of 
the United States.
    (i) Record means any item, collection, or grouping of information 
about an individual that is maintained by an agency, including, but not 
limited to, his or her education, financial transactions, medical 
history and criminal or employment history, and that contains his or her 
name or an identifying number, symbol, or other identifying particular 
assigned to the individual, such as a fingerprint, voiceprint, or 
photograph. For purposes of this part, ``record'' does not mean archival 
records that have been transferred to the National Archives of the 
United States.
    (j) Routine use means, with respect to the disclosure of a record, 
the use of that record for a purpose which is compatible with the 
purpose for which it was collected.
    (k) Solicitation means a request by a NARA employee or contractor 
that an individual provide information about himself or herself.
    (l) Statistical record means a record in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual, except as provided by 13 U.S.C. 8.
    (m) Subject individual means the individual named or discussed in a 
record or the individual to whom a record otherwise pertains.
    (n) System manager means the NARA employee who is responsible for 
the maintenance of a system of records and for the collection, use, and 
dissemination of information in that system of records.
    (o) System of records means a group of records from which 
information is retrieved by the name of the individual or by some 
identifying number, symbol, or other identifier assigned to that 
individual.



Sec. 1202.6  Whom should I contact for Privacy Act matters at NARA?

    Contact the NARA Privacy Act Officer, National Archives and Records 
Administration (NGC), Room 3110, 8601 Adelphi Road, College Park, MD 
20740-6001, for guidance in making a Privacy Act request, or if you need 
assistance with an existing request. The Privacy Act Officer will refer 
you to the responsible system manager. Details about what to include in 
your Privacy Act request are discussed in Subpart C of this part.



Sec. 1202.8  How does NARA handle records that are in Government-wide Privacy 

Act systems?

    Records in the custody of NARA in a Government-wide Privacy Act 
system are the primary responsibility of another agency, e.g., the 
Office of Personnel Management (OPM) or the Office of Government Ethics 
(OGE). These records are governed by the regulations established by that 
agency pursuant to the Privacy Act. NARA

[[Page 714]]

provides access using that agency's regulations.



Sec. 1202.10  Does NARA handle access to and disclosure of records of defunct 

agencies in the custody of NARA?

    Yes, records of defunct agencies in the custody of NARA at a NARA 
record center are covered by the provisions of this part.



                    Subpart B_Collecting Information



Sec. 1202.18  How does NARA collect information about individuals?

    Any information that is used in making a determination about your 
rights, benefits, or privileges under NARA programs is collected 
directly from you--the subject individual--to the greatest extent 
possible.



Sec. 1202.20  What advisory information does NARA provide before collecting 

information from me?

    (a) Before collecting information from you, NARA will advise you of:
    (1) The authority for collecting the information and whether 
providing the information is mandatory or voluntary;
    (2) The purpose for which the information will be used;
    (3) The routine uses of the information; and
    (4) The effect on you, if any, of not providing the information.
    (b) NARA ensures that forms used to record the information that you 
provide are in compliance with the Privacy Act and this part.



Sec. 1202.22  Will NARA need my Social Security Number?

    (a) Before a NARA employee or NARA contractor asks you to provide 
your social security number (SSN), he or she will ensure that the 
disclosure is required by Federal law or under a Federal law or 
regulation adopted before January 1, 1975.
    (b) If you are asked to provide your SSN, the NARA employee or 
contractor must first inform you:
    (1) Whether the disclosure is mandatory or voluntary;
    (2) The statute or authority under which your SSN is solicited; and
    (3) How your SSN will be used.



Sec. 1202.24  Will NARA ever request information about me from someone else?

    NARA will make every effort to gather information from you directly. 
When NARA solicits information about you from someone else, NARA will 
explain to that person the purpose for which the information will be 
used.



Sec. 1202.26  Who will make sure that my record is accurate?

    The system manager ensures that all records used by NARA to make a 
determination about any individual are maintained with such accuracy, 
relevancy, timeliness, and completeness as is reasonably possible to 
ensure fairness to you.



Sec. 1202.28  What rules do NARA employees follow in managing personal 

information?

    All NARA employees and contractors involved in the design, 
development, operation or maintenance of any system of records must 
review the provisions of the Privacy Act and the regulations in this 
part. NARA employees and contractors must conduct themselves in 
accordance with the rules of conduct concerning the protection of 
nonpublic information in the Standards of Ethical Conduct for Employees 
of the Executive Branch, 5 CFR 2635.703.



Sec. 1202.30  How does NARA safeguard its systems of records?

    (a) The system manager ensures that appropriate administrative, 
technical, and physical safeguards are established to ensure the 
security and confidentiality of records. In order to protect against any 
threats or hazards to their security or loss of integrity, paper records 
are maintained in areas accessible only to authorized NARA personnel. 
Electronic records are protected in accordance with the Computer 
Security Act, OMB Circular A-11 requiring privacy analysis in reporting 
to OMB, and are accessed via passwords from terminals located in 
attended offices. After hours, buildings have security guards and/or 
doors are secured and all entrances are monitored by electronic 
surveillance equipment.

[[Page 715]]

    (b) The system manager, at his/her discretion, may designate 
additional safeguards similar to or greater than those described in 
paragraph (a) of this section for unusually sensitive records.
    (c) The system manager only permits access to and use of automated 
or manual personnel records to persons whose official duties require 
such access, or to you or to a representative designated by you.



                 Subpart C_Individual Access to Records



Sec. 1202.40  How can I gain access to NARA records about myself?

    (a) If you wish to request access to information about yourself 
contained in a NARA Privacy Act system of records, you must notify the 
NARA Privacy Act Officer, National Archives and Records Administration, 
Rm. 3110, 8601 Adelphi Rd., College Park, MD 20740-6001. If you wish to 
allow another person to review or obtain a copy of your record, you must 
provide authorization for that person to obtain access as part of your 
request.
    (b) Your request must be in writing and the letter and the envelope 
must be marked ``Privacy Act Request.'' Your request letter must 
contain:
    (1) The complete name and identifying number of the NARA system as 
published in the Federal Register;
    (2) A brief description of the nature, time, place, and 
circumstances of your association with NARA;
    (3) Any other information, which you believe, would help NARA to 
determine whether the information about you is included in the system of 
records;
    (4) If you are authorizing another individual to have access to your 
records, the name of that person; and
    (5) A Privacy Act certification of identity. When you make a request 
for access to records about yourself, you must verify your identity. 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 a Certification of Identity 
form for this purpose from the NARA Privacy Act Officer. The following 
information is required:
    (i) Your full name;
    (ii) An acknowledgment that you understand the criminal penalty in 
the Privacy Act for requesting or obtaining access to records under 
false pretenses (5 U.S.C. 552a(i)(3)); and
    (iii) A declaration that your statement is true and correct under 
penalty of perjury (18 U.S.C. 1001).
    (c) The procedure for accessing an accounting of disclosure is 
identical to the procedure for access to a record as set forth in this 
section.



Sec. 1202.42  How are requests for access to medical records handled?

    When NARA receives a request for access to medical records, if NARA 
believes that disclosure of medical and/or psychological information 
directly to you could have an adverse effect on you, you may be asked to 
designate in writing a physician or mental health professional to whom 
you would like the records to be disclosed, and disclosure that 
otherwise would be made to you will instead be made to the designated 
physician or mental health professional.



Sec. 1202.44  How long will it take for NARA to process my request?

    (a) NARA will acknowledge your request within 10 workdays of its 
receipt by NARA and if possible, will make the records available to you 
at that time. If NARA cannot make the records immediately available, the 
acknowledgment will indicate when the system manager will make the 
records available.
    (b) If NARA anticipates more than a 10 workday delay in making a 
record you requested available, NARA also will explain in the 
acknowledgment specific reasons for the delay.
    (c) If your request for access does not contain sufficient 
information to permit the system manager to locate the records, NARA 
will request additional information from you. NARA will have 10 workdays 
following receipt of the additional information in which to make the 
records available or to acknowledge receipt of the request and to 
indicate when the records will be available.

[[Page 716]]



Sec. 1202.46  In what ways will NARA provide access?

    (a) At your request, NARA will provide you, or a person authorized 
by you, a copy of the records by mail or by making the records available 
in person during normal business hours at the NARA facility where the 
records are located. If you are seeking access in person, the system 
manager will permit you to examine the original record, will provide you 
with a copy of the records, or both.
    (b) When obtaining access to the records in person at a NARA 
facility, you must provide proof of identification either by producing 
at least one piece of identification bearing a name or signature and 
either a photograph or physical description (e.g., a driver's license or 
employee identification card) or by signing the Certification of 
Identity form described in Sec. 1204.40 (b)(5). NARA reserves the right 
to ask you to produce additional pieces of identification to assure NARA 
of your identity. You will also be asked to sign an acknowledgement that 
you have been given access.



Sec. 1202.48  Will I have to pay for copies of records?

    Yes. However NARA will waive fees for the first 100 pages copied or 
when the cost to collect the fee will exceed the amount collected. When 
a fee is charged, the charge per copy is $0.20 per page if NARA makes 
the copy or $0.15 per page if you make the copy on a NARA self-service 
copier. Fees for other reproduction processes are computed upon request.



Sec. 1202.50  Does NARA require prepayment of fees?

    If the system manager determines that the estimated total fee is 
likely to exceed $250, NARA will notify you that the estimated fee must 
be prepaid before you can have copies of the records. If the final fee 
is less than the amount you prepaid, NARA will refund the difference.



Sec. 1202.52  How do I pay?

    You must pay by check or money order. Make your check or money order 
payable to the National Archives and Records Administration and send it 
to the NARA Privacy Act Officer, Room 3110, 8601 Adelphi Road, College 
Park, MD 20740-6001.



Sec. 1202.54  On what grounds can NARA deny my Privacy Act request?

    (a) NARA can deny your Privacy Act request for records if the 
records are maintained in an exempt systems of records are described in 
subpart F of this part.
    (b) A system manager may deny your request for access to your 
records only if:
    (1) NARA has published rules in the Federal Register exempting the 
pertinent system of records from the access requirement; and
    (2) The record is exempt from disclosure under the Freedom of 
Information Act (FOIA).
    (c) Upon receipt of a request for access to a record which is 
contained within an exempt system of records, NARA will:
    (1) Review the record to determine whether all or part of the record 
must be released to you in accordance with Sec. 1202.40, 
notwithstanding the inclusion of the record within an exempt system of 
records; and
    (2) Provide access to the record (or part of the record, if it is 
not fully releasable) in accordance with Sec. 1202.46 or notify you 
that the request has been denied in whole or in part.
    (d) If your request is denied in whole or in part, NARA's notice 
will include a statement specifying the applicable Privacy Act and FOIA 
exemptions and advising you of the right to appeal the decision as 
explained in Sec. 1202.56.



Sec. 1202.56  How do I appeal a denial of my Privacy Act request?

    (a) If you are denied access in whole or in part to records 
pertaining to yourself, you may file with NARA an appeal of that denial. 
Your appeal letter must be post marked no later than 35 calendar days 
after the date of the denial letter from NARA.
    (1) Address appeals involving denial of access to Office of 
Inspector General records to NARA Privacy Act Appeal Official (N), 
National Archives and Records Administration, Room 4200, 8601 Adelphi 
Road, College Park, MD 20740-6001.

[[Page 717]]

    (2) Address all other appeals to the NARA Privacy Act Appeal 
Official (ND), National Archives and Records Administration, Room 4200, 
8601 Adelphi Road, College Park, MD 20740-6001.
    (b) All appeals of denial of access to the NARA Privacy Act Appeal 
Official must be in writing. Mark both the envelope and the appeal 
``Privacy Act `` Access Appeal.''



Sec. 1202.58  How are appeals processed?

    (a) Upon receipt of your appeal, the NARA Privacy Act Appeal 
Official will consult with the system manager, legal counsel, and such 
other officials as may be appropriate. If the NARA Privacy Act Appeal 
Official determines that the records you requested are not exempt from 
release, NARA grants you access and so notifies you.
    (b) If the NARA Privacy Act Appeal Official determines that your 
appeal must be rejected, NARA will immediately notify you in writing of 
that determination. This decision is final and cannot be appealed 
further within NARA. NARA's notification to you will include:
    (1) The reason for the rejection of the appeal; and
    (2) Notice of your right to seek judicial review of NARA's final 
determination, as described in 36 CFR 1202.84.
    (c) NARA will make its final determination no later than 30 workdays 
from the date on which NARA receives your appeal. NARA may extend this 
time limit by notifying you in writing before the expiration of the 30 
workdays. This notification will include an explanation of the reasons 
for the time extension.



                     Subpart D_Disclosure of Records



Sec. 1202.60  When does NARA disclose a record in a Privacy Act system of 

records?

    NARA will not disclose any records in a Privacy Act system of 
records to any person or to another agency without the express written 
consent of the subject individual unless the disclosure is:
    (a) To NARA employees who have a need for the information in the 
official performance of their duties;
    (b) Required by the provisions of the Freedom of Information Act, as 
amended;
    (c) For a routine use that has been published in a notice in the 
Federal Register;
    (d) To the Bureau of Census for purposes of planning or carrying out 
a census or survey or related activity pursuant to title 13 U.S.C.;
    (e) To a person who has provided NARA with advance adequate written 
assurance as specified in Sec. 1202.62(a) that the record will be used 
solely as a statistical research or reporting record. (Personal 
identifying information is deleted from the record released for 
statistical purposes. The system manager ensures that the identity of 
the individual cannot reasonably be deduced by combining various 
statistical records.)
    (f) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States Government or for evaluation by the 
Archivist or the designee of the Archivist to determine whether the 
record has such value;
    (g) To another agency or any governmental jurisdiction within or 
under the control of the United States for a civil or criminal law 
enforcement activity if the activity is authorized by law, and if the 
head of the agency or his or her other designated representative has 
made a written request to NARA specifying the particular portion desired 
and the law enforcement activity for which the record is sought;
    (h) To a person showing compelling circumstances affecting the 
health or safety of an individual, and not necessarily the individual to 
whom the record pertains. A disclosure of this nature is followed by a 
notification to the last known address of the subject individual;
    (i) To either House of Congress or to a committee or subcommittee 
(joint or of either House), in the course of the performance of official 
legislative activities;
    (j) To the Comptroller General or any of his authorized 
representatives in the course of the performance of the duties of the 
General Accounting Office;

[[Page 718]]

    (k) Pursuant to the order of a court of competent jurisdiction; or
    (l) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(e).



Sec. 1202.62  What are the procedures for disclosure of records to a third 

party?

    (a) To obtain access to records about a person other than yourself, 
address the request to the NARA Privacy Act Officer, National Archives 
and Records Administration, Room 3110, 8601 Adelphi Rd., College Park, 
MD 20740-6001. If you are requesting access for statistical research as 
described in Sec. 1202.60(e), you must submit a written statement that 
includes as a minimum:
    (1) A statement of the purpose for requesting the records; and
    (2) Certification that the records will be used only for statistical 
purposes.
    (b) NARA will acknowledge your request within 10 workdays and will 
make a decision within 30 workdays, unless NARA notifies you that the 
time limit must be extended for good cause.
    (c) Upon receipt of your request, NARA will verify your right to 
obtain access to documents pursuant to Sec. 1202.60. Upon verification, 
the system manager will make the requested records available to you.
    (d) If NARA determines that the disclosure is not permitted under 
Sec. 1202.60, the system manager will deny your request in writing. 
NARA will inform you of the right to submit a request for review of the 
denial and a final determination to the appropriate NARA Privacy Act 
Appeal Officer.



Sec. 1202.64  How do I appeal a denial of disclosure?

    (a) Your request for a review of the denial of disclosure to records 
maintained by the Office of the Inspector General must be addressed to 
the NARA Privacy Act Appeal Officer (N), National Archives and Records 
Administration, Room 4200, 8601 Adelphi Rd., College Park, MD 20740-
6001.
    (b) Requests for a review of a denial of disclosure to all other 
NARA records must be addressed to the NARA Privacy Act Appeal Officer 
(ND), National Archives and Records Administration, Room 4200, 8601 
Adelphi Rd., College Park, MD 20740-6001.



Sec. 1202.66  How does NARA keep account of disclosures?

    (a) Except for disclosures made to NARA employees in the course of 
the performance of their duties or when required by the Freedom of 
Information Act (see Sec. 1202.60(a) and (b)), NARA keeps an accurate 
accounting of each disclosure and retains it for 5 years after the 
disclosure or for the life of the record, whichever is longer. The 
accounting includes the:
    (1) Date of disclosure;
    (2) Nature, and purpose of each disclosure; and
    (3) Name and address of the person or agency to which the disclosure 
is made.
    (b) The system manager also maintains with the accounting of 
disclosures:
    (1) A full statement of the justification for the disclosures;
    (2) All documentation surrounding disclosure of a record for 
statistical or law enforcement purposes; and
    (3) Evidence of written consent by the subject individual to a 
disclosure, if applicable.
    (c) Except for the accounting of disclosures made for a law 
enforcement activity (see Sec. 1202.60(g)) or of disclosures made from 
exempt systems (see subpart F of this part), the accounting of 
disclosures will be made available to the subject individual upon 
request. Procedures for requesting access to the accounting of 
disclosures are in subpart C.



                   Subpart E_Request To Amend Records



Sec. 1202.70  Whom should I contact at NARA to amend records about myself?

    If you believe that a record that NARA maintains about you is not 
accurate, timely, relevant or complete, you may request that the record 
be amended. Write to the NARA Privacy Act Officer, Room 3110, 8601 
Adelphi Rd, College Park, MD 20470-6001. Employees of NARA who desire to 
amend their personnel records should write to the Director, Human 
Resources Services Division. You should include as

[[Page 719]]

much information, documentation, or other evidence as needed to support 
your request to amend the pertinent record. Mark both the envelop and 
the letter with the phrase ``Privacy Act--Request To Amend Record.''



Sec. 1202.72  How does NARA handle requests to amend records?

    (a) NARA will acknowledge receipt of a request to amend a record 
within 10 workdays. If possible, the acknowledgment will include the 
system manager's determination either to amend the record or to deny 
your request to amend as provided in Sec. 1202.76.
    (b) When reviewing a record in response to your request to amend, 
the system manager will assess the accuracy, relevance, timeliness, and 
completeness of the existing record in light of your proposed amendment 
to determine if your request to amend is justified. If you request the 
deletion of information, the system manager also will review your 
request and the existing record to determine whether the information is 
relevant and necessary to accomplish NARA's purpose, as required by law 
or Executive order.



Sec. 1202.74  How will I know if NARA approved my amendment request?

    If NARA approves your amendment request, the system manager will 
promptly make the necessary amendment to the record and will send a copy 
of the amended record to you. NARA will also advise all previous 
recipients of the record, using the accounting of disclosures, that an 
amendment has been made and give the substance of the amendment. Where 
practicable, NARA will also send a copy of the amended record to 
previous recipients.



Sec. 1202.76  Can NARA deny my request for amendment?

    If the system manager denies your request to amend or determines 
that the record should be amended in a manner other than that requested 
by you, NARA will advise you in writing of the decision. The denial 
letter will state:
    (a) The reasons for the denial of your amendment request;
    (b) Proposed alternative amendments, if appropriate;
    (c) Your right to appeal the denial; and
    (d) The procedures for appealing the denial.



Sec. 1202.78  How do I accept an alternative amendment?

    If your request to amend a record is denied and NARA suggested 
alternative amendments, and you agree to those alternative amendments, 
you must notify the Privacy Act Officer who will then make the necessary 
amendments in accordance with Sec. 1202.74.



Sec. 1202.80  How do I appeal the denial of a request to amend a record?

    (a) If you disagree with a denial of your request to amend a record, 
you can file an appeal of that denial.
    (1) Address your appeal of the denial to amend records signed by a 
system manager other than the Inspector General, to the NARA Privacy Act 
Appeal Official (ND), Room 3110, 8601 Adelphi Road, College Park, MD, 
20740-6001.
    (2) Address the appeal of the denial to amend records signed by the 
Inspector General to the NARA Privacy Act Appeal Official (N), Room 
3110, 8601 Adelphi Road, College Park, MD, 20740-6001.
    (3) For current NARA employees if the denial to amend concerns a 
record maintained in the employee's Official Personnel Folder or in 
another Government-wide system maintained by NARA on behalf of another 
agency, NARA will provide the employee with name and address of the 
appropriate appeal official in that agency.
    (b) Appeals to NARA must be in writing and must be postmarked no 
later than 35 calendar days from the date of the NARA denial of a 
request to amend. Your appeal letter and envelope must be marked 
``Privacy Act--Appeal''.
    (c) Upon receipt of an appeal, the NARA Privacy Act Appeal Official 
will consult with the system manager, legal counsel, and such other 
officials as may be appropriate. If the appeal official determines that 
the record should be amended, he or she will instruct the system manager 
to amend the record in accordance with Sec. 1202.74 and will notify you 
of that action.

[[Page 720]]

    (d) If, after consulting with officials specified in paragraph (c) 
of this section, the NARA Privacy Act Appeal Official determines that 
your appeal should be rejected, the NARA Privacy Act Appeal Official 
will notify you in writing of that determination. This notice serves as 
NARA's final determination on your request to amend a record. The letter 
to you will include:
    (1) The reason for the rejection of your appeal;
    (2) Proposed alternative amendments, if appropriate, which you may 
accept (see 36 CFR 1202.78 for the procedure);
    (3) Notice of your right to file a Statement of Disagreement for 
distribution in accordance with Sec. 1202.82; and
    (4) Notice of your right to seek judicial review of the NARA final 
determination, as provided in Sec. 1202.84.
    (e) The NARA final determination will be made no later than 30 
workdays from the date on which the appeal is received by the NARA 
Privacy Act Appeal Official. In extraordinary circumstances, the NARA 
Privacy Act Appeal Official may extend this time limit by notifying you 
in writing before the expiration of the 30 workdays. The notification 
will include a justification for the extension of time.



Sec. 1202.82  How do I file a Statement of Disagreement?

    If you receive a NARA final determination denying your request to 
amend a record, you may file a Statement of Disagreement with the 
appropriate system manager. The Statement of Disagreement must include 
an explanation of why you believe the record to be inaccurate, 
irrelevant, untimely, or incomplete. The system manager will maintain 
your Statement of Disagreement in conjunction with the pertinent record. 
The System Manager will send a copy of the Statement of Disagreement to 
any person or agency to whom the record has been disclosed, only if the 
disclosure was subject to the accounting requirements of Sec. 1202.60.



Sec. 1202.84  Can I seek judicial review?

    Yes, within 2 years of receipt of a NARA final determination as 
provided in Sec. 1202.54 or Sec. 1202.80, you may seek judicial review 
of that determination. You may file a civil action in the Federal 
District Court:
    (a) In which you reside or have a principal place of business;
    (b) In which the NARA records are located; or
    (c) In the District of Columbia.



                          Subpart F_Exemptions



Sec. 1202.90  What NARA systems of records are exempt from release under the 

National Security Exemption of the Privacy Act?

    (a) The Investigative Case Files of the Inspector General (NARA-23) 
and the Personnel Security Case Files (NARA-24) systems of records are 
eligible for exemption under 5 U.S.C. 552a(k)(1) because the records in 
these systems:
    (1) Contain information specifically authorized under criteria 
established by an Executive Order to be kept secret in the interest of 
national defense or foreign policy and
    (2) Are in fact properly classified pursuant to such Executive 
Order.
    (b) The systems described in paragraph (a) are exempt from 5 U.S.C. 
552a (c)(3), (d), (e)(1), and (e)(4)(G) and (H). Exemptions from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because accounting for each disclosure 
could result in the release of properly classified information which 
would compromise the national defense or disrupt foreign policy.
    (2) From the access and amendment provisions of subsection (d) 
because access to the records in these systems of records could result 
in the release of properly classified information which would compromise 
the national defense or disrupt foreign policy. Amendment of either of 
these series of records would interfere with ongoing investigations and 
law enforcement or national security activities and impose an impossible 
administrative burden by requiring investigations to be continuously 
reinvestigated.
    (3) From subsection (e)(1) because verification of the accuracy of 
all information to the records could result

[[Page 721]]

in the release of properly classified information which would compromise 
the national defense or disrupt foreign policy.
    (4) From subsection (e)(4)(G) and (H) because these systems are 
exempt from the access and amendment provisions of subsection (d), 
pursuant to subsection (k)(1) of the Privacy Act.



Sec. 1202.92  What NARA systems of records are exempt from release under the 

Law Enforcement Exemption of the Privacy Act?

    (a) The Investigative Files of the Inspector General (NARA-23) 
system of records is eligible for exemption under 5 U.S.C. 552a(k)(2) 
because this record system contains investigatory material of actual, 
potential or alleged criminal, civil or administrative violations, 
compiled for law enforcement purposes other than within the scope of 
subsection (j)(2) of 5 USC 552a. If you are denied any right, privilege 
or benefit that you would otherwise be entitled by Federal law, or for 
which you would otherwise be eligible, as a result of the record, NARA 
will make the record available to you, except for any information in the 
record that would disclose the identity of a confidential source as 
described in 5 U.S.C. 552a(k)(2).
    (b) The system described in paragraph (a) of this section is exempt 
from 5 U.S.C. 552a (c)(3), (d), (e)(1) and (e)(4) (G) and (H), and (f). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because release of disclosure accounting 
could alert the subject of an investigation about the alleged 
violations, to the existence of the investigation and to the fact that 
they are being investigated by the Office of Inspector General (OIG) or 
another agency. Release of such information could provide significant 
information concerning the nature of the investigation, resulting in the 
tampering or destruction of evidence, influencing of witnesses, danger 
to individuals involved, and other activities that could impede or 
compromise the investigation.
    (2) From the access and amendment provisions of subsection (d) 
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 administrative violation, of the existence of that 
investigation; of the nature and scope of the information and evidence 
obtained as to his/her activities; of the identity of confidential 
sources, witnesses, and law enforcement personnel; and of information 
that may enable the subject to avoid detection or apprehension. These 
factors would present a serious impediment to effective law enforcement 
where they prevent the successful completion of the investigation, 
endanger the physical safety of confidential sources, witnesses, and law 
enforcement personnel, and/or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, granting access to such information could disclose 
security-sensitive or confidential business information or information 
that would constitute an unwarranted invasion of the personal privacy of 
third parties. The amendment of these records could allow the subject to 
avoid detection or apprehension and interfere with ongoing 
investigations and law enforcement activities.
    (3) From subsection (e)(1) because the application of this provision 
could impair investigations and interfere with the law enforcement 
responsibilities of the OIG or another agency for the following reasons:
    (i) It is not possible to detect relevance or need for specific 
information in the early stages of an investigation, case or matter. 
After the information is evaluated, relevance and necessity may be 
established.
    (ii) During an investigation, the OIG may obtain information about 
other actual or potential criminal, civil or administrative violations, 
including those outside the scope of its jurisdiction. The OIG should 
retain this information, as it may aid in establishing patterns of 
inappropriate activity, and can provide valuable leads for Federal and 
other law enforcement agencies.
    (iii) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information may be supplied to an 
investigator, which relates to matters incidental to the

[[Page 722]]

primary purpose of the investigation but which may relate also to 
matters under the investigative jurisdiction of another agency. Such 
information cannot readily be segregated.
    (iv) From subsection (e)(4)(G) and (H) because this system is exempt 
from the access and amendment provisions of subsection (d), pursuant to 
subsection (k)(2) of the Privacy Act.
    (v) From subsection (f) because this system is exempt from the 
access and amendment provisions of subsection (d), pursuant to 
subsection (k)(2) of the Privacy Act.



Sec. 1202.94  What NARA systems of records are exempt from release under the 

Investigatory Information Material exemption of the Privacy Act?

    (a) The Personnel Security Case Files (NARA-24) system of records is 
eligible for exemption under 5 U.S.C. 552a(k)(5) because it contains 
investigatory material compiled solely for the purpose of determining 
suitability, eligibility, or qualifications for federal employment or 
access to classified information. The only information exempt under this 
provision is that which would disclose the identity of a confidential 
source described in 5 U.S.C. 552a(k)(2).
    (b) The system of records described in paragraph (a) of this section 
is exempt from 5 U.S.C. 552a(d)(1). Exemption from the particular 
subsection is justified as access to records in the system would reveal 
the identity(ies) of the source(s) of information collected in the 
course of a background investigation.



PART 1206_NATIONAL HISTORICAL PUBLICATIONS AND RECORDS COMMISSION--Table of 

Contents




Sec.

                            Subpart A_General

1206.1 How are these Questions and Answers formatted?
1206.2 What does this part cover?
1206.3 What terms have you defined?
1206.4 What is the purpose of the Commission?
1206.5 Who serves on the Commission?
1206.6 How do you organize the grant program?
1206.8 How do you operate the grant program?
1206.10 How do you make grant opportunities known?
1206.11 How may an applicant apply for an NHPRC grant?
1206.12 What are my responsibilities once I have received a grant?

                      Subpart B_Publications Grants

1206.20 What are the scope and purpose of publications grants?
1206.22 What type of proposal is eligible for a publications grant?
1206.24 What type of proposal is ineligible for a publications grant?

                        Subpart C_Records Grants

1206.30 What is the scope and purpose of records grants?
1206.32 What type of proposal is eligible for a records grant?
1206.34 What type of proposal is ineligible for a records grant?

                     Subpart D_State Records Program

1206.40 What is a State records program?
1206.41 What is a state historical records advisory board and how is it 
          constituted?
1206.42 What is a State Coordinator?
1206.43 What are the duties of the deputy state coordinator?
1206.44 Who is eligible for subgrants?
1206.45 What rules govern subgrant distribution, cost sharing, grant 
          administration, and reporting?

                   Subpart E_Applying for NHPRC Grants

1206.50 What types of funding and cost sharing arrangements does the 
          Commission make?
1206.52 Does the Commission ever place conditions on its grants?
1206.54 Who may apply for NHPRC grants?
1206.56 When are applications due?
1206.58 How do I apply for a grant?
1206.60 What must I provide as a formal grant application?
1206.62 Who reviews and evaluates grant proposals?
1206.64 What formal notification will I receive, and will it contain 
          other information?

                     Subpart F_Grant Administration

1206.70 Who is responsible for administration of NHPRC grants?
1206.72 Where can I find the regulatory requirements that apply to NHPRC 
          grants?
1206.74 Do I need prior written approval for changes to the grant 
          project?
1206.76 How do I obtain written approval for changes in my grant 
          project?

[[Page 723]]

1206.80 What reports am I required to make?
1206.82 What is the format and content of the financial report?
1206.84 What is the format and content of the narrative report?
1206.86 What additional materials must I submit with the final narrative 
          report?
1206.88 Does the NHPRC have any liability under a grant?
1206.90 Must I acknowledge NHPRC grant support?

    Authority: 44 U.S.C. 2104(a); 44 U.S.C. 2501-2506.

    Source: 71 FR 27624, May 12, 2006, unless otherwise noted.



                            Subpart A_General



Sec. 1206.1  How are these Questions and Answers formatted?

    As if you, the reader, were asking us, the National Historical 
Publications and Records Commission, these questions.



Sec. 1206.2  What does this part cover?

    This part prescribes the procedures and rules governing the 
operation of the grant program of the National Historical Publications 
and Records Commission.



Sec. 1206.3  What terms have you defined?

    (a) The terms Commission and NHPRC mean members of the National 
Historical Publications and Records Commission acting as a body.
    (b) The term NHPRC staff refers to the Executive Director and the 
staff of the Commission or the Executive Director of the Commission.
    (c) The term guidance refers to a non-binding document published on 
the NHPRC Web site to clarify or explain Commission policy or to provide 
procedural details.
    (d) The term The Manual of Suggested Practices refers to The Manual 
of Suggested Practices for State Historical Records Advisory Boards. It 
is a type of guidance.
    (e) The term grant opportunity announcement refers to a document 
published on the NHPRC Web site, on the Grants.gov Web site, and in the 
Federal Register that describes a type of grant offered, eligibility 
requirements, and application instructions.
    (f) The term historical records means documentary material having 
permanent or enduring value, including manuscripts, personal papers, 
official records, maps, audiovisual materials, and electronic files.
    (g) The term historical records repository means organizations whose 
mission is to acquire, preserve, and promote the use of historical 
records. They include archives, special collections, museums, and 
historical societies.
    (h) The term State in Sec. Sec. 1206.40 through 1206.42, means all 
50 States of the Union, plus the District of Columbia, Puerto Rico, the 
U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the 
Northern Mariana Islands.
    (i) The term  cost sharing means the financial contribution the 
applicant pledges to the total cost of a project. Cost sharing can 
include both direct and indirect expenses, provided by the applicant or 
by third-parties as in-kind or cash contributions, and any income earned 
directly by the project.
    (j) The term  direct costs means expenses that are attributable 
directly to the cost of a project, such as salaries, project supplies, 
travel expenses, equipment rented or purchased for the project or 
services procured for the project.
    (k) The term  indirect costs means costs incurred for common or 
joint objectives of an applicant's organization and therefore not 
attributable to a specific project or activity. Typically, indirect 
costs include items such as overhead for facilities maintenance and 
accounting services.
    (l) The term  board refers to a State historical records advisory 
board.
    (m) The term  coordinator means the coordinator of a State 
historical records advisory board.



Sec. 1206.4  What is the purpose of the Commission?

    The National Historical Publications and Records Commission, a 
statutory body affiliated with the National Archives and Records 
Administration, supports a wide range of activities to preserve, 
publish, and encourage the use of primary documentary sources. Through 
our grant programs, training programs, and special projects, we offer 
advice and assistance to state and local

[[Page 724]]

government agencies, non-Federal nonprofit organizations and 
institutions, Federally-acknowledged or State-recognized Native American 
tribes or groups, and individuals committed to the preservation, 
publication, or use of United States documentary resources.



Sec. 1206.5  Who serves on the Commission?

    Established by Congress in 1934, the Commission is a 15-member body, 
chaired by the Archivist of the United States and comprised of 
representatives of the three branches of the Federal Government and of 
professional associations of archivists, historians, documentary 
editors, and records administrators.



Sec. 1206.6  How do you organize the grant program?

    We offer grants to support publications projects (subpart B), and 
records projects (subpart C). State grants (subpart D) are made to 
designated state agencies for statewide archival services and may 
include subgrants to individuals and institutions. We also support a 
variety of professional development opportunities.



Sec. 1206.8  How do you operate the grant program?

    (a) The Executive Director manages the program under Commission 
guidance and the immediate administrative direction of its Chairman, the 
Archivist of the United States.
    (b) The Commission establishes grant program priorities as reflected 
in its Grant Opportunity Announcements and, from time-to-time, issues 
non-binding, clarifying guidance documents through the NHPRC Web site.
    (c) To assure fair treatment of every application, all members of 
the Commission and its staff follow conflict-of-interest rules.
    (d) The purpose and work plan of all NHPRC-funded grant projects 
must be in accord with current Commission program guidance as reflected 
in the Grant Opportunity Announcements.
    (e) The Archivist of the United States makes the final grant award 
upon the recommendation of the Commission.



Sec. 1206.10  How do you make grant opportunities known?

    (a) The Commission annually determines which grant opportunities it 
will offer, and establishes eligibility, application deadlines, and 
programmatic requirements.
    (b) The NHPRC staff prepares grant opportunity announcements 
consisting of all information necessary to apply for each grant and 
publishes the announcements on the NHPRC Web site (http://
www.archives.gov/nhprc) at least four months before the final 
application due date.
    (c) The NHPRC staff also publishes notice of each announcement in 
the Federal Register and on http://www.Grants.gov, a Federal government 
Internet site widely available to the public, at least four months 
before the final application due date.



Sec. 1206.11  How may an applicant apply for an NHPRC grant?

    Applicants may apply for a grant using Grants.gov or by using other 
electronic or paper forms and documents, according to the instructions 
in each announcement.



Sec. 1206.12  What are my responsibilities once I have received a grant?

    (a) Comply with all Federal regulations related to grants 
administration.
    (b) Comply with NHPRC grant announcements and other Commission 
guidance.
    (c) Meet performance requirements defined in your grant application.
    (d) Report on performance requirements defined in your grant 
application and other performance measures specified in the grant award.
    (e) Comply with conditions set by the Commission according to Sec. 
1206.52.



                      Subpart B_Publications Grants



Sec. 1206.20  What are the scope and purpose of publications grants?

    Publications grants support projects intended to make widely 
available those documentary source materials important to the study and 
understanding of United States history. In order to receive a 
publications grant, a

[[Page 725]]

project must intend to publish historical records of national value and 
interest.



Sec. 1206.22  What type of proposal is eligible for a publications grant?

    (a) The Commission provides grants for publishing papers of United 
States leaders and historical records relating to outstanding events, 
topics, themes, or movements of national significance in United States 
history. These projects include the production of:
    (1) Documentary editions that involve collecting, compiling, 
transcribing, editing, annotating, and publishing, either selectively or 
comprehensively, historical papers and records;
    (2) Microfilm editions consisting of organized collections of images 
of original sources, usually without transcription and annotations;
    (3) Electronic editions consisting of organized collections of 
images of original editions. Electronic editions may include 
transcriptions and/or annotations and other data to facilitate document 
discovery;
    (4) Electronic editions of transcribed and annotated documents, 
including electronic republications of hard copy editions; and
    (5) Any combination of editions specified in paragraphs (a)(1) 
through (a)(4) of this section.
    (b) The Commission may also support projects to develop methods, 
tools, techniques, and practices to improve and advance the documentary 
editing profession in the United States, and to support projects that 
apply information technology to publishing projects.
    (c) The Commission may also support subvention grants to nonprofit 
presses to help defray publication costs of NHPRC-supported or endorsed 
editions.
    (d) The Commission may also support fellowships, institutes, and 
other professional development opportunities related to this program.
    (e) Detailed programmatic requirements established by the Commission 
are found in the grant opportunity announcements.



Sec. 1206.24  What type of proposal is ineligible for a publications grant?

    (a) We do not support:
    (1) Historical research apart from what is necessary for editing 
documentary publications; or
    (2) Documentary editing projects to publish the papers of someone 
who has been deceased for fewer than ten years.
    (b) Other programmatic limitations established by the Commission are 
found in the grant opportunity announcements.



                        Subpart C_Records Grants



Sec. 1206.30  What is the scope and purpose of records grants?

    (a) Records grants support projects designed to preserve and 
facilitate use of historical records of national, state, or local 
significance for the purpose of furthering an understanding and 
appreciation of United States history and assuring the rights of 
American citizens to free and equal access to government records.
    (b) The Commission also supports projects to develop methods, tools, 
techniques, and practices to improve and advance the archival profession 
in the United States, and to support continuing education of archivists, 
records managers, and other keepers of historical records.



Sec. 1206.32  What type of proposal is eligible for a records grant?

    (a) The Commission provides grants to historical records 
repositories for locating, preserving and encouraging use of records 
held by state, local, and other governmental units and private archives 
and collections of papers maintained in nonfederal, nonprofit 
repositories and special collections relating to the study of American 
history.
    (b) The Commission provides support to historical records 
repositories, other institutions, and individuals for:
    (1) Advancing the state of the art in archival and records 
management and in the long-term maintenance of, and easy access to, 
authentic electronic records;
    (2) Promoting cooperative efforts among institutions and 
organizations in archival and records management;
    (3) Improving the knowledge, performance, and professional skills of 
those who work with historical records; and

[[Page 726]]

    (4) Continuing archival education, including fellowships, 
institutes, and symposia.



Sec. 1206.34  What type of proposal is ineligible for a records grant?

    In addition to other programmatic limitations established by the 
Commission as found in the grant opportunity announcements, we do not 
support proposals:
    (a) For building projects;
    (b) To purchase manuscripts or historical records;
    (c) For projects involving substantial work with artifacts, library 
materials, or works of art; or
    (d) For exhibits or celebrations, reenactments, and other 
observations of historical events.



                     Subpart D_State Records Program



Sec. 1206.40  What is a State records program?

    (a) Each State is eligible to receive NHPRC grants to support the 
work of the State Historical Records Advisory Board (Board); to operate 
statewide historical records services; and to make subgrants to eligible 
organizations and individuals within the state in support of historical 
records activities.
    (b) Boards review and comment on applications for NHPRC records 
projects grants submitted from their states, according to The Manual of 
Suggested Practices.



Sec. 1206.41  What is a state historical records advisory board and how is it 

constituted?

    (a) Responsibilities. The Board is the central advisory body for 
historical records coordination within the state and for NHPRC state and 
local records projects within the state. The Board engages in planning; 
it develops, revises, and submits to the Commission a state plan 
including priorities for state historical records projects following The 
Manual of Suggested Practices. The Board reviews all state and local 
records projects within the state and makes recommendations for state 
projects to the Commission.
    (b) Appointments. Each state participating in the NHPRC state 
program must adopt an appointment process and appoint a Board following 
The Manual of Suggested Practices. The appointment process and 
membership must be reported at least annually to the Commission. A 
majority of members should have recognizable experience in the 
administration of records, manuscripts, or archives. The Board should be 
as broadly representative as possible of the public and private 
archives, records offices, and research institutions and organizations 
in the state.



Sec. 1206.42  What is a State Coordinator?

    (a) Duties. The state coordinator (coordinator) is the officer 
responsible for the NHPRC state program. He or she reports the state 
Board appointment process, membership and recommendations to the NHPRC 
at least on an annual basis and may serve as chair of the Board and may 
perform other duties following applicable state statute or regulation 
and The Manual of Suggested Practices.
    (b) Appointment. The coordinator should be the full-time 
professional official in charge of the state archival program or agency, 
unless otherwise specified in state statute or regulation. The 
coordinator serves ex officio, unless otherwise specified in state 
statute or regulation. The coordinator is not deemed to be an official 
or employee of the Federal Government and receives no Federal 
compensation for such service.
    (c) Replacement. In the event that the coordinator position is 
vacant or the coordinator is otherwise unable to serve, a deputy 
coordinator, if one has been designated, serves as acting coordinator 
until another coordinator is appointed. In the absence of a deputy 
coordinator, the state board may select an acting coordinator until 
another coordinator is appointed, in order to conduct the necessary 
business of the Board.

[[Page 727]]



Sec. 1206.43  What are the duties of the deputy state coordinator?

    The coordinator may designate a deputy state coordinator to assist 
in carrying out the duties and responsibilities of the coordinator and 
to serve as an acting coordinator at the coordinator's direction or upon 
the coordinator's resignation or inability to serve.



Sec. 1206.44  Who is eligible for subgrants?

    All organizations and individuals located within a State that has an 
active State Historical Records Board and defined in Sec. 1206.54 may 
be eligible as determined by the Board.



Sec. 1206.45  What rules govern subgrant distribution, cost sharing, grant 

administration, and reporting?

    (a) The Commission will annually establish guidance published in the 
grant opportunity announcement for State grants regarding:
    (1) The distribution of regrant funds;
    (2) Cost sharing and matching requirements; and
    (3) Reporting.
    (b) Each participating state is responsible for ensuring that the 
subgrantees comply with Federal grant administration and reporting 
requirements.
    (c) Each participating state must annually prepare a report to the 
NHPRC on its subgrant program, following the requirements outlined in 
Sec. 1206.80.



                   Subpart E_Applying for NHPRC Grants



Sec. 1206.50  What types of funding and cost sharing arrangements does the 

Commission make?

    (a) Types of grants. (1) Matching grant. A matching grant is a 
federal grant awarded only after the applicant raises its share of 
nonfederal support for a project. We will only match funds raised from 
nonfederal sources, either monies provided by the applicant's own 
institution specifically for the project or from a nonfederal third-
party source. The Commission does not ordinarily make matching grants.
    (2) Outright grant. Outright grants are those awards we make without 
any matching requirement. However, outright grants usually include a 
cost-sharing requirement.
    (b) Cost sharing.
    (1) Cost sharing consists of the applicant's contribution to the 
cost of the project. The Commission ordinarily expects the applicant to 
provide cost sharing in an amount equal to the amount of the Federal 
grant award. Exceptions to the one-to-one cost sharing requirement may 
be set by the Commission in specific grant opportunity announcements.
    (2) Cost sharing may include cash or in-kind contributions provided 
by the applicant or by a non-Federal third party.
    (3) We prefer the applicant cover indirect costs through cost 
sharing.



Sec. 1206.52  Does the Commission ever place conditions on its grants?

    Yes, the Commission may place certain conditions on its grants. We 
describe applicable conditions in each grant opportunity announcement.



Sec. 1206.54  Who may apply for NHPRC grants?

    The Commission will consider applications from State government 
agencies in states where there is an active Board, local government 
agencies, United States nonprofit organizations and institutions, 
including institutions of higher education, Federally-acknowledged and 
State-recognized American Indian tribes or groups, and United States 
citizens applying as individuals. Federal agencies are not eligible to 
apply.



Sec. 1206.56  When are applications due?

    (a) The Commission generally meets twice a year, and we consider 
grant proposals postmarked by the deadlines set by the Commission and 
published in each grant opportunity and through Grants.gov. All 
proposals must be postmarked or submitted by those deadlines.
    (b) Some State boards have established pre-submission review 
deadlines for records proposals; further information is available from 
each state coordinator.

[[Page 728]]



Sec. 1206.58  How do I apply for a grant?

    (a) Contact the NHPRC staff. We encourage you to discuss your 
proposal through correspondence, by phone, or in person with NHPRC 
staff.
    (b) Contact your State Historical Records Advisory Board as 
appropriate. We encourage you to discuss your proposal with your State 
historical records coordinator at all stages of your proposal's 
development and before you submit the proposal.
    (1) Contact is not necessary if:
    (i) Your proposal is for national publications or subvention 
projects;
    (ii) You are an American Indian applying as an individual or 
applying as an American Indian tribe; or
    (iii) Your project will largely take place in more than one state, 
or your project is primarily of national significance.
    (2) You will find the staff contacts and a list of State historical 
records coordinators on our Web site at http://www.archives.gov/nhprc.
    (3) The Commission encourages you to submit electronic applications 
and may at its discretion require electronic applications. Application 
options are included with each grant opportunity announcement.



Sec. 1206.60  What must I provide as a formal grant application?

    The forms and other documents you must submit are listed with each 
grant opportunity announcement on the NHPRC Web site. OMB Control Number 
3095-0013 has been assigned to this information collection.



Sec. 1206.62  Who reviews and evaluates grant proposals?

    (a) State boards. State historical records advisory boards may 
evaluate your proposal according to Commission grant opportunity 
announcements.
    (b) Peer reviewers. The NHPRC staff may ask external peer reviewers 
to evaluate the proposal according to Commission grant announcements.
    (c) Other reviewers. The Commission staff may require additional 
reviews.
    (d) NHPRC staff. NHPRC staff analyzes the reviewers' comments, and 
considers the appropriateness of the project toward fulfilling 
Commission goals, the proposal's completeness and conformity to 
application requirements. The staff, through a questions letter or email 
to you, raises issues and concerns and allows you the opportunity to 
respond. The staff makes recommendations to the Commission.
    (e) The Commission. The Commission deliberates on all eligible 
proposals and recommends to the Archivist of the United States what 
action to take on each (fund, partially fund, endorse, reject, 
resubmit). By statute the Archivist chairs the Commission and has final 
authority to make or deny a grant.



Sec. 1206.64  What formal notification will I receive, and will it contain 

other information?

    (a) The formal grant award document is sent to successful applicants 
from the Archivist of the United States. The document and attachments 
specify terms of the grant. NHPRC staff notifies project directors 
informally of awards and any conditions soon after the Commission 
recommends the grant to the Archivist of the United States.
    (b) The grant period begins and ends on the dates specified in the 
award document.



                     Subpart F_Grant Administration



Sec. 1206.70  Who is responsible for administration of NHPRC grants?

    The grantee institution and the institution-designated project 
director share primary responsibility for the administration of grants. 
In the case of grants made to individuals, the project director has sole 
responsibility for the administration of the grant.



Sec. 1206.72  Where can I find the regulatory requirements that apply to NHPRC 

grants?

    (a) In addition to this part 1206, NARA has issued other regulations 
that apply to NHPRC grants in 36 CFR ch. XII, subchapter A and 2 CFR 
Part 2600. Additionally you must comply with 2 CFR Part 180. NARA also 
applies the principles and standards in the following Office of 
Management and Budget (OMB) Circulars for NHPRC grants:
    (1) OMB Circular A-21, ``Cost Principles for Educational 
Institutions'';

[[Page 729]]

    (2) OMB Circular A-87, ``Cost Principles for State, Local and Indian 
Tribal Governments'';
    (3) OMB Circular A-122, ``Cost Principles for Nonprofit 
Organizations''; and
    (4) OMB Circular A-133, ``Audits of States, Local Governments, and 
Nonprofit Organizations.''
    (b) The OMB Circulars are available at http://www.whitehouse.gov/
omb/circulars/index.html.
    (c) Additional policy guidance related to Title VI of the Civil 
Rights Act of 1964, regarding persons with limited English proficiency, 
is provided in Commission guidance at http://www.archives.gov/nhprc/ and 
from the NHPRC staff.

[71 FR 27624, May 12, 2006, as amended at 72 FR 2768, Jan. 23, 2007]



Sec. 1206.74  Do I need prior written approval for changes to the grant 

project?

    You must obtain prior written approval from the Commission for most 
changes in the grant project and terms of the grant. Detailed 
instructions are found in How to Administer an NHPRC Grant available at 
http://www.archives.gov/NHPRC or from the NHPRC staff.



Sec. 1206.76  How do I obtain written approval for changes in my grant 

project?

    (a) Requests for changes in the project must be submitted in writing 
and signed by grantee's authorized representative. The signed, written 
response of the Commission's Executive Director, or the Executive 
Director's designee, will constitute approval for the change.
    (b) Requests for extensions of the grant period should be signed by 
the grantee's authorized representative and submitted not more than two 
months before the scheduled end of the grant period. We will not allow 
extensions unless a project is up-to-date in its submission of financial 
and narrative reports.



Sec. 1206.80  What reports am I required to make?

    (a) Grant recipients are generally required to submit annual 
financial status reports and semi-annual narrative progress reports, as 
well as final financial and narrative reports at the conclusion of the 
grant period. The grant award document will specify the dates on which 
your reports are due. In order to fulfill its oversight and monitoring 
responsibilities, the NHPRC or Commission may require additional reports 
or information at any time during the grant. OMB Control Number 3095-
0013 has been assigned to this information collection.
    (b) Detailed reporting requirements are found in How to Administer 
an NHPRC Grant available at http://www.archives.gov/NHPRC or from the 
NHPRC staff.



Sec. 1206.82  What is the format and content of the financial report?

    Grant recipients must submit financial reports on Standard Form 269, 
if there is program income to report, or Standard Form 269A (Short 
Form), and have them signed by the grantee's authorized representative 
or by an appropriate institutional fiscal officer. If cost-sharing 
figures are less than 80 percent of the amount anticipated in the 
project budget, you must explain the reason for the difference.



Sec. 1206.84  What is the format and content of the narrative report?

    (a) Interim narrative reports should state briefly the performance 
objectives and activities for the entire grant and then focus on those 
accomplished during the reporting period. The report should include a 
summary of project activities; whether the project proceeded on 
schedule; any revisions of the work plan, staffing pattern, or budget; 
any Web address created by the project; and any other press releases 
articles or presentations relating to the grant project or its products. 
It should include an analysis of the objectives met during the reporting 
period and any objectives for the period that were not accomplished. For 
documentary editing projects, it also must include information about the 
publication of volumes and the completion of finding aids, as well as 
any work that is pending with publishers.
    (b) The final report must provide a detailed assessment of the 
entire

[[Page 730]]

project, following the format in paragraph (a) of this section, 
including whether the performance objectives and goals set in the 
original proposal were realistic; whether there were unpredicted results 
or outcomes; whether the project encountered unexpected problems and how 
you faced them; and how you could have improved the project. You must 
discuss the project's impact, if any, on the grant-receiving institution 
and others. You must indicate whether all or part of the project 
activities will be continued after the end of the grant, whether any of 
these activities will be supported by institutional funds or by grant 
funds, and if the NHPRC grant was instrumental in obtaining these funds.
    (c) The project director must sign final narrative reports.



Sec. 1206.86  What additional materials must I submit with the final narrative 

report?

    You must submit the materials determined by the Commission as found 
in the NHPRC grant announcements or specified in the grant award.



Sec. 1206.88  Does the NHPRC have any liability under a grant?

    No, the National Archives and Records Administration (NARA) and the 
Commission cannot assume any liability for accidents, illnesses, or 
claims arising out of any work undertaken with the assistance of the 
grant.



Sec. 1206.90  Must I acknowledge NHPRC grant support?

    Yes, grantee institutions, grant project directors, or grant staff 
personnel may publish results of any work supported by an NHPRC grant 
without review by the Commission; however, publications or other 
products resulting from the project must acknowledge the assistance of 
the NHPRC grant and all copies paid for by grant funds must be 
distributed at a reasonable cost.



PART 1207_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE 

AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                            Subpart A_General

Sec.
1207.1 Purpose and scope of this part.
1207.2 Scope of subpart.
1207.3 Definitions.
1207.4 Applicability.
1207.5 Effect on other issuances.
1207.6 Additions and exceptions.

                    Subpart B_Pre-Award Requirements

1207.10 Forms for applying for grants.
1207.11 State plans.
1207.12 Special grant or subgrant conditions for ``high-risk'' grantees.

                    Subpart C_Post-Award Requirements

                        Financial Administration

1207.20 Standards for financial management systems.
1207.21 Payment.
1207.22 Allowable costs.
1207.23 Period of availability of funds.
1207.24 Matching or cost sharing.
1207.25 Program income.
1207.26 Non-Federal audit.

                    Changes, Property, and Subawards

1207.30 Changes.
1207.31 Real property.
1207.32 Equipment.
1207.33 Supplies.
1207.34 Copyrights.
1207.35 Subawards to debarred and suspended parties.
1207.36 Procurement.
1207.37 Subgrants.

              Reports, Records, Retention, and Enforcement

1207.40 Monitoring and reporting program performance.
1207.41 Financial reporting.
1207.42 Retention and access requirements for records.
1207.43 Enforcement.
1207.44 Termination for convenience.

                 Subpart D_After-the-Grant Requirements

1207.50 Closeout.
1207.51 Later disallowances and adjustments.
1207.52 Collection of amounts due.

Subpart E--Entitlement [Reserved]


[[Page 731]]


    Authority: 44 U.S.C. 2104(a); 44 U.S.C. 2501-2506.

    Source: 53 FR 8072, 8087, Mar. 11, 1988, unless otherwise noted.



                            Subpart A_General



Sec. 1207.1  Purpose and scope of this part.

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



Sec. 1207.2  Scope of subpart.

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



Sec. 1207.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from programmatic 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for grant and 
subgrant in this section and except where qualified by Federal) a 
procurement contract under a grant or subgrant, and means a procurement 
subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs of a federally assisted 
project or program not borne by the Federal Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a

[[Page 732]]

governmental agency of any Indian tribe, band, nation, or other 
organized group or community (including any Native village as defined in 
section 3 of the Alaska Native Claims Settlement Act, 85 Stat 688) 
certified by the Secretary of the Interior as eligible for the special 
programs and services provided by him through the Bureau of Indian 
Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the United States Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or

[[Page 733]]

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



Sec. 1207.4  Applicability.

    (a) General. Subparts A through D of this part apply to all grants 
and subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec. 1207.6, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under title V, subtitle D, chapter 2, 
section 583--the Secretary's discretionary grant program) and titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and part C of title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (title IV-A of the 
Act,

[[Page 734]]

not including the Work Incentive Program (WIN) authorized by section 
402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 1207.4(a) (3) through (8) are subject to subpart E.



Sec. 1207.5  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec. 1207.6.



Sec. 1207.6  Additions and exceptions

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.
    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.



                    Subpart B_Pre-Award Requirements



Sec. 1207.10  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.

[[Page 735]]

    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those prescribed by the granting agency 
with the approval of OMB under the Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.



Sec. 1207.11  State plans.

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



Sec. 1207.12  Special grant or subgrant conditions for ``high-risk'' grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or
    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grante or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.

[[Page 736]]

    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.



                    Subpart C_Post-Award Requirements

                        Financial Administration



Sec. 1207.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.

[[Page 737]]

    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.



Sec. 1207.21  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for its actual cash disbursements. The working 
capital advance method of payment shall not be used by grantees or 
subgrantees if the reason for using such method is the unwillingness or 
inability of the grantee to provide timely advances to the subgrantee to 
meet the subgrantee's actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions or
    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec. 1207.43(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent

[[Page 738]]

by minority group members). A list of minority owned banks can be 
obtained from the Minority Business Development Agency, Department of 
Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.



Sec. 1207.22  Allowable costs.

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

------------------------------------------------------------------------
           For the costs of a--                Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.
Private nonprofit organization other than   OMB Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21.
For-profit organization other than a        48 CFR part 31. Contract
 hospital and an organization named in OBM   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.
------------------------------------------------------------------------



Sec. 1207.23  Period of availability of funds.

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



Sec. 1207.24  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.

[[Page 739]]

    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 1207.25, shall not count towards satisfying 
a cost sharing or matching requirement unless they are expressly 
permitted in the terms of the assistance agreement. (This use of general 
program income is described in Sec. 1207.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services

[[Page 740]]

are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2)(i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec. 1207.22, in the same way as depreciation 
or use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.



Sec. 1207.25  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of

[[Page 741]]

the grant agreement during the grant period. ``During the grant period'' 
is the time between the effective date of the award and the ending date 
of the award reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 1207.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 
1207.31 and 1207.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.



Sec. 1207.26  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing

[[Page 742]]

goods and services to State and local governments are not required to 
have a single audit performed. State and local governments should use 
their own procedures to ensure that the contractor has complied with 
laws and regulations affecting the expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 
1207.36 shall be followed.

[53 FR 8072, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45943, Aug. 
29, 1997]

                    Changes, Property, and Subawards



Sec. 1207.30  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 1207.22) contain requirements for prior approval of certain types 
of costs. Except where waived, those requirements apply to all grants 
and subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform

[[Page 743]]

activities which are central to the purposes of the award. This approval 
requirement is in addition to the approval requirements of Sec. 1207.36 
but does not apply to the procurement of equipment, supplies, and 
general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 1207.22) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec. 1207.31  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency. The amount due to the awarding agency will be calculated by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling and fixing-up expenses. If the grant 
is still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.



Sec. 1207.32  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.

[[Page 744]]

    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 1207.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right

[[Page 745]]

to transfer title to the Federal Government or a third part named by the 
awarding agency when such a third party is otherwise eligible under 
existing statutes. Such transfers shall be subject to the following 
standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow Sec. 1207.32(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec. 1207.33  Supplies.

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



Sec. 1207.34  Copyrights.

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



Sec. 1207.35  Subawards to debarred and suspended parties.

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



Sec. 1207.36  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will follow paragraphs (b) 
through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable Federal law and the standards identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms, conditions, and specifications of their contracts or purchase 
orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or
    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The

[[Page 746]]

grantee's or subgrantee's officers, employees or agents will neither 
solicit nor accept gratuities, favors or anything of monetary value from 
contractors, potential contractors, or parties to subagreements. Grantee 
and subgrantees may set minimum rules where the financial interest is 
not substantial or the gift is an unsolicited item of nominal intrinsic 
value. To the extent permitted by State or local law or regulations, 
such standards or conduct will provide for penalties, sanctions, or 
other disciplinary actions for violations of such standards by the 
grantee's and subgrantee's officers, employees, or agents, or by 
contractors or their agents. The awarding agency may in regulation 
provide additional prohibitions relative to real, apparent, or potential 
conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and

[[Page 747]]

    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec. 1207.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures are those relatively 
simple and informal procurement methods for securing services, supplies, 
or other property that do not cost more than the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If 
small purchase procedures are used, price or rate quotations shall be 
obtained from an adequate number of qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in Sec. 1207.36(d)(2)(i) 
apply.

[[Page 748]]

    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types of services though 
A/E firms are a potential source to perform the proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids or competitive proposals and one of the following 
circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for

[[Page 749]]

pre-award review in accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2)(i) through (v) 
of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec. 1207.22). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement

[[Page 750]]

documents, such as requests for proposals or invitations for bids, 
independent cost estimates, etc. when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)

[[Page 751]]

    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR Part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR Part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR Part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8072, Mar. 11, 1988, as amended at 60 FR 19639, 19643, Apr. 19, 
1995]



Sec. 1207.37  Subgrants.

    (a) States. States shall follow state law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec. 1207.42 is 
placed in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal

[[Page 752]]

statute and executive orders and their implementing regulations; and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 1207.10;
    (2) Section 1207.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 1207.21; and
    (4) Section 1207.50.

              Reports, Records, Retention, and Enforcement



Sec. 1207.40  Monitoring and reporting program performance.

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

[[Page 753]]

    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.



Sec. 1207.41  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a)(2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extend required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec. 1207.41(e)(2)(iii).
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format

[[Page 754]]

of the report may be adapted as appropriate when reporting is to be 
accomplished with the assistance of automatic data processing equipment 
provided that the information to be submitted is not changed in 
substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 1207.41(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs--(1) Grants that support construction activities paid by 
reimbursement method. (i) Requests for reimbursement under construction 
grants will be submitted on Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. Federal agencies may, 
however, prescribe the Request for Advance or Reimbursement form, 
specified in Sec. 1207.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 1207.41(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance. (i) When a 
construction grant is paid by letter of credit, electronic funds 
transfer or Treasury check advances, the grantee will report its outlays 
to the Federal agency using Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. The Federal agency will 
provide any necessary special instruction. However, frequency and due 
date shall be governed by Sec. 1207.41(b)(3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in Sec. 1207.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 1207.41(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 1207.41(b)(2).



Sec. 1207.42  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec. 1207.36(i)(10).

[[Page 755]]

    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records Unless required 
by Federal, State, or local law, grantees and subgrantees are

[[Page 756]]

not required to permit public access to their records.



Sec. 1207.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 1207.35).



Sec. 1207.44  Termination for convenience.

    Except as provided in Sec. 1207.43 awards may be terminated in 
whole or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the case of 
partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of the award will 
not accomplish the purposes for which the award was made, the awarding 
agency may terminate the award in its entirety under either Sec. 
1207.43 or paragraph (a) of this section.



                 Subpart D_After-The-Grant Requirements



Sec. 1207.50  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:

[[Page 757]]

    (1) Final performance or progress report.
    (2) Financial Status Report (SF 269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable).
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report:

In accordance with Sec. 1207.32(f), a grantee must submit an inventory 
of all federally owned property (as distinct from property acquired with 
grant funds) for which it is accountable and request disposition 
instructions from the Federal agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.



Sec. 1207.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 1207.42;
    (d) Property management requirements in Sec. Sec. 1207.31 and 
1207.32; and
    (e) Audit requirements in Sec. 1207.26.



Sec. 1207.52  Collection of amounts due.

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

Subpart E--Entitlement [Reserved]



PART 1208_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION--Table of Contents




Sec.
1208.101 Purpose.
1208.102 Application.
1208.103 Definitions.
1208.104-1208.109 [Reserved]
1208.110 Self-evaluation.
1208.111 Notice.
1208.112-1208.129 [Reserved]
1208.130 General prohibitions against discrimination.
1208.131-1208.139 [Reserved]
1208.140 Employment.
1208.141-1208.148 [Reserved]
1208.149 Program accessibility: Discrimination prohibited.
1208.150 Program accessibility: Existing facilities.
1208.151 Program accessibility: New construction and alterations.
1208.152-1208.159 [Reserved]
1208.160 Communications.
1208.161-1208.169 [Reserved]
1208.170 Compliance procedures.
1208.171-1208.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 53 FR 25884, 25885, July 8, 1988, unless otherwise noted.



Sec. 1208.101  Purpose.

    The purpose of this regulation is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section

[[Page 758]]

504 of the Rehabilitation Act of 1973 to prohibit discrimination on the 
basis of handicap in programs or activities conducted by Executive 
agencies or the United States Postal Service.



Sec. 1208.102  Application.

    This regulation (Sec. Sec. 1208.101-1208.170) applies to all 
programs or activities conducted by the agency, except for programs or 
activities conducted outside the United States that do not involve 
individuals with handicaps in the United States.



Sec. 1208.103  Definitions.

    For purposes of this regulation, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;

[[Page 759]]

    (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 (i) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, an individual with handicaps who is a 
member of a class of persons otherwise entitled by statute, regulation, 
or agency policy to receive education services from the agency;
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this regulation by Sec. 1208.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this regulation, section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally assisted 
programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 1208.104-1208.109  [Reserved]



Sec. 1208.110  Self-evaluation.

    (a) The agency shall, by September 6, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this regulation and, to the extent modification 
of any such policies and practices is required, the agency shall proceed 
to make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following completion 
of the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 1208.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this regulation and its 
applicability to the programs or activities conducted by the agency, and 
make such information available to them in such manner as the head of 
the agency finds necessary to apprise such persons of the protections 
against discrimination assured them by section 504 and this regulation.



Sec. Sec. 1208.112-1208.129  [Reserved]



Sec. 1208.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.

[[Page 760]]

    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the agency are 
not, themselves, covered by this regulation.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this regulation.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec. 1208.131-1208.139  [Reserved]



Sec. 1208.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subject to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity

[[Page 761]]

Commission in 29 CFR part 1613, shall apply to employment in federally 
conducted programs or activities.



Sec. Sec. 1208.141-1208.148  [Reserved]



Sec. 1208.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1208.150, no qualified 
individual with handicaps shall, because the agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 1208.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 1208.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
individuals with handicaps receive the benefits and services of the 
program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by individuals with handicaps. The agency is 
not required to make structural changes in existing facilities where 
other methods are effective in achieving compliance with this section. 
The agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 1208.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to individuals 
with handicaps. In cases where a physical alteration to an historic 
property is not required because of Sec. 1208.150(a)(2) or (3), 
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that

[[Page 762]]

cannot otherwise be made accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by November 7, 1988, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by September 6, 1991, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by March 6, 1989, a transition plan setting forth 
the steps necessary to complete such changes. The agency shall provide 
an opportunity to interested persons, including individuals with 
handicaps or organizations representing individuals with handicaps, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 1208.151  Program accessibility: New construction and alterations.

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



Sec. Sec. 1208.152-1208.159  [Reserved]



Sec. 1208.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving

[[Page 763]]

that compliance with Sec. 1208.160 would result in such alteration or 
burdens. The decision that compliance would result in such alteration or 
burdens must be made by the agency head or his or her designee after 
considering all agency resources available for use in the funding and 
operation of the conducted program or activity and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action required to comply with this section would result in such an 
alteration or such burdens, the agency shall take any other action that 
would not result in such an alteration or such burdens but would 
nevertheless ensure that, to the maximum extent possible, individuals 
with handicaps receive the benefits and services of the program or 
activity.



Sec. Sec. 1208.161-1208.169  [Reserved]



Sec. 1208.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Assistant Archivist for Management and Administration shall 
be responsible for coordinating implementation of this section. 
Compliants may be sent to National Archives and Records Administration 
(NA), Washington, DC 20408.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate Government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 1208.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[53 FR 25884, 25885, July 8, 1988, as amended at 53 FR 25884, July 8, 
1988]

[[Page 764]]



Sec. Sec. 1208.171-1208.999  [Reserved]



PART 1210_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS WITH 

INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT 

ORGANIZATIONS--Table of Contents




                            Subpart A_General

Sec.
1210.1 Purpose.
1210.2 Definitions.
1210.3 Effect on other issuances.
1210.4 Deviations.
1210.5 Subawards.

                    Subpart B_Pre-Award Requirements

1210.10 Purpose.
1210.11 Pre-award policies.
1210.12 Forms for applying for Federal assistance.
1210.13 Debarment and suspension.
1210.14 Special award conditions.
1210.15 Metric system of measurement.
1210.16 Resource Conservation and Recovery Act.
1210.17 Certifications and representations.

                    Subpart C_Post-Award Requirements

                    Financial and Program Management

1210.20 Purpose of financial and program management.
1210.21 Standards for financial management systems.
1210.22 Payment.
1210.23 Cost sharing or matching.
1210.24 Program income.
1210.25 Revision of budget and program plans.
1210.26 Non-Federal audits.
1210.27 Allowable costs.
1210.28 Period of availability of funds.

                           Property Standards

1210.30 Purpose of property standards.
1210.31 Insurance coverage.
1210.32 Real property.
1210.33 Federally-owned and exempt property.
1210.34 Equipment.
1210.35 Supplies and other expendable property.
1210.36 Intangible property.
1210.37 Property trust relationship.

                          Procurement Standards

1210.40 Purpose of procurement standards.
1210.41 Recipient responsibilities.
1210.42 Codes of conduct.
1210.43 Competition.
1210.44 Procurement procedures.
1210.45 Cost and price analysis.
1210.46 Procurement records.
1210.47 Contract administration.
1210.48 Contract provisions.

                           Reports and Records

1210.50 Purpose of reports and records.
1210.51 Monitoring and reporting program performance.
1210.52 Financial reporting.
1210.53 Retention and access requirements for records.

                       Termination and Enforcement

1210.60 Purpose of termination and enforcement.
1210.61 Termination.
1210.62 Enforcement.

                 Subpart D_After-the-Award Requirements

1210.70 Purpose.
1210.71 Closeout procedures.
1210.72 Subsequent adjustments and continuing responsibilities.
1210.73 Collection of amounts due.

Appendix A to Part 1210--Contract Provisions

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

    Source: 60 FR 53515, Oct. 16, 1995, unless otherwise noted.



                            Subpart A_General



Sec. 1210.1  Purpose.

    This part establishes uniform administrative requirements for NHPRC 
grants and agreements awarded to institutions of higher education, 
hospitals, and other non-profit organizations. Non-profit organizations 
that implement NHPRC programs for the States are also subject to State 
requirements.



Sec. 1210.2  Definitions.

    (a) Accrued expenditures means the charges incurred by the recipient 
during a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subrecipients, and 
other payees; and,
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.
    (b) Accrued income means the sum of:

[[Page 765]]

    (1) Earnings during a given period from
    (i) Services performed by the recipient, and
    (ii) Goods and other tangible property delivered to purchasers, and
    (2) Amounts becoming owed to the recipient for which no current 
services or performance is required by the recipient.
    (c) Acquisition cost of equipment means the net invoice price of the 
equipment, including the cost of modifications, attachments, 
accessories, or auxiliary apparatus necessary to make the property 
usable for the purpose for which it was acquired. Other charges, such as 
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit 
acquisition cost in accordance with the recipient's regular accounting 
practices.
    (d) Advance means a payment made by Treasury check or other 
appropriate payment mechanism to a recipient upon its request either 
before outlays are made by the recipient or through the use of 
predetermined payment schedules.
    (e) Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
the NHPRC to an eligible recipient. The term does not include: technical 
assistance, which provides services instead of money; other assistance 
in the form of loans, loan guarantees, interest subsidies, or insurance; 
direct payments of any kind to individuals; and, contracts which are 
required to be entered into and administered under procurement laws and 
regulations.
    (f) Cash contributions means the recipient's cash outlay, including 
the outlay of money contributed to the recipient by third parties.
    (g) Closeout means the process by which the NHPRC determines that 
all applicable administrative actions and all required work of the award 
have been completed by the recipient and the NHPRC.
    (h) Contract means a procurement contract under an award or 
subaward, and a procurement subcontract under a recipient's or 
subrecipient's contract.
    (i) Cost sharing or matching means that portion of project or 
program costs not borne by the NHPRC.
    (j) Date of completion means the date on which all work under an 
award is completed or the date on the award document, or any supplement 
or amendment thereto, on which NHPRC sponsorship ends.
    (k) Disallowed costs means those charges to an award that the NHPRC 
determines to be unallowable, in accordance with the applicable Federal 
cost principles or other terms and conditions contained in the award.
    (l) Equipment means tangible nonexpendable personal property 
including exempt property charged directly to the award having a useful 
life of more than one year and an acquisition cost of $5,000 or more per 
unit. However, consistent with recipient policy, lower limits may be 
established.
    (m) Excess property means property under the control of the NHPRC 
that, as determined by the head thereof, is no longer required for its 
needs or the discharge of its responsibilities.
    (n) Exempt property means tangible personal property acquired in 
whole or in part with NHPRC funds, where the NHPRC has statutory 
authority to vest title in the recipient without further obligation to 
the Federal Government. An example of exempt property authority is 
contained in the Federal Grant and Cooperative Agreement Act (31 U.S.C. 
6306), for property acquired under an award to conduct basic or applied 
research by a non-profit institution of higher education or non-profit 
organization whose principal purpose is conducting scientific research.
    (o) Federal awarding agency means the Federal agency that provides 
an award to the recipient.
    (p) Federal funds authorized means the total amount of NHPRC funds 
obligated by the Federal Government for use by the recipient. This 
amount may include any authorized carryover of unobligated funds from 
prior funding periods when permitted by NHPRC regulations or NHPRC 
implementing instructions.

[[Page 766]]

    (q) Federal share of real property, equipment, or supplies means 
that percentage of the property's acquisition costs and any improvement 
expenditures paid with NHPRC funds.
    (r) Funding period means the period of time when NHPRC funding is 
available for obligation by the recipient.
    (s) Intangible property and debt instruments means, but is not 
limited to, trademarks, copyrights, patents and patent applications and 
such property as loans, notes and other debt instruments, lease 
agreements, stock and other instruments of property ownership, whether 
considered tangible or intangible.
    (t) NARA means the National Archives and Records Administration.
    (u) NHPRC means the National Historical Publications and Records 
Commission.
    (v) Obligations means the amounts of orders placed, contracts and 
grants awarded, services received and similar transactions during a 
given period that require payment by the recipient during the same or a 
future period.
    (w) Outlays or expenditures means charges made to the project or 
program. They may be reported on a cash or accrual basis. For reports 
prepared on a cash basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
charged, the value of third party in-kind contributions applied and the 
amount of cash advances and payments made to subrecipients. For reports 
prepared on an accrual basis, outlays are the sum of cash disbursements 
for direct charges for goods and services, the amount of indirect 
expense incurred, the value of in-kind contributions applied, and the 
net increase (or decrease) in the amounts owed by the recipient for 
goods and other property received, for services performed by employees, 
contractors, subrecipients and other payees and other amounts becoming 
owed under programs for which no current services or performance are 
required.
    (x) Personal property means property of any kind except real 
property. It may be tangible, having physical existence, or intangible, 
having no physical existence, such as copyrights, patents, or 
securities.
    (y) Prior approval means written approval by an authorized official 
evidencing prior consent.
    (z) Program income means gross income earned by the recipient that 
is directly generated by a supported activity or earned as a result of 
the award (see exclusions in Sec. 1210.24 (e) and (h)). Program income 
includes, but is not limited to, income from fees for services 
performed, the use or rental of real or personal property acquired under 
federally-funded projects, the sale of commodities or items fabricated 
under an award, license fees and royalties on patents and copyrights, 
and interest on loans made with award funds. Interest earned on advances 
of Federal funds is not program income. Except as otherwise provided in 
NHPRC regulations or the terms and conditions of the award, program 
income does not include the receipt of principal on loans, rebates, 
credits, discounts, etc., or interest earned on any of them.
    (aa) Project costs means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred by a recipient and the 
value of the contributions made by third parties in accomplishing the 
objectives of the award during the project period.
    (bb) Project period means the period established in the award 
document during which NHPRC sponsorship begins and ends.
    (cc) Property means, unless otherwise stated, real property, 
equipment, intangible property and debt instruments.
    (dd) Real property means land, including land improvements, 
structures and appurtenances thereto, but excludes movable machinery and 
equipment.
    (ee) Recipient means an organization receiving financial assistance 
directly from the NHPRC to carry out a project or program. The term 
includes public and private institutions of higher education, public and 
private hospitals, and other quasi-public and private non-profit 
organizations such as, but not limited to, community action agencies, 
research institutes, educational associations, and health centers. The 
term may include commercial organizations, foreign or international 
organizations

[[Page 767]]

(such as agencies of the United Nations) which are recipients, 
subrecipients, or contractors or subcontractors of recipients or 
subrecipients at the discretion of the NHPRC. The term does not include 
government-owned contractor-operated facilities or research centers 
providing continued support for mission-oriented, large-scale programs 
that are government-owned or controlled, or are designated as federally-
funded research and development centers.
    (ff) Research and development means all research activities, both 
basic and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions. ``Research'' 
is defined as a systematic study directed toward fuller scientific 
knowledge or understanding of the subject studied. ``Development'' is 
the systematic use of knowledge and understanding gained from research 
directed toward the production of useful materials, devices, systems, or 
methods, including design and development of prototypes and processes. 
The term research also includes activities involving the training of 
individuals in research techniques where such activities utilize the 
same facilities as other research and development activities and where 
such activities are not included in the instruction function.
    (gg) Small awards means a grant or cooperative agreement not 
exceeding the small purchase threshold fixed at 41 U.S.C. 403(11) 
(currently $25,000).
    (hh) Subaward means an award of financial assistance in the form of 
money, or property in lieu of money, made under an award by a recipient 
to an eligible subrecipient or by a subrecipient to a lower tier 
subrecipient. The term includes financial assistance when provided by 
any legal agreement, even if the agreement is called a contract, but 
does not include procurement of goods and services nor does it include 
any form of assistance which is excluded from the definition of 
``award'' in paragraph (e) of this section.
    (ii) Subrecipient means the legal entity to which a subaward is made 
and which is accountable to the recipient for the use of the funds 
provided. The term may include foreign or international organizations 
(such as agencies of the United Nations) at the discretion of the NHPRC.
    (jj) Supplies means all personal property excluding equipment, 
intangible property, and debt instruments as defined in this section, 
and inventions of a contractor conceived or first actually reduced to 
practice in the performance of work under a funding agreement (``subject 
inventions''), as defined in 37 CFR Part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts, and Cooperative Agreements.''
    (kk) Suspension means an action by the NHPRC that temporarily 
withdraws Federal sponsorship under an award, pending corrective action 
by the recipient or pending a decision to terminate the award by the 
NHPRC. Suspension of an award is a separate action from suspension under 
NARA regulations implementing E.O. 12549 and E.O. 12689, ``Debarment and 
Suspension'' (36 CFR Part 1209).
    (ll) Termination means the cancellation of NHPRC sponsorship, in 
whole or in part, under an agreement at any time prior to the date of 
completion.
    (mm) Third party in-kind contributions means the value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting and specifically identifiable to the project or 
program.
    (nn) Unliquidated obligations, for financial reports prepared on a 
cash basis, means the amount of obligations incurred by the recipient 
that have not been paid. For reports prepared on an accrued expenditure 
basis, they represent the amount of obligations incurred by the 
recipient for which an outlay has not been recorded.
    (oo) Unobligated balance means the portion of the funds authorized 
by the NHPRC that has not been obligated by the recipient and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.
    (pp) Unrecovered indirect cost means the difference between the 
amount awarded and the amount which could

[[Page 768]]

have been awarded under the recipient's approved negotiated indirect 
cost rate.
    (qq) Working capital advance means a procedure whereby funds are 
advanced to the recipient to cover its estimated disbursement needs for 
a given initial period.



Sec. 1210.3  Effect on other issuances.

    For awards subject to this part, all administrative requirements of 
codified program regulations, program manuals, handbooks and other 
nonregulatory materials which are inconsistent with the requirements of 
this part shall be superseded, except to the extent they are required by 
statute, or authorized in accordance with the deviations provision in 
Sec. 1210.4.



Sec. 1210.4  Deviations.

    The Office of Management and Budget (OMB) may grant exceptions for 
classes of grants or recipients subject to the requirements of this part 
when exceptions are not prohibited by statute. However, in the interest 
of maximum uniformity, exceptions from the requirements of this part 
shall be permitted only in unusual circumstances. The NHPRC may apply 
more restrictive requirements to a class of recipients when approved by 
OMB. The NHPRC may apply less restrictive requirements when awarding 
small awards, except for those requirements which are statutory. 
Exceptions on a case-by-case basis may also be made by the NHPRC.



Sec. 1210.5  Subawards.

    Unless sections of this part specifically exclude subrecipients from 
coverage, the provisions of this part shall be applied to subrecipients 
performing work under awards if such subrecipients are institutions of 
higher education, hospitals or other non-profit organizations. State and 
local government subrecipients are subject to the provisions of 
regulations implementing the grants management common rule, ``Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
State and Local Governments,'' published at 36 CFR part 1207.



                    Subpart B_Pre-Award Requirements



Sec. 1210.10  Purpose.

    Sections 1210.11 through 1210.17 prescribes forms and instructions 
and other pre-award matters to be used in applying for NHPRC awards.



Sec. 1210.11  Pre-award policies.

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



Sec. 1210.12  Forms for applying for Federal assistance.

    (a) The NHPRC shall comply with the applicable report clearance 
requirements of 5 CFR Part 1320, ``Controlling Paperwork Burdens on the 
Public,'' with regard to all forms used by the NHPRC in place of or as a 
supplement to the Standard Form 424 (SF-424) series.
    (b) Applicants shall use the SF-424 (Application for Federal 
Assistance) and NA Form 17001 (Budget Form) forms and instructions 
prescribed by the NHPRC Program Guidelines. OMB

[[Page 769]]

Control Number 3095-0004 has been assigned to the Budget Form. OMB 
Control Number 3095-0013 has been assigned to the NHPRC Program 
Guidelines.
    (c) Applicants shall complete the appropriate sections of the SF-424 
(Application for Federal Assistance) indicating whether the application 
was subject to review by the State Single Point of Contact (SPOC) under 
E.O. 12372, ``Intergovernmental Review of Federal Programs.'' The name 
and address of the SPOC for a particular State can be obtained from the 
NHPRC or the Catalog of Federal Domestic Assistance. The SPOC shall 
advise the applicant whether the program for which application is made 
has been selected by that State for review.



Sec. 1210.13  Debarment and suspension.

    The NHPRC and recipients shall comply with the nonprocurement 
debarment and suspension common rule implementing E.O.s 12549 and 12689, 
``Debarment and Suspension'' (36 CFR Part 1209). This common rule 
restricts subawards and contracts with certain parties that are 
debarred, suspended or otherwise excluded from or ineligible for 
participation in Federal assistance programs or activities.



Sec. 1210.14  Special award conditions.

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



Sec. 1210.15  Metric system of measurement.

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



Sec. 1210.16  Resource Conservation and Recovery Act.

    Under the Resource Conservation and Recovery Act ((RCRA) (Pub. L. 
94-580 codified at 42 U.S.C. 6962), any State agency or agency of a 
political subdivision of a State which is using appropriated Federal 
funds must comply with section 6002. Section 6002 requires that 
preference be given in procurement programs to the purchase of specific 
products containing recycled materials identified in guidelines 
developed by the Environmental Protection Agency (EPA) (40 CFR Parts 247 
through 254). Accordingly, State and local institutions of higher 
education, hospitals, and non-profit organizations that receive direct 
Federal awards or other Federal funds shall give preference in their 
procurement programs funded with Federal funds to the purchase of 
recycled products pursuant to the EPA guidelines.



Sec. 1210.17  Certifications and representations.

    Unless prohibited by statute or codified regulation, the NHPRC is 
authorized to allow recipients to submit certifications and 
representations required by statute, executive order, or regulation on 
an annual basis, if they have an ongoing and continuing relationship 
with the NHPRC. Annual certifications and representations shall be

[[Page 770]]

signed by responsible officials with the authority to ensure recipients' 
compliance with the pertinent requirements.



                    Subpart C_Post-Award Requirements

                    Financial and Program Management



Sec. 1210.20  Purpose of financial and program management.

    Sections 1210.21 through 1210.28 prescribe standards for financial 
management systems, methods for making payments and rules for: 
satisfying cost sharing and matching requirements, accounting for 
program income, budget revision approvals, making audits, determining 
allowability of cost, and establishing fund availability.



Sec. 1210.21  Standards for financial management systems.

    (a) The NHPRC shall require recipients to relate financial data to 
performance data and develop unit cost information whenever practical.
    (b) Recipients' financial management systems shall provide for the 
following.
    (1) Accurate, current and complete disclosure of the financial 
results of each NHPRC-sponsored project or program in accordance with 
the reporting requirements set forth in Sec. 1210.52.
    (2) Records that identify adequately the source and application of 
funds for NHPRC-sponsored activities. These records shall contain 
information pertaining to NHPRC awards, authorizations, obligations, 
unobligated balances, assets, outlays, income and interest.
    (3) Effective control over and accountability for all funds, 
property and other assets. Recipients shall adequately safeguard all 
such assets and assure they are used solely for authorized purposes.
    (4) Comparison of outlays with budget amounts for each award. 
Whenever appropriate, financial information should be related to 
performance and unit cost data.
    (5) Written procedures to minimize the time elapsing between the 
transfer of funds to the recipient from the U.S. Treasury and the 
issuance or redemption of checks, warrants or payments by other means 
for program purposes by the recipient. To the extent that the provisions 
of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, 
payment methods of State agencies, instrumentalities, and fiscal agents 
shall be consistent with CMIA Treasury-State Agreements or the CMIA 
default procedures codified at 31 CFR Part 205, ``Withdrawal of Cash 
from the Treasury for Advances under Federal Grant and Other Programs.''
    (6) Written procedures for determining the reasonableness, 
allocability and allowability of costs in accordance with the provisions 
of the applicable Federal cost principles and the terms and conditions 
of the award.
    (7) Accounting records including cost accounting records that are 
supported by source documentation.
    (c) Where the Federal Government guarantees or insures the repayment 
of money borrowed by the recipient, the NHPRC, at its discretion, may 
require adequate bonding and insurance if the bonding and insurance 
requirements of the recipient are not deemed adequate to protect the 
interest of the Federal Government.
    (d) The NHPRC may require adequate fidelity bond coverage where the 
recipient lacks sufficient coverage to protect the Federal Government's 
interest.
    (e) Where bonds are required in the situations described in this 
section, the bonds shall be obtained from companies holding certificates 
of authority as acceptable sureties, as prescribed in 31 CFR Part 223, 
``Surety Companies Doing Business with the United States.''



Sec. 1210.22  Payment.

    (a) Payment methods shall minimize the time elapsing between the 
transfer of funds from the United States Treasury and the issuance or 
redemption of checks, warrants, or payment by other means by the 
recipients. Payment methods of State agencies or instrumentalities shall 
be consistent with Treasury-State CMIA agreements or default procedures 
codified at 31 CFR Part 205.
    (b) Recipients will be paid in advance, provided they maintain or 
demonstrate the willingness to maintain written procedures that minimize 
the

[[Page 771]]

time elapsing between the transfer of funds and disbursement by the 
recipient, and financial management systems that meet the standards for 
fund control and accountability as established in Sec. 1210.21. Cash 
advances to a recipient organization shall be limited to the minimum 
amounts needed and be timed to be in accordance with the actual, 
immediate cash requirements of the recipient organization in carrying 
out the purpose of the approved program or project. The timing and 
amount of cash advances shall be as close as is administratively 
feasible to the actual disbursements by the recipient organization for 
direct program or project costs and the proportionate share of any 
allowable indirect costs.
    (c) Whenever possible, advances shall be consolidated to cover 
anticipated cash needs for all awards made by the NHPRC to the 
recipient.
    (1) Advance payment mechanisms include, but are not limited to, 
Treasury check and electronic funds transfer.
    (2) Advance payment mechanisms are subject to 31 CFR Part 205.
    (3) Recipients can submit requests for advances and reimbursements 
at least monthly when a predetermined schedule of electronic funds 
transfer is not used.
    (d) Requests for Treasury check advance payment shall be submitted 
on SF-270, ``Request for Advance or Reimbursement,'' or other forms as 
may be authorized by OMB. This form is not to be used when Treasury 
check advance payments are made to the recipient automatically through 
the use of a predetermined payment schedule or if precluded by special 
NHPRC instructions for electronic funds transfer.
    (e) Reimbursement is the preferred method when the requirements in 
paragraph (b) of this section cannot be met.
    (1) When the reimbursement method is used, the NHPRC shall make 
payment within 30 days after receipt of the billing, unless the billing 
is improper.
    (2) Recipients can submit a request for reimbursement at least 
monthly when a predetermined schedule of electronic funds transfer is 
not used.
    (f) If a recipient cannot meet the criteria for advance payments and 
the NHPRC has determined that reimbursement is not feasible because the 
recipient lacks sufficient working capital, the NHPRC may provide cash 
on a working capital advance basis. Under this procedure, the NHPRC 
shall advance cash to the recipient to cover its estimated disbursement 
needs for an initial period generally geared to the awardee's disbursing 
cycle. Thereafter, the NHPRC shall reimburse the recipient for its 
actual cash disbursements. The working capital advance method of payment 
shall not be used for recipients unwilling or unable to provide timely 
advances to their subrecipient to meet the subrecipient's actual cash 
disbursements.
    (g) To the extent available, recipients shall disburse funds 
available from repayments to and interest earned on a revolving fund, 
program income, rebates, refunds, contract settlements, audit recoveries 
and interest earned on such funds before requesting additional cash 
payments.
    (h) Unless otherwise required by statute, the NHPRC shall not 
withhold payments for proper charges made by recipients at any time 
during the project period unless paragraph (h)(1) or (2) of this section 
apply.
    (1) A recipient has failed to comply with the project objectives, 
the terms and conditions of the award, or NHPRC reporting requirements.
    (2) The recipient or subrecipient is delinquent in a debt to the 
United States as defined in OMB Circular A-129, ``Managing Federal 
Credit Programs.'' Under such conditions, the NHPRC may, upon reasonable 
notice, inform the recipient that payments shall not be made for 
obligations incurred after a specified date until the conditions are 
corrected or the indebtedness to the Federal Government is liquidated.
    (i) Standards governing the use of banks and other institutions as 
depositories of funds advanced under awards are as follows.
    (1) Except for situations described in paragraph (i)(2) of this 
section, the NHPRC shall not require separate depository accounts for 
funds provided to a recipient or establish any eligibility requirements 
for depositories for funds provided to a recipient. However, recipients 
must be able to account for

[[Page 772]]

the receipt, obligation and expenditure of funds.
    (2) Advances of NHPRC funds shall be deposited and maintained in 
insured accounts whenever possible.
    (j) Consistent with the national goal of expanding the opportunities 
for women-owned and minority-owned business enterprises, recipients 
shall be encouraged to use women-owned and minority-owned banks (a bank 
which is owned at least 50 percent by women or minority group members).
    (k) Recipients shall maintain advances of NHPRC funds in interest 
bearing accounts, unless paragraphs (k)(1), (2) or (3) of this section 
apply.
    (1) The recipient receives less than $120,000 in Federal awards per 
year.
    (2) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
    (l) In keeping with Electronic Funds Transfer rules (31 CFR Part 
206), interest earned should be remitted annually to the Department of 
Health and Human Services (HHS) Payment Management System through an 
electronic medium such as the FEDWIRE Deposit system. Recipients which 
do not have this capability should use a check and mail it to the 
Payment Management System, P.O. Box 6021, Rockville, MD 20852. Interest 
amounts up to $250 per year may be retained by the recipient for 
administrative expense. State universities and hospitals shall comply 
with CMIA, as it pertains to interest. If an entity subject to CMIA uses 
its own funds to pay pre-award costs for discretionary awards without 
prior written approval from the NHPRC, it waives its right to recover 
the interest under CMIA.
    (m) Except as noted elsewhere in this part, only the SF-270, Request 
for Advance or Reimbursement, shall be authorized for the recipients in 
requesting advances and reimbursements. The NHPRC requires an original 
and two copies of this form.



Sec. 1210.23  Cost sharing or matching.

    (a) All contributions, including cash and third party in-kind, shall 
be accepted as part of the recipient's cost sharing or matching when 
such contributions meet all of the following criteria.
    (1) Are verifiable from the recipient's records.
    (2) Are not included as contributions for any other federally-
assisted project or program.
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) Are allowable under the applicable cost principles.
    (5) Are not paid by the Federal Government under another award, 
except where authorized by Federal statute to be used for cost sharing 
or matching.
    (6) Are provided for in the approved budget when required by the 
NHPRC.
    (7) Conform to other provisions of this part, as applicable.
    (b) Unrecovered indirect costs may be included as part of cost 
sharing or matching only with the prior approval of the NHPRC.
    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If the NHPRC authorizes recipients to donate buildings or land for 
construction/facilities acquisition projects or long-term use, the value 
of the donated property for cost sharing or matching shall be the lesser 
of paragraph (c)(1) or (2) of this section.
    (1) The certified value of the remaining life of the property 
recorded in the recipient's accounting records at the time of donation.
    (2) The current fair market value. However, when there is sufficient 
justification, the NHPRC may approve the use of the current fair market 
value of the donated property, even if it exceeds the certified value at 
the time of donation to the project.
    (d) Volunteer services furnished by professional and technical 
personnel, consultants, and other skilled and unskilled labor may be 
counted as cost sharing or matching if the service is an integral and 
necessary part of an approved project or program. Rates for volunteer 
services shall be consistent with those paid for similar work in the

[[Page 773]]

recipient's organization. In those instances in which the required 
skills are not found in the recipient organization, rates shall be 
consistent with those paid for similar work in the labor market in which 
the recipient competes for the kind of services involved. In either 
case, paid fringe benefits that are reasonable, allowable, and allocable 
may be included in the valuation.
    (e) When an employer other than the recipient furnishes the services 
of an employee, these services shall be valued at the employee's regular 
rate of pay (plus an amount of fringe benefits that are reasonable, 
allowable, and allocable, but exclusive of overhead costs), provided 
these services are in the same skill for which the employee is normally 
paid.
    (f) Donated supplies may include such items as expendable equipment, 
office supplies, laboratory supplies or workshop and classroom supplies. 
Value assessed to donated supplies included in the cost sharing or 
matching share shall be reasonable and shall not exceed the fair market 
value of the property at the time of the donation.
    (g) The method used for determining cost sharing or matching for 
donated equipment, buildings and land for which title passes to the 
recipient may differ according to the purpose of the award, if paragraph 
(g)(1) or (2) of this section apply.
    (1) If the purpose of the award is to assist the recipient in the 
acquisition of equipment, buildings or land, the total value of the 
donated property may be claimed as cost sharing or matching.
    (2) If the purpose of the award is to support activities that 
require the use of equipment, buildings or land, normally only 
depreciation or use charges for equipment and buildings may be made. 
However, the full value of equipment or other capital assets and fair 
rental charges for land may be allowed, provided that the NHPRC has 
approved the charges.
    (h) The value of donated property shall be determined in accordance 
with the usual accounting policies of the recipient, with the following 
qualifications.
    (1) The value of donated land and buildings shall not exceed its 
fair market value at the time of donation to the recipient as 
established by an independent appraiser (e.g., certified real property 
appraiser or General Services Administration representative) and 
certified by a responsible official of the recipient.
    (2) The value of donated equipment shall not exceed the fair market 
value of equipment of the same age and condition at the time of 
donation.
    (3) The value of donated space shall not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (4) The value of loaned equipment shall not exceed its fair rental 
value.
    (5) The following requirements pertain to the recipient's supporting 
records for in-kind contributions from third parties.
    (i) Volunteer services shall be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (ii) The basis for determining the valuation for personal service, 
material, equipment, buildings and land shall be documented.



Sec. 1210.24  Program income.

    (a) The NHPRC applies the standards set forth in this section in 
requiring recipient organizations to account for program income related 
to projects financed in whole or in part with Federal funds.
    (b) Except as provided in paragraph (h) of this section, program 
income earned during the project period shall be retained by the 
recipient and, in accordance with these regulations or the terms and 
conditions of the award, shall be used in one or more of the ways listed 
in the following.
    (1) Added to funds committed to the project by the NHPRC and 
recipient and used to further eligible project or program objectives.
    (2) Used to finance the non-Federal share of the project or program.
    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs on which the Federal share of costs 
is based.

[[Page 774]]

    (c) When the NHPRC authorizes the disposition of program income as 
described in paragraphs (b)(1) or (b)(2) of this section, program income 
in excess of any limits stipulated shall be used in accordance with 
paragraph (b)(3) of this section.
    (d) In the event that the NHPRC does not specify in its regulations 
or the terms and conditions of the award how program income is to be 
used, paragraph (b)(3) of this section shall apply automatically to all 
projects or programs except research. For awards that support research, 
paragraph (b)(1) of this section shall apply automatically unless the 
NHPRC indicates in the terms and conditions another alternative on the 
award or the recipient is subject to special award conditions, as 
indicated in Sec. 1210.14.
    (e) Unless NHPRC regulations or the terms and conditions of the 
award provide otherwise, recipients shall have no obligation to the 
Federal Government regarding program income earned after the end of the 
project period.
    (f) If authorized by NHPRC regulations or the terms and conditions 
of the award, costs incident to the generation of program income may be 
deducted from gross income to determine program income, provided these 
costs have not been charged to the award.
    (g) Proceeds from the sale of property shall be handled in 
accordance with the requirements of the Property Standards (See 
Sec. Sec. 1210.30 through 1210.37).
    (h) Unless NHPRC regulations or the terms and condition of the award 
provide otherwise, recipients shall have no obligation to the Federal 
Government with respect to program income earned from license fees and 
royalties for copyrighted material, patents, patent applications, 
trademarks, and inventions produced under an award. However, Patent and 
Trademark Amendments (35 U.S.C. 18) apply to inventions made under an 
experimental, developmental, or research award.



Sec. 1210.25  Revision of budget and program plans.

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

[[Page 775]]

    (e) Except for requirements listed in paragraphs (c)(1) and (c)(4) 
of this section, the NHPRC is authorized, at their option, to waive 
cost-related and administrative prior written approvals required by this 
Circular and OMB Circulars A-21 and A-122. Such waivers may include 
authorizing recipients to do any one or more of the following.
    (1) Incur pre-award costs 90 calendar days prior to award or more 
than 90 calendar days with the prior approval of the NHPRC. All pre-
award costs are incurred at the recipient's risk (i.e., the NHPRC is 
under no obligation to reimburse such costs if for any reason the 
recipient does not receive an award or if the award is less than 
anticipated and inadequate to cover such costs).
    (2) Initiate a one-time extension of the expiration date of the 
award of up to 12 months unless one or more of the following conditions 
apply. For one-time extensions, the recipient must notify the NHPRC in 
writing with the supporting reasons and revised expiration date at least 
10 days before the expiration date specified in the award. This one-time 
extension may not be exercised merely for the purpose of using 
unobligated balances.
    (i) The terms and conditions of award prohibit the extension.
    (ii) The extension requires additional NHPRC funds.
    (iii) The extension involves any change in the approved objectives 
or scope of the project.
    (3) Carry forward unobligated balances to subsequent funding 
periods.
    (4) For awards that support research, unless the NHPRC provides 
otherwise in the award or in NHPRC's regulations, the prior approval 
requirements described in paragraph (e) of this section are 
automatically waived (i.e., recipients need not obtain such prior 
approvals) unless one of the conditions included in paragraph (e)(2) of 
this section applies.
    (f) The NHPRC may, at its option, restrict the transfer of funds 
among direct cost categories or programs, functions and activities for 
awards in which the Federal share of the project exceeds $100,000 and 
the cumulative amount of such transfers exceeds or is expected to exceed 
10 percent of the total budget as last approved by the NHPRC. The NHPRC 
shall not permit a transfer that would cause any Federal appropriation 
or part thereof to be used for purposes other than those consistent with 
the original intent of the appropriation.
    (g) All other changes to nonconstruction budgets, except for the 
changes described in paragraph (j), do not require prior approval.
    (h) [Reserved]
    (i) No other prior approval requirements for specific items will be 
imposed unless a deviation has been approved by OMB.
    (j) The NHPRC shall require recipients to notify the NHPRC in 
writing promptly whenever the amount of Federal authorized funds is 
expected to exceed the needs of the recipient for the project period by 
more than $5,000 or five percent of the NHPRC award, whichever is 
greater. This notification shall not be required if an application for 
additional funding is submitted for a continuation award.
    (k) When requesting approval for budget revisions, recipients shall 
use the budget forms that were used in the application unless the NHPRC 
indicates a letter of request suffices.
    (l) Within 30 calendar days from the date of receipt of the request 
for budget revisions, the NHPRC shall review the request and notify the 
recipient whether the budget revisions have been approved. If the 
revision is still under consideration at the end of 30 calendar days, 
the NHPRC shall inform the recipient in writing of the date when the 
recipient may expect the decision.



Sec. 1210.26  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher 
education or other non-profit organizations (including hospitals) shall 
be subject to the audit requirements contained in the Single Audit Act 
Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act Amendments of 1996 (31 
U.S.C. 7501-7507) and revised OMB Circular A-133,

[[Page 776]]

``Audits of States, Local Governments, and Non-Profit Organizations.''
    (c) For-profit hospitals not covered by the audit provisions of 
revised OMB Circular A-133 shall be subject to the audit requirements of 
the Federal awarding agencies.

[62 FR 45939, 45943, Aug. 29, 1997]



Sec. 1210.27  Allowable costs.

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



Sec. 1210.28  Period of availability of funds.

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

                           Property Standards



Sec. 1210.30  Purpose of property standards.

    Sections 1210.31 through 1210.37 set forth uniform standards 
governing management and disposition of property furnished by the 
Federal Government whose cost was charged to a project supported by an 
NHPRC award. The NHPRC requires recipients to observe these standards 
under awards and shall not impose additional requirements, unless 
specifically required by Federal statute. The recipient may use its own 
property management standards and procedures provided it observes the 
provisions of Sec. Sec. 1210.31 through 1210.37.



Sec. 1210.31  Insurance coverage.

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



Sec. 1210.32  Real property.

    The NHPRC shall prescribe requirements for recipients concerning the 
use and disposition of real property acquired in whole or in part under 
awards. Unless otherwise provided by statute, such requirements, at a 
minimum, shall contain the following.
    (a) Title to real property shall vest in the recipient subject to 
the condition that the recipient shall use the real property for the 
authorized purpose of the project as long as it is needed and shall not 
encumber the property without approval of the NHPRC.
    (b) The recipient shall obtain written approval by the NHPRC for the 
use of real property in other federally-sponsored projects when the 
recipient determines that the property is no longer needed for the 
purpose of the original project. Use in other projects shall be limited 
to those under federally-sponsored projects (i.e., awards) or programs 
that have purposes consistent with those authorized for support by the 
NHPRC.

[[Page 777]]

    (c) When the real property is no longer needed as provided in 
paragraphs (a) and (b) of this section, the recipient shall request 
disposition instructions from the NHPRC or its successor Federal 
awarding agency. The NHPRC shall observe one or more of the following 
disposition instructions.
    (1) The recipient may be permitted to retain title without further 
obligation to the Federal Government after it compensates the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project.
    (2) The recipient may be directed to sell the property under 
guidelines provided by the NHPRC and pay the Federal Government for that 
percentage of the current fair market value of the property attributable 
to the Federal participation in the project (after deducting actual and 
reasonable selling and fix-up expenses, if any, from the sales 
proceeds). When the recipient is authorized or required to sell the 
property, proper sales procedures shall be established that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) The recipient may be directed to transfer title to the property 
to the Federal Government or to an eligible third party provided that, 
in such cases, the recipient shall be entitled to compensation for its 
attributable percentage of the current fair market value of the 
property.



Sec. 1210.33  Federally-owned and exempt property.

    (a) Federally-owned property.
    (1) Title to federally-owned property remains vested in the Federal 
Government. Recipients shall submit annually an inventory listing of 
federally-owned property in their custody to the NHPRC. Upon completion 
of the award or when the property is no longer needed, the recipient 
shall report the property to the NHPRC for further Federal agency 
utilization.
    (2) If the NHPRC has no further need for the property, it shall be 
declared excess and reported to the General Services Administration. 
Appropriate instructions shall be issued to the recipient by the NHPRC.
    (b) Exempt property. When statutory authority exists, the NHPRC has 
the option to vest title to property acquired with Federal funds in the 
recipient without further obligation to the Federal Government and under 
conditions the NHPRC considers appropriate. Such property is ``exempt 
property.'' Should the NHPRC not establish conditions, title to exempt 
property upon acquisition shall vest in the recipient without further 
obligation to the Federal Government.



Sec. 1210.34  Equipment.

    (a) Title to equipment acquired by a recipient with NHPRC funds 
shall vest in the recipient, subject to conditions of this section.
    (b) The recipient shall not use equipment acquired with NHPRC funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute, for as long as the Federal 
Government retains an interest in the equipment.
    (c) The recipient shall use the equipment in the project or program 
for which it was acquired as long as needed, whether or not the project 
or program continues to be supported by Federal funds and shall not 
encumber the property without approval of the NHPRC. When no longer 
needed for the original project or program, the recipient shall use the 
equipment in connection with its other federally-sponsored activities, 
in the following order of priority:
    (1) Activities sponsored by the NHPRC which funded the original 
project, then
    (2) Activities sponsored by other Federal awarding agencies.
    (d) During the time that equipment is used on the project or program 
for which it was acquired, the recipient shall make it available for use 
on other projects or programs if such other use will not interfere with 
the work on the project or program for which the equipment was 
originally acquired. First preference for such other use shall be given 
to other projects or programs sponsored by the NHPRC that financed the 
equipment; second preference shall

[[Page 778]]

be given to projects or programs sponsored by other Federal awarding 
agencies. If the equipment is owned by the Federal Government, use on 
other activities not sponsored by the Federal Government shall be 
permissible if authorized by the NHPRC. User charges shall be treated as 
program income.
    (e) When acquiring replacement equipment, the recipient may use the 
equipment to be replaced as trade-in or sell the equipment and use the 
proceeds to offset the costs of the replacement equipment subject to the 
approval of the NHPRC.
    (f) The recipient's property management standards for equipment 
acquired with Federal funds and federally-owned equipment shall include 
all of the following.
    (1) Equipment records shall be maintained accurately and shall 
include the following information.
    (i) A description of the equipment.
    (ii) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or other identification number.
    (iii) Source of the equipment, including the award number.
    (iv) Whether title vests in the recipient or the Federal Government.
    (v) Acquisition date (or date received, if the equipment was 
furnished by the Federal Government) and cost.
    (vi) Information from which one can calculate the percentage of 
Federal participation in the cost of the equipment (not applicable to 
equipment furnished by the Federal Government).
    (vii) Location and condition of the equipment and the date the 
information was reported.
    (viii) Unit acquisition cost.
    (ix) Ultimate disposition data, including date of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates the NHPRC for its share.
    (2) Equipment owned by the Federal Government shall be identified to 
indicate Federal ownership.
    (3) A physical inventory of equipment shall be taken and the results 
reconciled with the equipment records at least once every two years. Any 
differences between quantities determined by the physical inspection and 
those shown in the accounting records shall be investigated to determine 
the causes of the difference. The recipient shall, in connection with 
the inventory, verify the existence, current utilization, and continued 
need for the equipment.
    (4) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft of the equipment. Any loss, 
damage, or theft of equipment shall be investigated and fully 
documented; if the equipment was owned by the Federal Government, the 
recipient shall promptly notify the NHPRC.
    (5) Adequate maintenance procedures shall be implemented to keep the 
equipment in good condition.
    (6) Where the recipient is authorized or required to sell the 
equipment, proper sales procedures shall be established which provide 
for competition to the extent practicable and result in the highest 
possible return.
    (g) When the recipient no longer needs the equipment, the equipment 
may be used for other activities in accordance with the following 
standards. For equipment with a current per unit fair market value of 
$5,000 or more, the recipient may retain the equipment for other uses 
provided that compensation is made to the NHPRC or its successor. The 
amount of compensation shall be computed by applying the percentage of 
Federal participation in the cost of the original project or program to 
the current fair market value of the equipment. If the recipient has no 
need for the equipment, the recipient shall request disposition 
instructions from the NHPRC. The NHPRC shall determine whether the 
equipment can be used to meet the NHPRC's requirements. If no 
requirement exists within the NHPRC, the availability of the equipment 
shall be reported to the General Services Administration by the NHPRC to 
determine whether a requirement for the equipment exists in other 
Federal agencies. The NHPRC shall issue instructions to the recipient no 
later than 120 calendar days after the recipient's request and the 
following procedures shall govern.
    (1) If so instructed or if disposition instructions are not issued 
within 120

[[Page 779]]

calendar days after the recipient's request, the recipient shall sell 
the equipment and reimburse the NHPRC an amount computed by applying to 
the sales proceeds the percentage of Federal participation in the cost 
of the original project or program. However, the recipient shall be 
permitted to deduct and retain from the Federal share $500 or ten 
percent of the proceeds, whichever is less, for the recipient's selling 
and handling expenses.
    (2) If the recipient is instructed to ship the equipment elsewhere, 
the recipient shall be reimbursed by the Federal Government by an amount 
which is computed by applying the percentage of the recipient's 
participation in the cost of the original project or program to the 
current fair market value of the equipment, plus any reasonable shipping 
or interim storage costs incurred.
    (3) If the recipient is instructed to otherwise dispose of the 
equipment, the recipient shall be reimbursed by the NHPRC for such costs 
incurred in its disposition.
    (4) The NHPRC reserves the right to transfer the title to the 
Federal Government or to a third party named by the Federal Government 
when such third party is otherwise eligible under existing statutes. 
Such transfer shall be subject to the following standards.
    (i) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (ii) The NHPRC shall issue disposition instructions within 120 
calendar days after receipt of a final inventory. The final inventory 
shall list all equipment acquired with grant funds and federally-owned 
equipment. If the NHPRC fails to issue disposition instructions within 
the 120 calendar day period, the recipient shall apply the standards of 
this section, as appropriate.
    (iii) When the NHPRC exercises its right to take title, the 
equipment shall be subject to the provisions for federally-owned 
equipment.



Sec. 1210.35  Supplies and other expendable property.

    (a) Title to supplies and other expendable property shall vest in 
the recipient upon acquisition. If there is a residual inventory of 
unused supplies exceeding $5,000 in total aggregate value upon 
termination or completion of the project or program and the supplies are 
not needed for any other federally-sponsored project or program, the 
recipient shall retain the supplies for use on non-Federal sponsored 
activities or sell them, but shall, in either case, compensate the NHPRC 
for its share. The amount of compensation shall be computed in the same 
manner as for equipment.
    (b) The recipient shall not use supplies acquired with NHPRC funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute as long as the Federal 
Government retains an interest in the supplies.



Sec. 1210.36  Intangible property.

    (a) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, under 
an award. The NHPRC reserves a royalty-free, nonexclusive and 
irrevocable right to reproduce, publish, or otherwise use the work for 
Federal purposes, and to authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including government-wide regulations issued by 
the Department of Commerce at 37 CFR Part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) The Federal Government has the right to:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award; and
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d) (1) In addition, in response to a Freedom of Information Act 
(FOIA) request for research data relating to published research findings 
produced under an award that were used by the Federal Government in 
developing an agency action that has the force and effect of

[[Page 780]]

law, the NHPRC shall request, and the recipient shall provide, within a 
reasonable time, the research data so that they can be made available to 
the public through the procedures established under the FOIA. If the 
NHPRC obtains the research data solely in response to a FOIA request, 
the agency may charge the requester a reasonable fee equaling the full 
incremental cost of obtaining the research data. This fee should reflect 
costs incurred by the agency, the recipient, and applicable 
subrecipients. This fee is in addition to any fees the agency may assess 
under the FOIA (5 U.S.C. 552(a)(4)(A)).
    (2) The following definitions apply for purposes of this paragraph 
(d):
    (i) Research data is defined as the recorded factual material 
commonly accepted in the scientific community as necessary to validate 
research findings, but not any of the following: preliminary analyses, 
drafts of scientific papers, plans for future research, peer reviews, or 
communications with colleagues. This ``recorded'' material excludes 
physical objects (e.g., laboratory samples). Research data also do not 
include:
    (A) Trade secrets, commercial information, materials necessary to be 
held confidential by a researcher until they are published, or similar 
information which is protected under law; and
    (B) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    (ii) Published is defined as either when:
    (A) Research findings are published in a peer-reviewed scientific or 
technical journal; or
    (B) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect of 
law.
    (iii) Used by the Federal Government in developing an agency action 
that has the force and effect of law is defined as when an agency 
publicly and officially cites the research findings in support of an 
agency action that has the force and effect of law.
    (e) Title to intangible property and debt instruments acquired under 
an award or subaward vests upon acquisition in the recipient. The 
recipient shall use that property for the originally-authorized purpose, 
and the recipient shall not encumber the property without approval of 
the NHPRC. When no longer needed for the originally authorized purpose, 
disposition of the intangible property shall occur in accordance with 
the provisions of Sec. 1210.34(g).

[60 FR 53515, Oct. 16, 1995, as amended at 65 FR 14407, 14417, Mar. 16, 
2000]



Sec. 1210.37  Property trust relationship.

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

                          Procurement Standards



Sec. 1210.40  Purpose of procurement standards.

    Sections 1210.41 through 1210.48 set forth standards for use by 
recipients in establishing procedures for the procurement of supplies 
and other expendable property, equipment, real property and other 
services with NHPRC funds. These standards are furnished to ensure that 
such materials and services are obtained in an effective manner and in 
compliance with the provisions of applicable Federal statutes and 
executive orders. No additional procurement standards or requirements 
shall be imposed by the NHPRC upon recipients, unless specifically 
required by Federal statute or executive order or approved by OMB.



Sec. 1210.41  Recipient responsibilities.

    The standards contained in this section do not relieve the recipient 
of the contractual responsibilities arising under its contract(s). The 
recipient is

[[Page 781]]

the responsible authority, without recourse to the NHPRC, regarding the 
settlement and satisfaction of all contractual and administrative issues 
arising out of procurements entered into in support of an award or other 
agreement. This includes disputes, claims, protests of award, source 
evaluation or other matters of a contractual nature. Matters concerning 
violation of statute are to be referred to such Federal, State or local 
authority as may have proper jurisdiction.



Sec. 1210.42  Codes of conduct.

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



Sec. 1210.43  Competition.

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



Sec. 1210.44  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide for, at a minimum, that paragraphs (a) 
(1), (2) and (3) of this section apply.
    (1) Recipients avoid purchasing unnecessary items.
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be the most economical and 
practical procurement for the Federal Government.
    (3) Solicitations for goods and services provide for all of the 
following.
    (i) A clear and accurate description of the technical requirements 
for the material, product or service to be procured. In competitive 
procurements, such a description shall not contain features which unduly 
restrict competition.
    (ii) Requirements which the bidder/offeror must fulfill and all 
other factors to be used in evaluating bids or proposals.
    (iii) A description, whenever practicable, of technical requirements 
in terms of functions to be performed or performance required, including 
the range of acceptable characteristics or minimum acceptable standards.
    (iv) The specific features of ``brand name or equal'' descriptions 
that bidders are required to meet when such items are included in the 
solicitation.
    (v) The acceptance, to the extent practicable and economically 
feasible, of products and services dimensioned in the metric system of 
measurement.

[[Page 782]]

    (vi) Preference, to the extent practicable and economically 
feasible, for products and services that conserve natural resources and 
protect the environment and are energy efficient.
    (b) Positive efforts shall be made by recipients to utilize small 
businesses, minority-owned firms, and women's business enterprises, 
whenever possible. Recipients of Federal awards shall take all of the 
following steps to further this goal.
    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange time frames for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.
    (3) Consider in the contract process whether firms competing for 
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority-owned firms and women's business enterprises when a contract is 
too large for one of these firms to handle individually.
    (5) Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration and the Department of 
Commerce's Minority Business Development Agency in the solicitation and 
utilization of small businesses, minority-owned firms and women's 
business enterprises.
    (c) The type of procuring instruments used (e.g., fixed price 
contracts, cost reimbursable contracts, purchase orders, and incentive 
contracts) shall be determined by the recipient but shall be appropriate 
for the particular procurement and for promoting the best interest of 
the program or project involved. The ``cost-plus-a-percentage-of-cost'' 
or ``percentage of construction cost'' methods of contracting shall not 
be used.
    (d) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration shall be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources or accessibility to other necessary 
resources. In certain circumstances, contracts with certain parties are 
restricted by NARA implementation of E.O.s 12549 and 12689, ``Debarment 
and Suspension'' (36 CFR Part 1209).
    (e) Recipients shall, on request, make available for the NHPRC, pre-
award review and procurement documents, such as request for proposals or 
invitations for bids, independent cost estimates, etc., when any of the 
following conditions apply.
    (1) A recipient's procurement procedures or operation fails to 
comply with the procurement standards in the NHPRC's implementation of 
this part.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403 (11) (currently $25,000) and is to be 
awarded without competition or only one bid or offer is received in 
response to a solicitation.
    (3) The procurement, which is expected to exceed the small purchase 
threshold, specifies a ``brand name'' product.
    (4) The proposed award over the small purchase threshold is to be 
awarded to other than the apparent low bidder under a sealed bid 
procurement.
    (5) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the amount of the small 
purchase threshold.



Sec. 1210.45  Cost and price analysis.

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

[[Page 783]]



Sec. 1210.46  Procurement records.

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



Sec. 1210.47  Contract administration.

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



Sec. 1210.48  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and complete agreement, the following provisions in all contracts. 
The following provisions shall also be applied to subcontracts.
    (a) Contracts in excess of the small purchase threshold shall 
contain contractual provisions or conditions that allow for 
administrative, contractual, or legal remedies in instances in which a 
contractor violates or breaches the contract terms, and provide for such 
remedial actions as may be appropriate.
    (b) All contracts in excess of the small purchase threshold shall 
contain suitable provisions for termination by the recipient, including 
the manner by which termination shall be effected and the basis for 
settlement. In addition, such contracts shall describe conditions under 
which the contract may be terminated for default as well as conditions 
where the contract may be terminated because of circumstances beyond the 
control of the contractor.
    (c) All negotiated contracts (except those for less than the small 
purchase threshold) awarded by recipients shall include a provision to 
the effect that the recipient, the NHPRC, the Comptroller General of the 
United States, or any of their duly authorized representatives, shall 
have access to any books, documents, papers and records of the 
contractor which are directly pertinent to a specific program for the 
purpose of making audits, examinations, excerpts and transcriptions.
    (d) All contracts, including small purchases, awarded by recipients 
and their contractors shall contain the procurement provisions of 
Appendix A to this Part, as applicable.

                           Reports and Records



Sec. 1210.50  Purpose of reports and records.

    Sections 1210.51 through 1210.53 set forth the procedures for 
monitoring and reporting on the recipient's financial and program 
performance and the necessary standard reporting forms. They also set 
forth record retention requirements.



Sec. 1210.51  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients shall monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 1210.26.
    (b) Except as provided in paragraph (f) of this section, interim 
performance reports shall be submitted every six months and shall be due 
30 days after the reporting period; final reports shall be due 90 
calendar days after the end of the grant period.
    (c) If inappropriate, a final performance report shall not be 
required after completion of the project.
    (d) When required, performance reports shall generally contain, for 
each award, brief information on each of the following.
    (1) A comparison of actual accomplishments with the goals and 
objectives established for the period, the findings of the investigator, 
or both. Whenever appropriate and the output of programs or projects can 
be readily quantified, such quantitative data should be related to cost 
data for computation of unit costs.
    (2) Reasons why established goals were not met, if appropriate.

[[Page 784]]

    (3) Other pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (e) Recipients shall not be required to submit more than the 
original and two copies of performance reports.
    (f) Recipients shall immediately notify the NHPRC of developments 
that have a significant impact on the award-supported activities. Also, 
notification shall be given in the case of problems, delays, or adverse 
conditions which materially impair the ability to meet the objectives of 
the award. This notification shall include a statement of the action 
taken or contemplated, and any assistance needed to resolve the 
situation.
    (g) The NHPRC may make site visits, as needed.
    (h) The NHPRC shall comply with clearance requirements of 5 CFR Part 
1320 when requesting performance data from recipients.



Sec. 1210.52  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report.
    (i) The NHPRC requires recipients to use the SF-269 or SF-269A to 
report the status of funds for all nonconstruction projects or programs. 
The NHPRC may, however, have the option of not requiring the SF-269 or 
SF-269A when the SF-270, Request for Advance or Reimbursement, or SF-
272, Report of Federal Cash Transactions, is determined to provide 
adequate information to meet its needs, except that a final SF-269 or 
SF-269A shall be required at the completion of the project when the SF-
270 is used only for advances.
    (ii) The report may be on a cash or accrual basis.
    (iii) The NHPRC shall determine the frequency of the Financial 
Status Report for each project or program, considering the size and 
complexity of the particular project or program. However, the report 
shall not be required more frequently than quarterly or less frequently 
than annually. A final report shall be required at the completion of the 
agreement.
    (iv) The NHPRC shall require recipients to submit the SF-269 or SF-
269A (an original and no more than two copies) no later than 30 days 
after the end of each specified reporting period for quarterly and semi-
annual reports, and 90 calendar days for annual and final reports. 
Extensions of reporting due dates may be approved by NHPRC upon request 
of the recipient.
    (2) SF-272, Report of Federal Cash Transactions.
    (i) When funds are advanced to recipients the NHPRC shall require 
each recipient to submit the SF-272 and, when necessary, its 
continuation sheet, SF-272a. The NHPRC shall use this report to monitor 
cash advanced to recipients and to obtain disbursement information for 
each agreement with the recipients.
    (ii) The NHPRC may require forecasts of Federal cash requirements in 
the ``Remarks'' section of the report.
    (iii) When practical and deemed necessary, the NHPRC may require 
recipients to report in the ``Remarks'' section the amount of cash 
advances received in excess of three days. Recipients shall provide 
short narrative explanations of actions taken to reduce the excess 
balances.
    (iv) Recipients shall be required to submit not more than the 
original and two copies of the SF-272 15 calendar days following the end 
of each quarter. The NHPRC may require a monthly report from those 
recipients receiving advances totaling $1 million or more per year.
    (v) The NHPRC may waive the requirement for submission of the SF-272 
for any one of the following reasons:
    (A) When monthly advances do not exceed $25,000 per recipient, 
provided that such advances are monitored through other forms contained 
in this section;
    (B) If, in the NHPRC's opinion, the recipient's accounting controls 
are adequate to minimize excessive Federal advances; or,
    (C) When the electronic payment mechanisms provide adequate data.
    (b) When the NHPRC needs additional information or more frequent 
reports, the following shall be observed.

[[Page 785]]

    (1) When additional information is needed to comply with legislative 
requirements, the NHPRC shall issue instructions to require recipients 
to submit such information under the ``Remarks'' section of the reports.
    (2) When the NHPRC determines that a recipient's accounting system 
does not meet the standards in Sec. 1210.21, additional pertinent 
information to further monitor awards may be obtained upon written 
notice to the recipient until such time as the system is brought up to 
standard. The NHPRC, in obtaining this information, shall comply with 
report clearance requirements of 5 CFR Part 1320.
    (3) The NHPRC is encouraged to shade out any line item on any report 
if not necessary.
    (4) The NHPRC may accept the identical information from the 
recipients in machine readable format or computer printouts or 
electronic outputs in lieu of prescribed formats.
    (5) The NHPRC may provide computer or electronic outputs to 
recipients when such expedites or contributes to the accuracy of 
reporting.



Sec. 1210.53  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. The NHPRC will not impose 
any other record retention or access requirements upon recipients.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award shall be retained for a 
period of three years from the date of submission of the final 
expenditure report or, for awards that are renewed quarterly or 
annually, from the date of the submission of the quarterly or annual 
financial report, as authorized by the NHPRC. The only exceptions are 
the following.
    (1) If any litigation, claim, or audit is started before the 
expiration of the 3-year period, the records shall be retained until all 
litigation, claims or audit findings involving the records have been 
resolved and final action taken.
    (2) Records for real property and equipment acquired with NHPRC 
funds shall be retained for 3 years after final disposition.
    (3) When records are transferred to or maintained by the NHPRC, the 
3-year retention requirement is not applicable to the recipient.
    (4) Indirect cost rate proposals, cost allocations plans, etc. as 
specified in paragraph (g) of this section.
    (c) Copies of original records may be substituted for the original 
records if authorized by the NHPRC.
    (d) The NHPRC shall request transfer of certain records to its 
custody from recipients when it determines that the records possess long 
term retention value. However, in order to avoid duplicate 
recordkeeping, the NHPRC may make arrangements for recipients to retain 
any records that are continuously needed for joint use.
    (e) The NHPRC, the Inspector General, Comptroller General of the 
United States, or any of their duly authorized representatives, have the 
right of timely and unrestricted access to any books, documents, papers, 
or other records of recipients that are pertinent to the awards, in 
order to make audits, examinations, excerpts, transcripts and copies of 
such documents. This right also includes timely and reasonable access to 
a recipient's personnel for the purpose of interview and discussion 
related to such documents. The rights of access in this paragraph are 
not limited to the required retention period, but shall last as long as 
records are retained.
    (f) Unless required by statute, the NHPRC will place no restrictions 
on recipients that limit public access to the records of recipients that 
are pertinent to an award, except when the NHPRC can demonstrate that 
such records shall be kept confidential and would have been exempted 
from disclosure pursuant to the Freedom of Information Act (5 U.S.C. 
552) if the records had belonged to the NHPRC.
    (g) Indirect cost rate proposals, cost allocations plans, etc. 
Paragraphs (g)(1) and (g)(2) of this section apply to the following 
types of documents, and their supporting records: indirect cost rate 
computations or proposals, cost allocation plans, and any similar 
accounting computations of the rate at which a particular group of costs 
is chargeable

[[Page 786]]

(such as computer usage chargeback rates or composite fringe benefit 
rates).
    (1) If submitted for negotiation. If the recipient submits to the 
cognizant Federal agency or the subrecipient submits to the recipient 
the proposal, plan, or other computation to form the basis for 
negotiation of the rate, then the 3-year retention period for its 
supporting records starts on the date of such submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to the NHPRC or the subrecipient is not required to 
submit to the recipient the proposal, plan, or other computation for 
negotiation purposes, then the 3-year retention period for the proposal, 
plan, or other computation and its supporting records starts at the end 
of the fiscal year (or other accounting period) covered by the proposal, 
plan, or other computation.

                       Termination and Enforcement



Sec. 1210.60  Purpose of termination and enforcement.

    Sections 1210.61 and 1210.62 set forth uniform suspension, 
termination and enforcement procedures.



Sec. 1210.61  Termination.

    (a) Awards may be terminated in whole or in part only if paragraphs 
(1), (2) or (3) of this section apply.
    (1) By the NHPRC, if a recipient materially fails to comply with the 
terms and conditions of an award.
    (2) By the NHPRC with the consent of the recipient, in which case 
the two parties shall agree upon the termination conditions, including 
the effective date and, in the case of partial termination, the portion 
to be terminated.
    (3) By the recipient upon sending to the NHPRC written notification 
setting forth the reasons for such termination, the effective date, and, 
in the case of partial termination, the portion to be terminated. 
However, if the NHPRC determines in the case of partial termination that 
the reduced or modified portion of the grant will not accomplish the 
purposes for which the grant was made, it may terminate the grant in its 
entirety under either paragraphs (a)(1) or (2) of this section.
    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec. 1210.71(a), including those for property 
management as applicable, shall be considered in the termination of the 
award, and provision shall be made for continuing responsibilities of 
the recipient after termination, as appropriate.



Sec. 1210.62  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
the NHPRC may, in addition to imposing any of the special conditions 
outlined in Sec. 1210.14, take one or more of the following actions, as 
appropriate in the circumstances.
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by the 
NHPRC.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching credit for) all or part of the cost of the activity or action 
not in compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Withhold further awards for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, the NHPRC 
shall provide the recipient an opportunity for hearing, appeal, or other 
administrative proceeding to which the recipient is entitled under any 
statute or regulation applicable to the action involved.
    (c) Effects of suspension and termination. Costs of a recipient 
resulting from obligations incurred by the recipient during a suspension 
or after termination of an award are not allowable unless the NHPRC 
expressly authorizes them in the notice of suspension or termination or 
subsequently. Other recipient costs during suspension or after 
termination which are necessary and not reasonably avoidable are 
allowable if paragraphs (c)(1) and (2) of this section apply.

[[Page 787]]

    (1) The costs result from obligations which were properly incurred 
by the recipient before the effective date of suspension or termination, 
are not in anticipation of it, and in the case of a termination, are 
noncancellable.
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to debarment 
and suspension under E.O.s 12549 and 12689 and NARA implementing 
regulations (see Sec. 1210.13).



                 Subpart D_After-the-Award Requirements



Sec. 1210.70  Purpose.

    Sections 1210.71 through 1210.73 contain closeout procedures and 
other procedures for subsequent disallowances and adjustments.



Sec. 1210.71  Closeout procedures.

    (a) Recipients shall submit, within 90 calendar days after the date 
of completion of the award, all financial, performance, and other 
reports as required by the terms and conditions of the award. The NHPRC 
may approve extensions when requested by the recipient.
    (b) Unless the NHPRC authorizes an extension, a recipient shall 
liquidate all obligations incurred under the award not later than 90 
calendar days after the funding period or the date of completion as 
specified in the terms and conditions of the award or in agency 
implementing instructions.
    (c) The NHPRC shall make prompt payments to a recipient for 
allowable reimbursable costs under the award being closed out.
    (d) The recipient shall promptly refund any balances of unobligated 
cash that the NHPRC has advanced or paid and that is not authorized to 
be retained by the recipient for use in other projects. OMB Circular A-
129 governs unreturned amounts that become delinquent debts.
    (e) When authorized by the terms and conditions of the award, the 
NHPRC shall make a settlement for any upward or downward adjustments to 
the Federal share of costs after closeout reports are received.
    (f) The recipient shall account for any real and personal property 
acquired with Federal funds or received from the Federal Government in 
accordance with Sec. Sec. 1210.31 through 1210.37.
    (g) In the event a final audit has not been performed prior to the 
closeout of an award, the NHPRC shall retain the right to recover an 
appropriate amount after fully considering the recommendations on 
disallowed costs resulting from the final audit.



Sec. 1210.72  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following.
    (1) The right of the NHPRC to disallow costs and recover funds on 
the basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 1210.26.
    (4) Property management requirements in Sec. Sec. 1210.31 through 
1210.37.
    (5) Records retention as required in Sec. 1210.53.
    (b) After closeout of an award, a relationship created under an 
award may be modified or ended in whole or in part with the consent of 
the NHPRC and the recipient, provided the responsibilities of the 
recipient referred to in Sec. 1210.73(a), including those for property 
management as applicable, are considered and provisions made for 
continuing responsibilities of the recipient, as appropriate.



Sec. 1210.73  Collection of amounts due.

    (a) Any funds paid to a recipient in excess of the amount to which 
the recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. If 
not paid within a reasonable period after the demand for payment, the 
NHPRC may reduce the debt by:
    (1) Making an administrative offset against other requests for 
reimbursements;

[[Page 788]]

    (2) Withholding advance payments otherwise due to the recipient; or
    (3) Taking other action permitted by statute.
    (b) Except as otherwise provided by law, the NHPRC shall charge 
interest on an overdue debt in accordance with 4 CFR Chapter II, 
``Federal Claims Collection Standards.''



            Sec. Appendix A to Part 1210--Contract Provisions

    All contracts, awarded by a recipient including small purchases, 
shall contain the following provisions as applicable:
    1. Equal Employment Opportunity--All contracts shall contain a 
provision requiring compliance with E.O. 11246, ``Equal Employment 
Opportunity,'' as amended by E.O. 11375, ``Amending Executive Order 
11246 Relating to Equal Employment Opportunity,'' and as supplemented by 
regulations at 41 CFR part 60, ``Office of Federal Contract Compliance 
Programs, Equal Employment Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
276c)--All contracts and subgrants in excess of $2,000 for construction 
or repair awarded by recipients and subrecipients shall include a 
provision for compliance with the Copeland ``Anti-Kickback'' Act (18 
U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR 
part 3, ``Contractors and Subcontractors on Public Building or Public 
Work Financed in Whole or in Part by Loans or Grants from the United 
States''). The Act provides that each contractor or subrecipient shall 
be prohibited from inducing, by any means, any person employed in the 
construction, completion, or repair of public work, to give up any part 
of the compensation to which he is otherwise entitled. The recipient 
shall report all suspected or reported violations to the Federal 
awarding agency.
    3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When 
required by Federal program legislation, all construction contracts 
awarded by the recipients and subrecipients of more than $2,000 shall 
include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 
276a to a-7) and as supplemented by Department of Labor regulations (29 
CFR part 5, ``Labor Standards Provisions Applicable to Contracts 
Governing Federally Financed and Assisted Construction''). Under this 
Act, contractors shall be required to pay wages to laborers and 
mechanics at a rate not less than the minimum wages specified in a wage 
determination made by the Secretary of Labor. In addition, contractors 
shall be required to pay wages not less than once a week. The recipient 
shall place a copy of the current prevailing wage determination issued 
by the Department of Labor in each solicitation and the award of a 
contract shall be conditioned upon the acceptance of the wage 
determination. The recipient shall report all suspected or reported 
violations to the Federal awarding agency.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in excess of 
$2,000 for construction contracts and in excess of $2,500 for other 
contracts that involve the employment of mechanics or laborers shall 
include a provision for compliance with Sections 102 and 107 of the 
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as 
supplemented by Department of Labor regulations (29 CFR part 5). Under 
Section 102 of the Act, each contractor shall be required to compute the 
wages of every mechanic and laborer on the basis of a standard work week 
of 40 hours. Work in excess of the standard work week is permissible 
provided that the worker is compensated at a rate of not less than 1\1/
2\ times the basic rate of pay for all hours worked in excess of 40 
hours in the work week. Section 107 of the Act is applicable to 
construction work and provides that no laborer or mechanic shall be 
required to work in surroundings or under working conditions which are 
unsanitary, hazardous or dangerous. These requirements do not apply to 
the purchases of supplies or materials or articles ordinarily available 
on the open market, or contracts for transportation or transmission of 
intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental, 
developmental, or research work shall provide for the rights of the 
Federal Government and the recipient in any resulting invention in 
accordance with 37 CFR part 401, ``Rights to Inventions Made by 
Nonprofit Organizations and Small Business Firms Under Government 
Grants, Contracts and Cooperative Agreements,'' and any implementing 
regulations issued by the awarding agency.
    6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subgrants of amounts in excess of $100,000 shall contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as 
amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the 
Federal awarding agency and the Regional Office of the Environmental 
Protection Agency (EPA).
    7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who 
apply or bid for an award of $100,000 or more shall file the required 
certification. Each tier certifies to the tier above that it will not 
and has not used Federal appropriated funds to pay any

[[Page 789]]

person or organization for influencing or attempting to influence an 
officer or employee of any agency, a member of Congress, officer or 
employee of Congress, or an employee of a member of Congress in 
connection with obtaining any Federal contract, grant or any other award 
covered by 31 U.S.C. 1352. Each tier shall also disclose any lobbying 
with non-Federal funds that takes place in connection with obtaining any 
Federal award. Such disclosures are forwarded from tier to tier up to 
the recipient.
    8. Debarment and Suspension (E.O. 12549 and E.O. 12689)--No contract 
shall be made to parties listed on the General Services Administration's 
List of Parties Excluded from Federal Procurement or Nonprocurement 
Programs in accordance with E.O. 12549 and E.O. 12689, ``Debarment and 
Suspension.'' This list contains the names of parties debarred, 
suspended, or otherwise excluded by agencies, and contractors declared 
ineligible under statutory or regulatory authority other than E.O. 
12549. Contractors with awards that exceed the small purchase threshold 
shall provide the required certification regarding its exclusion status 
and that of its principal employees.



PART 1211_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR 

ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A_Introduction

Sec.
1211.100 Purpose and effective date.
1211.105 Definitions.
1211.110 Remedial and affirmative action and self-evaluation.
1211.115 Assurance required.
1211.120 Transfers of property.
1211.125 Effect of other requirements.
1211.130 Effect of employment opportunities.
1211.135 Designation of responsible employee and adoption of grievance 
          procedures.
1211.140 Dissemination of policy.

                           Subpart B_Coverage

1211.200 Application.
1211.205 Educational institutions and other entities controlled by 
          religious organizations.
1211.210 Military and merchant marine educational institutions.
1211.215 Membership practices of certain organizations.
1211.220 Admissions.
1211.225 Educational institutions eligible to submit transition plans.
1211.230 Transition plans.
1211.235 Statutory amendments.

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

1211.300 Admission.
1211.305 Preference in admission.
1211.310 Recruitment.

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

1211.400 Education programs or activities.
1211.405 Housing.
1211.410 Comparable facilities.
1211.415 Access to course offerings.
1211.420 Access to schools operated by LEAs.
1211.425 Counseling and use of appraisal and counseling materials.
1211.430 Financial assistance.
1211.435 Employment assistance to students.
1211.440 Health and insurance benefits and services.
1211.445 Marital or parental status.
1211.450 Athletics.
1211.455 Textbooks and curricular material.

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

1211.500 Employment.
1211.505 Employment criteria.
1211.510 Recruitment.
1211.515 Compensation.
1211.520 Job classification and structure.
1211.525 Fringe benefits.
1211.530 Marital or parental status.
1211.535 Effect of state or local law or other requirements.
1211.540 Advertising.
1211.545 Pre-employment inquiries.
1211.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

1211.600 Notice of covered programs.
1211.605 Compliance information.
1211.610 Conduct of investigations.
1211.615 Procedure for effecting compliance.
1211.620 Hearings.
1211.625 Decisions and notices.
1211.630 Judicial review.
1211.635 Forms and instructions; coordination.

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

    Source: 65 FR 52865, 52886, Aug. 30, 2000, unless otherwise noted.

[[Page 790]]



                         Subpart A_Introduction



Sec. 1211.100  Purpose and effective date.

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



Sec. 1211.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Executive Director, National 
Historical Publications and Records Commission.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.

[[Page 791]]

    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at 36 CFR 
1211.100 through 1211.635.
    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. 1211.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-

[[Page 792]]

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. 1211.115  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. 
1211.110(a) to eliminate existing discrimination on the basis of sex or 
to eliminate the effects of past discrimination whether occurring prior 
to or subsequent to the submission to the designated agency official of 
such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 1211.120  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. 1211.205 through 1211.235(a).



Sec. 1211.125  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

[[Page 793]]

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. 1211.130  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. 1211.135  Designation of responsible employee and adoption of grievance procedures.

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



Sec. 1211.140  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. 1211.300 through 1211.310 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. 1211.135, or to the designated 
agency official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:

[[Page 794]]

    (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. 1211.200  Application.

    Except as provided in Sec. Sec. 1211.205 through 1211.235(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. 1211.205  Educational institutions and other entities controlled by 

religious organizations.

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



Sec. 1211.210  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. 1211.215  Membership practices of certain organizations.

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



Sec. 1211.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section,

[[Page 795]]

Sec. Sec. 1211.225 and 1211.230, and Sec. Sec. 1211.300 through 
1211.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec. 1211.300 through 1211.310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec. 1211.300 
through 1211.310 apply to each recipient. A recipient to which 
Sec. Sec. 1211.300 through 1211.310 apply shall not discriminate on the 
basis of sex in admission or recruitment in violation of Sec. Sec. 
1211.300 through 1211.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec. 1211.300 through 1211.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec. 1211.300 through 1211.310 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. 1211.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec. 1211.300 through 1211.310 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. 1211.300 through 
1211.310.



Sec. 1211.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 1211.225 
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. 1211.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec. 1211.300 through 
1211.310 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. 1211.225 applies shall include in its transition plan, 
and shall implement, specific steps designed to encourage individuals of 
the previously excluded sex to apply

[[Page 796]]

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. 1211.235  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) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any

[[Page 797]]

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. 1211.300  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. 1211.300 through Sec. Sec. 1211.310 
apply, except as provided in Sec. 1211.225 and Sec. 1211.230.
    (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. 1211.300 through 1211.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec. 1211.300 through 1211.310 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. 1211.235(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. 1211.305  Preference in admission.

    A recipient to which Sec. Sec. 1211.300 through 1211.310 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. 1211.300 through 1211.310.

[[Page 798]]



Sec. 1211.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec. 
1211.300 through 1211.310 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. 1211.110(a), and may choose to 
undertake such efforts as affirmative action pursuant to Sec. 
1211.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec. 1211.300 through 1211.310 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. 1211.300 through 1211.310.



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



Sec. 1211.400  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 
1211.400 through 1211.455 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. 1211.300 through 1211.310 do 
not apply, or an entity, not a recipient, to which Sec. Sec. 1211.300 
through 1211.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec. 1211.400 
through 1211.455, in providing any aid, benefit, or service to a 
student, a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation

[[Page 799]]

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. 1211.405  Housing.

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



Sec. 1211.410  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. 1211.415  Access to course offerings.

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

[[Page 800]]

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. 1211.420  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. 1211.425  Counseling and use of appraisal and counseling materials.

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



Sec. 1211.430  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

[[Page 801]]

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. 1211.450.



Sec. 1211.435  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. 
1211.500 through 1211.550.



Sec. 1211.440  Health and insurance benefits and services.

    Subject to Sec. 1211.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec. 1211.500 through 1211.550 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. 1211.445  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. 1211.235(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.

[[Page 802]]

    (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. 1211.450  Athletics.

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



Sec. 1211.455  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.

[[Page 803]]



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



Sec. 1211.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (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. 
1211.500 through 1211.550, including relationships with employment and 
referral agencies, with labor unions, and with organizations providing 
or administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec. 1211.500 through 
1211.550 apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 1211.505  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. 1211.510  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.

[[Page 804]]

    (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. 1211.500 through 1211.550.



Sec. 1211.515  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. 1211.520  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. 1211.550.



Sec. 1211.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 1211.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 1211.530  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. 
1211.235(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

[[Page 805]]

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. 1211.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec. 1211.500 through 1211.550 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. 1211.540  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. 1211.545  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. 1211.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec. 
1211.500 through 1211.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action is essential to successful operation of 
the employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F_Procedures



Sec. 1211.600  Notice of covered programs.

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



Sec. 1211.605  Compliance information.

    (a) Cooperation and assistance. The designated agency official shall 
to the fullest extent practicable seek the cooperation of recipients in 
obtaining compliance with these Title IX regulations and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with these Title IX regulations.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the designated agency official (or designee) timely, complete, 
and accurate compliance reports at such times, and in such form and 
containing such information, as the designated agency official (or 
designee) may determine to be necessary to enable the official to 
ascertain whether the recipient has complied or is complying with these 
Title IX regulations. In the case of any program under which a primary 
recipient extends Federal financial assistance to

[[Page 806]]

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 these 
Title IX regulations.
    (c) Access to sources of information. Each recipient shall permit 
access by the designated agency official (or designee) during normal 
business hours to such of its books, records, accounts, and other 
sources of information, and its facilities as may be pertinent to 
ascertain compliance with these Title IX regulations. Where any 
information required of a recipient is in the exclusive possession of 
any other agency, institution, or person and this agency, institution, 
or person shall fail or refuse to furnish this information the recipient 
shall so certify in its report and shall set forth what efforts it has 
made to obtain the information. Asserted considerations of privacy or 
confidentiality may not operate to bar the agency from evaluating or 
seeking to enforce compliance with these Title IX regulations. 
Information of a confidential nature obtained in connection with 
compliance evaluation or enforcement shall not be disclosed except where 
necessary in formal enforcement proceedings or where otherwise required 
by law.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of these 
Title IX regulations and their applicability to the program for which 
the recipient receives Federal financial assistance, and make such 
information available to them 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.

[65 FR 52886, Aug. 30, 2000]



Sec. 1211.610  Conduct of investigations.

    (a) Periodic compliance reviews. The designated agency official (or 
designee) shall from time to time review the practices of recipients to 
determine whether they are complying with these Title IX regulations.
    (b) Complaints. Any person who believes himself or herself or any 
specific class of individuals to be subjected to discrimination 
prohibited by these Title IX regulations may by himself or herself or by 
a representative file with the designated agency official (or designee) 
a written complaint. A complaint must be filed not later than 180 days 
from the date of the alleged discrimination, unless the time for filing 
is extended by the designated agency official (or designee).
    (c) Investigations. The designated agency official (or designee) 
will make a prompt investigation whenever a compliance review, report, 
complaint, or any other information indicates a possible failure to 
comply with these Title IX regulations. The investigation should 
include, where appropriate, a review of the pertinent practices and 
policies of the recipient, the circumstances under which the possible 
noncompliance with these Title IX regulations occurred, and other 
factors relevant to a determination as to whether the recipient has 
failed to comply with these Title IX regulations.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with these 
Title IX regulations, the designated agency official (or designee) 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. 1211.615.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d) (1) of this section the designated agency official (or 
designee) 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 Title IX or these Title IX regulations, or because 
he or she has made a complaint, testified, assisted, or participated in 
any manner in an investigation, proceeding, or hearing under these Title

[[Page 807]]

IX regulations. The identity of complainants shall be kept confidential 
except to the extent necessary to carry out the purposes of these Title 
IX regulations, including the conduct of any investigation, hearing, or 
judicial proceeding arising under these Title IX regulations.

[65 FR 52887, Aug. 30, 2000]



Sec. 1211.615  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with these Title IX regulations, and if the noncompliance or 
threatened noncompliance cannot be corrected by informal means, 
compliance with these Title IX regulations may be effected by the 
suspension or termination of or refusal to grant or to continue Federal 
financial assistance or by any other means authorized by law. Such other 
means may include, but are not limited to:
    (1) A reference to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States, or any assurance or 
other contractual undertaking; and
    (2) Any applicable proceeding under State or local law.
    (b) Noncompliance with Sec. 1211.115. If an applicant fails or 
refuses to furnish an assurance or otherwise fails or refuses to comply 
with a requirement imposed by or pursuant to Sec. 1211.115, Federal 
financial assistance may be refused in accordance with the procedures of 
paragraph (c) of this section. The agency shall not be required to 
provide assistance in such a case during the pendency of the 
administrative proceedings under paragraph (c) of this section except 
that the agency shall continue assistance during the pendency of such 
proceedings where such assistance is due and payable pursuant to an 
application therefor approved prior to September 29, 2000.
    (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 designated agency official has advised the applicant or 
recipient of its 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 these Title IX 
regulations; and
    (iii) The expiration of 30 days after the Archivist 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.
    (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. (1) No action to effect 
compliance by any other means authorized by law shall be taken until:
    (i) The designated agency official has determined that compliance 
cannot be secured by voluntary means;
    (ii) The recipient has been notified of its failure to comply and of 
the action to be taken to effect compliance; and
    (iii) The expiration of at least 10 days from the mailing of such 
notice to the recipient.
    (2) During this period of at least 10 days additional efforts shall 
be made to persuade the recipient to comply with these Title IX 
regulations and to take such corrective action as may be appropriate.

[65 FR 52887, Aug. 30, 2000]



Sec. 1211.620  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 1211.615(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

[[Page 808]]

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 designated 
agency official that the matter be scheduled for hearing; or
    (2) Advise the applicant or recipient that the matter in question 
has been set down for hearing at a stated place and time. The time and 
place so fixed shall be reasonable and shall be subject to change for 
cause. The complainant, if any, shall be advised of the time and place 
of the hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing for which a date has been 
set shall be deemed to be a waiver of the right to a hearing under 20 
U.S.C. 1682 and Sec. 1211.615(c) and consent to the making of a 
decision on the basis of such information as may be filed as the record.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the agency in Washington, DC, at a time fixed by the designated 
agency official unless the official determines that the convenience of 
the applicant or recipient or of the agency requires that another place 
be selected. Hearings shall be held before a hearing officer designated 
in accordance with 5 U.S.C. 556(b).
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the agency shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554-557 (sections 5 through 8 of the Administrative Procedure 
Act), and in accordance with such rules of procedure as are proper (and 
not inconsistent with this section) relating to the conduct of the 
hearing, giving of notices subsequent to those provided for in paragraph 
(a) of this section, taking of testimony, exhibits, arguments and 
briefs, requests for findings, and other related matters. Both the 
agency 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 hearing officer at the outset of or during the 
hearing. Any person (other than a Government employee considered to be 
on official business) who, having been invited or requested to appear 
and testify as a witness on the Government's behalf, attends at a time 
and place scheduled for a hearing provided for by these Title IX 
regulations, may be reimbursed for his or her travel and actual expenses 
of attendance in an amount not to exceed the amount payable under the 
standardized travel regulations to a Government employee traveling on 
official business.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to these Title IX regulations, but rules or 
principles designed to assure production of the most credible evidence 
available and to subject testimony to test by cross-examination shall be 
applied where reasonably necessary by the hearing officer. 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 these Title 
IX regulations with respect to two or more programs to which these Title 
IX regulations apply, or noncompliance with these Title IX regulations 
and the regulations of one or more other Federal departments or agencies 
issued under Title IX, the designated agency official may, by agreement 
with such other departments or agencies where applicable, provide for 
the conduct of consolidated or joint hearings, and for the application 
to such hearings of rules of procedures not inconsistent with these

[[Page 809]]

Title IX regulations. Final decisions in such cases, insofar as these 
Title IX regulations are concerned, shall be made in accordance with 
Sec. 1211.625.

[65 FR 52887, Aug. 30, 2000]



Sec. 1211.625  Decisions and notices.

    (a) Decisions by hearing officers. After a hearing is held by a 
hearing officer such hearing officer shall either make an initial 
decision, if so authorized, or certify the entire record including 
recommended findings and proposed decision to the reviewing authority 
for a final decision, and a copy of such initial decision or 
certification shall be mailed to the applicant or recipient and to the 
complainant, if any. Where the initial decision referred to in this 
paragraph or in paragraph (c) of this section is made by the hearing 
officer, the applicant or recipient or the counsel for the agency may, 
within the period provided for in the rules of procedure issued by the 
designated agency official, file with the reviewing authority exceptions 
to the initial decision, with the reasons therefor. Upon the filing of 
such exceptions the reviewing authority shall review the initial 
decision and issue its own decision thereof including the reasons 
therefor. In the absence of exceptions the initial decision shall 
constitute the final decision, subject to the provisions of paragraph 
(e) of this section.
    (b) Decisions on record or review by the reviewing authority. 
Whenever a record is certified to the reviewing authority for decision 
or it reviews the decision of a hearing officer pursuant to paragraph 
(a) or (c) of this section, the applicant or recipient shall be given 
reasonable opportunity to file with it briefs or other written 
statements of its contentions, and a copy of the final decision of the 
reviewing authority shall be given in writing to the applicant or 
recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 1211.620, the reviewing authority 
shall make its final decision on the record or refer the matter to a 
hearing officer for an initial decision to be made on the record. A copy 
of such decision shall be given in writing to the applicant or 
recipient, and to the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer or 
reviewing authority shall set forth a ruling on each finding, 
conclusion, or exception presented, and shall identify the requirement 
or requirements imposed by or pursuant to these Title IX regulations 
with which it is found that the applicant or recipient has failed to 
comply.
    (e) Review in certain cases by the Archivist of the United States. 
If the Archivist has not personally made the final decision referred to 
in paragraph (a), (b), or (c) of this section, a recipient or applicant 
or the counsel for the agency may request the Archivist to review a 
decision of the reviewing authority in accordance with rules of 
procedure issued by the designated agency official. Such review is not a 
matter of right and shall be granted only where the Archivist determines 
there are special and important reasons therefor. The Archivist may 
grant or deny such request, in whole or in part. The Archivist may also 
review such a decision upon his own motion in accordance with rules of 
procedure issued by the National Archives and Records Administration. In 
the absence of a review under this paragraph (e), a final decision 
referred to in paragraph (a), (b), or (c) of this section shall become 
the final decision of the agency when the Archivist transmits it as such 
to Congressional committees with the report required under 20 U.S.C. 
1682. Failure of an applicant or recipient to file an exception with the 
reviewing authority or to request review under this paragraph (e) shall 
not be deemed a failure to exhaust administrative remedies for the 
purpose of obtaining judicial review.
    (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 these Title IX regulations 
apply, and may contain such terms, conditions, and other provisions as 
are consistent with and will effectuate the purposes of Title IX and 
these Title IX regulations, including provisions designed to assure that 
no Federal financial assistance to which these Title IX regulations 
apply will

[[Page 810]]

thereafter be extended under such law or laws to the applicant or 
recipient determined by such decision to be in default in its 
performance of an assurance given by it pursuant to these Title IX 
regulations, or to have otherwise failed to comply with these Title IX 
regulations unless and until it corrects its noncompliance and satisfies 
the designated agency official that it will fully comply with these 
Title IX regulations.
    (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 
these Title IX regulations and provides reasonable assurance that it 
will fully comply with these Title IX regulations. An elementary or 
secondary school or school system that is unable to file an assurance of 
compliance shall be restored to full eligibility to receive Federal 
financial assistance if it files a court order or a plan for 
desegregation that meets the applicable requirements and provides 
reasonable assurance that it will comply with the court order or plan.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the designated agency official to restore fully its eligibility 
to receive Federal financial assistance. Any such request shall be 
supported by information showing that the applicant or recipient has met 
the requirements of paragraph (g)(1) of this section. If the designated 
agency official determines that those requirements have been satisfied, 
the official shall restore such eligibility.
    (3) If the designated agency official denies any such request, the 
applicant or recipient may submit a request for a hearing in writing, 
specifying why it believes such official to have been in error. It shall 
thereupon be given an expeditious hearing, with a decision on the 
record, in accordance with rules of procedure issued by the designated 
agency official. The applicant or recipient will be restored to such 
eligibility if it proves at such hearing that it satisfied the 
requirements of paragraph (g)(1) of this section. While proceedings 
under this paragraph (g) are pending, the sanctions imposed by the order 
issued under paragraph (f) of this section shall remain in effect.

[65 FR 52888, Aug. 30, 2000]



Sec. 1211.630  Judicial review.

    Action taken pursuant to 20 U.S.C. 1682 is subject to judicial 
review as provided in 20 U.S.C. 1683.

[65 FR 52889, Aug. 30, 2000]



Sec. 1211.635  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 implementing these Title IX 
regulations.
    (b) Supervision and coordination. The Archivist or his designee may 
from time to time assign to officials of the agency, 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. 1211.625(e)), 
including the achievements of effective coordination and maximum 
uniformity within the agency 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 agency.

[65 FR 52889, Aug. 30, 2000]

[[Page 811]]



PART 1212_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 

ASSISTANCE)--Table of Contents




                     Subpart A_Purpose and Coverage

Sec.
1212.100 What does this part do?
1212.105 Does this part apply to me?
1212.110 Are any of my Federal assistance awards exempt from this part?
1212.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

1212.200 What must I do to comply with this part?
1212.205 What must I include in my drug-free workplace statement?
1212.210 To whom must I distribute my drug-free workplace statement?
1212.215 What must I include in my drug-free awareness program?
1212.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
1212.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
1212.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

1212.300 What must I do to comply with this part if I am an individual 
          recipient?
1212.301 [Reserved]

          Subpart D_Responsibilities of NARA Awarding Officials

1212.400 What are my responsibilities as a NARA awarding official?

           Subpart E_Violations of This Part and Consequences

1212.500 How are violations of this part determined for recipients other 
          than individuals?
1212.505 How are violations of this part determined for recipients who 
          are individuals?
1212.510 What actions will the Federal Government take against a 
          recipient determined to have violated this part?
1212.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

1212.605 Award.
1212.610 Controlled substance.
1212.615 Conviction.
1212.620 Cooperative agreement.
1212.625 Criminal drug statute
1212.630 Debarment.
1212.635 Drug-free workplace.
1212.640 Employee.
1212.645 Federal agency or agency.
1212.650 Grant.
1212.655 Individual.
1212.660 Recipient.
1212.665 State.
1212.670 Suspension.

    Authority: 41 U.S.C. 701, et seq.; 44 U.S.C. 2104(a).

    Source: 68 FR 66544, 66617, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 1212.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec. 1212.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the NARA; or
    (2) A(n) NARA awarding official. (See definitions of award and 
recipient in Sec. Sec. 1212.605 and 1212.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
             If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an individual..  A, B and E.
(2) A recipient who is an individual......  A, C and E.
(3) A(n) NARA awarding official...........  A, D and E.
------------------------------------------------------------------------



Sec. 1212.110  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award that the Archivist of the 
United States or designee determines that the application of this part 
would be inconsistent with the international obligations of the United 
States or the laws or regulations of a foreign government.

[[Page 812]]



Sec. 1212.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec. 1212. 510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 1212.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec. 1212.205 
through 1212.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec. 1212.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. 1212.230).



Sec. 1212.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec. 1212.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec. 
1212.205 be given to each employee who will be engaged in the 
performance of any Federal award.



Sec. 1212.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec. 1212.220  By when must I publish my drug-free workplace statement and 

establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec. 1212.205 and an ongoing awareness 
program as described in Sec. 1212.215, you must publish the statement 
and establish the program by the time given in the following table:

------------------------------------------------------------------------
                 If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award is  must have the policy
 less than 30 days.                          statement and program in
                                             place as soon as possible,
                                             but before the date on
                                             which performance is
                                             expected to be completed.
(b) The performance period of the award is  must have the policy
 30 days or more.                            statement and program in
                                             place within 30 days after
                                             award.

[[Page 813]]

 
(c) You believe there are extraordinary     may ask the NARA awarding
 circumstances that will require more than   official to give you more
 30 days for you to publish the policy       time to do so. The amount
 statement and establish the awareness       of additional time, if any,
 program.                                    to be given is at the
                                             discretion of the awarding
                                             official.
------------------------------------------------------------------------



Sec. 1212.225  What actions must I take concerning employees who are convicted 

of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. 1212.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec. 1212.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each NARA award. A 
failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces--
    (1) To the NARA official that is making the award, either at the 
time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by NARA officials or their 
designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award takes place. Categorical descriptions may be used 
(e.g., all vehicles of a mass transit authority or State highway 
department while in operation, State employees in each local 
unemployment office, performers in concert halls or radio studios).
    (c) If you identified workplaces to the NARA awarding official at 
the time of application or award, as described in paragraph (a)(1) of 
this section, and any workplace that you identified changes during the 
performance of the award, you must inform the NARA awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 1212.300  What must I do to comply with this part if I am an individual 

recipient?

    As a condition of receiving a(n) NARA award, if you are an 
individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the NARA awarding official or other designee for each award 
that you currently have, unless Sec. 1212.301 or the award document 
designates a central point for the receipt of the notices. When notice 
is made to a central point,

[[Page 814]]

it must include the identification number(s) of each affected award.



Sec. 1212.301  [Reserved]



          Subpart D_Responsibilities of NARA Awarding Officials



Sec. 1212.400  What are my responsibilities as a(n) NARA awarding official?

    As a(n) NARA awarding official, you must obtain each recipient's 
agreement, as a condition of the award, to comply with the requirements 
in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec. 1212.500  How are violations of this part determined for recipients other 

than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Archivist of the United States or 
designee determines, in writing, that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec. 1212.505  How are violations of this part determined for recipients who 

are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Archivist of the United States or designee determines, in 
writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec. 1212.510  What actions will the Federal Government take against a 

recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. 1212.500 or Sec. 1212.505, the NARA may take one or 
more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 36 CFR part 1209, 
for a period not to exceed five years.

[68 FR 66544, 66617, Nov. 26, 2003, as amended at 68 FR 66617, Nov. 26, 
2003]



Sec. 1212.515  Are there any exceptions to those actions?

    The Archivist of the United States or designee may waive with 
respect to a particular award, in writing, a suspension of payments 
under an award, suspension or termination of an award, or suspension or 
debarment of a recipient if the Archivist of the United States or 
designee determines that such a waiver would be in the public interest. 
This exception authority cannot be delegated to any other official.



                          Subpart F_Definitions



Sec. 1212.605  Award.

    Award means an award of financial assistance by the NARA or other 
Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 36 
CFR part 1207 that implements OMB Circular A-102 (for availability, see 
5 CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.

[[Page 815]]

    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).

[68 FR 66544, 66617, Nov. 26, 2003, as amended at 68 FR 66617, Nov. 26, 
2003]



Sec. 1212.610  Controlled substance.

    Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15.



Sec. 1212.615  Conviction.

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.



Sec. 1212.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec. 1212.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec. 1212.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec. 1212.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689.



Sec. 1212.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec. 1212.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the payroll; 
or employees of subrecipients or subcontractors in covered workplaces).



Sec. 1212.645  Federal agency or agency.

    Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency.



Sec. 1212.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than

[[Page 816]]

to acquire property or services for the Federal Government's direct 
benefit or use; and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec. 1212.655  Individual.

    Individual means a natural person.



Sec. 1212.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec. 1212.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec. 1212.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order 12689. Suspension of a recipient is a distinct and separate action 
from suspension of an award or suspension of payments under an award.

[[Page 817]]



                     SUBCHAPTER B_RECORDS MANAGEMENT



PART 1220_FEDERAL RECORDS; GENERAL--Table of Contents




Sec.
1220.1 Scope of subchapter.
1220.2 Responsibility for records management programs.

                      Subpart A_General Provisions

1220.10 Authority.
1220.12 Applicability.
1220.14 General definitions.
1220.16 Reports to the Congress and the Director of the Office of 
          Management and Budget.
1220.18 Inspection of records.

              Subpart B_Agency Records Management Programs

1220.30 Authority.
1220.32 Program content.
1220.34 Creation of records.
1220.36 Maintenance and use of records.
1220.38 Disposition of records.
1220.40 Liaison offices.
1220.42 Agency internal evaluations.

                    Subpart C_NARA Evaluation Program

1220.50 Authority.
1220.52 Purpose and scope.
1220.54 Evaluation process.
1220.56 Evaluation report.
1220.58 Agency action plans and progress reports.
1220.60 Followup notification and reviews.

    Authority: 44 U.S.C. 2104(a) and chs. 29 and 33.

    Source: 50 FR 26930, June 28, 1985, unless otherwise noted.



Sec. 1220.1  Scope of subchapter.

    Subchapter B prescribes policies for Federal agencies' records 
management programs relating to records creation and maintenance, 
adequate documentation, and proper records disposition.



Sec. 1220.2  Responsibility for records management programs.

    The National Archives and Records Administration Act of 1984 amended 
the records management statutes to divide records management 
responsibilities between the National Archives and Records 
Administration (NARA) and the General Services Administration (GSA). 
Under the Act, NARA is responsible for adequacy of documentation and 
records disposition and GSA is responsible for economy and efficiency in 
records management. NARA regulations are codified in this subchapter. 
GSA records management regulations are codified in 41 CFR part 102-193. 
Federal agency records management programs must be in compliance with 
regulations promulgated by both NARA and GSA.

[57 FR 19807, May 8, 1992, as amended at 67 FR 31962, May 13, 2002]



                      Subpart A_General Provisions



Sec. 1220.10  Authority.

    The regulations in this part are issued under the provisions of the 
National Archives and Records Administration Act of 1984 (Pub. L. 98-
497, 44 U.S.C. 101 note).



Sec. 1220.12  Applicability.

    The regulations in subchapter B apply to all Federal agencies as 
defined in Sec. 1220.14.



Sec. 1220.14  General definitions.

    As used in subchapter B--
    Agency (see Executive agency and Federal agency).
    Adequate and proper documentation means a record of the conduct of 
Government business that is complete and accurate to the extent required 
to document the organization, functions, policies, decisions, 
procedures, and essential transactions of the agency and that is 
designed to furnish the information necessary to protect the legal and 
financial rights of the Government and of persons directly affected by 
the agency's activities.
    Appraisal is the process by which the National Archives and Records 
Administration (NARA) determines the value and thus the final 
disposition of Federal records, making them either temporary or 
permanent.
    Commercial records storage facility is a private sector commercial 
facility that

[[Page 818]]

offers records storage, retrieval, and disposition services.
    Comprehensive schedule is a printed agency manual or directive 
containing descriptions of and disposition instructions for all 
documentary materials, record and nonrecord, created by a Federal agency 
or major component of an Executive department. Unless taken from the 
General Records Schedules (GRS) issued by NARA, the disposition 
instructions for agency records must be approved by NARA on one or more 
Standard Form(s) 115, Request for Records Disposition Authority, prior 
to issuance by the agency. The disposition instructions for the 
nonrecord material are established by the agency and do not require NARA 
approval.
    Contingent records are records whose final disposition is dependent 
on an action or event, such as sale of property or destruction of a 
facility, which will take place at some unspecified time in the future.
    Disposition means those actions taken regarding records no longer 
needed for the conduct of the regular current business of the agency.
    Documentary materials is a collective term for records and nonrecord 
materials that refers to all media on which information is recorded, 
regardless of the nature of the medium or the method or circumstances of 
recording.
    Evaluation means the selective or comprehensive inspection, audit, 
or review of one or more Federal agency records management programs for 
effectiveness and for compliance with applicable laws and regulations. 
It includes recommendations for correcting or improving records 
management policies, procedures, and activities, and follow-up 
activities, including reporting on such activities, for implementing the 
recommendations.
    Executive agency means any executive department or independent 
establishment in the executive branch of the Government, including any 
wholly-owned Government corporation.
    Federal agency means any executive agency or any establishment in 
the legislative or judicial branch of the Government (except the Supreme 
Court, Senate, the House of Representatives, and the Architect of the 
Capitol and any activities under his direction). (44 U.S.C. 2901(14)).
    File means an arrangement of records. The term is used to denote 
papers, photographs, photographic copies, maps, machine-readable 
information, or other recorded information regardless of physical form 
or characteristics, accumulated or maintained in filing equipment, 
boxes, or machine-readable media, or on shelves, and occupying office or 
storage space.
    National Archives of the United States means those records that have 
been determined by the Archivist of the United States to have sufficient 
historical or other value to warrant their continued preservation by the 
Federal Government and that have been transferred to the legal custody 
of the Archivist of the United States on a Standard Form 258 (Agreement 
to Transfer Records to the National Archives of the United States).
    Nonrecord materials are those Federally owned informational 
materials that do not meet the statutory definition of records (44 
U.S.C. 3301) or that have been excluded from coverage by the definition. 
Excluded materials are extra copies of documents kept only for 
reference, stocks of publications and processed documents, and library 
or museum materials intended solely for reference or exhibit.
    Permanent record means any Federal record that has been determined 
by NARA to have sufficient value to warrant its preservation in the 
National Archives of the United States. Permanent records include all 
records accessioned by NARA into the National Archives of the United 
States and later increments of the same records, and those for which the 
disposition is permanent on SF 115s, Request for Records Disposition 
Authority, approved by NARA on or after May 14, 1973.
    Recordkeeping requirements means all statements in statutes, 
regulations, and agency directives or authoritative issuances, that 
provide general and specific requirements for Federal agency personnel 
on particular records to be created and maintained by the agency.
    Recordkeeping system is a manual or automated system in which 
records are

[[Page 819]]

collected, organized, and categorized to facilitate their preservation, 
retrieval, use, and disposition.
    Records include all books, papers, maps, photographs, machine 
readable materials, or other documentary materials, regardless of 
physical form or characteristics, made or received by an agency of the 
United States Government under Federal law or in connection with the 
transaction of public business and preserved or appropriate for 
preservation by that agency or its legitimate successor as evidence of 
the organization, functions, policies, decisions, procedures, operations 
or other activities of the Government or because of the informational 
value of the data in them (44 U.S.C. 3301).
    Records center is defined in 44 U.S.C. 2901(6) as an establishment 
maintained and operated by the Archivist or by another Federal agency 
primarily for the storage, servicing, security, and processing of 
records which need to be preserved for varying periods of time and need 
not be retained in office equipment or space.
    Records maintenance and use, as used in subchapter B, means any 
activity involving location of records of a Federal agency or the 
storage, retrieval, and handling of records kept at office file 
locations by or for a Federal agency.
    Records management, as used in subchapter B, means the planning, 
controlling, directing, organizing, training, promoting, and other 
managerial activities involved with respect to records creation, records 
maintenance and use, and records disposition in order to achieve 
adequate and proper documentation of the policies and transactions of 
the Federal Government and effective and economical management of agency 
operations.
    Records schedule or schedule means
    (a) An SF 115, Request for Records Disposition Authority, that has 
been approved by NARA to authorize the disposition of Federal records;
    (b) A General Records Schedule (GRS) issued by NARA; or
    (c) A printed agency manual or directive containing the records 
descriptions and disposition instructions approved by NARA on one or 
more SF 115s or issued by NARA in the GRS. (See also the definition 
Comprehensive schedule.)
    Records storage facility is a records center or a commercial records 
storage facility, as defined in this section, i.e., a facility used by a 
Federal agency to store Federal records, whether that facility is 
operated and maintained by the agency, by NARA, by another Federal 
agency, or by a private commercial entity.
    Series means file units or documents arranged according to a filing 
system or kept together because they relate to a particular subject or 
function, result from the same activity, document a specific kind of 
transaction, take a particular physical form, or have some other 
relationship arising out of their creation, receipt, or use, such as 
restrictions on access and use. Also called a records series.
    Temporary records. A temporary record is any record which has been 
determined by the Archivist of the United States to have insufficient 
value (on the basis of current standards) to warrant its preservation by 
the National Archives and Records Administration. This determination may 
take the form of:
    (a) A series of records designated as disposable in an agency 
records disposition schedule approved by NARA (Standard Form 115, 
Request for Records Disposition Authority); or
    (b) A series of records designated as disposable in a General 
Records Schedule.
    Unscheduled records are records the final disposition of which has 
not been approved by NARA. Unscheduled records are those that have not 
been included on a Standard Form 115, Request for Records Disposition 
Authority, approved by NARA; those described but not authorized for 
disposal on an SF 115 approved prior to May 14, 1973; and those 
described on an SF 115 but not approved by NARA (withdrawn, canceled, or 
disapproved).

[45 FR 5705, Jan. 24, 1980 and 50 FR 26931, 26933, June 28, 1985, as 
amended at 52 FR 34134, Sept. 9, 1987; 55 FR 27423, 27427, July 2, 1990; 
57 FR 19807, May 8, 1992; 59 FR 28783, June 3, 1994; 60 FR 44639, Aug. 
28, 1995; 64 FR 67663, Dec. 2, 1999; 66 FR 27027, May 16, 2001]

[[Page 820]]



Sec. 1220.16  Reports to the Congress and the Director of the Office of 

Management and Budget.

    Under 44 U.S.C. 2904(c)(8), the Archivist of the United States is 
required to report to Congress and the Office of Management and Budget 
annually on the results of records management activities, including 
evaluations of responses by Federal agencies to any recommendations 
resulting from studies or inspections conducted by NARA.



Sec. 1220.18  Inspection of records.

    (a) In order for NARA to conduct inspections and studies required in 
44 U.S.C. Chapter 29 and records appraisals in 44 U.S.C. Chapter 33, 
agencies must provide access for authorized NARA staff members to 
records in the agency's legal custody, regardless of the physical 
location of the records.
    (b) In accordance with 44 U.S.C. 2906, when NARA inspects an agency 
record which is contained in a system of records subject to the Privacy 
Act of 1974 (5 U.S.C. 552a), the records shall be maintained by the 
Archivist or his designee as a record contained in a system of records 
or considered to be a record contained in a system of records for the 
purposes of subsections (b), (c), and (i) of section 552a of title 5.

[50 FR 26930, June 28, 1985, as amended at 64 FR 67664, Dec. 2, 1999]



              Subpart B_Agency Records Management Programs



Sec. 1220.30  Authority.

    Section 3101 of title 44 U.S.C. requires the head of each Federal 
agency to make and preserve records containing adequate and proper 
documentation of the organization, functions, policies, decisions, 
procedures and essential transactions of the agency and designed to 
furnish the information necessary to protect the legal and financial 
rights of the Government and of persons directly affected by the 
agency's activities.



Sec. 1220.32  Program content.

    Agency programs shall, among other things, provide for:
    (a) Cooperation with NARA in developing and applying standards, 
procedures, and techniques designed to improve the management of 
records, promote the maintenance and security of records deemed 
appropriate for permanent preservation, and facilitate the segregation 
and disposal of temporary records.
    (b) Compliance with sections 2101-2117, 2501-2507, 2901-2909, 3101-
3107, and 3301-3314 of title 44 U.S.C. and with NARA regulations issued 
in title 36 of the Code of Federal Regulations.



Sec. 1220.34  Creation of records.

    Adequate records management controls over the creation of Federal 
agency records shall be instituted to ensure that agency functions are 
adequately and properly documented. Federal agencies shall also comply 
with GSA regulations on creation of records found in 41 CFR part 102-
193.

[57 FR 19807, May 8, 1992, as amended at 67 FR 31962, May 13, 2002]



Sec. 1220.36  Maintenance and use of records.

    (a) Agencies must institute adequate records management controls 
over the maintenance and use of records wherever they are located to 
ensure that all records, regardless of format or medium, are organized, 
classified, and described to promote their accessibility, and make them 
available for use by all appropriate agency staff for their authorized 
retention period. Agencies must also maintain permanent records in a 
format that will permit transfer to the National Archives of the United 
States.
    (b) Agencies must ensure that they maintain adequate information 
about their records moved to an off-site records storage facility (see 
36 CFR 1228.154). Agencies must also create and maintain records that 
document the destruction of temporary records and the transfer of 
permanent records to the National Archives of the United States. The 
disposition of records that provide such documentation is governed by 
General Records Schedule (GRS) 16.
    (c) Agencies must also comply with GSA regulations on the 
maintenance

[[Page 821]]

and use of records found in 41 CFR part 102-193.

[64 FR 67664, Dec. 2, 1999, as amended at 67 FR 31962, May 13, 2002]



Sec. 1220.38  Disposition of records.

    (a) Agencies must ensure the proper, authorized disposition of their 
records, regardless of format or medium, so that permanent records are 
preserved and temporary records no longer of use to an agency are 
promptly deleted or disposed of in accordance with the approved records 
schedule when their required retention period expires. As an 
intermediate step when records are not needed for current day-to-day 
reference, they may be transferred to a records storage facility.
    (b) Agencies must secure NARA approval of a records schedule or 
apply the appropriate General Records Schedule item before destroying 
any temporary records or transferring permanent records to the National 
Archives of the United States (see 36 CFR part 1228).

[64 FR 67664, Dec. 2, 1999]



Sec. 1220.40  Liaison offices.

    An office or offices within each Federal agency shall be assigned 
responsibility for the development of the records management program 
required by this part. The office to which responsibility is assigned 
shall be reported to the NARA Life Cycle Management Division (NWML), 
8601 Adelphi Rd., College Park, MD 20740-6001. The name, title, and 
telephone number of the official or officials authorized by the head of 
the agency to approve records disposition schedules and transfers of 
records to the custody of the National Archives shall also be submitted 
to the Life Cycle Management Division.

[50 FR 26930, June 28, 1985, as amended at 63 FR 35829, July 1, 1998]



Sec. 1220.42  Agency internal evaluations.

    Each agency must periodically evaluate its records management 
programs relating to records creation and record keeping requirements, 
maintenance and use of records, and records disposition. These 
evaluations shall include periodic monitoring of staff determinations of 
the record status of documentary materials in all media, and 
implementation of these decisions. These evaluations should determine 
compliance with NARA regulations in this subchapter, including 
requirements for storage of agency records and records storage 
facilities in 36 CFR part 1228, subparts I and K, and assess the 
effectiveness of the agency's records management program.

[64 FR 67664, Dec. 2, 1999]



                    Subpart C_NARA Evaluation Program

    Source: 59 FR 28783, June 3, 1994, unless otherwise noted.



Sec. 1220.50  Authority.

    44 U.S.C. chapter 29 vests in the Archivist of the United States the 
responsibility for providing guidance and assistance to Federal agencies 
with respect to ensuring adequate and proper documentation and proper 
records disposition. Sections 2904 and 2906 specifically authorize the 
Archivist to conduct inspections or surveys of records and records 
management programs and practices within and between Federal agencies 
and require officers and employees of agencies to cooperate fully in 
such inspections. Section 2904 also authorizes the Archivist to report 
to the appropriate oversight and appropriations committees of the 
Congress and the Director of OMB on the results of inspections, the 
responses by agencies to NARA evaluation recommendations, and estimates 
of the costs to the Federal government resulting from the failure to 
implement such recommendations.



Sec. 1220.52  Purpose and scope.

    (a) NARA evaluations assess how effectively Federal agencies make 
and preserve complete and accurate records of their organization, 
functions, policies, decisions, procedures, and essential transactions; 
and maintain an active, continuing records management program including 
proper records disposition. Agencies shall be evaluated for compliance 
with requirements in 44 U.S.C. chapters 31 and 33 and all the

[[Page 822]]

regulations issued thereunder in 36 CFR subchapter B.
    (b) NARA evaluations may include comprehensive reviews of agency 
records management programs, or selective reviews focused on adequate 
and proper documentation, on records disposition, on the management of 
specific types of record media or on the management of records in 
particular program areas. NARA evaluations may be of one agency or may 
be multi-agency. These evaluations may be conducted solely within 
headquarters offices, only at field locations, or at a combination of 
field sites and headquarters.
    (c) Evaluations will involve site visits by NARA; submission by NARA 
to the agency of a written report containing findings, analyses, and 
recommendations; and submission to NARA by the agency of an action plan 
for implementing the recommendations followed by regular progress 
reports. Interagency report control number 0153-NARA-AR has been 
assigned to the action plan and progress reports in accordance with GSA 
regulations in Title 41 of the CFR.

[59 FR 28783, June 3, 1994, as amended at 66 FR 27027, May 16, 2001]



Sec. 1220.54  Evaluation process.

    (a) NARA shall select Federal agencies to be evaluated on the basis 
of perceived need by NARA or specific request by the agency, or on the 
basis of a compliance monitoring cycle developed by NARA. NARA will 
determine the scope of the evaluation. An agency may request an 
evaluation of its records management program by contacting the Director, 
Life Cycle Management Division; however, the final determination of 
agencies to be evaluated will be made by NARA. The heads of agencies 
will be notified in writing by the Archivist of the United States of the 
intent to conduct an evaluation and the scope of the evaluation at least 
180 calendar days prior to initiating the evaluation.
    (b) Once NARA has notified the agency, the agency head will, by the 
date specified in the Archivist's letter:
    (1) Acknowledge in writing NARA's intention to evaluate, and provide 
the Archivist with the name and telephone number of the senior official 
with overall responsibility for records management and of a headquarters 
official who will work with NARA to facilitate the evaluation process;
    (2) Provide written notification of the evaluation to all 
appropriate offices and employees and contractors potentially involved; 
this notification will include instructions to cooperate with NARA by 
setting up interviews, providing requested information, and making 
records available for inspection;
    (3) Provide NARA with a copy of the written notification in 
paragraph (b)(2) of this section and with a list of names and telephone 
numbers of officials responsible for records management in field sites, 
if applicable, who will work with NARA during the evaluation;
    (4) For comprehensive evaluations, provide NARA with a set of 
internal records management directives, orders, bulletins, or similar 
authoritative issuances; copies of the two most recent internal records 
management evaluations; and any special records-related reports. 
Included may be: issuances relating to adequate and proper documentation 
and recordkeeping requirements; personal papers; management and 
disposition of textual, electronic, audiovisual, cartographic and 
architectural, micrographic, and vital records; disaster mitigation and 
recovery; and any other records-related documentation requested by NARA. 
A subset of this documentation will be requested for more limited 
evaluations;
    (5) Provide NARA with a current version of the agency manual(s) 
covering records creation, maintenance, storage, and disposition, and a 
list of information systems maintained as required by OMB Circular A-
130, section 9a(5), and a list of offices and/or functions and 
activities not currently covered by schedules;
    (6) Arrange for appropriate management and program officials in 
headquarters and, if applicable, at field sites to be briefed by NARA at 
the beginning and at the end of the evaluation process; and
    (7) Take immediate corrective action regarding any serious problems 
that

[[Page 823]]

NARA may bring to the agency's attention during the course of the 
evaluation process such as the unauthorized destruction of records or 
the unauthorized donation or other transfer of records to non-NARA 
facilities.

[59 FR 28783, June 3, 1994, as amended at 63 FR 35829, July 1, 1998]



Sec. 1220.56  Evaluation report.

    (a) NARA will submit a draft evaluation report for factual review 
and comment to the agency within 120 calendar days of the last 
evaluation site visit or exit briefing. After receipt of agency 
comments, NARA will finalize the report, incorporating any changes 
resulting from factual errors identified by the agency. The final report 
will be transmitted by the Archivist to the head of the agency within 30 
calendar days of receiving comments from the agency.
    (b) The head of the agency will:
    (1) Comment within 60 calendar days, in writing, on the contents of 
the draft report. If necessary, agencies can request extensions. No 
response from the agency within the allotted time will indicate that the 
agency concurs in the factual accuracy of the draft report.
    (2) Review the final report and assign implementation 
responsibility; and
    (3) Distribute the final report to all concerned and appropriate 
persons and offices.



Sec. 1220.58  Agency action plans and progress reports.

    (a) Action plans. (1) The action plan will be submitted to NARA 
within 90 calendar days after the date of transmittal of the final 
report. If necessary, agencies can request extensions. The plan shall be 
submitted by the agency head or the designated senior official for 
information resources management. The action plan will include:
    (i) The name of the senior official and the office responsible for 
coordinating implementation agency-wide;
    (ii) The specific action(s) the agency will take to implement each 
evaluation report recommendation. If an agency is unable to implement a 
recommendation, the rationale for not acting shall be documented in the 
action plan;
    (iii) The name of the official and office or program responsible for 
the overall coordination of the agency's followup actions who will be 
the liaison with NARA;
    (iv) The estimated time needed to complete each action and the 
proposed quarter and year for starting and completing each action;
    (v) Major milestones with dates for tracking the completion of 
implementation actions that are expected to extend longer than 3 years 
past the date of the action plan; and,
    (vi) If requested by NARA, separate action plans for each field site 
visited, incorporating the information required by paragraphs (a)(1)(i) 
through (a)(1)(v) of this section.
    (2) NARA will analyze the action plan(s) submitted by the agency for 
adequacy and effectiveness in implementing the recommendations contained 
in the evaluation report. NARA will provide comments to the agency on 
the plan(s) within 60 calendar days.
    (3) The agency will revise the action plan until it is approved by 
NARA.
    (b) Progress reports. (1) Once the action plan(s) has been approved 
by NARA, the head of the agency will submit progress reports to NARA 
every 6 months. The reports will include:
    (i) A description of what has been accomplished on each action since 
the last report;
    (ii) The current status of the action;
    (iii) Any changes in the offices or programs responsible for over-
all or specific action implementation; and,
    (iv) If appropriate, explanation of any delays in implementation and 
revised target dates and milestones for completion of the action.
    (2) The agency will continue to submit these progress reports until 
NARA and the agency agree all actions have been completed, NARA and the 
agency agree that the agency has implemented the recommendation(s) to 
the fullest extent possible, or NARA indicates in writing that regular 
progress reports are no longer required.
    (3) NARA will review and comment on agency progress reports, and 
work closely with the agency to provide assistance in evaluation 
implementation.

[[Page 824]]



Sec. 1220.60  Follow-up notification and reviews.

    (a) If NARA determines that there is not substantial progress in the 
full implementation of evaluation recommendations or that the agency has 
not corrected serious problems identified in the report, the Archivist, 
after notifying the head of the agency, may notify Congress and 
appropriate Federal oversight agencies of the evaluation findings and 
the agency response.
    (b) NARA may initiate follow-up reviews at specific offices or field 
sites. Results of these follow-up reviews shall be communicated to the 
head of the agency and, if NARA determines it to be appropriate, to 
Congress and Federal oversight agencies.



PART 1222_CREATION AND MAINTENANCE OF FEDERAL RECORDS--Table of Contents




                            Subpart A_General

Sec.
1222.10 Authority.
1222.12 Defining Federal records.

                     Subpart B_Program Requirements

1222.20 Agency responsibilities.

        Subpart C_Standards for Agency Recordkeeping Requirements

1222.30 Purpose.
1222.32 General requirements.
1222.34 Identifying Federal records.
1222.36 Identifying personal papers.
1222.38 Categories of documentary materials to be covered by 
          recordkeeping requirements.
1222.40 Removal of records.
1222.42 Removal of nonrecord materials.
1222.44 Directives documenting agency programs, policies, and 
          procedures.
1222.46 Recordkeeping requirements of other agencies.
1222.48 Data created or received and maintained for the Government by 
          contractors.
1222.50 Records maintenance and storage.

    Authority: 44 U.S.C. 2904, 3101, and 3102.

    Source: 55 FR 27423, July 2, 1990, unless otherwise noted.



                            Subpart A_General



Sec. 1222.10  Authority.

    (a) 44 U.S.C. 2904, vests in the Archivist of the United States 
responsibility for providing guidance and assistance to Federal agencies 
with respect to ensuring adequate and proper documentation of the 
policies and transactions of the Federal Government, including 
developing and issuing standards to improve the management of records.
    (b) 44 U.S.C. 3101, requires that the head of each Federal agency 
shall make and preserve records containing adequate and proper 
documentation of the organization, functions, policies, decisions, 
procedures, and essential transactions of the agency and designed to 
furnish the information necessary to protect the legal and financial 
rights of the Government and of persons directly affected by the 
agency's activities.
    (c) 44 U.S.C. 3102, requires that the head of each Federal agency 
shall establish and maintain an active, continuing program for the 
economical and efficient management of the records of the agency. The 
program, among other things, shall provide for--
    (1) Effective controls over the creation, and over the maintenance 
and use of records in the conduct of current business;
    (2) Cooperation with the Administrator of General Services and the 
Archivist in applying standards, procedures, and techniques designed to 
improve the management of records, promote the maintenance and security 
of records deemed appropriate for preservation, and facilitate the 
segregation and disposal of records of temporary value.



Sec. 1222.12  Defining Federal records.

    (a) The statutory definition of Federal records is contained in 44 
U.S.C. 3301 and is stated in Sec. 1220.14 of this chapter.
    (b) Several key terms, phrases, and concepts in the statutory 
definition of records are defined as follows:
    (1) Documentary materials is a collective term for records, 
nonrecord materials, and personal papers that refers to all media 
containing recorded information, regardless of the nature of the media 
or the method(s) or circumstance(s) of recording.
    (2) Regardless of physical form or characteristics means that the 
medium may be paper, film, disk, or other physical

[[Page 825]]

type or form; and that the method of recording may be manual, 
mechanical, photographic, electronic, or any other combination of these 
or other technologies.
    (3) Made means the act of creating and recording information by 
agency personnel in the course of their official duties, regardless of 
the method(s) or the medium involved. The act of recording is generally 
identifiable by the circulation of the information to others or by 
placing it in files accessible to others.
    (4) Received means the acceptance or collection of documentary 
materials by agency personnel in the course of their official duties 
regardless of their origin (for example, other units of their agency, 
private citizens, public officials, other agencies, contractors, 
Government grantees) and regardless of how transmitted (in person or by 
messenger, mail, electronic means, or by any other method). In this 
context, the term does not refer to misdirected materials. It may or may 
not refer to loaned or seized materials depending on the conditions 
under which such materials came into agency custody or were used by the 
agency. Advice of legal counsel should be sought regarding the 
``record'' status of loaned or seized materials.
    (5) Preserved means the filing, storing, or any other method of 
systematically maintaining documentary materials by the agency. This 
term covers materials not only actually filed or otherwise 
systematically maintained but also those temporarily removed from 
existing filing systems.
    (6) Appropriate for preservation means documentary materials made or 
received which in the judgment of the agency should be filed, stored, or 
otherwise systematically maintained by an agency because of the evidence 
of agency activities or information they contain, even though the 
materials may not be covered by its current filing or maintenance 
procedures.

[55 FR 27423, July 2, 1990; 55 FR 31982, Aug. 6, 1990]



                     Subpart B_Program Requirements



Sec. 1222.20  Agency responsibilities.

    (a) The head of each Federal agency, in meeting the requirements of 
44 U.S.C. 2904, 3101, and 3102, shall observe the responsibilities and 
standards set forth in this part. Agencies are also subject to 
regulations issued by the General Services Administration (GSA) in 41 
CFR part 102-193.
    (b) Each Federal agency shall:
    (1) Assign to one or more offices of the agency the responsibility 
for the development and implementation of agency-wide programs to 
identify, develop, issue, and periodically review recordkeeping 
requirements for records for all agency activities at all levels and 
locations in all media including paper, microform, audiovisual, 
cartographic, and electronic (including those created or received using 
electronic mail);
    (2) Integrate programs for the identification, development, 
issuance, and periodic review of recordkeeping requirements with other 
records and information resources management programs of the agency, 
including the requirement of close coordination between the office 
designated in 36 CFR 1222.20(b)(1) and the office assigned overall 
records management responsibility in accordance with 36 CFR 1220.40, if 
the two are different;
    (3) Issue a directive(s) establishing program objectives, 
responsibilities, and authorities for agency recordkeeping requirements. 
Copies of the directive(s) (including subsequent amendments or 
supplements) shall be disseminated throughout the agency, as 
appropriate, and a copy shall be sent to NARA (NWML);
    (4) Establish procedures for the participation of records management 
officials in developing new or revised agency programs, processes, 
systems, and procedures in order to ensure that adequate recordkeeping 
requirements are established and implemented;
    (5) Ensure that adequate training is provided to all agency 
personnel on policies, responsibilities, and techniques for the 
implementation of recordkeeping requirements and the distinction between 
records and nonrecord

[[Page 826]]

materials, regardless of media, including those materials created by 
individuals using computers to send or receive electronic mail;
    (6) Develop and implement records schedules for all records created 
and received by the agency and obtain NARA approval of the schedules in 
accordance with 36 CFR part 1228;
    (7) Ensure compliance with applicable Governmentwide policies, 
procedures, and standards relating to recordkeeping requirements as may 
be issued by the Office of Management and Budget, the General Services 
Administration, the National Archives and Records Administration, the 
National Institute of Standards and Technology, or other agencies, as 
appropriate;
    (8) Review recordkeeping requirements, as part of the periodic 
information resources management reviews required by 44 U.S.C. 3506, or 
the periodic records management evaluations required by 36 CFR 1220.54, 
in order to validate their currency and to ensure that recordkeeping 
requirements are being implemented;
    (9) Remind all employees annually of the agency's recordkeeping 
policies and of the sanctions provided for the unlawful removal or 
destruction of Federal records (18 U.S.C. 2071);
    (10) Ensure that records storage facilities used to store the 
agency's records comply with the standards specified in 36 CFR part 
1228, subpart K. The agency must also comply with 36 CFR 1228.240 by 
obtaining NARA approval of an agency records center or submitting 
documentation of compliance by a commercial records storage facility 
before the agency transfers records to that facility.

[55 FR 27423, July 2, 1990, as amended at 58 FR 49194, Sept. 22, 1993; 
60 FR 44640, Aug. 28, 1995; 63 FR 35829, July 1, 1998; 64 FR 67664, Dec. 
2, 1999; 67 FR 31962, May 13, 2002]



        Subpart C_Standards for Agency Recordkeeping Requirements



Sec. 1222.30  Purpose.

    (a) The clear articulation of recordkeeping requirements by Federal 
agencies is essential if agencies are to meet the requirements of 44 
U.S.C. 3101 and 3102 with respect to creating, receiving, maintaining, 
and preserving adequate and proper documentation, and with respect to 
maintaining an active, continuing program for the economical and 
efficient management of agency records.
    (b) Although many agencies regularly issue recordkeeping 
requirements for routine operations, many do not adequately specify such 
requirements for documenting policies and decisions, nor do they provide 
sufficient guidance on distinguishing between records and nonrecord 
materials, and maintaining records created or received on electronic 
mail systems.
    (c) Since agency functions, activities, and administrative practices 
vary so widely, NARA cannot issue a comprehensive list of all categories 
of documentary materials appropriate for preservation by an agency as 
evidence of its activities or because of the information they contain. 
In all cases, the agency must consider the intent or circumstances of 
creation or receipt of the materials to determine whether their 
systematic maintenance shall be required.

[55 FR 27423, July 2, 1990, as amended at 60 FR 44640, Aug. 28, 1995]



Sec. 1222.32  General requirements.

    Agencies shall identify, develop, issue, and periodically review 
their recordkeeping requirements for all agency operations and for 
records in all media, including those records created or received on 
electronic mail systems. Recordkeeping requirements shall:
    (a) Identify and prescribe specific categories of documentary 
materials to be systematically created or received and maintained by 
agency personnel in the course of their official duties;
    (b) Prescribe the use of materials and recording techniques that 
ensure the preservation of records as long as they are needed by the 
Government;
    (c) Prescribe the manner in which these materials shall be 
maintained wherever held; and
    (d) Distinguish records from nonrecord materials and, with the 
approval of the Archivist of the United States, prescribe action for the 
final disposition of agency records when

[[Page 827]]

they are no longer needed for current business.

[55 FR 27423, July 2, 1990, as amended at 60 FR 44640, Aug. 28, 1995]



Sec. 1222.34  Identifying Federal records.

    (a) General. To ensure that complete and accurate records are made 
and retained in the Federal Government, it is essential that agencies 
distinguish between records and nonrecord materials by the appropriate 
application of the definition of records (see 44 U.S.C. 3301 and 36 CFR 
1220.14) to agency documentary materials. Applying the definition of 
records to most documentary materials created or received by agencies 
presents few problems when agencies have established and periodically 
updated recordkeeping requirements covering all media and all agency 
activities at all levels and locations.
    (b) Record status. Documentary materials are records when they meet 
both of the following conditions:
    (1) They are made or received by an agency of the United States 
Government under Federal law or in connection with the transaction of 
agency business; and
    (2) They are preserved or are appropriate for preservation as 
evidence of agency organization and activities or because of the value 
of the information they contain.
    (c) Working files and similar materials. Working files, such as 
preliminary drafts and rough notes, and other similar materials shall be 
maintained for purposes of adequate and proper documentation if:
    (1) They were circulated or made available to employees, other than 
the creator, for official purposes such as approval, comment, action, 
recommendation, follow-up, or to communicate with agency staff about 
agency business; and
    (2) They contain unique information, such as substantive annotations 
or comments included therein, that adds to a proper understanding of the 
agency's formulation and execution of basic policies, decisions, 
actions, or responsibilities.
    (d) Record status of copies. The determination as to whether a 
particular document is a record does not depend upon whether it contains 
unique information. Multiple copies of the same document and documents 
containing duplicative information, including messages created or 
received on electronic mail systems, may each have record status 
depending on how they are used to transact agency business. See 
paragraph (f)(2) of this section concerning the nonrecord status of 
extra copies.
    (e) Electronic mail messages. Messages created or received on 
electronic mail systems may meet the definition of record in 44 U.S.C. 
3301.
    (f) Nonrecord materials. Nonrecord materials are Government-owned 
documentary materials that do not meet the conditions of record status 
(see Sec. 1222.34(b)) or that are specifically excluded from status as 
records by statute (see 44 U.S.C. 3301):
    (1) Library and museum material (but only if such material is made 
or acquired and preserved solely for reference or exhibition purposes);
    (2) Extra copies of documents (but only if the sole reason such 
copies are preserved is for convenience of reference); and
    (3) Stocks of publications and of processed documents. (Each agency 
shall create and maintain serial or record sets of its publications and 
processed documents, as evidence of agency activities and for the 
information they contain, including annual reports, brochures, 
pamphlets, books, handbooks, posters and maps.)
    (g) Agency responsibilities. Agencies shall take appropriate action 
to ensure that all staff are capable of identifying Federal records. For 
electronic mail systems, agencies shall ensure that all staff are 
informed of the potential record status of messages, transmittal and 
receipt data, directories, and distribution lists.

[55 FR 27423, July 2, 1990, as amended at 60 FR 44640, Aug. 28, 1995]



Sec. 1222.36  Identifying personal papers.

    (a) Personal papers are documentary materials, or any reasonably 
segregable portion thereof, of a private or nonpublic character that do 
not relate to, or have an effect upon, the conduct of agency business. 
Personal papers are excluded from the definition of Federal

[[Page 828]]

records and are not owned by the Government. Examples of personal papers 
include:
    (1) Materials accumulated by an official before joining Government 
service that are not used subsequently in the transaction of Government 
business;
    (2) Materials relating solely to an individual's private affairs, 
such as outside business pursuits, professional affiliations, or private 
political associations that do not relate to agency business; and
    (3) Diaries, journals, personal correspondence, or other personal 
notes that are not prepared or used for, or circulated or communicated 
in the course of, transacting Government business.
    (b) Personal papers shall be clearly designated as such and shall at 
all times be maintained separately from the office's records.
    (c) If information about private matters and agency business appears 
in the same document, the document shall be copied at the time of 
receipt, with the personal information deleted, and treated as a Federal 
record.
    (d) Materials labeled ``personal,'' ``confidential,'' or 
``private,'' or similarly designated, and used in the transaction of 
public business, are Federal records subject to the provisions of 
pertinent laws and regulations. The use of a label such as ``personal'' 
is not sufficient to determine the status of documentary materials in a 
Federal office.

[55 FR 27423, July 2, 1990; 55 FR 28136, July 9, 1990; 55 FR 31982, Aug. 
6, 1990]



Sec. 1222.38  Categories of documentary materials to be covered by 

recordkeeping requirements.

    Agency recordkeeping requirements shall prescribe the creation and 
maintenance of records of the transaction of agency business that are 
sufficient to:
    (a) Document the persons, places, things, or matters dealt with by 
the agency.
    (b) Facilitate action by agency officials and their successors in 
office.
    (c) Make possible a proper scrutiny by the Congress or other duly 
authorized agencies of the Government.
    (d) Protect the financial, legal, and other rights of the Government 
and of persons directly affected by the Government's actions.
    (e) Document the formulation and execution of basic policies and 
decisions and the taking of necessary actions, including all significant 
decisions and commitments reached orally (person to person, by 
telecommunications, or in conference).
    (f) Document important board, committee, or staff meetings.



Sec. 1222.40  Removal of records.

    Agencies shall develop procedures to ensure that departing officials 
do not remove Federal records from agency custody.



Sec. 1222.42  Removal of nonrecord materials.

    (a) Nonrecord materials, including extra copies of agency records 
kept only for convenience of reference, may be removed from Government 
agencies only with the approval of the head of the agency or the 
individual authorized to act for the agency on matters pertaining to 
agency records.
    (b) Agencies shall ensure that when nonrecord material containing 
classified information is removed from the executive branch, it is 
protected under conditions equivalent to those required of executive 
branch agencies. The originating agency or its successor in function 
retains control over access to such classified information, even after 
it is properly removed from the agency.
    (c) Agencies shall ensure the appropriate protection of nonrecord 
material containing information which is restricted from release under 
the Privacy Act or other statutes, when such restricted nonrecord 
material is removed from Government agencies.

[56 FR 26336, June 7, 1991]



Sec. 1222.44  Directives documenting agency programs, policies, and 

procedures.

    Agency recordkeeping requirements shall prescribe that the programs, 
policies, and procedures of the agency shall be adequately documented in 
appropriate directives. A record copy of each

[[Page 829]]

such directive (including those superseded) shall be maintained by the 
appropriate agency directives management officer(s) as part of the 
official files.



Sec. 1222.46  Recordkeeping requirements of other agencies.

    When statutes, regulations, directives or authoritative issuances of 
other agencies prescribe an agency's recordkeeping requirements, the 
agency so affected shall include these in appropriate directives or 
other authoritative issuances prescribing its organization, functions, 
or activities.



Sec. 1222.48  Data created or received and maintained for the Government by 

contractors.

    (a) Contractors performing Congressionally-mandated program 
functions are likely to create or receive data necessary to provide 
adequate and proper documentation of these programs and to manage them 
effectively. Agencies shall specify the delivery of the Government of 
all data needed for the adequate and proper documentation of contractor-
operated programs in accordance with requirements of the Federal 
Acquisition Regulation (FAR) and, where applicable, the Defense Federal 
Acquisition Regulation Supplement (DFARS).
    (b) When contracts involve the creation of data for the Government's 
use, in addition to specifying a final product, agency officials may 
need to specify the delivery of background data that may have reuse 
value to the Government. Before specifying the background data that 
contractors must deliver to the agency, program and contracting 
officials shall consult with agency records and information managers and 
historians and, when appropriate, with other Government agencies to 
ensure that all agency and Government needs are met, especially when the 
data deliverables support a new agency mission or a new Government 
program.
    (c) Deferred ordering and delivery-of-data clauses and rights-in-
data clauses shall be included in contracts whenever necessary to ensure 
adequate and proper documentation or because the data have reuse value 
to the Government.
    (d) When data deliverables include electronic records, the agency 
shall require the contractor to deliver sufficient technical 
documentation to permit the agency or other Government agencies to use 
the data.
    (e) All data created for Government use and delivered to, or falling 
under the legal control of, the Government are Federal records and shall 
be managed in accordance with records management legislation as codified 
at 44 U.S.C. chapters 21, 29, 31, and 33, the Freedom of Information Act 
(5 U.S.C. 552), and the Privacy Act (5 U.S.C. 552a), and shall be 
scheduled for disposition in accordance with 36 CFR part 1228.



Sec. 1222.50  Records maintenance and storage.

    (a) Agencies shall prescribe an appropriate records maintenance 
program so that complete records are filed or otherwise identified and 
preserved, records can be found when needed, the identification and 
retention of permanent records are facilitated, and permanent and 
temporary records are physically segregated or, for electronic records, 
segregable.
    (b) Each Federal agency, in providing for effective controls over 
the maintenance of records, shall:
    (1) Establish and implement standards and procedures for 
classifying, indexing, and filing records as set forth in GSA and NARA 
handbooks;
    (2) Formally specify official file locations for records in all 
media and prohibit the maintenance of records at unauthorized locations;
    (3) Formally specify which officials are responsible for maintenance 
and disposition of electronic records and which computer systems are 
used for recordkeeping;
    (4) Standardize reference service procedures to facilitate the 
finding, charging out, and refiling of paper, audiovisual, and 
cartographic and architectural records, and to ensure that reference to 
electronic records minimizes the risk of unauthorized additions, 
deletions, or alterations;
    (5) Make available to all agency employees published standards, 
guides, and instructions designed for easy reference and revision;

[[Page 830]]

    (6) Review its records maintenance program periodically to determine 
its adequacy; audit a representative sample of its paper, audiovisual, 
electronic, cartographic, and architectural files for duplication, 
misclassification, or misfiles;
    (7) Maintain microform, audiovisual, and electronic records in 
accordance with 36 CFR parts 1230, 1232, and 1234, respectively;
    (8) Establish and implement procedures for maintaining records and 
nonrecord materials separately; ensure that record materials generated 
electronically are clearly identified as records and protected from 
unauthorized change or deletion for the length of their scheduled 
retention period; and
    (9) Establish and implement procedures for the separate maintenance 
of any personal papers in accordance with Sec. 1222.36.
    (c) Agencies must ensure that:
    (1) Records in their legal custody sent for off-site storage are 
maintained in facilities that meet the standards specified in 36 CFR 
part 1228, subpart K;
    (2) The information requirements specified at 36 CFR 1228.154 are 
met; and
    (3) They remove their records from any records storage facility that 
does not correct nonconformances with the standards specified in 36 CFR 
part 1228, subpart K. (A facility is compliant if it does not have to 
meet the standard until a specific date in the future or compliance has 
been waived by NARA in accordance with 36 CFR 1228.238.) Agencies must 
initiate removal of the records from such a center within 6 months of 
initial discovery of the deficiencies by NARA or the agency and to 
complete removal of the records within 18 months after initial discovery 
of the deficiencies.

[55 FR 27423, July 2, 1990, as amended at 60 FR 44640, Aug. 28, 1995; 64 
FR 67664, Dec. 2, 1999]



PART 1228_DISPOSITION OF FEDERAL RECORDS--Table of Contents




Sec.
1228.1 Scope of part.

                 Subpart A_Records Disposition Programs

1228.10 Authority.
1228.12 Basic elements of disposition programs.

                      Subpart B_Scheduling Records

1228.20 Authorities.
1228.22 Developing records schedules.
1228.24 Formulation of agency records schedules.
1228.26 Request for records disposition authority.
1228.28 Scheduling pemanent records.
1228.30 Scheduling temporary records.
1228.31 Applying previously approved schedules to electronic records.
1228.32 Request to change disposition authority.

                   Subpart C_General Records Schedules

1228.40 Authority.
1228.42 Applicability.
1228.44 Current schedules.
1228.46 Availability.

                    Subpart D_Implementing Schedules

1228.50 Application of schedules.
1228.52 Withdrawal of disposal authority.
1228.54 Temporary extension of retention periods.
1228.56 Transfer of permanent records.
1228.58 Destruction of temporary records.
1228.60 Donation of temporary records.

           Subpart E_Loan of Permanent and Unscheduled Records

1228.70 Authority.
1228.72 Approval.
1228.74 Agency action.
1228.76 NARA action on request.
1228.78 Retrieval of records.

          Subpart F_Emergency Authorization To Destroy Records

1228.90 General provisions.
1228.92 Menaces to human life or health or to property.
1228.94 State of war or threatened war.

Subpart G_Damage to, Alienation, and Unauthorized Destruction of Records

1228.100 Responsibilities.
1228.102 Criminal penalties.
1228.104 Reporting.
1228.106 Exclusions.

 Subpart H_Transfer of Records From the Custody of One Executive Agency 
                               to Another

1228.120 Authority.

[[Page 831]]

1228.122 Approval.
1228.124 Agency request.
1228.126 Agency concurrences.
1228.128 Records of terminated agencies.
1228.130 Equipment.
1228.132 Costs of transfers.
1228.134 Restrictions on use of records.
1228.136 Exceptions.

       Subpart I_Transfer of Records to Records Storage Facilities

1228.150 Where can a Federal agency transfer records for storage?
1228.152 Under what conditions may Federal records be stored in records 
          storage facilities?
1228.154 What requirements must an agency meet when it transfers records 
          to a records storage facility?
1228.156 What procedures must an agency follow to transfer records to an 
          agency records center or commercial records storage facility?

 Subpart J_Transfer, Use, and Disposition of Records in a NARA Records 
                                 Center

1228.160 How does an agency transfer records to a NARA records center?
1228.162 How does an agency transfer vital records to a NARA records 
          center?
1228.164 What records must be transferred to the National Personnel 
          Records Center (NPRC)?
1228.166 How does an agency transfer records to the National Personnel 
          Records Center (NPRC)?
1228.168 How can records be used in NARA records centers?
1228.170 How are disposal clearances managed for records in NARA records 
          centers?

       Subpart K_Facility Standards for Records Storage Facilities

                                 General

1228.220 What authority applies to this subpart?
1228.222 What does this subpart cover?
1228.224 Publications incorporated by reference.
1228.226 Definitions.

                           Facility Standards

1228.228 What are the facility requirements for all records storage 
          facilities?
1228.230 What are the fire safety requirements that apply to records 
          storage facilities?
1228.232 What are the requirements for environmental controls for 
          records storage facilities?

           Handling Deviations From NARA's Facility Standards

1228.234 What rules apply if there is a conflict between NARA standards 
          and other regulatory standards that a facility must follow?
1228.236 How does an agency request a waiver from a requirement in this 
          subpart?
1228.238 How does NARA process a waiver request?

              Facility Approval and Inspection Requirements

1228.240 How does an agency request authority to establish or relocate 
          records storage facilities?
1228.242 What does an agency have to do to certify a fire-safety 
          detection and suppression system?
1228.244 When may NARA conduct an inspection of a records storage 
          facility?

  Subpart L_Transfer of Records to the National Archives of the United 
                                 States

1228.260 Authority.
1228.262 Types of records to be transferred.
1228.264 Certification for retention of records in agency custody.
1228.266 Audiovisual records.
1228.268 Cartographic and architectural records.
1228.270 Electronic records.
1228.272 Transfer of records to the National Archives of the United 
          States.
1228.274 Restrictions on transferred records.
1228.276 Records subject to the Privacy Act of 1974.
1228.278 Release of equipment.
1228.280 Use of records transferred to the National Archives.
1228.282 Disposal clearances.

Appendix A to Part 1228--Minimum Security Standards for Level III 
          Federal Facilities
Appendix B to Part 1228--Alternative Certified Fire-safety Detection and 
          Suppression Systems(s)

    Authority: 44 U.S.C. chs. 21, 29, and 33.

    Source: 45 FR 5705, Jan. 24, 1980, unless otherwise noted. 
Redesignated at 50 FR 15723, Apr. 19, 1985.



Sec. 1228.1  Scope of part.

    This part sets policies and establishes standards, procedures, and 
techniques for the disposition of all Federal records in accordance with 
44 U.S.C. chapters 21, 29, 31, and 33. The disposition of documentary 
materials created

[[Page 832]]

or acquired by a Federal agency, regardless of physical form or 
characteristics, is controlled by this part if any of the following 
conditions are met:
    (a) The materials are created or received in the course of business 
and contain information related to the organization, functions, 
policies, decisions, procedures, operations, or other official 
activities of the agency. Also included is documentation of oral 
exchanges such as telephone conversations and meetings during which 
policy was discussed or formulated or other significant activities of 
the agency were planned, discussed, or transacted.
    (b) The creation, retention, or disposition of the materials is 
mandated by statute or agency or other Federal regulations, directives, 
policies, or procedures.
    (c) The materials are controlled, maintained, preserved, processed, 
filed, or otherwise handled following established agency procedures for 
records.
    (d) The material contains unique information, such as substantive 
annotations, including drafts, transmittal sheets, and final documents 
or other materials circulated or made available to employees other than 
the creator for official purposes, such as approval, comment, action, 
recommendation, follow-up, or to keep agency staff informed regarding 
agency business.
    (e) The material was created or received on an electronic mail 
system and it meets the definition of record. For specific instructions 
on the disposition of records created or received on electronic mail 
systems, see 36 CFR 1234.32.

[55 FR 27428, July 2, 1990, as amended at 60 FR 44640, Aug. 28, 1995]



                 Subpart A_Records Disposition Programs



Sec. 1228.10  Authority.

    The head of each agency (in accordance with 44 U.S.C. 2904, 3102, 
and 3301) is required to establish and maintain a records disposition 
program to ensure efficient, prompt, and orderly reduction in the 
quantity of records and to provide for the proper maintenance of records 
designated as permanent by NARA.

[55 FR 27428, July 2, 1990]



Sec. 1228.12  Basic elements of disposition programs.

    The primary steps in managing a records disposition program are 
given below. Details of each element are contained in the NARA records 
management handbook, Disposition of Federal Records ( http://
www.archives.gov/records--management/publications/disposition--of--
federal--records/index.html).
    (a) Issue a program directive assigning authorities and 
responsibilities for records disposition activities in the agency and 
keep that directive up to date.
    (b) Develop, implement, and maintain an accurate, current, and 
comprehensive records schedule.
    (c) Train all agency personnel taking part in the agency's records 
disposition activities.
    (d) Publicize the program to make all agency employees aware of 
their records disposition responsibilities.
    (e) Evaluate the results of the program to ensure adequacy, 
effectiveness, and efficiency.

[55 FR 27428, July 2, 1990, as amended at 66 FR 27027, May 16, 2001; 67 
FR 43253, June 27, 2002]



                      Subpart B_Scheduling Records

    Source: 55 FR 27429, July 2, 1990, unless otherwise noted.



Sec. 1228.20  Authorities.

    (a) The head of each agency shall direct the creation and 
preservation of records containing accurate and complete documentation 
of the organization, functions, policies, decisions, procedures, and 
essential transactions of the agency (44 U.S.C. 3101). The National 
Archives and Records Administration shall establish standards for the 
retention of those records having continuing value, and assist Federal 
agencies in applying the standards to records in their custody (44 
U.S.C. 2905).
    (b) No Federal records shall be destroyed or otherwise alienated 
from

[[Page 833]]

the Government except in accordance with procedures described in this 
part 1228 (44 U.S.C. 3314).



Sec. 1228.22  Developing records schedules.

    The primary steps in developing agency records schedules are given 
below. Details in each step are contained in the NARA records management 
handbook, Disposition of Federal Records (http://www.archives.gov/
records--management/publications/disposition--of--federal--records/
index.html). Ultimately, all records of an agency must be scheduled, but 
they need not all be scheduled at the same time. An agency may schedule 
the records of one function, program or organizational element at a 
time.
    (a) Determine the functions and activities documented by the records 
to be scheduled.
    (b) Prepare an inventory of the records including a description of 
their medium, location, volume, inclusive dates, informational content 
and use.
    (c) Evaluate the period of time the agency needs each records series 
or system by reference to its uses and value to agency operations or 
legal obligations.
    (d) Based on agency need, develop specific recommended retention and 
disposition instructions for each records series or each part of an 
automated information system, including file breaks, retention periods 
for temporary records, transfer periods for permanent records, and 
instructions for the transfer of records to an approved records storage 
facility when appropriate.
    (e) Assemble into a draft schedule the descriptions and recommended 
disposition instructions for logical blocks of records, i.e., entire 
agency, organizational component, or functional area.
    (f) Obtain approval of the records schedules from NARA (and from the 
General Accounting Office, when so required under title 8 of the GAO 
``Policy and Procedures Manual for the Guidance of Federal Agencies'').

[45 FR 5705, Jan. 24, 1980. Redesignated at 50 FR 15723, Apr. 19, 1985, 
as amended at 64 FR 67665, Dec. 2, 1999; 66 FR 27027, May 16, 2001; 67 
FR 43253, June 27, 2002]



Sec. 1228.24  Formulation of agency records schedules.

    (a) General. Agency records schedules approved by the Archivist of 
the United States specify the disposition for agency records. Records of 
continuing (permanent) value will be scheduled for retention and 
immediate or eventual transfer to the legal custody of NARA. All other 
records will be scheduled for destruction or donation after a specific 
period of time based on administrative, fiscal, and legal values.
    (b) Characteristics of schedules. Though records disposition 
authority may be requested from NARA on a program-by-program, function-
by-function, or office-by-office basis, all agency records must be 
scheduled. Schedules must follow the guidelines provided below:
    (1) Schedules shall identify and describe clearly each series or 
system and shall contain disposition instructions that can be readily 
applied. (Additional information is required for permanent records as 
specified in Sec. 1228.28(b).) Schedules must be prepared so that each 
office will have standing instructions detailing the disposal, transfer, 
or retention of records.
    (2) SF 115s shall include only new records not covered by the 
General Records Schedules (GRS) (see subpart C), deviations from the GRS 
(see Sec. 1228.42), or previously scheduled records requiring changes 
in retention periods or substantive changes in description.
    (3) Records schedules submitted to NARA for approval on or after 
December 17, 2007, are media neutral, i.e., the disposition instructions 
apply to the described records in all media, unless the schedule 
identifies a specific medium for a specific series.
    (4) All schedules shall take into account the physical organization 
of records or the filing system so that disposal or transfer can be 
handled in blocks.
    (5) The disposition of nonrecord materials is controlled by 
instructions in the agency's printed or published records disposition 
manual. These instructions do not require NARA approval. Such items 
shall not be included on SF 115s. Non-record materials, such as extra 
copies of documents

[[Page 834]]

preserved solely for reference, and stocks of processed documents, and 
personal materials shall be maintained separately from official agency 
files to aid in records disposition.
    (c) Provisions of schedules. Records schedules shall provide for:
    (1) The destruction of records that have served their statutory, 
fiscal, or administrative uses and no longer have sufficient value to 
justify further retention. Procedures for obtaining disposal 
authorizations are prescribed in Sec. 1228.30;
    (2) The removal to a records storage facility of records not 
eligible for immediate destruction or other disposition but which are no 
longer needed in office space. These records are maintained by the 
records storage facility until they are eligible for final disposition 
action;
    (3) The retention of the minimum volume of current records in office 
space consistent with effective and efficient operations; and
    (4) The identification of records of permanent value in accordance 
with Sec. 1228.28, and the establishment of cutoff periods and dates 
when such records will be transferred to the legal custody of NARA.

[45 FR 5705, Jan. 24, 1980. Redesignated at 50 FR 15723, Apr. 19, 1985, 
as amended at 64 FR 67665, Dec. 2, 1999; 72 FR 64155, Nov. 15, 2007; 73 
FR 57246, Oct. 2, 2008]



Sec. 1228.26  Request for records disposition authority.

    (a) Submission. Requests for records disposition authority shall be 
initiated by Federal agencies by submitting Standard Form 115, Request 
for Records Disposition Authority, to NARA (NWML). An SF 115 is used for 
requesting authority to schedule (or establish the disposition for) 
permanent and temporary records, either on a recurring or one-time 
basis.
    (1) New Federal agencies shall apply General Records Schedules to 
eligible records and shall submit to NARA SF 115s covering all remaining 
records within 2 years of their establishment.
    (2) Agencies shall submit to NARA schedules for the records of new 
programs and of programs that are reorganized or otherwise changed in a 
way that results in the creation of new or different records within 1 
year of the implementation of the change.
    (b) Certification. The signature of the authorized agency 
representative on the SF 115 shall constitute certification that the 
records recommended for disposal do not or will not have sufficient 
administrative, legal, or fiscal value to the agency to warrant 
retention beyond the expiration of the specified period and that records 
described as having permanent value will be transferred to the National 
Archives upon expiration of the stated period.
    (c) Disapproval of requests for disposition authority. Requests for 
records disposition authority may be returned to the agency if the SF 
115 is improperly prepared. The agency shall make the necessary 
corrections and resubmit the form to NARA (NWML). NARA may disapprove 
the disposition request for an item if, after appraisal of the records, 
NARA determines that the proposed disposition is not consistent with the 
value of the records. In such cases, NARA will notify the agency in 
writing.

[55 FR 27429, July 2, 1990; 55 FR 28136, July 9, 1990, as amended at 63 
FR 35829, July 1, 1998]



Sec. 1228.28  Scheduling permanent records.

    (a) Initiation. Federal agencies propose permanent retention of 
records in accordance with guidelines contained in the NARA records 
management handbook, Disposition of Federal Records (http://
www.nara.gov/records/pubs/).
    (b) Requirements. Each item proposed for permanent retention on an 
SF 115 shall include the following:
    (1) Records series title used by agency personnel to identify the 
records;
    (2) Complete description of the records including physical type and 
information contents;
    (3) Inclusive dates;
    (4) An arrangement statement;
    (5) Statement of restrictions on access which NARA should impose in 
conformity with the Freedom of Information Act if the records are 
proposed for immediate transfer;
    (6) An estimate of the volume of records accumulated annually if the 
records are current and continuing;
    (7) The total volume to date; and

[[Page 835]]

    (8) Disposition instructions, developed using the following 
guidelines:
    (i) If the records series or system is current and continuing, the 
SF 115 will include a disposition instruction specifying the period of 
time after which the records will be transferred to the National 
Archives, normally within 30 years for paper records, 5-10 years for 
audiovisual or microform records, and as soon as the records become 
inactive or the agency cannot meet the maintenance requirements found in 
Sec. 1228.270 of this part for electronic records.
    (ii) If the records series or system is nonrecurring, i.e., no 
additional records will be created or acquired, the agency may propose 
either immediate or future transfer to the National Archives.
    (c) Determination. NARA will determine whether or not records are of 
permanent value and when the transfer of the permanent records will take 
place.
    (1) If NARA determines that records are not permanent, it will 
notify the agency and negotiate an appropriate disposition. The 
disposition instruction on the SF 115 will be modified prior to NARA 
approval.
    (2) If NARA determines that records are permanent, but that the 
transfer instructions are not appropriate, it will negotiate appropriate 
transfer terms with the agency. The disposition instruction on the SF 
115 will be modified prior to NARA approval.

[55 FR 27429, July 2, 1990; 55 FR 31982, Aug. 6, 1990, as amended at 66 
FR 27027, May 16, 2001]



Sec. 1228.30  Scheduling temporary records.

    (a) Initiation. Federal agencies request authority to dispose of 
records, either immediately or on a recurring basis. Requests for 
immediate disposal are limited to records already in existence which no 
longer accumulate. For recurring records, approved schedules provide 
continuing authority to destroy the records. The retention periods 
approved by NARA are mandatory, and the agency shall dispose of the 
records after expiration of the retention period, except as provided in 
Sec. 1228.54.
    (b) Requirements. Each item on an SF 115 proposed for eventual 
destruction shall include the following:
    (1) Records series title used by agency personnel to identify the 
records;
    (2) Description of the records including physical type and 
informational content;
    (3) If the records are contained in a Privacy Act system of records, 
a citation to the agency's alpha-numeric or numeric code designation for 
the system of records. If the system of records was added or deleted 
since the publication of the current Office of the Federal Register 
compilation of Privacy Act Issuances, the agency shall also cite the 
date and page of the Federal Register on which the new system notice 
appears or the deleted system is announced.
    (4) Disposition instructions, developed using the following 
guidelines:
    (i) If the records series or system is current and continuing, the 
SF 115 will include a disposition instruction specifying the period of 
time after which the records will be destroyed.
    (ii) If the records series or system is nonrecurring, i.e., no 
additional records will be created or acquired, the agency may propose 
either immediate destruction or destruction on a future date.
    (c) Determination. NARA may determine that records proposed as 
temporary merit permanent retention and transfer to the National 
Archives. In such cases, NARA arranges with the agency to change the 
disposition instruction prior to approval of the SF 115.
    (d) General Accounting Office concurrence. Each Federal agency shall 
obtain the approval of the Comptroller General for the disposal of 
program records less than 3 years old and for certain classes of records 
relating to claims and demands by or against the Government, and to 
accounts in which the Government is concerned in accordance with the GAO 
``Policy and Procedures Manual for Guidance of Federal Agencies,'' title 
8--Records Management (44 U.S.C. 3309). This approval must be obtained 
before the approval of the disposal request by NARA, but the request may 
be submitted concurrently to GAO and NARA.
    (e) Withdrawn items. Agencies may request that items listed on the 
SF 115 be withdrawn in order to aid in NARA's

[[Page 836]]

processing (appraisal) of the remaining items on the schedule.
    (1) If, during the course of the appraisal process, NARA determines 
that records described by an item(s) on the proposed schedule do not 
exist or are not arranged as stated on the SF 115, NARA may request the 
agency to withdraw the item(s) from consideration, if the agency is 
unable to offer sufficient clarification.
    (2) If NARA and the agency cannot agree on the retention period for 
an item(s), the items(s) may be withdrawn. In these cases, the agency 
will submit an SF 115 with a revised proposal for disposition within 6 
months of the date of the approval of the original SF 115.

[55 FR 27429, July 2, 1990, as amended at 57 FR 22432, May 28, 1992]



Sec. 1228.31  Applying previously approved schedules to electronic records.

    (a) When must an agency submit a new schedule for electronic 
versions of previously scheduled hard copy records? Agencies must submit 
a new schedule to NARA for electronic versions of previously scheduled 
records if:
    (1) The content and function of the records have changed 
significantly (e.g., the electronic records contain information that is 
substantially different from the information included in the hard copy 
series or are used for different purposes).
    (2) The previously approved schedule explicitly excludes electronic 
records.
    (3) The electronic records consist of program records maintained on 
an agency web site.
    (4) The electronic records consist of program records maintained in 
a format other than scanned image AND the previously approved schedule 
is not media neutral.
    (b) When can an agency apply a previously approved schedule to 
electronic versions of the records? If the conditions specified in 
paragraph (a) of this section do not apply, the conditions in paragraph 
(b) apply:
    (1) Permanent records. (i) The agency may apply a previously 
approved schedule for hard copy records to electronic versions of the 
permanent records when the electronic records system replaces a single 
series of hard copy permanent records or the electronic records consist 
of information drawn from multiple previously scheduled permanent 
series. Agencies must notify NARA (NWM) in writing of records that have 
been previously scheduled as permanent in hard copy form, including 
special media records as described in 36 CFR 1228.266 and 36 CFR 
1228.268. The notification must be submitted within 90 days of when the 
electronic recordkeeping system becomes operational and must contain 
the:
    (A) Name of agency;
    (B) Name of the electronic system;
    (C) Organizational unit(s) or agency program which records support;
    (D) Current disposition authority reference; and
    (E) Format of the records (e.g., database, scanned images, digital 
photographs, etc.).
    (ii) If the electronic records include information drawn from both 
temporary and permanent hard copy series, an agency either may apply a 
previously approved permanent disposition authority, after submitting 
the notification required by paragraph (b)(1)(i) or may submit a new 
schedule if the agency believes the electronic records do not warrant 
permanent retention.
    (2) Temporary still pictures, sound recordings, motion picture film, 
and video recordings. The agency must apply the previously approved 
schedule to digital versions. If changes in the approved schedule are 
required, follow Sec. 1228.32.
    (3) Scanned images of temporary records, including temporary program 
records. The agency must apply the previously approved schedule. If 
changes in the approved schedule are required, follow Sec. 1228.32.
    (4) Other temporary records maintained in an electronic format other 
than scanned images. (i) For temporary records that are covered by an 
item in a General Records Schedule or an agency-specific schedule that 
pertains to administrative/housekeeping activities, apply the previously 
approved

[[Page 837]]

schedule. If the electronic records consist of information drawn from 
multiple hard copy series, apply the previously approved schedule item 
with the longest retention period.
    (ii) For temporary program records covered by a NARA-approved media 
neutral schedule item (i.e., the item appears on a schedule approved 
before December 17, 2007 that is explicitly stated to be media neutral, 
or it appears on any schedule approved on or after December 17, 2007 
that is not explicitly limited to a specific recordkeeping medium), 
apply the previously approved schedule.

[72 FR 64155, Nov. 15, 2007]



Sec. 1228.32  Request to change disposition authority.

    (a) Agencies desiring to change the approved retention period of a 
series or system of records shall submit an SF 115. Disposition 
authorities contained in an approved SF 115 are automatically superseded 
by approval of a later SF 115 applicable to the same records unless the 
later SF 115 specified an effective date. Agencies submitting revised 
schedules shall indicate on the SF 115 the relevant schedule and item 
numbers to be superseded, the citation to the current printed records 
disposition schedule, if any, and/or the General Records Schedules and 
item numbers that cover the records.
    (b) Agencies proposing to change the retention period of a series or 
system of records shall submit with the SF 115 an explanation and 
justification for the change. The need to retain records longer than the 
retention period specified in the disposition instructions on an 
approved SF 115 for purposes of audit, court order, investigation, 
litigation, study, or any other administrative purpose that justifies 
the temporary extension of the retention period shall be governed by the 
procedures set forth in Sec. 1228.54. Agencies shall not submit an SF 
115 to change the retention period in such cases.
    (c) Agencies must secure NARA approval before changing the provision 
in a disposition instruction that specifies the period of time that 
permanent records will remain in agency legal custody prior to transfer 
to the National Archives of the United States.

[61 FR 19554, May 2, 1996; 61 FR 24702, May 16, 1996, as amended at 64 
FR 67665, Dec. 2, 1999]



                   Subpart C_General Records Schedules

    Source: 55 FR 27430, July 2, 1990, unless otherwise noted.



Sec. 1228.40  Authority.

    The Archivist of the United States issues schedules authorizing 
disposal, after specified periods of time, of temporary records common 
to several or all agencies of the U.S. Government. General Records 
Schedules authorize the destruction of records after the stated 
retention period expires. Application of the disposition instructions in 
these schedules is mandatory (44 U.S.C. 3303a), provided an agency has 
not already received disposition authority from NARA.

[67 FR 31962, May 13, 2002]



Sec. 1228.42  Applicability.

    (a) Agencies must apply GRS authorizations except as provided in 
paragraphs (b) or (c) of this section. Agencies must not include on SFs 
115 records covered by the GRS unless a different retention period is 
requested, as specified in paragraph (c) of this section.
    (b) Agencies may apply either the disposition instructions in a new 
or revised GRS or the disposition instructions previously approved by 
NARA in an agency schedule for the same series or system of records, 
unless NARA indicates that the new GRS disposition instruction must be 
applied without exception. The authority chosen by the agency must be 
applied on an agency-wide basis. The agency must notify NARA within 90 
days of the date of the GRS change if it intends to continue using the 
agency schedule.
    (c) Except as provided in paragraph (b) of this section, agencies 
that wish a different retention period must request an exception to the 
GRS by submitting an SF 115 in accordance with Sec. 1228.30 accompanied 
by a written justification for the different retention period.

[[Page 838]]

    (d) Provisions of the General Records Schedules may be applied to 
records in the custody of the National Archives at NARA's discretion 
subject to the provisions of Sec. 1228.282.

[55 FR 27430, July 2, 1990, as amended at 67 FR 31962, May 13, 2002; 67 
FR 47701, July 22, 2002]



Sec. 1228.44  Current schedules.

    The following General Records Schedules governing the disposition of 
records common to several or all agencies were developed by the National 
Archives and Records Administration after consultation with other 
appropriate agencies. They have been approved by the Archivist of the 
United States.

              Schedule Number and Type of Records Governed

    1. Civilian Personnel Records.
    2. Payrolling and Pay Administration Records.
    3. Procurement, Supply and Grant Records.
    4. Property Disposal Records.
    5. Budget Preparation, Presentation, and Apportionment Records.
    6. Accountable Officers' Accounts Records.
    7. Expenditure Accounting Records.
    8. Stores, Plant, and Cost Accounting Records.
    9. Travel and Transportation Records.
    10. Motor Vehicle Maintenance and Operation Records.
    11. Space and Maintenance Records.
    12. Communications Records.
    13. Printing, Binding, Duplication, and Distribution Records.
    14. Information Services Records.
    15. Housing Records.
    16. Administrative Management Records.
    17. Cartographic, Aerial Photographic, Architectural, and 
Engineering Records.
    18. Security and Protective Services Records.
    19. RESERVED.
    20. Electronic Records.
    21. Audiovisual Records.
    22. Inspector General Records (WITHDRAWN).
    23. Records Common to Most Offices Within Agencies.

[55 FR 27430, July 2, 1990, as amended at 66 FR 27027, May 16, 2001]



Sec. 1228.46  Availability.

    The GRS and instructions for their use are available from NARA 
(NWM). The Archivist of the United States distributes new schedules and 
schedule revisions under sequentially numbered GRS transmittals.

[55 FR 27430, July 2, 1990, as amended at 63 FR 35829, July 1, 1998]



                    Subpart D_Implementing Schedules

    Source: 55 FR 27431, July 2, 1990, unless otherwise noted.



Sec. 1228.50  Application of schedules.

    The application of approved schedules is mandatory (44 U.S.C. 
3303a). The Archivist of the United States will determine whether or not 
records may be destroyed or transferred to the National Archives. If the 
Archivist approves the request for disposition authority, NARA will 
notify the agency by returning one copy of the completed SF 115. This 
shall constitute mandatory authority for the final disposition of the 
records (for withdrawal of disposal authority or the extension of 
retention periods, see Sec. Sec. 1228.52 and 1228.54). The authorized 
destruction shall be accomplished as prescribed in Sec. 1228.58. The 
head of each Federal agency shall direct the application of records 
schedules to ensure the agency maintains recorded information necessary 
to conduct Government business, avoid waste, and preserve permanent 
records for transfer to the National Archives. The agency head shall 
take the following steps to ensure proper dissemination and application 
of approved schedules:
    (a) Issue an agency directive incorporating the disposition 
authorities approved by NARA, i.e., SF 115s (except for one-time 
authorities covering nonrecurring records) and the General Records 
Schedules. Also include nonrecord materials with disposition 
instructions developed by the agency. Once all records and nonrecord 
materials are included, this document is the agency's comprehensive 
schedule. Agencies may also issue other directives containing 
instructions relating to agency records disposition procedures.
    (1) Published schedules contain disposition authorities granted by 
NARA for records that the agency continues

[[Page 839]]

to create. They include general instructions for transfer of records to 
a records storage facility, transfer of records to the National Archives 
of the United States, and other retention and disposition procedures. 
They do not include nonrecurring records for which NARA has granted 
authority for immediate disposal or transfer to the National Archives of 
the United States.
    (2) Comprehensive schedules are formally published manuals or 
directives that provide for the disposition of all recurring records and 
nonrecord materials created by an agency. These schedules must cite the 
GRS or SF 115 and item numbers that provide the legal disposition 
authority for items covering record material.
    (3) Prior to issuance, agencies may consult with NARA concerning 
directives or other issuances containing approved schedules, 
instructions for use of NARA records centers, transfer of records to the 
National Archives of the United States, or other matters covered by NARA 
procedures or regulations.
    (4) Agencies must submit to the National Archives and Records 
Administration (NWML) copies of published records schedules and all 
directives and other issuances relating to records disposition, within 
30 days of implementation or internal dissemination, as specified below. 
If an agency both prints copies for distribution and posts an electronic 
copy, it should follow the instructions in paragraph (a)(4)(ii) of this 
section.
    (i) Agencies that print these materials for internal distribution 
must forward to NARA (NWML), 8601 Adelphi Rd., College Park, MD 20740-
6001, three copies of each final directive or other issuance relating to 
records disposition and 20 copies of all published records schedules 
(printed agency manuals) and changes to all manuals as they are issued.
    (ii) Agencies that make these materials available via the Internet 
or internally on an Intranet web site or by other electronic means must 
submit one printed or electronic copy, in a format specified by NARA, to 
NARA (NWML) when the directive or manual is posted or distributed. 
Electronic mail messages transmitting copies of agency schedules as 
electronic attachments may be sent to [email protected]. These 
submissions must specify the name, title, agency, address, and telephone 
number of the submitter. If the records schedule is posted on a publicly 
available web site, the agency must also provide the Internet address 
(URL).
    (b) Establish internal training programs to acquaint appropriate 
personnel with the requirements and procedures of the records 
disposition program.
    (c) Apply the approved records disposition schedules to the agency's 
records.
    (1) Records described by items marked ``disposition not approved'' 
or ``withdrawn'' may not be destroyed until a specific disposition has 
been approved by NARA.
    (2) Disposition authorities for items on approved SF 115s that 
specify an organizational component of the department or independent 
agency as the creator or custodian of the records may be applied to the 
same records after internal reorganization, but only if the nature, 
content, and functional importance of the records remain the same. 
Authority approved for items described in a functional format may be 
applied to any organizational component within the department or 
independent agency that is responsible for the relevant function.
    (3) Disposition authorities approved for one department or 
independent agency may not be applied by another. Departments or 
agencies that acquire records from another department or agency, and/or 
continue creating the same series of records previously created by 
another department or agency through interagency reorganization must 
submit an SF 115 to NARA for disposition authorization for the records 
within one year of the reorganization.
    (4) Unless otherwise specified, disposition authorities apply 
retroactively to all existing records as described in the schedule, 
including records acquired by transfer of function within or between 
agencies, as long as the nature, content, and functional importance of 
the records series is unchanged.

[[Page 840]]

    (d) Review approved schedules, and, if necessary, update them 
annually. Additions and changes to the GRS shall be incorporated or 
otherwise disseminated within 6 months of issuance from NARA.

[55 FR 27431, July 2, 1990, as amended at 63 FR 35829, July 1, 1998; 64 
FR 67665, Dec. 2, 1999; 67 FR 31963, May 13, 2002]



Sec. 1228.52  Withdrawal of disposal authority.

    In an emergency or in the interest of efficiency of Government 
operations, NARA will withdraw disposal authorizations in approved 
disposal schedules (44 U.S.C. 2909). This withdrawal may apply to 
particular items on schedules submitted by agencies or may apply to all 
existing authorizations for the disposal of a specified type of record 
obtained by any or all agencies of the Government. If the withdrawal is 
applicable to only one agency, that agency will be notified of this 
action by letter signed by the Archivist; if applicable to more than one 
agency, notification may be by NARA bulletin issued and signed by the 
Archivist.



Sec. 1228.54  Temporary extension of retention periods.

    (a) Approved agency records schedules and the General Records 
Schedules are mandatory (44 U.S.C. 3303a). Records series or systems 
eligible for destruction must not be maintained longer without the prior 
written approval of the National Archives and Records Administration 
(NWML) except when:
    (1) The agency has requested a change in the retention period for 
the records series or system in accordance with Sec. 1228.32; or
    (2) Records are needed for up to one year beyond the date they are 
eligible for disposal. When such records are in a records storage 
facility, the agency must notify the facility of the need for continued 
retention of the records.
    (b) Upon submission of adequate justification, NARA may authorize a 
Federal agency to extend the retention period of a series or system of 
records (44 U.S.C. 2909). These extensions of retention periods will be 
granted for records which are required to conduct Government operations 
because of special circumstances which alter the normal administrative, 
legal, or fiscal value of the records.
    (c) The head of a Federal agency may request approval of a temporary 
extension of a retention period by sending a letter to NARA (NWML), 8601 
Adelphi Rd., College Park, MD 20740-6001. The request shall include:
    (1) A concise description of the records series for which the 
extension is requested.
    (2) A complete citation of the specific provisions of the agency 
records schedule or the General Records Schedule currently governing 
disposition of the records;
    (3) A statement of the estimated period of time that the records 
will be required; and
    (4) A statement of the current and proposed physical location of the 
records.
    (d) Approval of a request for extension of retention periods may 
apply to records in the custody of one Federal agency or records common 
to several or all Federal agencies. If approval of a request is 
applicable to records in the custody of one agency, that agency will be 
notified by letter. If approval is applicable to records common to 
several agencies, notification may be made by NARA bulletin.
    (e) Agencies must ensure that affected records storage facilities 
are notified when NARA approves an extension of the retention period 
beyond the period authorized in the records control schedule. Agencies 
must forward to NARA (NWML) two copies of all formally issued 
instructions which extend the retention periods.
    (f) Upon expiration of an approved extension of retention period, 
NARA will notify all affected agencies to apply normal retention 
requirements.

[55 FR 27431, July 2, 1990, as amended at 61 FR 19554, May 2, 1996; 61 
FR 24702, May 16, 1996; 63 FR 35829, July 1, 1998; 64 FR 67665, Dec. 2, 
1999]



Sec. 1228.56  Transfer of permanent records.

    All records scheduled as permanent shall be transferred to the 
National Archives after the period specified on the SF 115 in accordance 
with procedures specified under subpart J.

[[Page 841]]



Sec. 1228.58  Destruction of temporary records.

    (a) Authority. Federal agencies are required to follow regulations 
issued by the Archivist of the United States governing the methods of 
destroying records (44 U.S.C. 3302). Only the methods described in this 
section shall be used.
    (b) Sale or salvage. Paper records to be disposed of normally must 
be sold as wastepaper. If the records are restricted because they are 
national security classified or exempted from disclosure by statute, 
including the Privacy Act, or regulation, the wastepaper contractor must 
be required to pulp, macerate, shred, or otherwise definitively destroy 
the information contained in the records, and their destruction must be 
witnessed either by a Federal employee or, if authorized by the agency 
that created the records, by a contractor employee. The contract for 
sale must prohibit the resale of all other paper records for use as 
records or documents. Records other than paper records (audio, visual, 
and data tapes, disks, and diskettes) may be salvaged and sold in the 
same manner and under the same conditions as paper records. All sales 
must be in accordance with the established procedures for the sale of 
surplus personal property. (See 41 CFR part 101-45, Sale, Abandonment, 
or Destruction of Personal Property.)
    (c) Destruction. If the records cannot be sold advantageously or 
otherwise salvaged, the records may be destroyed by burning, pulping, 
shredding, macerating, or other suitable means.



Sec. 1228.60  Donation of temporary records.

    (a) When the public interest will be served, a Federal agency may 
propose the transfer of records eligible for disposal to an appropriate 
person, organization, institution, corporation, or government (including 
a foreign government) that has requested them. Records will not be 
transferred without prior written approval of NARA.
    (b) The head of a Federal agency shall request the approval of such 
a transfer by sending a letter to NARA (NWML), 8601 Adelphi Rd., College 
Park, MD 20740-6001. The request shall include:
    (1) The name of the department or agency, and subdivisions thereof, 
having custody of the records;
    (2) The name and address of the proposed recipient of the records;
    (3) A list containing:
    (i) An identification by series or system of the records to be 
transferred,
    (ii) The inclusive dates of the records,
    (iii) The NARA disposition of job (SF 115) or GRS and item numbers 
that authorize disposal of the records;
    (4) A statement providing evidence:
    (i) That the proposed transfer is in the best interests of the 
Government,
    (ii) That the proposed recipient agrees not to sell the records as 
records or documents, and
    (iii) That the transfer will be made without cost to the U.S. 
Government;
    (5) A certification that:
    (i) The records contain no information the disclosure of which is 
prohibited by law or contrary to the public interest, and/or
    (ii) That records proposed for transfer to a person or commercial 
business are directly pertinent to the custody or operations of 
properties acquired from the Government, and/or
    (iii) That a foreign government desiring the records has an official 
interest in them.
    (c) NARA will consider such request and determine whether the 
donation is in the public interest. Upon approval NARA will notify the 
requesting agency in writing. If NARA determines such a proposed 
donation is contrary to the public interest, the request will be denied 
and the agency will be notified that the records must be destroyed in 
accordance with the appropriate disposal authority.

[55 FR 27431, July 2, 1990, as amended at 63 FR 35829, July 1, 1998]



           Subpart E_Loan of Permanent and Unscheduled Records

    Source: 55 FR 27433, July 2, 1990, unless otherwise noted.

[[Page 842]]



Sec. 1228.70  Authority.

    The Archivist of the United States has authority over the placement 
of permanent records (44 U.S.C. 2107 and 2904). As unscheduled records 
have not been appraised, they will be deemed permanent for the purposes 
of this section and are also covered by this authority.



Sec. 1228.72  Approval.

    No permanent or unscheduled records shall be loaned to non-Federal 
recipients without prior written approval from NARA. This authorization 
is not required for temporary loan of permanent and unscheduled records 
between Federal agencies.



Sec. 1228.74  Agency action.

    (a) An agency proposing to loan permanent or unscheduled records 
shall execute a written loan agreement with the proposed recipient. The 
agreement shall include:
    (1) The name of the department or agency and subdivisions thereof 
having custody of the records;
    (2) The name and address of the proposed recipient of the records;
    (3) A list containing:
    (i) An identification by series or system of the records to be 
loaned,
    (ii) The inclusive dates for each series,
    (iii) The volume and media of the records to be loaned, and
    (iv) The NARA disposition job (SF 115) and item numbers covering the 
records, if any;
    (4) A statement of the purpose and duration of the loan;
    (5) A statement specifying any restrictions on the use of the 
records and how these restrictions will be administered by the donee; 
and
    (6) A certification that the records will be stored according to the 
environmental specifications for archival records.
    (b) The Archivist of the United States shall be a signatory on all 
loan agreements for permanent and unscheduled records. An agreement may 
not be implemented until the Archivist has signed.
    (c) The head of the Federal agency shall request approval for the 
loan by sending a letter to NARA (NWML), 8601 Adelphi Rd., College Park, 
MD 20740-6001, transmitting the proposed loan agreement and specifying 
the name, title, and telephone number of the person NARA should contact 
about the proposed loan.

[57 FR 22432, May 28, 1992, as amended at 63 FR 35829, July 1, 1998]



Sec. 1228.76  NARA action on request.

    NARA will review the request and, if found acceptable, return the 
approved agreement to the agency. NARA will deny the request if the 
records should be transferred to the National Archives in accordance 
with subpart J of this part or if the loan would endanger the records or 
otherwise contravene the regulations in 36 CFR chapter XII, subchapter 
B. If NARA disapproves the loan, the Archivist will notify the agency in 
writing and provide instructions for the disposition of the records.

[57 FR 22432, May 28, 1992; 57 FR 24308, June 8, 1992]



Sec. 1228.78  Retrieval of records.

    An agency shall contact the recipient of the loan of permanent or 
unscheduled records 30 days prior to the expiration of the loan period 
(as stated in the loan agreement) to arrange for the return of the 
records. If the agency extends the duration of the loan, it shall notify 
NARA (NWML) in writing, specifying the reason for the extension and 
providing a new time limit for the loan.

[57 FR 22432, May 28, 1992, as amended at 63 FR 35829, July 1, 1998]



          Subpart F_Emergency Authorization To Destroy Records



Sec. 1228.90  General provisions.

    Under certain conditions, records may be destroyed without regard to 
the provisions of subpart D.

[45 FR 5705, Jan. 24, 1980. Redesignated at 50 FR 15723, Apr. 19, 1985, 
and 55 FR 27433, July 2, 1990]



Sec. 1228.92  Menaces to human life or health or to property.

    (a) Agencies may destroy records that constitute a continuing menace 
to human health or life or to property (44

[[Page 843]]

U.S.C. 3310). When such records are identified, the agency head shall 
notify NARA (NWML), specifying the nature of the records, their location 
and quantity, and the nature of the menace. If NARA concurs in the 
determination, the Archivist will direct the immediate destruction of 
the records or other appropriate means of destroying the recorded 
information. However, if the records are still or motion picture film on 
nitrocellulose base that has deteriorated to the extent described in 
paragraph (b) of this section, the head of the agency may follow the 
procedure therein provided.
    (b) Whenever any radarscope, aerial, or other still or motion 
picture film on nitrocellulose base has deteriorated to the extent that 
it is soft and sticky, is emitting a noxious order, contains gas 
bubbles, or has retrograded into acrid powder, and the head of the 
agency having custody of it shall determine that it constitutes a menace 
to human health or life or to property, then the agency shall without 
prior authorization of the Archivist:
    (1) Arrange for its destruction in a manner that will salvage its 
silver content if the silver content is of sufficient quantity and 
market value per troy ounce to warrant such salvage;
    (2) Authorize burial in approved landfills, in the event the 
quantity is not sufficiently large to justify the salvaging of its 
silver content; or
    (3) Effect other appropriate methods in the event that the methods 
provided in paragraph (b)(1) or (2) of this section are not feasible.
    (c) These films should be removed from inhabited buildings as soon 
as possible.
    (d) Within 30 days after the destruction of the film as provided in 
this section, the head of the agency who directed its destruction shall 
submit a written statement to NARA (NWML), 8601 Adelphi Rd., College 
Park, MD 20740-6001, describing the film and showing when, where, and 
how the destruction was accomplished.
    (e) This report has been cleared in accordance with GSA regulations 
in Title 41 of the CFR and assigned Interagency Report Control Number 
1095-NAR-AR.

[45 FR 5705, Jan. 24, 1980. Redesignated and amended at 50 FR 15723, 
15725, Apr. 19, 1985; 51 FR 23538, June 30, 1986. Redesignated and 
amended at 55 FR 27433, July 2, 1990; 63 FR 35829, July 1, 1998; 66 FR 
27027, May 16, 2001]



Sec. 1228.94  State of war or threatened war.

    (a) Destruction of records outside the territorial limits of the 
continental United States is authorized whenever, during a state of war 
between the United States and any other nation or when hostile action by 
a foreign power appears imminent, the head of the agency that has 
custody of the records determines that their retention would be 
prejudicial to the interest of the United States, or that they occupy 
space urgently needed for military purposes and are without sufficient 
administrative, legal, research, or other value to warrant their 
continued preservation (44 U.S.C. 3311).
    (b) Within 6 months after the destruction of any records under this 
authorization, a written statement describing the character of the 
records and showing when and where the disposal was accomplished shall 
be submitted to NARA (NWML) by the agency official who directed the 
disposal.

[55 FR 27433, July 2, 1990, as amended at 63 FR 35829, July 1, 1998]



Subpart G_Damage to, Alienation, and Unauthorized Destruction of Records



Sec. 1228.100  Responsibilities.

    (a) The Archivist of the United States and heads of Federal agencies 
are responsible for preventing the alienation or unauthorized 
destruction of records, including all forms of mutilation. Records may 
not be removed from the legal custody of Federal agencies or destroyed 
without regard to the provisions of agency records schedules (SF 115 
approved by NARA or the General Records issued by NARA).
    (b) The heads of Federal agencies are responsible for ensuring that 
all employees are aware of the provisions of the law relating to 
unauthorized destruction, alienation, or mutilation of

[[Page 844]]

records, and should direct that any such action be reported to them.

[55 FR 27433, July 2, 1990, as amended at 64 FR 67665, Dec. 2, 1999]



Sec. 1228.102  Criminal penalties.

    The maximum penalty for the willful and unlawful destruction, 
damage, or alienation of Federal records is a $2,000 fine, 3 years in 
prison, or both (18 U.S.C. 2071).

[55 FR 27434, July 2, 1990]



Sec. 1228.104  Reporting.

    (a) The head of a Federal agency shall report any unlawful or 
accidental destruction, defacing, alteration, or removal of records in 
the custody of that agency to NARA (NWML), 8601 Adelphi Rd., College 
Park, MD 20740-6001. The report shall include:
    (1) A complete description of the records with volume and dates if 
known;
    (2) The office of origin;
    (3) A statement of the exact circumstances surrounding the 
alienation, defacing, or destruction of the records;
    (4) A statement of the safeguards established to prevent further 
loss of documentation; and
    (5) When appropriate, details of the actions taken to salvage, 
retrieve, or reconstruct the records.
    (b) This report has been cleared in accordance with GSA regulations 
in Title 41 of the CFR and assigned Interagency Report Control Number 
0285-NAR-AR.
    (c) The Archivist of the United States will assist the head of the 
agency in contacting the Attorney General for the recovery of any 
unlawfully removed records.

[45 FR 5705, Jan. 24, 1980, as amended at 46 FR 60205, Dec. 9, 1981. 
Redesignated and amended at 50 FR 15723, 15725, Apr. 19, 1985; 51 FR 
23538, June 30, 1986. Redesignated and amended at 55 FR 27434, July 2, 
1990; 63 FR 35829, July 1, 1998; 66 FR 27027, May 16, 2001]



Sec. 1228.106  Exclusions.

    Private or personal files are not governed by these provisions. 36 
CFR 1222.36 provides the legal definition of personal papers and 
prescribes standards for their maintenance.

[45 FR 5705, Jan. 24, 1980. Redesignated and amended at 50 FR 15723, 
15725, Apr. 19, 1985. Further redesignated at 55 FR 27433, July 2, 1990; 
66 FR 27027, May 16, 2001]



 Subpart H_Transfer of Records from the Custody of One Executive Agency 
                               to Another

    Source: 45 FR 5705, Jan. 24, 1980, unless otherwise noted. 
Redesignated at 50 FR 15723, Apr. 19, 1985, and further redesignated at 
55 FR 27433, July 2, 1990.



Sec. 1228.120  Authority.

    The Archivist of the United States will issue regulations governing 
the transfer of records from the custody of one executive agency to 
another (44 U.S.C. 2908).



Sec. 1228.122  Approval.

    No records shall be transferred from the custody of one executive 
agency to another without the prior written approval of the National 
Archives and Records Administration except as provided in Sec. 
1228.136.



Sec. 1228.124  Agency request.

    The head of any executive agency may request the transfer of records 
to or from his or her agency. Approval shall be requested by letter 
addressed to the NARA (NWML), in which are included:
    (a) A concise description of the records to be transferred, 
including the volume in cubic feet;
    (b) A statement of the restrictions imposed on the use of records;
    (c) A statement of the agencies and persons using the records and 
the purpose of this use;
    (d) A statement of the current and proposed physical and 
organizational locations of the records; and
    (e) A justification for the transfer including an explanation of why 
it is in the best interests of the Government.

[45 FR 5705, Jan. 24, 1980. Redesignated at 50 FR 15723, Apr. 19, 1985, 
and amended at 50 FR 26934, June 28, 1985. Redesignated and amended at 
55 FR 27434, July 2, 1990; 63 FR 35829, July 1, 1998]

[[Page 845]]



Sec. 1228.126  Agency concurrences.

    Copies of the concurrence or nonconcurrence in the transfer by the 
heads of any agencies concerned shall be attached to the agency request.



Sec. 1228.128  Records of terminated agencies.

    Transfers of records of executive agencies whose functions are 
terminated or are in process of liquidation are expressly subject to 
this part 1228 and no such transfers shall be made except in accordance 
with its provisions.



Sec. 1228.130  Equipment.

    Records storage equipment shall be transferred with the records 
contained therein in accordance with arrangements previously agreed to 
by the agencies concerned.



Sec. 1228.132  Costs of transfers.

    Approved transfers shall be made without reimbursement to the agency 
of original custody for any cost involved, except when this 
reimbursement is previously agreed to by the agencies concerned.



Sec. 1228.134  Restrictions on use of records.

    Whenever any records that are transferred are subject to 
restrictions upon their use imposed under a statute, Executive order, or 
agency determination, these restrictions shall continue in effect after 
the transfer. Restrictions imposed by agency determination may be 
removed by agreement between the agencies concerned.



Sec. 1228.136  Exceptions.

    Prior written approval of NARA is not required when:
    (a) Records are transferred to Federal records centers or the 
National Archives in accordance with subparts I and J.
    (b) Records are loaned for official use.
    (c) The transfer of records or functions or both is required by 
statute, Executive Order, Presidential reorganization plan, or Treaty, 
or by specific determinations made thereunder.
    (d) The records are transferred between two components of the same 
Executive department.
    (e) Records accessioned by the National Archives, later found to 
lack sufficient value for continued retention by the National Archives 
are governed exclusively for further disposition in accordance with 
Sec. 1228.200.

[55 FR 27434, July 2, 1990]



       Subpart I_Transfer of Records to Records Storage Facilities

    Source: 64 FR 67665, Dec. 2, 1999, unless otherwise noted.



Sec. 1228.150  Where can a Federal agency transfer records for storage?

    Federal agencies may store records in the following types of records 
storage facilities, so long as the facilities meet the facility 
standards in subpart K of this part. Records transferred to a records 
storage facility remain in the legal custody of the agency.
    (a) NARA records centers. NARA owns or operates records centers for 
the storage, processing, and servicing of records for Federal agencies 
under the authority of 44 U.S.C. 2907. These NARA records centers 
include a National Personnel Records Center which contains designated 
records of the Department of Defense and the Office of Personnel 
Management and other designated records pertaining to former Federal 
civilian employees. A list of NARA records centers is available from the 
NARA web site at http://www.archives.gov/facilities/index.html and also 
in the U.S. Government Manual, which is for sale from the Superintendent 
of Documents, U.S. Government Printing Office, Mail Stop: SSOP, 
Washington, DC 20402-9328, and is available on the Internet from http://
www.access.gpo.gov/nara.
    (b) Records centers operated by or on behalf of one or more Federal 
agencies other than NARA.
    (c) Commercial records storage facilities operated by private 
entities.

[64 FR 67665, Dec. 2, 1999, as amended at 67 FR 43253, June 27, 2002]

[[Page 846]]



Sec. 1228.152  Under what conditions may Federal records be stored in records 

storage facilities?

    The following chart shows what records can be stored in a records 
storage facility and the conditions that apply:

------------------------------------------------------------------------
             Type of Record                         Conditions
------------------------------------------------------------------------
(1) Permanent records..................  (i) Any storage facility that
                                          meets the provisions of
                                          subpart K of this part.
------------------------------------------------------------------------
(2) Unscheduled records................  (i) Any storage facility that
                                          meets the provisions of
                                          subpart K of this part.
                                         (ii) Also requires prior
                                          notification to NARA (see Sec.
                                            1228.154(b)).
------------------------------------------------------------------------
(3) Temporary records (excluding         (i) Any storage facility that
 Civilian Personnel Records).             meets the provisions of
                                          subpart K of this part.
------------------------------------------------------------------------
(4) Vital records......................  (i) Storage facility must meet
                                          the provisions of subpart K of
                                          this part and 36 CFR part
                                          1236.
------------------------------------------------------------------------
(5) Civilian Personnel Records.........  (i) May only be transferred to
                                          NPRC, St. Louis as required by
                                          this part.
------------------------------------------------------------------------


[64 FR 67665, Dec. 2, 1999, as amended at 69 FR 74977, Dec. 15, 2004]



Sec. 1228.154  What requirements must an agency meet when it transfers records 

to a records storage facility?

    An agency must meet the following requirements when it transfers 
records to a records storage facility:
    (a) Ensure that the requirements of subpart K of this part are met. 
Special attention must be paid to ensuring appropriate storage 
conditions for records on non-paper based media (e.g., film, audio tape, 
magnetic tape), especially those that are scheduled for long-term or 
permanent retention, as those records typically require more stringent 
environmental controls (see 36 CFR parts 1230 through 1234).
    (b) To transfer unscheduled records, notify NARA (NWML) in writing 
prior to the transfer. The notification must identify the records 
storage facility and include a copy of the information required by 
paragraph (c) of this section.
    (c) Create documentation sufficient to identify and locate files.
    (1) Such documentation must include for each individual records 
series spanning one or more consecutive years transferred to storage:
    (i) Creating office;
    (ii) Series title;
    (iii) Description (in the case of permanent or unscheduled records, 
the description must include a folder title list of the box contents or 
equivalent detailed records description);
    (iv) Date span;
    (v) Physical form and medium of records (e.g., paper, motion picture 
film, sound recordings, photographs or digital images);
    (vi) Volume;
    (vii) Citation to NARA-approved schedule or agency records 
disposition manual (unscheduled records must cite the date the agency 
notified NARA or, if available, the date the SF 115 was submitted to 
NARA);
    (viii) Restrictions on access if applicable;
    (ix) Disposition (``permanent,'' ``temporary,'' or ``unscheduled; SF 
115 pending'');
    (x) Date of disposition action (transfer to the National Archives of 
the United States or destruction);
    (xi) Physical location, including name and address of facility; and
    (xii) Control number or identifier used to track records.
    (2) In the case of permanent and unscheduled records, provide copies 
of

[[Page 847]]

such documentation to NARA and advise NARA in writing of the new 
location whenever the records are moved to a new storage facility.
    (d) Ensure that NARA-approved retention periods are implemented 
properly and that records documenting final disposition actions 
(destruction or transfer to the National Archives of the United States) 
are created and maintained as required by 36 CFR 1220.36.
    (1) Retain temporary records until the expiration of their NARA-
approved retention period and no longer, except as provided for in Sec. 
1228.54.
    (2) Transfer permanent records to the National Archives of the 
United States in accordance with Sec. 1228.260.
    (e) Provide access to appropriate NARA staff to records wherever 
they are located in order to conduct an evaluation in accordance with 36 
CFR 1220.50 or to process a request for records disposition authority.
    (f) Move temporary records that are subsequently reappraised as 
permanent to a facility that meets the environmental control 
requirements for permanent records in Sec. 1228.232 within one year of 
their re-appraisal, if not already in such a facility. (Paper-based 
permanent records in an existing records storage facility that does not 
meet the environmental control requirements in Sec. 1228.232(b) on 
October 1, 2009, must be moved from that facility no later than February 
28, 2010.)

[64 FR 67665, Dec. 2, 1999, as amended at 69 FR 74977, Dec. 15, 2004]



Sec. 1228.156  What procedures must an agency follow to transfer records to an 

agency records center or commercial records storage facility?

    Federal agencies must use the following procedures to transfer 
records to an agency records center or commercial records storage 
facility:
    (a) Agreements with agency records centers or contracts with 
commercial records storage facilities must incorporate the standards in 
subpart K of this part and allow for inspections by the agency and NARA 
to ensure compliance. An agency must remove records promptly from a 
facility if deficiencies identified during an inspection are not 
corrected within six months.
    (b) For temporary records, the agency must make available to NARA on 
request the documentation specified in Sec. 1228.154. For permanent 
records, the agency must transmit this documentation to NARA (NWML) no 
later than 30 days after records are transferred to the agency records 
center or commercial records storage facility. For unscheduled records, 
the agency must transmit the information to NWML with the SF 115 before 
the records are transferred as required by Sec. 1228.154(b).
    (c) Agencies must establish procedures that ensure that temporary 
records are destroyed in accordance with NARA-approved schedules and 
that NARA-approved changes to schedules, including the General Records 
Schedules, are applied to records in agency records centers or 
commercial records storage facilities in a timely fashion. Procedures 
must include a requirement that the agency records center or commercial 
records storage facility notify agency records managers or the creating 
office prior to the disposal of temporary records unless disposal of 
temporary records is initiated by the agency.
    (d) Agencies must establish procedures to ensure that the agency 
records centers or commercial records storage facilities transfer 
permanent records to the National Archives of the United States as 
individual series spanning one or more years and in accordance with the 
provisions of Sec. 1228.272.
    (e) Agencies must ensure that records that are restricted because 
they are security classified or exempt from disclosure by statute, 
including the Privacy Act (5 U.S.C. 552a), or regulation are stored and 
maintained in accordance with applicable laws, executive orders, or 
regulations.
    (f) Agencies must ensure that disposable records, including 
restricted records (security classified or exempted from disclosure by 
statute, including the Privacy Act, or regulation), are destroyed in 
accordance with the requirements specified in Sec. 1228.58.
    (g) Agencies must ensure that emergency operating vital records, as 
defined in 36 CFR 1236.14, that are transferred to an agency records 
center or commercial records storage facility are

[[Page 848]]

available in accordance with 36 CFR part 1236.



 Subpart J_Transfer, Use, and Disposition of Records in a NARA Records 
                                 Center

    Source: 64 FR 67667, Dec. 2, 1999, unless otherwise noted.



Sec. 1228.160  How does an agency transfer records to a NARA records center?

    An agency transfers records to a NARA records center using the 
following procedures:
    (a) General. NARA will ensure that its records centers meet the 
facilities standards in subpart K of this part, which meets the agency's 
obligation in Sec. 1228.154(a).
    (b) NARA records centers will not accept records that pose a threat 
to other records or to the health and safety of users including 
hazardous materials such as nitrate film, radioactive or chemically 
contaminated records, records exhibiting active mold growth, or 
untreated insect or rodent infiltrated records. Agencies may contact the 
NARA records center for technical advice on treating such records.
    (c) Agencies may use any NARA records center (see Sec. 1228.154(a)) 
if space is available for the storage of unclassified records. All NARA 
facilities are equipped to store classified records that have a national 
security classification up to Confidential, and certain NARA facilities 
can also accept Secret (or ``Q'') classified records. Only the 
Washington National Records Center is equipped to store records that 
have been assigned a national security classification of Top Secret, as 
defined in Executive Order 12958 (3 CFR, 1995 Comp., p. 333) and 
predecessor orders. For storage of restricted records requiring vault 
storage (regardless of the level of classification), agencies must 
contact the records center(s) they wish to use to find out if the 
center(s) can properly store the records.
    (d) Transfers to NARA records centers must be preceded by the 
submission of a Standard Form 135, Records Transmittal and Receipt. 
Preparation and submission of this form will meet the requirements for 
records description provided in Sec. 1228.154(c), except the folder 
title list required for permanent and unscheduled records. A folder 
title list is also required for records that are scheduled for sampling 
or selection after transfer.
    (e) A separate SF 135 is required for each individual records series 
having the same disposition authority and disposition date.
    (f) For further guidance on transfer of records to a NARA records 
center, consult the NARA Records Center Program web site (http://
www.archives.gov), or current NARA publications and bulletins by 
contacting the Office of Regional Records Services (NR), individual NARA 
regional facilities, or the Washington National Records Center (NWMW).

[64 FR 67667, Dec. 2, 1999, as amended at 66 FR 27027, May 16, 2001; 67 
FR 43253, June 27, 2002]



Sec. 1228.162  How does an agency transfer vital records to a NARA records 

center?

    For assistance on selecting an appropriate site among NARA 
facilities for storage of vital records, agencies may contact NARA (NR), 
8601 Adelphi Rd., College Park, MD 20740-6001. The actual transfers are 
governed by the general requirements and procedures in this subpart and 
36 CFR part 1236.



Sec. 1228.164  What records must be transferred to the National Personnel 

Records Center (NPRC)?

    General Records Schedules 1 and 2 specify that certain Federal 
civilian personnel, medical, and pay records must be centrally stored at 
the National Personnel Records Center (Civilian Personnel Records), 111 
Winnebago Street, St. Louis, MO 63118. An agency must transfer the 
following four types of records to the NPRC:
    (a) Official personnel folders of separated Federal civilian 
employees;
    (b) Service record cards of employees who separated or transferred 
on or before December 31, 1947;
    (c) Audited individual earnings and pay cards and comprehensive 
payrolls; and
    (d) Employee medical folders of separated Federal civilian 
employees.

[[Page 849]]



Sec. 1228.166  How does an agency transfer records to the National Personnel 

Records Center (NPRC)?

    (a) Agencies must use the following procedures when transferring 
records to the NPRC:
    (1) Forward the official personnel folder (OPF) and the employee 
medical folder (EMF) to the National Personnel Records Center at the 
same time.
    (2) Transfer EMFs and OPFs in separate folders.
    (b) For further guidance consult the NPRC web site (http://
www.archives.gov/facilities/mo/st--louis.html).
    (c) Consult the Office of Personnel Management web site (http://
www.opm.gov/feddata/html/opf.htm) for the OPM publication The Guide to 
Personnel Recordkeeping for procedures on the transfer of OPFs and EMFs. 
(The Guide is also available from the Superintendent of Documents, U.S. 
Government Printing Office, Mail Stop: SSOP, Washington, DC 20402-9328.)

[64 FR 67667, Dec. 2, 1999, as amended at 67 FR 43253, June 27, 2002]



Sec. 1228.168  How can records be used in NARA records centers?

    (a) Agency records transferred to a NARA records center remain in 
the legal custody of the agency. NARA acts as the agency's agent in 
maintaining the records. NARA will not disclose the record except to the 
agency which maintains the record, or under rules established by that 
agency which are not inconsistent with existing laws.
    (b) Federal agencies must use Standard Form (SF) 180, Request 
Pertaining to Military Records, to obtain information from military 
service records in the National Personnel Records Center (Military 
Personnel Records). Agencies may furnish copies of that form to the 
public to aid in inquiries. Members of the public and non-governmental 
organizations also may obtain copies of SF 180 by submitting a written 
request to the National Personnel Records Center (Military Personnel 
Records), 9700 Page Boulevard, St. Louis, MO 63132. OMB Control Number 
3095-0029 has been assigned to the SF 180.
    (c) Use Standard Form 127, Request for Official Personnel Folder 
(Separated Employee), to request transmission of personnel folders of 
separated employees stored at the National Personnel Records Center.
    (d) Use Standard Form 184, Request for Employee Medical Folder 
(Separated Employee), to request medical folders stored at the National 
Personnel Records Center.
    (e) Use Optional Form 11, Reference Request--Federal Records Center 
to request medical records transferred to other NARA records centers 
prior to September 1, 1984. The request must include the name and 
address of the agency's designated medical records manager.
    (f) For any other requests, use the Optional Form 11, Reference 
Request--Federal Records Centers, a form jointly designated by that 
agency and NARA, or their electronic equivalents.



Sec. 1228.170  How are disposal clearances managed for records in NARA records 

centers?

    (a) The National Personnel Records Center will destroy records 
covered by General Records Schedules 1 and 2 in accordance with those 
schedules without further agency clearance.
    (b) NARA records centers will destroy other eligible Federal records 
only with the written concurrence of the agency having legal custody of 
the records.
    (c) NARA records centers will maintain documentation on the final 
disposition of records, as required in 36 CFR 1220.36, for the period of 
time required by General Records Schedule 16.
    (d) When NARA approves an extension of retention period beyond the 
time authorized in the records schedule for records stored in NARA 
records centers, NARA will notify those affected records centers to 
suspend disposal of the records (see Sec. 1228.54(e)).



       Subpart K_Facility Standards for Records Storage Facilities

    Source: 64 FR 67642, Dec. 2, 1999, unless otherwise noted.

[[Page 850]]

                                 General



Sec. 1228.220  What authority applies to this subpart?

    NARA is authorized to establish, maintain and operate records 
centers for Federal agencies under 44 U.S.C. 2907. NARA is authorized, 
under 44 U.S.C. 3103, to approve a records center that is maintained and 
operated by an agency. NARA is also authorized to promulgate standards, 
procedures, and guidelines to Federal agencies with respect to the 
storage of their records in commercial records storage facilities. See 
44 U.S.C. 2104(a), 2904 and 3102. The regulations in this subpart apply 
to all records storage facilities Federal agencies use to store, 
service, and dispose of their records.



Sec. 1228.222  What does this subpart cover?

    (a) This subpart covers the establishment, maintenance, and 
operation of records centers, whether Federally-owned and operated by 
NARA or another Federal agency, or Federally-owned and contractor 
operated. This subpart also covers an agency's use of commercial records 
storage facilities. Records centers and commercial records storage 
facilities are referred to collectively as records storage facilities. 
This subpart specifies the minimum structural, environmental, property, 
and life-safety standards that a records storage facility must meet when 
the facility is used for the storage of Federal records.
    (b) Except where specifically noted, this subpart applies to all 
records storage facilities. Certain noted provisions apply only to new 
records storage facilities established or placed in service on or after 
September 28, 2005.

[64 FR 67642, Dec. 2, 1999, as amended at 70 FR 50986, Aug. 29, 2005]



Sec. 1228.224  Publications incorporated by reference.

    (a) General. The following publications cited in this section are 
hereby incorporated by reference into this subpart K of part 1228. They 
are available from the issuing organizations at the addresses listed in 
this section. They are also available for inspection at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. This incorporation by reference was 
approved by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR Part 51. These materials are incorporated as 
they exist on the date of approval, and a document indicating any change 
in these materials will be published in the Federal Register.
    (b) American Society of Testing and Materials (ASTM) standards. The 
following ASTM standard is available from the American Society of 
Testing and Materials, 100 Barr Harbor Drive, West Conshohocken, PA, 
19428-2959, or on-line at www.astm.org:

E 119-98, Standard Test Methods for Fire Tests of Building Construction 
and Materials.

    (c) National Fire Protection Association (NFPA) standards. The 
following NFPA standards are available from the National Fire Protection 
Association, 1 Batterymarch Park, P.O. Box 9109, Quincy, MA 02269-9101, 
or on-line at http://catalog.nfpa.org:

NFPA 10, Standard for Portable Fire Extinguishers (1994 Edition).
NFPA 13, Standard for Installation of Sprinkler Systems (2002 Edition), 
IBR approved for Sec. Sec. 1228.228(a)(1), 1228.230(e), and 
1228.230(i).
NFPA 20, Standard for the Installation of Centrifugal Fire Pumps (1996 
Edition).
NFPA 40, Standard for the Storage and Handling of Cellulose Nitrate 
Motion Picture Film (1997 Edition).
NFPA 42, Code for the Storage of Pyroxylin Plastic (1997 Edition).
NFPA 54, National Fuel Gas Code (2002 Edition), IBR approved for Sec. 
1228.230.
NFPA 72, National Fire Alarm Code (1996 Edition).
NFPA 101, Life Safety Code (1997 Edition).
NFPA 221, Standard for Fire Walls and Fire Barrier Walls (1994 Edition).
NFPA 231, Standard for General Storage (1998 Edition).
NFPA 231C, Standard for Rack Storage of Materials (1998 Edition).
NFPA 232, Standard for the Protection of Records (1995 Edition).
NFPA 232A, Guide for Fire Protection of Archives and Records Centers 
(1995 Edition).

    (d) Underwriters Laboratory (UL) standards. The following UL 
standards

[[Page 851]]

are available from the Underwriters Laboratory at www.ul.com or from 
Global Engineering Documents, 15 Inverness Way East, Englewood, CO 
80112:

UL 611, Central-Station Burglar-Alarm Systems (February 22, 1996).
UL 827, Central-Station Alarm Services (April 23, 1999).
UL 1076, Proprietary Burglar Alarm Units and Systems (February 1, 1999).

    (e) American Society of Heating, Refrigerating and Air-Conditioning 
Engineers, Inc. (ASHRAE) standards. The following ASHRAE standards are 
available from ASHRAE at ASHRAE Customer Service, 1791 Tullie Circle NE, 
Atlanta, GA 30329 or online at www.ASHRAE.org:

ANSI/ASHRAE 55-1992, Thermal Environmental Conditions for Human 
Occupancy.
ANSI/ASHRAE 62-1989, Ventilation for Acceptable Indoor Air Quality.

    (f) American National Standards Institute (ANSI) standards. The 
following ANSI standards are available from the American National 
Standards Institute, 11 West 42nd St., New York, NY 10036:

ANSI/NAPM IT9.18-1996, Imaging Materials--Processed Photographic 
Plates--Storage Practices.
ANSI/NAPM IT9.20-1996, Imaging Materials--Reflection Prints--Storage 
Practices.
ANSI/NAPM IT9.23-1996, Imaging Materials--Polyester Base Magnetic Tape--
Storage.
ANSI/PIMA IT9.11-1998, Imaging Materials--Processed Safety Photographic 
Films--Storage.
ANSI/PIMA IT9.25-1998, Imaging Materials--Optical Disc Media--Storage.
    (g) International Association of Plumbing and Mechanical Officials 
(IAPMO) standards. The following IAPMO standard is available from the 
International Association of Plumbing and Mechanical Officials, 5001 E. 
Philadelphia Street, Ontario, CA 91761: IAPMO, Uniform Mechanical Code 
(2003 Edition), IBR approved for Sec. 1228.230.

[64 FR 67642, Dec. 2, 1999, as amended at 67 FR 79518, Dec. 30, 2002; 70 
FR 50986, Aug. 29, 2005]



Sec. 1228.226  Definitions.

    The following definitions apply to this subpart:
    Auxiliary spaces mean non-records storage areas such as offices, 
research rooms, other work and general storage areas but excluding 
boiler rooms or rooms containing equipment operating with a fuel supply 
such as generator rooms.
    Commercial records storage facility has the meaning specified in 
Sec. 1220.14 of this chapter.
    Existing records storage facility means any records center or 
commercial records storage facility used to store records on September 
27, 2005, and that has stored records continuously since that date.
    Fire barrier wall means a wall, other than a fire wall, having a 
fire resistance rating, constructed in accordance with NFPA 221 (1994), 
Standard for Fire Walls and Fire Barrier Walls, Chapter 4.
    Licensed fire protection engineer means a licensed or registered 
professional engineer with a recognized specialization in fire 
protection engineering. For those States that do not separately license 
or register fire protection engineers, a licensed or registered 
professional engineer with training and experience in fire protection 
engineering, operating within the scope of that licensing or 
registration, who is also a professional member of the Society of Fire 
Protection Engineers.
    Must and provide mean that a provision is mandatory.
    New records storage facility means any records center or commercial 
records storage facility established or converted for use as a records 
center or commercial records storage facility on or after September 28, 
2005.
    Permanent record has the meaning specified in Sec. 1220.14 of this 
chapter.
    Records center has the meaning specified in Sec. 1220.14 of this 
chapter.
    Records storage area means the area intended for long-term storage 
of records that is enclosed by four fire barrier walls, the floor, and 
the ceiling.
    Records storage facility has the meaning specified in Sec. 1220.14 
of this chapter.
    Sample/select records means records whose final disposition requires 
an analytical or statistical sampling prior to final disposition 
authorization, in which some percentage of the original accession will 
be retained as permanent records.
    Should or may means that a provision is recommended or advised but 
not required.

[[Page 852]]

    Temporary record has the meaning specified in Sec. 1220.14 of this 
chapter.
    Unscheduled records has the meaning specified in Sec. 1220.14 of 
this chapter.

[64 FR 67642, Dec. 2, 1999; 64 FR 68946, Dec. 9, 1999; 70 FR 50986, Aug. 
29, 2005]

                           Facility Standards



Sec. 1228.228  What are the facility requirements for all records storage 

facilities?

    (a) The facility must be constructed with non-combustible materials 
and building elements, including walls, columns and floors. There are 
two exceptions to this requirement:
    (1) Roof elements may be constructed with combustible materials if 
installed in accordance with local building codes and if roof elements 
are protected by a properly installed, properly maintained wet-pipe 
automatic sprinkler system, as specified in NFPA 13, Installation of 
Sprinkler Systems (incorporated by reference, see Sec. 1228.224).
    (2) An agency may request a waiver of the requirement specified in 
paragraph (a) from NARA for an existing records storage facility with 
combustible building elements to continue to operate until October 1, 
2009. In its request for a waiver, the agency must provide documentation 
that the facility has a fire suppression system specifically designed to 
mitigate this hazard and that the system meets the requirements of Sec. 
1228.230(s). Requests must be submitted to the Director, Space and 
Security Management Division (NAS), National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
    (b) A facility with two or more stories must be designed or reviewed 
by a licensed fire protection engineer and civil/structural engineer to 
avoid catastrophic failure of the structure due to an uncontrolled fire 
on one of the intermediate floor levels. For new buildings the seals on 
the construction drawings serve as proof of this review. For existing 
buildings, this requirement may be demonstrated by a professional letter 
of opinion under seal by a licensed fire protection engineer that the 
fire resistance of the separating floor(s) is/(are) at least four hours, 
and a professional letter of opinion under seal by a licensed civil/
structural engineer that there are no obvious structural weaknesses that 
would indicate a high potential for structural catastrophic collapse 
under fire conditions.
    (c) The building must be sited a minimum of five feet above and 100 
feet from any 100 year flood plain areas, or be protected by an 
appropriate flood wall that conforms to local or regional building 
codes.
    (d) The facility must be designed in accordance with the applicable 
national, regional, state, or local building codes (whichever is most 
stringent) to provide protection from building collapse or failure of 
essential equipment from earthquake hazards, tornadoes, hurricanes and 
other potential natural disasters.
    (e) Roads, fire lanes and parking areas must permit unrestricted 
access for emergency vehicles.
    (f) A floor load limit must be established for the records storage 
area by a licensed structural engineer. The limit must take into 
consideration the height and type of the shelving or storage equipment, 
the width of the aisles, the configuration of the space, etc. The 
allowable load limit must be posted in a conspicuous place and must not 
be exceeded.
    (g) The facility must ensure that the roof membrane does not permit 
water to penetrate the roof. NARA strongly recommends that this 
requirement be met by not mounting equipment on the roof and placing 
nothing else on the roof that may cause damage to the roof membrane. 
Alternatively, a facility may meet this requirement with stringent 
design specifications for roof-mounted equipment in conjunction with a 
periodic roof inspection program performed by appropriately certified 
professionals.
    (1) New records storage facilities must meet the requirements in 
this paragraph (g) beginning on September 28, 2005.
    (2) Existing facilities must meet the requirements in this paragraph 
(g) no later than October 1, 2009.
    (h) Piping (with the exception of fire protection sprinkler piping 
and storm water roof drainage piping) must not be run through records 
storage areas unless supplemental measures such as

[[Page 853]]

gutters or shields are used to prevent water leaks and the piping 
assembly is inspected for potential leaks regularly. If drainage piping 
from roof drains must be run though records storage areas, the piping 
must be run to the nearest vertical riser and must include a continuous 
gutter sized and installed beneath the lateral runs to prevent leakage 
into the storage area. Vertical pipe risers required to be installed in 
records storage areas must be fully enclosed by shaft construction with 
appropriate maintenance access panels.
    (1) New records storage facilities must meet the requirements in 
this paragraph (h) beginning on September 28, 2005.
    (2) Existing facilities must meet the requirements in this paragraph 
(h) no later than October 1, 2009.
    (i) The following standards apply to records storage shelving and 
racking systems:
    (1) All storage shelving and racking systems must be designed and 
installed to provide seismic bracing that meets the requirements of the 
applicable state, regional, and local building code (whichever is most 
stringent);
    (2) Racking systems, steel shelving, or other open-shelf records 
storage equipment must be braced to prevent collapse under full load. 
Each racking system or shelving unit must be industrial style shelving 
rated at least 50 pounds per cubic foot supported by the shelf;
    (3) Compact mobile shelving systems (if used) must be designed to 
permit proper air circulation and fire protection (detailed 
specifications that meet this requirement can be provided by NARA by 
writing to Director, Space and Security Management Division (NAS), 
National Archives and Records Administration, 8601 Adelphi Road, College 
Park, MD 20740-6001.).
    (j) The area occupied by the records storage facility must be 
equipped with an anti-intrusion alarm system, or equivalent, meeting the 
requirements of Underwriters Laboratory (UL) Standard 1076, Proprietary 
Burglar Alarm Units and Systems (February 1, 1999), level AA, to protect 
against unlawful entry after hours and to monitor designated interior 
storage spaces. This intrusion alarm system must be monitored in 
accordance with UL Standard 611, Central-Station Burglar-Alarm Systems 
(February 22, 1996).
    (k) The facility must comply with the requirements for a Level III 
facility as defined in the Department of Justice, U. S. Marshals Service 
report ``Vulnerability Assessment of Federal Facilities'' dated June 28, 
1995. These requirements are provided in Appendix A to this Part 1228. 
Agencies may require compliance with Level IV or Level V facility 
security requirements if the facility is classified at the higher level.
    (l) Records contaminated by hazardous materials, such as radioactive 
isotopes or toxins, infiltrated by insects, or exhibiting active mold 
growth must be stored in separate areas having separate air handling 
systems from other records.
    (m) To eliminate damage to records and/or loss of information due to 
insects, rodents, mold and other pests that are attracted to organic 
materials under specific environmental conditions, the facility must 
have an Integrated Pest Management program as defined in the Food 
Protection Act of 1996 (Section 303, Public Law 104-170, 110 Stat. 
1512). This states in part that Integrated Pest Management is a 
sustainable approach to managing pests by combining biological, 
cultural, physical, and chemical tools in a way that minimizes economic, 
health, and environmental risks. The IPM program emphasizes three 
fundamental elements:
    (1) Prevention. IPM is a preventive maintenance process that seeks 
to identify and eliminate potential pest access, shelter, and 
nourishment. It also continually monitors for pests themselves, so that 
small infestations do not become large ones;
    (2) Least-toxic methods. IPM aims to minimize both pesticide use and 
risk through alternate control techniques and by favoring compounds, 
formulations, and application methods that present the lowest potential 
hazard to humans and the environment; and
    (3) Systems approach. The IPM pest control contract must be 
effectively coordinated with all other relevant programs that operate in 
and around a

[[Page 854]]

building, including plans and procedures involving design and 
construction, repairs and alterations, cleaning, waste management, food 
service, and other activities.
    (n) For new records storage facilities only, the additional 
requirements in this paragraph (n) must be met:
    (1) Do not install mechanical equipment, excluding material handling 
and conveyance equipment that have operating thermal breakers on the 
motor, containing motors rated in excess of 1 HP within records storage 
areas (either floor mounted or suspended from roof support structures).
    (2) Do not install high-voltage electrical distribution equipment 
(i.e., 13.2kv or higher switchgear and transformers) within records 
storage areas (either floor mounted or suspended from roof support 
structures).
    (3) A redundant source of primary electric service such as a second 
primary service feeder should be provided to ensure continuous, 
dependable service to the facility especially to the HVAC systems, fire 
alarm and fire protection systems. Manual switching between sources of 
service is acceptable.
    (4) A facility storing permanent records must be kept under positive 
air pressure, especially in the area of the loading dock. In addition, 
to prevent fumes from vehicle exhausts from entering the facility, air 
intake louvers must not be located in the area of the loading dock, 
adjacent to parking areas, or in any location where a vehicle engine may 
be running for any period of time. Loading docks must have an air supply 
and exhaust system that is separate from the remainder of the facility.

[64 FR 67642, Dec. 2, 1999; 64 FR 68946, Dec. 9, 1999; 70 FR 50987, Aug. 
29, 2005]



Sec. 1228.230  What are the fire safety requirements that apply to records 

storage facilities?

    (a) The fire detection and protection systems must be designed or 
reviewed by a licensed fire protection engineer. If the system was not 
designed by a licensed fire protection engineer, the review requirement 
is met by furnishing a report under the seal of a licensed fire 
protection engineer that describes the design intent of the fire 
detection and suppression system, detailing the characteristics of the 
system, and describing the specific measures beyond the minimum features 
required by code that have been incorporated to minimize loss. The 
report should make specific reference to appropriate industry standards 
used in the design, such as those issued by the National Fire Protection 
Association, and any testing or modeling or other sources used in the 
design.
    (b) All interior walls separating records storage areas from each 
other and from other storage areas in the building must be at least 
three-hour fire barrier walls. A records storage facility may not store 
more than 250,000 cubic feet total of Federal records in a single 
records storage area. When Federal records are combined with other 
records in a single records storage area, only the Federal records will 
apply toward this limitation.
    (c) Fire barrier walls that meet the following specifications must 
be provided:
    (1) For existing records storage facilities, at least one-hour-rated 
fire barrier walls must be provided between the records storage areas 
and other auxiliary spaces.
    (2) For new records storage facilities, two-hour-rated fire barrier 
walls must be provided between the records storage areas and other 
auxiliary spaces. One exterior wall of each stack area must be designed 
with a maximum fire resistive rating of one hour, or, if rated more than 
one hour, there must be at least one knock-out panel in one exterior 
wall of each stack area.
    (d) Penetrations in the walls must not reduce the specified fire 
resistance ratings. The fire resistance ratings of structural elements 
and construction assemblies must be in accordance with American Society 
of Testing and Materials E 119-98, Standard Test Methods for Fire Tests 
of Building Construction and Materials.
    (e) The fire resistive rating of the roof must be a minimum of \1/2\ 
hour for all records storage facilities, or must be protected by an 
automatic sprinkler system designed, installed, and maintained in 
accordance with NFPA 13 (incorporated by reference, see Sec. 1228.224).

[[Page 855]]

    (f) Openings in fire barrier walls separating records storage areas 
must be avoided to the greatest extent possible. If openings are 
necessary, they must be protected by self-closing or automatic Class A 
fire doors, or equivalent doors that maintain the same rating as the 
wall.
    (g) Roof support structures that cross or penetrate fire barrier 
walls must be cut and supported independently on each side of the fire 
barrier wall.
    (h) If fire barrier walls are erected with expansion joints, the 
joints must be protected to their full height.
    (i) Building columns in the records storage areas must be at least 
1-hour fire resistant or protected in accordance with NFPA 13 
(incorporated by reference, see Sec. 1228.224).
    (j) Automatic roof vents for routine ventilation purposes must not 
be designed into new records storage facilities. Automatic roof vents, 
designed solely to vent in the case of a fire, with a temperature rating 
at least twice that of the sprinkler heads are acceptable.
    (k) Where lightweight steel roof or floor supporting members (e.g., 
bar joists having top chords with angles 2 by 1\1/2\ inches or smaller, 
\1/4\-inch thick or smaller, and \13/16\-inch or smaller web diameters) 
are present, they must be protected either by applying a 10-minute fire 
resistive coating to the top chords of the joists, or by retrofitting 
the sprinkler system with large drop sprinkler heads. If a fire 
resistive coating is applied, it must be a product that will not release 
(off gas) harmful fumes into the facility. If fire resistive coating is 
subject to air erosion or flaking, it must be fully enclosed in a 
drywall containment constructed of metal studs with fire retardant 
drywall. Retrofitting may require modifications to the piping system to 
ensure that adequate water capacity and pressure are provided in the 
areas to be protected with these large drop sprinkler heads.
    (l) Open flame (oil or gas) unit heaters or equipment, if used in 
records storage areas, must be installed or used in the records storage 
area in accordance with NFPA 54 (incorporated by reference, see Sec. 
1228.224), and the IAPMO/ANSI UMC 1-2003, Uniform Mechanical Code 
(incorporated by reference, see Sec. 1228.224).
    (m) For existing records storage facilities, boiler rooms or rooms 
containing equipment operating with a fuel supply (such as generator 
rooms) must be separated from records storage areas by 2-hour-rated fire 
barrier walls with no openings directly from these rooms to the records 
storage areas. Such areas must be vented directly to the outside to a 
location where fumes will not be drawn back into the facility.
    (n) For new records storage facilities, boiler rooms or rooms 
containing equipment operating with a fuel supply (such as generator 
rooms) must be separated from records storage areas by 4-hour-rated fire 
barrier walls with no openings directly from these rooms to the records 
storage areas. Such areas must be vented directly to the outside to a 
location where fumes will not be drawn back into the facility.
    (o) For new records storage facilities, fuel supply lines must not 
be installed in areas containing records and must be separated from such 
areas with 4-hour rated construction assemblies.
    (p) Equipment rows running perpendicular to the wall must comply 
with NFPA 101 (1997), Life Safety Code, with respect to egress 
requirements.
    (q) No oil-type electrical transformers, regardless of size, except 
thermally protected devices included in fluorescent light ballasts, may 
be installed in the records storage areas. All electrical wiring must be 
in metal conduit, except that armored cable may be used where flexible 
wiring connections to light fixtures are required. Battery charging 
areas for electric forklifts must be separated from records storage 
areas with at least a 2-hour rated fire barrier wall.
    (r) Hazardous materials, including records on cellulose nitrate 
film, must not be stored in records storage areas. Nitrate motion 
picture film and nitrate sheet film may be stored in separate areas that 
meet the requirements of the appropriate NFPA standard, NFPA 40 (1997), 
Standard for the Storage and Handling of Cellulose Nitrate Motion 
Picture Film, or NFPA 42 (1997), Code for the Storage of Pyroxylin 
Plastic.

[[Page 856]]

    (s) All record storage and adjoining areas must be protected by a 
professionally-designed fire-safety detection and suppression system 
that is designed to limit the maximum anticipated loss in any single 
fire event involving a single ignition and no more than 8 ounces of 
accelerant to a maximum of 300 cubic feet of records destroyed by fire. 
Section 1228.242 specifies how to document compliance with this 
requirement.

[64 FR 67642, Dec. 2, 1999, as amended at 70 FR 50987, Aug. 29, 2005]



Sec. 1228.232  What are the requirements for environmental controls for 

records storage facilities?

    (a) Paper-based temporary records. Paper-based temporary records 
must be stored under environmental conditions that prevent the active 
growth of mold. Exposure to moisture through leaks or condensation, 
relative humidities in excess of 70%, extremes of heat combined with 
relative humidity in excess of 55%, and poor air circulation during 
periods of elevated heat and relative humidity are all factors that 
contribute to mold growth.
    (b) Nontextual temporary records. Nontextual temporary records, 
including microforms and audiovisual and electronic records, must be 
stored in records storage space that is designed to preserve them for 
their full retention period. New records storage facilities that store 
nontextual temporary records must meet the requirements in this 
paragraph (b) beginning on September 28, 2005. Existing records storage 
facilities that store nontextual temporary records must meet the 
requirements in this paragraph (b) no later than October 1, 2009. At a 
minimum, nontextual temporary records must be stored in records storage 
space that meets the requirements for medium term storage set by the 
appropriate standard in this paragraph (b). In general, medium term 
conditions as defined by these standards are those that will ensure the 
preservation of the materials for at least 10 years with little 
information degradation or loss. Records may continue to be usable for 
longer than 10 years when stored under these conditions, but with an 
increasing risk of information loss or degradation with longer times. If 
temporary records require retention longer than 10 years, better storage 
conditions (cooler and drier) than those specified for medium term 
storage will be needed to maintain the usability of these records. The 
applicable standards are:
    (1) ANSI/PIMA IT9.11-1998, Imaging Materials--Processed Safety 
Photographic Films--Storage;
    (2) ANSI/NAPM IT9.23-1996, Imaging Materials--Polyester Base 
Magnetic Tape--Storage;
    (3) ANSI/PIMA IT9.25-1998, Imaging Materials--Optical Disc Media--
Storage;
    (4) ANSI /NAPM IT9.20-1996, Imaging Materials--Reflection Prints--
Storage Practices; and/or
    (5) ANSI/NAPM IT9.18-1996, Imaging Materials--Processed Photographic 
Plates--Storage Practices.
    (c) Paper-based permanent, unscheduled and sample/select records. 
Paper-based permanent, unscheduled, and sample/select records must be 
stored in records storage space that provides 24 hour/365 days per year 
air conditioning (temperature, humidity, and air exchange) equivalent to 
that required for office space. See ASHRAE Standard 55-1992, Thermal 
Environmental Conditions for Human Occupancy, and ASHRAE Standard 62-
1989, Ventilation for Acceptable Indoor Air Quality, for specific 
requirements. New records storage facilities that store paper-based 
permanent, unscheduled, and/or sample/select records must meet the 
requirement in this paragraph (c) beginning on September 28, 2005. 
Existing storage facilities that store paper-based permanent, 
unscheduled, and/or sample/select records must meet the requirement in 
this paragraph (c) no later than October 1, 2009.
    (d) Nontextual permanent, unscheduled, and/or sample/select records. 
All records storage facilities that store microfilm, audiovisual, and/or 
electronic permanent, unscheduled, and/or sample/select records must 
comply with the storage standards for permanent and unscheduled records 
in parts 1230, 1232, and/or 1234 of this chapter, respectively.

[64 FR 67642, Dec. 2, 1999, as amended at 70 FR 50988, Aug. 29, 2005]

[[Page 857]]

           Handling Deviations From NARA's Facility Standards



Sec. 1228.234  What rules apply if there is a conflict between NARA standards 

and other regulatory standards that a facility must follow?

    (a) If any provisions of this subpart conflict with local or 
regional building codes, the following rules of precedence apply:
    (1) Between differing levels of fire protection and life safety, the 
more stringent provision applies; and
    (2) Between mandatory provisions that cannot be reconciled with a 
requirement of this subpart, the local or regional code applies.
    (b) If any of the provisions of this subpart conflict with mandatory 
life safety or ventilation requirements imposed on underground storage 
facilities by 30 CFR chapter I, 30 CFR chapter I applies.
    (c) NARA reserves the right to require documentation of the 
mandatory nature of the conflicting code and the inability to reconcile 
that provision with NARA requirements.



Sec. 1228.236  How does an agency request a waiver from a requirement in this 

subpart?

    (a) Types of waivers that may be approved. NARA may approve 
exceptions to one or more of the standards in this subpart for:
    (1) Systems, methods, or devices that are demonstrated to have 
equivalent or superior quality, strength, fire resistance, 
effectiveness, durability, and safety to those prescribed by this 
subpart;
    (2) Existing agency records centers that met the NARA standards in 
effect prior to January 3, 2000, but do not meet a new standard required 
to be in place on September 28, 2005; and
    (3) The application of roof requirements in Sec. Sec. 1228.228 and 
1228.230 to underground storage facilities.
    (b) Where to submit a waiver request. The agency submits a waiver 
request, containing the information specified in paragraphs (c), (d), 
and/or (e) of this section to the Director, Security and Space 
Management Division (NAS), National Archives and Records Administration, 
8601 Adelphi Rd., College Park, MD 20740-6001.
    (c) Content of request for waivers for equivalent or superior 
alternatives. The agency's waiver request must contain:
    (1) A statement of the specific provision(s) of this subpart for 
which a waiver is requested, a description of the proposed alternative, 
and an explanation how it is equivalent to or superior to the NARA 
requirement; and
    (2) Supporting documentation that the alternative does not provide 
less protection for Federal records than that which would be provided by 
compliance with the corresponding provisions contained in this subpart. 
Documentation may take the form of certifications from a licensed fire 
protection engineer or a structural or civil engineer, as appropriate; 
reports of independent testing; reports of computer modeling; and/or 
other supporting information.
    (d) Content of request for waiver for previously compliant agency 
records center. The agency's waiver request must identify which 
requirement(s) the agency records center cannot meet and provide a plan 
with milestones for bringing the center into compliance.
    (e) Content of request for waiver of roof requirements for 
underground facility. The agency's waiver request must identify the 
location of the facility and whether the facility is a drift entrance 
facility or a vertical access facility.

[64 FR 67642, Dec. 2, 1999, as amended at 70 FR 50988, Aug. 29, 2005]



Sec. 1228.238  How does NARA process a waiver request?

    (a) Waiver for equivalent or superior alternative. NARA will review 
the waiver request and supporting documentation.
    (1) If in NARA's judgement the supporting documentation clearly 
supports the claim that the alternative is equivalent or superior to the 
NARA requirement, NARA will grant the waiver and notify the requesting 
agency within 30 calendar days.
    (2) If NARA questions whether supporting documentation demonstrates 
that the proposed alternative offers at least equal protection to 
Federal records, NARA will consult the appropriate industry standards 
body or other qualified expert before making a determination. NARA will 
notify the requesting agency within 30 calendar

[[Page 858]]

days of receipt of the request that consultation is necessary and will 
provide a final determination within 60 calendar days. If NARA does not 
grant the waiver, NARA will furnish a full explanation of the reasons 
for its decision.
    (b) Waiver of new requirement for existing agency records center. 
NARA will review the agency's waiver request and plan to bring the 
facility into compliance.
    (1) NARA will approve the request and plan within 30 calendar days 
if NARA judges the planned actions and time frames for bringing the 
facility into compliance are reasonable.
    (2) If NARA questions the feasibility or reasonableness of the plan, 
NARA will work with the agency to develop a revised plan that NARA can 
approve and the agency can implement. NARA may grant a short-term 
temporary waiver, not to exceed 180 calendar days, while the revised 
plan is under development.
    (c) Waiver of roof requirements for underground storage facilities. 
NARA will normally grant the waiver and notify the requesting agency 
within 10 work days if the agency has not also requested a waiver of a 
different requirement under Sec. 1228.236. If the agency has another 
waiver request pending for the same facility, NARA will respond to all 
of the waiver requests at the same time and within the longest time 
limits.

              Facility Approval and Inspection Requirements



Sec. 1228.240  How does an agency request authority to establish or relocate 

records storage facilities?

    (a) General policy. Agencies are responsible for ensuring that 
records in their legal custody are stored in appropriate space as 
outlined in this subpart. Under Sec. 1228.156(a), agencies are 
responsible for initiating action to remove records from space that does 
not meet these standards if deficiencies are not corrected within 6 
months after initial discovery of the deficiencies by NARA or the agency 
and to complete removal of the records within 18 months after initial 
discovery of the deficiencies.
    (1) Agency records centers. Agencies must obtain prior written 
approval from NARA before establishing or relocating an agency records 
center. Each separate agency records center must be specifically 
approved by NARA prior to the transfer of any records to that individual 
facility. If an agency records center has been approved for the storage 
of Federal records of one agency, any other agency that proposes to 
store its records in that facility must still obtain NARA approval to do 
so.
    (2) Commercial records storage facilities. An agency may contract 
for commercial records storage services. However, before any agency 
records are transferred to a commercial records storage facility, the 
transferring agency must ensure that the facility meets all of the 
requirements for an agency records storage facility set forth in this 
subpart and must submit the documentation required in paragraph (e) of 
this section.
    (b) Exclusions. For purposes of this section, the term ``agency 
records center'' excludes NARA-owned and operated records centers. For 
purposes of this section and Sec. 1228.244, the term ``agency records 
center'' also excludes agency records staging and/or holding areas with 
a capacity for containing less than 25,000 cubic feet of records. 
However, such records centers and areas, including records centers 
operated and maintained by NARA, must comply with the facility standards 
in Sec. Sec. 1228.228 through 1228.232.
    (c) Contents of requests for agency records centers. Requests for 
authority to establish or relocate an agency records center, or to use 
an agency records center operated by another agency, must be submitted 
in writing to the Director, Space and Security Management Division 
(NAS), National Archives and Records Administration, 8601 Adelphi Road, 
College Park, MD 20740-6001. The request must identify the specific 
facility and, for requests to establish or relocate the agency's own 
records center, document compliance with the standards in this subpart. 
Documentation requirements for Sec. 1228.230(s) are specified in Sec. 
1228.242.
    (d) Approval of requests for agency records centers. NARA will 
review the submitted documentation to ensure the facility demonstrates 
full compliance with the standards in this subpart. NARA reserves the 
right to visit the

[[Page 859]]

facility, if necessary, to make the determination of compliance. NARA 
will inform the agency of its decision within 45 calendar days after the 
request is received, and will provide the agency information on the 
areas of noncompliance if the request is denied. Requests will be denied 
only if NARA determines that the facility does not demonstrate full 
compliance with the standards in this subpart. Approvals will be valid 
for a period of 10 years, unless the facility is materially changed 
before then or an agency or NARA inspection finds that the facility does 
not meet the standards in this subpart. Material changes require 
submission of a new request for NARA approval.
    (e) Documentation requirements for storing Federal records in 
commercial records storage facilities. At least 45 calendar days before 
an agency first transfers records to a commercial records storage 
facility, the agency must submit documentation to NARA that the facility 
complies with the standards in this subpart. The documentation may take 
the form of a copy of the agency's contract that incorporates this 
subpart in its provisions or a statement from the agency records officer 
that certifies that the facility meets the standards in this subpart. An 
agency must provide the documentation for each separate commercial 
records storage facility where its records will be stored. Documentation 
must be sent to the Director, Space and Security Management Division 
(NAS), National Archives and Records Administration, 8601 Adelphi Road, 
College Park, MD 20740-6001. The agency must submit updated 
documentation to NARA every 10 years if it continues to store records in 
that commercial records storage facility.

[64 FR 67642, Dec. 2, 1999, as amended at 70 FR 50988, Aug. 29, 2005; 70 
FR 55730, Sept. 23, 2005]



Sec. 1228.242  What does an agency have to do to certify a fire-safety 

detection and suppression system?

    (a) Content of documentation. The agency must submit documentation 
to the Director, Space and Security Management Division (NAS), National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001, that describes the space being protected (e.g., the type and 
stacking height of the storage equipment used, or how the space is 
designed, controlled, and operated) and the characteristics of the fire-
safety detection and suppression system used. The documentation must 
demonstrate how that system meets the requirement in Sec. 1228.230(s) 
through:
    (1) A statement that the facility is using a NARA certified system 
as described in Appendix B to this part;
    (2) A report of the results of independent live fire testing 
(Factory Mutual, Underwriters Laboratories or Southwest Research 
Institute); or
    (3) A report under seal of a licensed fire protection engineer that:
    (i) Describes the design intent of the fire suppression system to 
limit the maximum anticipated loss in any single fire event involving a 
single ignition and no more than 8 fluid ounces of petroleum-type 
hydrocarbon accelerant (such as, for example, heptanes or gasoline) to a 
maximum of 300 cubic feet of Federal records destroyed by fire. The 
report need not predict a maximum single event loss at any specific 
number, but rather should describe the design intent of the fire 
suppression system. The report may make reasonable engineering and other 
assumptions such as that the fire department responds within XX minutes 
(the local fire department's average response time) and promptly 
commences suppression actions. In addition, any report prepared under 
this paragraph should assume that the accelerant is saturated in a 
cotton wick that is 3 inches in diameter and 6 inches long and sealed in 
a plastic bag and that the fire is started in an aisle at the face of a 
carton at floor level. Assumptions must be noted in the report;
    (ii) Details the characteristics of the system; and
    (iii) Describes the specific measures beyond the minimum features 
required by the applicable building code that have been incorporated to 
limit destruction of records. The report should make specific references 
to industry standards used in the design, such as those issued by the 
National Fire Protection Association, and any testing or

[[Page 860]]

modeling or other sources used in the design.
    (b) NARA action. (1) NARA will approve the fire-safety detection and 
suppression system within 10 work days if NARA has previously approved 
the system design for similarly configured space or if a report of 
independent testing of a new system design is furnished as 
documentation.
    (2) If, in NARA's judgment, the supporting documentation provided in 
accordance with paragraph (a)(3) of this section clearly demonstrates 
compliance with Sec. 1228.230(s), NARA will approve the fire-safety 
detection and suppression system within 30 calendar days.
    (3) If NARA questions whether supporting documentation demonstrates 
compliance with Sec. 1228.230(s), NARA will consult the appropriate 
industry standards body or other qualified expert before making a 
determination. Before any consultation, NARA may ask the agency for 
additional clarifying information. NARA will notify the requesting 
agency within 30 calendar days of receipt of the request that 
consultation is necessary and will provide a final determination within 
60 calendar days. If NARA does not approve the system, NARA will furnish 
a full explanation of the reasons for its decision.
    (4) NARA will maintain a list of approved alternative systems.

[64 FR 67642, Dec. 2, 1999, as amended at 70 FR 50988, Aug. 29, 2005]



Sec. 1228.244  When may NARA conduct an inspection of a records storage 

facility?

    (a) At the time an agency submits a request to establish an agency 
records center, pursuant to Sec. 1228.240, NARA may conduct an 
inspection of the proposed facility to ensure that the facility complies 
fully with the standards in this subpart. NARA may also conduct periodic 
inspections of agency records centers so long as such facility is used 
as an agency records center. NARA will inspect its own records center 
facilities on a periodic basis to ensure that they are in compliance 
with the requirements of this subpart.
    (b) Agencies must ensure, by contract or otherwise, that agency and 
NARA officials, or their delegates, have the right to inspect commercial 
records storage facilities to ensure that such facilities fully comply 
with the standards in this subpart. NARA may conduct periodic 
inspections of commercial records storage facilities so long as agencies 
use such facilities to store agency records. The using agency, not NARA, 
will be responsible for paying any fee or charge assessed by the 
commercial records storage facility for NARA's conducting an inspection.
    (c) NARA will contact the agency operating the records center or the 
agency holding a contract with a commercial records storage facility in 
advance to set a date for the inspection.



  Subpart L_Transfer of Records to the National Archives of the United 
                                 States

    Source: 45 FR 5705, Jan. 24, 1980, unless otherwise noted. 
Redesignated at 50 FR 15723, Apr. 19, 1985, and further redesignated at 
64 FR 67667, Dec. 2, 1999.



Sec. 1228.260  Authority.

    (a) Transfer of records. The Archivist of the United States is 
authorized by 44 U.S.C. 2107 to:
    (1) Accept for deposit with the National Archives of the United 
States the records of a Federal agency or of the Congress determined by 
the Archivist of the United States to have sufficient historical or 
other value to warrant their continued preservation by the U.S. 
Government; and
    (2) Direct and effect the transfer to the National Archives of the 
United States of Federal agency records that have been in existence for 
more than 30 years and that have been determined by the Archivist of the 
United States to have sufficient historical or other value to warrant 
their continued preservation by the U.S. Government.
    (b) Custody of records transferred. Under 44 U.S.C. 2108, the 
Archivist of the United States is responsible for the custody, use, and 
withdrawal of records transferred to him.
    (c) Transferred records subject to statutory or other restrictions. 
When records, the use of which is subject to statutory limitations and 
restrictions, are so transferred, permissive and restrictive

[[Page 861]]

statutory provisions concerning the examination and use of records 
applicable to the head of the transferring agency are applicable to the 
Archivist of the United States and the employees of the National 
Archives and Records Administration.

[54 FR 2111, Jan. 19, 1989. Redesignated at 55 FR 27433, July 2, 1990, 
as amended at 57 FR 22432, May 28, 1992]



Sec. 1228.262  Types of records to be transferred.

    (a) General. Records that have been determined by the Archivist of 
the United States to have sufficient historical or other value to 
warrant preservation; i.e., appraised by NARA and identified as 
permanent records, are normally transferred to the National Archives of 
the United States when:
    (1) They are 30 years old; or
    (2) At any age when:
    (i) The originating agency no longer needs to use the records for 
the purpose for which they were created or in its regular current 
business; or
    (ii) Agency needs will be satisfied by use of the records in NARA 
research rooms or by copies of the records; and restrictions on the use 
of records are acceptable to NARA and do not violate the Freedom of 
Information Act (5 U.S.C. 552). Records appraised as permanent that are 
not yet eligible for transfer because of agency needs or restrictions 
may be stored in a Federal records center pending transfer. (See subpart 
I of this part.)
    (b) Archival depositories. NARA reserves the right to determine and 
change the archival depository in which records transferred to the 
National Archives of the United States are stored. Such determinations 
are normally made as follows:
    (1) Presidential libraries. Records appropriate for preservation in 
a Presidential library because they can most effectively be used in 
conjunction with materials already in that library.
    (2) Regional Archives. (i) Records of field offices of Federal 
agencies, except for records of agency field offices located in the 
Washington, DC area;
    (ii) Records including both headquarters and field office records of 
regional agencies such as the Tennessee Valley Authority; and
    (iii) Other records determined by NARA to be of primarily regional 
or local interest.
    (3) National Archives Building and other Washington, DC area 
depositories. (i) Records of Washington, DC area field offices of 
Federal agencies and other records relating to the District of Columbia 
and the Washington, DC area, such as records of the National Capital 
Planning Commission;
    (ii) All other records not deposited in a Presidential library or 
Regional Archives.

[42 FR 57315, Nov. 2, 1977, as amended at 46 FR 60206, Dec. 9, 1981. 
Redesignated and amended at 50 FR 15723, 15725, Apr. 19, 1985. 
Redesignated at 55 FR 27433, July 2, 1990, as amended at 57 FR 22432, 
May 28, 1992]



Sec. 1228.264  Certification for retention of records in agency custody.

    (a) Permanent records shall be transferred to the National Archives 
of the United States when the records have been in existence for more 
than 30 years unless the head of the agency which has custody of the 
records certifies in writing to the Archivist that the records must be 
retained in agency custody for use in the conduct of the regular current 
business of the agency. Records that are scheduled in a NARA-approved 
records schedule to be transferred to the National Archives of the 
United States after a specified period of time are subject to the 
certification requirement only if the records are not transferred as 
scheduled.
    (b) In order to certify that records must be retained for the 
conduct of regular current business, an agency should consider the 
following factors:
    (1) Character of use (to be retained by an agency, records should be 
used for the normal routine business of the agency at the time of 
certification);
    (2) Frequency of use (to be retained by an agency, records should be 
used more than one time per month per file unit); and,
    (3) Preservation of the records (to be retained by an agency, 
permanently valuable records should be preserved in accordance with NARA 
guidelines).
    (c) The written certification of need of a series of 30-year-old 
records for current agency business must:

[[Page 862]]

    (1) Include a comprehensive description and location of records to 
be retained;
    (2) Cite the NARA approved authority for the disposition of the 
records if scheduled (SF 115 item number);
    (3) Describe the current business for which the records are 
required;
    (4) Estimate the length of time the records will be needed by the 
agency for current business (if no date is provided by the agency, 
approved certification requests will be effective for a maximum of five 
years);
    (5) Explain why the current needs of the agency cannot be met by the 
services NARA provides for records deposited with the National Archives 
of the United States; and,
    (6) If the records are being retained to enable the agency to 
provide routine public reference, cite the statute authorizing this 
agency activity.
    (d) NARA will not accept an agency certification that a specific 
body of records over 30 years old, regardless of physical form or 
characteristics, is being used for the ``conduct of the regular current 
business,'' if that agency is retaining such records primarily to:
    (1) Provide to persons outside the agency access which can be 
provided by NARA; or
    (2) Function as an agency archives, unless specifically authorized 
by statute or NARA.

[57 FR 22433, May 28, 1992]



Sec. 1228.266  Audiovisual records.

    The following types of audiovisual records appraised as permanent 
shall be transferred to the National Archives as soon as they become 
inactive or whenever the agency cannot provide proper care and handling 
of the records, including adequate storage conditions, to facilitate 
their preservation by the National Archives (see part 1232 of this 
chapter). In general the physical types described below constitute the 
minimum record elements for archival purposes that are required to 
provide for future preservation, duplication, and reference needs.
    (a) Motion pictures. (1) Agency-sponsored or produced motion picture 
films (e.g., public information films) whether for public or internal 
use:
    (i) Original negative or color original plus separate optical sound 
track;
    (ii) Intermediate master positive or duplicate negative plus optical 
track sound track; and,
    (iii) Sound projection print and video recording, if both exist.
    (2) Agency-acquired motion picture films: Two projection prints in 
good condition or one projection print and one videotape.
    (3) Unedited footage, outtakes and trims (the discards of film 
productions) that are properly arranged, labeled, and described and show 
unstaged, unrehearsed events of historical interest or historically 
significant phenomena:
    (i) Original negative or color original; and
    (ii) Matching print or videotape.
    (b) Still pictures. (1) For black-and- white photographs, an 
original negative and a captioned print although the captioning 
information can be maintained in another file such as a data base if the 
file number correlation is clear. If the original negative is nitrate, 
unstable acetate, or glass based, a duplicate negative on a polyester 
base is also needed.
    (2) For color photographs, the original color negative, color 
transparency, or color slide; a captioned print of the original color 
negative; and/or captioning information as described above if for an 
original color transparency or original color slide; and a duplicate 
negative, or slide, or transparency, if they exist.
    (3) For slide sets, the original and a reference set, and the 
related audio recording and script.
    (4) For other pictorial records such as posters, original art work, 
and filmstrips, the original and a reference copy.
    (c) Sound recordings. (1) Disc recordings:
    (i) For conventional disc recordings, the master tape and two disc 
pressings of each recording, typically a vinyl copy for playback at 
33\1/3\ revolutions per minute (rpm).
    (ii) For compact discs, the origination recording regardless of form 
and two compact discs.
    (2) For analog audio recordings on magnetic tape (open reel, 
cassette, or

[[Page 863]]

cartridge), the original tape, or the earliest available generation of 
the recording, and a subsequent generation copy for reference. Section 
1232.30(d) of this subchapter requires the use of open-reel analog 
magnetic tape for original audio recordings.
    (d) Video recordings. (1) For videotape, the original or earliest 
generation videotape and a copy for reference. Section 1232.30(c) of 
this subchapter requires the use of industrial-quality or professional 
videotapes for use as originals, although VHS copies can be transferred 
as reference copies.
    (2) For video discs, the premaster videotape used to manufacture the 
video disc and two copies of the disc. Video discs that depend on 
interactive software and nonstandard equipment may not be acceptable for 
transfer.
    (e) Finding aids and production documentation. The following records 
shall be transferred to the National Archives with the audiovisual 
records to which they pertain.
    (1) Existing finding aids such as data sheets, shot lists, 
continuities, review sheets, catalogs, indexes, list of captions, and 
other documentation that are helpful or necessary for the proper 
identification, or retrieval of audiovisual records. Agencies should 
contact the appropriate Special Media Archives Services Division unit, 
to determine the type of hardware and software that is currently 
acceptable for transfer to the National Archives as an agency electronic 
finding aid that will accompany its audiovisual records. In general, 
however, agencies must transfer two copies of the electronic finding 
aid, one in its native format with its field structure documented, and a 
second copy in a contemporary format available at the time of transfer 
that NARA will be able to support and import to its database.
    (2) Production case files or similar files that include copies of 
production contracts, scripts, transcripts, and appropriate 
documentation bearing on the origin, acquisition, release, and ownership 
of the production.

[61 FR 32336, June 24, 1996, as amended at 66 FR 27027, May 16, 2001]



Sec. 1228.268  Cartographic and architectural records.

    The following classes of cartographic and architectural records 
appraised as permanent should be transferred to the National Archives as 
soon as they become inactive or whenever the agency cannot provide the 
proper care and handling of the materials to guarantee their 
preservation.
    (a) Maps and charts. (1) Manuscript maps; printed and processed maps 
on which manuscript changes, additions, or annotations have been made 
for record purposes or which bear manuscript signatures to indicate 
official approval; and single printed or processed maps that have been 
attached to or interfiled with other documents of a record character or 
in any way made an integral part of a record.
    (2) Master sets of printed or processed maps in the custody of the 
agency by which they were issued. Such master sets should be kept 
segregated from the stock of maps held for distribution and from maps 
received from other agencies. A master set should include one copy of 
each edition of a printed or processed map issued.
    (3) Computer-related and computer-plotted maps that cannot be 
reproduced by the National Archives because of destruction of the 
magnetic tapes or other stored data or because of the unavailability of 
ADP equipment.
    (4) Index maps, card indexes, lists, catalogs, or other finding aids 
that may be helpful in using the maps transferred.
    (5) Records related to preparing, compiling, editing, or printing 
maps, such as manuscript field notebooks of surveys, triangulation and 
other geodetic computations, and project folders containing 
specifications to be followed and appraisals of source materials to be 
used.
    (b) Aerial photography and remote sensing imagery. (1) Vertical and 
oblique negative aerial film, conventional aircraft.
    (2) Annotated copy negatives, internegatives, rectified negatives, 
and glass plate negatives from vertical and oblique aerial film, 
conventional aircraft.
    (3) Annotated prints from aerial film, conventional aircraft.

[[Page 864]]

    (4) Infrared, ultraviolet, multispectral (multiband), video, imagery 
radar, and related tapes, converted to a film base.
    (5) Indexes and other finding aids in the form of photo mosaics, 
flight line indexes, coded grids, and coordinate grids.
    (c) Architectural and related engineering drawings. (1) Design 
drawings, preliminary and presentation drawings, and models which 
document the evolution of the design of a building or structure.
    (2) Master sets of drawings which document the condition of a 
building or structure in terms of its initial construction and 
subsequent alterations. This category includes final working drawings, 
``as-built'' drawings, shop drawings, and repair and alteration 
drawings.
    (3) Drawings of repetitive or standard details of one or more 
buildings or structures.
    (4) ``Measured'' drawings of existing buildings and original or 
photocopies of drawings reviewed for approval.
    (5) Related finding aids and specifications to be followed.

[42 FR 57315, Nov. 2, 1977. Redesignated at 50 FR 15723, Apr. 19, 1985, 
and 55 FR 27433, July 2, 1990, as amended at 57 FR 22433, May 28, 1992]



Sec. 1228.270  Electronic records.

    (a) Timing of transfers. Each agency is responsible for the 
integrity of the permanent records it transfers on physical media to the 
National Archives of the United States. For records transferred by a 
media-less method, NARA works with the agency to ensure integrity of the 
records during the transfer process. To ensure that permanent electronic 
records are preserved, each Federal agency must transfer electronic 
records to NARA promptly in accordance with the agency's records 
disposition schedule. Furthermore, if the agency cannot provide proper 
care and handling of the media (see part 1234 of this chapter), or if 
the media are becoming obsolete and the agency cannot migrate the 
records to newer media, the agency must contact NARA to arrange for 
timely transfer of permanent electronic records, even when sooner than 
provided in the records schedule.
    (b) Temporary retention of copy. Each agency must retain a second 
copy of any permanent electronic records that it transfers to the 
National Archives of the United States until it receives official 
notification from NARA that the transfer was successful and that NARA 
has assumed responsibility for continuing preservation of the records.
    (c) Transfer media. This paragraph covers the transfer of permanent 
records to the National Archives; it does not apply to the use or 
storage of records in agency custody. See 36 CFR 1234.30 for the 
requirements governing the selection of electronic records storage media 
for current agency use. The agency must use only media that is sound and 
free from defects for transfers to the National Archives of the United 
States; the agency must choose reasonable steps to meet this 
requirement. The approved media and media-less transfer forms are open 
reel magnetic tape, magnetic tape cartridge; Compact-Disk, Read Only 
Memory (CD-ROM); and File Transfer Protocol (FTP) as described in 
paragraphs (c) (1), (2) and (3) of this section.
    (1) Magnetic tape. Agencies may transfer electronic records to the 
National Archives on magnetic tape as follows:
    (i) Open-reel magnetic tape must be on \1/2\ inch 9-track tape reels 
recorded at 1600 or 6250 bpi that meet ANSI X3.39-1986, American 
National Standard: Recorded Magnetic Tape for Information Interchange 
(1600 CPI, PE) or ANSI X3.54-1986, American National Standard: Recorded 
Magnetic Tape for Information Interchange (6250 CPI, Group Coded 
Recording), respectively.
    (ii) Tape cartridges may be 18-track 3480-class cartridges. The 
3480-class cartridge must be recorded at 37,871 bpi that meet ANSI 
X3.180-1990, American National Standard: Magnetic Tape and Cartridge for 
Information Interchange--18-Track, Parallel, \1/2\ inch (12.65 mm), 
37871 cpi (1491 cpmm), Group-Coded--Requirements for Recording. The data 
must be blocked at no more than 32,760 bytes per block.
    (iii) Tape cartridges may be DLTtape IV cartridges that must be 
recorded in an uncompressed format. Agencies interested in transferring 
scheduled electronic records using a Tape Archive

[[Page 865]]

(TAR) utility should contact NARA's Electronic and Special Media Records 
Services Division (NWME), 8601 Adelphi Rd., College Park, MD 20740-6001 
or by email to [email protected] to initiate transfer discussions. The data 
must be blocked at no more than 32,760 bytes per block and must conform 
to the standards cited in the table as follows:

------------------------------------------------------------------------
                                          . . . then, the standard below
If you are copying the records on . . .              applies.
------------------------------------------------------------------------
DLTtape IV With a DLT 4000 drive.......  ISO/IEC 15307:1997, First
                                          edition, December 1, 1997,
                                          Information technology--Data
                                          interchange on 12,7 mm 128-
                                          track magnetic tape
                                          cartridges--DLT 4 format (20
                                          GB native, 40 GB compressed,
                                          1.5 MB/sec).
DLTtape IV with a DLT 7000 drive.......  ISO/IEC 15896:1999, First
                                          edition, December 15, 1999,
                                          Information technology--Data
                                          interchange on 12,7 mm 208-
                                          track magnetic tape
                                          cartridges--DLT 5 format (35
                                          GB native, 70 GB compressed,
                                          5.0 MB/sec).
DLTtape IV with a DLT 8000 drive.......  ISO/IEC 16382:2000, First
                                          edition, May 15, 2000,
                                          Information technology--Data
                                          interchange on 12,7 mm 208-
                                          track magnetic tape
                                          cartridges--DLT 6 format (40
                                          GB native, 80 GB compressed,
                                          6.0 MB/sec).
------------------------------------------------------------------------

    (2) Compact-Disk, Read Only Memory (CD-ROM). Agencies may use CD-
ROMs to transfer electronic records scheduled to be preserved in the 
National Archives. The files on such a CD-ROM must comply with the 
format and documentation requirements specified in paragraphs (d) and 
(e) of this section.
    (i) CD-ROMs used for this purpose must conform to ANSI/NISO/ISO 
9660-1990, American National Standard for Volume and File Structure of 
CD-ROM for Information Exchange.
    (ii) Permanent electronic records must be stored in discrete files. 
The CD-ROMs transferred may contain other files, such as software or 
temporary records, but all permanent records must be in files that 
contain only permanent records. Agencies must indicate at the time of 
transfer if a CD-ROM contains temporary records and, if so, where those 
records are located on the CD-ROM. The agency must also specify whether 
NARA should return the CD-ROM to the agency or dispose of it after 
copying the permanent records to an archival medium.
    (iii) If permanent electronic records that an agency disseminates on 
CD-ROM exist on other media, such as magnetic tape, the agency and NARA 
will mutually agree on the most appropriate medium for transfer of the 
records to the National Archives of the United States.
    (3) File Transfer Protocol. Agencies may use File Transfer Protocol 
(FTP) to transfer electronic records scheduled for preservation at the 
National Archives of the United States. The files transferred via FTP 
must comply with the format and documentation requirements specified in 
paragraphs (d) and (e) of this section.
    (i) FTP file structure may use the 64-character Joliet extension 
naming convention only when letters, numbers, dashes (-), and 
underscores (--) are used in the file and/or directory names, with a 
slash (\) used to indicate directory structures. Otherwise, FTP file 
structure must conform to an 8.3 file naming convention and file 
directory structure as cited in ANSI/NISO/ISO 9660-1990, American 
National Standard for Volume and File Structure of CD-ROM for 
Information Exchange.
    (ii) Permanent electronic records must be stored in discrete files, 
separate from temporary files. All permanent records must be transferred 
in files that contain only permanent records.
    (iii) When permanent electronic records may be disseminated through 
other types of mechanisms (e.g., magnetic tape, CD-ROM), the agency and 
NARA will mutually agree on the most appropriate medium for transfer of 
the records to the National Archives and will select the appropriate 
files for FTP transfer. Several important factors may limit the use of 
FTP as a transfer method, including the number of records, record file 
size, and available bandwidth. NARA will retain approval for 
appropriateness of FTP as the selected mechanism for each scheduled 
records transfer based on certain criteria (file size, FTP transfer 
rate, record classification, etc.). Agencies interested in sending 
electronic records scheduled for transfer to NARA through FTP must 
contact NARA's Electronic and Special Media Records Services Division 
(NWME), 8601 Adelphi Rd., College Park, MD 20740-

[[Page 866]]

6001 or by email to [email protected] to initiate the transfer discussions.
    (iv) Each permanent electronic records transfer must be preceded 
with a signed Agreement to Transfer Records to the National Archives of 
the United States (Standard Form 258) sent to the Office of Records 
Services--Washington, DC (NWME), 8601 Adelphi Road, College Park, MD 
20740-6001.
    (d) Formats. The agency may not transfer to the National Archives 
electronic records that are in a format dependent on specific hardware 
and/or software. The records shall be written in ASCII or EBCDIC with 
all control characters and other non-data characters removed (except as 
specified in paragraphs (d) (1), (2), and (3) of this section). The 
records must not be compressed unless NARA has approved the transfer in 
the compressed form in advance. In such cases, NARA may require the 
agency to provide the software to decompress the records.
    (1) Data files and databases. Data files and databases shall be 
transferred to the National Archives as flat files or as rectangular 
tables; i.e., as two-dimensional arrays, lists, or tables. All 
``records'' (within the context of the computer program, as opposed to a 
Federal record) or ``tuples,'' i.e., ordered collections of data items, 
within a file or table should have the same logical format. Each data 
element within a record should contain only one data value. A record 
should not contain nested repeating groups of data items. The file 
should not contain extraneous control characters, except record length 
indicators for variable length records, or marks delimiting a data 
element, field, record, or file. If records or data elements in 
different files need to be linked or combined, then each record must 
contain one or more data elements that constitute primary and/or foreign 
keys enabling valid linkages between the related records in separate 
files.
    (2) Textual documents. Electronic textual documents shall be 
transferred as plain ASCII files; however, such files may contain 
Standard Generalized Markup Language (SGML) tags.
    (3) Digital spatial data files. Digital spatial data files shall be 
transferred to NARA in accordance with the Spatial Data Transfer 
Standard (SDTS) as defined in the Federal Information Processing 
Standard 173-1 (June 10, 1994) which is incorporated by reference. 
Digital geospatial data files created on systems procured prior to 
February 1994 which do not have a SDTS capability are exempt from this 
requirement. Agencies should consult with NARA for guidance on 
transferring noncompliant digital geospatial data files created between 
February 1, 1994 and the effective date of this paragraph. The standard 
cited in this paragraph is available from the National Technical 
Information Service, Department of Commerce, Springfield, VA 22161. When 
ordering, cite FIPSPUB173-1, Spacial Data Transfer Standard (SDTS). This 
standard is also available for inspection at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://
www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html. This incorporation by reference was approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. These materials are incorporated by reference as they 
exist on the date of approval and a notice of any change in these 
materials will be published in the Federal Register.
    (4) Other categories of electronic records. Agencies should identify 
any foreseeable problems in the possible transfer of potentially 
permanent electronic records in accordance with paragraphs (d) (1), (2), 
and (3) of this section at the time the records are scheduled. Special 
transfer requirements agreed upon by NARA and the agency shall be 
included in the disposition instructions.
    (5) NARA consultation. The agency shall consult with NARA for 
guidance on the transfer of types of electronic records other than those 
prescribed in paragraphs (d) (1), (2), and (3) of this section.
    (e) Documentation. Documentation adequate to identify, service and 
interpret electronic records that have been designated for preservation 
by NARA shall be transferred with the records.

[[Page 867]]

This documentation shall include completed NARA Form 14097, Technical 
Description for Transfer of Electronic Records, and a completed NARA 
Form 14028, Information System Description Form, or their equivalents. 
Where possible, agencies should submit required documentation in an 
electronic form that conforms to the provisions of this section.
    (1) Data files. Documentation for data files and data bases must 
include record layouts, data element definitions, and code translation 
tables (codebooks) for coded data. Data element definitions, codes used 
to represent data values and interpretations of these codes must match 
the actual format and codes as transferred.
    (2) Digital spatial data files. Digital spatial data files shall 
include the documentation specified in paragraph (e)(1) of this section. 
In addition, documentation for digital spatial data files may include 
metadata that conforms to the Federal Geographic Data Committee's 
Content Standards for Digital Geospatial Metadata, as specified in 
Executive Order 12906 of April 11, 1994 (3 CFR, 1995 Comp., p. 882).
    (3) Documents containing SGML tags. Documentation for electronic 
files containing textual documents with SGML tags shall include a table 
for interpreting the SGML tags, when appropriate.
    (f) Incorporation by reference. The following publications cited in 
this section are available from the American National Standards 
Institute (ANSI), 25 West 43rd Street, 4th floor, New York NY 10036 or 
electronically at http://www.ansi.org/. All these standards are also 
available for inspection at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html. 
This incorporation by reference was approved by the Director of the 
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. 
These materials are incorporated by reference as they exist on the date 
of approval and a notice of any change in these materials will be 
published in the Federal Register.
    ANSI X3.39-1986, American National Standard: Recorded Magnetic Tape 
for Information Interchange (1600 CPI, PE).
    ANSI X3.54-1986, American National Standard: Recorded Magnetic Tape 
for Information Interchange (6250 CPI, Group Coded Recording).
    ANSI X3.180-1990, American National Standard: Magnetic Tape and 
Cartridge for Information Interchange--18-Track, Parallel, \1/2\ inch 
(12.65 mm), 37871 cpi (1491 cpmm), Group-Coded--Requirements for 
Recording.
    ANSI/NISO/ISO 9660-1990, American National Standard for Volume and 
File Structure of CD-ROM for Information Exchange.
    ISO/IEC 15307:1997, First edition, December 1, 1997, Information 
technology--Data interchange on 12.7 mm 128-track magnetic tape 
cartridges--DLT 4 format.
    ISO/IEC 15896:1999, First edition, December 15, 1999, Information 
technology--Data interchange on 12.7 mm 208-track magnetic tape 
cartridges--DLT 5 format.
    ISO/IEC 16382:2000, First edition, May 15, 2000, Information 
technology--Data interchange on 12.7 mm 208-track magnetic tape 
cartridges--DLT 6 format.

[62 FR 54584, Oct. 21, 1997, as amended at 66 FR 27027, May 16, 2001; 67 
FR 79518, Dec. 30, 2002]



Sec. 1228.272  Transfer of records to the National Archives of the United 

States.

    (a) Policy. (1) Federal records will be transferred to NARA's legal 
custody into the National Archives of the United States only if they are 
listed as permanent on an SF 115, Request for Records Disposition 
Authority, approved by NARA since May 14, 1973, or if they are 
accretions (continuations of series already accessioned) to holdings of 
the National Archives. Transfers are initiated by submission of an SF 
258, Agreement to Transfer Records to the National Archives of the 
United States.
    (2) Each SF 258 must relate to a specific records series, as 
identified on the SF 115, Request for Records Disposition Authority, in 
accumulations of one or more consecutive years.
    (b) Initiation of request to transfer. (1) NARA will provide the SF 
258 for

[[Page 868]]

records scheduled for immediate transfer on an SF 115 approved after 
September 30, 1987. NARA will send the SF 258 to the agency with the 
approved SF 115. The agency will sign and return the SF 258 to the 
address indicated on the form.
    (2) Future transfers of series in agency space. Sixty days before 
the scheduled date of transfer to the National Archives of the United 
States, the transferring agency must submit an SF 258 to the Office of 
Records Services--Washington, DC (NWMD), 8601 Adelphi Road, College 
Park, MD 20740-6001, or to the appropriate Regional Records Services 
facility if so provided on the SF 115. NARA will determine whether 
specified restrictions are acceptable and whether adequate space and 
equipment are available.
    (3) Future transfers of series in Federal Records Centers. NARA will 
initiate the SF 258 and send it to the agency 90 days before the 
scheduled transfer date. The agency shall approve or disapprove the SF 
258 and send it to the address indicated on the form 60 days before the 
scheduled transfer date.
    (c) Physical and legal transfer. The Office of Records Services--
Washington, DC (NWMD), will provide shipping or delivery instructions to 
the agency or Federal Records Center. Legal custody of the records 
passes to NARA when the NARA official signs the SF 258 acknowledging 
receipt of the records.

[52 FR 34134, Sept. 9, 1987. Redesignated at 55 FR 27433, July 2, 1990, 
as amended at 57 FR 22432, 22434, May 28, 1992; 63 FR 35829, July 1, 
1998; 64 FR 67668, Dec. 2, 1999; 66 FR 27027, May 16, 2001]



Sec. 1228.274  Restrictions on transferred records.

    (a) General. Before records are transferred to the National 
Archives, the head of an agency may state in writing restrictions that 
appear to him or her to be necessary or desirable in the public interest 
on the use or examination of records. The head of an agency must, 
however, justify and cite the statute or Freedom of Information Act 
exemption (5 U.S.C. 552(b)) that authorizes placing restrictions on the 
use or examination of records being considered for transfer. If the 
Archivist agrees, restrictions will be placed on the records.
    (b) Records less than 30 years old. Unless required by law, the 
Archivist will not remove or relax restrictions placed upon records less 
than 30 years old without the concurrence in writing of the head of the 
agency from which the material was transferred or of his or her 
successor, if any. If the transferring agency has been terminated and 
there is no successor in function, the Achivist is authorized to relax, 
remove or impose restrictions in the public interest.
    (c) Records 30 or more years old. After the records have been in 
existence for 30 years or more, statutory or other restrictions referred 
to in this section shall expire unless the Archivist determines, after 
consulting with the head of the transferring agency, that the 
restrictions shall remain in force for a longer period. Such 
restrictions may be extended by the Archivist beyond 30 years only for 
reasons consistent with standards established in relevant statutory law, 
including the Freedom of Information Act (5 U.S.C. 552). Restrictions 
are systematically extended beyond 30 years where agencies advise NARA 
on the SF 258 that a particular category of records requires such 
protection. NARA has identified specific categories of records, 
including classified information and information that would invade the 
privacy of an individual, which may require extended protection beyond 
30 years. See 36 CFR part 1256.

[57 FR 22434, May 28, 1992]



Sec. 1228.276  Records subject to the Privacy Act of 1974.

    For records constituting systems of records subject to the Privacy 
Act of 1974 (5 U.S.C. 552a), the agency shall attach to the SF 258 the 
most recent agency Privacy Act system notice covering the records.

[57 FR 22434, May 28, 1992]



Sec. 1228.278  Release of equipment.

    Equipment received with the transfer of records to the National 
Archives

[[Page 869]]

will, when emptied, normally be retained by NARA or disposed of in 
accordance with applicable excess property regulations, unless the 
transferring agency requests its return.

[42 FR 57316, Nov. 2, 1977. Redesignated at 50 FR 15723, Apr. 19, 1985, 
and 55 FR 27433, July 2, 1990]



Sec. 1228.280  Use of records transferred to the National Archives.

    (a) In accordance with 44 U.S.C. 2108, restrictions lawfully imposed 
on the use of transferred records will be observed and enforced by NARA 
to the extent to which they do not violate 5 U.S.C. 552. The regulations 
in subchapters B and C of this title, insofar as they relate to the use 
of records in the National Archives of the United States apply to 
official use of the records by Federal agencies as well as to the 
public.
    (b) In instances of demonstrated need, and subject to any 
restrictions on their use, records deposited in the National Archives 
may be borrowed for official use outside the building in which they are 
housed by Federal agencies and the Congress, subject to the following 
conditions:
    (1) Documents of high intrinsic value shall not be removed from the 
building in which they are housed except with the written approval of 
the Archivist;
    (2) Records will not be loaned to enable agencies to answer routine 
reference inquiries from other agencies or the public;
    (3) Records in fragile condition, or otherwise deteriorated to an 
extent that further handling will endanger them, will not be loaned;
    (4) Each official who borrows records shall provide a receipt for 
them at the time they are delivered and shall be responsible for their 
prompt return upon the expiration of the loan period specified by NARA; 
and
    (5) Each official who borrows computer magnetic tapes shall assume 
responsibility for proper care and handling of the tapes.

[42 FR 57316, Nov. 2, 1977. Redesignated at 50 FR 15723, Apr. 19, 1985, 
and amended at 50 FR 26935, June 28, 1985. Redesignated at 55 FR 27433, 
July 2, 1990, as amended at 57 FR 22434, May 28, 1992]



Sec. 1228.282  Disposal clearances.

    No records of a Federal agency still in existence will be disposed 
of by NARA except with the written concurrence of the agency concerned 
or as authorized on Standard Form 258, Agreement to Transfer Records to 
the National Archives of the United States.

[66 FR 27027, May 16, 2001]

[[Page 870]]



 Sec. Appendix A to Part 1228--Minimum Security Standards for Level III 
                           Federal Facilities

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[64 FR 67648, Dec. 2, 1999]



    Sec. Appendix B to Part 1228--Alternative Certified Fire-safety 
                   Detection and Suppression System(s)

    1. General. This Appendix B contains information on the Fire-safety 
Detection and Suppression System(s) tested by NARA through independent 
live fire testing that are certified to meet the requirement in Sec. 
1228.230(s) for storage of Federal Records. Use of a system specified in 
this appendix is optional. A facility may choose to have an alternate 
fire-safety detection and suppression system approved under Sec. 
1228.242.
    2. Specifications for NARA facilities using 15 foot high records 
storage. NARA fire-safety systems that incorporate all components 
specified in paragraphs 2.a. through n. of this appendix have been 
tested and certified to meet the requirements in Sec. 1228.230(s) for 
an acceptable fire-safety detection and suppression system for storage 
of Federal records.
    a. The records storage height must not exceed the nominal 15 feet 
(3 inches) records storage height.
    b. All records storage and adjoining areas must be protected by 
automatic wet-pipe sprinklers. Automatic sprinklers are specified herein 
because they provide the most effective fire protection for high piled 
storage of paper records on open type shelving.
    c. The sprinkler system must be rated at no higher than 285 degrees 
Fahrenheit utilizing quick response (QR) fire sprinkler heads and 
designed by a licensed fire protection engineer to provide the specified 
density for the most remote 1,500 square feet of floor area at the most 
remote sprinkler head in accordance with NFPA 13 (1996), Standard for 
the Installation of Sprinkler Systems. For facilities with roofs rated 
at 15 minutes or greater, provide \1/2\ QR sprinklers rated 
at no higher than 285 degrees Fahrenheit designed to deliver a density 
of 0.30 gpm per square foot. For unrated roofs, provide 0.64 
QR ``large drop'' sprinklers rated at no higher than 285 degrees 
Fahrenheit. For facilities using 7 or 8 shelf track files, use QR 
sprinklers rated at no higher than 285 degrees Fahrenheit. For new 
construction and replacement sprinklers, NARA recommends that the 
sprinklers be rated at 165 degrees

[[Page 881]]

Fahrenheit. Installation of the sprinkler system must be in accordance 
with NFPA 13 (1996), Standard for the Installation of Sprinkler Systems.
    d. Maximum spacing of the sprinkler heads must be on a 10-foot grid 
and the positioning of the heads must provide complete, unobstructed 
coverage, with a clearance of not less than 18 inches from the top of 
the highest stored materials.
    e. The sprinkler system must be equipped with a water-flow alarm 
connected to an audible alarm within the facility and to a continuously 
staffed fire department or an Underwriters Laboratory approved central 
monitoring station (see UL 827, Central-Station Alarm Services (April 
23, 1999)) with responsibility for immediate response.
    f. A manual fire alarm system must be provided with a Underwriters 
Laboratory approved (grade A) central monitoring station service or 
other automatic means of notifying the municipal fire department. A 
manual alarm pull station must be located adjacent to each exit. 
Supplemental manual alarm stations are permitted within the records 
storage areas.
    g. All water cutoff valves in the sprinkler system must be equipped 
with automatic closure alarm (tamper alarm) connected to a continuously 
staffed station, with responsibility for immediate response. If the 
sprinkler water cutoff valve is located in an area used by the public, 
in addition to the tamper alarm, the valves must be provided with 
frangible (easily broken) padlocks.
    h. A dependable water supply free of interruption must be provided 
including a continuous site fire loop connected to the water main and 
sized to support the facility with only one portion of the fire loop 
operational. This normally requires a backup supply system having 
sufficient pressure and capacity to meet both fire hose and sprinkler 
requirements for 2-hours. A fire pump connected to an emergency power 
source must be provided in accordance with NFPA 20 (1996), Standard for 
the Installation of Centrifugal Fire Pumps, when adequate water pressure 
is not assured. In the event that public water mains are not able to 
supply adequate volumes of water to the site, on-site water storage must 
be provided.
    i. Interior fire hose stations equipped with a 1\1/2\ inch diameter 
hose may be provided in the records storage areas if required by the 
local fire department, enabling any point in the records storage area to 
be reached by a 50-foot hose stream from a 100-foot hose lay. If 
provided, these cabinets must be marked ``For Fire Department Use 
Only.''
    j. Where fire hose cabinets are not required, fire department hose 
outlets must be provided at each floor landing in the building core or 
stair shaft. Hose outlets must have an easily removable adapter and cap. 
Threads and valves must be compatible with the local fire department's 
equipment. Spacing must be so that any point in the record storage area 
can be reached with a 50-foot hose stream from a 100-foot hose lay.
    k. In addition to the designed sprinkler flow demand, 500 gpm must 
be provided for hose stream demand. The hose stream demand must be 
calculated into the system at the base of the main sprinkler riser.
    l. Fire hydrants must be located within 250 feet of each exterior 
entrance or other access to the records storage facility that could be 
used by firefighters. Each required hydrant must provide a minimum flow 
capacity of 500 gpm at 20 psi. All hydrants must be at least 50 feet 
away from the building walls and adjacent to a roadway usable by fire 
apparatus. Fire hydrants must have at least two, 2\1/2\ inch hose 
outlets and a pumper connection. All threads must be compatible with 
local standards.
    m. Portable water-type fire extinguishers (2\1/2\ gallon stored 
pressure type) must be provided at each fire alarm striking station. The 
minimum number and locations of fire extinguishers must be as required 
by NFPA 10 (1994), Standard for Portable Fire Extinguishers.
    n. Single level catwalks without automatic sprinklers installed 
underneath may be provided in the service aisles if the edges of all 
files in the front boxes above the catwalks are stored perpendicular to 
the aisle (to minimize files exfoliation in a fire). Where provided, the 
walking surface of the catwalks must be of expanded metal at least .09-
inch thickness with a 2-inch mesh length. The surface opening ratio must 
be equal or greater than 0.75. The sprinkler water demand for protection 
over bays with catwalks where records above the catwalks are not 
perpendicular to the aisles must be calculated hydraulically to give .30 
gpm per square foot for the most remote 2,000 square feet.

[64 FR 67660, Dec. 2, 1999, as amended at 73 FR 43099, July 24, 2008]



PART 1230_MICROGRAPHIC RECORDS MANAGEMENT--Table of Contents




                            Subpart A_General

Sec.
1230.1 What does this part cover?
1230.2 What is the authority for this part?
1230.3 Publications incorporated by reference.
1230.4 Definitions.

                     Subpart B_Program Requirements

1230.7 What must agencies do to manage microform records?

[[Page 882]]

                    Subpart C_Microfilming Standards

1230.10 Do agencies need to request NARA approval for the disposition of 
          all microform and source records?
1230.12 What are the steps to be followed in filming records?
1230.14 What are the filming requirements for permanent and unscheduled 
          records?
1230.16 What are the film and image requirements for temporary records, 
          duplicates, and user copies?

  Subpart D_Storage, Use and Disposition Standards of Microform Records

1230.20 How should microform records be stored?
1230.22 What are NARA inspection requirements for permanent and 
          unscheduled microform records?
1230.24 What are NARA inspection requirements for temporary microform 
          records?
1230.26 What are the use restrictions for permanent and unscheduled 
          microform records?
1230.28 What must agencies do to send permanent microform records to a 
          records storage facility?
1230.30 How do agencies transfer permanent microform records to the 
          legal custody of the National Archives?

               Subpart E_Centralized Micrographic Services

1230.50 What micrographic services are available from NARA?

    Authority: 44 U.S.C. 2907, 3302 and 3312.

    Source: 67 FR 31693, May 9, 2002; 67 FR 39473, June 7, 2002, unless 
otherwise noted.



                            Subpart A_General



Sec. 1230.1  What does this part cover?

    This part covers the standards and procedures for using micrographic 
technology to create, use, store, inspect, retrieve, preserve, and 
dispose of Federal records.



Sec. 1230.2  What is the authority for this part?

    44 U.S.C. chapters 29 and 33, authorize the Archivist of the United 
States to:
    (a) Establish standards for copying records by photographic and 
microphotographic means;
    (b) Establish standards for the creation, storage, use, and 
disposition of microform records in Federal agencies; and
    (c) Provide centralized microfilming services for Federal agencies.



Sec. 1230.3  Publications incorporated by reference.

    (a) General. The following publications are hereby incorporated by 
reference into Part 1230. They are available from the issuing 
organizations at the addresses listed in this section. They may also be 
examined at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html. This incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. These materials are 
incorporated as they exist on the date of approval, and a notice of any 
change in these materials will be published in the Federal Register.
    (b) American National Standards Institute (ANSI) and International 
(ISO) standards. ANSI standards cited in this part are available from 
the American National Standards Institute, 25 West 43rd St., 4th Floor, 
New York, NY 10036. The standards can be ordered on line at http://
webstore.ansi.org/ansidocstore/default.asp.

ISO 10602:1995(E), February 1, 1995, Second edition, Photography--
Processed silver-gelatin type black-and-white film--Specifications for 
stability.
ANSI/PIMA IT9.2-1998, April 15, 1998, American National Standard for 
Imaging Materials--Photographic Processed Films, Plates, and Papers--
Filing Enclosures and Storage Containers.
ANSI/ISO 5.2-1991, ANSI/NAPM IT2.19-1994, February 20, 1995, American 
National Standard for Photography--Density Measurements--Part 2: 
Geometric Conditions for Transmission Density.
ANSI/ISO 5-3-1995, ANSI/NAPM IT2.18-1996, March 8, 1996, American 
National Standard for Photography--Density Measurements--Part 3: 
Spectral Conditions.
ISO 18911: 2000(E), First edition, November 1, 2000, Imaging materials--
Processed safety photographic films--Storage practices.

    (c) Association of Information and Image Management (AIIM) 
Standards. You may obtain the following standards from the Association 
of Information and Image Management, 1100

[[Page 883]]

Wayne Avenue, suite 1100, Silver Spring, MD 20910. The standards can be 
ordered on line at http://www.aiim.org/.

ANSI/AIIM MS1-1996, August 8, 1996, Standard Recommended Practice for 
Alphanumeric Computer-Output Microforms--Operational Practices for 
Inspection and Quality Control.
ANSI/AIIM MS5-1992, December 21, 1992, Standard for Information and 
Image Management-Microfiche.
ANSI/AIIM MS14-1996, August 8, 1996, Standard Recommended Practice--
Specifications for 16mm and 35mm Roll Microfilm.
ANSI/AIIM MS19-1993, August 18, 1993, Standard Recommended Practice--
Identification of Microforms.
ANSI/AIIM MS23-1998, June 2, 1998, Standard Recommended Practice--
Production, Inspection, and Quality Assurance of First-Generation, 
Silver Microforms of Documents.
ANSI/AIIM MS32-1996, February 16, 1996, Standard Recommended Practice--
Microrecording of Engineering Source Documents on 35mm Microfilm.
ANSI/AIIM MS41-1996, July 16, 1996, Dimensions of Unitized Microfilm 
Carriers and Apertures (Aperture, Camera, Copy and Image Cards).
ANSI/AIIM MS43-1998, June 2, 1998, Standard Recommended Practice--
Operational Procedures--Inspection and Quality Control of Duplicate 
Microforms of Documents and From COM.
ANSI/AIIM MS45-1990, January 22, 1990, Recommended Practice for 
Inspection of Stored Silver-Gelatin Microforms for Evidence of 
Deterioration.
ANSI/ISO 3334-1991, ANSI/AIIM MS51-1991, May 10, 1991, Micrographics--
ISO Resolution Test Chart No. 2--Description and Use.



Sec. 1230.4  Definitions.

    The following definitions apply to this part:
    Archival microfilm. A photographic film that meets the standards 
described in Sec. 1230.14 and that is suitable for the preservation of 
permanent records when stored in accordance with Sec. 1230.20(a). Such 
film must conform to film designated as LE 500 in ANSI/NAPM IT9.1-1996.
    Background density. The opacity of the area of the microform not 
containing information.
    Computer-assisted retrieval (CAR) system. A records storage and 
retrieval system, normally microfilm-based, that uses a computer for 
indexing, automatic markings such as blips or bar codes for 
identification, and automatic devices for reading those markings and, in 
some applications, for transporting the film for viewing.
    Computer Output Microfilm (COM). Microfilm containing data converted 
and recorded from a computer.
    Facility. An area used exclusively to make or copy microforms.
    Microfilm. (1)Raw (unexposed and unprocessed) fine-grain, high 
resolution photographic film with characteristics that make it suitable 
for use in micrographics;
    (2) The process of recording microimages on film; or
    (3) A fine-grain, high resolution photographic film containing 
microimages.
    Microform. Any form containing microimages.
    Microimage. A document such as a page of text or a drawing that is 
too small to be read without magnification.
    Permanent record. Permanent record has the meaning specified in 
Sec. 1220.14 of this chapter.
    Records storage facility. Records storage facility has the meaning 
specified in Sec. 1220.14 of this chapter.
    Temporary record. Temporary record has the meaning specified in 
Sec. 1220.14 of this chapter.
    Unscheduled record. Unscheduled record has the meaning specified in 
Sec. 1220.14 of this chapter.
    Use or work copies. Duplicates of original film made to be used for 
reference or for duplication on a recurring or large-scale basis. These 
are not preservation master copies, which must be stored unused as 
specified in Sec. 1230.20.



                     Subpart B_Program Requirements



Sec. 1230.7  What must agencies do to manage microform records?

    Federal agencies must manage microform records by taking the 
following actions:
    (a) Assign responsibility for an agencywide program for managing 
microform records and notify the National Archives and Records 
Administration (NWM), 8601 Adelphi Rd., College Park, MD 20740-6001 of 
the name and title of the person assigned the responsibility.

[[Page 884]]

    (b) Manage the microform records as part of other records and 
information resources management programs of the agency.
    (c) Include microform records management objectives, 
responsibilities, and authorities in pertinent agency directives and 
disseminate them to appropriate officials.
    (d) Address records management issues, including disposition, before 
approving new microform records systems or enhancements to existing 
systems.
    (e) Train the managers and users of microform records.
    (f) Develop records schedules covering microform records and finding 
aids, secure NARA approval, and apply the disposition instructions.
    (g) Schedule computerized indexes associated with microform records, 
such as in a computer-assisted retrieval (CAR) system, in accordance 
with part 1234 of this chapter.
    (h) Review practices used to create and manage microform records 
periodically to ensure compliance with NARA standards in this part.



                    Subpart C_Microfilming Standards



Sec. 1230.10  Do agencies need to request NARA approval for the disposition of 

all microform and source records?

    (a) Permanent or unscheduled records. Agencies must schedule both 
source documents (originals) and microforms. NARA must approve the 
schedule, Standard Form (SF) 115, Request for Records Disposition 
Authority, in accordance with part 1228 of this chapter before any 
records, including source documents, can be destroyed. NARA will not 
approve the destruction of original records that have intrinsic value, 
or security classified or otherwise restricted original records that are 
scheduled as permanent, or original records that are scheduled as 
permanent and that have other characteristics that would limit the 
usefulness of microform copies for public reference.
    (1) Agencies that comply with the standards in Sec. 1230.14 must 
include on the SF 115 the following certification: ``This certifies that 
the records described on this form were (or will be) microfilmed in 
accordance with the standards set forth in 36 CFR part 1230.''
    (2) Agencies using microfilming methods, materials, and procedures 
that do not meet the standards in Sec. 1230.14(a) must include on the 
SF 115 a description of the system and standards used.
    (3) When an agency intends to retain the silver original microforms 
of permanent records and destroy the original records, the agency must 
certify in writing on the SF 115 that the microform will be stored in 
compliance with the standards of Sec. 1230.20 and inspected as required 
by Sec. 1230.22.
    (b) Temporary records. Agencies do not need to obtain additional 
NARA approval when destroying scheduled temporary records that have been 
microfilmed. The same approved retention period for temporary records is 
applied to microform copies of these records. The original records can 
be destroyed once microfilm is verified, unless legal requirements 
prevent their early destruction.



Sec. 1230.12  What are the steps to be followed in filming records?

    (a) Ensure that the microforms contain all information shown on the 
originals and that they can be used for the purposes the original 
records served.
    (b) Arrange, describe, and index the filmed records to permit 
retrieval of any particular document or component of the records. Title 
each microform roll or fiche with a titling target or header. For fiche, 
place the titling information in frame 1 if the information will not fit 
on the header. At a minimum, titling information must include:
    (1) The title of the records;
    (2) The number or identifier for each unit of film;
    (3) The security classification, if any; and
    (4) The name of the agency and organization the inclusive dates, 
names, or other data identifying the records to be included on a unit of 
film.
    (c) Add an identification target showing the date of filming. When 
necessary to give the film copy legal standing,

[[Page 885]]

the target must also identify the person who authorized the 
microfilming. See ANSI/AIIM MS19-1993 for standards for identification 
targets.
    (d) The following formats are mandatory standards for microforms:
    (1) Roll film. (i)Source documents. The formats described in ANSI/
AIIM MS14-1996 must be used for microfilming source documents on 16mm 
and 35mm roll film. A reduction ratio no greater than 1:24 is 
recommended for typewritten or correspondence types of documents. See 
ANSI/AIIM MS23-1998 for the appropriate reduction ratio and format for 
meeting the image quality requirements. When microfilming on 35mm film 
for aperture card applications, the format dimensions in ANSI/AIIM MS32-
1996, Table 1 are mandatory, and the aperture card format ``D Aperture'' 
shown in ANSI/AIIM MS41-1996, Figure 1, must be used. The components of 
the aperture card, including the paper and adhesive, must conform to the 
requirements of ANSI/PIMA IT9.2-1998. The 35mm film used in the aperture 
card application must conform to film designated as LE 500 in ANSI/NAPM 
IT9.1-1996.
    (ii) COM. Computer output microfilm (COM) generated images must be 
the simplex mode described in ANSI/AIIM MS14-1996 at an effective ratio 
of 1:24 or 1:48 depending upon the application.
    (2) Microfiche. For microfilming source documents or computer 
generated information (COM) on microfiche, the formats and reduction 
ratios prescribed in ANSI/AIIM MS5-1992 (R1998) must be used as 
specified for the size and quality of the documents being filmed. See 
ANSI/AIIM MS23-1998 for determining the appropriate reduction ratio and 
format for meeting the image quality requirements.
    (e) Index placement--(1) Source documents. When filming original 
(source) documents, place indexes, registers, or other finding aids, if 
microfilmed, either in the first frames of the first roll of film or in 
the last frames of the last roll of film of a series. For microfiche, 
place them in the last frames of the last microfiche or microfilm jacket 
of a series.
    (2) COM. Place indexes on computer-generated microforms following 
the data on a roll of film or in the last frames of a single microfiche, 
or the last frames of the last fiche in a series. Other index locations 
may be used only if dictated by special system constraints.



Sec. 1230.14  What are the filming requirements for permanent and unscheduled 

records?

    (a) General requirements. (1) Apply the standards in this section 
for microfilming of:
    (i) Permanent paper records where the original paper record will be 
destroyed or otherwise disposed of;
    (ii) Unscheduled paper records where the original paper record will 
be destroyed or otherwise disposed of; and
    (iii) Permanent and unscheduled original microform records (no paper 
originals) produced by automation, such as computer output microfilm 
(COM).
    (2) Do not destroy permanent or unscheduled paper records after 
microfilming without authorization from NARA on a SF 115 (see Sec. 
1230.10(a)).
    (b) Film stock standards. Polyester-based silver gelatin type film 
that conforms to ANSI/NAPM IT9.1--1996 for LE 500 film must be used in 
all applications.
    (c) Processing standards. Microforms must be processed so that the 
residual thiosulfate ion concentration will not exceed 0.014 grams per 
square meter in accordance with ANSI/NAPM IT9.1-1996. Follow processing 
procedures in ANSI/AIIM MS1-1996 and MS23-1998.
    (d) Quality standards--(1) Resolution--(i) Source documents. 
Determine minimum resolution on microforms of source documents using the 
method in the Quality Index Method for determining resolution and 
anticipated losses when duplicating, as described in ANSI/AIIM MS23-1998 
and MS43-1998. Perform resolution tests using a ISO 3334-1991 Resolution 
Test Chart or a commercially available certifiable target manufactured 
to comply with this standard, and read the patterns following the 
instructions of ISO 3334-1991. Use the smallest character used to 
display information to determine the height used in the Quality Index 
formula. A Quality Index of five is required at the third generation 
level.

[[Page 886]]

    (ii) COM. Computer output microforms (COM) must meet the 
requirements of ANSI/AIIM MS1-1996.
    (2) Background density of images. The background ISO standard visual 
diffuse transmission density on microforms must be appropriate to the 
type of documents being filmed. The procedure for density measurement is 
described in ANSI/AIIM MS23-1998. The densitometer must meet with ANSI/
NAPM IT2.18-1996, for spectral conditions and ANSI/NAPM IT2.19-1994, for 
geometric conditions for transmission density.
    (i) Recommended visual diffuse transmission background densities for 
images of documents are as follows:

------------------------------------------------------------------------
                                                              Background
 Classification            Description of document             density
------------------------------------------------------------------------
Group 1           High-quality, high contrast printed book,  1.3-1.5
                   periodicals, and black typing.
------------------------------------------------------------------------
Group 2           Fine-line originals, black opaque pencil   1.15-1.4
                   writing, and documents with small high
                   contrast printing.
------------------------------------------------------------------------
Group 3           Pencil and ink drawings, faded printing,   1.0-1.2
                   and very small printing, such as
                   footnotes at the bottom of a printed
                   page.
------------------------------------------------------------------------
Group 4           Low-contrast manuscripts and drawing,      0.8-1.0
                   graph paper with pale, fine-colored
                   lines; letters typed with a worn ribbon;
                   and poorly printed, faint documents.
------------------------------------------------------------------------
Group 5           Poor-contrast documents (special           0.7-0.85
                   exception).
------------------------------------------------------------------------

    (ii) Recommended visual diffuse transmission densities for computer 
generated images are as follows:

----------------------------------------------------------------------------------------------------------------
                                              Density                                                 Minimum
      Film Type            Process          Measurement       Min. Dmax \1\      Max. Dmin \1\        Density
                                               Method                                               Difference
----------------------------------------------------------------------------------------------------------------
Silver gelatin        Conventional       Printing or        0.75               0.15.............  0.60
                                          diffuse
----------------------------------------------------------------------------------------------------------------
Silver gelatin        Full reversal      Printing           1.50               0.20.............  1.30
----------------------------------------------------------------------------------------------------------------
\1\Character or line density, measured with a microdensitometer or by comparing the film under a microscope with
  an image of a known density.

    (3) Base plus fog density of films. The base plus fog density of 
unexposed, processed films must not exceed 0.10. When a tinted base film 
is used, the density will be increased. The difference must be added to 
the values given in the tables in paragraph (d)(2) of this section.
    (4) Line or stroke width. Due to optical limitations in most 
photographic systems, film images of thin lines appearing in the 
original document will tend to fill in as a function of their width and 
density. Therefore, as the reduction ratio of a given system is 
increased, reduce the background density as needed to ensure that the 
copies will be legible.



Sec. 1230.16  What are the film and image requirements for temporary records, 

duplicates, and user copies?

    (a) Temporary records with a retention period over 99 years. Follow 
the film and image requirements in Sec. 1230.14.
    (b) Temporary records to be kept for less than 100 years. NARA does 
not require the use of specific standards. Select a film stock that 
meets agency needs and ensures the preservation of the

[[Page 887]]

microforms for their full retention period. Consult appropriate ANSI 
standards, available as noted in Sec. 1230.3, or manufacturer's 
instructions for processing microfilm of these temporary records. Follow 
the manufacturer's recommendations for production and maintenance of 
temporary microfilm to ensure that the image is accessible and usable 
for the entire retention period.



 Subpart D_Storage, Use and Disposition Standards for Microform Records



Sec. 1230.20  How should microform records be stored?

    (a) Permanent and unscheduled records. Store permanent and 
unscheduled microform records under the extended term storage conditions 
specified in ISO 18911:2000 and ANSI/PIMA IT9.2-1998, except that the 
relative humidity of the storage area must be a constant 35 percent RH, 
plus or minus 5 percent. Do not store non-silver copies of microforms in 
the same storage area as silver gelatin originals or duplicate copies.
    (b) Temporary records. Store temporary microform records under 
conditions that will ensure their preservation for their full retention 
period. Agencies may consult Life Expectance (LE) guidelines in ANSI/
AIIM standards (see Sec. 1230.3 for availability) for measures that can 
be used to meet retention requirements.



Sec. 1230.22  What are NARA inspection requirements for permanent and 

unscheduled microform records?

    (a) Agencies must inspect, or arrange to pay a contractor or NARA to 
inspect the following categories of microform records stored at the 
agency, at a commercial records storage facility, or at a NARA records 
center following the inspection requirements in paragraph (b) of this 
section:
    (1) Master films of permanent records microfilmed in order to 
dispose of the original records;
    (2) Master films of permanent records originally created on 
microfilm;
    (3) Other master films scheduled for transfer to the National 
Archives; and
    (4) Master films of unscheduled records.
    (b) The films listed in paragraph (a) of this section must be 
inspected initially in accordance with ANSI/AIIM MS45--1990. All films 
must be inspected when they are 2 years old. After the initial 2-year 
inspection, unless there is a catastrophic event, the films must be 
inspected as follows until legal custody is transferred to the National 
Archives and Records Administration:
    (1) For microfilm that is/was produced after 1990, inspect the 
microfilm every 5 years.
    (2) For microfilm that was produced prior to 1990, inspect the 
microfilm every 2 years.
    (c) To facilitate inspection, the agency must maintain an inventory 
of microfilm listing each microform series/publication by production 
date, producer, processor, format, and results of previous inspections.
    (d) The elements of the inspection shall consist of:
    (1) An inspection for aging blemishes following ANSI/AIIM MS45-1990;
    (2) A rereading of resolution targets;
    (3) A remeasurement of density; and
    (4) A certification of the environmental conditions under which the 
microforms are stored, as specified in Sec. 1230.20(a).
    (e) The agency must prepare an inspection report, and send a copy to 
NARA in accordance with Sec. 1230.28(b). The inspection report must 
contain:
    (1) A summary of the inspection findings, including:
    (i) A list of batches by year that includes the identification 
numbers of microfilm rolls and microfiche in each batch;
    (ii) The quantity of microforms inspected;
    (iii) An assessment of the overall condition of the microforms;
    (iv) A summary of any defects discovered, e.g., redox blemishes or 
base deformation; and
    (v) A summary of corrective action taken.
    (2) A detailed inspection log created during the inspection that 
contains the following information:
    (i) A complete description of all records inspected (title; roll or 
fiche number or other unique identifier for

[[Page 888]]

each unit of film inspected; security classification, if any; and 
inclusive dates, names, or other data identifying the records on the 
unit of film);
    (ii) The date of inspection;
    (iii) The elements of inspection (see paragraph (a)(4) of this 
section);
    (iv) Any defects uncovered; and
    (v) The corrective action taken.
    (f) If an inspection shows that a master microform is deteriorating, 
the agency must make a silver duplicate in accordance with Sec. 1230.14 
to replace the deteriorating master. The duplicate film will be subject 
to the inspection requirements (see Sec. 1230.22) before transfer to a 
record center or to the National Archives.
    (g) Inspection must be performed in an environmentally controlled 
area in accordance with ANSI/AIIM MS45-1990.



Sec. 1230.24  What are NARA inspection requirements for temporary microform 

records?

    NARA recommends, but does not require, that agencies use the 
inspection by sampling procedures described in Sec. 1230.22(a) and (b).



Sec. 1230.26  What are the use restrictions for permanent and unscheduled 

microform records?

    (a) Do not use the silver gelatin original microform or duplicate 
silver gelatin microform of permanent or unscheduled records created in 
accordance with Sec. 1230.14 of this part (archival microform) for 
reference purposes. Agencies must ensure that the archival microform 
remains clean and undamaged during the process of making a duplicating 
master.
    (b) Use duplicates for:
    (1) Reference;
    (2) Further duplication on a recurring basis;
    (3) Large-scale duplication; and
    (4) Distribution of records on microform.
    (c) Agencies retaining the original record in accordance with an 
approved records disposition schedule may apply agency standards for the 
use of microform records.



Sec. 1230.28  What must agencies do to send permanent microform records to a 

records storage facility?

    (a) Follow the procedures in part 1228, subpart I, of this chapter 
and the additional requirements in this section.
    (b) Package non-silver copies separately from the silver gelatin 
original or silver duplicate microform copy and clearly label them as 
non-silver copies.
    (c) Include the following information on the transmittal (SF 135 for 
NARA records centers), or in an attachment to the transmittal. For 
records sent to an agency records center or commercial records storage 
facility, submit this information to NARA as part of the documentation 
required by Sec. 1228.154(c)(2) of this chapter:
    (1) Name of the agency and program component;
    (2) The title of the records and the media/format used;
    (3) The number or identifier for each unit of film;
    (4) The security classification, if any;
    (5) The inclusive dates, names, or other data identifying the 
records to be included on a unit of film;
    (6) Finding aids that are not contained in the microform; and
    (7) The inspection log forms and inspection reports required by 
Sec. 1230.22(a) (5) and (6).
    (d) Agencies may transfer permanent microform records to a records 
storage facility meeting the storage requirements in Sec. 1230.20(a) 
(see Sec. 1228.152(e)(3) of this chapter for NARA centers) only after 
the first inspection or with certification that the microforms will be 
inspected by the agency, an agency contractor, or a NARA records center 
(on a reimbursable basis) when the microforms become 2 years old.



Sec. 1230.30  How do agencies transfer permanent microform records to the 

legal custody of the National Archives?

    (a) Follow the procedures in part 1228, subpart L, of this chapter 
and the additional requirements in this section.
    (b) Originate the transfer by submitting an SF 258, Agreement to 
Transfer Records to the National Archives of

[[Page 889]]

the United States, unless otherwise instructed by NARA.
    (c) If the records are not in a NARA records center, submit the 
information specified in Sec. 1230.28(c).
    (d) Transfer the silver gelatin original (or duplicate silver 
gelatin microform created in accordance with Sec. 1230.14) plus one 
microform copy.
    (e) Ensure that the inspection of the microform is up-to-date. If 
the microform records were recently produced, please note that NARA will 
not accession permanent microform records until the first inspection 
(when the microforms are 2 years old) has been performed.
    (f) Package non-silver copies separately from the silver gelatin 
original or silver duplicate microform copy and clearly label them as 
non-silver copies.



               Subpart E_Centralized Micrographic Services



Sec. 1230.50  What micrographic services are available from NARA?

    Some NARA records centers provide reimbursable microfilming 
services, including preparing, indexing, and filming of records, 
inspection of film, and labeling of film containers. Agencies desiring 
microfilming services from NARA should contact the Office of Regional 
Records Services (NR), 8601 Adelphi Rd., College Park, MD 20740-6001, or 
the director of the NARA records center serving the agency's records 
(see Sec. 1228.150(a) of this chapter). The fees for microfilming 
services will appear in NARA bulletins, which are available on NARA's 
web site at http://www.nara.gov/records/policy/bulletin.html or from the 
Modern Records Programs (NWM), 8601 Adelphi Road, College Park, MD 
20740-6001.



PART 1232_AUDIOVISUAL RECORDS MANAGEMENT--Table of Contents




                            Subpart A_General

Sec.
1232.1 Applicability and scope.
1232.2 Objectives.
1232.10 Definitions.

                Subpart B_Audiovisual Records Management

1232.20 Agency program responsibilities.
1232.22 Nitrocellulose film.
1232.24 Unstable cellulose-acetate film.
1232.26 Storage conditions.
1232.28 Maintenance and operations.
1232.30 Choosing formats.
1232.32 Disposition.

    Authority: 44 U.S.C. 2904 and 3101; and OMB Circular A-130.

    Source: 61 FR 32337, June 24, 1996, unless otherwise noted.



                            Subpart A_General



Sec. 1232.1  Applicability and scope.

    This part prescribes policies and procedures for managing 
audiovisual records to ensure adequate and proper documentation and 
authorized, timely, and appropriate disposition.



Sec. 1232.2  Objectives.

    The objectives of audiovisual records management are to achieve the 
effective creation, maintenance, use, and disposition of audiovisual and 
related records by establishing standards for maintenance and 
disposition, physical security, and preservation and by reviewing 
recordkeeping practices on a continuing basis to improve procedures.



Sec. 1232.10  Definitions.

    For the purposes of this part, the following definitions shall apply 
(see also Sec. 1220.14 of this chapter for other definitions).
    Audiovisual. Any pictorial or aural means of communicating 
information.
    Audiovisual equipment. Equipment used for recording, producing, 
duplicating, processing, broadcasting, distributing, storing or 
exhibiting audiovisual materials or for providing any audiovisual 
services.
    Audiovisual production. An organized and unified presentation, 
developed according to a plan or script, containing visual imagery, 
sound, or both, and used to convey information. An audiovisual 
production generally is a self-contained presentation. Audiovisual 
productions may include motion media with synchronous sound such as 
motion picture film, videotape or other

[[Page 890]]

video formats, audio recordings, and other media such as synchronized 
audio and visual presentations such as multimedia productions.
    Audiovisual records. Records in pictorial or aural form that include 
still and motion media, sound recordings, graphic works, mixed media, 
and related finding aids and production files.



                Subpart B_Audiovisual Records Management



Sec. 1232.20  Agency program responsibilities.

    Each Federal agency, in providing for effective controls over the 
creation of records, shall establish an appropriate program for the 
management of audiovisual records. This program shall be governed by the 
following requirements:
    (a) Prescribe the types of records to be created and maintained so 
that audiovisual activities and their products are properly documented. 
(Regulations on the appropriate types of permanent audiovisual records 
are located in Sec. 1228.266 of this chapter.)
    (b) Ensure that adequate training is provided to:
    (1) Agency personnel responsible for the disposition of audiovisual 
records;
    (2) Contractor personnel who have temporary custody of audiovisual 
records; and,
    (3) All users who create, handle, or maintain audiovisual records or 
operate equipment for their use.
    (c) Ensure that contract provisions protect the Government's legal 
title and control over audiovisual records and related documentation 
produced or maintained by contract. Ensure that contract provisions 
identify as deliverables any working papers/files that are needed for 
adequate and proper documentation. Include a provision that permits the 
Government to inspect contractor facilities used for the storage and 
handling of permanent or unscheduled audiovisual records. Agencies shall 
inspect such facilities at least once each year.
    (d) Keep inventories indicating the location of all generations of 
audiovisual records, whether in agency storage or in another facility 
such as a laboratory or library distribution center.
    (e) Schedule disposition of all audiovisual records as soon as 
practicable after creation. General Records Schedule 21 provides 
mandatory disposal authorization for temporary audiovisual records 
common to most Federal offices. Agencies must submit an SF 115, Request 
for Records Disposition Authority, to NARA to obtain authorization for 
the disposition of all other audiovisual records. The schedules covering 
permanent records must specify the different record elements identified 
in Sec. 1228.266, and must always include related finding aids.
    (f) Periodically review agency audiovisual recordkeeping practices 
for conformance with requirements and take necessary corrective action.

[61 FR 32337, June 24, 1996, as amended at 66 FR 27027, May 16, 2001]



Sec. 1232.22  Nitrocellulose film.

    Nitrocellulose-base film once used in the manufacture of sheet film 
and motion pictures may be occasionally found in records storage areas. 
The nitrocellulose base, a substance akin to gun cotton, is chemically 
unstable and highly inflammable.
    (a) Agencies must remove nitrocellulose film materials from records 
storage areas.
    (b) Agencies must immediately notify NARA about the existence of 
nitrocellulose film materials because of their age and instability. NARA 
will determine if they may be destroyed or destroyed after a copy is 
made for transfer, as appropriate.
    (c) If NARA appraises nitrate film materials as disposable, but the 
agency wishes to retain them, agencies must follow the guidance in NFPA 
40-1994, Standard for the Storage and Handling of Cellulose Nitrate 
Motion Picture Film, which is incorporated by reference. NFPA 40-1994 is 
available from the National Fire Protection Association, Batterymarch 
Park, Quincy, MA 02269. This standard is also available for inspection 
at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html. This incorporation

[[Page 891]]

by reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are 
incorporated by reference as they exist on the date of approval and a 
notice of any change in these materials will be published in the Federal 
Register.
    (d) The packing and shipping of nitrate film are governed by the 
following Department of Transportation regulations: 49 CFR 172.101, 
Hazardous materials table; 172.504, Transportation; 173.24, Standard 
requirements for all packages; and 173.177, Motion picture film and X- 
ray film--nitrocellulose base.



Sec. 1232.24  Unstable cellulose-acetate film.

    Cellulose-acetate film, also known as safety film, is nonflammable 
and does not represent the same degree of hazard as nitrate film 
materials. Nonetheless, cellulose-acetate film also deteriorates over 
time. Temperature, humidity, harmful storage enclosures, and gaseous 
products influence the rate of deterioration. Agencies shall inspect 
cellulose-acetate film periodically for an acetic odor, wrinkling, or 
the presence of crystalline deposits on the edge or surface of the film 
that indicate deterioration. Agencies shall notify NARA within 30 days 
after inspection about deteriorating permanent or unscheduled 
audiovisual records composed of cellulose acetate so that they can be 
copied.



Sec. 1232.26  Storage conditions.

    Agencies must:
    (a) Provide audiovisual records storage facilities that are secure 
from unauthorized access and make them safe from fire, water, flood, 
chemical or gas damage and from other harmful conditions. See NFPA 232A-
1995, Guide for Fire Protection for Archives and Records Centers issued 
by the National Fire Protection Association, which is incorporated by 
reference. The standard is available from the National Fire Protection 
Association, Batterymarch Park, Quincy, MA 02269. This standard is also 
available for inspection at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html. 
This incorporation by reference was approved by the Director of the 
Federal Register in accordance with 5 U.S.C. 552(a) and 1CFR part 51. 
These materials are incorporated by reference as they exist on the date 
of approval and a notice of any change in these materials will be 
published in the Federal Register.
    (b) Maintain good ambient storage conditions for permanent or 
unscheduled audiovisual records. Generally, the temperature should not 
exceed 70 degrees Fahrenheit and relative humidity should be maintained 
between 30-40% and not exceed 50%. Avoid fluctuating temperatures and 
humidity. Cooler temperatures and lower relative humidity are 
recommended for the storage of all film, to prolong the useful life of 
the film base and image. Cold temperatures combined with 30-35% relative 
humidity are especially recommended to retard the fading of color film. 
Optimal environmental conditions are stated in ANSI/NAPM IT9.11-1993, 
Imaging Media--Processed Safety Photographic Films--Storage. If possible 
store all permanently scheduled records in these conditions, and 
schedule them to be transferred to the National Archives as soon as 
possible.
    (c) For the storage of permanent or unscheduled records, use 
audiovisual storage containers or enclosures made of noncorroding metal, 
inert plastics, paper products and other safe materials recommended and 
specified in ANSI standards: ANSI/NAPM IT9.11-1993, Imaging Media--
Processed Safety Photographic Films--Storage; and ANSI IT9.2-1991, 
Imaging Media--Photographic Processed Films, Plates, and Papers--Filing 
Enclosures and Storage Containers. These standards, which are 
incorporated by reference, are available from the American National 
Standards Institute (ANSI), Inc., 11 West 42nd Street, New York, NY 
10036. These standards are also available for inspection at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/

[[Page 892]]

code--of--federal--regulations/ibr--locations.html. This incorporation 
by reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are 
incorporated by reference as they exist on the date of approval and a 
notice of any change in these materials will be published in the Federal 
Register.
    (d) Store originals and use copies (e.g., negatives and prints) 
separately, whenever practicable.
    (e) Store series of permanent and unscheduled x-ray films in 
accordance with this section, and store series of temporary x-ray films 
under conditions that will ensure their preservation for their full 
retention period, in accordance with ANSI/NAPM IT9.11-1993, Imaging 
Media--Processed Safety Photographic Films--Storage. This requirement 
does not apply to x-rays that are interspersed among paper records, as 
in case files.



Sec. 1232.28  Maintenance and operations.

    Agencies must:
    (a) Handle audiovisual records in accordance with commonly accepted 
industry practices because of their extreme vulnerability to damage. For 
further information, consult the American National Standards Institute 
(ANSI), Inc., 11 West 42nd Street, New York, NY 10036; and the Society 
of Motion Picture and Television Engineers, 595 West Hartsdale Avenue, 
White Plains, NY 10607.
    (b) Use only personnel trained to perform their audiovisual duties 
and responsibilities and ensure that equipment intended for projection 
or playback is in good working order.
    (c) Loan permanent or unscheduled audiovisual records to non-Federal 
recipients only in conformance with the provisions of part 1228 subpart 
E of this chapter. Such records may be loaned to other Federal agencies 
only if a record copy is maintained in the agency's custody.
    (d) Take all steps necessary to prevent accidental or deliberate 
alteration or erasure of audiovisual records.
    (e) Ensure that no information recorded on permanent or unscheduled 
magnetic sound or video media is erased.
    (f) If different versions of audiovisual productions (e.g., short 
and long versions or foreign-language versions) are prepared, keep an 
unaltered copy of each version for record purposes.
    (g) Maintain the association between audiovisual records and the 
finding aids for them, such as captions and published and unpublished 
catalogs, and production files and similar documentation created in the 
course of audiovisual production.
    (h) Maintain disposable audiovisual records separate from permanent 
ones in accordance with General Records Schedule 21 and a records 
schedule approved by NARA for the agency's other audiovisual records.



Sec. 1232.30  Choosing formats.

    Agencies must:
    (a) When ordering photographic materials for permanent or 
unscheduled records, ensure that still picture negatives and motion 
picture preprints (negatives, masters, etc.) are composed of polyester 
bases and are processed in accordance with industry standards as 
specified in ANSI/ISO 543-1990 (ANSI IT9.6-1991) Photography--
Photographic Films--Specifications for Safety Film; and, ANSI/NAPM 
IT9.1-1992 Imaging Media (Film)--Silver-Gelatin Type--Specifications for 
Stability, which are incorporated by reference. (Currently, not all 
motion picture stocks are available on a polyester base.) It is 
particularly important to ensure that residual sodium thiosulfate (hypo) 
on newly processed black-and-white photographic film does not exceed 
.014 grams per square meter. Require laboratories to process film in 
accordance with this standard. Excessive hypo will shorten the longevity 
of film and accelerate color fading. Process color film in accordance 
with the manufacturer's recommendations. If using reversal type 
processing, request full photographic reversal; i.e., develop, bleach, 
expose, develop, fix, and wash. The standards cited in this paragraph 
are available from the American National Standards Institute (ANSI), 
Inc., 11 West 42nd Street, New York, NY 10036. These standards are also 
available for inspection or at the National Archives and Records 
Administration (NARA). For information on the availability of this

[[Page 893]]

material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html. 
This incorporation by reference was approved by the Director of the 
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. 
These materials are incorporated by reference as they exist on the date 
of approval and a notice of any change in these materials be published 
in the Federal Register.
    (b) Refrain from using motion pictures in a final ``A & B'' format 
(two precisely matched reels designed to be printed together) for the 
reproduction of excerpts or stock footage.
    (c) Use only industrial or professional recording equipment and 
videotape, previously unrecorded, for original copies of permanent or 
unscheduled recordings. Limit the use of consumer formats to 
distribution or reference copies or to subjects scheduled for disposal. 
Video cassettes in the VHS format are unsuitable for use as originals of 
permanent or unscheduled records due to their inability to be copied 
without significant loss in image quality.
    (d) Record permanent or unscheduled audio recordings on \1/4\-inch 
open-reel tapes at 3 \3/4\ or 7 \1/2\ inches per second, full track, 
using professional unrecorded polyester splice-free tape stock. Audio 
cassettes, including mini-cassettes, are not sufficiently durable for 
use as originals in permanent records or unscheduled records although 
they may be used as reference copies.



Sec. 1232.32  Disposition.

    The disposition of audiovisual records shall be carried out in the 
same manner as that prescribed for other types of records in part 1228 
of this chapter. For further instructions on the transfer of permanent 
audiovisual records to the National Archives see Sec. 1228.266 of this 
chapter, Audiovisual Records.

[61 FR 32337, June 24, 1996, as amended at 66 FR 27027, May 16, 2001]



PART 1234_ELECTRONIC RECORDS MANAGEMENT--Table of Contents




                            Subpart A_General

Sec.
1234.1 Scope of part.
1234.2 Definitions.

                     Subpart B_Program Requirements

1234.10 Agency responsibilities.

Subpart C_Standards for the Creation, Use, Preservation, and Disposition 
                          of Electronic Records

1234.20 Creation and use of data files.
1234.22 Creation and use of text documents.
1234.24 Standards for managing electronic mail records.
1234.26 Judicial use of electronic records.
1234.28 Security of electronic records.
1234.30 Selection and maintenance of electronic records storage media.
1234.32 Retention and disposition of electronic records.
1234.34 Destruction of electronic records.

    Authority: 44 U.S.C. 2904, 3101, 3102, 3105, and 3303.

    Source: 55 FR 19218, May 8, 1990, unless otherwise noted.



                            Subpart A_General



Sec. 1234.1  Scope of part.

    This part establishes the basic requirements related to the 
creation, maintenance, use, and disposition of electronic records. 
Electronic records include numeric, graphic, and text information, which 
may be recorded on any medium capable of being read by a computer and 
which satisfies the definition of a record. This includes, but is not 
limited to, magnetic media, such as tapes and disks, and optical disks. 
Unless otherwise noted, these requirements apply to all electronic 
information systems, whether on microcomputers, minicomputers, or main-
frame computers, regardless of storage media, in network or stand-alone 
configurations. This part also covers creation, maintenance and use, and 
disposition of Federal records created by individuals using electronic 
mail applications.

[60 FR 44640, Aug. 28, 1995]

[[Page 894]]



Sec. 1234.2  Definitions.

    Basic records management terms are defined in 36 CFR 1220.14. As 
used in part 1234--
    Data base means a set of data, consisting of at least one data file, 
that is sufficient for a given purpose.
    Data base management system means a software system used to access 
and retrieve data stored in a data base.
    Data file means related numeric, textual, or graphic information 
that is organized in a strictly prescribed form and format.
    Electronic information system. A system that contains and provides 
access to computerized Federal records and other information.
    Electronic mail message. A document created or received on an 
electronic mail system including brief notes, more formal or substantive 
narrative documents, and any attachments, such as word processing and 
other electronic documents, which may be transmitted with the message.
    Electronic mail system. A computer application used to create, 
receive, and transmit messages and other documents. Excluded from this 
definition are file transfer utilities (software that transmits files 
between users but does not retain any transmission data), data systems 
used to collect and process data that have been organized into data 
files or data bases on either personal computers or mainframe computers, 
and word processing documents not transmitted on an e-mail system.
    Electronic record means any information that is recorded in a form 
that only a computer can process and that satisfies the definition of a 
Federal record in 44 U.S.C. 3301.
    Electronic recordkeeping system. An electronic system in which 
records are collected, organized, and categorized to facilitate their 
preservation, retrieval, use, and disposition.
    Text documents means narrative or tabular documents, such as 
letters, memorandums, and reports, in loosely prescribed form and 
format.
    Transmission and receipt data.
    (1) Transmission data. Information in electronic mail systems 
regarding the identities of sender and addressee(s), and the date and 
time messages were sent.
    (2) Receipt data. Information in electronic mail systems regarding 
date and time of receipt of a message, and/or acknowledgment of receipt 
or access by addressee(s).

[55 FR 19218, May 8, 1990, as amended at 60 FR 44641, Aug. 28, 1995]



                     Subpart B_Program Requirements



Sec. 1234.10  Agency responsibilities.

    The head of each Federal agency shall ensure that the management of 
electronic records incorporates the following elements:
    (a) Assigning responsibility to develop and implement an agencywide 
program for the management of all records created, received, maintained, 
used, or stored on electronic media; and notifying the National Archives 
and Records Administration, Modern Records Programs (NWM), 8601 Adelphi 
Rd., College Park, MD 20740-6001 and the General Services 
Administration, Office of Government Policy (MKB), Washington, DC 20405, 
of the name and title of the person assigned the responsibility.
    (b) Integrating the management of electronic records with other 
records and information resources management programs of the agency.
    (c) Incorporating electronic records management objectives, 
responsibilities, and authorities in pertinent agency directives and 
disseminating them throughout the agency as appropriate.
    (d) Establishing procedures for addressing records management 
requirements, including recordkeeping requirements and disposition, 
before approving new electronic information system or enhancements to 
existing systems.
    (e) Ensuring that adequate training is provided for users of 
electronic mail systems on recordkeeping requirements, the distinction 
between Federal records and nonrecord materials, procedures for 
designating Federal records, and moving or copying records for inclusion 
in an agency recordkeeping system;
    (f) Ensuring that adequate training is provided for users of 
electronic information system in the operation, care,

[[Page 895]]

and handling of the equipment, software, and media used in the system.
    (g) Developing and maintaining up-to-date documentation about all 
electronic information system that is adequate to: Specify all technical 
characteristics necessary for reading or processing the records; 
identify all defined inputs and outputs of the system; define the 
contents of the files and records; determine restrictions on access and 
use; understand the purpose(s) and function(s) of the system; describe 
update cycles or conditions and rules for adding information to the 
system, changing information in it, or deleting information; and ensure 
the timely, authorized disposition of the records.
    (h) Specifying the location, manner, and media in which electronic 
records will be maintained to meet operational and archival 
requirements, and maintaining inventories of electronic information 
system to facilitate disposition.
    (i) Developing and securing NARA approval of records disposition 
schedules, and ensuring implementation of their provisions.
    (j) Specifying the methods of implementing controls over national 
security-classified, sensitive, proprietary, and Privacy Act records 
stored and used electronically.
    (k) Establishing procedures to ensure that the requirements of this 
part are applied to those electronic records that are created or 
maintained by contractors.
    (l) Ensuring compliance with applicable Governmentwide policies, 
procedures, and standards such as those issued by the Office of 
Management and Budget, the General Accounting Office, the General 
Services Administration, the National Archives and Records 
Administration, and the National Institute of Standards and Technology.
    (m) Reviewing electronic information system periodically for 
conformance to established agency procedures, standards, and policies as 
part of the periodic reviews required by 44 U.S.C. 3506. The review 
should determine if the records have been properly identified and 
described, and whether the schedule descriptions and retention periods 
reflect the current informational content and use. If not, or if 
substantive changes have been made in the structure, design, codes, 
purposes, or uses of the system, submit an SF 115, Request for Records 
Disposition Authority, to NARA.

[55 FR 19218, May 8, 1990, as amended at 60 FR 44641, Aug. 28, 1995; 63 
FR 35830, July 1, 1998; 66 FR 27028, May 16, 2001]



Subpart C_Standards for the Creation, Use, Preservation, and Disposition 
                          of Electronic Records



Sec. 1234.20  Creation and use of data files.

    (a) For electronic information systems that produce, use, or store 
data files, disposition instructions for the data shall be incorporated 
into the system's design.
    (b) Agencies shall maintain adequate and up-to-date technical 
documentation for each electronic information system that produces, 
uses, or stores data files. Minimum documentation required is a 
narrative description of the system; physical and technical 
characteristics of the records, including a record layout that describes 
each field including its name, size, starting or relative position, and 
a description of the form of the data (such as alphabetic, zoned 
decimal, packed decimal, or numeric), or a data dictionary or the 
equivalent information associated with a data base management system 
including a description of the relationship between data elements in 
data bases; and any other technical information needed to read or 
process the records.

[55 FR 19218, May 8, 1990, as amended at 60 FR 44641, Aug. 28, 1995]



Sec. 1234.22  Creation and use of text documents.

    (a) Electronic recordkeeping systems that maintain the official file 
copy of text documents on elecronic media shall meet the following 
minimum requirements:
    (1) Provide a method for all authorized users of the system to 
retrieve desired documents, such as an indexing or text search system;

[[Page 896]]

    (2) Provide an appropriate level of security to ensure integrity of 
the documents;
    (3) Provide a standard interchange format when necessary to permit 
the exchange of documents on electronic media between agency computers 
using different software/operating systems and the conversion or 
migration of documents on electronic media from one system to another; 
and
    (4) Provide for the disposition of the documents including, when 
necessary, the requirements for transferring permanent records to NARA 
(see Sec. 1228.270 of this chapter).
    (b) Before a document is created electronically on electronic 
recordkeeping systems that will maintain the official file copy on 
electronic media, each document shall be identified sufficiently to 
enable authorized personnel to retrieve, protect, and carry out the 
disposition of documents in the system. Appropriate identifying 
information for each document maintained on the electronic media may 
include: office of origin, file code, key words for retrieval, addressee 
(if any), signator, author, date, authorized disposition (coded or 
otherwise), and security classification (if applicable). Agencies shall 
ensure that records maintained in such systems can be correlated with 
related records on paper, microform, or other media.

[55 FR 19218, May 8, 1990, as amended at 60 FR 44641, Aug. 28, 1995; 66 
FR 27028, May 16, 2001]



Sec. 1234.24  Standards for managing electronic mail records.

    Agencies shall manage records created or received on electronic mail 
systems in accordance with the provisions of this chapter pertaining to 
adequacy of documentation, recordkeeping requirements, agency records 
management responsibilities, and records disposition (36 CFR parts 1220, 
1222, and 1228).
    (a) Agency instructions on identifying and preserving electronic 
mail messages will address the following unique aspects of electronic 
mail:
    (1) Some transmission data (names of sender and addressee(s) and 
date the message was sent) must be preserved for each electronic mail 
record in order for the context of the message to be understood. 
Agencies shall determine if any other transmission data is needed for 
purposes of context.
    (2) Agencies that use an electronic mail system that identifies 
users by codes or nicknames or identifies addressees only by the name of 
a distribution list shall instruct staff on how to retain names on 
directories or distributions lists to ensure identification of the 
sender and addressee(s) of messages that are records.
    (3) Agencies that use an electronic mail system that allows users to 
request acknowledgments or receipts showing that a message reached the 
mailbox or inbox of each addressee, or that an addressee opened the 
message, shall issue instructions to e-mail users specifying when to 
request such receipts or acknowledgments for recordkeeping purposes and 
how to preserve them.
    (4) Agencies with access to external electronic mail systems shall 
ensure that Federal records sent or received on these systems are 
preserved in the appropriate recordkeeping system and that reasonable 
steps are taken to capture available transmission and receipt data 
needed by the agency for recordkeeping purposes.
    (5) Some e-mail systems provide calendars and task lists for users. 
These may meet the definition of Federal record. Calendars that meet the 
definition of Federal records are to be managed in accordance with the 
provisions of General Records Schedule 23, Item 5.
    (6) Draft documents that are circulated on electronic mail systems 
may be records if they meet the criteria specified in 36 CFR 1222.34.
    (b) Agencies shall consider the following criteria when developing 
procedures for the maintenance of electronic mail records in appropriate 
recordkeeping systems, regardless of format.
    (1) Recordkeeping systems that include electronic mail messages 
must:
    (i) Provide for the grouping of related records into classifications 
according to the nature of the business purposes the records serve;
    (ii) Permit easy and timely retrieval of both individual records and 
files or other groupings of related records;

[[Page 897]]

    (iii) Retain the records in a usable format for their required 
retention period as specified by a NARA-approved records schedule;
    (iv) Be accessible by individuals who have a business need for 
information in the system;
    (v) Preserve the transmission and receipt data specified in agency 
instructions; and
    (vi) Permit transfer of permanent records to the National Archives 
and Records Administration (see 36 CFR 1228.270 and 36 CFR 1234.32(a)).
    (2) Agencies may elect to manage electronic mail records with very 
short-term NARA-approved retention periods (transitory records with a 
very short-term retention period of 180 days or less as provided by GRS 
23, Item 7, or by a NARA-approved agency records schedule) on the 
electronic mail system itself, without the need to copy the record to a 
paper or electronic recordkeeping system, provided that:
    (i) Users do not delete the messages before the expiration of the 
NARA-approved retention period, and
    (ii) The system's automatic deletion rules ensure preservation of 
the records until the expiration of the NARA-approved retention period.
    (3) Except for those electronic mail records within the scope of 
paragraph (b)(2) of this section:
    (i) Agencies must not use an electronic mail system to store the 
recordkeeping copy of electronic mail messages identified as Federal 
records unless that system has all of the features specified in 
paragraph (b)(1) of this section.
    (ii) If the electronic mail system is not designed to be a 
recordkeeping system, agencies must instruct staff on how to copy 
Federal records from the electronic mail system to a recordkeeping 
system.
    (c) Agencies that maintain their electronic mail records 
electronically shall move or copy them to a separate electronic 
recordkeeping system unless their system has the features specified in 
paragraph (b)(1) of this section. Because they do not have the features 
specified in paragraph (b)(1) of this section, backup tapes should not 
be used for recordkeeping purposes. Agencies may retain records from 
electronic mail systems in an off-line electronic storage format (such 
as optical disk or magnetic tape) that meets the requirements described 
at 36 CFR 1234.30(a). Agencies that retain permanent electronic mail 
records scheduled for transfer to the National Archives shall either 
store them in a format and on a medium that conforms to the requirements 
concerning transfer at 36 CFR 1228.188 or shall maintain the ability to 
convert the records to the required format and medium at the time 
transfer is scheduled.
    (d) Agencies that maintain paper files as their recordkeeping 
systems shall print their electronic mail records and the related 
transmission and receipt data specified by the agency.

[60 FR 44641, Aug. 28, 1995, as amended at 66 FR 27028, May 16, 2001; 71 
FR 8807, Feb. 21, 2006]



Sec. 1234.26  Judicial use of electronic records.

    Electronic records may be admitted in evidence to Federal courts for 
use in court proceedings (Federal Rules of Evidence 803(8)) if 
trustworthiness is established by thoroughly documenting the 
recordkeeping system's operation and the controls imposed upon it. 
Agencies should implement the following procedures to enhance the legal 
admissibility of electronic records.
    (a) Document that similar kinds of records generated and stored 
electronically are created by the same processes each time and have a 
standardized retrieval approach.
    (b) Substantiate that security procedures prevent unauthorized 
addition, modification or deletion of a record and ensure system 
protection against such problems as power interruptions.
    (c) Identify the electronic media on which records are stored 
throughout their life cycle, the maximum time span that records remain 
on each storage medium, and the NARA-approved disposition of all 
records.
    (d) Coordinate all of the above with legal counsel and senior IRM 
and records management staff.

[55 FR 19218, May 8, 1990. Redesignated at 60 FR 44641, Aug. 28, 1995]

[[Page 898]]



Sec. 1234.28  Security of electronic records.

    Agencies shall implement and maintain an effective records security 
program that incorporates the following:
    (a) Ensures that only authorized personnel have access to electronic 
records.
    (b) Provides for backup and recovery of records to protect against 
information loss.
    (c) Ensures that appropriate agency personnel are trained to 
safeguard sensitive or classified electronic records.
    (d) Minimizes the risk of unauthorized alteration or erasure of 
electronic records.
    (e) Ensures that electronic records security is included in computer 
systems security plans prepared pursuant to the Computer Security Act of 
1987 (40 U.S.C. 759 note).

[55 FR 19218, May 8, 1990. Redesignated at 60 FR 44641, Aug. 28, 1995]



Sec. 1234.30  Selection and maintenance of electronic records storage media.

    (a) Agencies shall select appropriate media and systems for storing 
agency records throughout their life, which meet the following 
requirements:
    (1) Permit easy retrieval in a timely fashion;
    (2) Facilitate distinction between record and nonrecord material;
    (3) Retain the records in a usable format until their authorized 
disposition date; and
    (4) If the media contains permanent records and does not meet the 
requirements for transferring permanent records to NARA as outlined in 
Sec. 1228.270 of this chapter, permit the migration of the permanent 
records at the time of transfer to a medium which does meet the 
requirements.
    (b) The following factors shall be considered before selecting a 
storage medium or converting from one medium to another:
    (1) The authorized life of the records, as determined during the 
scheduling process;
    (2) The maintenance necessary to retain the records;
    (3) The cost of storing and retrieving the records;
    (4) The records density;
    (5) The access time to retrieve stored records;
    (6) The portability of the medium (that is, selecting a medium that 
will run on equipment offered by multiple manufacturers) and the ability 
to transfer the information from one medium to another (such as from 
optical disk to magnetic tape); and
    (7) Whether the medium meets current applicable Federal Information 
Processing Standards.
    (c) Agencies should avoid the use of floppy disks for the exclusive 
long-term storage of permanent or unscheduled electronic records.
    (d) Agencies shall ensure that all authorized users can identify and 
retrieve information stored on diskettes, removable disks, or tapes by 
establishing or adopting procedures for external labeling.
    (e) Agencies shall ensure that information is not lost because of 
changing technology or deterioration by converting storage media to 
provide compatibility with the agency's current hardware and software. 
Before conversion to a different medium, agencies must determine that 
the authorized disposition of the electronic records can be implemented 
after conversion.
    (f) Agencies shall back up electronic records on a regular basis to 
safeguard against the loss of information due to equipment malfunctions 
or human error. Duplicate copies of permanent or unscheduled records 
shall be maintained in storage areas separate from the location of the 
records that have been copied.
    (g) Maintenance of magnetic computer tape. (1) Agencies shall test 
magnetic computer tapes no more than 6 months prior to using them to 
store electronic records that are unscheduled or scheduled for permanent 
retention. This test should verify that the tape is free of permanent 
errors and in compliance with National Institute of Standards and 
Technology or industry standards.
    (2) Agencies shall maintain the storage and test areas for computer 
magnetic tapes containing permanent and unscheduled records at the 
following temperatures and relative humidities:

Constant temperature--62 to 68 [deg]F.
Constant relative humidity--35% to 45%


[[Page 899]]


    (3) Agencies shall annually read a statistical sample of all reels 
of magnetic computer tape containing permanent and unscheduled records 
to identify any loss of data and to discover and correct the causes of 
data loss. In tape libraries with 1800 or fewer reels, a 20% sample or a 
sample size of 50 reels, whichever is larger, should be read. In tape 
libraries with more than 1800 reels, a sample of 384 reels should be 
read. Tapes with 10 or more errors should be replaced and, when 
possible, lost data shall be restored. All other tapes which might have 
been affected by the same cause (i.e., poor quality tape, high usage, 
poor environment, improper handling) shall be read and corrected as 
appropriate.
    (4) Agencies shall copy permanent or unscheduled data on magnetic 
tapes before the tapes are 10 years old onto tested and verified new 
tapes.
    (5) External labels (or the equivalent automated tape management 
system) for magnetic tapes used to store permanent or unscheduled 
electronic records shall provide unique identification for each reel, 
including the name of the organizational unit responsible for the data, 
system title, and security classification, if applicable. Additionally, 
the following information shall be maintained for (but not necessarily 
attached to) each reel used to store permanent or unscheduled electronic 
records: file title(s); dates of creation; dates of coverage; the 
recording density; type of internal labels; volume serial number, if 
applicable; number of tracks; character code/software dependency; 
information about block size; and reel sequence number, if the file is 
part of a multi-reel set. For numeric data files, include record format 
and logical record length, if applicable; data set name(s) and sequence, 
if applicable; and number of records for each data set.
    (6) Agencies shall prohibit smoking and eating in magnetic computer 
tape storage libraries and test or evaluation areas that contain 
permanent or unscheduled records.
    (h) Maintenance of direct access storage media. (1) Agencies shall 
issue written procedures for the care and handling of direct access 
storage media which draw upon the recommendations of the manufacturers.
    (2) External labels for diskettes or removable disks used when 
processing or temporarily storing permanent or unscheduled records shall 
include the following information: name of the organizational unit 
responsible for the records, descriptive title of the contents, dates of 
creation, security classification, if applicable, and identification of 
the software and hardware used.

[55 FR 19218, May 8, 1990. Redesignated at 60 FR 44641, Aug. 28, 1995; 
62 FR 54585, Oct. 21, 1997; 65 FR 24132, Apr. 25, 2000; 66 FR 27028, May 
16, 2001]



Sec. 1234.32  Retention and disposition of electronic records.

    Agencies shall establish policies and procedures to ensure that 
electronic records and their documentation are retained as long as 
needed by the Government. These retention procedures shall include 
provisions for:
    (a) Scheduling the disposition of all electronic records, as well as 
related documentation and indexes, by applying General Records Schedules 
(particularly GRS 20 or GRS 23) as appropriate or submitting an SF 115, 
Request for Records Disposition Authority, to NARA (see part 1228 of 
this chapter). The information in electronic information systems, 
including those operated for the Government by a contractor, shall be 
scheduled as soon as possible but no later than one year after 
implementation of the system.
    (b) Transferring a copy of the electronic records and any related 
documentation and indexes to the National Archives at the time specified 
in the records disposition schedule in accordance with instructions 
found in Sec. 1228.270 of this chapter. Transfer may take place at an 
earlier date if convenient for both the agency and the National Archives 
and Records Administration.
    (c) Establishing procedures for regular recopying, reformatting, and 
other necessary maintenance to ensure the retention and usability of 
electronic records throughout their authorized life cycle (see Sec. 
1234.28).
    (d) Electronic mail records may not be deleted or otherwise disposed 
of

[[Page 900]]

without prior disposition authority from NARA (44 U.S.C. 3303a).
    (1) Electronic mail records with very short-term (transitory) value. 
Agencies may use the disposition authority in General Records Schedule 
23, Item 7, or on a NARA-approved agency records schedule for electronic 
mail records that have very short-term retention periods of 180 days or 
less. (See Sec. 1234.24(b)(2)).
    (2) Other records in an electronic mail system. When an agency has 
taken the necessary steps to retain a record in a scheduled 
recordkeeping system (whether electronic or paper), the identical 
version that remains on the user's screen or in the user's electronic 
mailbox has no continuing value. Therefore, NARA has authorized deletion 
of the version of the record in the electronic mail system under General 
Records Schedule 20, Item 14, after the record has been preserved in a 
recordkeeping system along with all appropriate transmission data. If 
the records in the recordkeeping system are not scheduled, the agency 
must follow the procedures at 36 CFR part 1228.
    (3) Records in recordkeeping systems. The disposition of electronic 
mail records that have been transferred to an appropriate recordkeeping 
system is governed by the records schedule or schedules that control the 
records in that system. If the records in the recordkeeping system are 
not scheduled, the agency must follow the procedures at 36 CFR part 
1228.

[55 FR 19218, May 8, 1990. Redesignated and amended at 60 FR 44641, 
44642, Aug. 28, 1995; 66 FR 27028, May 16, 2001; 71 FR 8808, Feb. 21, 
2006]



Sec. 1234.34  Destruction of electronic records.

    Electronic records may be destroyed only in accordance with a 
records disposition schedule approved by the Archivist of the United 
States, including General Records Schedules. At a minimum each agency 
shall ensure that:
    (a) Electronic records scheduled for destruction are disposed of in 
a manner that ensures protection of any sensitive, proprietary, or 
national security information.
    (b) Magnetic recording media previously used for electronic records 
containing sensitive, proprietary, or national security information are 
not reused if the previously recorded information can be compromised by 
reuse in any way.
    (c) Agencies shall establish and implement procedures that 
specifically address the destruction of electronic records generated by 
individuals employing electronic mail.

[55 FR 19218, May 8, 1990. Redesignated and amended at 60 FR 44641, 
44642, Aug. 28, 1995]



PART 1236_MANAGEMENT OF VITAL RECORDS--Table of Contents




                            Subpart A_General

Sec.
1236.10 Purpose.
1236.12 Authority.
1236.14 Definitions.

                         Subpart B_Vital Records

1236.20 Vital records program objectives.
1236.22 Identification of vital records.
1236.24 Use of vital records and copies of vital records.
1236.26 Protection of vital records.
1236.28 Disposition of original vital records.

    Authority: 44 U.S.C. 2104(a), 2904(a), 3101; E. O. 12656, 53 FR 
47491, 3 CFR, 1988 Comp., p. 585.

    Source: 60 FR 29990, June 7, 1995, unless otherwise noted.



                            Subpart A_General



Sec. 1236.10  Purpose.

    This part prescribes policies and procedures for establishing a 
program for the identification and protection of vital records, those 
records needed by agencies for continuity of operations before, during, 
and after emergencies, and those records needed to protect the legal and 
financial rights of the Government and persons affected by Government 
activities. The records may be maintained on a variety of media 
including paper, magnetic tape or disk, photographic film, and 
microfilm. The management of vital records is part of an agency's 
continuity of operations plan designed to meet emergency management 
responsibilities.

[[Page 901]]



Sec. 1236.12  Authority.

    Heads of agencies are responsible for the vital records program 
under the following authorities:
    (a) To make and preserve records containing adequate and proper 
documentation of the agency's organization, functions, policies, 
procedures, decisions, and essential transactions, and to furnish 
information to protect the legal and financial rights of the Government 
and of persons directly affected by the agency's activities (44 U.S.C. 
3101).
    (b) To perform national security emergency preparedness functions 
and activities (Executive Order 12656).



Sec. 1236.14  Definitions.

    Basic records management terms are defined in 36 CFR 1220.14. As 
used in part 1236:
    Contingency planning means instituting policies and procedures to 
mitigate the effects of potential emergencies or disasters on an 
agency's operations and records. Contingency planning is part of the 
continuity of operations planning required under Federal Preparedness 
Circulars and other guidance issued by the Federal Emergency Management 
Agency (FEMA) and Executive Order 12656.
    Cycle means the periodic removal of obsolete copies of vital records 
and their replacement with copies of current vital records. This may 
occur daily, weekly, quarterly, annually or at other designated 
intervals.
    Disaster means an unexpected occurrence inflicting widespread 
destruction and distress and having long-term adverse effects on agency 
operations. Each agency defines what a long-term adverse effect is in 
relation to its most critical program activities.
    Emergency means a situation or an occurrence of a serious nature, 
developing suddenly and unexpectedly, and demanding immediate action. 
This is generally of short duration, for example, an interruption of 
normal agency operations for a week or less. It may involve electrical 
failure or minor flooding caused by broken pipes.
    Emergency operating records are that type of vital records essential 
to the continued functioning or reconstitution of an organization during 
and after an emergency. Included are emergency plans and directive(s), 
orders of succession, delegations of authority, staffing assignments, 
selected program records needed to continue the most critical agency 
operations, as well as related policy or procedural records that assist 
agency staff in conducting operations under emergency conditions and for 
resuming normal operations after an emergency.
    Legal and financial rights records are that type of vital records 
essential to protect the legal and financial rights of the Government 
and of the individuals directly affected by its activities. Examples 
include accounts receivable records, social security records, payroll 
records, retirement records, and insurance records. These records were 
formerly defined as ``rights-and-interests'' records.
    National security emergency means any occurrence, including natural 
disaster, military attack, technological emergency, or other emergency, 
that seriously degrades or threatens the national security of the United 
States, as defined in Executive Order 12656.
    Off-site storage means a facility other than an agency's normal 
place of business where vital records are stored for protection. This is 
to ensure that the vital records are not subject to damage or 
destruction from an emergency or disaster affecting an agency's normal 
place of business.
    Vital records mean essential agency records that are needed to meet 
operational responsibilities under national security emergencies or 
other emergency or disaster conditions (emergency operating records) or 
to protect the legal and financial rights of the Government and those 
affected by Government activities (legal and financial rights records).
    Vital records program means the policies, plans, and procedures 
developed and implemented and the resources needed to identify, use, and 
protect the essential records needed to meet operational 
responsibilities under national security emergencies or other emergency 
or disaster conditions or to protect the Government's rights or those of 
its citizens. This is a program element of an agency's emergency 
management function.

[[Page 902]]



                         Subpart B_Vital Records



Sec. 1236.20  Vital records program objectives.

    The vital records program is conducted to identify and protect those 
records that specify how an agency will operate in case of emergency or 
disaster, those records vital to the continued operations of the agency 
during and after an emergency or disaster, and records needed to protect 
the legal and financial rights of the Government and of the persons 
affected by its actions. An agency identifies vital records in the 
course of contingency planning activities carried out in the context of 
the emergency management function. In carrying out the vital records 
program agencies shall:
    (a) Specify agency staff responsibilities;
    (b) Ensure that all concerned staff are appropriately informed about 
vital records;
    (c) Ensure that the designation of vital records is current and 
complete; and
    (d) Ensure that vital records and copies of vital records are 
adequately protected, accessible, and immediately usable.



Sec. 1236.22  Identification of vital records.

    Vital records include emergency plans and related records that 
specify how an agency is to respond to an emergency as well as those 
records that would be needed to continue operations and protect legal 
and financial rights. Agencies should consider the informational content 
of records series and electronic records systems when identifying vital 
records. Only the most recent and complete source of the vital 
information needs to be treated as vital records.



Sec. 1236.24  Use of vital records and copies of vital records.

    Agencies shall ensure that retrieval procedures for vital records 
require only routine effort to locate needed information, especially 
since individuals unfamiliar with the records may need to use them 
during an emergency or disaster. Agencies also shall ensure that all 
equipment needed to read vital records or copies of vital records will 
be available in case of emergency or disaster. For electronic records 
systems, agencies also shall ensure that system documentation adequate 
to operate the system and access the records will be available in case 
of emergency or disaster.



Sec. 1236.26  Protection of vital records.

    Agencies shall take appropriate measures to ensure the survival of 
the vital records or copies of vital records in case of emergency or 
disaster. In the case of electronic records, this requirement is met if 
the information needed in the event of emergency or disaster is 
available in a copy made for general security purposes, even when the 
copy contains other information.
    (a) Duplication. Computer backup tapes created in the normal course 
of system maintenance or other electronic copies that may be routinely 
created in the normal course of business may be used as the vital record 
copy. For hard copy records, agencies may choose to make microform 
copies. Standards for the creation, preservation and use of microforms 
are found in 36 CFR part 1230, Micrographic Records Management. The 
Clinger-Cohen Act (40 U.S.C. 1401, Pub. L. 104-106, et seq., as amended 
by Pub. L. 104-208), OMB Circular A-130, and 36 CFR part 1234, 
Electronic Records Management, and 41 CFR part 201, subchapter B, 
Management and Use of Information and Records, specify protective 
measures and standards for electronic records.
    (b) Storage. When agencies choose duplication as a protection 
method, the copy of the vital record stored off-site is normally a 
duplicate of the original record. Designating and using duplicate copies 
of original records as vital records facilitates destruction or deletion 
of obsolete duplicates when replaced by updated copies, whereas original 
vital records must be retained for the period specified in the agency 
records disposition schedule. The agency may store the original records 
off-site if protection of original signatures is necessary, or if it 
does not need to keep the original record at its normal place of 
business.
    (c) Storage considerations. Agencies need to consider several 
factors when

[[Page 903]]

deciding where to store copies of vital records. Copies of emergency 
operating vital records need to be accessible in a very short period of 
time for use in the event of an emergency or disaster. Copies of legal 
and financial rights records may not be needed as quickly. In deciding 
where to store vital records copies, agencies shall treat records that 
have the properties of both categories, that is, emergency operating and 
legal and financial rights records, as emergency operating records.
    (1) Under certain circumstances, Federal records centers (FRC's) may 
store copies of emergency operating vital records. FRC's will store 
small volumes of such records, but may not be able to provide storage 
for large collections or ones requiring constant recycling of the vital 
records, except under reimbursable agreement. Prior to preparing the 
records for shipment, the agency must contact the FRC to determine if 
the center can accommodate the storage requirements and return copies in 
an acceptable period of time.
    (2) The off-site copy of legal and financial rights vital records 
may be stored at an off-site agency location or, in accordance with 
Sec. 1228.162 of this chapter, at an FRC.
    (3) When using an FRC for storing vital records that are duplicate 
copies of original records, the agency must specify on the SF 135, 
Records Transmittal and Receipt, that they are vital records (duplicate 
copies) and the medium on which they are maintained. The agency shall 
also periodically cycle (update) them by removing obsolete items and 
replacing them with the most recent version, when necessary.
    (4) Agencies that transfer permanent, original vital records 
maintained on electronic or microform media to the custody of the 
National Archives may designate such records as their off-site copy. 
That designation may remain in effect until the information in such 
transferred records is superseded or becomes obsolete.

[60 FR 29990, June 7, 1995, as amended at 66 FR 27028, May 16, 2001]



Sec. 1236.28  Disposition of original vital records.

    The disposition of original vital records is governed by records 
schedules approved by NARA (see part 1228, Disposition of Federal 
Records). Original records that are not scheduled may not be destroyed 
or deleted.



PART 1238_PROGRAM ASSISTANCE--Table of Contents




Sec.
1238.1 Scope of part.
1238.2 Requests for assistance.

    Authority: 44 U.S.C. 2904 and 3101.



Sec. 1238.1  Scope of part.

    The National Archives and Records Administration publishes 
handbooks, conducts workshops and other training sessions, and furnishes 
information and guidance to Federal agencies about the creation of 
records, their maintenance and use, and their disposition.

[50 FR 26940, June 28, 1985]



Sec. 1238.2  Requests for assistance.

    Agencies desiring information or assistance related to any of the 
areas covered by subchapter B should contact the NARA Life Cycle 
Management Division (NWML), 8601 Adelphi Rd., College Park, MD 20740-
6001. Agency field organizations may contact the appropriate Regional 
Administrator regarding records in or scheduled for transfer to the 
records center and/or the archival operations within the region.

[57 FR 19807, May 8, 1992, as amended at 63 FR 35830, July 1, 1998]

[[Page 904]]



                SUBCHAPTER C_PUBLIC AVAILABILITY AND USE



PART 1250_PUBLIC AVAILABILITY AND USE OF FEDERAL RECORDS--Table of Contents




 Subpart A_General Information About Freedom of Information Act (FOIA) 
                                Requests

Sec.
1250.1 Scope of this part.
1250.2 Definitions.
1250.4 Who can file a FOIA request?
1250.6 Does FOIA cover all of the records at NARA?
1250.8 Does NARA provide access to all the executive branch records 
          housed at NARA facilities?
1250.10 Do I need to use FOIA to gain access to records at NARA?
1250.12 What types of records are available in NARA's FOIA Reading Room?
1250.14 If I do not use FOIA to request records, will NARA treat my 
          request differently?

               Subpart B_How to Access Records Under FOIA

1250.20 What do I include in my FOIA request?
1250.22 Where do I send my FOIA request?
1250.24 Will you accept a FOIA request through email?
1250.26 How quickly will NARA respond to my FOIA request?
1250.28 Will NARA ever expedite the review of the records I requested?
1250.30 How do I request expedited processing?
1250.32 How quickly will NARA process an expedited request?
1250.34 How will I know if NARA is going to release the records I 
          requested?
1250.36 When will NARA deny a FOIA request?
1250.38 In what format will NARA provide copies?

                             Subpart C_Fees

1250.50 Will I be charged for my FOIA request?
1250.52 How much will I have to pay for a FOIA request for NARA 
          operational records?
1250.54 General information on fees for NARA operational records.
1250.56 Fee schedule for NARA operational records.
1250.58 Does NARA ever waive FOIA fees for NARA operational records?
1250.60 How will NARA determine if I am eligible for a fee waiver for 
          NARA operational records?

                            Subpart D_Appeals

1250.70 What are my appeal rights under FOIA?
1250.72 How do I file an appeal?
1250.74 Where do I send my appeal?
1250.76 May I email my FOIA appeal?
1250.78 How does NARA handle appeals?

                      Subpart E_Special Situations

1250.80 How does a submitter identify records containing confidential 
          commercial information?
1250.82 How will NARA handle a FOIA request for confidential commercial 
          information?

    Authority: 44 U.S.C. 2104(a), 2204; 5 U.S.C. 552; E.O. 12600, 52 FR 
23781, 3 CFR, 1987 Comp., p. 235.

    Source: 66 FR 16376, Mar. 23, 2001, unless otherwise noted.



 Subpart A_General Information About Freedom of Information Act (FOIA) 
                                Requests



Sec. 1250.1  Scope of this part.

    This part implements the provisions of the Freedom of Information 
Act (FOIA), 5 U.S.C. 552, as amended, for NARA operational records and 
archival records that are subject to FOIA. Other NARA regulations in 36 
CFR parts 1254 through 1275 provide detailed guidance for conducting 
research at NARA.



Sec. 1250.2  Definitions.

    The following definitions apply to this part:
    (a) Archival records means permanently valuable records of the 
United States Government that have been transferred to the legal custody 
of the Archivist of the United States.
    (b) Commercial use requester means a requester seeking information 
for a use or purpose that furthers the commercial, trade, or profit 
interests of the requester or the person on whose behalf the request is 
made.
    (c) Confidential commercial information means records provided by a 
submitter that may contain material exempt from release under the FOIA 
because

[[Page 905]]

disclosure could reasonably be expected to cause the submitter 
substantial competitive harm.
    (d) Educational institution request 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.
    (e) FOIA request means a written request for access to records of 
the executive branch of the Federal Government held by NARA, including 
NARA operational records, or to Presidential records in the custody of 
NARA that were created after January 19, 1981, that cites the Freedom of 
Information Act.
    (f) Freelance journalist means an individual who qualifies as a 
representative of the news media because the individual can demonstrate 
a solid basis for expecting publication through a news organization, 
even though not actually in its employ. A publication contract would be 
the clearest proof of a solid basis, but the individual's publication 
history may also be considered in demonstrating this solid basis.
    (g) News media representative means a 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 when they can qualify as disseminators of news) 
who make their products available for purchase or subscription to the 
general public.
    (h) Non-commercial scientific institution means an institution that 
is not operated on a basis that furthers the commercial, trade, or 
profit interests of any person or organization, and which is operated 
solely for the purpose of conducting scientific research which produces 
results that are not intended to promote any particular product or 
industry.
    (i) Operational records means those records that NARA creates or 
receives in carrying out its mission and responsibilities as an 
executive branch agency. This does not include archival records as 
defined in paragraph (a) of this section.
    (j) Other requesters means any individual who is not a commercial-
use requester, not a representative of the news media, not a freelance 
journalist, nor one associated with an educational or non-commercial 
scientific institution whose research activities conform to the 
definition in paragraph (h) of this section.
    (k) Submitter means any person or entity providing potentially 
confidential commercial information to an agency. The term submitter 
includes, but is not limited to, corporations, state governments, and 
foreign governments.



Sec. 1250.4  Who can file a FOIA request?

    Any individual, partnership, corporation, association, or government 
regardless of nationality may file a FOIA request.



Sec. 1250.6  Does FOIA cover all of the records at NARA?

    No, FOIA applies only to the records of the executive branch of the 
Federal government and certain Presidential records. Use the following 
chart to determine how to gain access:

------------------------------------------------------------------------
                                          Then access is governed by . .
       If you want access to ...                        .
------------------------------------------------------------------------
(a) Records of executive branch          This part and parts 1254
 agencies                                 through 1260 of this chapter.
                                          FOIA applies to these records.
------------------------------------------------------------------------
(b) Records of the Federal courts        Parts 1254 through 1260 of this
                                          chapter. FOIA does not apply
                                          to these records.
------------------------------------------------------------------------

[[Page 906]]

 
(c) Records of Congress                  Parts 1254 through 1260 of this
                                          chapter. FOIA does not apply
                                          to these records.
------------------------------------------------------------------------
(d) Presidential records (created by     This part and parts 1254
 Presidents holding office since 1981).   through 1270 of this chapter.
                                          FOIA applies to these records
                                          5 years after the President
                                          leaves office. However a
                                          President may invoke
                                          exemptions under the
                                          Presidential Records Act which
                                          would extend this up to 12
                                          years after the President
                                          leaves office.
------------------------------------------------------------------------
(e) Documents created by Presidents      The deed of gift under which
 holding office before 1981 and housed    they were given to NARA. These
 in a NARA Presidential library.          documents are not Federal
                                          records and FOIA does not
                                          apply to these materials.
------------------------------------------------------------------------
(f) Nixon Presidential materials         Part 1275 of this chapter. FOIA
                                          does not apply to these
                                          materials.
------------------------------------------------------------------------



Sec. 1250.8  Does NARA provide access to all the executive branch records 

housed at NARA facilities?

    (a) NARA provides access to the records NARA creates (operational 
records) and records originating in other Federal agencies that have 
been transferred to the legal custody of the Archivist of the United 
States (archival records).
    (b) Twentieth-century personnel and medical records of former 
members of the military and of former civilian employees of the Federal 
government are held at NARA's National Personnel Records Center (NPRC), 
located in St. Louis, Missouri. These records remain in the legal 
custody of the agencies that created them and access to them is governed 
by the FOIA and other access regulations of the creating agencies. The 
NPRC processes FOIA requests under authority delegated by the 
originating agencies, not under the provisions of this part.
    (c) In our national and regional records centers, NARA stores 
records that agencies no longer need for day-to-day business. These 
records remain in the legal custody of the agencies that created them. 
Access to these records is through the originating agency. NARA does not 
process FOIA requests for these records.



Sec. 1250.10  Do I need to use FOIA to gain access to records at NARA?

    (a) Most archival records held by NARA are available to the public 
for research without filing a FOIA request. You may either visit a NARA 
facility as a researcher to view and copy records or you may write to 
request copies of specific records.
    (b) If you are seeking access to archival records that are 
restricted and not available to the public, you may need to file a FOIA 
request or a mandatory review request (see part 1254 of this chapter for 
procedures for accessing classified records) to gain access to these 
materials. If you make a reference request for restricted records, we 
may ask that you change your reference request to a FOIA request or a 
mandatory review request. See 36 CFR 1254.46 for information on filing 
mandatory review requests.
    (c) You must file a FOIA request when you request access to NARA 
operational records that are not already available to the public.



Sec. 1250.12  What types of records are available in NARA's FOIA Reading Room?

    (a) NARA makes available for public inspection and copying the 
following materials described in subsection (a)(2) of the FOIA:
    (1) Final NARA orders;
    (2) Written statements of NARA policy that are not published in the 
Federal Register;
    (3) Operational staff manuals and instructions to staff that affect 
members of the public;

[[Page 907]]

    (4) Copies of records requested 3 or more times under FOIA and other 
records that have been or are likely to become the subject of subsequent 
FOIA requests for substantially the same records;
    (5) An index, updated quarterly, to these materials.
    (b) These materials are available during normal working hours at the 
NARA facility where the records are located. See 36 CFR parts 1253 and 
1254 for a fuller description of NARA facilities and research room 
procedures.
    (c) Any of this material that was created after October 31, 1996, 
will also be placed on NARA's web site at http://www.archives.gov/
research--room/foia--reading--room/foia--reading--room.html.
    (d) For paper copies of the index to these materials write the NARA 
FOIA Officer at the address listed in Sec. 1250.22(d).

[66 FR 16376, Mar. 23, 2001, as amended at 67 FR 43253, June 27, 2002]



Sec. 1250.14  If I do not use FOIA to request records, will NARA treat my 

request differently?

    Whether you choose to invoke the FOIA or not, NARA will respond as 
promptly as possible to your request.



               Subpart B_How To Access Records Under FOIA



Sec. 1250.20  What do I include in my FOIA request?

    In your FOIA request, you must:
    (a) Describe the records you wish to access in enough detail to 
allow NARA staff to find them. The more information you provide, the 
better possibility NARA has of finding the records you are seeking. 
Information that will help us find the records includes:
    (1) The agencies, offices, or individuals involved; and
    (2) The approximate date when the records were created.
    (b) Include your name and full mailing address. If possible, please 
include a phone number or email address as well. This information will 
allow us to reach you faster if we have any questions about your 
request.
    (c) Mark both your letter and envelope with the words ``FOIA 
Request.''



Sec. 1250.22  Where do I send my FOIA request?

    (a) For requests for archival records in the Washington, DC, area, 
mail your request to the Chief, Special Access and FOIA Staff (NWCTF), 
Room 6350, National Archives and Records Administration, 8601 Adelphi 
Road, College Park, MD 20740-6001.
    (b) For archival records in any of NARA's regional records services 
facilities, send the FOIA request to the director of the facility in 
which the records are located. The addresses for these facilities are 
listed in 36 CFR 1253.7.
    (c) For Presidential records subject to FOIA, mail your request to 
the director of the library in which the records are located. The 
addresses for these facilities are listed in 36 CFR 1253.3.
    (d) For the operational records of any NARA unit except the Office 
of the Inspector General, mail your request to the NARA FOIA Officer 
(NGC), Room 3110, National Archives and Records Administration, 8601 
Adelphi Road, College Park, MD 20740-6001.
    (e) For records of the Inspector General write to Office of the 
Inspector General (OIG), FOIA Request, Room 1300, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
    (f) If you are unable to determine where to send your request, send 
it to the NARA FOIA Officer (NGC), Room 3110, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. 
That office will forward your request to the office(s) that have the 
records you are seeking. Your request will be considered received when 
it reaches the proper office's FOIA staff.



Sec. 1250.24  Will you accept a FOIA request through email?

    Yes, send email FOIA requests to http://www.archives.gov/global--
pages/inquire--form.html. You must indicate in the subject line of your 
email message that you are sending a FOIA request. The body of the 
message must contain all of the information listed in Sec. 1250.20.

[66 FR 16376, Mar. 23, 2001, as amended at 67 FR 43253, June 27, 2002]

[[Page 908]]



Sec. 1250.26  How quickly will NARA respond to my FOIA request?

    (a) NARA will make an initial response to all FOIA requests within 
20 working days. The initial response will inform requesters of any 
complexity in processing their request, which may lengthen the time 
required to reach a final decision on the release of the records.
    (b) In most cases, NARA will make a decision on the release of the 
records you requested within the 20 working days. If unusual 
circumstances prevent us from making a decision within 20 working days, 
we will inform you in writing how long it will take us to complete your 
request. Unusual circumstances are the need to:
    (1) Search for and collect the records from field facilities;
    (2) Search for, collect, and review a voluminous amount of records 
which are part of a single request; or
    (3) Consult with another agency before releasing records.
    (c) If we are extending the deadline for more than an additional 10 
working days, we will ask you if you wish to modify your request so that 
we can meet the deadline. If you do not agree to modify your request, we 
will work with you to arrange an alternative time schedule for review 
and release.
    (d) If you have requested records that we do not have the authority 
to release without consulting another agency (e.g. security-classified 
records), we will refer copies of the documents to the appropriate 
agency. NARA will send you an initial response to your FOIA requests 
within 20 working days informing you of this referral. However, the 
final response to your FOIA can only be made when the agency to which we 
have referred the documents responds to us.
    (e) If you have requested Presidential records and NARA decides to 
grant you access, NARA must inform the incumbent and former Presidents 
of our intention to disclose information from those records. After 
receiving the notice, the incumbent and former Presidents have 30 days 
in which to decide whether or not to invoke Executive privilege to deny 
access to the information. NARA will send you an initial response to 
your FOIA request within 20 working days informing you of the status of 
your request. However, the final response to your FOIA can only be made 
at the end of the 30-day Presidential notification period.
    (f) If you have requested records containing confidential commercial 
information that is less than 10 years old, we will contact the 
submitter of the requested information. NARA will send you an initial 
response to your FOIA request within 20 working days informing you of 
our actions. See Sec. 1250.82 for the time allowed the submitter to 
object to the release of confidential commercial information. If the 
records contain confidential commercial information that is 10 years old 
or older, NARA staff will not contact the submitter, but will process 
the request under normal FOIA procedures.



Sec. 1250.28  Will NARA ever expedite the review of the records I requested?

    (a) In certain cases NARA will move your FOIA request or appeal to 
the head of our FOIA queue. We will do this for any of the following 
reasons:
    (1) A reasonable expectation of an imminent threat to an 
individual's life or physical safety;
    (2) A reasonable expectation of an imminent loss of a substantial 
due process right; or
    (3) An urgent need to inform the public about an actual or alleged 
Federal government activity (this last criterion applies only to those 
requests made by a person primarily engaged in disseminating information 
to the public).
    (b) NARA can expedite requests, or segments of requests, only for 
records over which we have control. If NARA must refer a request to 
another agency, we will so inform you and suggest that you seek 
expedited review from that agency. We cannot expedite requests for 
Presidential records or shorten the 30-day Presidential notification 
period.



Sec. 1250.30  How do I request expedited processing?

    You must submit a statement, certified to be true and correct to the 
best of your knowledge, explaining the basis of your need for expedited 
processing. All such requests must be sent to the

[[Page 909]]

appropriate official at the address listed in Sec. 1250.22. You may 
request expedited processing when you first request records or at any 
time during our processing of your request.



Sec. 1250.32  How quickly will NARA process an expedited request?

    We will respond to you within 10 days of our receipt of your request 
for expedited processing. If we grant your request, the NARA office 
responsible for the review of the requested records will process your 
request as quickly as possible. If we deny your request for expedited 
processing and you decide to appeal our denial, we will also expedite 
our review of your appeal.



Sec. 1250.34  How will I know if NARA is going to release the records I 

requested?

    Once NARA decides to release the requested records, in whole or in 
part, we will inform you in writing. Our response will tell you how much 
responsive material we found, where you may review the records, and the 
copying or other charges due. If the records you sought were released 
only in part, we will estimate, if possible, the amount of the withheld 
information. Also, if we deny any part of your request, our response 
will explain the reasons for the denial, which FOIA exemptions apply, 
and your right to appeal our decisions.



Sec. 1250.36  When will NARA deny a FOIA request?

    The FOIA contains nine exemptions under which information may be 
exempted from release. Given the age and nature of archival records, 
many of these exemptions apply to only a few of the records in our 
custody. We will only withhold information where we must (such as 
information which remains classified, or information which is 
specifically closed by statute) or we reasonably foresee that disclosure 
would cause a harm. In addition if only part of a record must be 
withheld, NARA will provide access to the rest of the information in the 
record. Categories of information that may be exempt from disclosure 
under the FOIA are as follows:

------------------------------------------------------------------------
     Section of the FOIA:                Reason for exemption:
------------------------------------------------------------------------
5 U.S.C. 552(b)(1)             Specifically authorized under criteria
                                established by an Executive order to be
                                kept secret in the interest of national
                                defense or foreign policy and are in
                                fact properly classified under the
                                Executive order.
------------------------------------------------------------------------
5 U.S.C. 552(b)(2)             Related solely to the internal personnel
                                rules and practices of an agency.
------------------------------------------------------------------------
5 U.S.C. 552(b)(3)             Specifically exempted from disclosure by
                                statute (other than section 552b of this
                                title), provided that the statute:
                               (A) Requires that the matters be withheld
                                from the public in such a manner as to
                                leave no discretion on the issue; or
                               (B) Establishes particular criteria for
                                withholding or refers to particular
                                types of matters to be withheld.
------------------------------------------------------------------------
5 U.S.C. 552(b)(4)             Trade secrets and commercial or financial
                                information obtained from a person that
                                are privileged or confidential.
------------------------------------------------------------------------
5 U.S.C. 552(b)(5)             Inter-agency or intra-agency memorandums
                                or letters which would not be available
                                by law to a party other than an agency
                                in litigation with the agency.
------------------------------------------------------------------------
5 U.S.C. 552(b)(6)             Personnel and medical files and similar
                                files the disclosure of which would
                                constitute a clearly unwarranted
                                invasion of personal privacy.
------------------------------------------------------------------------

[[Page 910]]

 
5 U.S.C. 552(b)(7)             Records or information compiled for law
                                enforcement purposes, but only to the
                                extent that the production of such law
                                enforcement records or information:
                               (A) Could reasonably be expected to
                                interfere with enforcement proceedings:
                               (B) Would deprive a person of a right to
                                a fair trial or an impartial
                                adjudication;
                               (C) Could reasonably be expected to
                                constitute an unwarranted invasion of
                                personal privacy;
                               (D) Could reasonably be expected to
                                disclose the identity of a confidential
                                source, including a State, local, or
                                foreign agency or authority or any
                                private institution which furnished
                                information on a confidential basis,
                                and, in the case of a record or
                                information compiled by a criminal law
                                enforcement authority in the course of a
                                criminal investigation, or by an agency
                                conducting lawful national security
                                intelligence investigation, information
                                furnished by a confidential source;
                               (E) Would disclose techniques and
                                procedures for law enforcement
                                investigations or prosecutions, or would
                                disclose guidelines for law enforcement
                                investigations or prosecutions if such
                                disclosure could reasonably be expected
                                to risk circumvention of the law; or
                               (F) Could reasonably be expected to
                                endanger the life or physical safety of
                                any individual.
------------------------------------------------------------------------
5 U.S.C. 552(b)(8)             Contained in or related to examination,
                                operating, or condition reports prepared
                                by, on behalf of, or for the use of an
                                agency responsible for the regulation or
                                supervision of financial institutions.
------------------------------------------------------------------------
5 U.S.C. 552(b)(9)             Geological and geophysical information
                                and data, including maps, concerning
                                wells.
------------------------------------------------------------------------



Sec. 1250.38  In what format will NARA provide copies?

    After all applicable fees are paid, NARA will provide you copies of 
records in the format you request if the records already exist in that 
format, or if they are readily reproducible in the format you request.



                             Subpart C_Fees



Sec. 1250.50  Will I be charged for my FOIA request?

    (a) Fees and fee waivers for FOIA requests for NARA operational 
records are listed in this subpart.
    (b) Fees for FOIA requests for NARA archival records are listed in 
36 CFR part 1258.



Sec. 1250.52  How much will I have to pay for a FOIA request for NARA 

operational records?

    (a) If you are a commercial use requester, we will charge you fees 
for searching, reviewing, and copying.
    (b) If you are an educational or scientific institution requester, 
or a member of the news media, we will charge you fees for copying. 
However, we will not charge you for copying the first 100 pages.
    (c) If you do not fall into either of the categories in paragraphs 
(a) and (b) of this section, then we will charge you search and copying 
fees. However, we will not charge you for the first 2 hours of search 
time or for copying the first 100 pages.



Sec. 1250.54  General information on fees for NARA operational records.

    (a) NARA is able to make most of its records available for 
examination at the NARA facility where the records

[[Page 911]]

are located. Whenever this is possible, you may review the records in a 
NARA research room at that facility.
    (b) If you want NARA to supply you with copies, we will normally 
require you to pay all applicable fees in accordance with Sec. 1250.52 
before we provide you with the copies.
    (c) NARA may charge search fees even if the records are not 
releasable or even if we do not find any responsive records during our 
search.
    (d) If you are entitled to receive 100 free pages, but the records 
cannot be copied onto standard size (8.5 by 11) 
photocopy paper, we will copy them on larger paper and will reduce your 
copy fee by the normal charge for 100 standard size photocopies. If the 
records are not on textual media (e.g., photographs or electronic files) 
we will provide the equivalent of 100 pages of standard size paper 
copies for free.
    (e) We will not charge you any fee if the total costs are $10 or 
less.
    (f) If estimated search or review fees exceed $50, we will contact 
you. If you have specified a different limit that you are willing to 
spend, we will contact you only if we estimate the fees will exceed that 
amount.
    (g) If you have failed to pay FOIA fees in the past, we will require 
you to pay your past-due bill before we begin processing your request. 
If we estimate that your fees may be greater than $250, we may require 
payment or a deposit before we begin processing your request.
    (h) If we determine that you (acting either alone or with others) 
are breaking down a single request into a series of requests in order to 
avoid or reduce fees, we may aggregate all these requests in calculating 
the fees.



Sec. 1250.56  Fee schedule for NARA operational records.

    In responding to FOIA requests for operational records, NARA will 
charge the following fees, where applicable, unless we have given you a 
reduction or waiver of fees under Sec. 1250.60.
    (a) Search fees--(1) Manual searching of records. When the search is 
relatively straightforward and can be performed by a clerical or 
administrative employee, the search rate is $16 per hour (or fraction 
thereof). When the request is more complicated and must be done by a 
professional employee of NARA, the rate is $33 per hour (or fraction 
thereof)
    (2) Computer searching. This is the actual cost to NARA of operating 
the computer and the salary of the operator. When the search is 
relatively straightforward and can be performed by a clerical or 
administrative employee, the search rate is $16 per hour (or fraction 
thereof). When the request is more complicated and must be done by a 
professional employee of NARA, the rate is $33 per hour (or fraction 
thereof).
    (b) Review fees. (1) Review fees are charged for time spent 
examining all documents that are responsive to a request to determine if 
any are exempt from release and to determine if NARA will release 
exempted records.
    (2) The review fee is $33 per hour (or fraction thereof).
    (3) NARA will not charge review fees for time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (c) Reproduction fees--(1) Self-service photocopying. At NARA 
facilities with self-service photocopiers, you may make reproductions of 
released paper documents for 15 cents per page.
    (2) Photocopying standard size pages. This charge is 20 cents per 
page when NARA produces the photocopies.
    (3) Reproductions of electronic records. The direct costs to NARA 
for staff time for programming, computer operations, and printouts or 
electromagnetic media to reproduce the requested information will be 
charged to requesters. When the work is relatively straightforward and 
can be performed by a clerical or administrative employee, the rate is 
$16 per hour (or fraction thereof). When the request is more complicated 
and must be done by a professional employee of NARA, the rate is $33 per 
hour (or fraction thereof).
    (4) Copying other media. This is the direct cost to NARA of the 
reproduction. Specific charges will be provided upon request.



Sec. 1250.58  Does NARA ever waive FOIA fees for NARA operational records?

    (a) NARA will waive or reduce your fees for NARA operational records 
only

[[Page 912]]

if your request meets both of the following criteria:
    (1) The request is in the public interest (i.e., information likely 
to contribute significantly to public understanding of the operations 
and activities of the government); and
    (2) The request is not primarily in your commercial interest.
    (b) All requests for fee waivers or reductions must be made at the 
time of the initial FOIA request. All requests must include the grounds 
for requesting the reduction or elimination of fees.



Sec. 1250.60  How will NARA determine if I am eligible for a fee waiver for 

NARA operational records?

    (a) If you request a fee waiver, NARA will consider the following in 
reviewing how your request meets the public interest criteria in Sec. 
1250.58(a)(1):
    (1) How do the records pertain to the operations and activities of 
the Federal Government?
    (2) Will release reveal any meaningful information about Federal 
Government activities that is not already publicly known?
    (3) Will disclosure to you advance the understanding of the general 
public on the issue?
    (4) Do you have expertise in or a thorough understanding of these 
records?
    (5) Will you be able to disseminate this information to a broad 
spectrum of the public?
    (6) Will disclosure lead to a significantly greater understanding of 
the Government by the public?
    (b) After reviewing your request and determining that there is a 
substantial public interest in release, NARA will also review it to 
determine if it furthers your commercial interests. If it does, you are 
not eligible for a fee waiver.



                            Subpart D_Appeals



Sec. 1250.70  What are my appeal rights under FOIA?

    You may appeal any of the following decisions:
    (a) The refusal to release a record, either in whole or in part;
    (b) The determination that a record does not exist or cannot be 
found;
    (c) The determination that the record you sought was not subject to 
the FOIA;
    (d) The denial of a request for expedited processing; or
    (e) The denial of a fee waiver request.



Sec. 1250.72  How do I file an appeal?

    (a) All appeals must be in writing and received by NARA within 35 
calendar days of the date of NARA's denial letter. Mark both your letter 
and envelope with the words ``FOIA Appeal,'' and include a copy of your 
initial request and our denial.
    (b) In your appeal, explain why we should release the records, grant 
your fee waiver request, or expedite the processing of your request. If 
we were not able to find the records you wanted, explain why you believe 
our search was inadequate. If we denied you access to records and told 
you that those records were not subject to FOIA, please explain why you 
believe the records are subject to FOIA.



Sec. 1250.74  Where do I send my appeal?

    (a) If NARA's Inspector General denied your request, send your 
appeal to the Archivist of the United States, (ATTN: FOIA Appeal Staff), 
Room 4200, National Archives and Records Administration, 8601 Adelphi 
Road, College Park, Maryland 20740-6001.
    (b) Send all other appeals to the Deputy Archivist of the United 
States, (ATTN: FOIA Appeal Staff), Room 4200, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, Maryland 20740-
6001.
    (c) Denials under FOIA of access to national security information 
accessioned into the National Archives of the United States are made by 
designated officials of the originating or responsible agency or by NARA 
under a written delegation of authority. You must appeal determinations 
that records remain classified for reasons of national security to the 
agency with responsibility for protecting and declassifying that 
information. NARA will provide you with the necessary appeal information 
in those cases. You

[[Page 913]]

can find additional information on access to national security 
classified records at NARA in 36 CFR part 1254.



Sec. 1250.76  May I email my FOIA appeal?

    Yes, you may submit a FOIA appeal via email to http://
www.archives.gov/global--pages/inquire--form.html. You must put the 
words ``FOIA Appeal'' in the subject line of your email message. The 
body of your message must contain the information in Sec. 1250.72(b).

[66 FR 16376, Mar. 23, 2001, as amended at 67 FR 43253, June 27, 2002]



Sec. 1250.78  How does NARA handle appeals?

    NARA will respond to your appeal within 20 working days after its 
receipt of the appeal by NARA. If we reverse or modify our initial 
decision, we will inform you in writing and reprocess your request. If 
we do not change our initial decision, our response to you will explain 
the reasons for our decision, any FOIA exemptions that apply, and your 
right to judicial review of our decision.



                      Subpart E_Special Situations



Sec. 1250.80  How does a submitter identify records containing confidential 

commercial information?

    When a person submits records that contain confidential commercial 
information to NARA, that person may state in writing that all or part 
of the records are exempt from disclosure under exemption (b)(4) of the 
FOIA.



Sec. 1250.82  How will NARA handle a FOIA request for confidential commercial 

information?

    If NARA receives a FOIA request for records containing confidential 
commercial information or for records that we believe may contain 
confidential commercial information and if the information is less than 
10 years old, we will follow these procedures:
    (a) If, after reviewing the records in response to a FOIA request, 
we believe that the records may be opened, we will make reasonable 
efforts to inform the submitter of this. When the request is for 
information from a single or small number of submitters, NARA will send 
a notice via registered mail to the submitter's last known address. Our 
notice to the submitter will include a copy of the FOIA request and will 
tell the submitter the time limits and procedures for objecting to the 
release of the requested material.
    (b) The submitter will have 5 working days from the receipt of our 
notice to object to the release and to explain the basis for the 
objection. The NARA FOIA Officer may extend this period for an 
additional 5 working days.
    (c) NARA will review and consider all objections to release that are 
received within the time limit. If we decide to release the records, we 
will inform the submitter in writing. This notice will include copies of 
the records as we intend to release them and our reasons for deciding to 
release. We will also inform the submitter that we intend to release the 
records 10 working days after the date of the notice unless a U.S. 
District Court forbids disclosure.
    (d) If the requester files a lawsuit under the FOIA for access to 
any withheld records, we will inform the submitter.
    (e) We will notify the requester whenever we notify the submitter of 
the opportunity to object or to extend the time for objecting.



PART 1251_TESTIMONY BY NARA EMPLOYEES RELATING TO AGENCY INFORMATION AND 

PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS--Table of Contents




Sec.
1251.1 What is the purpose of this part?
1251.2 To what demands does this part apply?
1251.3 What definitions apply to this part?
1251.4 May employees provide records or give testimony in response to a 
          demand without authorization?
1251.6 How does the General Counsel determine whether to comply with a 
          demand for records or testimony?
1251.8 Who is authorized to accept service of a subpoena demanding the 
          production of records or testimony?
1251.10 What are the filing requirements for a demand for documents or 
          testimony?
1251.12 How does NARA process your demand?
1251.14 Who makes the final determination on compliance with demands for 
          records or testimony?
1251.16 Are there any restrictions that apply to testimony?

[[Page 914]]

1251.18 Are there any restrictions that apply to the production of 
          records?
1251.20 Are there any fees associated with providing records or 
          testimony?
1251.22 Are there penalties for providing records or testimony in 
          violation of this part?

    Authority: 44 U.S.C. 2104; 44 U.S.C. 2108; 44 U.S.C. 2109; 44 U.S.C. 
2111 note; 44 U.S.C. 2112; 44 U.S.C. 2116; 44 U.S.C. ch. 22; 44 U.S.C. 
3103.

    Source: 73 FR 79393, Dec. 29, 2008, unless otherwise noted.



Sec. 1251.1  What is the purpose of this part?

    (a) This part provides the policies and procedures to follow when 
submitting a demand to an employee of the National Archives and Records 
Administration (NARA) to produce records or provide testimony relating 
to agency information in connection with a legal proceeding. You must 
comply with these requirements when you request the release or 
disclosure of records or agency information.
    (b) The National Archives and Records Administration intends these 
provisions to:
    (1) Promote economy and efficiency in its programs and operations;
    (2) Minimize NARA's role in controversial issues not related to its 
mission;
    (3) Maintain NARA's impartiality among private litigants when NARA 
is not a named party; and
    (4) Protect sensitive, confidential information and the deliberative 
processes of NARA.
    (c) In providing for these requirements, NARA does not waive the 
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of NARA. 
It does not create any right or benefit, substantive or procedural, that 
a party may rely upon in any legal proceeding against the United States.



Sec. 1251.2  To what demands does this part apply?

    This part applies to demands to NARA employees for factual, opinion, 
or expert testimony relating to agency information or for production of 
records in legal proceedings whether or not NARA is a named party. 
However, it does not apply to:
    (a) Demands upon or requests for a NARA employee to testify as to 
facts or events that are unrelated to his or her official duties and 
that are unrelated to the functions of NARA;
    (b) Demands upon or requests for a former NARA employee to testify 
as to matters in which the former employee was not directly or 
materially involved while at NARA;
    (c) Requests for the release of, or access to, records under the 
Freedom of Information Act, 5 U.S.C. 552, as amended; the Privacy Act, 5 
U.S.C. 552a; the Federal Records Act, 44 U.S.C. chs. 21, 29, 31, 33; the 
Presidential Records Act, 44 U.S.C. ch. 22; or the Presidential 
Recordings and Materials Preservation Act, 44 U.S.C. 2111 note;
    (d) Demands for records or testimony in matters before the Equal 
Employment Opportunity Commission or the Merit Systems Protection Board; 
and
    (e) Congressional demands and requests for testimony or records.



Sec. 1251.3  What definitions apply to this part?

    The following definitions apply to this part:
    Court of competent jurisdiction means, for purposes of this part, 
the judge or some other competent entity, as authorized by statute or 
regulation or other lawful means, and not simply by an attorney or court 
clerk, must sign a demand for records the disclosure of which is 
constrained by the Privacy Act, 5 U.S.C. 552a because section (b)(11) of 
the Act requires appropriate authorization of a court of competent 
jurisdiction. See Doe v. Digenova, 779 F.2d 74 (D.C. Cir. 1985); Stiles 
v. Atlanta Gas Light Company, 453 F. Supp. 798 (N.D. Ga. 1978).
    Demand means a subpoena, or an order or other command of a court or 
other competent authority, for the production, disclosure, or release of 
records in a legal proceeding, or for the appearance and testimony of a 
NARA employee in a legal proceeding.
    General Counsel means the General Counsel of NARA or a person to 
whom the General Counsel has delegated authority under this part. 
General Counsel also means the Inspector General of NARA (or a person to 
whom the Inspector General has delegated authority

[[Page 915]]

under this part) when a demand is made for records of NARA's Office of 
the Inspector General, or for the testimony of an employee of NARA's 
Office of the Inspector General.
    Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer, legislative body, or other body that conducts a legal 
or administrative proceeding. Legal proceeding includes all phases of 
litigation.
    NARA means the National Archives and Records Administration.
    NARA employee or employee means:
    (1) Any current or former officer or employee of NARA, except that 
this definition does not include former NARA employees who are retained 
or hired as expert witnesses concerning, or who agree to testify about, 
matters available to the public or matters with which they had no 
specific involvement or responsibility during their employment with 
NARA;
    (2) Any other individual hired through contractual agreement by or 
on behalf of NARA or who has performed or is performing services under 
such an agreement for NARA;
    (3) Any individual who served or is serving in any consulting or 
advisory capacity to NARA, whether formal or informal; and
    (4) Any individual who served or is serving in any volunteer or 
internship capacity to NARA.
    Records or agency information means:
    (1) Archival records, which are permanently valuable records of the 
United States Government that have been transferred to the legal custody 
of the Archivist of the United States;
    (2) Operational records, which are those records that NARA creates 
or receives in carrying out its mission and responsibilities as an 
executive branch agency. This does not include archival records as 
defined above in this section;
    (3) All documents and materials which are NARA agency records under 
the Freedom of Information Act, 5 U.S.C. 552, as amended;
    (4) Presidential records as defined in 44 U.S.C. 2201; historical 
materials as defined in 44 U.S.C. 2101; records as defined in 44 U.S.C. 
2107 and 44 U.S.C. 3301;
    (5) All other documents and materials contained in NARA files; and
    (6) All other information or materials acquired by a NARA employee 
in the performance of his or her official duties or because of his or 
her official status.
    Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, 
interviews, and statements made by an individual in connection with a 
legal proceeding.



Sec. 1251.4  May employees provide records or give testimony in response to a 

demand without authorization?

    No, except as otherwise permitted by Sec. 1251.14 of this part, no 
employee may produce records and information or provide any testimony 
relating to agency information in response to a demand, or other legal 
request, without the prior, written approval of the General Counsel.



Sec. 1251.6  How does the General Counsel determine whether to comply with a 

demand for records or testimony?

    The General Counsel may consider the following factors in 
determining whether or not to grant an employee permission to testify on 
matters relating to agency information, or permission to produce records 
in response to a demand:
    (a) NARA's compliance with the demand is required by federal law, 
regulation or rule, or is otherwise permitted by this part;
    (b) The purposes of this part are met;
    (c) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (d) NARA has an interest in the decision that may be rendered in the 
legal proceeding;
    (e) Allowing such testimony or production of records would assist or 
hinder NARA in performing its statutory duties;
    (f) Allowing such testimony or production of records would involve a 
substantial use of NARA resources;
    (g) Responding to the demand would interfere with the ability of 
NARA employees to do their work;

[[Page 916]]

    (h) Allowing such testimony or production of records would be in the 
best interest of NARA or the United States;
    (i) The records or testimony can be obtained from the publicly 
available records of NARA or from other sources;
    (j) The demand is 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;
    (k) Disclosure would violate a statute, Executive Order or 
regulation;
    (l) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential commercial or 
financial information, otherwise protected information, or information 
which would otherwise be inappropriate for release;
    (m) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceeding, or compromise constitutional 
rights;
    (n) Disclosure would result in NARA appearing to favor one litigant 
over another;
    (o) Disclosure relates to documents that were created by another 
agency;
    (p) A substantial Government interest is implicated;
    (q) The demand is within the authority of the party making it;
    (r) The demand is sufficiently specific to be answered; and
    (s) Other factors, as appropriate.



Sec. 1251.8  Who is authorized to accept service of a subpoena demanding the 

production of records or testimony?

    (a) Demands for testimony, except those involving an employee of 
NARA's Office of the Inspector General, must be addressed to, and served 
on, the General Counsel, National Archives and Records Administration, 
Suite 3110, 8601 Adelphi Road, College Park, MD 20740-6001.
    (b) Demands for the testimony of an employee of NARA's Office of the 
Inspector General must be addressed to, and served on, the Inspector 
General, National Archives and Records Administration, Suite 1300, 8601 
Adelphi Road, College Park, MD 20740-6001.
    (c) Demands for the production of NARA operational records, except 
those of the Office of the Inspector General, must be addressed to, and 
served on, the General Counsel.
    (d) Demands for records of the Inspector General must be addressed 
to, and served on, the Inspector General.
    (e) Demands for the production of records stored in a Federal 
Records Center (FRC), including the National Personnel Records Center, 
must be addressed to, and served on, the director of the FRC where the 
records are stored. NARA honors the demand to the extent required by 
law, if the agency having legal title to the records has not imposed any 
restrictions. If the agency has imposed restrictions, NARA notifies the 
authority issuing the demand that NARA abides by the agency-imposed 
restrictions and refers the authority to the agency for further action.
    (f) Demands for the production of materials designated as Federal 
archival records, Presidential records or donated historical materials 
administered by NARA must be addressed to, and served on either: the 
Assistant Archivist for Records Services--Washington, DC (for records 
located in Headquarters); Director of Archival Operations (for records 
located in the regions); or the appropriate Presidential Library 
Director.
    (g) For matters in which the United States is a party, the 
Department of Justice should contact the General Counsel instead of 
submitting a demand for records or testimony on its own or another 
agency's behalf.
    (h) The demanding party is responsible for complying with all 
service requirements, including any additional requirements contained in 
the Federal Rules of Civil Procedure or other statutory or regulatory 
authority.
    (i) Contact information for each NARA facility may be found at 36 
CFR part 1253.



Sec. 1251.10  What are the filing requirements for a demand for documents or 

testimony?

    You must comply with the following requirements, as appropriate, 
whenever you issue a demand to a NARA employee for records, agency 
information or testimony:

[[Page 917]]

    (a) Your demand must be in writing and must be served on the 
appropriate party as identified in Sec. 1251.8.
    (b) Demands for production of records that are governed by the 
Privacy Act require authorization of a court of competent jurisdiction 
as defined in Sec. 1251.3.
    (c) Your written demand (other than a demand pursuant to the Federal 
Rules of Civil Procedure in a case in which NARA is a party, in which 
case you must comply with the requirements of that rule) must contain 
the following information:
    (1) The caption of the legal proceeding, docket number, and name and 
address of the court or other authority involved;
    (2) A copy of the complaint or equivalent document setting forth the 
assertions in the case and any other pleading or document necessary to 
show relevance;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the testimony 
or records sought;
    (4) A statement as to how the need for the information outweighs the 
need to maintain any confidentiality of the information and outweighs 
the burden on NARA to produce the records or provide testimony;
    (5) A statement indicating that the information sought is not 
available from another source, from other persons or entities, or from 
the testimony of someone other than a NARA employee, such as a retained 
expert;
    (6) If testimony is requested, the intended use of the testimony, a 
general summary of the desired testimony, and a showing that no document 
could be provided and used instead of testimony;
    (7) A description of all previous decisions, orders, or pending 
motions in the case that bear upon the relevance of the requested 
records or testimony;
    (8) The name, address, and telephone number of counsel to each party 
in the case; and
    (9) An estimate of the amount of time that the requester and other 
parties may require with each NARA employee for time spent by the 
employee in connection with the request for testimony.
    (d) NARA reserves the right to require additional information to 
process your demand.
    (e) Your demand (other than a demand pursuant to the Federal Rules 
of Civil Procedure in a case in which NARA is a party, in which case you 
must comply with the requirements of that rule) should be submitted at 
least 45 days before the date that records or testimony is required. 
Demands submitted in less than 45 days before records or testimony is 
required must be accompanied by a written explanation stating the 
reasons for the late request and the reasons for expedited processing.
    (f) Failure to cooperate in good faith to enable the General Counsel 
to make an informed decision may serve as the basis for a determination 
not to comply with your demand.
    (g) The information collection contained in this section has been 
approved by the Office of Management and Budget under the Paperwork 
Reduction Act under the control number 3095-0038.



Sec. 1251.12  How does NARA process your demand?

    (a) After service of a demand for production of records or for 
testimony, an appropriate NARA official reviews the demand and, in 
accordance with the provisions of this, determines whether, or under 
what conditions, to produce records or authorize the employee to testify 
on matters relating to agency information.
    (b) NARA processes demands in the order in which we receive them. 
NARA will not complete and return certifications, affidavits, or similar 
documents submitted with a demand for records, but if requested will 
certify records in accordance with NARA's published fee schedule at 36 
CFR part 1258. Absent exigent or unusual circumstances, NARA responds 
within 45 days from the date of receipt. The time for response depends 
upon the scope of the demand.
    (c) The General Counsel may grant a waiver of any procedure 
described by this part where a waiver is considered

[[Page 918]]

necessary to promote a significant interest of NARA or the United States 
or for other good cause.



Sec. 1251.14  Who makes the final determination on compliance with demands for 

records or testimony?

    The General Counsel makes the final determination on demands to 
employees for testimony. The appropriate NARA official authorized to 
accept service, as described in Sec. 1251.8, makes the final 
determination on demands for the production of records. The NARA 
official notifies the requester and, as necessary, the court or other 
authority of the final determination and any conditions that may be 
imposed on the release of records or information, or on the testimony of 
a NARA employee. If the NARA official deems it appropriate not to comply 
with the demand, the official communicates the reasons for the 
noncompliance as appropriate.



Sec. 1251.16  Are there any restrictions that apply to testimony?

    (a) The General Counsel may impose conditions or restrictions on the 
testimony of NARA employees including, for example, limiting the areas 
of testimony or requiring the requester and other parties to the legal 
proceeding to agree that the transcript of the testimony will be kept 
under seal or will only be used or made available in the particular 
legal proceeding for which testimony was requested. The General Counsel 
may also require a copy of the transcript of testimony at the 
requester's expense.
    (b) NARA may offer the employee's written declaration instead of 
testimony.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the General Counsel, the employee 
must not:
    (1) Disclose confidential or privileged information; or
    (2) For a current NARA employee, testify as an expert or opinion 
witness with regard to any matter arising out of the employee's official 
duties or the functions of NARA unless testimony is being given on 
behalf of the United States.



Sec. 1251.18  Are there any restrictions that apply to the production of 

records?

    (a) The General Counsel may impose conditions or restrictions on the 
release of records and agency information, including the requirement 
that parties to the proceeding obtain a protective order or execute a 
confidentiality agreement to limit access and any further disclosure. 
The terms of the protective order or of a confidentiality agreement must 
be acceptable to the General Counsel. In cases where protective orders 
or confidentiality agreements have already been executed, NARA may 
condition the release of records and agency information on an amendment 
to the existing protective order or confidentiality agreement.
    (b) Typically, original NARA records will not be produced in 
response to a demand. Instead of the original records, NARA provides 
certified copies for evidentiary purposes (see 28 U.S.C. 1733; 44 U.S.C. 
2116). Such copies must be given judicial notice and must be admitted 
into evidence equally with the originals from which they were made (see 
44 U.S.C. 2116). If the General Counsel so determines, under exceptional 
circumstances, original NARA records may be made available for 
examination in response to a demand, but they are not to be presented as 
evidence.



Sec. 1251.20  Are there any fees associated with producing records or 

providing testimony?

    (a) Generally. The General Counsel may condition the production of 
records or appearance for testimony upon advance payment of a reasonable 
estimate of the costs to NARA.
    (b) Fees for records. Fees for producing records include fees for 
searching, reviewing, and duplicating records, costs of attorney time 
spent in reviewing the demand or request, and expenses generated by 
materials and equipment used to search for, produce, and copy the 
responsive information. Costs for employee time are calculated on the 
basis of the hourly pay of the employee (including all pay, allowance, 
and benefits). Fees for duplication are the same

[[Page 919]]

as those charged by NARA in part 1258 of this title.
    (c) Witness fees. Fees for attendance by a witness include fees, 
expenses, and allowances prescribed by the court's rules. If no such 
fees are prescribed, witness fees are determined based upon the rule of 
the Federal district court closest to the location where the witness 
appears.
    (d) Payment of fees.
    (1) Witness fees for current NARA employees must be submitted to the 
General Counsel and made payable to the Treasury of the United States.
    (2) Fees for the production of records, including records 
certification fees, must be submitted to the official who makes the 
final determination on demands for the production of records, as 
described in Sec. 1251.14, and made payable to the National Archives 
Trust Fund (NATF).
    (3) Applicable fees paid to former NARA employees providing 
testimony should be paid directly to the former employee in accordance 
with 28 U.S.C. 1821 or other applicable statutes.
    (e) Certification (authentication) of copies of records. NARA may 
certify that records are true copies in order to facilitate their use as 
evidence. Request certified copies from NARA at least 45 days before the 
date they are needed. We charge a certification fee for each document 
certified.
    (f) Waiver or reduction of fees. The General Counsel, in his or her 
sole discretion, may, upon a showing of good cause, waive or reduce any 
fees in connection with the testimony, production, or certification of 
records.
    (g) De minimis fees. Fees are not assessed if the total charge is 
$10.00 or less, or as otherwise stated in NARA policy.



Sec. 1251.22  Are there any penalties for providing records or testimony in 

violation of this part?

    (a) An employee who discloses official records or information or 
gives testimony relating to official information, except as expressly 
authorized by NARA or as ordered by a Federal court after NARA has had 
the opportunity to be heard, may face the penalties provided in 18 
U.S.C. 641 and other applicable laws. Additionally, former NARA 
employees are subject to the restrictions and penalties of 18 U.S.C. 207 
and 216.
    (b) A current NARA employee who testifies or produces official 
records and information in violation of this part is subject to 
disciplinary action.



PART 1252_PUBLIC USE OF RECORDS, DONATED HISTORICAL MATERIALS, AND FACILITIES; 

GENERAL--Table of Contents




Sec.
1252.1 Scope.
1252.2 Definitions.

    Authority: 44 U.S.C. 2104(a).



Sec. 1252.1  Scope.

    This subchapter prescribes rules and procedures governing the public 
use of records and donated historical materials in the custody of the 
National Archives and Records Administration (NARA). Except for part 
1250, this subchapter does not apply to current operating records of 
NARA. This subchapter also prescribes rules and procedures governing the 
public use of certain NARA facilities.

[59 FR 29191, June 6, 1994]



Sec. 1252.2  Definitions.

    The following definitions are established for terms used in this 
subchapter.
    Archives or archival records mean Federal records that have been 
determined by NARA to have sufficient historical or other value to 
warrant their continued preservation by the U.S. Government, and have 
been transferred to the National Archives of the United States.
    Director means the head of a Presidential library, the head of a 
Presidential Materials Staff, the head of a NARA division, branch, 
archival center, or unit responsible for servicing archival records, the 
head of a regional archives, or the head of a Federal records center.
    Documents mean, for purposes of part 1254 of this chapter, archives, 
FRC records, donated historical materials, Nixon Presidential historical 
materials, and Presidential records, regardless of the media on which 
they are contained. Document form may include

[[Page 920]]

paper, microforms, photographs, sound recordings, motion pictures, maps, 
drawings, and electronic files.
    Donated historical materials means books, correspondence, documents, 
papers, pamphlets, magnetic tapes, pictures, photographs, plats, maps, 
films, motion pictures, sound recordings, and other documental media 
having historical or commemorative value accepted by NARA from a source 
other than an agency of the U.S. Government.
    Federal records center includes the Washington National Records 
Center, the National Personnel Records Center, and the Federal records 
centers listed in Sec. 1253.6 of this chapter.
    Federal records center records (FRC records) mean records which, 
pending their transfer to the National Archives of the United States or 
their disposition in any other manner authorized by law, have been 
transferred to a Federal records center operated by NARA.
    Nixon Presidential historical materials has the meaning specified in 
Sec. 1275.16 of this chapter.
    Presidential records has the meaning specified in Sec. 1270.14 of 
this chapter.
    Records mean records or microfilm copies of records transferred to 
NARA under 44 U.S.C. 2107 and 3103; namely, archives and Federal records 
center records as the terms are defined in Sec. 1252.2. The term 
records does not include current operating records of NARA, the public 
availability of which is governed by part 1250 of this chapter, or 
donated historical materials as defined in this section.
    Researcher means a person who has been granted access to original 
documents or copies of documents.

[33 FR 4885, Mar. 22, 1968, 42 FR 13022, Mar. 8, 1977, and 49 FR 33253, 
Aug. 22, 1984. Redesignated and amended at 50 FR 15723, 15726, Apr. 19, 
1985; 59 FR 29191, June 6, 1994]



PART 1253_LOCATION OF RECORDS AND HOURS OF USE--Table of Contents




Sec.
1253.1 National Archives Building.
1253.2 National Archives at College Park.
1253.3 Presidential Libraries.
1253.4 Washington National Records Center.
1253.5 National Personnel Records Center.
1253.6 Records Centers.
1253.7 Regional Archives.
1253.8 Are NARA research room facilities closed on Federal holidays?

    Authority: 44 U.S.C. 2104(a).

    Source: 65 FR 38730, June 22, 2000, unless otherwise noted.



Sec. 1253.1  National Archives Building.

    (a) The National Archives Building is located at 700 Pennsylvania 
Avenue, NW., Washington, DC 20408. Business hours are 8:45 a.m. to 5:15 
p.m., Monday through Friday, except Federal holidays when the building 
is closed. Hours for the Research Center and the Central Research room 
are as follows:
    (1) Monday and Tuesday, 9 a.m. to 5 p.m.;
    (2) Wednesday, Thursday, and Friday, 9 a.m. to 9 p.m.; and
    (3) Saturday, 9 a.m. to 5 p.m.
    (b) The phone number for the research rooms is 800-234-8861.
    (c) The location and business hours of the Office of the Federal 
Register are located in 1 CFR 2.3.

[65 FR 38730, June 22, 2000, as amended by 71 FR 56359, Sept. 27, 2006; 
73 FR 6031, Feb. 1, 2008]



Sec. 1253.2  National Archives at College Park.

    (a) The National Archives at College Park is located at 8601 Adelphi 
Road, College Park, MD 20740-6001. Business hours are 8:45 a.m. to 5:15 
p.m., Monday through Friday, except Federal holidays when the building 
is closed.
    (b) Research complex hours are as follows, except Federal holidays:
    (1) Monday and Tuesday, 9 a.m. to 5 p.m.;
    (2) Wednesday, Thursday, and Friday, 9 a.m. to 9 p.m.; and
    (3) Saturday, 9 a.m. to 5 p.m.

[65 FR 38730, June 22, 2000, as amended by 71 FR 56359, Sept. 27, 2006; 
73 FR 6031, Feb. 1, 2008]



Sec. 1253.3  Presidential Libraries.

    The Presidential libraries are open for research from 9 a.m. to 5 
p.m., Monday through Friday, except Federal holidays when they are 
closed. NARA recommends that researchers contact the library before 
visiting for research. The Presidential library museums are open every 
day except Thanksgiving, December 25, and January 1 (with the

[[Page 921]]

exception of the Lyndon Baines Johnson Library that is only closed 
December 25). For more specific information about museum hours, please 
contact the libraries directly or visit the NARA web site at http://
www.nara.gov/nara/president/address.html. Information for each library 
is as follows:
    (a) Herbert Hoover Library is located at 210 Parkside Dr., West 
Branch, IA (mailing address: PO Box 488, West Branch, IA 52358-0488). 
The phone number is 319-643-5301 and the fax number is 319-643-6045. The 
e-mail address is [email protected].
    (b) Franklin D. Roosevelt Library is located at 4079 Albany Post 
Rd., Hyde Park, NY 12538-1999. The phone number is 800-FDR-VISIT or 845-
486-7770 and the fax number is 845-486-1147. The e-mail address is 
[email protected].
    (c) Harry S. Truman Library is located at 500 W. U.S. Hwy 24, 
Independence, MO 64050-1798. The phone number is 800-833-1225 or 816-
268-8200 and the fax number is 816-268-8295. The e-mail address is 
[email protected].
    (d) Dwight D. Eisenhower Library is located at 200 SE. Fourth 
Street, Abilene, KS 67410-2900. The phone number is 877-RING-IKE or 785-
263-4751 and the fax number is 785-263-6718. The e-mail address is 
[email protected].
    (e) John Fitzgerald Kennedy Library is located at Columbia Point, 
Boston, MA 02125-3398. The phone number is 866-JFK-1960 or 617-514-1600 
and the fax number is 617-514-1652. The e-mail address is 
[email protected].
    (f) Lyndon Baines Johnson Library and Museum is located at 2313 Red 
River St., Austin, TX 78705-5702. The phone number is 512-721-0200 and 
the fax number is 512-721-0170. The e-mail address is 
[email protected].
    (g) Richard Nixon Library, California is located at 18001 Yorba 
Linda Boulevard, Yorba Linda, CA 92886-3903. The phone number is 714-
983-9120 and the fax number is 714-983-9111. The e-mail address is 
[email protected]. The Richard Nixon Library, Maryland is located at 8601 
Adelphi Road, College Park, MD 20740-6001. The phone number is 301-837-
3290 and the fax number is 301-837-3202. The e-mail address is 
[email protected].
    (h) Gerald R. Ford Library is located at 1000 Beal Avenue, Ann 
Arbor, MI 48109-2114. The phone number is 734-205-0555 and the fax 
number is 734-205-0571. The e-mail address is [email protected]. 
Gerald R. Ford Museum is located at 303 Pearl St., Grand Rapids, MI 
49504-5353. The phone number is 616-254-0400 and the fax number is 616-
254-0386. The e-mail address is [email protected].
    (i) Jimmy Carter Library is located at 441 Freedom Parkway, Atlanta, 
GA 30307-1498. The phone number is 404-865-7100 and the fax number is 
404-865-7102. The e-mail address is [email protected].
    (j) Ronald Reagan Library is located at 40 Presidential Dr., Simi 
Valley, CA 93065-0699. The phone number is 800-410-8354 or 805-577-4000 
and the fax number is 805-577-4074. The e-mail address is 
[email protected].
    (k) George Bush Library is located at 1000 George Bush Drive West, 
College Station, TX 77845. The phone number is 979-691-4000 and the fax 
number is 979-691-4050. The email address is [email protected].
    (l) William J. Clinton Library is located at 1200 President Clinton 
Avenue, Little Rock, AR 72201. The phone number is 501-374-4242 and the 
fax number is 501-244-2883. The e-mail address is 
[email protected].

[65 FR 38730, June 22, 2000, as amended at 67 FR 43254, June 27, 2002; 
68 FR 33405, June 4, 2003; 69 FR 32876, June 14, 2004; 70 FR 22800, May 
3, 2005; 73 FR 6031, Feb. 1, 2008]



Sec. 1253.4  Washington National Records Center.

    Washington National Records Center is located at 4205 Suitland Road, 
Suitland, MD (mailing address: Washington National Records Center, 4205 
Suitland Road, Suitland, MD, 20746-8001). The hours are 8 a.m. to 4:30 
p.m., Monday through Friday, except Federal holidays. The phone number 
is 301-778-1600.

[68 FR 33405, June 4, 2003]



Sec. 1253.5  National Personnel Records Center.

    (a) Military Personnel Records. NARA--National Personnel Records 
Center--Military Personnel Records is located at 9700 Page Ave., St. 
Louis,

[[Page 922]]

MO 63132-5100. The hours are 7:30 a.m. to 3:45 p.m., Monday through 
Friday, except Federal holidays.
    (b) Civilian Personnel Records. NARA--National Personnel Records 
Center--Civilian Personnel Records is located at 111 Winnebago St., St. 
Louis, MO 63118-4199. The hours are 7:30 a.m. to 3:45 p.m., Monday 
through Friday, except Federal holidays.

[67 FR 43254, June 27, 2002]



Sec. 1253.6  Records Centers.

    All records centers are closed on Federal holidays. Information for 
each center is as follows:
    (a) NARA--Northeast Region (Boston) is located at the Frederick C. 
Murphy Federal Center, 380 Trapelo Rd., Waltham, MA 02452-6399. The 
hours are 8 a.m. to 4:30 p.m., Monday through Friday. The telephone 
number is 781-663-0139.
    (b) NARA--Northeast Region (Pittsfield, MA) is located at 10 Conte 
Drive, Pittsfield, MA 02101. Hours are 8 a.m. to 4:30 p.m. The telephone 
number is 413-236-3600.
    (c) NARA--Mid Atlantic Region (Northeast Philadelphia) is located at 
14700 Townsend Rd., Philadelphia, PA 19154-1096. The hours are 8 a.m. to 
4:30 p.m., Monday through Friday. The telephone number is 215-305-2000.
    (d) NARA--Southeast Region (Atlanta) is located at 4712 Southpark 
Blvd., Ellenwood, GA 30294. The hours are 7:30 a.m. to 3 p.m., Monday 
through Friday. The telephone number is 404-736-2820.
    (e) NARA--Great Lakes Region (Dayton) is located at 3150 Springboro 
Road, Dayton, OH, 45439. The hours are 7:00 a.m. to 4:30 p.m., Monday 
through Friday. The telephone number is 937-425-0600.
    (f) NARA--Great Lakes Region (Chicago) is located at 7358 S. Pulaski 
Rd., Chicago, IL 60629-5898. The hours are 8 a.m. to 4:30 p.m., Monday 
through Friday. The telephone number is 773-948-9000.
    (g) NARA--Central Plains Region (Kansas City) is located at 2312 E. 
Bannister Rd., Kansas City, MO 64131-3011. The hours are 8 a.m. to 4 
p.m., Monday through Friday. The telephone number is 816-926-6920.
    (h) NARA--Central Plains Region (Lee's Summit, MO) is located at 200 
Space Center Drive, Lee's Summit, MO 64064-1182. The hours are 8 a.m. to 
4 p.m., Monday through Friday. The telephone number is 816-823-6272.
    (i) NARA--Southwest Region (Fort Worth) is located at 1400 John 
Burgess Drive, Fort Worth, Texas 76140. The hours are 8 a.m. to 4:30 
p.m., Monday through Friday. The telephone number is 817-551-2000.
    (j) NARA--Rocky Mountain Region (Denver) is located at Building 48, 
Denver Federal Center, West 6th Ave. and Kipling Street, Denver, CO 
(mailing address: PO Box 25307, Denver, CO 80225-0307). The hours are 
7:30 a.m. to 4 p.m., Monday through Friday. The telephone number is 303-
407-5700.
    (k) NARA--Pacific Region (San Francisco) is located at 1000 
Commodore Dr., San Bruno, CA 94066-2350. The hours are 7:30 a.m. to 4 
p.m., Monday through Friday. The telephone number is 650-238-3500.
    (l) NARA--Pacific Region (Riverside) is located at 23123 Cajalco 
Road, Perris, CA 92570-7298. The hours are 8:45 a.m. to 3 p.m., Monday 
through Friday for scheduled appointments. The telephone number is 951-
956-2000.
    (m) NARA--Pacific Alaska Region (Seattle) is located at 6125 Sand 
Point Way, NE., Seattle, WA 98115-7999. The hours are 7:45 a.m. to 4:15 
p.m., Monday through Friday. The telephone number is 206-336-5115.

[65 FR 38730, June 22, 2000, as amended at 67 FR 43255, June 27, 2002; 
68 FR 33405, June 4, 2003; 69 FR 32877, June 14, 2004; 71 FR 35395, June 
20, 2006; 73 FR 6031, Feb. 1, 2008]



Sec. 1253.7  Regional Archives.

    Most regional archives offer extended research room hours for 
microfilm research only. Information on extended hours is available from 
individual facilities. Regional archives are closed on Federal holidays. 
Information on each regional archives facility is as follows:
    (a) NARA--Northeast Region (Boston) is located in the Frederick C. 
Murphy Federal Center, 380 Trapelo Rd., Waltham, MA 02452. Hours are 8 
a.m. to 4:30 p.m., Monday through Friday. The telephone number is 781-
663-0144 or Toll Free 1-866-406-2379.

[[Page 923]]

    (b) NARA--Northeast Region (Pittsfield, MA) is located at 10 Conte 
Drive, Pittsfield, MA 01201-8230. The hours are 8 a.m. to 4:30 p.m., 
Monday through Friday. The telephone number is 413-236-3600.
    (c) NARA--Northeast Region (New York City) is located at 201 Varick 
St., New York, NY 10014-4811. The hours are 8 a.m. to 4:30 p.m., Monday 
through Friday. The telephone number is 212-401-1620.
    (d) NARA--Mid Atlantic Region (Center City Philadelphia) is located 
at the Robert N.C. Nix Federal Building, 900 Market St., Philadelphia, 
PA 19107-4292 (Entrance is on Chestnut Street between 9th and 10th 
Streets). The hours are 8 a.m. to 5 p.m., Monday through Friday. The 
telephone number is 215-606-0100.
    (e) NARA--Southeast Region (Atlanta) is located at 5780 Jonesboro 
Road, Morrow, GA 30260. The hours are 8:30 a.m. to 5 p.m., Tuesday 
through Saturday. The telephone number is 770-968-2100.
    (f) NARA--Great Lakes Region (Chicago) is located at 7358 S. Pulaski 
Rd., Chicago, IL 60629-5898. The hours are 8 a.m. to 4:15 p.m., Monday 
through Friday. The telephone number is 773-948-9000.
    (g) NARA--Central Plains Region (Kansas City) is located at 2312 E. 
Bannister Rd., Kansas City, MO 64131-3060. The hours are 7:30 a.m. to 4 
p.m., Monday through Friday. The telephone number is 816-926-6920.
    (h) NARA--Southwest Region (Fort Worth) is located at 501 West Felix 
St., Bldg. 1, Dock 1, Fort Worth, TX (mailing address: P.O. Box 6216, 
Fort Worth, TX, 76115-0216). The hours are 6:30 a.m. to 4 p.m., Monday 
through Friday. The telephone number is 817-334-5525.
    (i) NARA--Rocky Mountain Region (Denver) Textual Research room is 
located at Building 48, Denver Federal Center, West 6th Ave. and Kipling 
Street, Denver, CO. The hours are 7:30 a.m. to 3:45 p.m., Monday through 
Friday. The telephone number is 303-407-5740. The Microfilm Research 
room is located at Building 46, Denver Federal Center, West 6th Ave. and 
Kipling Street, Denver, CO. (The mailing address: PO Box 25307, Denver, 
CO 80225-0307). The hours are 7:30 a.m. to 3:45 p.m., Monday through 
Friday. The telephone number is 303-407-5751.
    (j) NARA--Pacific Region (Laguna Niguel, CA) is located at 24000 
Avila Rd., 1st Floor East Entrance, Laguna Niguel, CA, 92677-6719. The 
hours are 8 a.m. to 4:30 p.m., Monday through Friday. The telephone 
number is 949-360-2641.
    (k) NARA--Pacific Region (San Francisco) is located at 1000 
Commodore Dr., San Bruno, CA 94066-2350. The hours are 7:30 a.m. to 4 
p.m., Monday through Friday. The telephone number is 650-238-3501.
    (l) NARA--Pacific Alaska Region (Seattle) is located at 6125 Sand 
Point Way, NE., Seattle, WA 98115-7999. The hours are 7:45 a.m. to 4:15 
p.m., Monday through Friday. The telephone number is 206-336-5115.
    (m) NARA--Pacific Alaska Region (Anchorage) is located at 654 West 
Third Avenue, Anchorage, AK 99501-2145. The hours are 8 a.m. to 4 p.m., 
Monday through Friday. The telephone number is 907-261-7820.
    (n) National Personnel Records Center archival research room is 
located at 9700 Page Ave., St. Louis, MO 63132-5100. The hours are 10 
a.m. to 4 p.m., Tuesday through Friday, except Federal holidays.

[65 FR 38730, June 22, 2000, as amended at 67 FR 43255, June 27, 2002; 
68 FR 33405, June 4, 2003; 69 FR 32877, June 14, 2004; 70 FR 22800, May 
3, 2005; 71 FR 42060, July 25, 2006]



Sec. 1253.8  Are NARA research room facilities closed on Federal holidays?

    NARA research room facilities are closed on all Federal holidays.

[71 FR 42060, July 25, 2006]



PART 1254_USING RECORDS AND DONATED HISTORICAL MATERIALS--Table of Contents




                      Subpart A_General Information

Sec.
1254.1 What kinds of archival materials may I use for research?
1254.2 Does NARA provide information about documents?
1254.4 Where and when are documents available to me for research?
1254.6 Do I need a researcher identification card to use archival 
          materials at a NARA facility?

[[Page 924]]

1254.8 What information do I need to provide when applying for a 
          researcher identification card?
1254.10 For how long and where is my researcher identification card 
          valid?
1254.12 Will NARA log or inspect my computer, other equipment, and 
          notes?
1254.14 Are some procedures in regional archives and Presidential 
          libraries different from those in the Washington, DC, area?

                      Subpart B_Research Room Rules

                           General Procedures

1254.20 What general policies apply in all NARA facilities where 
          archival materials are available for research?
1254.22 Do I need to register when I visit a NARA facility for research?
1254.24 Whom does NARA allow in research rooms?
1254.26 What can I take into a research room with me?
1254.28 What items are not allowed in research rooms?
1254.30 Does NARA provide any supplies?
1254.32 What rules apply to public access use of the Internet on NARA-
          supplied computers?

               Rules Relating to Using Original Documents

1254.34 What are my responsibilities when using documents?
1254.36 What care must I take when handling documents?
1254.38 How do I keep documents in order?
1254.40 How does NARA prevent removal of documents?

                    Rules Relating to Using Microfilm

1254.42 What are the rules that apply to using self-service microfilm?
1254.44 How long may I use a microfilm reader?

                           Other Conduct Rules

1254.46 Are there other rules of conduct that I must follow?
1254.48 When does NARA revoke research privileges?
1254.50 Does NARA consider reinstating research privileges?
1254.52 Can NARA extend the period of revoked research privileges?

                  Subpart C_Copying Archival Materials

                           General Information

1254.60 What are NARA's copying services?
1254.62 Does NARA have archival materials protected by copyright?
1254.64 Will NARA certify copies?

                 Rules Relating to Self-Service Copying

1254.70 How may I make my own copies of documents?
1254.72 What procedures do I follow to copy documents?
1254.74 What documents are unsuitable for copying on a self-service or 
          personal copier or scanner?
1254.76 What procedures do I follow to copy formerly national security-
          classified documents?

                Rules Relating to Using Copying Equipment

1254.80 Does NARA allow me to use scanners or other personal copying 
          equipment?
1254.82 What limitations apply to my use of self-service card-operated 
          copiers?
1254.84 How may I use a debit card for copiers in the Washington, DC, 
          area?
1254.86 May I use a personal paper-to-paper copier at the National 
          Archives at College Park?
1254.88 What are the rules for the Motion Picture, Sound, and Video 
          Research Room at the National Archives at College Park?

                Subpart D_Microfilming Archival Materials

1254.90 What is the scope of this subpart?
1254.92 How do I submit a request to microfilm records and donated 
          historical materials?
1254.94 What must my request include?
1254.96 What credits must I give NARA?
1254.98 May NARA make subsequent use of my publication?
1254.100 How does NARA evaluate requests?
1254.102 What requests does NARA not approve?
1254.104 How does NARA determine fees to prepare documents for 
          microfilming?
1254.106 What are NARA's equipment standards?
1254.108 What are NARA's requirements for the microfilming process?
1254.110 Does NARA ever rescind permission to microfilm?

    Authority: 44 U.S.C. 2101-2118.

    Source: 69 FR 39314, June 30, 2004, unless otherwise noted.



                      Subpart A_General Information



Sec. 1254.1  What kinds of archival materials may I use for research?

    (a) The National Archives and Records Administration (NARA) 
preserves records of all three branches (Executive, Legislative, and 
Judicial) of the Federal Government in record groups that reflect how 
government agencies created and maintained them.

[[Page 925]]

Most of these records are of Executive Branch agencies. We also have 
individual documents and collections of donated historical materials 
that significantly supplement existing records in our custody or provide 
information not available elsewhere in our holdings. Descriptions of 
many of our records are available through our Web site, http://
www.archives.gov.
    (b) We provide information about records and we make them available 
to the public for research unless they have access restrictions. Some 
records may be exempt from release by law. Donors may apply restrictions 
on access to historical materials that they donate to NARA. Access 
restrictions are further explained in part 1256 of this chapter. We 
explain procedures for obtaining information about records in Sec. 
1254.2.
    (c) In addition to traditional paper (textual) materials, our 
holdings also include special media materials such as microfilm, still 
pictures, motion pictures, sound and video recordings, cartographic and 
architectural records, and electronic records. The majority of these 
materials are housed at the National Archives at College Park, 8601 
Adelphi Road, College Park, MD 20740-6001. Many of these types of 
materials also are represented in the holdings of our Presidential 
libraries and our regional archives facilities listed in part 1253 of 
this chapter.
    (d) The majority of our archival materials are 30 years old or 
older.
    (e) Records creating agencies hold the legal title and control 
access to records housed in NARA records centers. Our procedures to 
obtain access to these records are in Sec. 1256.2.



Sec. 1254.2  Does NARA provide information about documents?

    (a) Upon request, we provide overall information about our holdings 
or about specific documents, if the time required to furnish the 
information is not excessive and if the information is not restricted 
(see part 1256 of this chapter). For anyone unable to visit, we may 
provide information contained in specific documents by offering copies 
of the documents for a fee (see Sec. 1254.60).
    (b) Requests must be on designated forms when we require them. The 
Office of Management and Budget (OMB) approves these forms as 
information collections and the forms bear the approved control number.
    (c) If requests that we receive in the normal course of reference 
service do not specifically cite the Freedom of Information Act (5 
U.S.C. 552, as amended), we do not consider those requests made under 
the Act. To make a request under the Act, follow the procedures in part 
1250 of this chapter.



Sec. 1254.4  Where and when are documents available to me for research?

    (a) You may obtain general information about the location of records 
by visiting the NARA Web site at www.archives.gov; writing to the 
National Archives and Records Administration (NWCC2), 8601 Adelphi Road, 
College Park, MD 20740-6001; completing our Inquire form at http://
www.archives.gov/global--pages/inquire--form.html; sending a fax request 
to (301) 837-0483; or calling (202) 501-5400, (301) 837-2000, or toll 
free (866) 272-6272.
    (b) The locations and hours of operation (expressed in local time) 
of NARA's research rooms are shown in part 1253 of this chapter. Contact 
our facilities directly for information about their particular holdings. 
A facility or unit director may authorize that documents be made 
available at times other than the times specified in part 1253.
    (c) Before planning a visit, contact the facility holding materials 
of potential interest to determine whether the documents are available, 
whether there are enough documents to warrant a visit, or whether 
ordering copies would be more practical.
    (d) In addition to the procedures in this part, researchers who wish 
to use archival materials that contain national security classified 
information must follow procedures in part 1256 of this chapter.



Sec. 1254.6  Do I need a researcher identification card to use archival 

materials at a NARA facility?

    (a) Yes, you need a researcher identification card to use original 
archival

[[Page 926]]

materials at a NARA facility. See Sec. Sec. 1254.8 and 1254.10 for 
information on obtaining a card.
    (b) You also need a researcher identification card if you wish to 
use only microfilm copies of documents in a NARA facility where the 
microfilm research room is not separate from textual research rooms.
    (c) If you are using only microfilm copies of records in the 
National Archives Building and some regional archives where the 
microfilm research room is separate from textual research rooms, you do 
not need an identification card but you must register as described in 
Sec. 1254.22.



Sec. 1254.8  What information do I need to provide when applying for a 

researcher identification card?

    (a) You must apply in person and show identification containing your 
picture or physical description, such as a driver's license or school 
identification card. You also must provide proof of your current 
address, such as a bank statement, utility bill, or department of motor 
vehicles change of address card, if the address on your driver's license 
or other identification is not current. Students who consider the home 
of their parents as their permanent address, but who do not live there 
during the academic session, must provide their current student address. 
If you travel long distance to conduct research in original archival 
materials at a NARA facility, we may ask you how we can contact you 
locally. In special circumstances, the director of a facility or unit 
has the authority to grant exceptions to these requirements.
    (b) If you apply for access to large quantities of documents or to 
documents that are especially fragile or valuable, we may require you to 
furnish additional information about reasons why you require access. 
Some materials are too fragile or valuable for direct handling or 
viewing. Preservation concerns (see Sec. Sec. 1254.20(b) and 
1254.36(e)) and availability of resources (see Sec. 1254.20(c)) may 
limit our ability to accommodate certain requests.
    (c) If you are younger than 14, you must follow the procedures in 
Sec. 1254.24 to seek permission to conduct research.
    (d) We do not issue you a researcher identification card if the 
appropriate supervisor or director of the NARA facility determines that 
the documents that you wish to use are not in the legal custody of NARA 
and you do not present appropriate written authorization from the legal 
title holder to examine the documents.
    (e) The collection of information contained in this section has been 
approved by the Office of Management and Budget with the control number 
3095-0016.



Sec. 1254.10  For how long and where is my researcher identification card 

valid?

    (a) Your card is valid for 1 year and may be renewed. Cards we issue 
at one NARA facility are valid at each facility, except as described in 
paragraph (b) of this section. Cards are not transferable and you must 
present your card if a guard or research room attendant requests to see 
it.
    (b) At NARA facilities in the Washington, DC, area and other NARA 
facilities that issue and use plastic researcher identification cards as 
part of their security systems, NARA issues a plastic card to replace 
the paper card issued at some NARA facilities at no charge. The plastic 
card is acceptable at all NARA facilities.



Sec. 1254.12  Will NARA log or inspect my computer, other equipment, and 

notes?

    (a) If you bring personal computers, scanners, tape recorders, 
cameras, and other equipment into our facilities, we will inspect the 
equipment.
    (1) In the Washington, DC, area, you must complete the Equipment Log 
at the guard's desk. The guard checks the log for proof of your personal 
ownership before you remove your equipment from the building.
    (2) In the regional archives and Presidential libraries, we may tag 
your equipment after inspection and approval.
    (b) Not all NARA facilities permit you to take your personal notes 
into the research room. In research rooms that permit taking in your 
notes, a NARA or contractor employee may stamp, initial, and date notes 
and

[[Page 927]]

other research materials we approve for admission to indicate that they 
are your personal property.
    (c) We inspect your personal property, including notes, 
electrostatic copies, equipment cases, tape recorders, cameras, personal 
computers, and other property, before you may remove them from our 
research rooms or facilities.



Sec. 1254.14  Are some procedures in regional archives and Presidential 

libraries different from those in the Washington, DC, area?

    Yes, the variety of facilities, locations of research rooms, room 
sizes, and other factors contribute to differences in some, but not all, 
practices from the Washington, DC, area. When the appropriate regional 
director of archival operations or Presidential library director 
indicates, you must follow the procedures in regional archives and 
Presidential library archival research rooms where researchers use 
original documents. These procedures are in addition to the procedures 
we specify elsewhere in this part. The procedures are either posted in 
the facility or the staff gives copies of them to researchers.



                      Subpart B_Research Room Rules

                           General Procedures



Sec. 1254.20  What general policies apply in all NARA facilities where 

archival materials are available for research?

    (a) Researchers may use original documents only in the designated 
research room at the facility where they are stored.
    (b) Researchers must use microfilm copies or other alternative 
copies of documents when available, rather than the original documents. 
Some of our microfilm publications are available in more than one NARA 
facility.
    (c) We may limit the quantity of documents that we deliver to you at 
one time. In some research rooms, we furnish records according to a 
specific time schedule.



Sec. 1254.22  Do I need to register when I visit a NARA facility for research?

    (a) Yes, you must register each day you enter a NARA research 
facility by furnishing the information on the registration sheet or 
scanning a bar-coded researcher identification card. We may ask you to 
provide additional personal identification.
    (b) NARA facilities in the Washington, DC, area contain several 
research rooms; you must register in each research room you visit on a 
daily basis.
    (c) In regional archives, you also sign out when leaving the 
research room for the day. In some Presidential libraries, where we 
instruct you to do so, you sign out when you leave the building.



Sec. 1254.24  Whom does NARA allow in research rooms?

    (a) We limit admission to research rooms in our facilities to 
individuals examining or copying documents and other materials.
    (b) We do not admit children under the age of 14 to these research 
rooms unless we grant them research privileges (see paragraph (d) of 
this section).
    (c) The appropriate supervisor may make exceptions for a child who 
is able to read and who will be closely supervised by an adult while in 
the research room. The adult must agree in writing to be present when 
the child uses documents and to be responsible for compliance with the 
research room and copying rules in subparts B and C of this part.
    (d) Students under the age of 14 who wish to perform research on 
original documents must apply in person at the facility where the 
documents are located. At the National Archives Building, apply to the 
chief of the Research Support Branch (NWCC1). At the National Archives 
at College Park, apply to the chief of the Research Support Branch 
(NWCC2). For regional archives and Presidential libraries, apply to the 
appropriate supervisor or archivist in charge. We may require either 
that the student must present a letter of reference from a teacher or 
that an adult accompany the student while doing research. Students may 
contact NARA

[[Page 928]]

by phone, e-mail, fax, or letter in advance of their visit to discuss 
their eligibility for research privileges. Current contact information 
for our facilities is available on our Web site, http://
www.archives.gov.
    (e) We may permit adults and children participating in scheduled 
tours or workshops in our research rooms when they do not handle any 
documents that we show to them. These visitors do not need a researcher 
identification card.



Sec. 1254.26  What can I take into a research room with me?

    (a) Personal belongings. You may take a hand-held wallet and coin 
purse for the carrying of currency, coins, credit cards, keys, driver's 
license, and other identification cards into research rooms, but these 
are subject to inspection when you enter or leave the room. The guard or 
research room attendant determines whether your wallet or purse is 
sufficiently small for purposes of this section. You may take cell 
phones, pagers, and similar telecommunications devices into a research 
room only under the circumstances cited in Sec. 1254.46(b) and, for 
cell phone cameras, in Sec. 1254.70(g).
    (b) Notes and reference materials. You may take notes, references, 
lists of documents to be consulted, and other materials into a research 
room if the supervisor administering the research room or the senior 
staff member on duty in the research room determines that they are 
essential to your work requirements. Not all facilities permit you to 
take notes into the research room. In facilities that allow you to bring 
notes, staff may stamp your items to indicate that they are your 
property.
    (c) You may bring back into the research room on subsequent visits 
your research notes made on notepaper and notecards we provide and 
electrostatic copies you make on copying machines in NARA research rooms 
which are marked with the statement ``Reproduced at the National 
Archives.'' You must show any notes and copies to the research room 
attendant for inspection when you enter the research room.
    (d) Personal equipment. The research room attendant, with approval 
from the supervisor, archivist, or lead archives technician in charge of 
the room, may admit personal computers, tape recorders, scanners, 
cameras, and similar equipment if the equipment meets NARA's approved 
standards for preservation. We do not approve the use of any equipment 
that could potentially damage documents. If demand to use equipment 
exceeds the space available for equipment use, we may impose time 
limits. If you wish to use computers, sound recording devices, or other 
equipment, you must work in areas the research room attendant 
designates, when required.



Sec. 1254.28  What items are not allowed in research rooms?

    (a) You may not bring into the research rooms overcoats, raincoats, 
jackets, hats, or other outerwear; personal paper-to-paper copiers, 
unless permitted in accordance with Sec. 1254.86 of this part; 
briefcases, satchels, valises, suitcases, day packs, purses, boxes, or 
similar containers of personal property. We may make exceptions for 
headwear worn for religious or health reasons. In facilities where we 
provide notepaper and notecards, you also may not bring into the 
research room notebooks, notepaper, notecards, folders or other 
containers for papers.
    (b) You may store personal items at no cost in lockers or other 
storage facilities in the NARA facility. These lockers or other storage 
facilities are available on a first-come-first-served basis.
    (c) You must remove your personal belongings each night from the 
lockers or other storage facilities we provide to hold them. If you do 
not remove your personal belongings, NARA personnel will remove them. We 
post directions for reclaiming confiscated items near the lockers or 
other storage facilities.
    (d) NARA is not responsible for the loss or theft of articles you 
store in the lockers.
    (e) We may charge a replacement fee for lost locker keys.
    (f) Knives and other sharp objects such as box cutters, razors, or 
wire are not permitted in our research rooms.

[[Page 929]]



Sec. 1254.30  Does NARA provide any supplies?

    Yes, in most facilities NARA furnishes you, without charge, pencils 
and specially marked lined and unlined notepaper and notecards, for use 
in the research rooms. NARA also provides diskettes and paper for our 
public access computers. Return unused pencils and notepaper, notecards, 
diskettes, and printer paper to the research room attendant at the end 
of the day.



Sec. 1254.32  What rules apply to public access use of the Internet on NARA-

supplied computers?

    (a) Public access computers (workstations) are available for 
Internet use in all NARA research rooms. The number of workstations 
varies per location. We provide these workstations for research purposes 
on a first-come-first-served basis. When others are waiting to use the 
workstation, we may impose a 30-minute time limit on the use of the 
equipment.
    (b) You should not expect privacy while using these workstations. 
These workstations are operated and maintained on a United States 
Government system, and activity may be monitored to protect the system 
from unauthorized use. By using this system, you expressly consent to 
such monitoring and the reporting of unauthorized use to the proper 
authorities.
    (c) You may not use these workstations to gain access to 
entertainment or other inappropriate Web sites in our research rooms. 
You also may not use these workstations to conduct private business not 
related to your research or NARA holdings.
    (d) NARA provides at least one Internet access workstation in each 
facility that complies with the Workforce Investment Act of 1998, 
ensuring comparable accessibility to individuals with disabilities.
    (e) You may download information to a diskette and print materials, 
but the research room staff will furnish the diskettes and paper. You 
may not use personally owned diskettes on NARA personal computers. You 
may not load files or any type of software on these workstations.

               Rules Relating to Using Original Documents



Sec. 1254.34  What are my responsibilities when using documents?

    (a) You must sign for the documents you receive and we may require 
you to show your researcher identification card.
    (b) You are responsible for the proper handling of and prevention of 
damage to all documents delivered to you until you return them. Specific 
handling instructions are given in Sec. Sec. 1254.36 and 1254.38.
    (c) When you finish using the documents, you must return them to the 
research room attendant.
    (d) You must not remove the reference service slip that accompanies 
the documents to the research room.
    (e) If we ask, you must return documents up to 15 minutes before 
closing time.
    (f) Before leaving a research room, even for a short time, you must 
notify the research room attendant and place all documents in their 
proper containers.



Sec. 1254.36  What care must I take when handling documents?

    To prevent damage to documents, we have rules relating to the 
physical handling of documents.
    (a) You must use only pencils in research rooms where original 
documents are used.
    (b) You must not lean on, write on, refold, trace, or otherwise 
handle documents in any way likely to cause damage.
    (c) You must follow any additional rules that apply to the use of 
special media records at our facilities, such as wearing cotton gloves 
we provide you for handling still pictures and any original film-based 
materials.
    (d) You must identify documents for reproduction only with a paper 
tab that we provide you. You must not use paper clips, rubber bands, 
self-stick notes or similar devices to identify documents.
    (e) You must use exceptionally valuable or fragile documents only 
under conditions the research room attendant specifies.

[[Page 930]]

    (f) You must request that research room personnel unstaple or remove 
other fasteners from documents that cannot otherwise be read.
    (g) If you notice damage to any document(s), notify the research 
room attendant immediately.



Sec. 1254.38  How do I keep documents in order?

    (a) You must keep unbound documents in the order in which we deliver 
them to you.
    (b) You must not attempt to rearrange documents that appear to be in 
disorder. Instead, you must refer any suspected problems with the 
records to the research room attendant.
    (c) You may use only one folder at a time.
    (d) Remove documents from only one container at a time.



Sec. 1254.40  How does NARA prevent removal of documents?

    (a) You must not remove documents from a research room. Removing, 
mutilating, or revising or otherwise altering documents is forbidden by 
law and is punishable by fine or imprisonment or both (18 U.S.C. 2071).
    (b) Upon leaving the research room or facility, you must present for 
examination any article that could contain documents or microfilm, as 
well as presenting copies or notes to ensure that no original records 
are mixed in with them.
    (c) To ensure that no one unlawfully removes or mutilates documents, 
NARA may post at the entrance to research rooms instructions 
supplementing the rules in this part. These instructions are specific to 
the kinds of records you use or to the facility where the records are 
stored.

                    Rules Relating to Using Microfilm



Sec. 1254.42  What are the rules that apply to using self-service microfilm?

    NARA makes available microfilm copies of many records on a self-
service basis.
    (a) When microfilm is available on a self-service basis, research 
room attendants assist you in identifying research sources on microfilm 
and provide information concerning how to locate and retrieve the 
roll(s) of film containing the information of interest. You are 
responsible for retrieving and examining the roll(s).
    (b) Unless you require assistance in learning how to operate 
microfilm reading equipment or have a disability, we expect you to 
install the microfilm on the reader, rewind it when finished, remove it 
from the reader, and return it to the proper microfilm box. You must 
carefully remove from and return to the proper microfilm boxes rewound 
microfilm. You must take care when loading and unloading microfilm from 
microfilm readers. Report damaged microfilm to the research room 
attendant as soon you discover it.
    (c) Unless we make an exception, you may use only one roll of 
microfilm at a time.
    (d) After using each roll, you must return the roll of microfilm to 
the location from which you removed it, unless we otherwise instruct 
you.
    (e) You should bring to the attention of the research room attendant 
any microfilm you find in the wrong box or file cabinet.



Sec. 1254.44  How long may I use a microfilm reader?

    (a) Use of the microfilm readers in the National Archives Building 
is on a first-come-first-served basis. When other researchers are 
waiting to use a microfilm reader, we may place a 3-hour limit on using 
a reader. After 3 hours of machine use, you may sign the waiting list 
for an additional 3-hour period. For fire safety reasons, we may limit 
the number of researchers in the microfilm research room in the National 
Archives Building to those researchers assigned a microfilm reader.
    (b) Archival operations directors at our regional archives may 
permit reservations for use of microfilm readers and set time limits on 
use to meet local circumstances.

                           Other Conduct Rules



Sec. 1254.46  Are there other rules of conduct that I must follow?

    (a) Part 1280 specifies conduct rules for all NARA facilities. You 
must also obey any additional rules supplementing Subpart B of part 1254

[[Page 931]]

that are posted or distributed by the facility director.
    (b) You may not eat, drink, chew gum, smoke, or use smokeless 
tobacco products, or use a cell phone, pager, or similar communications 
device that emits sound signals in a research room. Communications 
devices must be in vibrate mode. You must make and receive telephone 
calls outside of research rooms.
    (c) We prohibit loud talking and other activities likely to disturb 
other researchers.



Sec. 1254.48  When does NARA revoke research privileges?

    (a) Behaviors listed in paragraphs (a)(1) through (a)(4) of this 
section may result in NARA denying or revoking research privileges.
    (1) Refusing to follow the rules and regulations of a NARA facility;
    (2) Demonstrating by actions or language that you present a danger 
to documents or NARA property;
    (3) Presenting a danger to other researchers, NARA or contractor 
employees, or volunteers; or
    (4) Verbally or physically harassing or annoying other researchers, 
NARA or contractor employees, or volunteers.
    (b) Denying or revoking research privileges means:
    (1) We may deny or revoke your research privileges for up to 180 
days;
    (2) You lose research privileges at all NARA research rooms 
nationwide; and
    (3) You lose your valid researcher identification card if you 
already have one.
    (c) We notify all NARA facilities of the revocation of your research 
privileges.
    (d) If we revoke your research privileges, we send you a written 
notice of the reasons for the revocation within 3 working days of the 
action.



Sec. 1254.50  Does NARA consider reinstating research privileges?

    (a) You have 30 calendar days after the date of revocation to appeal 
the action in writing and seek reinstatement of research privileges. 
Mail your appeal to: Archivist of the United States, 8601 Adelphi Road, 
College Park, MD 20740-6001.
    (b) The Archivist has 30 calendar days from receipt of an appeal to 
decide whether to reinstate your research privileges and to respond to 
you in writing.
    (c) If the Archivist upholds the revocation of privileges or if you 
do not appeal, you may request in writing reinstatement of research 
privileges no earlier than 180 calendar days from the date we revoked 
privileges. This request may include application for a new researcher 
identification card.
    (d) Our reinstatement of research privileges applies to all research 
rooms.
    (e) If we reinstate your research privileges, we issue you a card 
for a probationary period of 60 days. At the end of the probationary 
period, you may apply for a new, unrestricted identification card, which 
we issue to you if your conduct during the probationary period follows 
the rules of conduct in this part and in part 1280 of this chapter.



Sec. 1254.52  Can NARA extend the period of revoked research privileges?

    (a) If the reinstatement of research privileges would pose a threat 
to the safety of persons, property, or NARA holdings, or if, in the case 
of a probationary identification card, you fail to comply with the rules 
of conduct for NARA facilities, we may extend the revocation of 
privileges for additional 180-day periods. We send you a written notice 
of an extension within 3 workdays of our decision to continue the 
revocation of research privileges.
    (b) You have 30 calendar days after the decision to extend the 
revocation of research privileges to appeal the action in writing. Mail 
your appeal to the Archivist at the address given in Sec. 1254.50(a). 
The Archivist has 30 calendar days from receipt of your appeal to decide 
whether to reinstate your research privileges and to respond to you in 
writing.

[[Page 932]]



                  Subpart C_Copying Archival Materials

                           General Information



Sec. 1254.60  What are NARA's copying services?

    (a) You may order copies of many of our documents for a fee. Our fee 
schedule for copies is located in Sec. 1258.12 of this chapter. 
Exceptions to the fee schedule are located in Sec. 1258.4. See Sec. 
1258.6 about reproductions NARA may provide without charging a fee.
    (b) For preservation reasons, we do not make copies from the 
original documents if the documents are available on microfilm and a 
clear copy (electrostatic, photographic, or microfilm) can be made from 
the microfilm.



Sec. 1254.62  Does NARA have archival materials protected by copyright?

    Yes, although many of our holdings are in the public domain as 
products of employees or agents of the Federal Government, some records 
and donated historical materials do have copyright protection. 
Particularly in the case of some special media records, Federal agencies 
may have obtained materials from private commercial sources, and these 
may carry publication restrictions in addition to copyright protection. 
Presidential records may also contain copyrighted materials. You are 
responsible for obtaining any necessary permission for use, copying, and 
publication from copyright holders and for any other applicable 
provisions of the Copyright Act (Title 17, United States Code).



Sec. 1254.64  Will NARA certify copies?

    Yes, the responsible director of a unit, or any of his or her 
superiors, the Director of the Federal Register, and their designees may 
certify copies of documents as true copies for a fee. The fee is found 
at Sec. 1258.12(a).

                 Rules Relating to Self-Service Copying



Sec. 1254.70  How may I make my own copies of documents?

    (a) Self-service copiers are available in some of our facilities. 
Contact the appropriate facility to ask about availability before you 
visit.
    (b) In the Washington, DC, area, self-service card-operated copiers 
are located in research rooms. Other copiers we set aside for use by 
reservation are located in designated research areas. Procedures for use 
are outlined in Sec. Sec. 1254.80 through 1254.84 of this subpart.
    (c) You may use NARA self-service copiers where available after the 
research room attendant reviews the documents to determine their 
suitability for copying. The appropriate supervisor or the senior 
archivist on duty in the research room reviews the determination of 
suitability if you request.
    (d) We may impose time limits on using self-service copiers if 
others are waiting to use them.
    (e) In some of our facilities, you may use your own scanner or 
personal paper-to-paper copier to copy textual materials if the 
equipment meets our standards cited in Sec. Sec. 1254.80 and 1254.86. 
Contact the appropriate facility for additional details before you 
visit.
    (f) You must follow our document handling instructions in Sec. Sec. 
1254.36 and 1254.72. You also must follow our microfilm handling 
instructions in Sec. 1254.42.
    (g) You may use a hand-held camera with no flash or a cell phone 
camera to take pictures of documents only if you have the permission of 
the research room attendant.
    (h) You may not use a self-service copier or personal scanner to 
copy some special media records. If you wish to copy motion pictures, 
maps and architectural drawings, or aerial photographic film, the 
appropriate staff can advise you on how to order copies. If you wish to 
obtain copies of electronic records files, the appropriate staff will 
assist you.



Sec. 1254.72  What procedures do I follow to copy documents?

    (a) You must use paper tabs to designate individual documents you 
wish to copy. You must show the container including the tabbed documents 
to the research room attendant who determines whether they can be copied 
on the self-service copier. The manager of the staff administering the 
research

[[Page 933]]

room reviews the determination of suitability if you ask. After copying 
is completed, you must return documents removed from files for copying 
to their original position in the file container, you must refasten any 
fasteners removed to facilitate copying, and you must remove any tabs 
placed on the documents to identify items to be copied.
    (b) If you are using a reserved copier, you must submit the 
containers of documents to the attendant for review before your 
appointment. The review time required is specified in each research 
room. Research room attendants may inspect documents after copying.
    (c) You may copy from only one box and one folder at a time. After 
copying the documents, you must show the original documents and the 
copies to a research room attendant.



Sec. 1254.74  What documents are unsuitable for copying on a self-service or 

personal copier or scanner?

    (a) Bound archival volumes (except when specialized copiers are 
provided).
    (b) Documents fastened together by staples, clips, acco fasteners, 
rivets, or similar fasteners, where folding or bending documents may 
cause damage.
    (c) Documents larger than the glass copy plate of the copier.
    (d) Documents with uncancelled security classification markings.
    (e) Documents with legal restrictions on copying.
    (f) Documents that the research room attendant judges to be in poor 
physical condition or which may be subject to possible damage if copied.



Sec. 1254.76  What procedures do I follow to copy formerly national security-

classified documents?

    (a) We must properly cancel security classification markings 
(Confidential, Secret, Top Secret) and other restricted markings on 
declassified records before documents are copied. Only a NARA staff 
member can cancel security markings. Properly declassified documents 
bear the declassification authority as required by 32 CFR 2001.24.
    (b) You may not remove from the research room copies of documents 
bearing uncancelled classification markings. We confiscate copies of 
documents with uncancelled markings.
    (c) When you copy individual documents, the research room staff 
cancels the classification markings on each page of the copy and places 
the declassification authority on the first page of each document. If 
you copy only selected pages from a document, you must make a copy of 
the first page bearing the declassification authority and attach that 
page to any subsequent page(s) you copy from the document. You must show 
this declassification authority to the guard or research room attendant 
when you remove copies of documents from the research room or the 
building.
    (d) Before you copy formerly-classified materials, we provide you 
with a declassification strip, which you attach to the copier. The strip 
reproduces on each page copied and cancels the security markings. We may 
also provide a declassification strip to attach to your personal copier 
or scanner.
    (e) Staff at Presidential libraries cancel security markings before 
documents are provided to researchers in research rooms.

                Rules Relating to Using Copying Equipment



Sec. 1254.80  Does NARA allow me to use scanners or other personal copying 

equipment?

    (a) Subject to Sec. Sec. 1254.26(d) and 1254.86, you may use 
scanners and other copying equipment if the equipment meets certain 
conditions or minimum standards described in paragraphs (b) through (g) 
of this section. Exceptions are noted in paragraph (h). The supervisor 
administering the research room or the senior staff member on duty in 
the research room reviews the research room attendant's determination if 
you request.
    (b) Equipment platens or copy boards must be the same size or larger 
than the records. No part of a record may overhang the platen or copy 
board.
    (c) No part of the equipment may come in contact with records in a 
manner that causes friction, abrasion, or that otherwise crushes or 
damages records.
    (d) We prohibit drum scanners.

[[Page 934]]

    (e) We prohibit automatic feeder devices on flatbed scanners. When 
using a slide scanner, we must check slides after scanning to ensure 
that no damage occurs while the slide is inside the scanner.
    (f) Light sources must not raise the surface temperature of the 
record you copy. You must filter light sources that generate ultraviolet 
light.
    (g) All equipment surfaces must be clean and dry before you use 
records. You may not clean or maintain equipment, such as replacing 
toner cartridges, when records are present. We do not permit aerosols or 
ammonia-containing cleaning solutions. We permit a 50 percent water and 
50 percent isopropyl alcohol solution for cleaning.
    (h) If you wish to use a scanner or other personal copier in a 
regional archives or Presidential library, contact the facility first 
for approval. Not all facilities permit the use of scanners or personal 
copying equipment because of space, electrical load concerns, and other 
reasons. Your request must state the space and power consumption 
requirements and the intended period of use.
    (i) In facilities that provide a self-service copier or permit the 
use of personal paper-to-paper copiers or scanners, you must show 
documents you wish to copy to the research room attendant for approval.
    (j) If you have any question about what is permissible at any given 
facility, consult with the facility before your visit. Contact 
information for our facilities is found in part 1253 of this chapter and 
at the NARA Web site, http://www.archives.gov.



Sec. 1254.82  What limitations apply to my use of self-service card-operated 

copiers?

    (a) There is a 5-minute time limit on copiers in research rooms when 
others are waiting to use the copier. If you use a microfilm reader-
printer, we may limit you to three copies when others are waiting to use 
the machine. If you wish to copy large quantities of documents, you 
should see a staff member in the research room to reserve a copier for 
an extended time period.
    (b) If we must cancel an appointment due to copier failure, we make 
every effort to schedule a new mutually agreed-upon time. However, we do 
not displace researchers whose appointments are not affected by the 
copier failure.



Sec. 1254.84  How may I use a debit card for copiers in the Washington, DC, 

area?

    You may use cash to purchase a debit card from a vending machine 
during the hours that research rooms are open as cited in part 1253 of 
this chapter. In addition, you may buy debit cards with cash, check, 
money order, credit card, or funds from an active deposit account from 
the Cashier's Offices located in the National Archives Building and in 
the researcher lobby of the National Archives at College Park, during 
posted hours. Inserting a debit card into the copier enables you to make 
copies, for the appropriate fee, up to the value on the debit card. You 
may add value to the debit card by using the available vending machines 
in our research rooms. We cannot make refunds. The fee for self-service 
copiers is found in Sec. 1258.12 of this chapter.



Sec. 1254.86  May I use a personal paper-to-paper copier at the National 

Archives at College Park?

    (a) At the National Archives at College Park facility NARA approves 
a limited number of researchers to bring in and use personal paper-to-
paper copying equipment in the Textual Research Room (Room 2000). 
Requests must be made in writing to the chief of the Research Support 
Branch (NWCC2), National Archives and Records Administration, 8601 
Adelphi Rd., College Park, MD 20740-6001. Requests must identify the 
records you wish to copy, the expected duration of the project, and the 
make and model of the equipment.
    (b) We evaluate requests using the following criteria:
    (1) A minimum of 3,000 pages must be copied;
    (2) The project is expected to take at least 4 weeks, with the 
copier in use a minimum of 6 hours per day or 30 hours per week;
    (3) The copying equipment must meet our standards for preservation 
(see Sec. Sec. 1254.26(d) and 1254.80); and

[[Page 935]]

    (4) Space is available for the personal copying project. NARA allows 
no more than 3 personal copying projects in the research room at one 
time, with Federal agencies given priority over other users.
    (c) You must coordinate with research room management and oversee 
the installation and removal of copying equipment. You are responsible 
for the cost and supervision of all service calls and repairs. You must 
remove copying equipment and supplies within two business days after the 
personal copying project is completed.
    (d) NARA is not responsible for any personal equipment or consumable 
supplies.
    (e) You must be trained by NARA staff on the proper methods for 
handling and copying archival documents.
    (f) You must abide by all regulations on copying stated in this 
subpart.
    (g) We reserve the right to discontinue the privilege of using a 
personal copier at any time without notice. We discontinue your 
privilege if you violate one of the conditions in this subpart, we need 
to provide space for a Federal agency, or we lack staff to supervise the 
area.
    (h) The collection of information contained in this section has been 
approved by the Office of Management and Budget with the control number 
3095-0035.

[69 FR 39314, June 30, 2004, as amended at 69 FR 55505, Sept. 15, 2004]



Sec. 1254.88  What are the rules for the Motion Picture, Sound, and Video 


Research Room at the National Archives at College Park?

    (a) We provide use of NARA viewing and listening equipment in the 
research room on a first-come-first-served basis. When others are 
waiting to use the equipment, we may impose a 3-hour limit on your use.
    (b) You may use the NARA-furnished recorder or your personal 
recording device and media to make a copy of unrestricted archival 
materials in the research room.
    (c) We provide you with a copy of the Motion Picture, Sound, and 
Video Research Room rules and a warning notice on potential copyright 
claims in unrestricted titles. You are responsible for obtaining any 
needed permission or release from a copyright owner for other than 
personal use of the copy.
    (d) The research room attendant may inspect and tag your personal 
recording equipment before admitting you into the unrestricted viewing 
and copying area in the research room. You must place all equipment and 
accessory devices on the carts we provide, except that you may place a 
tripod holding a video camera on the floor in front of a film-viewing 
station. We are not responsible for damage to or loss of personal 
equipment and accessories.
    (e) You must remain in the research room at your audio or film 
viewing station at all times while your personal equipment is in use. 
You must remove your personal equipment from the research room when you 
leave the room for the day. We cannot be responsible for any damage to 
or loss of your equipment.
    (f) We are not responsible for assisting with ``hook-up'' to NARA 
viewing equipment, for providing compatibility between the personal 
recording equipment and NARA viewing equipment, or for the quality of 
the copies you make. We provide you information on the types of NARA 
equipment that we have in the research room and on the cables necessary 
for hook-up to our viewing equipment.
    (g) When you bring audio or video recording tapes or cassettes into 
the unrestricted area of the research room, the research room attendant 
marks the recording media ``NARA-approved personal property'' for 
identification purposes. We inspect this media before you leave the 
research room and when you leave the research complex at the National 
Archives at College Park.
    (h) You may reserve a NARA-furnished video copying station and 120-
minute blank video cassette, for a fee, on a first-come-first-served 
basis for 90 minutes. If no one else is waiting to use the station, you 
may reserve an additional 90 minutes. You may not connect personal 
recording devices to NARA equipment at the video copying station. You 
may use only NARA-provided tapes at the video copying station. Fees for 
use of the station and blank cassette are specified in Sec. 1258.12 of 
this chapter.

[[Page 936]]

    (i) You may not take any personal recording device or media in the 
restricted viewing area in the research room.



                Subpart D_Microfilming Archival Materials



Sec. 1254.90  What is the scope of this subpart?

    (a) This subpart establishes rules and procedures for the use of 
privately owned microfilm equipment to film accessioned archival records 
and donated historical materials in NARA's legal and physical custody 
by:
    (1) Foreign, Federal, state, and local government agencies;
    (2) Private commercial firms;
    (3) Academic research groups; or
    (4) Other entities or individuals that request exemption from 
obtaining copies through the regular fee schedule reproduction ordering 
system of NARA.
    (b) If you wish to microfilm Federal agency records in the physical 
custody of the Washington National Records Center (WNRC), contact the 
director, WNRC, about procedures for obtaining permission from the 
originating agency to film those records (see Sec. 1253.4). For 
information about procedures for obtaining permission from the 
originating agency to film records in the records center operation of 
one of NARA's regional records facilities or in the physical custody of 
the National Personnel Records Center (NPRC), contact the Regional 
Administrator of the region in which the records are located (see Sec. 
1253.6), or the director, NPRC, for records in NPRC (see Sec. 1253.5).
    (c) Federal agencies that need to microfilm archival records in 
support of the agency's mission must contact the appropriate office as 
specified in Sec. 1254.92(a) as soon as possible after the need is 
identified for information concerning standards and procedures that 
apply to their microfilming of archival records.



Sec. 1254.92  How do I submit a request to microfilm records and donated 

historical materials?

    (a) You must submit your request to microfilm materials to the 
appropriate office.
    (1) Submit your written request to microfilm archival records or 
donated historical materials (except donated historical materials under 
the control of the Office of Presidential Libraries) in the Washington, 
DC, area to the Assistant Archivist for Records Services--Washington, DC 
(NW), 8601 Adelphi Rd., College Park, MD 20740-6001.
    (2) Submit your written request to microfilm archival records or 
donated historical materials in a NARA regional archives to the 
Assistant Archivist for Regional Records Services (NR), 8601 Adelphi 
Rd., College Park, MD 20740-6001.
    (3) Submit your written request to microfilm records or donated 
historical materials in a Presidential library or donated historical 
materials in the Washington area under the control of the Office of 
Presidential Libraries to the Assistant Archivist for Presidential 
Libraries (NL), 8601 Adelphi Rd., College Park, MD 20740-6001.
    (4) OMB control number 3095-0017 has been assigned to the 
information collection contained in this section.
    (b) You must submit your request to use privately owned microfilm 
equipment four months in advance of the proposed starting date of the 
microfilming project. If you submit your request with less advance 
notice, we consider it and may approve it if we have available adequate 
NARA space and staff and if you can complete all training, records 
preparation, and other NARA requirements in a shorter time frame.
    (1) You may include in your request only one project to microfilm a 
complete body of documents, such as an entire series, a major continuous 
segment of a very large series which is reasonably divisible, or a 
limited number of separate series related by provenance or subject.
    (2) We do not accept additional requests from an individual or 
organization to microfilm records in a NARA facility while we evaluate 
an earlier request from that individual or organization to microfilm 
records at that facility.
    (3) We establish the number of camera spaces available to a single 
project based upon the total number of

[[Page 937]]

projects approved for filming at that time.



Sec. 1254.94  What must my request include?

    (a) A description of the documents you wish to copy that includes 
the following elements:
    (1) Record group number or agency of origin or, for donated 
historical materials, title of the collection;
    (2) Title of series or file segment;
    (3) Date span; and
    (4) Estimated volume in number of pages or cubic feet.
    (b) The estimated amount of time (work-days) that the microfilm 
copying project will take; the date that you would like to begin the 
project; and the number of persons who would require training (see Sec. 
1254.108(b)).
    (c) The number and a description of the equipment that you will use 
for copying including:
    (1) The name of the manufacturer and model number; and
    (2) The type of light source to be employed (fluorescent, tungsten, 
or electronic flash) and if electronic flash (i.e., strobe) or 
fluorescent, whether the light source is filtered to omit ultraviolet 
radiation.
    (d) A statement of the procedures that you will follow to ensure 
that you copy all pages, that the images on the microfilm are legible, 
and that the microfilm is properly processed. At a minimum, the 
procedures should meet the requirements specified in part 1230 of this 
chapter regarding the microfilming of permanent records.



Sec. 1254.96  What credits must I give NARA?

    (a) You must agree to credit NARA as having custody of the original 
documents. The credit must appear at the beginning of a microfilm 
publication and in any publicity material or descriptions of the 
publication.
    (b) If the original documents are Federal records, you must agree to 
include on the film this statement: ``The documents reproduced in this 
publication are among the records of the (name of agency) in the custody 
of the National Archives of the United States. (Name of microfilm 
publication producer) does not claim any copyright interest in these 
official U.S. Government records.''
    (c) If the original documents are donated historical materials, you 
must agree to include on the film this statement: ``The documents 
reproduced in this publication are donated historical materials from 
(name of donor) in the custody of the (name of Presidential library or 
National Archives of the United States). The National Archives and 
Records Administration administers them in accordance with the 
requirements of the donor's deed of gift and the U.S. Copyright Law, 
Title 17, U.S.C. (Name of microfilm publication producer) does not claim 
any copyright interest in these donated historical materials.''
    (d) If the original documents are Presidential or Vice-Presidential 
records as specified in 44 U.S.C. 2201, you must agree to include on the 
film this statement: ``The documents reproduced in this publication are 
Presidential records in the custody of the (name of Presidential library 
or National Archives of the United States). The National Archives and 
Records Administration administers them in accordance with the 
requirements of Title 44, U.S.C. (Name of microfilm publication 
producer) does not claim any copyright interest in these official 
Presidential records.''
    (e) If the original documents are records of Congress, you must 
agree to include on the film this statement: ``The documents reproduced 
in this publication are among the records of the (House of 
Representatives/Senate) in the physical custody of the National Archives 
and Records Administration (NARA). NARA administers them in accordance 
with the requirements of the (House/Senate). (Name of microfilm 
publication producer) does not claim any copyright interest in these 
official congressional records.''



Sec. 1254.98  May NARA make subsequent use of my publication?

    You must give NARA a royalty-free worldwide license, to take effect 
seven years after you complete filming at the NARA facility, to publish, 
display, reproduce, distribute, and sell the publication, and to create 
derivative works based on the publication, and to use

[[Page 938]]

the publication in collective works, all without limitation. The license 
required by this section must be written to take effect upon publication 
if there is no commercial distributor, or once commercial distribution 
ends if less than seven years from the date you complete filming at the 
NARA facility.



Sec. 1254.100  How does NARA evaluate requests?

    (a) NARA evaluates requests by estimating how well completion of a 
proposed project would further our efforts to preserve and to make 
available to the public the historically valuable records of the 
Government.
    (b) In considering multiple requests to film at the same time, we 
give priority to microfilming records that have research value for a 
variety of studies or that contain basic information for fields of 
research in which researchers have demonstrated substantial interest.
    (c) The records to be filmed should be reasonably complete and not 
subject to future additions, especially of appreciable volumes, within 
the original body of records. Records with pending or future end-of-
series additions are appropriate for filming.
    (d) The records to be filmed should not have substantial numbers of 
documents withdrawn because of continuing national security 
classification, privacy, or other restrictions.
    (e) We approve only requests to microfilm a complete body of 
documents, such as an entire series or a major continuous segment of a 
very large series that is reasonably divisible. Microfilming a complete 
body of documents means that you must consecutively copy all documents 
within the file unit(s), from the first to the last page, not skipping 
any pages in between except for pages that are exact duplicates or blank 
pages that are not included in a pagination scheme.
    (f) We normally approve only requests that include assurances that 
the project will adhere to the specifications in part 1230 of this 
chapter concerning microfilm stock standards, index placement, and 
microfilm processing for permanent records.
    (g) We approve only requests that specify that NARA will receive a 
first generation silver halide duplicate negative containing no splices 
made from the original camera negative of the microform record created 
in accordance with part 1230 of this chapter.
    (1) We may use this duplicate negative microform to make duplicate 
preservation and reference copies. The copies may be made available for 
NARA and public use in NARA facilities and programs immediately upon 
receipt.
    (2) We may also make additional use of the microform, as indicated 
in Sec. 1254.98, seven years after you complete filming at the NARA 
facility, or upon delivery of the publication if there is no commercial 
distributor, or when the commercial distributor is no longer available, 
whichever occurs first. We may choose to add our own editorial material 
to the microform copies.
    (3) You must deliver detailed roll lists with the microfilm. The 
lists must give the full range of file titles and a complete list of all 
file numbers on each roll of microfilm. We prefer that the list be 
provided in a fielded, electronic format to facilitate its use by staff 
and researchers. If the electronic format is a data file with defined or 
delimited fields, you should transfer with the file the records layout 
identifying the fields, any coded values for fields, and explanations of 
any delimiters.
    (4) Microfilm projects may donate to us additional indexes and 
finding aids. NARA and the microfilm project execute a deed of gift that 
specifies restrictions on NARA's use and dissemination of these products 
under mutually acceptable terms.



Sec. 1254.102  What requests does NARA not approve?

    (a) We do not approve any request that does not include all of the 
information we require in Sec. Sec. 1254.94 and 1254.96.
    (b) We do not normally approve requests to microfilm documents that:
    (1) Have previously been microfilmed and made available to the 
public;
    (2) We have approved for microfilming by another party; or
    (3) We plan to film as a NARA microfilm publication or which relate 
closely to other documents previously microfilmed or approved for 
microfilming by

[[Page 939]]

NARA. We may grant exceptions to this provision at our discretion.
    (c) We normally do not approve requests to microfilm documents:
    (1) Having restrictions on access that preclude their reproduction;
    (2) Known to be protected by copyright;
    (3) Having high intrinsic value that only authorized NARA personnel 
may handle;
    (4) In vulnerable physical condition;
    (5) Having a high research demand and which we would have to deny to 
others for an extended period of time during the microfilming process. 
Where possible, we assist you in developing filming schedules that avoid 
the need to close documents for a lengthy period of time; and
    (6) In formats, such as oversize documents, bound volumes, and 
others, that would be subject to excessive stress and possible damage 
from special equipment you plan to use, as well as documents fastened 
with grommets, heavy duty staples, miscellaneous fasteners, or wafers 
and other adhesives that cannot be removed without tearing or breaking 
documents.
    (d) We normally do not approve requests from persons or 
organizations that failed to produce usable microfilm or to honor 
commitments they made in previous requests, or for whom we have had to 
rescind previous permission to microfilm documents because of their 
conduct.
    (e) We do not approve requests to microfilm records in NARA 
facilities in which there is insufficient space available for private 
microfilming. We do not permit private microfilming in our records 
storage (stack) areas.
    (1) Federal agencies microfilming records in support of the agency's 
mission may use the space set aside for private microfilming. Agency 
microfilming takes priority over private microfilming when there is 
insufficient space to accommodate both at the same time.
    (2) When a NARA facility does not have enough space to accommodate 
all requests, we may schedule separate projects by limiting the time 
allowed for each particular project or by requiring projects to 
alternate their use of the space.
    (3) We also do not approve requests where the only space available 
for filming is in the facility's research room, and such work would 
disturb researchers. We do not move records from a facility lacking 
space for private microfilming to another NARA facility for that 
purpose.
    (f) We do not approve requests to microfilm records when there is 
not enough staff to provide the necessary support services, including 
document preparation, training of private microfilmers, and monitoring 
the filming.
    (g) We do not approve the start of a project to microfilm records 
until you have agreed in writing to the amount and schedule of fees for 
any training, microfilm preparation, and monitoring we must conduct that 
is necessary to support your project. Our letter of tentative approval 
for the project includes an agreement detailing the records in the 
project and the detailed schedule of fees for NARA services for the 
project. We give final approval when we receive your signed copy of the 
agreement.



Sec. 1254.104  How does NARA determine fees to prepare documents for 

microfilming?

    (a) As part of our evaluation of a request to microfilm documents, 
we determine the amount of microfilm preparation that we must do before 
you can microfilm the documents and the estimated cost of such 
preparation. We base fees for microfilm preparation on direct salary 
costs (including benefits) and supply costs when we perform the work. 
When a NARA contractor performs the work, the fees are the cost to NARA. 
Microfilm preparation includes:
    (1) Removing document fasteners from documents when the fasteners 
can be removed without damage to the documents; and
    (2) Taking any document conservation actions that must be 
accomplished in order to film the documents, such as document flattening 
or mending.
    (b) We provide you detailed information on the fees for microfilm 
preparation in the letter of approval. You must pay fees in accordance 
with Sec. 1258.14 of this chapter. When a body of documents requires 
extensive microfilm preparation, we may establish a

[[Page 940]]

different payment schedule at our discretion.



Sec. 1254.106  What are NARA's equipment standards?

    (a) Because we have limited space in many NARA facilities, 
microfilm/fiche equipment should be operable from a table top unless we 
have given written permission to use free standing/floor model cameras. 
You may only use planetary type camera equipment. You may not use 
automatic rotary cameras and other equipment with automatic feed 
devices. We may approve your use of book cradles or other specialized 
equipment designed for use with bound volumes, oversized documents, or 
other formats, as well as other camera types not specified here, on a 
case-by-case basis.
    (b) The power consumption of the equipment normally must not exceed 
1.2 kilowatts. Power normally available is 115 volts, 60 hz. You must 
make requests for electricity exceeding that normally available at least 
90 days in advance.
    (c) You may not use equipment having clamps or other devices to 
exert pressure upon or to attach the document to any surface in a way 
that might damage the document.
    (d) The equipment must not use a heat generating light source in 
close enough proximity to the documents to result in their physical 
distortion or degradation. All sources of ultraviolet light must be 
filtered.



Sec. 1254.108  What are NARA's requirements for the microfilming process?

    (a) Your equipment must conform to the equipment standards in Sec. 
1254.106.
    (b) You must handle documents according to the training and 
instructions provided by our staff so that documents are not damaged 
during copying and so that their original order is maintained. Only 
persons who have attended NARA training will be permitted to handle the 
documents or supervise microfilming operations. We charge you fees for 
training services and these fees will be based on direct salary costs 
(including benefits) and any related supply costs. We specify these fees 
in the written agreement we require for project approval in Sec. 
1254.102(h).
    (c) You may microfilm documents from only one file unit at a time. 
After you complete microfilming, you must return documents you removed 
from files for microfilming to their original position in the file 
container, refasten any fasteners you removed to facilitate copying, and 
remove any tabs you placed on the documents to identify items to copy. 
We will provide fasteners for replacement as necessary.
    (d) You may not leave documents unattended on the copying equipment 
or elsewhere.
    (e) Under normal microfilming conditions, actual copying time per 
sheet must not exceed 30 seconds.
    (f) You must turn off any lights used with the camera when the 
camera is not in actual operation.
    (g) You may operate microfilm equipment only in the presence of the 
research room attendant or a designated NARA employee. If NARA places 
microfilm projects in a common research area with other researchers, the 
project will not be required to pay for monitoring that is ordinarily 
provided. If the microfilm project is performed in a research room set 
aside for copying and filming, we charge the project fees for these 
monitoring services and these fees will be based on direct salary costs 
(including benefits). When more than one project share the same space, 
monitoring costs will be divided equally among the projects. We specify 
the monitoring service fees in the written agreement required for 
project approval in Sec. 1254.102(h).
    (h) The equipment normally should be in use each working day that it 
is in a NARA facility. The director of the NARA facility (as defined in 
Sec. 1252.2 of this chapter) decides when you must remove equipment 
because of lack of regular use. You must promptly remove equipment upon 
request of the facility director.
    (i) We assume no responsibility for loss or damage to microfilm 
equipment or supplies you leave unattended.
    (j) We inspect the microform output at scheduled intervals during 
the project to verify that the processed film meets the microfilm 
preparation and filming standards required by part

[[Page 941]]

1230 of this chapter. To enable us to properly inspect the film, we must 
receive the film within 5 days after it has been processed. You must 
provide NARA with a silver halide duplicate negative of the filmed 
records (see Sec. 1254.100(g)) according to the schedule shown in 
paragraph (k). If the processed film does not meet the standards, we may 
require that you refilm the records.
    (k) When you film 10,000 or fewer images, you must provide NARA with 
a silver halide duplicate negative upon completion of the project. When 
the project involves more than 10,000 images, you must provide a silver 
halide duplicate negative of the first completed roll or segment of the 
project reproducing this image count to NARA for evaluation. You also 
must provide subsequent completed segments of the project, in quantities 
approximating 100,000 or fewer images, to NARA within 30 days after 
filming unless we approve other arrangements.
    (l) If the microfilming process is causing visible damage to the 
documents, such as flaking, ripping, separation, fading, or other 
damage, filming must stop immediately and until the problems can be 
addressed.



Sec. 1254.110  Does NARA ever rescind permission to microfilm?

    We may, at any time, rescind permission to microfilm records if:
    (a) You fail to comply with the microfilming procedures in Sec. 
1254.108;
    (b) Inspection of the processed microfilm reveals persistent 
problems with the quality of the filming or processing;
    (c) You fail to proceed with the microfilming or project as 
indicated in the request, or
    (d) The microfilming project has an unanticipated adverse effect on 
the condition of the documents or the space set aside in the NARA 
facility for microfilming.
    (e) You fail to pay NARA fees in the agreed to amount or on the 
agreed to payment schedule.



PART 1256_ACCESS TO RECORDS AND DONATED HISTORICAL MATERIALS--Table of 

Contents




                      Subpart A_General Information

Sec.
1256.1 What does this part cover?
1256.2 How do I obtain access to records stored in Federal Records 
          Centers?
1256.6 How do I obtain access to records of defunct agencies?
1256.8 How do I obtain access to Presidential records?
1256.10 How do I obtain access to Nixon Presidential materials?

              Subpart B_Access to Federal Archival Records

1256.20 May I obtain access to Federal archival records?
1256.22 How do I request access to restricted information in Federal 
          archival records?
1256.24 How long may access to some records be denied?
1256.26 When can I appeal decisions about access to Federal archival 
          records?
1256.28 Does NARA make any exceptions for access to records containing 
          privacy-restricted information?

            Subpart C_Access to Donated Historical Materials

1256.30 How do I obtain access to donated historical materials?
1256.32 How do I request access to restricted information in donated 
          historical materials?
1256.34 How long may access to some donated historical materials be 
          denied?
1256.36 When can I appeal decisions about access to donated historical 
          materials?

                     Subpart D_General Restrictions

1256.40 What are general restrictions?
1256.42 Who imposes general restrictions?
1256.44 Does NARA ever waive general restrictions?
1256.46 National security-classified information.
1256.48 Information about internal agency rules and practices.
1256.50 Information exempted from disclosure by statute.
1256.52 Trade secrets and commercial or financial information.
1256.54 Inter- and intra-agency memoranda (subject to privilege).
1256.56 Information that would invade the privacy of a living 
          individual.
1256.58 Information related to law enforcement investigations.
1256.60 Information relating to financial institutions.

[[Page 942]]

1256.62 Geological and geophysical information relating to wells.

 Subpart E_Access to Materials Containing National Security-Classified 
                               Information

1256.70 What controls access to national security-classified 
          information?
1256.72 What are FOIA requests and mandatory review requests?
1256.74 How does NARA process Freedom of Information Act (FOIA) requests 
          for classified information?
1256.76 How do I request mandatory review of classified information 
          under Executive Order 12958, as amended?
1256.78 How does NARA handle my mandatory review request?
1256.80 How does NARA provide classified access to historical 
          researchers and former Presidential appointees?

  Subpart F_Domestic Distribution of United States Information Agency 
   Audiovisual Materials in the National Archives of the United States

1256.90 What does this subpart cover?
1256.92 What is the purpose of this subpart?
1256.94 Definition.
1256.96 What provisions apply to the transfer of USIA audiovisual 
          records to the National Archives of the United States?
1256.98 Can I get access to and obtain copies of USIA audiovisual 
          records transferred to the National Archives of the United 
          States?
1256.100 What is the copying policy for USIA audiovisual records that 
          either have copyright protection or contain copyrighted 
          material?
1256.102 What fees does NARA charge?

    Authority: 44 U.S.C. 2101-2118; 22 U.S.C. 1461(b); 5 U.S.C. 552; 
E.O. 12958 (60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 13292, 68 FR 
15315, 3 CFR, 2003 Comp., p. 196; E.O. 13233, 66 FR 56023, 3 CFR, 2001 
Comp., p. 815.

    Source: 69 FR 39325, June 30, 2004, unless otherwise noted.



                      Subpart A_General Information



Sec. 1256.1  What does this part cover?

    This part describes NARA's policies on access to archival records of 
the Executive Branch and donated historical materials in the National 
Archives of the United States and to records in the physical custody of 
the Federal records centers. This part applies to records and materials 
covered by the Federal Records Act (44 U.S.C. 2108 and chs. 29, 31, 33) 
and donated historical materials. This part does not apply to 
Presidential, Supreme Court, Senate, House of Representatives, and 
Architect of the Capitol records except for the purpose of directing 
mandatory review requests in subpart E.



Sec. 1256.2  How do I obtain access to records stored in Federal Records 

Centers?

    Agencies that retire their records to a Federal records center (FRC) 
set rules for access to those records. Address requests for access to 
records stored in Federal records centers directly to the appropriate 
agency or to the appropriate FRC director at the address shown in part 
1253. When the agency's rules permit, NARA makes FRC records available 
to requesters. When the agency's rules and restrictions do not permit 
access FRCs receive requests that should have been sent to the agency, 
the FRC director refers the requests and any appeals for access, 
including those made under the Freedom of Information Act (5 U.S.C. 552, 
as amended), to the responsible agency.



Sec. 1256.6  How do I obtain access to records of defunct agencies?

    NARA handles access to archives and FRC records received from 
agencies that have ceased to exist without a successor in function as 
described in Subpart B.



Sec. 1256.8  How do I obtain access to Presidential records?

    See 36 CFR part 1270, Presidential Records, for the rules for access 
to Presidential records transferred to NARA.



Sec. 1256.10  How do I obtain access to Nixon Presidential materials?

    See 36 CFR part 1275, Preservation and Protection of and Access to 
the Presidential Historical Materials of the Nixon Administration, for 
the rules for access to Nixon Presidential materials.



              Subpart B_Access to Federal Archival Records



Sec. 1256.20  May I obtain access to Federal archival records?

    (a) Most Federal archival records are open for research without 
submitting a

[[Page 943]]

Freedom of Information Act (FOIA) request. Part 1254 specifies 
procedures for using unrestricted records in a NARA research room, 
submitting reference requests, and ordering copies of records.
    (b) Some records are subject to restrictions prescribed by statute, 
Executive Order, or by restrictions specified in writing in accordance 
with 44 U.S.C. 2108 by the agency that transferred the records to the 
National Archives of the United States. All agency-specified 
restrictions must comply with the FOIA. Even if the records are not 
national-security classified, we must screen some records for other 
information exempt from release under the FOIA.



Sec. 1256.22  How do I request access to restricted information in Federal 

archival records?

    (a) You may file a FOIA request. To request access under the 
provisions of the FOIA, see part 1250 of this chapter, Public 
Availability and Use of Federal Records.
    (b) For classified information in Federal records, you may file a 
FOIA request or a mandatory review request under Executive Order 12958, 
as amended, as described in Sec. 1256.74.



Sec. 1256.24  How long may access to some records be denied?

    (a) Although many records are open for research, some records are 
closed for long periods, either under our general restrictions, 
described in subpart D of this part, or another governing authority. For 
example, in accordance with 44 U.S.C. 2108(b), we do not grant access to 
restricted census and survey records of the Bureau of the Census less 
than 72 years old containing data identifying individuals enumerated in 
population censuses.
    (b) Screening records takes time. We screen records as soon as 
possible and can often make most of the records in which you are 
interested available. In the case of electronic structured databases, 
NARA can make a copy of records with restricted information masked. In 
response to FOIA requests for records in other media, we make a copy of 
the record available if we can mask or ``redact'' restricted 
information.



Sec. 1256.26  When can I appeal decisions about access to Federal archival 

records?

    (a) For information on filing appeals for requests made under the 
FOIA, see 36 CFR part 1250, subpart D, Appeals.
    (b) For information on filing appeals for requests made under 
mandatory review, see Sec. 1260.54 of this chapter.



Sec. 1256.28  Does NARA make any exceptions for access to records containing 

privacy-restricted information?

    (a) NARA policy. Access to archival records containing information 
access to which would invade the privacy of an individual is restricted 
by Sec. 1256.56.
    (1) NARA may authorize access to such records for the purpose of 
research to qualified persons doing biomedical or social science 
research under the conditions outlined in this section as long as the 
records do not also contain information restricted by statute or 
national security-classified information.
    (2) If NARA is able to make a copy of such records with all personal 
identifiers masked or deleted, NARA will make such a ``sanitized'' copy 
of the record available to all researchers in accordance with Sec. 
1256.24.
    (3) NARA will not grant access to restricted census and survey 
records of the Bureau of the Census less than 72 years old containing 
data identifying individuals enumerated in population censuses in 
accordance with 44 U.S.C. 2108(b).
    (b) Request for access. Researchers who wish to have access to 
records restricted by Sec. 1256.56 to conduct biomedical or social 
science research must submit a written request to the NARA FOIA/Privacy 
Act Officer (NGC), National Archives and Records Administration, 8601 
Adelphi Road, College Park, MD 20740-6001. OMB control number 3095-0002 
has been assigned to this collection of information requirement. 
Researchers are encouraged to consult informally with NARA before 
submitting the formal request. The request must include the following 
information:
    (1) Name and mailing address;
    (2) Institutional affiliation and position, if applicable;

[[Page 944]]

    (3) List of published research, if applicable;
    (4) References from two persons who have first-hand knowledge of the 
requester's qualifications to perform the research;
    (5) A statement of the nature of the research to be conducted and 
any plans for publication or presentation of the research findings;
    (6) A listing of all sources of grant funds supporting the research 
project or its publication;
    (7) A statement of the methodology to be used;
    (8) A statement of the administrative, technical, and physical 
safeguards to be employed by the researcher to prevent unauthorized use 
or disclosure of the records;
    (9) A listing of the record groups and series titles to be used; and
    (10) A statement that the researcher will abide by the conditions of 
access to be prescribed by NARA and that the researcher will assume 
responsibility for the action of all persons working with the researcher 
on the project.
    (c) Access Review Committee. Requests made under paragraph (b) of 
this section will be reviewed by NARA's Access Review Committee, which 
is composed of the Deputy Archivist of the United States, the Assistant 
Archivist for the Office of Records Services--Washington, DC, the 
Assistant Archivist for the Official of Regional Records Services, and 
the director(s) of the NARA division(s) that has custody of the 
requested records. The Committee may consult other persons within and 
outside the Federal Government who are knowledgeable in the research 
field for assistance in evaluating a request.
    (1) The Committee will examine the request to determine whether:
    (i) The requested information is of such a highly sensitive personal 
nature that disclosure must not be permitted even for biomedical or 
social science research;
    (ii) The methodology proposed by the requester will permit the 
researcher to obtain the projected research results without revealing 
personally identifying information;
    (iii) The research results are intended to be published or presented 
at an academic or research conference;
    (iv) The requester is a biomedical or social science researcher who 
has previous research experience and has submitted or intends to submit 
articles or books on such research for publication;
    (v) The safeguards proposed by the requester will adequately protect 
the personal information; and
    (vi) NARA has sufficient staff and space available to safeguard 
privacy interests necessary to accommodate the research project.
    (2) The decision of the Committee will be made in writing to the 
requester within 15 workdays after receipt of a completed request. At 
the discretion of the Committee, the researcher may meet with the 
Committee to discuss the project or to discuss revising the research 
proposal to meet possible objections of the Committee.
    (d) Conditions of access. Researchers who are granted access to 
restricted records, all others associated with the research project who 
will have access to personally identifiable information from the 
records, and the manager of any facility handling the records containing 
personal identifiers must agree in writing to maintain the 
confidentiality of the information and to adhere to the conditions of 
access imposed by NARA. NARA will impose the following conditions of 
access on any project; additional conditions may be imposed on the use 
of specific records or on specific projects:
    (1) The records may be used only for the purpose of the research and 
for the reporting of research findings as described in the approved 
research project. The records may not be used for any other purpose;
    (2) The records and any authorized copies of records may not be 
transferred to any person or institution not directly involved with the 
approved research project and subject to a written agreement to maintain 
confidentiality specified in Sec. 1256.28(d);
    (3) Reasonable administrative, technical, and physical safeguards, 
as approved by NARA, to prevent unauthorized use or disclosure of the 
records must be established by the researcher and followed by all 
persons associated with the project;

[[Page 945]]

    (4) When required by NARA, the records must be consulted at the NARA 
facility where the records are located;
    (5) The researcher's notes must not contain any individually 
identifiable information. The researcher must use an alternate code 
system to render personally identifiable information as anonymous in all 
research notes;
    (6) Persons who are identified in the records may not be contacted 
by or on behalf of the researcher;
    (7) Before publication or public presentation of the data, the final 
research product(s) must be provided to the Deputy Archivist of the 
United States for review. NARA's review is limited to ensuring that 
there is no possible identification of individuals in the research 
findings. NARA will not evaluate the validity of the research findings.
    (e) Noncompliance with conditions of access. If we discover that a 
researcher has violated any of the conditions of access, we will take 
steps to revoke the NARA research privileges of that person and will 
consult with NARA's General Counsel or his or her designee to determine 
any other steps to be taken to prevent any further disclosure of the 
personal information concerned. NARA may also inform the following 
persons and organizations of the researcher's failure to follow the 
conditions of use:
    (1) The institution with which the researcher is affiliated, if 
applicable;
    (2) Persons who served as references in the application for access;
    (3) Organizations that provided grant funds for the project;
    (4) The sponsor of the publication or public presentation; and
    (5) Appropriate professional organizations.



            Subpart C_Access to Donated Historical Materials



Sec. 1256.30  How do I obtain access to donated historical materials?

    NARA encourages researchers to confer about donated historical 
materials with the appropriate director or reference staff member at the 
facilities listed in part 1253 of this chapter. Some donated historical 
materials have restrictions on their use and availability as stated in 
writing by the donors in the Donor's Deed of Gift. Some may have other 
restrictions imposed by statute or Executive Order. If warranted, the 
Archivist may apply general restrictions to donated materials even when 
not specified in the donor's deed of gift. NARA staff can assist you 
with questions about restrictions or copyright protection that may apply 
to donated materials. See Sec. 1256.36 for information on appealing 
closure of donated materials and subpart D of this part for information 
about general restrictions.



Sec. 1256.32  How do I request access to restricted information in donated 

historical materials?

    (a) At Presidential libraries and regional archives, you may write 
to the appropriate director at the facilities in part 1253 of this 
chapter. In the Washington, DC, area, you may write to the Director of 
Access Programs (NWC) for donated textual materials or the Director of 
Modern Records Programs (NWM) for donated electronic records. The 
mailing address for NWC and NWM is Office of Records Services--
Washington, DC, 8601 Adelphi Road, College Park, MD 20740-6001.
    (b) You may request a review of documents restricted under terms of 
a donor's deed of gift or other legal instrument to determine whether 
the conditions originally requiring the closure still exist. Your 
request must describe each document requested so that the staff can 
locate it with a reasonable amount of effort. For files that NARA 
previously screened, you may cite the reference to the withheld document 
as it appears on the withdrawal sheet.
    (c) In many instances, the director or his or her designated 
representative will determine whether entire documents or portions of 
them can be opened. However, a donor or his or her representative 
reserves the right to determine whether the donor's materials, a series, 
or a document or portions of it should remain closed (see Sec. 
1256.36).
    (d) For classified information in donated historical materials, you 
may file a mandatory review request under Executive Order 12958, as 
amended, as described in Sec. 1256.74.

[[Page 946]]



Sec. 1256.34  How long may access to some donated historical materials be 

denied?

    Some donated historical materials are closed for long periods, 
either under the provisions of the deed of gift, our general 
restrictions described in subpart D of this part, or another governing 
authority. We are sometimes able to make a copy of materials with 
restricted information redacted.



Sec. 1256.36  When can I appeal decisions about access to donated historical 

materials?

    (a) If you wish to appeal a denial of access from the director or 
his designated representative in implementing the provisions of a 
donor's deed of gift, you may write a letter addressed to the Deputy 
Archivist of the United States, National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD 20740-6001. The 
Deputy Archivist, the Assistant Archivist for Presidential Libraries, 
and the Assistant Archivist for Records Services--Washington, DC, or 
their designated representatives, compose the Board of Review for 
appeals relating to donated historical materials.
    (b) The board's decision is final. If the board cannot make a 
determination on your request within 30 working days of receipt, NARA 
informs you of the reason for the delay. If the board determines that a 
document should remain closed, you may not file a new appeal for two 
years. Similarly, you may not file an appeal on documents in collections 
that have been open for research for less than 2 years.
    (c) In some cases, the donor or his representative may reserve the 
right to determine whether the donor's materials, a series, or a 
document or portions of it should remain closed; you cannot appeal such 
decisions.
    (d) For information on filing appeals for requests made under 
mandatory review of White House originated information, see Sec. 
1260.62 of this chapter.



                     Subpart D_General Restrictions



Sec. 1256.40  What are general restrictions?

    General restrictions apply to certain kinds of information or 
classes of records, regardless of the record group to which the records 
have been allocated. These general restrictions may apply to records and 
materials not covered by the Freedom of Information Act. The general 
restrictions are listed and explained in Sec. Sec. 1256.46 through 
1256.62.



Sec. 1256.42  Who imposes general restrictions?

    The Archivist of the United States imposes all general restrictions 
in accordance with 5 U.S.C. 552, as amended, and 44 U.S.C. 2107(4), 
2108, and 2111.



Sec. 1256.44  Does NARA ever waive general restrictions?

    NARA may provide access to records withheld under a general 
restriction only to:
    (a) NARA employees for work purposes;
    (b) The creating agency or its authorized agent in the conduct of 
agency business;
    (c) The donor, in the case of donated historical materials; or
    (d) The subject of the records in some cases or the subject's 
authorized agent.



Sec. 1256.46  National security-classified information.

    In accordance with 5 U.S.C. 552(b)(1), NARA cannot disclose records 
containing information regarding national defense or foreign policy that 
is properly classified under the provisions of the pertinent Executive 
Order on Classified National Security Information and its implementing 
directive (Executive Order 12958, as amended).



Sec. 1256.48  Information about internal agency rules and practices.

    (a) NARA may withhold from disclosure, in accordance with 5 U.S.C. 
552(b)(2), the following:
    (1) Records that contain information on substantial internal matters 
of agencies that, if disclosed, could risk circumvention of a legal 
requirement, such as a statute or an agency regulation.
    (2) Records containing information that states or assesses an 
agency's vulnerability to outside interference or harm. NARA withholds 
records that identify agency programs, systems, or

[[Page 947]]

facilities deemed most sensitive. NARA also withholds records describing 
specific measures that can be used to counteract such agency 
vulnerabilities.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to specific records because enough 
time has passed that agency statutes or regulations would not be 
compromised and programs, systems, and facilities would not be harmed.



Sec. 1256.50  Information exempted from disclosure by statute.

    In accordance with 5 U.S.C. 552(b)(3), NARA withholds records 
containing information that is specifically exempted from disclosure by 
statute when that statute:
    (a) Requires withholding information from the public, leaving no 
discretion; or
    (b) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.



Sec. 1256.52  Trade secrets and commercial or financial information.

    In accordance with 5 U.S.C. 552(b)(4), NARA may withhold records 
that contain trade secrets and commercial or financial information, 
obtained from a person, that is privileged or confidential. Such records 
may be disclosed only if:
    (a) The person who provided the information agrees to its release; 
or
    (b) In the judgment of the Archivist of the United States, enough 
time has passed that release of the information would not result in 
substantial competitive harm to the submitter of the information. See 36 
CFR 1250.82 for additional regulatory guidance.



Sec. 1256.54  Inter- and intra-agency memoranda (subject to privilege).

    (a) In accordance with 5 U.S.C. 552(b)(5), NARA may withhold 
information found in inter-agency or intra-agency records if that 
information is subject to a legally recognized privilege, including the:
    (1) Deliberative process privilege;
    (2) Attorney work product privilege; and
    (3) Attorney-client privilege.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to specific records because enough 
time has passed that release of the information would not result in the 
harm that the privilege was intended to protect or confidential 
attorney-client communications.



Sec. 1256.56  Information that would invade the privacy of a living 

individual.

    (a) In accordance with 5 U.S.C. 552(b)(6), NARA will withhold 
records in personnel and medical and similar files containing 
information about a living individual that reveals details of a highly 
personal nature that, if released, would cause a clearly unwarranted 
invasion of personal privacy. Privacy information may include, but is 
not limited to, information about the physical or mental health or the 
medical or psychiatric care or treatment of the individual, and that:
    (1) Contains personal information not known to have been previously 
made public, and
    (2) Relates to events less than 75 years old.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to:
    (1) Specific records because enough time has passed that the privacy 
of living individuals is not compromised; or
    (2) Researchers for the purpose of biomedical and social science 
research when such researchers have provided NARA with adequate written 
assurance that the record(s) will be used solely as a research or 
reporting record and that no individually identifiable information will 
be disclosed.



Sec. 1256.58  Information related to law enforcement investigations.

    (a) In accordance with 5 U.S.C. 552(b)(7), NARA will withhold 
records compiled for law enforcement purposes. Unless otherwise 
determined by the Archivist in accordance with paragraph (b) of this 
section, records compiled for law enforcement purposes may be disclosed 
only if all of the following conditions are met:

[[Page 948]]

    (1) The release of the information does not interfere with law 
enforcement proceedings;
    (2) The release of the information would not deprive a person of a 
right to a fair trial or an impartial adjudication;
    (3) The release of the information would not constitute an 
unwarranted invasion of personal privacy;
    (4) Confidential sources and information provided by a confidential 
source are not revealed;
    (5) Confidential investigation techniques are not described; and
    (6) Release of the information would not endanger the life or 
physical safety of any person.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to specific records because enough 
time has passed that:
    (1) The safety of persons is not endangered, and
    (2) The public interest in disclosure outweighs the continued need 
for confidentiality.



Sec. 1256.60  Information relating to financial institutions.

    (a) In accordance with 5 U.S.C. 552(b)(8), NARA may withhold 
information in records contained in or relating to the examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to specific records because enough 
time has passed that current financial information is not compromised.



Sec. 1256.62  Geological and geophysical information relating to wells.

    (a) In accordance with 5 U.S.C. 552(b)(9), NARA may withhold 
information in records that relates to geological and geophysical 
information and data, including maps, concerning wells.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to specific records because enough 
time has passed that current proprietary rights are not compromised.



 Subpart E_Access to Materials Containing National Security-Classified 
                               Information



Sec. 1256.70  What controls access to national security-classified 

information?

    (a) The declassification of and public access to national security-
classified information, hereinafter referred to as ``classified 
information'' is governed by Executive Order 12958 of April 17, 1995 (3 
CFR, 1995 Comp., p. 333) and as amended by Executive Order 13292 of 
March 25, 2003 (68 FR 15315, 3 CFR, 2003 Comp. 196), 32 CFR part 2001, 
and the Freedom of Information Act (5 U.S.C. 552, as amended).
    (b) Public access to documents declassified in accordance with this 
regulation may be restricted or denied for other reasons under the 
provisions of 5 U.S.C. 552(b) for accessioned agency records; Sec. Sec. 
1256.30 through 1256.36 of this part for donated historical materials; 
44 U.S.C. 2111, 44 U.S.C. 2201 et seq., and 36 CFR part 1270 for 
Presidential records; and 44 U.S.C. 2111 note and 36 CFR part 1275 for 
Nixon Presidential materials.



Sec. 1256.72  What are FOIA requests and mandatory review requests?

    (a) You may file a FOIA request for Executive Branch agency records, 
regardless of whether they contain classified information. The FOIA also 
applies to Presidential records as cited in Sec. 1256.74(b). The FOIA 
does not apply to records of the Judicial and Legislative Branches or to 
donated historical materials.
    (b) You may only file a mandatory review request if the records 
contain classified information. NARA handles mandatory review requests 
for records we hold for the Executive, Judicial, and Legislative 
Branches as well as donated historical materials under E.O. 12958, as 
amended, section 3.5.



Sec. 1256.74  How does NARA process Freedom of Information Act (FOIA) requests 

for classified information?

    (a) NARA processes FOIA requests for access to classified 
information in Federal records in accordance with the provisions of 36 
CFR part 1250. Time limits for responses to FOIA requests

[[Page 949]]

for classified information are those provided in the FOIA, rather than 
the longer time limits provided for responses to mandatory review 
requests specified by Executive Order 12958, Classified National 
Security Information (3 CFR, 1995 Comp., p. 333), as amended by 
Executive Order 13292 (68 FR 15315, 3 CFR, 2003 Comp., p. 196).
    (b) NARA processes requests for access to classified information in 
Presidential records under the FOIA and the Presidential Records Act 
(PRA) in accordance with the provisions of part 1270 of this chapter. 
Time limits for responses to FOIA requests for classified information 
are those provided in the FOIA, the PRA, and Executive Order 13233, 
Further Implementation of the Presidential Records Act (3 CFR, 2001 
Comp., p. 815).



Sec. 1256.76  How do I request mandatory review of classified information 

under Executive Order 12958, as amended?

    (a) You may request mandatory review of classified information that 
is in the legal custody of NARA, as well as in legislative and judicial 
records NARA holds. Your mandatory review request must describe the 
document or material containing the information with sufficient 
specificity to enable NARA to locate it with a reasonable amount of 
effort. When possible, a request must include the name of the originator 
and recipient of the information, as well as its date, subject, and file 
designation. Information we reviewed within the previous 2 years is not 
subject to mandatory review. We notify you if this provision applies to 
your request.
    (b) You must address your mandatory review request to the 
appropriate staff in the following table.

------------------------------------------------------------------------
                                               . . . then address your
        If the documents are . . .                   request to
------------------------------------------------------------------------
(1) Presidential records and donated        The appropriate library
 historical materials at a Presidential      cited in 36 CFR part 1253.
 library.
(2) Nixon Presidential materials..........  Director, Nixon Presidential
                                             Materials Staff (NLNS),
                                             8601 Adelphi Road, College
                                             Park, MD 20740-6001.
(3) Presidential materials maintained in    Director, Presidential
 the Washington, DC, area.                   Materials Staff (NLMS), 700
                                             Pennsylvania Avenue, NW.,
                                             Washington, DC 20408.
(4) Federal records, donated historical     Chief, Special Access/FOIA
 materials related to Federal records,       Staff (NWCTF), 8601 Adelphi
 judicial records, legislative records       Road, College Park, MD
 maintained in the Washington, DC, area.     20740-6001.
(5) Federal records and judicial records    The appropriate regional
 maintained at a regional archives.          archives cited in 36 CFR
                                             part 1253.
------------------------------------------------------------------------



Sec. 1256.78  How does NARA handle my mandatory review request?

    (a) You may find our procedures for mandatory review and appeals of 
denials in part 1260 of this chapter, Declassification of National 
Security Information.
    (1) When agencies provide declassification guidance and delegate 
declassification authority to the Archivist of the United States, NARA 
reviews for declassification and releases the requested information or 
those declassified portions of the request that constitute a coherent 
segment unless withholding is otherwise warranted under applicable law.
    (2) When we do not have guidance from agencies, we coordinate the 
declassification review with the original classifying agency or agencies 
under the provisions of part 1260, subchapter D of this chapter.
    (b) If we cannot identify the information you seek from the 
description you provide or if the volume of information you seek is so 
large that processing it would interfere with our capacity to serve all 
requesters on an equitable basis, we notify you that, unless you provide 
additional information or narrow the scope of your request, we cannot 
take further action.



Sec. 1256.80  How does NARA provide classified access to historical 

researchers and former Presidential appointees?

    (a) In accordance with the requirements of section 4.4 of E.O. 
12958, as amended, we may grant access to classified information to 
certain eligible persons. These persons are engaged in

[[Page 950]]

historical research projects or previously occupied policy-making 
positions to which they were appointed by the President. If you seek 
permission to examine materials under this special historical 
researcher/Presidential appointees access program, you must contact NARA 
in advance. We need at least 4 months before you wish to have access to 
the materials to permit time for the responsible agencies to process 
your request for access. If you seek access to classified Presidential 
records under section 4.4 of E.O. 12958, you must first qualify under 
special access provisions of 44 U.S.C. 2205. NARA informs you of the 
agencies to which you have to apply for permission to examine classified 
information, including classified information originated by the White 
House or classified information in the custody of the National Archives 
which was originated by a defunct agency.
    (b) You may examine records under this program only after the 
originating or responsible agency:
    (1) Determines in writing that access is consistent with the 
interest of national security; and
    (2) Takes appropriate steps to protect classified information from 
unauthorized disclosure or compromise, and ensures that the information 
is safeguarded in a manner consistent with Executive Order 12958, as 
amended.
    (c) The originating or responsible agency limits the access granted 
to former Presidential and Vice Presidential appointees to items that 
the person originated, reviewed, signed, or received while serving as an 
appointee.
    (d) To protect against the possibility of unauthorized access to 
restricted documents, a director may issue instructions supplementing 
the research room rules provided in 36 CFR part 1254.



  Subpart F_Domestic Distribution of United States Information Agency 
   Audiovisual Materials in the National Archives of the United States



Sec. 1256.90  What does this subpart cover?

    This subpart contains procedures governing the public availability 
of audiovisual records and other materials subject to 22 U.S.C. 1461(b) 
that have been transferred to the National Archives of the United States 
by the United States Information Agency (USIA).



Sec. 1256.92  What is the purpose of this subpart?

    This subpart implements section 501 of the United States Information 
and Educational Exchange Act of 1948 (22 U.S.C. 1461), as amended by 
section 202 of Public Law 101-246 (104 Stat. 49, Feb. 16, 1990). This 
subpart also outlines procedures that permit the public to inspect and 
obtain copies of USIA audiovisual records and other materials in the 
United States that were prepared for dissemination abroad and that have 
been transferred to NARA for preservation and domestic distribution.



Sec. 1256.94  Definition.

    For the purposes of this subpart, ``Audiovisual records'' mean 
motion picture films, videotapes, and sound recordings, and other 
materials regardless of physical form or characteristics that were 
prepared for dissemination abroad.



Sec. 1256.96  What provisions apply to the transfer of USIA audiovisual 

records to the National Archives of the United States?

    The provisions of 44 U.S.C. 2107 and 36 CFR part 1228 apply to the 
transfer of USIA audiovisual records to NARA, and to their deposit with 
the National Archives of the United States. At the time the audiovisual 
records are transferred to NARA, the Director of USIA, in accordance 
with Sec. 1228.266(e) of this chapter, will also transfer any 
production or title files bearing on the ownership of rights in the 
productions in connection with USIA's official overseas programming.



Sec. 1256.98  Can I get access to and obtain copies of USIA audiovisual 

records transferred to the National Archives of the United States?

    NARA provides access to USIA audiovisual records after the 
appropriate time period of restriction has passed.
    (a) No USIA audiovisual records in the National Archives of the 
United

[[Page 951]]

States that were prepared for dissemination abroad are available for 
copying until at least 12 years after USIA first disseminated these 
materials abroad, or, in the case of materials prepared for foreign 
dissemination but not disseminated abroad, until at least 12 years after 
the preparation of the materials.
    (b) If the appropriate time has passed, you may have access to USIA 
audiovisual records that do not have copyright protection and do not 
contain copyright material. USIA audiovisual records prepared for 
dissemination abroad that NARA determines do not have copyright 
protection nor contain copyrighted material are available for 
examination and copying as described in the regulations in parts 1252, 
1253, 1254, 1256, and 1258 of this chapter. To determine whether 
materials have copyright protection or contain copyrighted material, 
NARA relies on information contained within or fastened to individual 
records (for example, copyright notices); information contained within 
relevant USIA production, title, or other files that USIA transferred to 
NARA; information provided by requesters under Sec. 1256.100(b) (for 
example, evidence from the Copyright Office that copyright has lapsed or 
expired); and information provided by copyright or license holders.



Sec. 1256.100  What is the copying policy for USIA audiovisual records that 

either have copyright protection or contain copyrighted material?

    If the appropriate time has passed, as stated in Sec. 1256.98(a), 
USIA audiovisual records that either have copyright protection or 
contain copyrighted material may be copied as follows:
    (a) USIA audiovisual records prepared for dissemination abroad that 
NARA determines may have copyright protection or may contain copyrighted 
material are made available for examination in NARA research facilities 
as described in the regulations in this title.
    (b) Copies of USIA audiovisual records prepared for dissemination 
abroad that NARA determines may have copyright protection or may contain 
copyrighted material are provided to you if you seek the release of such 
materials in the United States once NARA has:
    (1) Ensured, as described in paragraph (c) of this section, that you 
have secured and paid for necessary United States rights and licenses;
    (2) Been provided with evidence from the Copyright Office 
demonstrating that copyright protection in the materials sought, or 
relevant portions in the materials, has lapsed or expired; or
    (3) Received your signed certification in accordance with paragraph 
(d) of this section that you will use the materials sought only for 
purposes permitted by the Copyright Act of 1976, as amended, including 
the fair use provisions of 17 U.S.C. 107. No copies of USIA audiovisual 
records will be provided until the fees authorized under part 1258 of 
this chapter have been paid.
    (c) If NARA determines that a USIA audiovisual record prepared for 
dissemination abroad may have copyright protection or may contain 
copyrighted material, you may obtain copies of the material by 
submitting to NARA written evidence from all copyright and license 
owner(s) that any necessary fees have been paid or waived and any 
necessary licenses have been secured.
    (d) If NARA has determined that a USIA audiovisual record prepared 
for dissemination abroad may have copyright protection or may contain 
copyrighted material, persons seeking the release of such material in 
the United States may obtain copies of the material by submitting to 
NARA the following certification statement:

    I, (printed name of individual), certify that my use of the 
copyrighted portions of the (name or title and NARA identifier of work 
involved) provided to me by the National Archives and Records 
Administration (NARA), will be limited to private study, scholarship, or 
research purposes, or for other purposes permitted by the Copyright Act 
of 1976, as amended. I understand that I am solely responsible for the 
subsequent use of the copyrighted portions of the work identified above.

    (e) In every instance where NARA provides a copy of an audiovisual 
record under this subpart, and NARA has determined that the work 
reproduced may have copyright protection or may contain copyrighted 
material, NARA must provide you with a warning notice of copyright.

[[Page 952]]

    (f) Nothing in this section limits NARA's ability to make copies of 
USIA audiovisual records for preservation, arrangement, repair and 
rehabilitation, description, exhibition, security, or reference 
purposes.



Sec. 1256.102  What fees does NARA charge?

    Copies of audiovisual records will only be provided under this 
subpart upon payment of fees in accordance with 44 U.S.C. 2116(c) and 22 
U.S.C. 1461(b)(3). See Sec. 1258.4(b) for additional information.



PART 1258_FEES--Table of Contents




Sec.
1258.1 What is the authority for this part?
1258.2 What does the NARA reproduction fee schedule cover?
1258.4 What reproductions are not covered by the NARA fee schedule?
1258.6 When does NARA provide reproductions without charge?
1258.8 Who pays to have a copy negative made?
1258.10 What is NARA's mail order policy?
1258.12 NARA reproduction fee schedule.
1258.14 What is NARA's payment policy?
1258.16 Effective date.

    Authority: 44 U.S.C. 2116(c) and 2307.

    Source: 65 FR 60866, Oct. 13, 2000, unless otherwise noted.



Sec. 1258.1  What is the authority for this part?

    (a) 44 U.S.C. 2116(c) authorizes NARA to charge a fee for making or 
authenticating copies or reproductions of materials transferred to the 
Archivist's custody. This fee is to be ``fixed by the Archivist at a 
level which will recover, so far as practicable, all elements of such 
costs and may, in the Archivist's discretion, include increments for the 
estimated replacement costs of equipment.'' The fees collected for 
reproductions are to be paid into and expended as part of the National 
Archives Trust Fund.
    (b) 44 U.S.C. 2307 authorizes the Archivist of the United States, as 
Chairman of the National Archives Trust Fund Board, to sell copies of 
microfilm publications at a price that will cover their cost, plus 10 
percent.



Sec. 1258.2  What does the NARA reproduction fee schedule cover?

    The NARA reproduction fee schedule in Sec. 1258.12 covers 
reproduction of:
    (a) NARA archival records, donated historical materials, 
Presidential records, and Nixon Presidential historical materials except 
as otherwise provided in Sec. Sec. 1258.4 and 1258.6. Some reproduction 
services listed in Sec. 1258.12 may not be available at all NARA 
facilities;
    (b) Records filed with the Office of the Federal Register.

[65 FR 60866, Oct. 13, 2000 as amended at 72 FR 8280, Feb. 26, 2007]



Sec. 1258.4  What reproductions are not covered by the NARA fee schedule?

    The following categories are not covered by the NARA fee schedule in 
Sec. 1258.12.
    (a) Still photography, including aerial film, and oversize maps and 
drawings. Information on the availability and prices of reproductions of 
records held in the Special Media Archives Services Division (NWCS), 
8601 Adelphi Rd., College Park, MD 20740-6001, and in the Presidential 
libraries and regional archives (see 36 CFR 1253.3 and 36 CFR 1253.7 for 
addresses) may be obtained from the unit which has the original records.
    (b) Motion picture, sound recording, and video holdings of the 
National Archives and Presidential libraries. Information on the 
availability of and prices for reproduction of these materials are 
available from the Special Media Archives Services Division (NWCS), 8601 
Adelphi Rd., Room 3340, College Park, MD 20740-6001, or from the 
Presidential library which has such materials (see 36 CFR 1253.3 for 
addresses).
    (c) Electronic records. Information on the availability of and 
prices for duplication are available from the Electronic and Special 
Media Records Services Division (NWME), 8601 Adelphi Rd., Room 5320, 
College Park, MD 20740-6001, or from the Presidential library which has 
such materials (see 36 CFR 1253.3 for addresses).
    (d) Reproduction of the following types of records using the 
specified order form:

[[Page 953]]



------------------------------------------------------------------------
            Type of record                    Order form           Fee
------------------------------------------------------------------------
(1) Passenger arrival lists..........  NATF Form 81............   $25.00
(2) Federal Census requests..........  NATF Form 82............    25.00
(3) Eastern Cherokee applications to   NATF Form 83............    25.00
 the Court of Claims.
(4) Land entry records...............  NATF Form 84............    40.00
(5) Full pension file more than 75     NATF Form 85............    75.00
 years old (Civil War and after), up
 to and including 100 pages.
(6) Full pension file (pre-Civil War)  NATF Form 85............    50.00
(7) Pension documents packet           NATF Form 85............    25.00
 (selected records).
(8) Bounty land warrant application    NATF Form 85............    25.00
 files.
(9) Military service files more than   NATF Form 86............    25.00
 75 years old.
------------------------------------------------------------------------

    (e) National Archives Trust Fund Board publications, including 
microfilm publications. Prices are available from the Customer Service 
Center (NWCC2), 8601 Adelphi Rd., Room 1000, College Park, MD 20740-
6001.
    (f) Reproductions of NARA operational records made in response to 
FOIA requests under part 1250 of this chapter.
    (g) Orders for expedited service (``rush'' orders) for reproduction 
of still pictures and motion picture and video recordings among the 
holdings of a Presidential library. Orders may be accepted on an 
expedited basis by the library when the library determines that 
sufficient personnel are available to handle such orders or that the 
NARA contractor making the reproduction can provide the service. Rush 
orders are subject to a surcharge to cover the additional cost of 
providing expedited service.
    (h) Orders requiring additional expense to meet unusual customer 
specifications such as the use of special techniques to make a 
photographic copy more legible than the original document, or unusual 
format or background requirement for negative microfilm. Fees for these 
orders are computed for each order.

[65 FR 60866, Oct. 13, 2000, as amended at 72 FR 46148, Aug. 17, 2007]



Sec. 1258.6  When does NARA provide reproductions without charge?

    NARA does not charge a fee for reproduction or certification in the 
instances described in this section, if the reproduction is not a color 
reproduction. Color reproductions are furnished to the public and the 
Government only on a fee basis.
    (a) When NARA furnishes copies of documents to other elements of the 
Federal Government. However, a fee may be charged if the appropriate 
director determines that the service cannot be performed without 
reimbursement;
    (b) When NARA wishes to disseminate information about its activities 
to the general public through press, radio, television, and newsreel 
representatives;
    (c) When the reproduction is to furnish the donor of a document or 
other gift with a copy of the original;
    (d) When the reproduction is for individuals or associations having 
official voluntary or cooperative relations with NARA in its work;
    (e) When the reproduction is for a foreign, State, or local 
government or an international agency and furnishing it without charge 
is an appropriate courtesy;
    (f) For records of other Federal agencies in NARA Federal records 
centers only:
    (1) When furnishing the service free conforms to generally 
established business custom, such as furnishing personal reference data 
to prospective employers of former Government employees;
    (2) When the reproduction of not more than one copy of the document 
is required to obtain from the Government financial benefits to which 
the requesting person may be entitled (e.g., veterans or their 
dependents, employees with workmen's compensation claims, or persons 
insured by the Government);
    (3) When the reproduction of not more than one copy of a hearing or 
other formal proceeding involving security requirements for Federal 
employment is requested by a person directly concerned in the hearing or 
proceeding; and

[[Page 954]]

    (4) When the reproduction of not more than one copy of a document is 
for a person who has been required to furnish a personal document to the 
Government (e.g., a birth certificate required to be given to an agency 
where the original cannot be returned to the individual).



Sec. 1258.8  Who pays to have a copy negative made?

    Requests for photographs of materials for which no copy negative is 
on file are handled as follows:
    (a) The customer is charged to make the copy negative, except in 
cases where NARA wishes to retain the negative for its own use.
    (b) When no fee is charged the negative becomes the property of 
NARA. When a fee is charged the negative becomes the property of the 
customer.



Sec. 1258.10  What is NARA's mail order policy?

    (a) There is a minimum fee of $15.00 per order for reproductions 
that are sent by mail to the customer.
    (b) Orders to addresses in the United States are sent either first 
class or UPS depending on the weight of the order and availability of 
UPS service. When a customer requests special mailing services (such as 
Express Mail or registered mail) and/or shipment to a foreign address, 
the cost of the special service and/or additional postage for foreign 
mail is added to the cost of the reproductions.

[65 FR 60866, Oct. 13, 2000, as amended at 72 FR 46148, Aug. 17, 2007]



Sec. 1258.12  NARA reproduction fee schedule.

    (a) Certification: $15.00.
    (b) Electrostatic copying (in order to preserve certain records that 
are in poor physical condition, NARA may restrict customers to 
photographic or other kinds of copies instead of electrostatic copies):

------------------------------------------------------------------------
                            Service                                Fee
------------------------------------------------------------------------
Paper-to-paper copy made by the customer on a NARA self-service    $0.25
 copier in the Washington, DC, area............................
Paper-to-paper copy made by the customer on a NARA self-service     0.20
 copier outside the Washington, DC, area (regional archives and
 Presidential libraries).......................................
Paper-to-paper copy made by NARA...............................     0.75
Paper-to-paper copy made by NARA for full Civil War pension         0.65
 files (NATF Form 85) beyond the first 100 pages...............
Microfilm-to-paper copy made by the customer on a NARA self-        0.50
 service copier................................................
------------------------------------------------------------------------

    (c) Unlisted processes: For reproductions not covered by this fee 
schedule, see also Sec. 1258.4. Fees for other reproduction processes 
are computed upon request.

[72 FR 46148, Aug. 17, 2007]



Sec. 1258.14  What is NARA's payment policy?

    (a) Form of payment. Fees may be paid in cash, by check or money 
order made payable to the National Archives Trust Fund, or by selected 
credit cards. Payments from outside the United States must be made by 
international money order payable in U.S. dollars or a check drawn on a 
U.S. bank.
    (b) Timing. Fees must be paid in advance except when the appropriate 
director approves a request for handling them on an account receivable 
basis. Purchasers with special billing requirements must state them when 
placing orders and must complete any special forms for NARA approval in 
advance.



Sec. 1258.16  Effective date.

    The fees in this part are effective on October 1, 2007. If your 
order was received by NARA before this effective date, we will charge 
the fees in effect at the time the order was received.

[72 FR 46148, Aug. 17, 2007]

[[Page 955]]



                      SUBCHAPTER D_DECLASSIFICATION



PART 1260_DECLASSIFICATION OF NATIONAL SECURITY INFORMATION--Table of Contents




                      Subpart A_General Information

Sec.
1260.1 What is the purpose of this part?
1260.2 Definitions.
1260.4 What NARA holdings are covered by this part?
1260.6 What is the authority for this part?

                       Subpart B_Responsibilities

1260.20 Who is responsible for the declassification of classified 
          national security Executive Branch information that has been 
          accessioned by NARA?
1260.22 Who is responsible for the declassification of classified 
          national security White House originated information in NARA's 
          holdings?
1260.24 Who is responsible for declassification of foreign government 
          information in NARA's holdings?
1260.26 Who is responsible for issuing special procedures for 
          declassification of information pertaining to intelligence 
          activities, sources and methods, or of classified cryptologic 
          information in NARA's holdings?
1260.28 Who is responsible for declassifying records that contain 
          information classified under the Atomic Energy Act of 1954, as 
          amended, commonly referred to as Restricted Data and Formerly 
          Restricted Data?

                       Subpart C_Systematic Review

1260.40 How are records at NARA reviewed for declassification?
1260.42 What are the procedures for agency personnel to review records 
          at a NARA facility?
1260.44 Will NARA loan accessioned records back to the agencies to 
          conduct declassification review?
1260.46 How will NARA implement automatic declassification?

                       Subpart D_Mandatory Review

                        Executive Branch Records

1260.50 What procedures does NARA follow when it receives a request for 
          Executive Branch records under mandatory review?
1260.52 What are agency responsibilities after receiving a mandatory 
          review request forwarded by NARA?
1260.54 What is the appeal process when a mandatory review request for 
          Executive Branch information is denied?
1260.55 What is the appeal process when an agency denies a mandatory 
          review request for Executive Branch information within Nixon 
          Presidential Historical materials or Presidential records?

                   White House Originated Information

1260.56 Is White House originated information subject to mandatory 
          review?
1260.58 What are the procedures for requesting a mandatory review of 
          White House originated information?
1260.60 What are agency responsibilities with regard to mandatory review 
          requests for White House originated information?
1260.62 What is the appeal process when a mandatory review request for 
          White House originated information is denied?

                       Subpart E_Reclassification

1260.70 Can previously released Executive Branch information be 
          reclassified or have its classification restored?
1260.72 Can previously released White House originated information be 
          reclassified or have its classification restored?
1260.74 What if NARA does not concur with an agency decision to 
          reclassify or restore the classification of information that 
          has been previously released?

    Authority: 44 U.S.C. 2101 to 2118; 5 U.S.C. 552; E.O. 12958, 60 FR 
19825, 3 CFR, 1995 Comp., p. 333; E.O. 13142, 64 FR 66089, 3 CFR, 1999 
Comp., p. 236; E.O. 13292, 68 FR 15315; 32 CFR part 2001.

    Source: 71 FR 14809, Mar. 24, 2006, unless otherwise noted.



                      Subpart A_General Information



Sec. 1260.1  What is the purpose of this part?

    (a) This part defines the responsibilities of NARA and other Federal 
agencies for declassification of classified national security 
information in the holdings of NARA.
    This part also describes NARA's procedures for:
    (1) Conducting systematic reviews of NARA holdings, and
    (2) Processing mandatory review requests for NARA holdings.
    (b) Regulations for researchers who wish to request access to 
materials containing classified national security

[[Page 956]]

information are found in 36 CFR part 1256.



Sec. 1260.2  Definitions.

    (a) Classified national security information or classified 
information means information that has been determined under EO 12958, 
as amended, or any predecessor order to require protection against 
unauthorized disclosure and is marked to indicate its classified status 
when in documentary form.
    (b) Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    (c) Systematic declassification review means the review for 
declassification of classified information contained in records that 
have been determined by the Archivist of the United States to have 
permanent historical value in accordance with 44 U.S.C. 2107.
    (d) Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that meets the requirements under section 3.5 of EO 
12958, as amended.
    (e) Integral file block means a distinct component of a file series, 
as defined in this section, that should be maintained as a separate unit 
in order to ensure the integrity of the records. An integral file block 
may consist of a set of records covering either a specific topic or a 
range of time such as presidential administration or a 5-year retirement 
schedule within a specific file series that is retired from active use 
as a group.
    (f) File series means file units or documents arranged according to 
a filing system or kept together because they relate to a particular 
subject or function, result from the same activity, document a specific 
kind of transaction, take a particular physical form, or have some other 
relationship arising out of their creation, receipt, or use, such as 
restrictions on access or use.



Sec. 1260.4  What NARA holdings are covered by this part?

    The NARA holdings covered by this part are records legally 
transferred to the National Archives and Records Administration (NARA), 
including Federal records accessioned into the National Archives of the 
United States, 44 U.S.C. 2107; Presidential records, 44 U.S.C. 2201-
2207; Nixon Presidential materials, 44 U.S.C. 2111 note; and donated 
historical materials in Presidential Libraries and in the National 
Archives of the United States, 44 U.S.C. 2111.



Sec. 1260.6  What is the authority for this part?

    Declassification of and public access to classified national 
security information is governed by EO 12958 of April 17, 1995 (3 CFR 
part 1995 Comp., p. 333), EO 13142 of November 19, 1999 (3 CFR part 1999 
Comp., p. 236), EO 13292 of March 28, 2003 (68 FR 15315), collectively 
referred to as EO 12958, as amended, and by the Information Security 
Oversight Office (ISOO) Implementing Directive for EO 12958, as amended 
(32 CFR part 2001).



                       Subpart B_Responsibilities



Sec. 1260.20  Who is responsible for the declassification of classified 

national security Executive Branch information that has been accessioned by 

NARA?

    (a) Consistent with the requirements on automatic declassification 
in section 3.3 of EO 12958, as amended, the originating agency is 
responsible for declassification of its information, but may delegate 
declassification authority to NARA in the form of declassification 
guidance. Even though the agency delegates declassification authority to 
NARA in the form of declassification guidance, the agency remains 
responsible for reviewing the records to identify other agencies having 
primary subject matter interest (``equities'') before the date that the 
records become eligible for automatic declassification.
    (b) If an agency does not delegate declassification authority to 
NARA, the agency is responsible for both declassification of its own 
information and reviewing the records to identify the equities of other 
agencies before the date that the records become eligible for automatic 
declassification.
    (c) NARA is responsible for the declassification of records of a 
defunct

[[Page 957]]

agency that has no successor in function. NARA will consult with 
agencies having equities in the records before making declassification 
determinations.



Sec. 1260.22  Who is responsible for the declassification of classified 

national security White House originated information in NARA's holdings?

    (a) NARA is responsible for declassification of information from a 
previous administration that was originated by:
    (1) The President;
    (2) The White House staff;
    (3) Committees, commissions, or boards appointed by the President; 
or
    (4) Others specifically providing advice and counsel to the 
President or acting on behalf of the President.
    (b) NARA will consult with agencies having primary subject matter 
interest before making declassification determinations.



Sec. 1260.24  Who is responsible for declassification of foreign government 

information in NARA's holdings?

    (a) The agency that received or classified the information is 
responsible for its declassification.
    (b) In the case of a defunct agency, NARA is responsible for 
declassification of foreign government information in its holdings and 
will consult with the agencies having primary subject matter interest 
before making declassification determinations.



Sec. 1260.26  Who is responsible for issuing special procedures for 

declassification of information pertaining to intelligence activities, sources 

and methods, or of classified cryptologic information in NARA's holdings?

    (a) The Director of National Intelligence is responsible for issuing 
special procedures for declassification of classified information 
pertaining to intelligence activities and intelligence sources and 
methods.
    (b) The Secretary of Defense is responsible for issuing special 
procedures for declassification of classified cryptologic information.



Sec. 1260.28  Who is responsible for declassifying records that contain 

information classified under the Atomic Energy Act of 1954, as amended, 

commonly referred to as Restricted Data and Formerly Restricted Data?

    Only designated officials within the Department of Energy may 
declassify records containing Restricted Data. Any record determined to 
contain Restricted Data (RD) may not be reviewed for declassification of 
national security information until the Secretary of Energy has 
determined that the RD marking may be removed. Declassification review 
of national security information in records containing Formerly 
Restricted Data (FRD) may only be performed after the Secretary of 
Energy, in conjunction with the Secretary of Defense, has determined 
that the FRD marking may be removed.



                       Subpart C_Systematic Review



Sec. 1260.40  How are records at NARA reviewed for declassification?

    (a) Consistent with the requirements on automatic declassification 
in section 3.3 of EO 12958, as amended, NARA staff may conduct 
systematic reviews for declassification of records for which the 
originating agencies have provided declassification guidance. The 
originating agency must review records for which it has not provided 
declassification guidance.
    (b) Agencies may choose to review their own records that have been 
transferred to NARA's legal custody, by sending personnel to the NARA 
facility where the records are located to conduct the declassification 
review.
    (c) Classified materials in the Presidential Library system may be 
referred to agencies holding equity in the documents via the Remote 
Archives Capture (RAC)Project. The RAC Project is a collaborative 
program to implement the declassification provisions of E.O. 12958, as 
amended, with respect to twenty-five year old or older classified 
holdings in the Presidential Libraries. Classified Presidential 
materials at the libraries are scanned and brought to the Washington, 
DC, metropolitan area in electronic form for review by equity-

[[Page 958]]

holding agencies in the metropolitan area.



Sec. 1260.42  What are the procedures for agency personnel to review records 

at a NARA facility?

    (a) NARA will:
    (1) Make the records available to properly cleared agency reviewers;
    (2) Provide space for agency reviewers in the facility in which the 
records are located to the extent that space is available; and
    (3) Provide training and guidance for agency reviewers on the proper 
handling of archival materials.
    (b) Agency reviewers must:
    (1) Follow NARA security regulations and abide by NARA procedures 
for handling archival materials;
    (2) Follow NARA procedures for identifying and marking documents 
that cannot be declassified; and
    (3) Obtain permission from NARA before bringing into a NARA facility 
computers, scanners, tape recorders, microfilm readers and other 
equipment necessary to view or copy records. NARA will not allow the use 
of any equipment that poses an unacceptable risk of damage to archival 
materials. See 36 CFR part 1254 for more information on acceptable 
equipment.



Sec. 1260.44  Will NARA loan accessioned records back to the agencies to 

conduct declassification review?

    In rare cases, when agency reviewers cannot be accommodated at a 
NARA facility, NARA will consider a request to loan records back to an 
originating agency in the Washington, DC, metropolitan area for 
declassification review. Each request will be judged on a case-by-case 
basis. The requesting agency must:
    (a) Ensure that the facility in which the documents will be stored 
and reviewed passes a NARA inspection to ensure that the facility 
maintains:
    (1) The correct archival environment for the storage of permanent 
records; and
    (2) The correct security conditions for the storage and handling of 
classified national security materials.
    (b) Meet NARA requirements for ensuring the safety of the records;
    (c) Abide by NARA procedures for handling of archival materials;
    (d) Identify and mark documents that cannot be declassified in 
accordance with NARA procedures; and
    (e) Obtain NARA approval for the use of any equipment as described 
in Sec. 1260.42 (b)(3), such as scanners, copiers, or cameras, to 
ensure that they do not pose an unacceptable risk of damage to archival 
materials.



Sec. 1260.46  How will NARA implement automatic declassification?

    (a) Textual records and collections. Classified records within an 
integral file block will be automatically declassified on December 31 of 
the year that is 25 years from the date of the most recent record within 
the file block, except as specified in paragraphs (b), (c), (d), and (e) 
of this section.
    (b) Special media records--(1) Federal records. Upon proper 
notification from the originating agency, NARA will delay automatic 
declassification for 5 additional years for classified information 
contained in microforms, motion pictures, audiotapes, videotapes, or 
comparable media that make a review for possible declassification 
exemptions more difficult or costly. Information contained in special 
media records that has been referred to an equity holder will be 
automatically declassified 5 years from the date of notification or 30 
years from the date of origination of the special media, whichever is 
longer, unless otherwise properly exempted.
    (2) Presidential collections. NARA will delay automatic 
declassification for 5 additional years for classified information 
contained in Presidential records and donated historical materials in 
the form of microforms, motion pictures, audiotapes, videotapes, or 
comparable media that make a review for possible declassification 
exemptions more difficult or costly. Information contained in special 
media records that has been referred will be automatically declassified 
5 years from the date of notification or 30 years from the date of 
origination of the special media, whichever is longer, unless otherwise 
properly exempted.
    (c) Delayed referrals. NARA will delay automatic declassification 
for up to 3 years for classified records that have been identified by 
the originating

[[Page 959]]

agency, or by NARA, and referred to an additional agency or agencies 
less than 3 years before automatic declassification would otherwise be 
required.
    (d) Other exceptions. NARA will apply automatic declassification 
only to information that has been properly referred to the agency that 
created the records, or to another agency, but not acted upon by those 
agencies within 3 years from the date of notification, or 28 years from 
the date of the record or integral file block, whichever is later.
    (1) Information that has not been properly identified and referred 
to an agency other than the agency that created the records is not 
subject to automatic declassification. When NARA identifies information 
of interest to another agency, that agency will have 3 years from the 
date of notification to exempt or declassify its equity, and to further 
refer the record if appropriate. If no action is taken, the information 
from the agency that received the referral will be automatically 
declassified 3 years from the date of notification.
    (2) Information contained in special media records that has been 
referred to equity holders will be automatically declassified 5 years 
from the date of notification, or 30 years from the date of origination 
of the special media, whichever is longer, unless otherwise properly 
exempted.
    (e) Discovery of information inadvertently not reviewed. When NARA 
identifies a file series or collection in our physical and legal custody 
that contains classified information over 25 years old and that was 
inadvertently not reviewed before the effective date of automatic 
declassification, NARA must report the discovery to ISOO within 90 days 
of discovery. Within 180 days NARA will refer the records to the 
originating agency or systematically review the records.
    (1) The referral agency will have 3 years from the date of 
notification to exempt, declassify, or further refer the record. If no 
action is taken, the information from the agency that received the 
referral will be automatically declassified 3 years from the date of 
notification.
    (2) Information contained in special media records that has been 
referred will be automatically declassified 5 years from the date of 
notification or 30 years from the date of origination of the special 
media, whichever is longer, unless otherwise properly exempted.



                       Subpart D_Mandatory Review

                        Executive Branch Records



Sec. 1260.50  What procedures does NARA follow when it receives a request for 

Executive Branch records under mandatory review?

    (a) If the requested records are less than 25 years old, NARA refers 
copies of the records to the originating agency and to agencies that 
have equities in the information for declassification review. Agencies 
may also send personnel to a NARA facility where the records are located 
to conduct a declassification review, or may delegate declassification 
authority to NARA in the form of declassification guidance.
    (b) If the requested records are more than 25 years old, NARA will 
review the records using systematic declassification guidance provided 
by the originating agency and agencies having equities in the 
information. If the originating agency, or agencies having equities in 
the information have not provided systematic declassification guidance, 
or if there is a question regarding the guidance, NARA will refer any 
requested documents it is unable to declassify to the appropriate agency 
or agencies for declassification determinations.
    (c) When the records were originated by a defunct agency that has no 
successor agency, NARA is responsible for making the declassification 
determinations, but will consult with agencies having primary subject 
matter interest.
    (d) Requests for mandatory review must describe the document or 
material containing the information with sufficient specificity to 
enable NARA to locate it with a reasonable amount of effort.
    (e) If the document or information has been properly reviewed for 
declassification within the past 2 years, or if the specific information 
is the subject

[[Page 960]]

of pending litigation, NARA will inform the requester of this fact and 
of the requester's appeal rights.
    (f) If NARA determines that a requester has submitted a request for 
the same information or material under both the mandatory review and the 
Freedom of Information Act (FOIA), as amended, the request will be 
treated as a request under the FOIA, unless the requested information or 
materials are subject only to mandatory review.
    (g) In every case, NARA will acknowledge receipt of the request and 
inform the requester of the action taken. If additional time is 
necessary to make a declassification determination on material for which 
NARA has delegated authority, NARA will tell the requester how long it 
will take to process the request. NARA will also tell the requester if 
part or all of the requested information is referred to other agencies 
for declassification review, subject to section 3.6 (a) and (b) of EO 
12958 as amended.



Sec. 1260.52  What are agency responsibilities after receiving a mandatory 

review request forwarded by NARA?

    (a) The agency must make a determination within 180 calendar days 
after receiving the request or inform NARA of the additional time needed 
to process the request.
    (b) The agency must notify NARA of any other agency to which it 
forwards the request in those cases requiring the declassification 
determination of another agency.
    (c) The agency must return to NARA a complete copy of each referred 
document with the agency determination uniformly and conspicuously 
identified to leave no doubt about the status of the information and the 
authority for its continued classification or its declassification. If a 
document cannot be declassified in its entirety, the agency must return 
to NARA a copy of the document with those portions that require 
continued classification clearly marked. If a document requires 
continued classification in its entirety, the agency must return to NARA 
a copy of the document clearly marked.
    (d) The agency must also furnish, for transmission to the requester, 
a brief statement of the reasons the requested information cannot be 
declassified and a statement of the requester's right to appeal the 
decision, along with the procedures for filing an appeal. The agency 
must also supply for transmission to the requester a contact name and 
title and the address where the appeal must be sent. Additional 
information on appeals for requesters is located in 36 CFR part 1256 and 
in Appendix A to 32 CFR part 2001 (Article VIII).
    (e) If the agency fails to make a decision on the mandatory review 
request within one year of the original date of the request, the 
requester may appeal to the Interagency Security Classification Appeals 
Panel (ISCAP).



Sec. 1260.54  What is the appeal process when a mandatory review request for 

Executive Branch information is denied?

    (a) If an agency denies a declassification request under mandatory 
review, the requester may appeal directly to the appeal authority at 
that agency. If a final decision on the appeal is not made within 180 
days of the date of the appeal, the appellant may appeal to the ISCAP.
    (b) If requested by the agency, NARA will supply the agency with:
    (1) Copies of NARA's letter to the requester transmitting the agency 
denial; and
    (2) Copies of any documents denied in part that were furnished in 
sanitized form to the requester.
    (c) The agency appeal authority must notify NARA in writing of the 
final determination and of the reasons for any denial.
    (d) The agency must furnish to NARA a complete copy of any document 
they released to the requester only in part, clearly marked to indicate 
the portions that remain classified. NARA will give the requester a copy 
of any notifications from the agencies that describe what information 
has been denied and what the requester's appeal rights are.
    (e) NARA will also notify the requester of the right to appeal 
denials of access to the Interagency Security Classification Appeals 
Panel, Attn:

[[Page 961]]

Mandatory Review Appeals, c/o Information Security Oversight Office, 
National Archives and Records Administration, 700 Pennsylvania Avenue, 
NW., Room 503, Washington, DC 20408.
    (f) The pertinent NARA office or Presidential Library will 
coordinate the potential release of information declassified by the 
ISCAP when the materials are subject to the Presidential Recordings and 
Materials Preservation Act, 44 U.S.C. 2111 note, and the Presidential 
Records Act, 44 U.S.C. 2203.
    (g) In the case of an appeal for information originated by a defunct 
agency, NARA will notify the requester of the results and furnish copies 
of documents declassified in full and in part. If the requested 
information cannot be declassified in its entirety, NARA will send the 
requester a brief statement of why the requested information cannot be 
declassified and a notice of the right to appeal the determination 
within 60 calendar days to the Deputy Archivist of the United States, 
National Archives and Records Administration, 8601 Adelphi Road, College 
Park, MD 20740-6001.



Sec. 1260.55  What is the appeal process when an agency denies a mandatory 

review request for Executive Branch information within Nixon Presidential 

Historical materials or Presidential records?

    (a) If an agency denies a declassification request under mandatory 
review for Nixon Presidential materials or a Presidential record as 
defined by 44 U.S.C. 2201, the requester may appeal the determination 
within 60 calendar days to the Deputy Archivist of the United States, 
through the appropriate Presidential library. If a final decision on the 
appeal is not made within 180 days of the date of the appeal, the 
appellant may appeal to the ISCAP.
    (b) When the Deputy Archivist of the United States receives an 
appeal, he or she will review the decision to deny the information and 
consult with the appellate authorities in the agencies having primary 
subject matter interest in the information.
    (c) NARA will notify the requester in writing of the determination 
and make available any additional information that has been declassified 
as a result of the requester's appeal, according to the notification 
procedures of EO 13233 for Presidential records or 36 CFR part 1275.
    (d) NARA will also notify the requester of the right to appeal 
denials of access to the Interagency Security Classification Appeals 
Panel, Attn: Mandatory Review Appeals, c/o Information Security 
Oversight Office, National Archives and Records Administration, 700 
Pennsylvania Avenue, NW., Room 503, Washington, DC 20408.
    (e) The pertinent NARA office or Presidential Library will 
coordinate the potential release of information declassified by the 
ISCAP when the materials are subject to the Presidential Recordings and 
Materials Preservation Act, 44 U.S.C. 2111 note, and the Presidential 
Records Act, 44 U.S.C. 2203.

                   White House Originated Information



Sec. 1260.56  Is White House originated information subject to mandatory 

review?

    White House originated information of former Presidents is subject 
to mandatory review consistent with the Presidential Records Act, 44 
U.S.C. 2203, the Presidential Recordings and Materials Preservation Act, 
44 U.S.C. 2111 note, and any deeds of gift that pertain to the materials 
or the respective Presidential administrations pursuant to 44 U.S.C. 
2107 and 2111. Unless precluded by such laws or agreements, White House 
originated information is subject to mandatory or an equivalent agency 
review for current classification when NARA has archivally processed the 
materials or can identify the materials with specificity. However, 
records covered by the Presidential Records Act are closed for 5 years 
after the end of the Presidential administration, or until NARA has 
archivally processed an integral file segment, whichever occurs first, 
pursuant to 44 U.S.C. 2204.



Sec. 1260.58  What are the procedures for requesting a mandatory review of 

White House originated information?

    (a) Requests for mandatory review must describe the document or 
material containing the information with sufficient specificity to 
enable NARA

[[Page 962]]

to locate it with a reasonable amount of effort.
    (b) If the document or information has been properly reviewed for 
declassification within the past 2 years, or if the specific information 
is the subject of pending litigation, NARA will inform the requester of 
this fact and of the requester's appeal rights.
    (c) If NARA determines that a requester has submitted a request for 
the same information or material under both the mandatory review and the 
Freedom of Information Act (FOIA), as amended, the request will be 
treated as a request under the FOIA, unless the requested information or 
materials are subject only to mandatory review.
    (d) NARA will promptly acknowledge to the requester the receipt of a 
request for White House originated information.
    (e) If the requested information is less than 25 years old, NARA 
will consult with agencies having primary subject matter interest. NARA 
will forward copies of the requested materials to the agencies and 
request their recommendations regarding declassification.
    (f) If the requested records are more than 25 years old, NARA will 
review the records using systematic declassification guidance provided 
by the originating agency and agencies having equities in the 
information. If the originating agency, or agencies having equities in 
the information have not provided systematic declassification guidance, 
or if there is a question regarding the guidance, NARA will refer any 
requested documents it is unable to declassify to the appropriate agency 
or agencies for their recommendations regarding declassification.
    (g) NARA will notify the requester of the results and furnish copies 
of the documents declassified in full and in part. If the requested 
records are not declassified in their entirety, NARA will send the 
requester a brief statement of the reasons the information cannot be 
declassified and a notice of the right to appeal the determination 
within 60 calendar days to the Deputy Archivist of the United States, 
National Archives and Records Administration, 8601 Adelphi Road, College 
Park, MD 20740-6001.



Sec. 1260.60  What are agency responsibilities with regard to mandatory review 

requests for White House originated information?

    When an agency receives a mandatory review request from NARA for 
consultation on declassification of White House originated material, 
whether it is an initial request or an appeal, the agency must:
    (a) Advise the Archivist whether the information should be 
declassified in whole or in part or should remain classified;
    (b) Provide NARA a brief statement providing the authority for the 
continued classification of any information not declassified; and
    (c) Return all reproductions referred for consultation, including a 
complete copy of each document that should be declassified only in part, 
uniformly and conspicuously marked to leave no doubt about the status of 
the information and the authority for its continued classification or 
its declassification.



Sec. 1260.62  What is the appeal process when a mandatory review request for 

White House originated information is denied?

    (a) When the Deputy Archivist of the United States receives an 
appeal, he or she will review the decision to deny the information and 
consult with the appellate authorities in the agencies having primary 
subject matter interest in the information.
    (b) NARA will notify the requester in writing of the determination 
and make available any additional information that has been declassified 
as a result of the requester's appeal.
    (c) NARA will also notify the requester of the right to appeal 
denials of access to the Interagency Security Classification Appeals 
Panel, Attn: Mandatory Review Appeals, c/o Information Security 
Oversight Office, National Archives and Records Administration, 700 
Pennsylvania Avenue, NW., Room 503, Washington, DC 20408.

[[Page 963]]



                       Subpart E_Reclassification



Sec. 1260.70  Can previously released Executive Branch information be 

reclassified or have its classification restored?

    (a) Records that were properly declassified in accordance with EO 
12958, as amended, (or predecessor orders) and that have been released 
may be temporarily closed and considered for reclassification at the 
request of an agency. Final action must be taken under the personal 
authority of the agency head or deputy agency head, who determines in 
writing within 20 workdays that the reclassification of the information 
is necessary in the interest of the national security. In addition, the 
information must be reasonably recoverable in accordance with section 
1.7(c) of the Order and section 2001.13(a) of the Implementing Directive 
(32 CFR 2001.13(a)).
    (b) Records that were not properly declassified in accordance with 
EO 12958, as amended, (or predecessor orders) remain classified. Upon 
notification, NARA will take administrative action to restore markings 
and controls, as appropriate. In the event that records have been 
released, they may be temporarily closed and their classification 
reviewed at the request of an agency. The agency must notify NARA of the 
results of the review within 30 days.
    (c) Agencies must submit all requests in writing. If the urgency of 
the request precludes a written request, an authorized agency official 
may make a preliminary request by telephone and follow up with a written 
request within 5 working days. Requests concerning Executive Branch 
records must be addressed to the Assistant Archivist for Records 
Services--Washington, DC, National Archives and Records Administration, 
8601 Adelphi Road, College Park, MD 20740-6001. Requests concerning 
information in Presidential libraries must be addressed to the Assistant 
Archivist for Presidential Libraries, National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
    (d) Any such written request must include all of the following:
    (1) A description of the records or donated materials involved, 
identified with sufficient specificity to enable NARA to locate it with 
a reasonable amount of effort;
    (2) An explanation as to why the records should be closed and 
reviewed;
    (3) A statement as to the authority for any classification or 
reclassification, to include a reference to the specific category in 
section 1.4 or 3.3(b) of E.O. 12958, as appropriate; and
    (4) Any information the agency may have concerning any previous 
public disclosure of the information. NARA will assist by providing 
information.



Sec. 1260.72  Can previously released White House originated information be 

reclassified or have its classification restored?

    An agency or an entity within the Executive Office of the President 
that solely advises and assists the President, may ask NARA to 
temporarily close, review, and possibly reclassify or restore the 
classification of White House originated information that has been 
declassified and previously released. The agency or other entity must 
follow the same procedures as a request for reclassification of 
Executive branch originated information in 36 CFR 1260.70.



Sec. 1260.74  What if NARA does not concur with an agency decision to 

reclassify or restore the classification of information that has been 

previously released?

    (a) If NARA is concerned that relevant procedures and policies under 
EO 12958, as amended, or its Implementing Directives are not being 
properly implemented, the Archivist will promptly report such situations 
to the Director of ISOO.
    (b) If, in the opinion of the Archivist, an agency's determination 
with respect to the classification status of records that have been 
previously released is improper, the Archivist, as an authorized holder, 
may challenge the classification status of the pertinent records in 
accordance with section 1.8 of EO 12958, as amended.
    (c) NARA will direct any such challenge in writing to the agency 
with classification authority and jurisdiction over the information.

[[Page 964]]

    (d) If no response is provided by the agency within 120 days, NARA 
may forward the challenge directly to the ISCAP. NARA must forward the 
challenge within 60 days of the agency's failure to provide a response 
within the 120 day response period.
    (e) If an agency appellate authority fails to provide NARA with a 
response to an appeal within 90 days of its receipt, NARA may forward 
the appeal directly to the ISCAP. NARA must forward the challenge within 
60 days of the agency's failure to provide a response to an appeal 
within the 90 day response period.
    (f) All records subject to classification challenges will remain 
classified pending final resolution of the challenge and, if necessary, 
any such appeals.

[[Page 965]]



                    SUBCHAPTER E_PRESIDENTIAL RECORDS



PART 1270_PRESIDENTIAL RECORDS--Table of Contents




                      Subpart A_General Provisions

Sec.
1270.10 Scope of part.
1270.12 Application.
1270.14 Definitions.

         Subpart B_Actions Taken on Behalf of Former Presidents

1270.20 Designation of person or persons to act for former President.
1270.22 When Archivist may act for former President.

               Subpart C_Disposal of Presidential Records

1270.30 Disposal of Presidential Records by incumbent President.
1270.32 Disposal of Presidential Records in the custody of the 
          Archivist.

                Subpart D_Access to Presidential Records

1270.40 Identification of restricted records.
1270.42 Denial of access to public; right to appeal.
1270.44 Exceptions to restricted access.
1270.46 Notice of intent to disclose Presidential records.

  Subpart E_Presidential Records Compiled for Law Enforcement Purposes

1270.50 Consultation with law enforcement agencies.

    Authority: 44 U.S.C. 2201-2207.

    Source: 53 FR 50404, Dec. 15, 1988, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1270.10  Scope of part.

    These regulations implement the provisions of the Presidential 
Records Act of 1978, Pub. L. No. 95-591, 92 Stat. 2523-27, as amended by 
Pub. L. No. 98-497, sec. 107(b)(7), 98 Stat. 2287 (1984) (codified at 44 
U.S.C. 2201-07), by setting forth the policies and procedures governing 
preservation, protection, and disposal of, and access to Presidential 
and Vice-Presidential records created during a term of office of the 
President or Vice President beginning on or after January 20, 1981. 
Nothing in these regulations is intended to govern procedures for 
assertion of, or response to, any constitutionally based privilege which 
may be available to an incumbent or former President.



Sec. 1270.12  Application.

    (a) These regulations apply to all Presidential records created 
during a term of office of the President beginning on or after January 
20, 1981.
    (b) Vice-Presidential records shall be subject to the provisions of 
this part in the same manner as Presidential records. The Vice 
President's duties and responsibilities, with respect to Vice-
Presidential records, shall be the same as the President's duties and 
responsibilities with respect to Presidential records. The Archivist's 
authority with respect to Vice-Presidential records shall be the same as 
the Archivist's authority with respect to Presidential records, except 
that the Archivist may, when he determines it to be in the public 
interest, enter into an agreement with a non-Federal archival repository 
for the deposit of Vice-Presidential records.



Sec. 1270.14  Definitions.

    For the purposes of this part--
    (a) The terms documentary material, Presidential records, personal 
records, Archivist, and former President have the meanings given them by 
44 U.S.C. 2201 (1)-(5), respectively.
    (b) The term agency has the meaning given it by 5 U.S.C. 551(1) (A)-
(D) and 552(f).
    (c) The term Presidential archival depository has the meaning given 
it by 44 U.S.C. 2101(1).
    (d) The term Vice-Presidential records means documentary materials, 
or any reasonably segregable portion thereof, created or received by the 
Vice President, his immediate staff, or a unit or individual of the 
Office of the Vice President whose function is to advise and assist the 
Vice President, in the course of conducting activities which relate to 
or have an effect upon the carrying out of the constitutional,

[[Page 966]]

statutory, or other official or ceremonial duties of the Vice President. 
The term includes documentary materials of the kind included under the 
term Presidential records.
    (e) The term filed means the date something is received in the 
office of the official to whom it is addressed.



         Subpart B_Actions Taken on Behalf of Former Presidents



Sec. 1270.20  Designation of person or persons to act for former President.

    (a) A President or former President may designate some person or 
persons to exercise, upon death or disability of the President or former 
President, any or all of the discretion or authority granted to the 
President or former President by chapter 22 of title 44 U.S.C.
    (b) When a President or former President designates a person or 
persons to act for him pursuant to paragraph (a) of this section, this 
designation shall be effective only if the Archivist has received notice 
of the designation before the President or former President dies or is 
disabled.
    (c) The notice required by paragraph (b) of this section shall be in 
writing, and shall include the following information:
    (1) Name(s) of the person or persons designated to act for the 
President or former President;
    (2) The current addresses of the person or persons designated; and
    (3) The records, identified with reasonable specificity, over which 
the designee(s) will exercise discretion or authority.



Sec. 1270.22  When Archivist may act for former President.

    In those instances where a President has specified, in accordance 
with 44 U.S.C. 2204(a), restrictions on access to Presidential records, 
but has not made a designation under Sec. 1270.20 of this subpart, the 
Archivist shall, upon the death or disability of a President or former 
President, exercise the discretion or authority granted to a President 
or former President by 44 U.S.C. 2204.



               Subpart C_Disposal of Presidential Records



Sec. 1270.30  Disposal of Presidential records by incumbent President.

    A President may, while in office, dispose of any Presidential 
records which in his opinion lack administrative, historical, 
informational, or evidentiary value if one of the following two sets of 
requirements is satisfied:
    (a)(1) The President has obtained the written views of the Archivist 
concerning the proposed disposal; and
    (2) The Archivist states in his written views to the President that 
he does not intend to request, with respect to the President's proposed 
disposal of Presidential records, the advice of the Committees on Rules 
and Administration and Governmental Affairs of the Senate, and the 
Committees on House Administration and Government Operations of the 
House of Representatives because he does not consider--
    (i) The records proposed for disposal to be of special interest to 
the Congress; or
    (ii) Consultation with the Congress concerning the proposed disposal 
to be in the public interest; or
    (b)(1) The President has obtained the written views of the Archivist 
concerning the proposed disposal;
    (2) The Archivist states in his written views either--
    (i) That the records proposed for disposal may be of special 
interest to the Congress; or
    (ii) That consultation with the Congress concerning the proposed 
disposal is in the public interest; and
    (3) The President submits copies of the proposed disposal schedule 
to the Committees on Rules and Administration and Governmental Affairs 
of the Senate and the Committees on House Administration and Government 
Operations of the House of Representatives at least 60 calendar days of 
continuous session of Congress in advance of the proposed disposal date. 
For the purpose of this section, continuity of session is broken only by 
an adjournment of Congress sine die, and the days on which either House 
is not in session because of an adjournment of more than 3 days to

[[Page 967]]

a day certain are excluded in the computation of the days in which 
Congress is in continuous session.



Sec. 1270.32  Disposal of Presidential Records in the custody of the 

Archivist.

    (a) The Archivist may dispose of Presidential records which he has 
appraised and determined to have insufficient administrative, 
historical, informational, or evidentiary value to warrant their 
continued preservation.
    (b) When Presidential records are scheduled for disposal pursuant to 
paragraph (a) of this section, the Archivist shall publish a notice of 
this disposal in the Federal Register at least 60 days before the 
proposed disposal date.
    (c) The notice required by paragraph (b) of this section, shall 
include the following:
    (1) A reasonably specific description of the records scheduled for 
disposal; and
    (2) A concise statement of the reason for disposal of the records.
    (d) Publication in the Federal Register of the notice required by 
paragraph (b) of this section shall constitute a final agency action for 
purposes of review under chapter 7 of title 5 U.S.C. (5 U.S.C. 701-706).



                Subpart D_Access to Presidential Records



Sec. 1270.40  Identification of restricted records.

    (a) If a President, prior to the conclusion of his term of office or 
last consecutive term of office, as the case may be, specifies 
durations, not to exceed 12 years, for which access to certain 
information contained in Presidential records shall be restricted, in 
accordance with 44 U.S.C. 2204, the Archivist or his designee shall 
identify the Presidential records affected, or any reasonably segregable 
portion thereof, in consultation with that President or his designated 
representative(s).
    (b) The Archivist shall restrict public access to the information 
contained in those records identified as affected until--
    (1) The date on which the former President waives the restriction on 
disclosure of the record or information contained within;
    (2) The expiration of the period of restriction specified under 44 
U.S.C. 2204(a) for the category of information under which a certain 
record, or a portion thereof, was restricted; or
    (3) The Archivist has determined that the former President or an 
agent of the former President has placed in the public domain through 
publication a restricted record or a reasonably segregable portion 
thereof, if this date is earlier than either of the dates specified in 
paragraph (b)(1) or (2) of this section.



Sec. 1270.42  Denial of access to public; right to appeal.

    (a) Any person denied access to a Presidential record (hereinafter 
the requester) because of a determination that the record or a 
reasonable segregable portion of the record was properly restricted 
under 44 U.S.C. 2204(a), and not placed in the public domain by the 
former President or his agent, may file an administrative appeal with 
the appropriate Presidential library director at the address cited in 
part 1253 of this chapter.
    (b) All appeals must be received by NARA within 35 calendar days of 
the date of NARA's denial letter.
    (c) Appeals shall be in writing and shall set forth the reason(s) 
why the requester believes access to the records sought should be 
allowed. The requester shall identify the specific records sought.
    (d) Upon receipt of an appeal, the appropriate Presidential library 
director has 30 working days from the date an appeal is received to 
consider the appeal and respond in writing to the requester. The 
director's response must state whether or not the Presidential records 
requested are to be released and the basis for this determination. The 
director's decision to withhold release of Presidential records is final 
and not subject to judicial review.

[53 FR 50404, Dec. 15, 1988, as amended at 70 FR 16717, Apr. 1, 2005]



Sec. 1270.44  Exceptions to restricted access.

    (a) Notwithstanding any restrictions on access imposed pursuant to 
section

[[Page 968]]

2204 or these regulations, and subject to any rights, defenses, or 
privileges which the United States or any agency or person may invoke, 
Presidential records shall be made available in the following instances:
    (1) Pursuant to subpoena or other judicial process properly issued 
by a court of competent jurisdiction for the purposes of any civil or 
criminal investigation or proceeding;
    (2) To an incumbent President if the records sought contain 
information which is needed for the conduct of current business of his 
office and is not otherwise available;
    (3) To either House of Congress, or, to the extent of matter within 
its jurisdiction, to a Congressional committee or subcommittee if the 
records sought contain information which is needed for the conduct of 
business within its jurisdiction and is not otherwise available.
    (b) Requests by an incumbent President, a House of Congress, or a 
Congressional committee or subcommittee pursuant to paragraph (a) of 
this section shall be addressed to the Archivist. All requests shall be 
in writing and, where practicable, identify the records sought with 
reasonable specificity.
    (c) Presidential records of a former President shall be available to 
the former President or his designated representative upon request.



Sec. 1270.46  Notice of intent to disclose Presidential records.

    (a) The Archivist or his designee shall notify a former President or 
his designated representative(s) before any Presidential records of his 
Administration are disclosed.
    (b)(1) The notice given by the Archivist or his designee shall:
    (i) Be in writing;
    (ii) Identify the particular records with reasonable specificity;
    (iii) State the reason for the disclosure; and
    (iv) Specify the date on which the record will be disclosed.
    (2) In the case of records to be disclosed in accordance with Sec. 
1270.44, the notice shall also:
    (i) Identify the requester and the nature of the request;
    (ii) Specify whether the requested records contain materials to 
which access would otherwise be restricted pursuant to 44 U.S.C. 2204(a) 
and identify the category of restriction within which the record to be 
disclosed falls; and
    (iii) Specify the date of the request.
    (c) If, after receiving the notice required by paragraph (a) of this 
section, a former President raises rights or privileges which he 
believes should preclude the disclosure of a Presidential record, and 
the Archivist nevertheless determines that the record in question should 
be disclosed, in whole or in part, the Archivist shall notify the former 
President or his representative of this determination. The notice given 
by the Archivist or his designee shall:
    (1) Be in writing;
    (2) State the basis upon which the determination to disclose the 
record is made; and
    (3) Specify the date on which the record will be disclosed.
    (d) The Archivist shall not disclose any records covered by any 
notice required by paragraph (a) or (c) of this section for at least 30 
calendar days from receipt of the notice by the former President, unless 
a shorter time period is required by a demand for Presidential records 
under Sec. 1270.44.
    (e) Copies of all notices provided to former Presidents under this 
section shall be provided at the same time to the incumbent President.



  Subpart E_Presidential Records Compiled for Law Enforcement Purposes



Sec. 1270.50  Consultation with law enforcement agencies.

    (a) For the processing of Presidential records compiled for law 
enforcement purposes that may be subject to 5 U.S.C. 552(b)(7), the 
Archivist shall request specific guidance from the appropriate Federal 
agency on the proper treatment of a record if there is no general 
guidance applicable, if the record is particularly sensitive, or if the 
type of record or information is widespread throughout the files.
    (b) When specific agency guidance is requested under paragraph (a) 
of this section, the Archivist shall notify the

[[Page 969]]

appropriate Federal agency of the decision regarding disclosure of the 
specific documents. Notice shall include the following:
    (1) A description of the records in question;
    (2) Statements that the records described contain information 
compiled for law enforcement purposes and may be subject to the 
exemption provided by 5 U.S.C. 552(b)(7) for records of this type; and,
    (3) The name of a contact person at NARA.
    (c) Agency guidance under this section is not binding on the 
Archivist. The final determination on whether Presidential records may 
be subject to the exemption in 5 U.S.C. 552(b)(7) is the Archivist's 
responsibility.

[[Page 970]]



                SUBCHAPTER F_NIXON PRESIDENTIAL MATERIALS



PART 1275_PRESERVATION AND PROTECTION OF AND ACCESS TO THE PRESIDENTIAL 

HISTORICAL MATERIALS OF THE NIXON ADMINISTRATION--Table of Contents




Sec.
1275.1 Scope of part.

                      Subpart A_General Provisions

1275.10 Purpose.
1275.12 Application.
1275.14 Legal custody.
1275.16 Definitions.
1275.18 Requests or demands for access.

                  Subpart B_Preservation and Protection

1275.20 Responsibility.
1275.22 Security.
1275.24 Archival processing.
1275.26 Access procedures.
1275.28 Extraordinary authority during emergencies.

    Subpart C_Access to Materials by Former President Nixon, Federal 
            Agencies, and for Use in Any Judicial Proceeding

1275.30 Access by former President Nixon.
1275.32 Access by Federal agencies.
1275.34 Access for use in judicial proceedings.

                     Subpart D_Access by the Public

1275.40 Scope of subpart.
1275.42 Processing period; notice of proposed opening.
1275.44 Rights and privileges; right to a fair trial.
1275.46 Segregation and review; Senior Archival Panel; Presidential 
          Materials Review Board.
1275.48 Transfer of materials.
1275.50 Restriction of materials related to abuses of governmental 
          power.
1275.52 Restriction of materials of general historical significance 
          unrelated to abuses of governmental power.
1275.54 Periodic review of restrictions.
1275.56 Appeal of restrictions.
1275.58 Deletion of restricted portions.
1275.60 Requests for declassification.
1275.62 Reference room locations, hours, and rules.
1275.64 Reproduction of tape recordings of Presidential conversations.
1275.66 Reproduction and authentication of other materials.
1275.68 Amendment of regulations.
1275.70 Freedom of information requests.

Appendix A to Part 1275--Settlement Agreement

    Authority: 44 U.S.C. 2104, 2111 note.

    Source: 51 FR 7230, Feb. 28, 1986, unless otherwise noted.



Sec. 1275.1  Scope of part.

    This part sets forth policies and procedures concerning the 
preservation and protection of and access to the tape recordings, 
papers, documents, memorandums, transcripts, and other objects and 
materials which constitute the Presidential historical materials of 
Richard M. Nixon, covering the period beginning January 20, 1969, and 
ending August 9, 1974.



                      Subpart A_General Provisions



Sec. 1275.10  Purpose.

    This part 1275 implements the provisions of title I of the 
Presidential Recordings and Materials Preservation Act (Pub. L. 93-526; 
88 Stat. 1695). It prescribes policies and procedures by which the 
National Archives and Records Administration will preserve, protect, and 
provide access to the Presidential historical materials of the Nixon 
Administration.



Sec. 1275.12  Application.

    This part 1275 applies to all of the Presidential historical 
materials of the Nixon Administration in the custody of the Archivist of 
the United States pursuant to the provisions of title I of the 
Presidential Recordings and Materials Preservation Act (Pub. L. 93-526; 
88 Stat. 1695).



Sec. 1275.14  Legal custody.

    The Archivist of the United States has or will obtain exclusive 
legal custody and control of all Presidential historical materials of 
the Nixon Administration held pursuant to the provisions of title I of 
the Presidential Recordings and Materials Preservation Act (Pub. L. 93-
526; 88 Stat. 1695).

[[Page 971]]



Sec. 1275.16  Definitions.

    For the purposes of this part 1275, the following terms have the 
meaning ascribed to them in this Sec. 1275.16.
    (a) Presidential historical materials. The term Presidential 
historical materials (also referred to as historical materials and 
materials) shall mean all papers, correspondence, documents, pamphlets, 
books, photographs, films, motion pictures, sound and video recordings, 
machine-readable media, plats, maps, models, pictures, works of art, and 
other objects or materials made or received by former President Richard 
M. Nixon or by members of his staff in connection with his 
constitutional or statutory powers or duties as President and retained 
or appropriate for retention as evidence of or information about these 
powers or duties. Included in this definition are materials relating to 
the political activities of former President Nixon or members of his 
staff, but only when those activities directly relate to or have a 
direct effect upon the carrying out of constitutional or statutory 
powers or duties. Excluded from this definition are documentary 
materials of any type that are determined to be the official records of 
an agency of the Government; private or personal materials; stocks of 
publications, processed documents, and stationery; and extra copies of 
documents produced only for convenience or reference when they are 
clearly so identified.
    (b) Private or personal materials. The term private or personal 
materials shall mean those papers and other documentary or commemorative 
materials in any physical form relating solely to a person's family or 
other non-governmental activities, including private political 
associations, and having no connection with his constitutional or 
statutory powers or duties as President or as a member of the 
President's staff.
    (c) Abuses of governmental power popularly identifed under the 
generic term ``Watergate.'' The term abuses of governmental power 
popularly identified under the generic term ``Watergate'' (also referred 
to as abuses of governmental power), shall mean those alleged acts, 
whether or not corroborated by judicial, administrative or legislative 
proceedings, which allegedly were conducted, directed or approved by 
Richard M. Nixon, his staff or persons associated with him in his 
constitutional or statutory functions as President, or as political 
activities directly relating to or having a direct effect upon those 
functions, and which--
    (1) Were within the purview of the charters of the Senate Select 
Committee on Presidential Campaign Activities or the Watergate Special 
Prosecution Force; or
    (2) Are circumscribed in the Articles of Impeachment adopted by the 
House Committee on the Judiciary and reported to the House of 
Representatives for consideration in House Report No. 93-1305.
    (d) General historical significance. The term general historical 
significance shall mean having administrative, legal, research or other 
historical value as evidence of or information about the constitutional 
or statutory powers or duties of the President, which an archivist has 
determined is of a quality sufficient to warrant the retention by the 
United States of materials so designated.
    (e) Archivist. The term Archivist shall mean the Archivist of the 
United States or his designated agent. The term archivist shall mean an 
employee of the National Archives and Records Administration who, by 
education or experience, is specially trained in archival science.
    (f) Agency. The term agency shall mean an executive department, 
military department, independent regulatory or nonregulatory agency, 
Government corporation, Government-controlled corporation, or other 
establishment in the executive branch of the Government including the 
Executive Office of the President. For purposes of Sec. 1275.32 only, 
the term agency shall also include the White House Office.
    (g) Archival processing. The term archival processing may include 
the following general acts performed by archivists with respect to the 
Presidential historical materials: Shelving boxes of documents in 
chronological, alphabetical, numerical or other sequence; surveying and 
developing a location register and cross-index of the boxes; arranging 
materials; refoldering and reboxing the documents and

[[Page 972]]

affixing labels; producing finding aids such as folder title lists, 
scope and content notes, biographical data, and series descriptions; 
rewinding, duplicating and preserving the original tape recordings; 
enhancing the tape recordings on which the conversations are wholly or 
partially unintelligible so that extraneous noises may be filtered out; 
producing general subject matter logs of the tape recordings; 
reproducing and transcribing tape recordings; reviewing the materials to 
identify items that appear subject to restriction; identifying items in 
poor physical condition and assuring their preservation; identifying 
materials requiring further processing; and preparation for public 
access of all materials which are not subject to restriction.
    (h) Staff. The term staff shall mean those persons whose salaries 
were paid fully or partially from appropriations to the White House 
Office or Domestic Council, or who were detailed on a nonreimbursable 
basis to the White House Office or Domestic Council from any other 
Federal activity; or those pesons who otherwise were designated as 
assistants to the President, in connection with their service in that 
capacity; or any persons whose files were sent to the White House 
Central Files Unit or Special Files Unit, for purposes of those files.
    (i) National security classified information. The term national 
security classified information shall mean any matter which is security 
classified under existing law, and has been or should be designated as 
such.

[51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17844, Apr. 23, 1996]



Sec. 1275.18  Requests or demands for access.

    Each agency which receives a request or legal demand for access to 
Presidential historical materials of the Nixon Administration shall 
immediately forward the request or demand to the Archivist of the United 
States, National Archives and Records Administration (NARA), Washington, 
DC 20408.



                  Subpart B_Preservation and Protection



Sec. 1275.20  Responsibility.

    The Archivist is responsible for the preservation and protection of 
the Nixon Presidential historical materials.

[61 FR 17845, Apr. 23, 1996]



Sec. 1275.22  Security.

    The Archivist is responsible for providing adequate security for the 
Presidential historical materials.



Sec. 1275.24  Archival processing.

    When authorized by the Archivist and until the commencement of 
archival processing in accordance with subpart D of this part, 
archivists may process the Presidential historical materials to the 
extent necessary for protecting and preserving the materials, and for 
providing authorized access to the materials pursuant to subpart C of 
this part.



Sec. 1275.26  Access procedures.

    (a) The Archivist will receive and/or prepare appropriate 
documentation of each access authorized under this part 1275.
    (b) Entry to the records storage areas will be provided by the 
Archivist only to archival, maintenance, security, or other necessary 
personnel or to Mr. Nixon or his agent. Two persons, at least one of 
whom represents the Archivist, will be present at all times that records 
storage areas are occupied.
    (c) The Archivist will determine that each individual having access 
to the Presidental historical materials has a security clearance 
equivalent to the highest degree of national security classification 
that may be applicable to any of the material examined.
    (d) The Archivist will provide former President Nixon or his 
designated attorney or agent (hereinafter Mr. Nixon), prior notice of, 
and allow him to be present during, each search necessary to comply with 
an authorized access under Sec. 1275.32 or Sec. 1275.34.
    (e) Only NARA archivists shall conduct searches necessary to comply 
with

[[Page 973]]

authorized accesses under Sec. Sec. 1275.32 and 1275.34.
    (f) Prior to releasing Presidential historical materials in 
accordance with an access authorized under Sec. 1275.32 or Sec. 
1275.34, the Archivist will give Mr. Nixon notice of the nature and 
identity of, and at his request allow him access to, those Presidential 
historical materials which the archivists have determined are covered by 
the subpoena, or other lawful process, or request. The notice will also 
inform Mr. Nixon that he may file a claim with the Archivist objecting 
to the release of all or portions of the described materials within 5 
workdays of his receiving the notice described herein. The claim should 
detail the alleged rights and privileges of Mr. Nixon which would be 
violated by the release of the materials. The Archivist will refrain 
from releasing any of the materials to the requester during this period, 
and while any claim of right or privilege is pending before him, will 
refrain from releasing the materials subject to the claim.
    (g) The Archivist will notify Mr. Nixon in writing of the 
administrative determination on any claims filed in accordance with 
paragraph (f) of this section. In the event the determination is wholly 
or partially adverse to the claim, the Archivist will refrain from 
releasing the materials to the requester for an additional 5 workdays 
from Mr. Nixon's receipt of the determination.
    (h) Whenever possible, a copy, which shall be certified upon 
request, instead of the original documentary Presidential historical 
materials shall be provided to comply with a subpoena or other lawful 
process or request. Whenever the original documentary material is 
removed, a certified copy of the material shall be inserted in the 
proper file until the return of the original.



Sec. 1275.28  Extraordinary authority during emergencies.

    In the event of an emergency that threatens the physical 
preservation of the Presidential historical materials or their environs, 
the Archivist will take such steps as may be necessary, including 
removal of the materials to temporary locations outside the metropolitan 
area of the District of Columbia, to preserve and protect the materials.



    Subpart C_Access to Materials by Former President Nixon, Federal 
            Agencies, and For Use in Any Judicial Proceeding



Sec. 1275.30  Access by former President Nixon.

    In accordance with the provisions of subpart B of this part, former 
President Richard M. Nixon or his designated agent shall at all times 
have access to Presidential historical materials in the custody and 
control of the Archivist.



Sec. 1275.32  Access by Federal agencies.

    In accordance with the provisions of subpart B of this part, any 
Federal agency or department in the executive branch shall have access 
for lawful Government use to the Presidential historical materials in 
the custody and control of the Archivist to the extent necessary for 
ongoing Government business. The Archivist will only consider written 
requests from heads of agencies or departments, deputy heads of agencies 
or departments, or heads of major organizational components or functions 
within agencies or departments.



Sec. 1275.34  Access for use in judicial proceedings.

    In accordance with the provisions of subpart B of this part, and 
subject to any rights, defenses, or privileges which the Federal 
Government or any person may invoke, the Presidential historical 
materials in the custody and control of the Archivist will be made 
available for use in any judicial proceeding and are subject to subpoena 
or other lawful process.



                     Subpart D_Access by the Public



Sec. 1275.40  Scope of subpart.

    This subpart sets forth policies and procedures concerning public 
access to the Presidential historical materials of Richard M. Nixon.

[[Page 974]]



Sec. 1275.42  Processing period; notice of proposed opening.

    (a)(1) The archivists will conduct archival processing of those 
materials other than tape recordings to prepare them for public access. 
In processing the materials, the archivists will give priority to 
segregating private or personal materials and transferring them to their 
proprietary or commemorative owner in accordance with Sec. 1275.48. In 
conducting such archival processing, the archivists will restrict 
portions of the materials pursuant to Sec. Sec. 1275.50 and 1275.52. 
All materials other than tape recordings to which reference is made in 
Sec. 1275.64 will be prepared for public access and released subject to 
restrictions or outstanding claims or petitions seeking such 
restrictions. The Archivist will open for public access each integral 
file segment of materials upon completion of archival processing of that 
segment.
    (2) The archivists will conduct archival processing of the tape 
recordings to prepare them for public access in accordance with the 
provisions set forth in the Settlement Agreement (see Appendix A to this 
part). In conducting the archival processing of the tape recordings, the 
archivists will restrict segments of the tape recordings pursuant to 
Sec. Sec. 1275.50 and 1275.52. The tape segments which consist of 
abuses of governmental power information, as defined in Sec. 
1275.16(c), will be given priority processing by the archivists and will 
be prepared for public access and released following review and 
resolution of objections from the Nixon estate and other interested 
parties as set forth in the Settlement Agreement (see Appendix A to this 
Part). After the tape segments which consist of abuses of governmental 
power information have been released, the archivists will conduct 
archival processing of those tape recordings which were taped in the 
Cabinet Room, as set forth in the Settlement Agreement, Appendix A to 
this Part. Following release of the Cabinet Room tape recordings, the 
remaining tape recordings will be prepared for public access and 
released in five segments in accordance with the schedule set forth in 
the Settlement Agreement. In addition, NARA will identify and return any 
additional private or personal segments to the Nixon estate, at 
approximately the time that NARA proposes each segment for public 
release.
    (b) At least 30 calendar days prior to the opening to public access 
of any integral file segment of the materials, the Archivist will 
publish notice in the Federal Register of the proposed opening. The 
notice will reasonably identify the material to be opened and will 
include a reference to the right of any interested person to file a 
claim or petition in accordance with Sec. 1275.44. Copies of the notice 
will be sent to the incumbent President of the United States or his 
designated agent and by first-class mail to the last known address of: 
Mr. Nixon, or his designated agent or heirs; any former staff member 
reasonably identifiable as the individual responsible for creating or 
maintaining the file segment proposed to be opened; any individual named 
in the material which the Archivist may not restrict in accordance with 
Sec. 1275.50(b) because the material is essential to an understanding 
of any abuse of governmental power; and any persons named in the 
materials who are registered with the National Archives and Records 
Administration in accordance with paragraph (c) of this section.
    (c) The Archivist will maintain a registry which shall contain the 
names and mailing addresses of persons who wish to receive personal 
notice of the proposed opening of integral file segments of the 
materials when those segments contain references about them. To be 
included in the registry, a person must submit his/her name and mailing 
address to the National Archives and Records Administration (NLN), 
Washington, DC 20408. Both the envelope and letter should be prominently 
marked, ``Nixon Materials Registry.'' By submitting his/her name for 
inclusion in the registry, a person agrees to reimburse the United 
States for the cost of first-class postage for each instance of personal 
notice received.

[51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17845, Apr. 23, 1996]



Sec. 1275.44  Rights and privileges; right to a fair trial.

    (a) Within 30 days following publication of the notice prescribed in

[[Page 975]]

Sec. 1275.42(b), any person claiming a legal or constitutional right or 
privilege which would prevent or limit public access to any of the 
materials shall notify the Archivist in writing of the claimed right or 
privilege and the specific materials to which it relates. Unless the 
claim states that particular materials are private or personal (see 
paragraph (d) of this section), the Archivist will notify the claimant 
by certified mail, return receipt requested, of his decision regarding 
public access to the pertinent materials. If that decision is adverse to 
the claimant, the Archivist will refrain from providing public access to 
the pertinent materials for at least 30 calendar days from receipt by 
the claimant of such notice.
    (b) Within 30 days following publication of the notice prescribed in 
Sec. 1275.42(b), officers of any Federal, State, or local court and 
other persons who believe that public access to any of the materials may 
jeopardize an individual's right to a fair and impartial trial should 
petition the Archivist setting forth the relevant circumstances that 
warrant withholding specified materials. The Archivist will notify the 
petitioner by certified mail, return receipt requested, of his decision 
regarding public access to the pertinent materials. If that decision is 
adverse to the petitioner, the Archivist will refrain from providing 
public access to the pertinent materials for at least 30 calendar days 
from receipt by the petitioner of such notice.
    (c) In reaching decisions required by paragraphs (a) and (b) of this 
section, the Archivist may consult with other appropriate Federal 
agencies. If these consultations require the transfer of copies of the 
materials to Federal officials in agencies other than the National 
Archives and Records Administration, the Archivist will transfer these 
copies in accordance with the procedures prescribed in Sec. Sec. 
1275.26 and 1275.32.
    (d) Within 30 days following publication of notice prescribed in 
Sec. 1275.42(b), any person claiming that materials proposed for public 
access are in fact private or personal, as defined in Sec. 1275.16(b), 
and that he or she is the proprietary or commemorative owner of those 
materials shall notify the Archivist in writing. The claim shall 
describe the specific materials to which it refers, and the claimant's 
basis for concluding that these materials are private or personal. Upon 
receipt of such a claim, the Archivist will transmit it to the 
Presidential Materials Review Board for its consideration and 
determination in accordance with Sec. 1275.46(i). The Archivist will 
refrain from providing public access to the pertinent materials or from 
returning them to the claimant for at least 30 calendar days from 
receipt by the claimant or any intervening parties of the Board's 
determination.
    (e)(1) In place of the right to make all other objections with 
respect to the tape segments that NARA has designated as abuses of 
governmental power materials, the Nixon estate may object to their 
release only on the ground that such designation by NARA is clearly 
inconsistent with the term ``abuses of governmental power'' as used in 
Sec. 104(a)(1) of the Presidential Recordings and Materials 
Preservation Act (PRMPA) and defined in Sec. 1275.16(c), as qualified 
by Sec. 1275.50(b). Any such objection may not be based on isolated 
instances of alleged failure by NARA to apply the appropriate review 
standard, but only on a pattern of misapplication of the requirements of 
the PRMPA and its implementing regulations. Further, any such objection 
must be accompanied by specific examples of alleged review errors and 
contain sufficient information to enable the review panel of three 
Presidential Library archivists appointed by the Archivist, as described 
in the Settlement Agreement, Appendix A to this Part, to locate those 
examples readily.
    (2) If an objection is made by the Nixon estate to the abuses of 
governmental power tape segments, the matter shall be immediately 
referred to a panel of three Presidential Library archivists appointed 
by the Archivist as set forth in the Settlement Agreement, Appendix A to 
this Part. The decision of the panel shall be either that the Nixon 
estate's objection is sustained or that it is rejected. The decision 
shall include a brief statement of the panel's reasons, but it need not 
include an item-by-item determination. In deciding whether the 
designation by NARA

[[Page 976]]

of the material proposed to be released is clearly inconsistent with the 
definition of ``abuses of governmental power'', the panel shall consider 
whether the release would seriously injure legitimate interests of 
identifiable individuals, whether the errors suggest a pattern of 
misinterpretation, and any other factor that bears on the issue of 
whether NARA's designation of material as relating to ``abuses of 
governmental power'' was reasonable, considered as a whole. The panel's 
decision shall be final and binding on all parties to the Kutler 
litigation, and no party may exercise any right to appeal to any person, 
board, or court that might otherwise be available.
    (3) The Nixon estate may, at any time, elect to use the procedures 
outlined in paragraphs (e)(1) and (e)(2) of this section for the tape 
recordings other than the abuses of governmental power segments, except 
that the standard under which objections shall be made by the Nixon 
estate, and under which the review panel shall decide their merits, is 
whether the release taken as a whole is plainly inconsistent with the 
requirements of the Presidential Recordings and Materials Preservation 
Act of 1974 and these regulations. If the Nixon estate elects to use the 
procedures in paragraph 1 of the Settlement Agreement (Appendix A to 
this Part) in place of the provisions in paragraphs 4 (b) and (d) and 
5(c) of the Settlement Agreement for a tape segment, the estate cannot 
subsequently revert back to the formal objection process set forth in 
this section for that tape segment.

[51 FR 7230, Feb. 28, 1986; 51 FR 8671, Mar. 13, 1986, as amended at 61 
FR 17845, Apr. 23, 1996]



Sec. 1275.46  Segregation and review; Senior Archival Panel; Presidential 

Materials Review Board.

    (a) During the processing period described in Sec. 1275.42(a), the 
Archivist will assign archivists to segregate private or personal 
materials, as defined in Sec. 1275.16(b). The archivists shall have 
sole responsibility for the initial review and determination of private 
or personal materials. At all times when the archivists or other 
authorized officials have access to the materials in accordance with 
these regulations, they shall take all reasonable steps to minimize the 
degree of intrusion into private or personal materials. Except as 
provided in these regulations, the archivists or other authorized 
officials shall not disclose to any person private or personal or 
otherwise restricted information learned as a result of their activities 
under these regulations.
    (b) During the processing period described in Sec. 1275.42(a), the 
Archivist will assign archivists to segregate materials neither relating 
to abuses of governmental power, as defined in Sec. 1275.16(c), nor 
otherwise having general historical significance, as defined in Sec. 
1275.16(d). The archivists shall have sole responsibility for the 
initial review and determination of those materials which are not 
related to abuses of governmental power and do not otherwise have 
general historical significance.
    (c) During the processing period described in Sec. 1275.42(a), the 
Archivist will assign archivists to segregate materials subject to 
restriction, as prescribed in Sec. Sec. 1275.50 and 1275.52. The 
archivists shall have sole responsibility for the initial review and 
determination of materials that should be restricted. The archivists 
shall insert a notification of withdrawal at the front of the file 
folder or container affected by the removal of restricted material. The 
notification shall include a brief description of the restricted 
material and the basis for the restriction as prescribed in Sec. Sec. 
1275.50 and 1275.52.
    (d) If the archivists are unable to make a determination required in 
paragraphs (a), (b), or (c) of this section, or if the archivists 
conclude that the required determination raises significant issues 
involving interpretation of these regulations or will have far-reaching 
precedential value, the archivists shall submit the pertinent materials, 
or representative examples of them, to a panel of senior archivists 
selected by the Archivist. The Panel shall then have the sole 
responsibility for the initial determination required in paragraphs (a), 
(b), or (c) of this section.
    (e) If the Senior Archival Panel is unable to make a determination 
required in paragraph (d) of this section, or if the panel concludes 
that the required

[[Page 977]]

determination raises significant issues involving interpretation of 
these regulations or will have far-reaching precedential value, the 
Panel shall certify the matter and submit the pertinent materials, or 
representative examples of them, to the Presidential Materials Review 
Board.
    (f) The Presidential Materials Review Board (Board) shall consist of 
the Archivist, who shall serve as Chairman, and the following additional 
members:
    (1) The Assistant Archivist for the Office of the National Archives;
    (2) The Assistant Archivist for the Office of the Presidential 
Libraries;
    (3) The Director of the Legal Counsel Staff of the National Archives 
and Records Administration; and
    (4) The Historian of a Federal agency who shall be selected by the 
Archivist in his capacity as Chairman.

The Board shall meet at the call of the Chairman. Three members of the 
Board shall constitute a quorum for the conduct of the Board's business, 
although each member of the Board may participate in all of the Board's 
decisions. Members of the Board may be represented by their delegates on 
those occasions when they are unable to attend the meetings of the 
Board. The Board may consult with officials of interested Federal 
agencies in formulating its decisions. To the extent these consultations 
require the transfer of copies of materials to Federal officials outside 
the National Archives and Records Administration, the Board shall comply 
with the requirements of Sec. Sec. 1275.26 and 1275.32.
    (g) When the matter certified to the Board by the Senior Archival 
Panel involves a determination required in paragraphs (a) or (b) of this 
section, the Board shall prepare a final written decision, together with 
dissenting and concurring opinions, of the proper categorization and 
disposition of the pertinent materials. The Board's decision will be the 
final administrative determination.
    (h) When the matter certified to the Board by the Senior Archival 
Panel involves a determination required in paragraph (c) of this 
section, the Board shall recommend an initial determination to the 
Senior Archival Panel, which shall retain the sole responsibility for 
the initial determination.
    (i) When the Board considers a matter referred to it by the 
Archivist as provided in Sec. 1275.44(d), it shall follow these 
procedures:
    (1) The Board shall notify the claimant of its consideration of the 
claim, and invite the claimant to supplement at his discretion the basis 
for the claim.
    (2) The Board will publish notice in the Federal Register, advising 
the public of its consideration of the claim, and describing the 
materials in question as fully as reasonably possible without disclosing 
arguably private or personal information. The notice will further advise 
that any member of the public may petition the Board within 15 calendar 
days of the publication of notice, setting forth the intervenor's views 
concerning the public or private nature of the materials.
    (3) The Board shall take into account the positions maintained by 
the claimant and any intervenors in reaching its decision. The Board 
shall issue its decision, including dissenting and concurring opinions, 
no sooner than 20 days nor later than 60 days from the publication of 
notice in the Federal Register provided in paragraph (h)(2), of this 
section. The Board's decision shall be the final administrative 
determination. The Archivist will notify the claimant and any 
intervenors of the Board's decision by certified mail, return receipt 
requested, and shall refrain from acting upon that decision for 30 
calendar days as provided in Sec. 1275.44(d).

[51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17845, Apr. 23, 1996]



Sec. 1275.48  Transfer of materials.

    (a) The Archivist will transfer sole custody and use of those 
materials determined to be private or personal, or to be neither related 
to abuses of governmental power nor otherwise of general historical 
significance, to former President Nixon's estate, or, when appropriate 
and after notifying the Nixon estate, to the former staff member having 
primary proprietary or commemorative interest in the materials. Such 
materials to be transferred include all

[[Page 978]]

segments of the original tape recordings that have been or will be 
identified as private or personal.
    (b) Materials determined to be neither related to abuses of 
governmental power nor otherwise of general historical significance, and 
transferred pursuant to paragraph (a) of this section, shall upon such 
transfer no longer be deemed Presidential historical materials as 
defined in Sec. 1275.16(a).

[51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17845, Apr. 23, 1996; 64 
FR 56678, Oct. 21, 1999]



Sec. 1275.50  Restriction of materials related to abuses of governmental 

power.

    (a) The Archivist will restrict access to materials determined 
during the processing period to relate to abuses of governmental power, 
as defined in Sec. 1275.16(c), when:
    (1) The Archivist, in accordance with Sec. 1275.44, is in the 
process of reviewing or has determined the validity of a claim by any 
person of a legal or constitutional right or privilege; or
    (2) The Archivist, in accordance with Sec. 1275.44, is in the 
process of reviewing or has determined the validity of a petition by any 
person of the need to protect an individual's right to a fair and 
impartial trial; or
    (3) The release of the materials would violate a Federal statute; or
    (4) The materials are authorized under criteria established by 
Executive order to be kept secret in the interest of national defense or 
foreign policy, provided that any question as to whether materials are 
in fact properly classified or are properly subject to classification 
shall be resolved in accordance with the applicable Executive order or 
as otherwise provided by law. However, the Archivist may waive this 
restriction when:
    (i)(A) The requester is engaged in a historical research project; or
    (B) The requester is a former Federal official who had been 
appointed by the President to a policymaking position and who seeks 
access only to those classified materials which he originated, reviewed, 
signed or received while in public office; and
    (ii) The requester has a security clearance equivalent to the 
highest degree of national security classification that may be 
applicable to any of the materials to be examined; and
    (iii) The Archivist has determined that the heads of agencies having 
subject matter interest in the material do not object to the granting of 
access to the materials; and
    (iv) The requester has signed a statement, which declares that the 
requester will not publish, disclose, or otherwise compromise the 
classified material to be examined and that the requester has been made 
aware of Federal criminal statutes which prohibit the compromise or 
disclosure of this information.
    (b) The Archivist will restrict access to any portion of materials 
determined to relate to abuses of governmental power when the release of 
those portions would constitute a clearly unwarranted invasion of 
personal privacy or constitute libel of a living person: Provided, That 
if material related to an abuse of governmental power refers to, 
involves or incorporates such personal information, the Archivist will 
make available such personal information, or portions thereof, if such 
personal information, or portions thereof, is essential to an 
understanding of the abuses of governmental power.



Sec. 1275.52  Restriction of materials of general historical significance 

unrelated to abuses of governmental power.

    (a) The Archivist will restrict access to materials determined 
during the processing period to be of general historical significance, 
but not related to abuses of governmental power, under one or more of 
the circumstances specified in Sec. 1275.50(a).
    (b) The Archivist will restrict access to materials of general 
historical significance, but not related to abuses of governmental 
power, when the release of these materials would:
    (1) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential; or
    (2) Constitute a clearly unwarranted invasion of personal privacy or 
constitute libel of a living person; or
    (3) Disclose investigatory materials compiled for law enforcement 
purposes,

[[Page 979]]

but only when the disclosure of such records would:
    (i) Interfere with enforcement proceedings;
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (iii) Constitute an unwarranted invasion of personal privacy;
    (iv) Disclose the identity of a confidential source, and in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (v) Disclose investigative techniques and procedures; or
    (vi) Endanger the life or physical safety of law enforcement 
personnel.



Sec. 1275.54  Periodic review of restrictions.

    The Archivist periodically will assign archivists to review 
materials placed under restriction by Sec. 1275.50 or Sec. 1275.52 and 
to make available for public access those materials which, with the 
passage of time or other circumstances, no longer require restriction. 
If the archivists are unable to determine whether certain materials 
should remain restricted, the archivists shall submit the pertinent 
materials, or representative examples of them, to the Senior Archival 
Panel described in Sec. 1275.44(d), which shall then have the 
responsibility for determining if the materials should remain 
restricted. The Senior Archival Panel may seek the recommendations of 
the Presidential Materials Review Board, in the manner prescribed in 
paragraph (e) and (h) of Sec. 1275.46, in making its determination. 
Before opening previously restricted materials, the Archivist will 
comply with the notice requirements of Sec. 1275.42(b).

[51 FR 7230, Feb. 28, 1986; 51 FR 8671, Mar. 13, 1986]



Sec. 1275.56  Appeal of restrictions.

    Upon petition of any researcher who claims in writing to the 
Archivist that the restriction of specified materials is inappropriate 
and should be removed, the archivists shall submit the pertinent 
materials, or representative examples of them, to the Presidential 
Materials Review Board described in Sec. 1275.46(f). The Board shall 
review the restricted materials, and consult with interested Federal 
agencies as necessary. To the extent these consultations require the 
transfer of copies of materials to Federal officials outside the 
National Archives and Records Administration, the Board shall comply 
with the requirements of Sec. Sec. 1275.26 and 1275.32. As necessary 
and practicable, the Board shall also seek the views of any person, 
including former President Nixon, whose rights or privileges might be 
adversely affected by a decision to open the materials. The Board shall 
prepare a final written decision, including dissenting and concurring 
opinions, as to the continued restriction of all or part of the 
pertinent materials. The Board's decision shall be the final 
administrative determination. The Archivist will notify the petitioner 
and other interested persons of the final administrative determination 
within 60 calendar days following receipt of such petition. If the 
Board's decision is to open previously restricted materials, the 
Archivist will comply with the notice requirements of Sec. 1275.42(b).

[51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17846, Apr. 23, 1996]



Sec. 1275.58  Deletion of restricted portions.

    The Archivist will provide a requester any reasonably segregable 
portions of otherwise restricted materials after the deletion of the 
portions which are restricted under this Sec. 1275.50 or Sec. 1275.52.



Sec. 1275.60  Requests for declassification.

    Challenges to the classification and requests for the 
declassification of national security classified materials shall be 
governed by the provisions of 36 CFR part 1254 of this chapter, as that 
may be amended from time to time.



Sec. 1275.62  Reference room locations, hours, and rules.

    The Archivist shall, from time to time, separately prescribe the 
precise location or locations where the materials shall be available for 
public reference, and the hours of operation and

[[Page 980]]

rules governing the conduct of researchers using such facilities. This 
information may be obtained by writing to: Office of Presidential 
Libraries (NL), The National Archives, Washington, DC 20408.



Sec. 1275.64  Reproduction of tape recordings of Presidential conversations.

    (a) To ensure the preservation of original tape recordings of 
conversations which were recorded or caused to be recorded by any 
officer or employee of the Federal Government and which:
    (1) Involve former President Richard M. Nixon or other individuals 
who, at the time of the conversation, were employed by the Federal 
Government; and
    (2) Were recorded in the White House or in the office of the 
President in the Executive Office Buildings located in Washington, DC; 
Camp David, MD; Key Biscayne, FL; or San Clemente, CA; and
    (3) Were recorded during the period beginning January 20, 1969, and 
ending August 9, 1974, the Archivist will produce duplicate copies of 
such tape recordings in his custody for public and official reference 
use. The original tape recordings shall not be available for public 
access.
    (b) Since the original tape recordings may contain information which 
is subject to restriction in accordance with Sec. 1275.50 or Sec. 
1275.52, the archivists shall review the tapes and delete restricted 
portions from copies for public and official reference use.
    (c) Researchers may listen to reference copies of the tape 
recordings described in paragraph (a) of this section in a National 
Archives building in the Washington, DC area and at other reference 
locations established by the Archivist in accordance with Sec. 1275.62.
    (d) The reproduction for members of the public of the reference 
copies of the available tape recordings described in paragraph (a) of 
this section will be permitted as follows: Copies of tape recordings 
will be made available following the public release of the tape segments 
contemplated in Sec. 1275.42(a). Effective as of April 20, 2001, NARA 
will allow members of the public to obtain copies of all tapes that have 
been made available to the public by that date and that subsequently 
become available as they are released. Such copying will be controlled 
by NARA or its designated contractor. The fees for the reproduction of 
the tape recordings under this section shall be those prescribed in the 
schedule set forth in part 1258 of this chapter.
    (e) The Archivist shall produce and maintain a master preservation 
copy of the original tape recordings for preservation purposes. The 
Archivist shall ensure that the master preservation copy, like the 
portions of the original tape recordings retained by the Archivist, does 
not contain those segments of the tape recordings which have been 
identified as private or personal and which have been transferred to the 
Nixon estate in accordance with Sec. 1275.48.

[51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17846, Apr. 23, 1996; 64 
FR 56678, Oct. 21, 1999; 67 FR 44766, July 5, 2002]



Sec. 1275.66  Reproduction and authentication of other materials.

    (a) Copying of materials, including tape recordings described in 
Sec. 1275.64, may be done by NARA, by a contractor designated by NARA, 
or by researchers using self-service copiers or copying equipment.
    (b) The Archivist may authenticate and attest copies of materials 
when necessary for the purpose of the research.
    (c) The fees for reproduction and authentication of materials under 
this section shall be those prescribed in the schedule set forth in part 
1258 of this chapter or pertinent successor regulation, as that schedule 
is amended from time to time.

[51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17846, Apr. 23, 1996; 67 
FR 44766, July 5, 2002]



Sec. 1275.68  Amendment of regulations.

    The Archivist may from time to time amend the regulations of this 
subpart D in accordance with the applicable law concerning such 
amendments.



Sec. 1275.70  Freedom of information requests.

    (a) The Archivist will process Freedom of Information Act requests 
for access to only those materials within the Presidential historical 
materials

[[Page 981]]

which are identifiable by an archivist as records of an agency as 
defined in Sec. 1275.16(f). The Archivist will process these requests 
in accordance with the Freedom of Information regulations set forth in 
Sec. 1254.30 of this chapter or pertinent successor regulations.
    (b) In order to allow NARA archivists to devote as much time and 
effort as possible to the processing of materials for general public 
access, the Archivist will not process those Freedom of Information 
requests where the requester can reasonably obtain the same materials 
through a request directed to an agency (as defined in Sec. 
1275.16(f)), unless the requester demonstrates that he or she has 
unsuccessfully sought access from that agency or its successor in law or 
function.

[51 FR 7230, Feb. 28, 1986, as amended at 61 FR 17846, Apr. 23, 1996]



           Sec. Appendix A to Part 1275--Settlement Agreement

    Settlement Agreement filed April 12, 1996, in Stanley I. Kutler and 
Public Citizen v. John W. Carlin, Archivist of the United States, and 
William E. Griffin and John H. Taylor, Co-executors of Richard M. 
Nixon's Estate, Civil Action No. 92-0662-NHJ (D.D.C.) (Johnson, J.). By 
letter dated April 17, 2001, NARA and the Nixon estate agreed to waive 
paragraph 11 of this Settlement Agreement, such that the delay on public 
copying until January 1, 2003, of tapes not made publicly available 
before April 12, 1996, shall no longer apply. This change is reflected 
in 36 CFR 1275.64.

                          Settlement Agreement

    This Settlement Agreement (``Agreement'') is made by and entered 
into among plaintiffs Stanley I. Kutler and Public Citizen; defendant/
cross-claim defendant John W. Carlin, in his official capacity as 
Archivist of the United States; and defendant-intervenors/cross-
claimants John H. Taylor and William E. Griffin, co-executors of the 
estate of Richard M. Nixon (``the Nixon estate''), in the above-entitled 
action by and through the parties' undersigned attorneys.
    It is hereby agreed, by and among the parties, appearing through 
their undersigned attorneys, that this action is partially settled on 
the following terms:

                           Terms of Agreement

    1(a). As soon as practicable, the National Archives and Records 
Administration (``the Archives'') will publicly release the segments of 
tape recordings made during the Presidency of Richard M. Nixon (``tape 
recordings'' or ``tapes'') identified by the Archives as relating to 
``abuses of governmental power,'' as defined by 36 C.F.R. Part 1275, 
along with the corresponding portions of the tape log and any other 
finding aid. The date of that release, which is expected to be on or 
about November 15, 1996, shall be determined in the following manner.
    (b). No later than April 15, 1996, the Archives shall deliver to an 
agent of the Nixon estate a copy of the approximately 201 hours of 
abuses of governmental power tape segments that it proposes to release, 
together with the corresponding portions of the tape log and any other 
finding aid, for review by the Nixon estate to determine whether it 
intends to object to the release. The Archives agrees to provide a 
period of orientation to the designated Nixon estate agent with respect 
to the review of the abuses of governmental power tape segments and to 
be available to respond to questions thereafter.
    (c). In place of the right to make all other objections with respect 
to the tape recordings that the Archives has designated as abuses of 
governmental power materials, the Nixon estate agrees that it may object 
to their release only on the ground that such designation by the 
Archives is clearly inconsistent with the term ``abuses of governmental 
power'' as used in section 104(a)(1) of the Presidential Recordings and 
Materials Preservation Act of 1974 (``the Act''), 44 U.S.C. Sec. 2111 
note, and defined in 36 C.F.R. 1275.16(c), as qualified by 36 C.F.R. 
1275.50(b). Any such objection shall be in writing and may not be based 
on isolated instances of alleged failure by the Archives to apply the 
appropriate review standard, but only on a pattern of misapplication of 
the requirements of the Act and its implementing regulations. Further, 
any such objection must be accompanied by specific examples of alleged 
review errors and contain sufficient information to enable the review 
panel described in subparagraph 1(e) below to locate those examples 
readily. Nothing in this paragraph shall preclude the Nixon estate and 
the Archives from having informal discussions regarding the appropriate 
treatment of any of the abuses of governmental power tape segments.
    (d). The Nixon estate shall have until October 1, 1996, to submit 
any objection in accordance with subparagraph 1(c) above. If no such 
objection is filed, the Archives shall proceed to issue a notice of 
proposed release pursuant to 36 C.F.R. 1275.42 as soon as possible, but 
no later than October 15, 1996.
    (e). If an objection is made, the matter shall be immediately 
referred to a panel of the following three Presidential Library 
archivists: David Alsobrook, Frances Seeber, and Claudia Anderson. If 
any of these three persons is unable to serve, the Archivist shall 
appoint a substitute who is acceptable to the other parties.

[[Page 982]]

    (f). The panel shall have such access to the tapes as it deems 
necessary to make its decision. The decision of the panel shall be 
either that the Nixon estate's objection is sustained or that it is 
rejected. The decision shall include a brief statement of the panel's 
reasons, but it need not include an item-by-item determination. In 
deciding whether the designation by the Archives of the material 
proposed to be released is clearly inconsistent with the definition of 
``abuses of governmental power,'' the panel shall consider whether the 
release would seriously injure legitimate interests of identifiable 
individuals, whether the errors suggest a pattern of misinterpretation, 
and any other factor that bears on the issue of whether the Archives' 
designation of material as relating to abuses of governmental power was 
reasonable, considered as a whole. The decision of the panel shall be 
made within sixty (60) days of the date of the objection. However, if 
the panel determines that exceptional circumstances interfere with its 
ability to meet this deadline, the panel shall have up to an additional 
sixty (60) days to make its decision. The Archives shall notify the 
other parties of the need for an extension and briefly describe the 
reasons therefor. The panel's decision shall be final and binding on all 
parties, and no party may exercise any right to appeal to any person, 
board, or court that might otherwise be available. Nothing contained in 
this Agreement shall preclude the panel from advising the Archives of 
any particular processing errors that it believes may have been made, 
but the Archivist shall make the final determination as to whether to 
accept such advice.
    (g). If the objection of the Nixon estate is sustained, the Archives 
shall re-review the tapes sufficiently to address the concerns raised by 
whatever aspect of the objection is sustained. At the conclusion of such 
re-review, the same process of review, first by the Nixon estate and 
then by the panel in the event of further objection, shall be repeated 
for those tape segments concerning the subject matter of the sustained 
objection prior to any release of tape recordings designated as relating 
to abuses of governmental power.
    (h). The Nixon estate agrees to inform the Archives and plaintiffs 
whether it intends to file objections as soon as it has made its 
decision. If there is an objection by the Nixon estate and it is 
overruled, the Federal Register notice shall be published within ten 
(10) days of the date of the panel's decision.
    (i). If, following the Federal Register notice, no objection by 
other individuals to a release is received within the time provided by 
law, the Archives shall release the tape recordings within ten (10) days 
after such time has expired. If objections are received, they shall be 
promptly considered by the Archives and shall be decided as soon 
thereafter as practical. Any materials as to which an objection to 
release has been timely filed shall not be released until such objection 
has been resolved pursuant to 36 C.F.R. 1275.44. All materials not 
objected to shall be released no later than thirty (30) days after the 
time for objections has expired, provided that the Archives may withhold 
any additional conversation to which no objection has been made, pending 
final resolution of an objection to another conversation, if (i) such 
additional conversation is in close proximity on the tapes to the 
objected-to conversation and it would be burdensome for the Archives to 
separate out the releasable and objected-to portions, or (ii) the 
subjects of the releasable and the objected-to conversations are closely 
related to one another and the Archives determines that it might be 
misleading or might unfairly prejudice a living individual to release 
only one conversation. Any release under this Agreement shall include 
the corresponding portions of the tape log and any other finding aid.
    (j). The Archives shall send to plaintiff Kutler, to arrive no later 
than the day that the release of the tapes occurs, a copy of the 
portions of the tape log and any other finding aid that correspond to 
the tapes being released. The Archives shall also make suitable 
arrangements for plaintiff Kutler to listen to such tapes on the date of 
their release, and/or on such other subsequent business days as 
plaintiff Kutler shall designate.
    2(a). Although the Agreement provides that the Archives will 
identify and return to the Nixon estate a copy of any private or 
personal materials identified on the tapes, the parties have been unable 
to reach agreement regarding the Archivist's retention and maintenance 
of the original tape recordings in their entirety, including those 
segments deemed to be private or personal, along with a master 
preservation copy. The government's position is that it is complying 
with the Act by retaining the original tapes and a master preservation 
copy, including those portions containing private or personal 
conversations. The Nixon estate's position, with which plaintiffs agree, 
is that the family has statutory, constitutional, and other rights that 
prevent the Archives from retaining private or personal materials, on 
both the original tapes and all copies.
    (b). The parties have agreed to litigate the issue described in 
subparagraph 2(a) above, including the validity of 36 C.F.R. 1275.48(a) 
and 1275.64(e) as proposed for amendment. The parties further agree that 
the Court shall retain jurisdiction of that issue, as provided in 
paragraph 14 below, and that the right to litigate this issue includes 
the right to seek review in the United States Court of Appeals for the 
District of Columbia Circuit and the United States Supreme Court. If 
there is litigation between the Nixon estate and the Archivist over the 
issue described in subparagraph 2(a) above, the plaintiffs shall

[[Page 983]]

support the Nixon estate in any such litigation by filing a brief 
supporting the estate's position in District Court. The parties agree to 
make all reasonable efforts to expedite resolution of this issue.
    (c). This Agreement and all discussions, negotiations and exchanges 
of information leading to it shall be entirely without prejudice to any 
positions the parties may take in the event of such litigation. Nothing 
in this Agreement, in any discussions leading to it, or in any 
information or materials exchanged by the parties as part of the 
mediation may be relied on or disclosed by any party to support or rebut 
the position of any party with respect to the treatment of private or 
personal materials on the original tapes. Nothing in this subparagraph 
prevents any party from expressing its understanding as to the meaning 
and effect of the legal position of another party.
    3. The Archives will provide to the Nixon estate any additional 
private or personal materials at approximately the time that the 
Archives proposes each segment identified in paragraphs 4 and 5 below 
for public release. Any additional copies of that material (other than 
on a master preservation copy, the status of which will be determined in 
accordance with the resolution of the issue as described in subparagraph 
2(a) above), will be destroyed by appropriate method, with appropriate 
means of verification.
    4(a). The second group of tapes to be processed for release is the 
approximately 278 hours recorded in the Cabinet Room. The projected date 
for publishing a notice of proposed opening of tapes in that group is 
August 1, 1997. The Archives will make the Cabinet Room tapes proposed 
for release available to the Nixon estate in no fewer than four (4) 
segments. The process by which those tapes will be reviewed by the Nixon 
estate, and the objections handled by the Archives, is set forth in the 
following subparagraphs of this paragraph 4.
    (b). The Nixon estate agrees to review each segment as it is 
received and promptly to call to the attention of the Archives any 
concerns that it may have. The Archives and the Nixon estate agree to 
attempt to work out their differences informally in order to minimize 
any objections to a proposed release. To facilitate informal 
consultation between the Nixon estate and the Archives concerning the 
tape review, the Archivist shall designate a panel member identified in 
subparagraph 1(e) above who will serve as a contact with the Nixon 
estate and assure access to information relating to Presidential 
libraries practices and procedures that may arise in the course of the 
tape review. The designated individual will be responsible for assuring 
that the Nixon estate has access to the appropriate person to answer its 
concerns. The Nixon estate may communicate with the designated 
individual orally or in writing. If the Archives agrees with the Nixon 
estate that any portion of a segment that has been sent to the Nixon 
estate as a proposed release should not be released, the Archives shall 
assure that there is appropriate documentation to reflect that change.
    (c). The Nixon estate will have a period of at least six (6) months 
in which to review all of the Cabinet Room tapes, beginning on the date 
the Archives makes the first installment of such tapes available to the 
estate for review (but in no event will the six (6) months begin earlier 
than November 15, 1996). During the review of the Cabinet Room tapes, 
the Nixon estate will employ an agent or agents who will spend an 
average of at least thirty two (32) hours a week (total) in actual 
review of the tapes. The Nixon estate may request from the Archives an 
extension of the six-month review period, which the Archives shall grant 
if good cause is shown.
    (d). If, during its review, the Nixon estate becomes aware that 
there are materials proposed for release that it believes should not be 
heard even by individuals on the registry list, it will promptly advise 
the Archives of any such materials so that they can be reviewed and/or 
segregated by the Archives before any other individual is permitted to 
listen to them. The Nixon estate will cooperate with the Archives so 
that the required Federal Register notice is published as soon as 
possible, but in no event shall such notice be provided later than ten 
(10) days after the time the Nixon estate completes its review. Final 
objections from the Nixon estate to the release of portions of the tapes 
shall be filed in accordance with 36 C.F.R. Part 1275 no later than the 
date for filing objections by other persons. Thereafter, subject to 
paragraph 7 below, the provisions of subparagraphs 1(i) and 1(j) above 
will apply.
    5(a). The remaining tapes, consisting of approximately 2338 hours, 
shall be processed for release in five (5) segments. Because the precise 
number of hours of tapes for each month cannot readily be determined, 
the parties have agreed to divide the releases into the segments set 
forth below. The Archives will begin processing (which includes, but is 
not limited to, tape review, preparing tapes for declassification 
review, tape editing and production of finding aids) each segment before 
processing of the preceding segment is concluded. Processing of the 
tapes in each segment is projected to take from about fifteen (15) to 
about twenty three (23) months. The approximate number of hours of tapes 
to be reviewed in each segment is set forth in parentheses in the 
following listing of the segments. The projected number of months 
between the completion of the Archives' processing of the immediately 
preceding segment and the completion of the Archives' processing of each 
listed segment is set forth in brackets.

[[Page 984]]

    1. February 1971-July 1971 (437 hours) [8 months]
    2. August 1971-December 1971 (405 hours) [7 months]
    3. January 1972-June 1972 (440 hours) [7 months]
    4. July 1972-October 1972 (410 hours) [6 months]
    5. November 1972-July 1973 (646 hours) [10 months]
    (b). The time estimates in this Agreement are not enforceable as 
such, but the parties agree to have the Court retain jurisdiction to 
consider requests that it enter a binding order setting a schedule for 
the Archives to complete the processing of the tapes. No party may seek 
such an order unless that party first provides twenty (20) days' written 
notice to the other parties of that party's intention to seek such an 
order. Further, no party may seek such an order except on the ground 
that the Archives has unreasonably failed to meet the estimates 
contained herein by a substantial amount. The type of proof that will 
demonstrate reasonableness on the part of the Archives in this regard 
may include, but will not necessarily be limited to, a showing that the 
Archives is reasonably allocating its resources among its various 
programs and activities in the event that it experiences a shortage of 
resources, including any occasioned by court order.
    (c). Portions of each segment processed by the Archives shall be 
provided to the Nixon estate when the processing of each month of tape 
recorded material is completed, unless there are a very few hours for 
two (2) or more months, which may then be combined into a single unit. 
During its review of the chronological tape segments, the Nixon estate 
will employ an agent or agents who will spend an average of at least 
thirty two (32) hours a week (total) in actual review of the tapes, 
forty eight (48) weeks of the year. As its review of the tapes proceeds, 
the Nixon estate shall provide a written report of its progress to the 
Archives and the plaintiffs on a bimonthly basis. The report shall 
include the number of hours worked in each week, the number of hours of 
tapes reviewed in each week, and the Nixon estate's projected completion 
date for review of the segment currently under review. The provisions of 
subparagraphs 4(b) and 4(d) above shall apply to the review, objections, 
and releases with respect to the chronological tape segments, subject to 
paragraph 7 below.
    (d). If one of the other parties to this Agreement determines that 
the Nixon estate's review is not being conducted diligently or in good 
faith, or that the estate's estimated completion date(s) of one or more 
segments is unreasonable, that party may petition the Archivist to 
establish an earlier date(s) for the completion of the review of that 
segment and/or of future segments. Any such date(s) established by the 
Archivist shall provide the Nixon estate with a reasonable opportunity 
to protect and assert its interests without unduly delaying the release 
of the tapes, and shall be based upon consideration of the progress of 
the Archives' review and its scheduled completion date(s); the progress 
to date of the estate's review; and the time reasonably necessary to 
complete the estate's review and to formulate and present any 
objections. The Archives may also propose earlier dates for the 
completion of the review by the Nixon estate on the basis provided for 
in this subparagraph. If a proposal for an earlier date is made, the 
Nixon estate will have a reasonable opportunity to respond.
    6. Once the Archives has completed processing the approximately 2338 
hours of tapes discussed in paragraph 5 above, and has made 
corresponding releases, the Archives shall identify any additional 
copies of partial tape segments in its possession. If the Archives 
determines that some or all of such additional partial tape segments are 
duplicative of any tape recordings that it has already processed, the 
Archives may dispose of the duplicative tape segments, following 
notification to the parties, subject to paragraph 3 above. To the extent 
that such partial tape segments are not duplicative of the tape 
recordings already processed, the Archives shall promptly process such 
non-duplicative portions and shall treat any portions determined to be 
private or personal consistently with the resolution of the issue to be 
litigated as described in paragraph 2 above.
    7(a). After completion of the procedures described in paragraph 4 
above, the Cabinet Room tapes that are found to be releasable under 
paragraph 4 above may be released if either there has been a final 
decision by the district court on the issue to be litigated as described 
in subparagraph 2(a) above, or the release is scheduled after April 1, 
1998, whichever of these two events happens sooner.
    (b). After completion of the procedures described in paragraph 5 
above, the tapes described in paragraph 5(a) above that are found to be 
releasable may be released if either there has been a final judgment by 
the district court, which is not subject to further review by appeal or 
certiorari, with regard to the issue to be litigated as described in 
subparagraph 2(a) above, or there has been a final decision by the 
United States Court of Appeals for the District of Columbia Circuit on 
this issue, or the release is scheduled to take place after November 1, 
1999, whichever of these three events happens sooner.
    (c). As used in subparagraphs 7(a) and (b) above, the term ``final 
decision'' means a decision not subject to reconsideration under Rule 59 
of the Federal Rules of Civil Procedure, or Rules 35 or 40 of the 
Federal Rules of Appellate Procedure, respectively.

[[Page 985]]

    8. The Nixon estate may, at any time, elect to use the procedures in 
paragraph 1 above with respect to any tape segment in place of the 
provisions of paragraphs 4(b) and (d) and 5(c) above, with the following 
substitution: The standard under which objections shall be made, and 
under which the panel shall decide their merits, is whether the release 
taken as a whole is plainly inconsistent with the requirements of the 
Act and its implementing regulations. Provided, however, that once the 
Nixon estate elects to use the procedures in paragraph 1 above in place 
of the provisions in paragraphs 4(b) and (d) and 5(c) above, it cannot 
subsequently revert back to the formal objection process set forth in 36 
C.F.R. Part 1275 for that tape segment.
    9. Within thirty (30) days of the Court's entry of an order as 
described in paragraph 14 below, the Archivist shall designate a 
particular person who shall be responsible for responding to reasonable 
inquiries from the plaintiffs on the status of the releases and 
objections. Such designation may be changed at any time at the 
Archivist's discretion by a notice to plaintiffs through their counsel.
    10. If the Archives appoints a Senior Archival Panel as defined in 
36 C.F.R. 1275.46(d) and (e), no party to the Agreement may object to 
the appointment of such a panel on the ground that the suggestion to 
appoint such a panel was originated by an individual other than the 
processing archivists assigned to the Archives' Nixon Presidential 
Materials Staff.
    11. The Archives will allow members of the public to obtain copies 
of publicly accessible portions of the tapes after the releases 
described in paragraph 5 above, are completed; provided, however, that 
if the releases described in paragraph 5 above are not completed by 
December 31, 1999, the Archives will allow members of the public to 
obtain copies only of the abuses of governmental power tapes, together 
with any other tapes publicly released as of the date of the filing of 
this Agreement with the Court, beginning January 1, 2000. Further 
provided, that if the releases described in paragraph 5 above are not 
completed by December 31, 2002, the Archives will, beginning January 1, 
2003, allow members of the public to obtain copies of all tapes that 
have been made available to the public by that date and tapes that 
subsequently become available, as they are released.
    12(a). Promptly after the Court enters the Order provided for in 
paragraph 14 below, plaintiff Kutler will withdraw his request under the 
Freedom of Information Act, 5 U.S.C. 552, for any and all tape logs and 
other finding aids, which is pending in Kutler v. Carlin, et al., Civ. 
A. No. 92-0661-NHJ (D.D.C.). In all other respects, plaintiff Kutler's 
request in that action shall be unaffected by this Agreement.
    (b). Nothing in this Agreement shall affect the processing by the 
Archives of any dictabelts, which are a collection of recordings of 
former President Nixon and other White House staff members dictating 
memoranda, correspondence and speech drafts, that are included in the 
materials that are subject to the Act.
    13. Pursuant to Rule 315 of this Court, the plaintiffs and the 
defendant shall attempt to resolve the plaintiffs' claim for attorneys' 
fees and expenses and shall advise the Court no later than forty-five 
(45) days after this Court has entered the Order provided for in 
paragraph 14 below on whether they have been able to resolve the issue 
of attorneys' fees and expenses. If no resolution has been reached, they 
will, at that time, recommend a schedule to the Court to resolve such 
claim.
    14. The parties agree to the dissolution of the preliminary 
injunction entered on August 9, 1993, and dismissal with prejudice of 
this action, including all claims and cross-claims, except for the issue 
to be litigated as described in subparagraph 2(a) above, and any fees 
and expenses claimed pursuant to paragraph 13 above, by filing the 
attached Joint Motion to Vacate Preliminary Injunction and to Dismiss 
Claims, and the attached Consent Order. The parties agree that the Court 
shall retain jurisdiction to: (a) Consider the entry of an order in 
accordance with the terms of paragraph 5 above; (b) resolve the issue to 
be litigated as described in subparagraph 2(a) above; (c) determine any 
fees and expenses claimed pursuant to paragraph 13 above; and (d) for 
the purpose of enforcing the terms of this Agreement. The parties 
further agree that such jurisdiction, except with respect to the issue 
described in paragraph 2 above, will be retained only until the later of 
the implementation of paragraph 11 above or the completion of the 
releases called for in paragraph 5 above. Plaintiffs and the Nixon 
estate further agree that they will not challenge any regulations issued 
by the Archives which implement and are consistent with this Agreement.
    15. The terms of this Agreement may not be altered except with the 
written consent of the parties. Nothing in this Agreement constitutes an 
admission of liability or wrongdoing on the part of any party.
    Executed this 12th day of April, 1996.

    For Plaintiffs Stanley I. Kutler and Public Citizen:
Alan B. Morrison,

(D.C. Bar No. 073114), Public Citizen Litigation Group, 1600 20th Street 
NW., Washington, DC 20009, (202) 588-1000.

    For Defendant John W. Carlin:
Anne L. Weismann,

(D.C. Bar No. 298190)

Judry L. Subar,


[[Page 986]]


(D.C. Bar No. 347518)

Alina S. Kofsky,

(D.C. Bar No. 419093), Department of Justice, Federal Programs Branch, 
Civil Division, 901 E Street NW., Room 1010, Washington, DC 20530, (202) 
514-4523.

    For Defendant-Intervenors John H. Taylor and William E. Griffin:

Herbert J. Miller,

(D.C. Bar No. 026120)

R. Stan Mortenson,

(D.C. Bar No. 114678)

Scott L. Nelson,

(D.C. Bar No. 413548)

Ellen Fels Berkman,

(D.C. Bar No. 433310)

Miller, Cassidy, Larroca & Lewin,

2555 M Street, NW., Washington, DC 20037, (202) 293-6400.

[61 FR 17846, Apr. 23, 1996, as amended at 67 FR 44766, July 5, 2002]

[[Page 987]]



                      SUBCHAPTER G_NARA FACILITIES



PART 1280_USE OF NARA FACILITIES--Table of Contents




    Subpart A_What Are the General Rules of Conduct on NARA Property?

              General Information on Using NARA Facilities

Sec.
1280.1 What is the purpose of this part?
1280.2 What property is under the control of the Archivist of the United 
          States?
1280.4 Can children under the age of 14 use NARA facilities?
1280.6 May I bring a seeing-eye dog or other assistance animal?
1280.8 Will my belongings be searched?
1280.10 Are there special rules for driving on NARA property?
1280.12 Is parking available?
1280.14 May I use the shuttle bus to travel to the National Archives at 
          College Park or to the National Archives Building in 
          Washington, DC?
1280.16 Are there additional rules posted?

                          Prohibited Activities

1280.18 May I bring guns or other weapons onto NARA property?
1280.20 What is your policy on illegal drugs and alcohol?
1280.22 Is gambling allowed on NARA property?
1280.24 Is smoking allowed on NARA property?
1280.26 May I pass out fliers on NARA property?
1280.28 Where can I eat and drink on NARA property?
1280.30 Are soliciting, vending, and debt collection allowed on NARA 
          property?
1280.32 What other behavior is not permitted?
1280.34 What are the types of corrective action NARA imposes for 
          prohibited behavior?
1280.36 May I file an appeal if I am banned from NARA facilities?

Subpart B_What Are the Rules for Filming, Photographing, or Videotaping 
                            on NARA Property?

1280.40 Definitions.
1280.42 When do the rules in this subpart apply?
1280.44 May I film, photograph, or videotape on NARA property for 
          commercial purposes?
1280.46 What are the rules for filming, photographing, or videotaping on 
          NARA property for personal use?
1280.48 How do I apply to film, photograph, or videotape on NARA 
          property for news purposes?
1280.50 What will I be allowed to film, photograph, or videotape for 
          news purposes?
1280.52 What are the rules for filming, photographing, or videotaping on 
          NARA property for news purposes?

Subpart C_What Are the Additional Rules for Using NARA Facilities in the 
                          Washington, DC, Area?

1280.60 Where do I enter the National Archives Building in Washington, 
          DC?
1280.62 When are the exhibit areas in the National Archives Building 
          open?
1280.64 What entrance should I use to enter the National Archives at 
          College Park?
1280.66 May I use the National Archives Library?
1280.68 May I use the cafeteria at the National Archives at College 
          Park?

 Subpart D_What Rules Apply to Use NARA Public Areas in the Washington, 
                                DC, Area?

1280.70 When does NARA allow non-NARA groups to use the public areas of 
          NARA property?
1280.71 What are the general rules for using NARA property in the 
          Washington, DC, area?
1280.72 What additional rules apply for a NARA approved event?
1280.74 What spaces in the National Archives Building are available for 
          use by non-NARA groups and organizations?
1280.76 When are the public areas available for private events in the 
          National Archives Building?
1280.78 Does NARA charge fees for the use of public areas in the 
          National Archives Building?
1280.80 How do I request to use NARA public areas in the National 
          Archives Building?
1280.82 How will NARA handle my request to use public areas in the 
          National Archives Building?
1280.84 May I ask to use the Rotunda?
1280.85 What space in the National Archives at College Park is available 
          for use by non-NARA groups and organizations?
1280.86 When are the public areas available for events in the National 
          Archives at College Park?
1280.87 Does NARA charge fees for the use of public areas in the 
          National Archives at College Park?
1280.88 How do I request to use NARA public areas in the National 
          Archives at College Park?

[[Page 988]]

1280.89 How will NARA handle my request to use public areas in the 
          National Archives at College Park?

     Subpart E_What Additional Rules Apply for Use of Facilities in 
                         Presidential Libraries?

1280.90 What are the rules of conduct while visiting the Presidential 
          libraries?
1280.92 When are the Presidential library museums open to the public?
1280.94 When do Presidential libraries allow other groups to use their 
          public areas for events?
1280.96 Supplemental rules.

    Subpart F_What Additional Rules Apply for Use of Public Areas at 
                  Regional Records Services Facilities?

1280.100 What are the rules of conduct at NARA regional records services 
          facilities?
1280.102 When do NARA regional records services facilities allow other 
          groups to use their public areas for events?

    Authority: 44 U.S.C. 2102 notes, 2104(a), 2112, 2903

    Source: 65 FR 34978, June 1, 2000, unless otherwise noted.



    Subpart A_What Are the General Rules of Conduct on NARA Property?

              General Information on Using NARA Facilities



Sec. 1280.1  What is the purpose of this part?

    (a) This part tells you what rules you must follow when you use 
property under the control of the Archivist of the United States (see 
Sec. 1280.2 of this part).
    (b) When you are using other NARA facilities, the General Services 
Administration (GSA) regulations, Conduct on Federal Property, at 41 CFR 
part 102-74, Subpart C, apply to you. These facilities are the NARA 
regional records services facilities, the Washington National Records 
Center in Suitland, MD, the National Personnel Records Center in St. 
Louis, MO, and the Office of the Federal Register in Washington, DC. The 
rules in Sec. Sec. 1280.32(l), 1280.34 (a)(1) and (a)(2), and 1280.36 
also apply to you. The rules in Subpart B of this part also apply to you 
if you wish to film, take photographs, or make videotapes. The rules in 
Subpart F of this part also apply to you if you wish to use the NARA-
assigned conference rooms in those facilities.
    (c) If you are using records in a NARA research room in a NARA 
facility, you must also follow the rules in 36 CFR part 1254. If you 
violate a rule or regulation in 36 CFR part 1254, you are subject to the 
types of corrective action set forth in that part, including revocation 
of research privileges.
    (d) If you violate a rule or regulation in this part you are subject 
to, among other types of corrective action, removal and banning from the 
facility.

[65 FR 34978, June 1, 2000, as amended at 68 FR 53882, Sept. 15, 2003, 
73 FR 36793, June 30, 2008]



Sec. 1280.2  What property is under the control of the Archivist of the United 

States?

    The following property is under the control of the Archivist of the 
United States and is defined as ``NARA property'' in this part 1280:
    (a) The National Archives Building. Property under the control of 
the Archivist includes:
    (1) The Pennsylvania Avenue, NW, entrance between 7th and 9th 
Streets including the area within the retaining walls on either side of 
the entrance, inclusive of the statues, and the steps and ramps leading 
up to the entrance of the building;
    (2) On the 7th Street, 9th Street, and Constitution Avenue, NW, 
sides of the building, all property between the National Archives 
Building and the curb line of the street, including the sidewalks and 
other grounds, the steps leading up to the Constitution Avenue entrance, 
the Constitution Avenue entrance, and the portico area between the steps 
and the Constitution Avenue entrance.
    (3) The National Park Service controls the areas on the Pennsylvania 
Avenue side of the National Archives Building that are not under the 
control of the Archivist of the United States.
    (b) The National Archives at College Park. Property under control of 
the Archivist includes approximately 37 acres bounded:
    (1) On the west by Adelphi Road;

[[Page 989]]

    (2) On the north by the Potomac Electric Power Company right-of-way;
    (3) On the east by Metzerott Road; and
    (4) On the south by the University of Maryland.
    (c) The Presidential Libraries. Property under control of the 
Archivist includes the Presidential Libraries and Museums that are 
listed in 36 CFR 1253.3.
    (d) The National Archives Southeast Region. The National Archives 
Southeast Region in Morrow, Georgia, as specified in 36 CFR 1253.7(e).
    (e) The Federal Records Centers. The Federal Records Centers in 
Ellenwood, Georgia, and Riverside, California, as specified in 36 CFR 
1253.6 (d) and (l), respectively.
    (f) Additional Facilities. As other properties come under the 
control of the Archivist of the United States, they will be listed in 
these regulations as soon as practicable.

[65 FR 34978, June 1, 2000, as amended at 71 FR 76166, Dec. 20, 2006; 72 
FR 4432, Jan. 31, 2007]



Sec. 1280.4  What items are subject to inspection by NARA?

    NARA may, at its discretion, inspect the personal property in the 
possession of any NARA contractor, employee, student intern, visitor, 
volunteer, or other person arriving on, working at, visiting, or 
departing from NARA property.

[71 FR 76167, Dec. 20, 2006]



Sec. 1280.6  Can children under the age of 14 use NARA facilities?

    Children under the age of 14 will be admitted to NARA facilities 
only if they are accompanied by an adult who will supervise them at all 
times while on NARA property. The director of a NARA facility may 
authorize a lower age limit for admission of unaccompanied children to 
meet special circumstances (e.g., students who have been given 
permission to conduct research without adult supervision).

[65 FR 34978, June 1, 2000. Redesignated at 71 FR 76167, Dec. 20, 2006]



Sec. 1280.8  May I bring a seeing-eye dog or other assistance animal?

    Yes, persons with disabilities may bring guide dogs or other animals 
used for guidance and assistance onto NARA property. You may not bring 
any other animals into a NARA facility except for official purposes.

[65 FR 34978, June 1, 2000. Redesignated at 71 FR 76167, Dec. 20, 2006]



Sec. 1280.10  Are there special rules for driving on NARA property?

    (a) You must obey speed limits, posted signs, and other traffic 
laws, and park only in designated spaces.
    (b) NARA will tow, at the owner's expense, any vehicle that is 
parked illegally. Except in emergencies, you may not park in spaces 
reserved for holders of NARA parking permits. If an emergency forces you 
to leave your vehicle in an illegal area, you must notify the security 
guards at that NARA facility as soon as possible. We will not tow your 
illegally parked car if you have notified a security guard of an 
emergency unless it is creating a hazard or blocking an entrance or an 
exit.
    (c) We may deny any vehicle access to NARA property for public 
safety or security reasons.



Sec. 1280.12  Is parking available?

    (a) The National Archives Building. There is no parking available 
for researchers or visitors to the National Archives Building. However, 
this building is easily accessible by bus or subway and there are 
several commercial parking lots located near the building.
    (b) The National Archives at College Park. The National Archives at 
College Park has limited public parking space. The garage is open to the 
public on a first-come, first-served basis during the hours the research 
rooms are open. There is public bus service to this building. 
Individuals and groups visiting the National Archives at College Park 
are encouraged to use public transportation or car pool to get to the 
building as the parking lot is often full during our busiest hours.
    (c) Regional records services facilities. Most regional records 
services facilities have onsite parking available for researchers. 
Parking at these facilities

[[Page 990]]

and at the Washington National Records Center is governed by GSA 
regulations, Management of Buildings and Grounds, found at 41 CFR part 
101-20. The regional archives on Market Street in Philadelphia and the 
regional archives in New York City do not have onsite parking. However, 
there is ample parking in commercial parking garages near these 
facilities.
    (d) Presidential Libraries. All of the Presidential Libraries have 
onsite parking for researchers and museum visitors. Some of the spaces 
are reserved for staff and for security reasons.



Sec. 1280.14  May I use the shuttle bus to travel to the National Archives at 

College Park or to the National Archives Building in Washington, DC?

    The NARA shuttle, which travels concurrently each hour between the 
National Archives Building and the National Archives at College Park, is 
intended for NARA employees' use for official purposes. Other Government 
employees on official business or researchers may also use the shuttle 
if space is available. The shuttle operates Monday through Friday, 
excluding Federal holidays, 8:00 a.m. to 5:00 p.m.

[65 FR 34978, June 1, 2000; 65 FR 35840, June 6, 2000]



Sec. 1280.16  Are there additional rules posted?

    Yes, there are additional rules posted on NARA property. You must, 
at all times while on NARA property, comply with official NARA signs and 
with the directions of the guards and NARA staff.

                          Prohibited Activities



Sec. 1280.18  May I bring guns or other weapons onto NARA property?

    No, you may not bring firearms or other dangerous or deadly weapons 
either openly or concealed onto NARA property except for official 
business. You also may not bring explosives, or items intended to be 
used to fabricate an explosive or incendiary device, onto NARA property. 
State-issued concealed-carry permits are not valid on NARA property.



Sec. 1280.20  What is your policy on illegal drugs and alcohol?

    You may not use or be in possession of illegal drugs on NARA 
property. You also may not enter NARA property while under the influence 
of illegal drugs or alcohol. Using alcoholic beverages on NARA property 
is prohibited except for occasions when the Archivist of the United 
States or his/her designee has granted an exemption in writing.



Sec. 1280.22  Is gambling allowed on NARA property?

    (a) No, you may not participate in any type of gambling while on 
NARA property. This includes:
    (1) Participating in games for money or other personal property;
    (2) Operating gambling devices;
    (3) Conducting a lottery or pool; or
    (4) Selling or purchasing numbers tickets.
    (b) This rule does not apply to licensed blind operators of vending 
facilities who are selling chances for any lottery set forth in a State 
law and conducted by an agency of a State as authorized by section 
2(a)(5) of the Randolph-Sheppard Act (20 U.S.C. 107, et seq.)



Sec. 1280.24  Is smoking allowed on NARA property?

    Smoking is not allowed inside any NARA facility.



Sec. 1280.26  May I pass out fliers on NARA property?

    No, you may not distribute or post handbills, fliers, pamphlets or 
other materials on bulletin boards or elsewhere on NARA property, except 
in those spaces designated by NARA as public forums. This prohibition 
does not apply to displays or notices distributed as part of authorized 
Government activities or bulletin boards used by employees to post 
personal notices.



Sec. 1280.28  Where can I eat and drink on NARA property?

    You may only eat and drink in designated areas in NARA facilities. 
Eating and drinking is prohibited in the research, records storage, and 
museum areas unless specifically authorized by the Archivist or 
designee.

[[Page 991]]



Sec. 1280.30  Are soliciting, vending, and debt collection allowed on NARA 

property?

    (a) No, on NARA property you may not:
    (1) Solicit for personal, charitable, or commercial causes;
    (2) Sell any products;
    (3) Display or distribute commercial advertising; or
    (4) Collect private debts.
    (b) If you are a NARA employee or contractor, you may participate in 
national or local drives for funds for welfare, health or other purposes 
that are authorized by the Office of Personnel Management and/or 
approved by NARA (e.g. the Combined Federal Campaign). Also, nothing in 
this section prohibits employees from activities permitted under the 
Standards of Ethical Conduct and Office of Government Ethics rules.



Sec. 1280.32  What other behavior is not permitted?

    We reserve the right to remove anyone from NARA property who is:
    (a) Stealing NARA property;
    (b) Willfully damaging or destroying NARA property;
    (c) Creating any hazard to persons or things;
    (d) Throwing anything from or at a NARA building;
    (e) Improperly disposing of rubbish.
    (f) Acting in a disorderly fashion;
    (g) Acting in a manner that creates a loud or unusual noise or a 
nuisance;
    (h) Acting in a manner that unreasonably obstructs the usual use of 
NARA facilities:
    (i) Acting in a manner that otherwise impedes or disrupts the 
performance of official duties by Government and contract employees;
    (j) Acting in a manner that prevents the general public from 
obtaining NARA-provided services in a timely manner; or
    (k) Loitering.
    (l) Threatening directly (e.g., in-person communications or physical 
gestures) or indirectly (e.g., via regular mail, electronic mail, or 
phone) any NARA employee, visitor, volunteer, contractor, other building 
occupants, or property.

[65 FR 34978, June 1, 2000, as amended at 68 FR 53882, Sept. 15, 2003]



Sec. 1280.34  What are the types of corrective action NARA imposes for 

prohibited behavior?

    (a) Individuals who violate the provisions of this part are subject 
to:
    (1) Removal from the premises (removal for up to seven calendar 
days) and possible law enforcement notification;
    (2) Banning from property owned or operated by NARA;
    (3) Arrest for trespass; and
    (4) Any additional types of corrective action prescribed by law.
    (b) The regional administrator of the facility (or the director if 
so designated) has the authority to have the individual immediately 
removed and denied further access to the premises for up to seven 
calendar days. During this removal period, the Assistant Archivist for 
Administration renders a decision on whether the individual should be 
banned from specific or all NARA facilities permanently or temporarily 
(in up to one-year increments). Long-term banning under this part 
includes automatic revocation of research privileges, notwithstanding 
the time periods set forth in 36 CFR 1254.48 . Research privileges 
remain revoked until the ban is lifted, at which time an application for 
new privileges may be submitted.
    (c) Upon written notification by the Assistant Archivist for 
Administration, individuals may be banned from all NARA facilities. All 
NARA facilities will be notified of the banning of individuals.

[68 FR 53882, Sept. 15, 2003, as amended at 73 FR 36793, June 30, 2008]



Sec. 1280.36  May I file an appeal if I am banned from NARA facilities?

    Yes, within 30 calendar days of receiving such notification, an 
individual may appeal the decision in writing. In the request, the 
individual must state the reasons for the appeal and mail it to the 
Deputy Archivist of the United

[[Page 992]]

States for reconsideration (address: National Archives and Records 
Administration (ND), 8601 Adelphi Road, College Park, MD 20740-6001). 
The Deputy Archivist has 30 calendar days from receipt of an appeal to 
make a decision to rescind, modify, or uphold the ban. If the ban is 
upheld, further requests by the affected individual will not be acted 
upon if received prior to the expiration of a period of one year from 
the date of the last request for reconsideration. After one year has 
passed, a further request for reconsideration will be considered, and 
the Deputy Archivist will decide, within 30 calendar days of receiving 
the request, whether the ban remains in place or is rescinded. Notice of 
the decision will be provided in writing to the affected individual.

[68 FR 53882, Sept. 15, 2003]



Subpart B_What Are the Rules for Filming, Photographing, or Videotaping 
                            on NARA Property?



Sec. 1280.40  Definitions.

    (a) Filming, photographing, or videotaping for commercial purposes. 
Any filming, photographing, or videotaping to promote commercial 
enterprises or commodities.
    (b) News filming, photographing, or videotaping. Any filming, 
photographing, or videotaping done by a commercial or non-profit news 
organization that is intended for use in a television or radio news 
broadcast, newspaper, or periodical.
    (c) Personal use filming, photographing, or videotaping. Any 
filming, photographing, or videotaping intended solely for personal use 
that will not be commercially distributed.



Sec. 1280.42  When do the rules in this subpart apply?

    (a) These rules apply to anyone who is filming, photographing, or 
videotaping inside any NARA-run facility and while on NARA property.
    (b) Filming, photographing, and videotaping on the grounds of any 
NARA regional records services facility, or on the grounds surrounding 
the Washington National Records Center are governed by GSA regulations, 
Management of Buildings and Grounds, found at 41 CFR part 101-20, and 
must be approved by a GSA official.



Sec. 1280.44  May I film, photograph, or videotape on NARA property for 

commercial purposes?

    No, filming, photographing, and videotaping on NARA property for 
commercial purposes is prohibited.



Sec. 1280.46  What are the rules for filming, photographing, or videotaping on 

NARA property for personal use?

    (a) You may film, photograph, or videotape outside a NARA facility 
so long as you do not impede vehicular or pedestrian traffic.
    (b) You may film, photograph, or videotape inside a NARA facility 
during regular business hours in public areas, including research rooms 
and exhibition areas, under the following conditions:
    (1) You may not use a flash or other supplemental lighting;
    (2) You may not use a tripod or similar equipment; and
    (3) You may not film, photograph, or videotape while on the interior 
steps or ramp leading to the Declaration of Independence, the 
Constitution, and the Bill of Rights in the Rotunda of the National 
Archives Building.

[65 FR 34978, June 1, 2000, as amended at 73 FR 36793, June 30, 2008]



Sec. 1280.48  How do I apply to film, photograph, or videotape on NARA 

property for news purposes?

    (a) If you wish to film, photograph, or videotape for news purposes 
at the National Archives Building (as delineated in Sec. 1280.2(a)), 
the National Archives at College Park, or the Washington National 
Records Center, you must request permission from the NARA Public Affairs 
Officer, 700 Pennsylvania Avenue, NW., Washington, DC 20408-0001. See 
also Sec. 1280.42(b) for additional permissions relating to the 
Washington National Records Center.
    (b) If you wish to film, photograph, or videotape for news purposes 
at a Presidential library or at a regional records services facility, 
you must contact the director of the library (see 36 CFR 1253.3 for 
contact information) or regional records services facility (see

[[Page 993]]

36 CFR 1253.6 for contact information) to request permission.
    (c) Your request for permission to film, photograph, or videotape 
for news purposes must contain the following information:
    (1) The name of the organization you are working for;
    (2) Areas you wish to film, photograph, or videotape;
    (3) Documents, if any, you wish to film;
    (4) The purpose of the project you are working on;
    (5) What you intend to do with the film, photograph, or videotape; 
and
    (6) How long you will need to complete your work on NARA property.
    (d) You must request permission at least one week in advance of your 
desired filming date. If you make a request within a shorter time 
period, we may not be able to accommodate your request.
    (e) OMB control number 3095-0040 has been assigned to the 
information collection contained in this section.
    (f) This section does not apply to you if you have permission to use 
your own microfilming equipment to film archival records and donated 
historical materials under the provisions of 36 CFR 1254.90 through 
1254.110. You must follow the procedures in 36 CFR part 1254 for 
permission to film archival records and donated materials for research 
purposes or for microfilm publications.

[65 FR 34978, June 1, 2000, as amended at 36793, June 30, 2008]



Sec. 1280.50  What will I be allowed to film, photograph, or videotape for 

news purposes?

    (a) NARA will permit you to film, photograph, or videotape sections 
of the interior or exterior of any NARA facility only for stories about:
    (1) NARA programs;
    (2) NARA exhibits;
    (3) NARA holdings;
    (4) NARA services;
    (5) A former President;
    (6) A researcher who has made or is making use of NARA holdings 
(provided that the researcher also approves your request); or
    (7) Any other NARA-related activity approved by the appropriate NARA 
representative.
    (b) NARA reserves the right to reject any request that does not meet 
the criteria set forth in 36 CFR 1280.50(a) and (c) or because of 
scheduling or staffing constraints.
    (c) We will not grant you permission to film, photograph, or 
videotape if you intend to use the film, photographs, or videotape for 
commercial, partisan political, sectarian, or similar activities.



Sec. 1280.52  What are the rules for filming, photographing, or videotaping on 

NARA property for news purposes?

    The following conditions and restrictions apply to anyone that has 
been granted permission to film, photograph, or videotape for news 
purposes under Subpart B:
    (a) NARA may limit or prohibit use of artificial light in connection 
with the filming, photographing, or videotaping of documents for news 
purposes. You may not use any supplemental lighting devices while 
filming, photographing, or videotaping inside a NARA facility in the 
Washington, DC, area without the prior permission of the NARA Public 
Affairs Officer. If the Public Affairs Officer approves your use of 
artificial lighting in the Rotunda, NARA will use facsimiles in place of 
the Declaration of Independence, the Constitution, and the Bill of 
Rights. If NARA approves your use of high intensity lighting, NARA will 
cover or replace with facsimiles all other exhibited documents that fall 
within the boundaries of such illumination. You may not use any 
supplemental lighting devices at the Presidential Libraries and the 
regional records services facilities without permission from a NARA 
representative at that facility.
    (b) On a case-by-case basis, the Public Affairs Officer or other 
appropriate NARA representative may grant you permission to film, 
photograph, or videotape in stack areas containing unclassified records.
    (c) While filming, photographing, or videotaping, you are liable for 
injuries to people or property that result from your activities on NARA 
property.
    (d) At all times while on NARA property, you must conduct your 
activities in accordance with all applicable

[[Page 994]]

NARA regulations contained in this part.
    (e) Your filming, photographing, or videotaping activity may not 
impede people who are entering or exiting any NARA facility unless 
otherwise authorized by the facility's director, or by the NARA Public 
Affairs Officer for Washington, DC, area facilities.
    (f) You must be accompanied by a NARA staff member when filming, 
photographing, or videotaping the interior of any NARA facility.
    (g) NARA will approve your request to do press interviews of NARA 
personnel on NARA property only when such employees are being 
interviewed in connection with official business. Interviews with NARA 
staff and researchers may take place only in areas designated by the 
NARA Public Affairs Officer for Washington, DC, area facilities, or by 
the appropriate NARA representative at other NARA facilities.
    (h) You may film and photograph documents only in those areas which 
the NARA Public Affairs Staff designates in the National Archives 
Building, the National Archives at College Park, or the Washington 
National Records Center or in those areas designated as appropriate by 
the staff liaison at other NARA facilities.
    (i) We will limit your film and photography sessions to two hours.
    (j) You may not state or imply that NARA approves of or will 
sponsor:
    (1) Your activities or views; or
    (2) The uses to which you put images depicting any NARA facility.

[65 FR 34978, June 1, 2000, as amended at 73 FR 36794, June 30, 2008]



Subpart C_What Are the Additional Rules for Using NARA Facilities in the 
                          Washington, DC, Area?



Sec. 1280.60  Where do I enter the National Archives Building in Washington, 

DC?

    (a) To conduct research or official business, you must enter the 
Pennsylvania Avenue entrance of the National Archives Building.
    (b) To visit the exhibit areas of the National Archives Building, 
including the National Archives Experience and Rotunda, you must enter 
through the Constitution Avenue entrance.

[65 FR 34978, June 1, 2000, as amended by 71 FR 42060, July 25, 2006]



Sec. 1280.62  When are the exhibit areas in the National Archives Building 

open?

    The exhibit areas are open to the public from 10 a.m. until 5:30 
p.m. from the day after Labor Day through March 14. The exhibit areas 
are open from 10 a.m. until 7 p.m. from March 15 through Labor Day. Last 
admission to the exhibit areas of the building will be no later than 30 
minutes before the stated closing hour. The Archivist of the United 
States reserves the authority to close the exhibit areas to the public 
at any time for special events or other purposes. The building is closed 
on Thanksgiving and December 25.

[71 FR 42060, July 25, 2006]



Sec. 1280.64  What entrance should I use to enter the National Archives at 

College Park?

    You may enter the National Archives at College Park facility only 
through the main entrance on Adelphi Road. This entrance will be open to 
visitors during normal business hours described in 36 CFR 1253.2. 
Commercial deliveries must be made at the loading dock which is 
accessible only from Metzerott Road.



Sec. 1280.66  May I use the National Archives Library?

    The National Archives Library facilities in the National Archives 
Building and in the National Archives at College Park are operated to 
meet the needs of researchers and NARA staff members. If you are not 
conducting research in archival materials at NARA, NARA Library staff 
will refer you to public libraries and other possible sources for such 
published materials.



Sec. 1280.68  May I use the cafeterias?

    Yes, the Charters Caf[eacute] in the National Archives Building is 
normally open to the public Monday through

[[Page 995]]

Friday, 10 a.m. to 4 p.m. and the cafeteria at the National Archives at 
College Park is open to the public from 8 a.m. to 4 p.m.

[73 FR 36794, June 30, 2008]



 Subpart D_What Rules Apply to Use NARA Public Areas in the Washington, 
                                DC, Area?

                                 General

    Source: 73 FR 36794, June 30, 2008, unless otherwise noted.



Sec. 1280.70  When does NARA allow non-NARA groups to use the public areas of 

NARA property?

    (a) The primary use of NARA property in the Washington, DC, area 
(the National Archives Building and the National Archives at College 
Park), including those areas open to the public, is the conduct of 
official NARA business, including public programs and other activities 
conducted in conjunction with government and non-government 
organizations and the Foundation for the National Archives 
(``Foundation''). In conducting official business, NARA and its partners 
use all of the public areas of the Washington, DC, area facilities. 
There are no public areas in the Washington National Records Center in 
Suitland, MD.
    (b) NARA may permit, under the conditions described in this subpart, 
the occasional use of certain public areas by other Federal agencies, 
quasi-Federal agencies, and state, local, and tribal government 
organizations for official activities. NARA also permits the occasional, 
non-official use of its public areas by organizations when the activity 
relates to or furthers NARA's archival, records, or other programs.



Sec. 1280.71  What are the general rules for using NARA property in the 

Washington, DC, area?

    In addition to the rules listed in Subparts A, B, and C of this 
part, you must adhere to the following rules when using NARA public 
spaces:
    (a) All use must relate to or further the archival, records, or 
other activities of NARA. Examples of use that meet this standard 
include programs that promote research in or the dissemination and use 
of NARA holdings, including educational programs and materials, the 
preservation of NARA holdings or the historical records and documentary 
materials of other institutions, and the use and enjoyment of NARA 
exhibits.
    (b) All use must be consistent with the public perception of NARA as 
an archival and research institution.
    (c) When NARA cohosts an activity with the Foundation or other 
organizations, NARA must be identified as the cohost in all materials 
and publicity relating to the activity.
    (d) When NARA has authorized your organization to use NARA property, 
you may not characterize your use of NARA property as an endorsement by 
NARA of your organization or its activities, or otherwise suggest an 
official relationship between NARA and your organization.
    (e) You are not allowed to charge an admission fee or make any 
indirect assessment for admission, and you may not otherwise collect 
money at the event.
    (f) You may not use NARA property or permission to use that property 
to advertise, promote, or sell commercial enterprises, products, or 
services, or for partisan political, sectarian, or similar purposes.
    (g) You may not use NARA property if you or your organization or 
group engages in discriminatory practices proscribed by the Civil Rights 
Act of 1964, as amended.
    (h) You must not misrepresent your identity to the public nor 
conduct any activities in a misleading or fraudulent manner.
    (i) You must ensure that no Government property is destroyed, 
displaced, or damaged during your use of NARA public areas. You must 
take prompt action to replace, return, restore, repair or repay NARA for 
any damage caused to Government property during the use of NARA 
facilities.



Sec. 1280.72  What additional rules apply for a NARA approved event?

    (a) Approved applicants must provide support people as needed to 
register guests, distribute approved literature, name tags, and other 
material.

[[Page 996]]

    (b) We must approve in advance any item that you plan to distribute 
or display during your use of NARA property, or any notice or 
advertisement that refers, directly or indirectly, to NARA, the 
Foundation for the National Archives, or the National Archives Trust 
Fund, or incorporates any of the seals described in 36 CFR 1200.2.
    (c) We must approve in advance any vendor or caterer who will work 
in NARA facilities. You must comply with all NARA requirements for the 
use of food and drink at your event.
    (d) No food or drink may be present or consumed in areas where 
original records or historical materials are displayed.

               National Archives Building, Washington, DC



Sec. 1280.74  What spaces in the National Archives Building are available for 

use by non-NARA groups and organizations?

    You may ask to use the following areas in the National Archives 
Building, Washington, DC:

------------------------------------------------------------------------
                   Area                               Capacity
------------------------------------------------------------------------
Rotunda Galleries.........................  250 persons.
William G. McGowan Theater................  290 persons.
Archivist's Reception Room................  125 persons.
Presidential Conference Rooms.............  20 to 70 persons.
------------------------------------------------------------------------



Sec. 1280.76  When are the public areas available for private events in the 

National Archives Building?

    Most public areas are available for set-up and use on weekdays from 
6 p.m. until 10:30 p.m. during the fall and winter seasons (day after 
Labor Day through March 14). The areas are available for set-up and use 
from 7:30 p.m. until 10:30 p.m. in the spring season (March 15 through 
Labor Day). The areas are not available during weekends or on Federal 
holidays. A NARA staff member must be present at all times when non-NARA 
groups use NARA spaces.



Sec. 1280.78  Does NARA charge fees for the use of public areas in the 

National Archives Building?

    (a) NARA is authorized to charge fees for the occasional, non-
official use of its public areas, as well as for services related to 
such use, including additional cleaning, security, and other staff 
services. NARA will either exercise this authority directly, or, for 
activities co-sponsored with the Foundation for the National Archives, 
as part of your group's arrangements with the Foundation.
    (b) We will inform organizations interested in using public spaces 
in the National Archives Building in advance and in writing of the total 
estimated cost associated with using the public area of interest. Fees 
NARA charges are paid to the National Archives Trust Fund.
    (c) Federal and quasi-Federal agencies, State, local, and tribal 
governmental institutions using public space for official government 
functions pay fees to the National Archives Trust Fund only for the 
costs for additional cleaning, security, and other staff services NARA 
provides.



Sec. 1280.80  How do I request to use NARA public areas in the National 

Archives Building?

    (a) Direct your request to use space to: Special Events Division 
Director (AI); National Archives and Records Administration, 700 
Pennsylvania Avenue, NW., Room G-9, Washington, DC 20408. Request by 
telephone at 202-357-5164 or by fax at 202-357-5926.
    (b) You must submit requests, signed by an authorized official of 
your organization, to use NARA public areas at least 30 calendar days 
before the proposed event is to occur.
    (c) OMB control number 3095-0043 has been assigned to the 
information collection contained in this section.



Sec. 1280.82  How will NARA handle my request to use public areas in the 

National Archives Building?

    (a) When you ask to use property in the National Archives Building, 
we review your request to:
    (1) Ensure that it meets all of the provisions in this subpart;
    (2) Determine if the public area you have requested is available on 
the date and time you have requested;
    (3) Evaluate whether your proposed use is appropriate for the 
requested space; and
    (4) Determine the costs of the event.

[[Page 997]]

    (b) When we have completed this review, we will notify you of the 
decision. We may ask for additional information before deciding whether 
or not to approve your event.
    (c) NARA reserves the right to review, reject, or require changes in 
any material, activity, or caterer you intend to use for the event.



Sec. 1280.84  May I ask to use the Rotunda?

    The Rotunda is primarily used for the public exhibition of the 
Charters of Freedom and other documents from NARA's holdings. NARA also 
uses the Rotunda for activities that further its Strategic Plan. 
Therefore, the use of the Rotunda for private events is not permitted. 
NARA may, upon application, permit other Federal agencies, quasi-Federal 
agencies, and State, local, and tribal governments to use the Rotunda 
for official functions, with NARA as a co-sponsor. Governmental groups 
that use the Rotunda for official functions must reimburse NARA for the 
cost of additional cleaning, security, and other staff services.

                  National Archives at College Park, MD



Sec. 1280.85  What space in the National Archives at College Park is available 

for use by non-NARA groups and organizations?

    You may ask to use the following areas:

------------------------------------------------------------------------
                   Area                               Capacity
------------------------------------------------------------------------
Auditorium................................  300.
Lecture Rooms.............................  30 to 70 persons (or up to
                                             300 with all dividers
                                             removed).
------------------------------------------------------------------------



Sec. 1280.86  When are the public areas available for events in the National 

Archives at College Park?

    Most areas are available for set-up and use from 8 a.m. until 9:30 
p.m., Monday through Friday, and from 9 a.m. until 4:30 p.m. on 
Saturday. A NARA staff member must be present at all times when the 
public area is in use. If the space and staff are available, we may 
approve requests for events held before or after these hours and on 
Sunday.



Sec. 1280.87  Does NARA charge fees for the use of public areas in the 

National Archives at College Park?

    NARA may charge a fee under 44 U.S.C. 2903(b) for the use of public 
areas at the National Archives at College Park. We inform organizations 
in advance and in writing of the total estimated cost of using the 
public area. Federal and quasi-Federal agencies, State, local, and 
tribal governmental institutions using public space for official 
government functions pay fees to the National Archives Trust Fund only 
for the costs for additional cleaning, security, and other staff 
services NARA provides.



Sec. 1280.88  How do I request to use NARA public areas in the National 

Archives at College Park?

    (a) Direct your request to use space to: Special Events Coordinator 
(AII); Facilities and Personal Property Management Division; National 
Archives and Records Administration; 8601 Adelphi Road, College Park, MD 
20740-6001. Request by telephone at 301-837-1900, or by fax at 301-837-
3237.
    (b) You must submit requests for use of NARA public areas at least 
30 calendar days before the proposed event is to occur.
    (c) OMB control number 3095-0043 has been assigned to the 
information collection contained in this section.



Sec. 1280.89  How will NARA handle my request to use public areas in the 

National Archives at College Park?

    (a) When you ask to use public areas at the National Archives at 
College Park, we will review your request to:
    (1) Ensure that it meets all of the provisions in this subpart;
    (2) Determine if the room you have requested is available on the 
date and time you have requested; and
    (3) Determine the cost of the event.
    (b) When we have completed this review, we will notify you of the 
decision. We may ask for additional information before deciding whether 
or not to approve your event.
    (c) NARA reserves the right to review, reject, or require changes in 
any material, activity, or caterer you intend to use for the event.

[[Page 998]]



     Subpart E_What Additional Rules Apply for Use of Facilities in 
                         Presidential Libraries?



Sec. 1280.90  What are the rules of conduct while visiting the Presidential 

libraries?

    In addition to the rules in Subpart A, when visiting the museums of 
the Presidential Libraries, you may be required to check all of your 
parcels and luggage in areas designated by Library staff.



Sec. 1280.92  When are the Presidential library museums open to the public?

    (a) The hours of operation at Presidential Library museums vary. 
Please contact the individual facility you wish to visit for the hours 
of operation. See 36 CFR 1253.3 for Presidential Library contact 
information. All Presidential Library museums are closed on 
Thanksgiving, December 25, and January 1, with the exception of the 
Lyndon Baines Johnson Library Museum, which is closed only on December 
25.
    (b) See 36 CFR 1253.3 for the operating hours of the research rooms 
of the Presidential Libraries.



Sec. 1280.94  When do Presidential libraries allow other groups to use their 

public areas for events?

    (a) Although Presidential Library buildings and grounds are intended 
primarily for the libraries' use in carrying out their programs, you may 
request the use of Presidential Library facilities when the proposed 
activity is:
    (1) Sponsored, cosponsored, or authorized by the library;
    (2) Conducted to further the library's interests; and
    (3) Scheduled so as not to interfere with the normal operation of 
the library.
    (b) Your event at the library must be for the benefit of or in 
connection with the mission and programs of the library and must be 
consistent with the public perception of the library as a research and 
cultural institution.
    (c) To request the use of a library area, you must apply in writing 
to the library director (see 36 CFR 1253.3 for the address) and complete 
NA Form 16011, Application for Use of Space in Presidential Libraries. 
OMB control number 3095-0024 has been assigned to the information 
collection contained in this section.
    (d) You may not use library facilities for any activities that 
involve:
    (1) Profit making;
    (2) Commercial advertising and sales;
    (3) Partisan political activities;
    (4) Sectarian activities, or other similar activities; or
    (5) Any use inconsistent with those authorized in this section.
    (e) You may not charge admission fees, indirect assessment, or take 
any other kind of monetary collection at the event. NARA will charge 
normal admission fees to the museum if that area is used for the event.
    (f) You will be assessed additional charges by the library director 
to reimburse the Government for expenses incurred as a result of your 
use of the library facility.



Sec. 1280.96  Supplemental rules.

    Library directors may establish appropriate supplemental rules 
governing use of Presidential libraries and adjacent buildings and areas 
under NARA control.



    Subpart F_What Additional Rules Apply for Use of Public Areas at 
                  Regional Records Services Facilities?



Sec. 1280.100  What are the rules of conduct at NARA regional records services 

facilities?

    While at any NARA regional records services facility, you are 
subject to all of the following:
    (a) The GSA regulations, Conduct on Federal Property (41 CFR Part 
102-74, Subpart C);
    (b) The rules in Subparts B and F of this part;
    (c) Section 1280.1(b through d);
    (d) Section 1280.32(l);
    (e) Section 1280.34 (a)(1) and (a)(2); and
    (f) Section 1280.36.

[68 FR 53883, Sept. 15, 2003]

[[Page 999]]



Sec. 1280.102  When do NARA regional records services facilities allow other 

groups to use their public areas for events?

    (a) Although NARA regional records services facility auditoriums and 
other public spaces in the facility buildings and the facility grounds 
are intended primarily for the use of the NARA regional records services 
facility in carrying out its programs, you may request to use one of 
these areas for lectures, seminars, meetings, and similar activities 
when these activities are:
    (1) Sponsored, cosponsored, or authorized by the NARA regional 
records services facility;
    (2) To further NARA's interests; and
    (3) Scheduled so as not to interfere with the normal operation of 
the NARA regional records services facility.
    (b) Your event at the NARA regional records services facility must 
be for the benefit of or in connection with the mission and programs of 
NARA.
    (c) You must ask permission to use a public area at a NARA regional 
records services facility from the director of that facility (see 36 CFR 
1253.6 for a list of addresses).
    (d) NARA regional records services facilities will not allow use of 
any auditoriums or other public spaces for any activities that involve:
    (1) Profit making;
    (2) Commercial advertising and sales;
    (3) Partisan political activities;
    (4) Sectarian activities, or other similar activities; or
    (5) Any use inconsistent with those authorized in this section.
    (e) You may not charge admission fees, indirect assessment, or take 
any other kind of monetary collection at the event.
    (f) You will be assessed a charge by the facility director to 
reimburse the Government for expenses incurred as a result of the your 
use of the facility.



PART 1281_PRESIDENTIAL LIBRARY FACILITIES--Table of Contents




Sec.
1281.1 What is the scope of this part?
1281.2 What publications are incorporated by reference?
1281.3 What definitions apply to this part?
1281.4 What are the architectural and design standards for Presidential 
          libraries?
1281.6 What certifications must be provided to NARA?
1281.8 What information must be provided to NARA for its report to 
          Congress on a new Presidential library facility?
1281.10 When does a foundation consult with NARA before offering a gift 
          of a physical or material change, or addition to an existing 
          library?
1281.12 What information must be provided to NARA for its report to 
          Congress on a change or addition to a Presidential library 
          facility?
1281.14 What type of endowment is required for a Presidential library?
1281.16 What standard does NARA use for measuring building size?

    Authority: 44 U.S.C. 2104(a), 2112.

    Source: 73 FR 34198, June 17, 2008, unless otherwise noted.



Sec. 1281.1  What is the scope of this part?

    (a) This part implements provisions of the Presidential Libraries 
Act, codified at 44 U.S.C. 2112(a) and (g). The Act requires the 
Archivist of the United States to promulgate architectural and design 
standards for new and existing Presidential libraries in order to ensure 
that such depositories preserve Presidential records subject to Chapter 
22 of this title and papers and other historical materials accepted for 
deposit under section 2111 of this title and contain adequate research 
facilities. In addition the Archivist must submit a written report to 
the Congress before accepting new libraries or certain proposed physical 
or material changes or additions to an existing library; and to ensure, 
for existing libraries subject to the mandatory endowment requirement, 
that the endowment specified by 44 U.S.C. 2112(g) has been transferred 
to the National Archives Trust Fund before acceptance by the Archivist.
    (b) This part applies to design and construction of new libraries 
that are offered to NARA on or after July 17, 2008 and to material 
changes or additions to new and existing libraries funded wholly by gift 
on or after that date.



Sec. 1281.2  What publications are incorporated by reference?

    (a) The materials listed in this section are incorporated by 
reference in

[[Page 1000]]

the corresponding sections noted. These incorporations by reference were 
approved by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated as 
they exist on the date of the approval, and notice of any change in 
these materials will be published in the Federal Register. The materials 
are available for purchase at the corresponding addresses noted below. 
You may inspect a copy at the National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD 20740 or at the 
Office of the Federal Register (OFR). For information on the 
availability of this material at the OFR, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html.
    (b) The following materials are available for purchase from the 
Building Owners and Managers Association (BOMA), BOMA International 1201 
New York Avenue, NW., Suite 300, Washington DC, 20005, http://
www.boma.org. or the American National Standards Institute, (ANSI), 
Inc., 11 West 42nd Street, New York, NY 10036.
    (1) ANSI/BOMA Z65.1-1996, Standard Method for Measuring Floor Areas 
in Office Buildings (the BOMA Standard), approved June 7, 1996; IBR 
approved for Sec. Sec. 1281.3, and 1281.8.
    (2) [Reserved]



Sec. 1281.3  What definitions apply to this part?

    The following definitions apply to this part:
    Architectural and design standards. This term refers to the document 
cited in Sec. 1281.4.
    Archival functions. The term means arranging, describing, reviewing, 
preserving, reproducing, restoring, exhibiting, and making available 
Presidential and other records and historical materials in the care and 
custody of the Presidential libraries, and includes the salaries and 
expenses of NARA personnel performing those functions.
    Endowment library. This term means a Presidential library that is 
subject to the endowment requirements of 44 U.S.C. 2112(g). The term 
includes the existing libraries of presidents who took the oath of 
office as President for the first time on or after January 20, 1985, the 
proposed library of President George W. Bush, and the libraries of 
presidents who take the oath of office as President for the first time 
on or after July 1, 2002.
    Equipment. As used in this part, the term means operating equipment 
that must be furnished with the new library and included in the 
calculation of the required endowment. Operating equipment is 
fundamental to the operation of the library and is normally built into 
the facility or permanently mounted to the structure.
    Existing library. This term means a Presidential library that has 
been accepted by the Archivist under 44 U.S.C. 2112(a) and established 
as part of the system of Presidential libraries managed by NARA.
    Facility operations. This term means those activities, including 
administrative services, involved with maintaining, operating, 
protecting, and improving a Presidential library.
    Foundation. This term means a private organization organized under 
state law to construct a new Presidential library. The term usually 
refers to nonprofit charitable organizations that meet the requirements 
of section 501(c)(3) of the Internal Revenue Code (26 CFR 501(c)(3)). 
The term specifically includes ``foundation'' and ``institute,'' as 
those terms are used in 44 U.S.C. 2112(a)(1)(B).
    Historical materials. The term ``historical materials'' has the 
meaning set forth at 44 U.S.C. 2101.
    New library. This term means a Presidential library for a President 
who took the oath of office as President for the first time on or after 
January 20, 1985, that has not been accepted by the Archivist under 44 
U.S.C. 2112(a). Presidential libraries that have been accepted by the 
Archivist and established as part of the system of Presidential 
libraries that are managed by NARA are ``existing libraries.''
    Physical or material change or addition. This term means any 
addition of square footage, as defined by the BOMA Standard 
(incorporated by reference in Sec. 1281.2) or any physical or

[[Page 1001]]

material change to the existing structure of an existing library that 
results in a significant increase in the cost of facility operations.
    Presidential library. This term means a Presidential archival 
depository as defined in 44 U.S.C. 2101.
    Presidential records. The term has the meaning set forth at 44 
U.S.C. 2201.



Sec. 1281.4  What are the architectural and design standards for Presidential 

libraries?

    The Archivist is required by 44 U.S.C. 2112(a)(2) to promulgate 
architectural and design standards for Presidential libraries. The 
standards address the architectural, design, and structural requirements 
of a new Presidential library and additions or renovations, and they 
ensure that Presidential libraries are safe and efficient to operate and 
provide adequate and secure research and museum facilities. A copy of 
the standards is provided to the foundation upon request and is 
available from the Office of Presidential Libraries (NL), Room 2200, 
8601 Adelphi Rd., College Park, MD 20740-6001.



Sec. 1281.6  What certifications must be provided to NARA?

    (a) The foundation must provide to NARA design and construction 
certifications specified in the architectural and design standards.
    (b) Any item that NARA finds is not in compliance with the 
architectural and design standards must be corrected by the foundation 
or, if not corrected by the foundation, will be corrected by NARA with 
the foundation paying the full cost of taking necessary corrective 
action.



Sec. 1281.8  What information must be provided to NARA for its report to 

Congress on a new Presidential library facility?

    (a) NARA must submit a report to Congress on a proposed new library 
pursuant to 44 U.S.C. 2112(a)(3). The foundation that is building the 
library must help NARA as necessary in compiling the information needed 
for this report. If a State, political subdivision, university, 
institution of higher learning, or institute participates in the 
construction of the new library (e.g., by making land available for the 
facility), that party is subject to the same requirement. Requested 
information must be sent to the Office of Presidential Libraries (NL), 
Room 2200, 8601 Adelphi Rd., College Park, MD 20740-6001 far enough in 
advance of the anticipated date of transfer of the Library for NARA to 
compile and submit the report so that it may lie before Congress for the 
minimum time period specified in 44 U.S.C. 2112(a)(5). The normal lead 
time for submitting the required information is a least six months in 
advance of the anticipated date of transfer, but the submission date is 
subject to negotiation between NARA and the foundation in specific 
cases. The collection of information by NARA for these purposes has been 
approved under the Paperwork Reduction Act by the Office of Management 
and Budget with the control number 3095-0036.
    (b) Paragraph (a)(3) of 44 U.S.C. 2112 lists the information that 
NARA must include in its report to Congress. The foundation and NARA 
will agree as part of the planning process for a new library on what 
information the foundation will provide and when. The same requirement 
applies to other entities involved in the construction of a new library 
(e.g., a local government or university). Foundations will normally be 
responsible, at a minimum, for providing the following information to 
NARA:
    (1) A description of the land, facility, and equipment offered as a 
gift or to be made available without transfer of title, which must 
include:
    (i) The legal description of the land, including plat, and evidence 
of clear title to the land upon which the library is constructed;
    (ii) Site plan, floor plans, building sections and elevations, 
artist's representation of building and grounds;
    (iii) Description of building contents, including furniture, 
equipment, and museum installations; and
    (iv) Measurement of the facility in accordance with Sec. 1281.16.
    (2) A statement specifying the estimated total cost of the library 
and the amount of the endowment required pursuant to 44 U.S.C. 2112(g);
    (3) An offer or other statement setting forth the terms of the 
proposed

[[Page 1002]]

agreement for transfer or use of the facility, if any;
    (4) Copies of any proposed agreements between the state, other 
political subdivision, the donating group, other institutions, and the 
United States which may affect ownership or operation of the library 
facility;
    (5) A statement of and copies of any proposed agreements concerning 
the proposed support of library programs by non-federal sources; and
    (6) A statement on cost-saving design features of the building.
    (7) A written certification that the library and the equipment 
therein will comply with NARA standards.



Sec. 1281.10  When does a foundation consult with NARA before offering a gift 

of a physical or material change, or addition to an existing library?

    A foundation must consult with the Office of Presidential Libraries 
before beginning the process of offering a gift for the purpose of 
making a physical or material change or addition to a new or existing 
library. NARA will furnish the interested foundation the current 
architectural and design standards as specified in Sec. 1281.4. Others 
may request a single copy by writing the Office of Presidential 
Libraries (NL), Room 2200, 8601 Adelphi Road, College Park, Maryland 
20740-6001.



Sec. 1281.12  What information must be provided to NARA for its report to 

Congress on a change or addition to a Presidential library facility?

    (a) NARA must submit a report to Congress on a proposed physical or 
material change or addition to an existing library that is being funded 
wholly by gift. The foundation or other party offering the gift to NARA 
must help NARA as necessary in compiling the information needed for the 
report. Required information must be sent to the Office of Presidential 
Libraries (NL), Room 2200, 8601 Adelphi Rd., College Park, MD 20740-
6001, far enough in advance of the Archivist's acceptance of the gift 
for NARA to compile and submit the report to Congress in accordance with 
44 U.S.C. 2112(a)(5). The normal lead time for submitting the required 
information on physical or material changes or additions is at least 
nine (9) months in advance of the anticipated date that work will begin 
on the physical or material change or addition to the library. The 
collection of information contained in this section has been approved 
under the Paperwork Reduction Act by the Office of Management and Budget 
with the control number 3095-0036.
    (b) Paragraph (a)(4) of 44 U.S.C. 2112 lists the information that 
NARA must include in its report to Congress. The donor and NARA will 
agree as part of the planning process what information the donor will 
provide and when, but donors will normally be responsible, at a minimum, 
for providing the following information to NARA:
    (1) A description of the gift, which must include as appropriate:
    (i) The legal description of the land, including plat;
    (ii) Site plan, floor plans, building sections and elevations, 
artist's representation of building and grounds as they will be affected 
by the gift;
    (iii) Description of building contents that are part of the gift, 
including furniture, equipment, and museum installations;
    (iv) For endowment libraries, a measurement of the addition or 
change to the facility in accordance with Sec. 1281.16; and
    (v) A review of all critical spaces where NARA holdings will be 
stored, used, or exhibited, including information on life-safety, 
environmental, holdings storage, and other systems against NARA 
standards.
    (2) A statement of the estimated total cost of the proposed physical 
or material change or addition to the library, and, for endowment 
libraries, an estimate of the amount of the additional endowment 
required pursuant to 44 U.S.C. 2112(g).
    (3) A statement of the purpose of the proposed change or addition.
    (4) A written certification that the library and the equipment 
therein will comply with NARA standards after the change or addition is 
made.



Sec. 1281.14  What type of endowment is required for a Presidential library?

    (a) Endowment requirement--new libraries. The foundation or 
organization

[[Page 1003]]

that is offering NARA a new Presidential library must establish an 
endowment for the library, by gift or bequest, in the National Archives 
Trust Fund before the Archivist may accept the transfer of the library. 
The purpose of the endowment is to help NARA defray the cost of facility 
operations. The endowment requirement for the prospective new library of 
President George W. Bush is set forth in paragraphs 2 and 3 of 44 U.S.C. 
2112(g). The endowment requirements for the new libraries of presidents 
taking the oath of office from the first time on or after July 1, 2002, 
are set forth in paragraphs 2, 3, and 5 of 44 U.S.C. 2112(g).
    (b) Endowment requirement--change or addition to an endowment 
library. For a proposed physical or material change or addition to an 
endowment library that is being funded wholly by gift, the foundation or 
other organization that is offering the gift must agree, as a condition 
of the gift, to transfer monies by gift or bequest to the library's 
existing endowment in the National Archives Trust Fund in an amount 
sufficient to satisfy the requirements of paragraphs 2, 3, and 5 of 44 
U.S.C. 2112(g). The Archivist must determine that the additional 
endowment monies have been transferred to the Trust Fund before he 
accepts the gift of the physical or material change or addition.
    (c) Use of endowment income. The income from a library's endowment 
is available to cover the cost of facility operations, but is not 
available for the performance of archival functions.
    (d) Calculating a library's endowment. The formulas for calculating 
the required endowment are set forth in 44 U.S.C. 2112(g)(3)-(5).
    (e) Equipment costs that must be included in the endowment 
calculation. The cost of all operating equipment provided with a new 
library must be included in the endowment calculation pursuant to 44 
U.S.C. 2112(g)(3). The Archivist will provide in the architectural and 
design standards, a list of equipment guidelines, recommendations, and 
minimum requirements for a foundation's use in designing and building a 
new library. The list is not exhaustive and requirements may change with 
evolving technology, program requirements, and the final library design.
    (f) Formula for a shared use library building. For endowment 
purposes, the construction cost of a shared use library building 
containing both NARA and Foundation-controlled areas will be determined 
using the following formula: The percentage of the usable square footage 
of the NARA-controlled areas to the usable square footage of the entire 
building multiplied by the cost of the entire building. That figure is 
then used in calculating a library's endowment as specified by 
subsection (d) of this section and 44 U.S.C. 2112(g)(3)-(5).



Sec. 1281.16  What standard does NARA use for measuring building size?

    For purposes of 44 U.S.C. 2112(g)(3) and (4), and this part, NARA 
has adopted the BOMA Standard (incorporated by reference in Sec. 
1281.2) as the standard for measuring the size of the facility and the 
value for calculating the endowment. The architectural and design 
standards contain the description of the area to be measured as to 
obtain the useable square footage and the exclusions to the measurement.



PART 1284_EXHIBITS--Table of Contents




Sec.
1284.1 Scope of part.
1284.20 Does NARA exhibit privately-owned material?
1284.30 Does NARA lend documents to other institutions for exhibit 
          purposes?

    Authority: 44 U.S.C. 2104(a), 2109.

    Source: 69 FR 39323, June 30, 2004, unless otherwise noted.



Sec. 1284.1  Scope of part.

    This part sets forth policies and procedures concerning the 
exhibition of materials.



Sec. 1284.20  Does NARA exhibit privately-owned material?

    (a) NARA does not normally accept for display documents, paintings, 
or other objects belonging to private individuals or organizations 
except as part of a NARA-produced exhibit.

[[Page 1004]]

    (b) NARA may accept for temporary special exhibit at the National 
Archives Building privately-owned documents or other objects under the 
following conditions:
    (1) The material to be displayed relates to the institutional 
history of the National Archives and Records Administration or its 
predecessor organizations, the National Archives Establishment and the 
National Archives and Records Service;
    (2) Exhibition space is available in the building that NARA judges 
to be appropriate in terms of security, light level, climate control, 
and available exhibition cases or other necessary fixtures; and
    (3) NARA has resources (such as exhibit and security staff) 
available to produce the special exhibit.
    (c) The Director of Museum Programs (NWE), in conjunction with the 
NARA General Counsel when appropriate, reviews all offers to display 
privately-owned material in the Washington, DC, area, and negotiates the 
terms of exhibition for offers that NARA can accept. Directors of 
Presidential libraries perform these tasks for their respective 
libraries. The lender must provide in writing evidence of title to and 
authenticity of the item(s) to be displayed before NARA makes a loan 
agreement.
    (d) The Director of Museum Programs or director of the pertinent 
Presidential library will inform the offering private individual or 
organization of NARA's decision in writing within 60 days.



Sec. 1284.30  Does NARA lend documents to other institutions for exhibit 

purposes?

    Yes, NARA considers lending documents that are in appropriate 
condition for exhibition and travel. Prospective exhibitors must comply 
with NARA's requirements for security, fire protection, environmental 
controls, packing and shipping, exhibit methods, and insurance. For 
additional information, contact Registrar, Museum Programs (NWE), 
National Archives and Records Administration, 8601 Adelphi Road, College 
Park, MD 20740-6001.

[[Page 1005]]



                 SUBCHAPTER H_JFK ASSASSINATION RECORDS



PART 1290_GUIDANCE FOR INTERPRETATION AND IMPLEMENTATION OF THE PRESIDENT JOHN 

F. KENNEDY ASSASSINATION RECORDS COLLECTION ACT OF 1992 (JFK ACT)--Table of 

Contents




Sec.
1290.1 Scope of assassination record.
1290.2 Scope of additional records and information.
1290.3 Sources of assassination records and additional records and 
          information.
1290.4 Types of materials included in scope of assassination record and 
          additional records and information.
1290.5 Requirement that assassination records be released in their 
          entirety.
1290.6 Originals and copies.
1290.7 Additional guidance.
1290.8 Implementing the JFK Act--Notice of Assassination Record 
          Designation.

    Authority: 44 U.S.C. 2107.

    Source: 60 FR 33349, June 28, 1995, unless otherwise noted. 
Redesignated at 65 FR 39550, June 27, 2000.



Sec. 1290.1  Scope of assassination record.

    (a) An assassination record includes, but is not limited to, all 
records, public and private, regardless of how labeled or identified, 
that document, describe, report on, analyze or interpret activities, 
persons, or events reasonably related to the assassination of President 
John F. Kennedy and investigations of or inquiries into the 
assassination.
    (b) An assassination record further includes, without limitation:
    (1) All records as defined in Section 3(2) of the JFK Act;
    (2) All records collected by or segregated by all Federal, state, 
and local government agencies in conjunction with any investigation or 
analysis of or inquiry into the assassination of President Kennedy (for 
example, any intra-agency investigation or analysis of or inquiry into 
the assassination; any interagency communication regarding the 
assassination; any request by the House Select Committee on 
Assassinations to collect documents and other materials; or any inter- 
or intra-agency collection or segregation of documents and other 
materials);
    (3) Other records or groups of records listed in the Notice of 
Assassination Record Designation, as described in Sec. 1290.8 of this 
chapter.

[60 FR 33349, June 28, 1995. Redesignated at 65 FR 39550, June 27, 2000, 
as amended at 66 FR 18873, Apr. 12, 2001]



Sec. 1290.2  Scope of additional records and information.

    The term additional records and information includes:
    (a) All documents used by government offices and agencies during 
their declassification review of assassination records as well as all 
other documents, indices, and other material (including but not limited 
to those that disclose cryptonyms, code names, or other identifiers that 
appear in assassination records) that the Assassination Records Review 
Board (Review Board) has a reasonable basis to believe may constitute an 
assassination record or would assist in the identification, evaluation 
or interpretation of an assassination record. The Review Board will 
identify in writing those records and other materials it intends to seek 
under this section.
    (b) All training manuals, instructional materials, and guidelines 
created or used by the agencies in furtherance of their review of 
assassination records.
    (c) All records, lists, and documents describing the procedure by 
which the agencies identified or selected assassination records for 
review.
    (d) Organizational charts of government agencies.
    (e) Records necessary and sufficient to describe the agency's:
    (1) Records policies and schedules;
    (2) Filing systems and organization;
    (3) Storage facilities and locations;
    (4) Indexing symbols, marks, codes, instructions, guidelines, 
methods, and procedures;
    (5) Search methods and procedures used in the performance of the 
agencies' duties under the JFK Act; and
    (6) Reclassification to a higher level, transfer, destruction, or 
other information (e.g., theft) regarding the status of assassination 
records.

[[Page 1006]]

    (f) Any other record that does not fall within the scope of 
assassination record as described in Sec. 1290.1, but which has the 
potential to enhance, enrich, and broaden the historical record of the 
assassination.

[60 FR 33349, June 28, 1995, unless otherwise noted. Redesignated at 65 
FR 39550, June 27, 2000, as amended at 66 FR 18873, Apr. 12, 2001]



Sec. 1290.3  Sources of assassination records and additional records and 

information.

    Assassination records and additional records and information may be 
located at, or under the control of, without limitation:
    (a) Agencies, offices, and entities of the executing, legislative, 
and judicial branches of the Federal Government;
    (b) Agencies, offices, and entities of the executive, legislative, 
and judicial branches of state and local governments;
    (c) Record repositories and archives of Federal, state, and local 
governments, including presidential libraries;
    (d) Record repositories and archives of universities, libraries, 
historical societies, and other similar organizations;
    (e) Individuals who possess such records by virtue of service with a 
government agency, office, or entity;
    (f) Persons, including individuals and corporations, who have 
obtained such records from sources identified in paragraphs (a) through 
(e) of this section;
    (g) Persons, including individuals and corporations, who have 
themselves created or have obtained such records from sources other than 
those identified in paragraphs (a) through (e) of this section;
    (h) Federal, state, and local courts where such records are being 
held under seal; or
    (i) Foreign governments.



Sec. 1290.4  Types of materials included in scope of assassination record and 

additional records and information.

    The term record in assassination record and additional records and 
information includes, for purposes of interpreting and implementing the 
JFK Act:
    (a) Papers, maps, and other documentary material;
    (b) Photographs;
    (c) Motion pictures;
    (d) Sound and video recordings;
    (e) Machine readable information in any form; and
    (f) Artifacts.



Sec. 1290.5  Requirement that assassination records be released in their 

entirety.

    An assassination record shall be released in its entirety except for 
portions specifically postponed pursuant to the grounds for postponement 
of public disclosure of records established in Sec. 2107.6 of the JFK 
Act, and no portion of any assassination record shall be withheld from 
public disclosure solely on grounds of non-relevance unless, in the 
Review Board's sole discretion, release of part of a record is 
sufficient to comply with the intent and purposes of the JFK Act.



Sec. 1290.6  Originals and copies.

    (a) For purposes of determining whether originals or copies of 
assassination records will be made part of the President John F. Kennedy 
Assassination Records Collection (JFK Assassination Records Collection) 
established under the JFK Act, the following shall apply:
    (1) In the case of papers, maps, and other documentary materials, 
the Review Board may determine that record copies of government records, 
either the signed original, original production or a reproduction that 
has been treated as the official record maintained to chronicle 
government functions or activities, may be placed in the JFK 
Assassination Records Collection;
    (2) In the case of other papers, maps, and other documentary 
material, the Review Board may determine that a true and accurate copy 
of a record in lieu of the original may be placed in the JFK 
Assassination Records Collection;
    (3) In the case of photographs, the original negative, whenever 
available (otherwise, the earliest generation print that is a true and 
accurate copy), may be placed in the JFK Assassination Records 
Collection;
    (4) In the case of motion pictures, the camera original, whenever 
available (otherwise, the earliest generation

[[Page 1007]]

print that is a true and accurate copy), may be placed in the JFK 
Assassination Records Collection;
    (5) In the case of sound and video recordings, the original 
recording, whenever available (otherwise, the earliest generation copy 
that is a true and accurate copy), may be placed in the JFK 
Assassination Records Collection;
    (6) In the case of machine-readable information, a true and accurate 
copy of the original (duplicating all information contained in the 
original and in a format that permits retrieval of the information), may 
be placed in the JFK Assassination Records Collection; and
    (7) In the case of artifacts, the original objects themselves may be 
placed in the JFK Assassination Records Collection.
    (b) To the extent records from foreign governments are included in 
the JFK Assassination Records Collection, copies of the original records 
shall be sufficient for inclusion in the collection.
    (c) In cases where a copy, as defined in paragraph (a) of this 
section, is authorized by the Review Board to be included in the JFK 
Assassination Records Collection, the Review Board may require that a 
copy be certified if, in its discretion, it determines a certification 
to be necessary to ensure the integrity of the JFK Assassination Records 
Collection. In cases where an original, as defined in paragraph (a) of 
this section, is required for inclusion in the JFK Assassination Records 
Collection, the Review Board may, at its discretion, accept the best 
available copy. In such cases that records included in the JFK 
Assassination Records Collection, whether originals or copies, contain 
illegible portions, such records shall have attached thereto a certified 
transcription of the illegible language to the extent practicable.
    (d) For purposes of implementing the JFK Act, the term copy means a 
true and accurate photocopy duplication by a means appropriate to the 
medium of the original record that preserves and displays the integrity 
of the record and the information contained in it.
    (e) Nothing in this section shall be interpreted to suggest that 
additional copies of any assassination records contained in the JFK 
Assassination Records Collection are not also assassination records 
that, at the Review Board's discretion, may also be placed in the JFK 
Assassination Records Collection.
    (f) Nothing in this section shall be interpreted to prevent or to 
preclude copies of any electronic assassination records from being 
reformatted electronically in order to conform to different hardward 
and/or software requirements of audiovisual or machine readable formats 
if such is the professional judgment of the National Archives and 
Records Administration.



Sec. 1290.7  Additional guidance.

    (a) A government agency, office, or entity includes, for purposes of 
interpreting and implementing the JFK Act, all current, past, and former 
departments, agencies, offices, divisions, foreign offices, bureaus, and 
deliberative bodies of any Federal, state, or local government and 
includes all inter- or intra-agency working groups, committees, and 
meetings that possess or created records relating to the assassination 
of President John F. Kennedy.
    (b) The inclusion of artifacts in the scope of the term 
assassination record is understood to apply solely to the JFK 
Assassination Records Collection and to implement fully the terms of the 
JFK Act and has no direct or indirect bearing on the interpretation or 
implementation of any other statute or regulation.
    (c) Whenever artifacts are included in the JFK Assassination Records 
Collection, it shall be sufficient to comply with the JFK Act if the 
public is provided access to photographs, drawings, or similar materials 
depicting the artifacts. Additional display of or examination by the 
public of artifacts in the JFK Assassination Records Collection shall 
occur under the terms and conditions established by the National 
Archives and Records Administration to ensure their preservation and 
protection for posterity.
    (d) The terms and, or, any, all, and the plural and singular forms 
of nouns shall be understood in their broadest and most inclusive sense 
and shall not be understood to be terms of limitation.

[[Page 1008]]

    (e) Unless the Review Board in its sole discretion directs 
otherwise, records that are identified with respect to a particular 
person shall include all records ralating to that person that use or 
reflect the true name or any other name, pseudonym, codeword, symbol 
number, cryptonym, or alias used to identify that person.
    (f) Unless the Review Board in its sole discretion directs 
otherwise, records that are identified by the Review Board with respect 
to a particular operation or program shall include all records, 
pertaining to that program by any other name, pseudonym, codeword, 
symbol, number, or cryptonym.



Sec. 1290.8  Implementing the JFK Act--Notice of Assassination Record 

Designation.

    (a) A Notice of Assassination Record Designation (NARD) shall be the 
mechanism for the Review Board to announce publicly its determination 
that a record or group of records meets the definition of assassination 
records.
    (b) Notice of all NARDs will be published in the Federal Register 
within 30 days of the decision to designate such records as 
assassination records.
    (c) In determining to designate such records as assassination 
records, the Review Board must determine that the record or group of 
record will more likely than not enhance, enrich, and broaden the 
historical record of the assassination.

                       PARTS 1291-1299 [RESERVED]

[[Page 1009]]



            CHAPTER XV--OKLAHOMA CITY NATIONAL MEMORIAL TRUST




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Part                                                                Page
1501            General provisions..........................        1011
1502-1599       [Reserved]

[[Page 1011]]



PART 1501_GENERAL PROVISIONS--Table of Contents




    Authority: 16 U.S.C. 450ss; Pub. L. 105-58, 111 Stat. 1261.

    Source: 65 FR 14761, Mar. 17, 2000, unless otherwise noted.



Sec. 1501.1  Cross reference to National Park Service regulations.

    As permitted by the Oklahoma City National Memorial Act, the 
Oklahoma City National Memorial Trust (the Trust) adopts by cross 
reference the provisions of the National Park Service in 36 CFR chapter 
I as shown in the following table. The table also indicates those parts, 
sections, and paragraphs that the Trust has chosen to exclude from 
adoption.

                    National Park Service Regulations

36 CFR Chapter I
    Excluding parts 3 and 6-199
PART 1 GENERAL PROVISIONS
Sec. 1.1 Purpose
Sec. 1.2 Applicability and Scope
Sec. 1.3 Penalties
    Excluding paragraphs (b) and (c)
Sec. 1.4 Definitions
    Excluding paragraph (b)
Sec. 1.5 Closures and public use limits
Sec. 1.6 Permits
Sec. 1.7 Public Notice
Sec. 1.8 Information Collection
Sec. 1.10 Symbolic Signs
PART 2 RESOURCE PROTECTION, PUBLIC USE AND RECREATION
    Excluding Sec. Sec. 2.3, 2.16, 2.19, 2.60
Sec. 2.1 Preservation of natural and cultural and archeological 
resources
Sec. 2.2 Wildlife Protection
    Excluding paragraphs (b), (c), and (d)
Sec. 2.4 Weapons, traps, and nets
    Excluding paragraph (a)(2)
Sec. 2.5 Research specimens
Sec. 2.10 Camping and food storage
    Excluding paragraphs (b)(1), (b)(2), (b)(3), (b)(4), (b)(6), (b)(8), 
and (d)
Sec. 2.11 Picnicking
Sec. 2.12 Audio Disturbances
    Excluding paragraph (a)(3)
Sec. 2.13 Fires
    Excluding paragraph (c)
Sec. 2.14 Sanitation and refuse
    Excluding paragraphs (a)(7) and (a)(9)
Sec. 2.15 Pets
    Excluding paragraphs (b) and (e)
Sec. 2.17 Aircraft and air delivery
    Excluding paragraph (a)(2)
Sec. 2.18 Snowmobiles
    Excluding paragraphs (d) and (e)
Sec. 2.20 Skating, skateboards and similar devices
Sec. 2.21 Smoking
    Excluding paragraph (b)
Sec. 2.22 Property
Sec. 2.23 Recreation fees
    Excluding paragraph (a)
Sec. 2.30 Misappropriation of property and services
Sec. 2.31 Trespassing, tampering and vandalism
Sec. 2.32 Interfering with agency functions
Sec. 2.33 Report of injury or damage
Sec. 2.34 Disorderly conduct
Sec. 2.35 Alcoholic beverages and controlled substances
Sec. 2.36 Gambling
Sec. 2.37 Noncommercial soliciting
Sec. 2.38 Explosives
Sec. 2.50 Special events
Sec. 2.51 Public assemblies, meetings
Sec. 2.52 Sale or distribution of printed matter
Sec. 2.61 Residing on Federal lands
Sec. 2.62 Memorialization
PART 4 VEHICLES AND TRAFFIC SAFETY
Sec. 4.1 Applicability and scope
Sec. 4.2 State law applicable
Sec. 4.3 Authorized emergency vehicles
Sec. 4.4 Report of motor vehicle accident
Sec. 4.10 Travel on park roads and designated routes
    Excluding paragraph (c)(3)
Sec. 4.11 Load, weight and size limits
Sec. 4.12 Traffic control devices
Sec. 4.13 Obstructing traffic
Sec. 4.14 Open container of alcoholic beverage
Sec. 4.15 Safety belts
Sec. 4.20 Right of way
Sec. 4.21 Speed limits
    Excluding paragraphs (a)(2) and (a)(3)
Sec. 4.22 Unsafe operation
Sec. 4.23 Operating under the influence of alcohol or drugs
Sec. 4.30 Bicycles
Sec. 4.31 Hitchhiking
PART 5 COMMERCIAL AND PRIVATE OPERATIONS
    Excluding Sec. Sec. 5.4, 5.9, and 5.10
Sec. 5.1 Advertisements
Sec. 5.2 Alcoholic beverages; sale of intoxicants
    Excluding paragraph (b)
Sec. 5.3 Business operations
Sec. 5.5 Commercial photography
Sec. 5.6 Commercial vehicles
Sec. 5.7 Construction of buildings or other facilities
Sec. 5.8 Discrimination in employment practices
Sec. 5.13 Nuisances
Sec. 5.14 Prospecting, mining, and mineral leasing

[[Page 1013]]



  CHAPTER XVI--MORRIS K. UDALL SCHOLARSHIP AND EXCELLENCE IN NATIONAL 
                     ENVIRONMENTAL POLICY FOUNDATION




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Part                                                                Page
1600            Public availability of documents and records        1015

[[Page 1015]]



PART 1600_PUBLIC AVAILABILITY OF DOCUMENTS AND RECORDS--Table of Contents




  Subpart A_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

Sec.
1600.1 General provisions.
1600.2 Public reading room.
1600.3 Requests for records.
1600.4 Timing of responses to requests.
1600.5 Responses to requests.
1600.6 Disclosure of requested records
1600.7 Special procedures for confidential Commercial information
1600.8 Appeals.
1600.9 Preservation of records.
1600.10 Fees.

 Subpart B_Protection of Privacy and Access to Individual Records Under 
                         the Privacy Act of 1974

1600.21 General provisions.
1600.22 Requests for access to records.
1600.23 Responsibility for responding to requests for access to records.
1600.24 Responses to requests for access to records.
1600.25 Appeals from denials of requests for access to records.
1600.26 Requests for amendment or correction of records.
1600.27 Requests for accountings of record disclosures.
1600.28 Preservation of records.
1600.29 Fees.
1600.30 Notice of court-ordered and emergency disclosures.

    Authority: 5 U.S.C. 552, 552a, 553; 20 U.S.C. 5608(a)(3).
    Subpart A is also issued under 5 U.S.C. 571-574.

    Source: 66 FR 15034, Mar. 15, 2001, unless otherwise noted.



  Subpart A_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act



Sec. 1600.1  General provisions.

    (a) This subpart contains the rules that the Morris K. Udall 
Scholarship and Excellence in National Environmental Policy Foundation 
(the Foundation) 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. 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 
Foundation activity (for example, press releases, annual reports, 
informational brochures and the like) may be provided to the public 
without following this subpart. As a matter of policy, the Foundation 
makes discretionary disclosures of records or information exempt from 
disclosure under the FOIA whenever disclosure would not foreseeably harm 
an interest protected by a FOIA exemption, but this policy does not 
create any right enforceable in court.
    (b) This subpart applies to all Foundation programs, including the 
U.S. Institute for Environmental Conflict Resolution (USIECR).



Sec. 1600.2  Public reading room.

    (a) The Foundation maintains a public reading room that contains the 
records that the FOIA requires to be made regularly available for public 
inspection and copying. An index of reading room records shall be 
available for inspection and copying and shall be updated at least 
quarterly.
    (b) The public reading room is located at the offices of the 
Foundation, 110 S. Church Avenue, Suite 3350, Tucson, Arizona.
    (c) The Foundation also makes reading room records created on or 
after November 1, 1996, available electronically, if possible, at the 
Foundation's web site (which can be found at www.udall.gov). This 
includes the index of the reading room records, which will indicate 
which records are available electronically.



Sec. 1600.3  Requests for records.

    (a) How made and addressed. You may make a request for records of 
the Foundation by writing to the General Counsel, Morris K. Udall 
Foundation, 110 South Church Avenue, Suite 3350, Tucson, Arizona 85701-
1650. If you are making a request for records about yourself, see Sec. 
1600.21 for additional requirements. If you are making a request for 
records about another individual, either a written authorization signed 
by

[[Page 1016]]

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) will help the processing of your request. 
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 Foundation personnel to locate 
them with a reasonable amount of effort. Whenever possible, your request 
should include specific information about each record sought, such as 
the date, title or name, author, recipient, and subject matter of the 
record. If the Foundation determines that your request does not 
reasonably describe records, it will tell you either what additional 
information is needed or why your request is otherwise insufficient. If 
your request does not reasonably describe the records you seek, the 
response to your request may be delayed.
    (c) Types of records not available. The FOIA does not require the 
Foundation to:
    (1) Compile or create records solely for the purpose of satisfying a 
request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
the Foundation must notify the requester that the requested records have 
been destroyed or disposed of.
    (d) Agreement to pay fees. If you make a FOIA request, your request 
shall be considered an agreement by you to pay all applicable fees 
charged under Sec. 1600.10, up to $25.00, unless you seek a waiver of 
fees. The Foundation ordinarily will confirm this agreement in an 
acknowledgment letter. When making a request, you may specify a 
willingness to pay a greater or lesser amount.



Sec. 1600.4  Timing of responses to requests.

    (a) In general. The Foundation ordinarily shall respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) The Foundation 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. The anticipated number of pages involved may be considered by 
the Foundation in establishing processing tracks. If the Foundation sets 
a page limit for its faster track, it will advise those whose request is 
placed in its slower track(s) of the page limits of its faster track(s).
    (2) If the Foundation uses multitrack processing, it 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 its faster track(s).
    (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 Foundation decides to extend the time 
limits on that basis, the Foundation 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 10 working days, the Foundation 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 for processing the request or a modified 
request.
    (2) Where the Foundation reasonably believes that multiple requests 
submitted by a requester, or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances, and the requests involve clearly related matters, they 
may be aggregated. Multiple requests involving unrelated matters will 
not be aggregated.
    (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; or

[[Page 1017]]

    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information;
    (2) You may ask for expedited processing of a request for records at 
any time.
    (3) In order to request expedited processing, you must submit a 
statement, certified to be true and correct to the best of your 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, if you are a requester within the 
category in paragraph (d)(1)(ii) of this section, and you are not a 
full-time member of the news media, you must establish that you are a 
person whose main professional activity or occupation is information 
dissemination, though it need not be your sole occupation; you 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 10 calendar days of receipt of a request for expedited 
processing, the Foundation will decide whether to grant it and will 
notify you of the decision. If a request for expedited treatment is 
granted, the request will be given priority and processed as soon as 
practicable. If a request for expedited processing is denied, any appeal 
of that decision will be acted on expeditiously.



Sec. 1600.5  Responses to requests.

    (a) Acknowledgments of requests. On receipt of your request, the 
Foundation ordinarily will send an acknowledgment letter to you, which 
will confirm your agreement to pay fees under Sec. 1600.3(d) and 
provide an assigned request number for further reference.
    (b) Referral to another agency. When a requester seeks records that 
originated in another Federal government agency, the Foundation will 
refer the request to the other agency for response. If the Foundation 
refers the request to another agency, it will notify the requester of 
the referral. A request for any records classified by some other agency 
will be referred to that agency for response.
    (c) Grants of requests. Ordinarily, the Foundation will have 20 
business days from when your request is received to determine whether to 
grant or deny your request. Once the Foundation determines to grant a 
request in whole or in part, it will notify you in writing. The 
Foundation will inform you in the notice of any fee charged under Sec. 
1600.10 and will disclose records to you promptly on payment of any 
applicable fee. Records disclosed in part will 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 will be indicated on the record, if technically 
feasible.
    (d) Adverse determinations of requests. If the Foundation denies 
your request in any respect, it will notify you 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; 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 treatment. The denial letter shall be signed 
by the General Counsel or his/her 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 1018]]

    (4) A statement that the denial may be appealed under Sec. 
1600.8(a) and a description of the requirements for appeal.



Sec. 1600.6  Disclosure of requested records.

    (a) The Foundation shall make requested records available to the 
public to the greatest extent possible in keeping with the FOIA, except 
that the following records are exempt from the disclosure requirements:
    (1) Records specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and which are, in fact, properly classified pursuant to 
such Executive order;
    (2) Records related solely to the internal personnel rules and 
practices of the Foundation;
    (3) Records specifically exempted from disclosure by statute (other 
than 5 U.S.C. 552(b)), provided that such statute requires that the 
matters be withheld from the public in such a manner as to leave no 
discretion on the issue or that the statute establishes particular 
criteria for withholding information or refers to particular types of 
matters to be withheld. An example that applies to the Foundation is the 
confidentiality protection for dispute resolution communications 
provided by the Administrative Dispute Resolution Act of 1996 (ADRA, 5 
U.S.C. 571-574).
    (4) Records containing trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Interagency or intra-agency memoranda or letters which would not 
be available by law to a party other than an agency in litigation with 
the Foundation;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) could reasonably be expected to disclose the identity of a 
confidential source, including a State, local or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and in the case of a recorded or information 
compiled by criminal law enforcement authority in the course of a 
criminal investigation or by an agency conducting a lawful national 
security intelligence investigation, information furnished by a 
confidential source;
    (v) would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) Records contained in or related to examination, operating, or 
condition reports prepared by, or on behalf of, or for the use of an 
agency responsible for the regulation or supervision of financial 
institutions;
    (9) Geological or geophysical information and data, including maps, 
concerning wells.
    (b) If a requested record contains exempted material along with 
nonexempted material, all reasonable segregable nonexempt material shall 
be disclosed.
    (c) Even if an exemption described in paragraph (a) of this section 
may be reasonably applicable to a requested record, or portion thereof, 
the Foundation may elect under the circumstances of any particular 
request not to apply the exemption to such requested record, or portion 
thereof, subject to the provisions in Sec. 1600.7 for confidential 
commercial information. The fact that the exemption is not applied by 
the Foundation to any requested

[[Page 1019]]

record, or portion thereof, has no precedential significance as to the 
application or non-application of the exemption to any other requested 
record, or portion thereof, no matter when the request is received.



Sec. 1600.7  Special procedures for confidential commercial information.

    (a) Definitions. For purposes of this section:
    (1) Business submitter means any person or entity which provides 
confidential commercial information, directly or indirectly, to the 
Foundation and who has a proprietary interest in the information.
    (2) Commercial-use requester means requesters seeking information 
for a use or purpose that furthers the commercial, trade, or profit 
interests of the requester or the person on whose behalf the request is 
made. In determining whether a requester properly belongs in this 
category, the Foundation shall determine, whenever reasonably possible, 
the use to which a requester will put the documents requested. Where the 
Foundation has reasonable cause to doubt the use to which a requester 
will put the records sought, or where that use is not clear from the 
request itself, the Foundation shall seek additional clarification 
before assigning the request to a specific category.
    (3) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt from 
disclosure under Exemption 4 of the FOIA, because disclosure could 
reasonably be expected to cause substantial competitive harm.
    (b) In general. Confidential commercial information provided to the 
Foundation by a business submitter shall not be disclosed pursuant to an 
FOIA request except in accordance with this section.
    (c) Designation of business information. Business submitters should 
use good-faith efforts to designate, by appropriate markings, either at 
the time of submission or at a reasonable time thereafter, those 
portions of their submissions which they deem to be protected under 
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such designation will 
expire 10 years after the records were submitted to the government, 
unless the submitter requests, and provides reasonable justification 
for, a designation period of longer duration.
    (d) Predisclosure notification. (1) Except as is provided for in 
paragraph (i) of this section, the Foundation shall, to the extent 
permitted by law, provide a submitter with prompt written notice of an 
FOIA request or administrative appeal encompassing its confidential 
business information whenever required under paragraph (e) of this 
section. Such notice shall either describe the exact nature of the 
business information requested or provide copies of the records or 
portions thereof containing the business information.
    (2) Whenever the Foundation provides a business submitter with the 
notice set forth in paragraph (e)(1) of this section, the Foundation 
shall notify the requester that the request includes information that 
may arguably be exempt from disclosure under Exemption 4 of the FOIA and 
that the person or entity who submitted the information to the 
Foundation has been given the opportunity to comment on the proposed 
disclosure of information.
    (e) When notice is required. The Foundation shall provide a business 
submitter with notice of a request whenever--
    (1) The business submitter has in good faith designated the 
information as business information deemed protected from disclosure 
under 5 U.S.C. 552(b)(4); or
    (2) The Foundation has reason to believe that the request seeks 
business information the disclosure of which may result in substantial 
commercial or financial injury to the business submitter.
    (f) Opportunity to object to disclosure. Through the notice 
described in paragraph (d) of this section, the Foundation shall, to the 
extent permitted by law, afford a business submitter at least 10 working 
days within which it can provide the Foundation with a detailed written 
statement of any objection to disclosure. Such statement shall 
demonstrate why the information is contended to be a trade secret or 
commercial or financial information that is privileged or confidential 
and

[[Page 1020]]

why disclosure would cause competitive harm. Whenever possible, the 
business submitter's claim of confidentiality should be supported by a 
statement or certification by an officer or authorized representative of 
the business submitter. Information provided by a submitter pursuant to 
this paragraph may itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. (1) The Foundation shall consider 
carefully a business submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose confidential 
commercial business information. Whenever the Foundation decides to 
disclose such information over the objection of a business submitter, 
the Foundation shall forward to the business submitter a written notice 
at least 10 working days before the date of disclosure containing--
    (i) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained,
    (ii) A description of the confidential commercial information to be 
disclosed, and
    (iii) A specified disclosure date.
    (2) Such notice of intent to disclose likewise shall be forwarded to 
the requester at least 10 working days prior to the specified disclosure 
date.
    (h) Notice of FOIA lawsuit. Whenever a requester brings suit seeking 
to compel disclosure of confidential commercial information, the 
Foundation shall promptly notify the business submitter of such action.
    (i) Exceptions to predisclosure notification. The requirements of 
this section shall not apply if--
    (1) The Foundation determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous; except that, 
in such a case, the Foundation will provide the submitter with written 
notice of any final decision to disclose confidential commercial 
information within a reasonable number of days prior to a specified 
disclosure date.



Sec. 1600.8  Appeals.

    (a) Appeals of adverse determinations. If you are dissatisfied with 
the Foundation's response to your request, you may appeal an adverse 
determination denying your request, in any respect, to the Executive 
Director of the Foundation, 110 S. Church Avenue, Suite 3350, Tucson, AZ 
85701-1650. You must make your appeal in writing, and it must be 
received by the Executive Director 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 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.''
    (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. 1600.9  Preservation of records.

    The Foundation 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 FOIA.

[[Page 1021]]



Sec. 1600.10  Fees.

    (a) In general. The Foundation will charge you 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 (i) of this section. The Foundation ordinarily will collect 
all applicable fees before sending copies of requested records to you. 
You must pay fees by check or money order made payable to the United 
States Treasury.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person seeking information for a use or purpose that furthers his or her 
commercial, trade, or profit interests, which can include furthering 
those interests through litigation. If the Foundation determines that 
you will put the records to a commercial use, either because of the 
nature of your request itself or because the Foundation has reasonable 
cause to doubt your stated use, the Foundation will provide you a 
reasonable opportunity to submit further clarification.
    (2) Direct costs means those expenses that the Foundation 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 and the cost of operating duplication machinery.
    (3) Duplication means the process of making a copy of a record, or 
the information contained in it, available in response to a FOIA 
request. Copies can take the form of paper, microfilm, audiovisual 
materials, or electronic records (for example, magnetic tape or disk), 
among others. The Foundation will honor your specified preference of 
form or format of disclosure if the record is readily reproducible with 
reasonable efforts in the requested form or format.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate or 
graduate higher education, an institution of professional education, and 
an institution of vocational education, which operates a program or 
programs of 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 would be the clearest proof, but 
the Foundation 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

[[Page 1022]]

time does not include time spent resolving general legal or policy 
issues regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format.
    (c) Fees. In responding to FOIA requests, the Foundation will charge 
the following fees unless a waiver or reduction of fees has been granted 
under paragraph (i) of this section:
    (1) Search. Search fees will be charged for all requests, except for 
those by educational institutions, noncommercial scientific 
institutions, or representatives of the news media (subject to the 
limitations of paragraph (d) of this section). Charges may be made for 
time spent searching even if no responsive record is located or if the 
record(s) are withheld as entirely exempt from disclosure.
    (2) Duplication. Duplication fees will be charged for all requests, 
subject to the limitations of paragraph (d) of this section. For a paper 
photocopy of a record, the fee will be ten cents per page. For other 
forms of duplication (including copies produced by computer, such as 
tapes or printouts), the Foundation will charge the direct costs, 
including operator time, of producing the copy.
    (3) Review. Review fees will be charged only for commercial use 
requests. Review fees will be charged only for the initial record 
review--in other words, the review done when the Foundation 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.
    (4) Searches and reviews--amounts of fees. (i) For each quarter hour 
spent in searching for and/or reviewing a requested record, the fees 
will be: $4.00 for clerical personnel; $7.00 for professional personnel; 
and $10.25 for managerial personnel.
    (ii) For computer searches of records, you 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)(4) 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.
    (d) Limitations on charging fees. (1) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.
    (2) Review fees will be charged only for commercial use requests.
    (3) 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.
    (4) Except for commercial use requests, the Foundation will provide 
the first 100 pages of duplication and the first two hours of search 
time to requesters without charge. These provisions work together, so 
that the Foundation will not begin to assess fees until after providing 
the free search and reproduction. For example, if a request involves 
three hours of search time and duplication of 105 pages of documents, 
the Foundation will charge only for the cost of one hour of search time 
and five pages of reproduction.
    (5) Whenever a total fee calculated under paragraph (d) of this 
section is $14.00 or less for any request, no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. When the 
Foundation determines or estimates that the fees will be more than 
$25.00, it will notify you of

[[Page 1023]]

the actual or estimated amount of the fees, unless you have indicated a 
willingness to pay fees as high as those anticipated. If only a portion 
of the fee can be estimated readily, the Foundation will advise you that 
the estimated fee may be only a portion of the total fee. In cases in 
which you have been notified that actual or estimated fees amount to 
more than $25.00, the request will not be considered received and 
further work will not be done on it until you agree in writing to pay 
the anticipated total fee. A notice under this paragraph will offer you 
an opportunity to discuss the matter with Foundation personnel in order 
to reformulate the request to meet your needs at a lower cost.
    (f) Charging interest. The Foundation may charge interest on any 
unpaid bill starting on the 31st day following the date of billing. 
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 Foundation.
    (g) Aggregating requests. Where the Foundation 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, it may aggregate those requests and charge accordingly. 
The Foundation 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, they will be aggregated only 
if 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.
    (h) Advance payments. (1) No advance payment (that is, payment 
before work is begun on a request) will ordinarily be required, except 
as described in paragraphs (h)(2) and (3) of this section. Payment owed 
for work already completed (that is, a prepayment before copies are sent 
to you) is not considered an advance payment.
    (2) Where the Foundation determines or estimates that a total fee to 
be charged under this section will be more than $250.00, it may require 
you 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 satisfactory assurance of full payment from you and 
you have a history of prompt payment.
    (3) If you have previously failed to pay a properly charged FOIA fee 
within 30 days of the date of billing, the Foundation may require you 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 it 
begins to process a new request or continues to process a pending 
request from you.
    (4) In cases in which the Foundation requires advance payment or 
payment due under paragraph (h)(2) or (3) of this section, the request 
shall not be considered received and further work will not be done on it 
until the required payment is received.
    (i) 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 
the Foundation 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) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records.
    (3) If you request a waiver or reduction of fees, your request 
should address the factors listed in paragraph (i)(1) of this section.



 Subpart B_Protection of Privacy and Access to Individual Records Under 
                         the Privacy Act of 1974



Sec. 1600.21  General provisions.

    (a) Purpose and scope. This subpart contains the rules that the 
Morris K. Udall Scholarship and Excellence in

[[Page 1024]]

National Environmental Policy Foundation (the ``Foundation'') 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 records in systems of records maintained by the Foundation 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 records by 
the Foundation. In addition, the Foundation 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.
    (b) Applicability. This subpart applies to all Foundation programs, 
including the U.S. Institute for Environmental Conflict Resolution 
(USIECR).
    (c) Definitions. As used in this subpart:
    (1) Request for access to a record means a request made under 
Privacy Act subsection (d)(1).
    (2) Request for amendment or correction of a record means a request 
made under Privacy Act subsection (d)(2).
    (3) Request for an accounting means a request made under Privacy Act 
subsection (c)(3).
    (4) 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.



Sec. 1600.22  Requests for access to records.

    (a) How made and addressed. You may make a request for access to a 
Foundation record about yourself by appearing in person or by writing to 
the Foundation. Your request should be sent or delivered to the 
Foundation's General Counsel, at 110 S. Church Avenue, Suite 3350, 
Tucson, AZ 85701-1650. 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 Foundation 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 Foundation publishes notices in the Federal 
Register that describe its systems of records. A description of the 
Foundation'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. 1600.29 up to $25.00. The Foundation 
ordinarily will confirm this agreement in an acknowledgment 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. 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

[[Page 1025]]

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;
    (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.



Sec. 1600.23  Responsibility for responding to requests for access to records.

    (a) In general. In determining which records are responsive to a 
request, the Foundation ordinarily will include only those records in 
its possession as of the date the Foundation begins its search for them. 
If any other date is used, the Foundation will inform the requester of 
that date.
    (b) Authority to grant or deny requests. The Foundation's General 
Counsel, or his/her designee, is authorized to grant or deny any request 
for access to a record of the Foundation.
    (c) Consultations and referrals. When the Foundation receives a 
request for access to a record in its possession, it will determine 
whether another agency of the Federal Government is better able to 
determine whether the record is exempt from access under the Privacy 
Act. If the Foundation determines that it is best able to process the 
record in response to the request, then it will do so. If the Foundation 
determines that it is not best able to process the record, then it will 
either:
    (1) Respond to the request regarding that record, after consulting 
with the agency best able to determine whether the record is exempt from 
access and with any other agency that has a substantial interest in it; 
or (2) Refer the responsibility for responding to the request regarding 
that record to another agency that originated the record (but only if 
that agency is subject to the Privacy Act). Ordinarily, the agency that 
originated a record will be presumed to be best able to determine 
whether it is exempt from access.
    (d) Notice of referral. Whenever the Foundation refers all or any 
part of the responsibility for responding to your request to another 
agency, it ordinarily will notify you of the referral and inform you of 
the name of each agency to which the request has been referred and of 
the part of the request that has been referred.
    (e) 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 Foundation, not 
any later date.



Sec. 1600.24  Responses to requests for access to records.

    (a) Acknowledgments of requests. On receipt of your request, the 
Foundation ordinarily will send an acknowledgment letter, which shall 
confirm your agreement to pay fees under Sec. 1600.22(c) and may 
provide an assigned request number for further reference.
    (b) Grants of requests for access. Once the Foundation makes a 
determination to grant your request for access in whole or in part, it 
will notify you in writing. The Foundation will inform you in the notice 
of any fee charged under Sec. 1600.29 and will disclose records to you 
promptly on payment of any applicable fee. If your request is made in 
person, the Foundation may disclose records to you 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 you are accompanied by another person when you make a 
request in person, you 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. If the Foundation 
makes an adverse determination denying your request for access in any 
respect, it will notify you 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

[[Page 1026]]

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 General Counsel, or his/
her 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 Foundation in denying the 
request; and
    (3) A statement that the denial may be appealed under Sec. 
1600.25(a) and a description of the requirements of Sec. 1600.25(a).



Sec. 1600.25  Appeals from denials of requests for access to records.

    (a) Appeals. If you are dissatisfied with the Foundation's response 
to your request for access to records, you may appeal an adverse 
determination denying your request in any respect to the Executive 
Director of the Foundation, 110 S. Church Avenue, Suite 3350, Tucson, AZ 
85701-1650. You must make your appeal in writing, and it must be 
received 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 determination 
(including the assigned request number, if any) 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.
    (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.



Sec. 1600.26  Requests for amendment or correction of records.

    (a) How made and addressed. You may make a request for amendment or 
correction of a Foundation record about yourself by following the 
procedures in Sec. 1600.22. 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.
    (b) Foundation responses. Within 10 working days of receiving your 
request for amendment or correction of records, the Foundation will send 
you a written acknowledgment of its receipt of your request, and it will 
promptly notify you whether your request is granted or denied. If the 
Foundation grants your request in whole or in part, it will describe the 
amendment or correction made and advise you of your right to obtain a 
copy of the corrected or amended record. If the Foundation denies your 
request in whole or in part, it will send you a letter stating:
    (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 Executive Director in the same manner as a denial of a 
request for access to records (see Sec. 1600.25), and the same 
procedures will be followed. If your appeal is denied, you will 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 
Foundation's denial of your request for amendment or correction. 
Statements of Disagreement must be concise, must clearly identify each

[[Page 1027]]

part of any record that is disputed, and should be no longer than one 
typed page for each fact disputed. Your Statement of Disagreement must 
be sent to the Foundation, which will place it in the system of records 
in which the disputed record is maintained and will 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 Foundation 
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 Foundation will attach a copy 
of it to the disputed record whenever the record is disclosed and may 
also attach a concise statement of its reason(s) for denying the request 
to amend or correct the record.



Sec. 1600.27  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 Foundation 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 to the Foundation, following the 
procedures in Sec. 1600.22.
    (b) Where accountings are not required. The Foundation is not 
required to provide accountings to you where they relate to disclosures 
for which accountings are not required to be kept--in other words, 
disclosures that are made to employees within the agency and disclosures 
that are made under the FOIA.
    (c) Appeals. You may appeal a denial of a request for an accounting 
to the Foundation Executive Director in the same manner as a denial of a 
request for access to records (see Sec. 1600.25) and the same 
procedures will be followed.



Sec. 1600.28  Preservation of records.

    The Foundation 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. 1600.29  Fees.

    The Foundation will charge fees for duplication of records under the 
Privacy Act in the same way in which it charges duplication fees under 
Sec. 1600.10. No search or review fee will be charged for any record.



Sec. 1600.30  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 Foundation 
will make reasonable efforts to provide notice of this to the 
individual. Notice will be given within a reasonable time after the 
Foundation's receipt of the order--except that in a case in which the 
order is not a matter of public record, the notice will be given only 
after the order becomes public. This notice will be mailed to the 
individual's last known address and will contain a copy of the order and 
a description of the information disclosed.
    (b) Emergency disclosures. Upon disclosing a record pertaining to an 
individual made under compelling circumstances affecting health or 
safety, the Foundation will notify that individual of the disclosure. 
This notice will be mailed to the individual's last known address and 
will state the nature of the information disclosed; the person, 
organization, or agency to

[[Page 1028]]

which it was disclosed; the date of disclosure; and the compelling 
circumstances justifying the disclosure.


[[Page 1029]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 1031]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2009)

                      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)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       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)
     XXIII  Social Security Administration (Parts 2300--2399)
      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)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)

[[Page 1032]]

      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

                        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)

[[Page 1033]]

     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)
       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)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      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)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture

[[Page 1034]]

         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      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)

[[Page 1035]]

    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    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)

[[Page 1036]]

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

[[Page 1037]]

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

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

             Title 17--Commodity and Securities Exchanges

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

          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)

[[Page 1038]]

      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training 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)

[[Page 1039]]

         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)
        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 
                HousingCommissioner, 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)

[[Page 1040]]

      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (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)

[[Page 1041]]

       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)

[[Page 1042]]

       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      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)

[[Page 1043]]

        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        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)
        VI  [Reserved]
       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)

[[Page 1044]]

             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)

                       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)
            Chapters 62--100 [Reserved]
            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)
            Chapters 103--104 [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 1045]]

       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)
            Chapters 129--200 [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 1046]]

                       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) 
                [Reserved]
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 1047]]

        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)
        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]

[[Page 1048]]

        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)
         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)

[[Page 1049]]

         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 1051]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2009)

                                                  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, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  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 1052]]

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                       5, LXVIII; 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 1053]]

  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, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Human Resources Management and Labor Relations  5, XCIX
       Systems
  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
Election Assistance Commission                    11, II
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

[[Page 1054]]

  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           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 Agency                    12, XII
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

[[Page 1055]]

General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management 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
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII

[[Page 1056]]

Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  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 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
Investment Security, Office of                    31, VIII
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

[[Page 1057]]

  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  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
Museum and Library Services, Institute of         2, XXXI
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

[[Page 1058]]

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
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
  Human Resources Management and Labor Relations  5, XCIX
       Systems, Department of Defense
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  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
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, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
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
[[Page 1059]]

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                    2, XXIII; 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
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                     2, XII; 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
  Investment Security, 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

[[Page 1060]]

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 1061]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

36 CFR
                                                                   66 FR
                                                                    Page
Chapter XII
1202 Revised.......................................................65652
1220.14 Amended....................................................27027
1220.52 (c) amended................................................27027
1228 Nomenclature change...........................................27027
1228.28 (b)(8)(i) amended..........................................27027
1228.44 Amended....................................................27027
1228.92 (e) amended................................................27027
1228.104 (b) amended...............................................27027
1228.106 Amended...................................................27027
1228.160 (f) revised...............................................27027
1228.266 (e)(1) amended............................................27027
1228.270 (c)(2)(i) revised.........................................27027
1228.272 (b)(2) revised............................................27027
1228.282 Revised...................................................27027
1232.20 (a) and (e) amended........................................27027
1232.32 Amended....................................................27027
1234 Nomenclature change...........................................27028
1234.10 (a) amended................................................27028
1236.26 (a) and (c)(2) revised.....................................27028
1250 Revised.......................................................16376
1254.38 Removed....................................................16382
1254.39 Removed....................................................16382
1254.44 Heading, (a) and (c) revised...............................16382
1290.1 (b)(3) corrected............................................18873
1290.2 (f) corrected...............................................18873
Chapter XVI
Chapter XVI Established............................................15034

                                  2002

36 CFR
                                                                   67 FR
                                                                    Page
Chapter VII
703 Revised........................................................16019
Chapter XI
1191 Appendix A amended............................................56384
Chapter XII
1200 Revised.......................................................72101
1201 Added; interim................................................44757
    Regulation at 67 FR 44757 confirmed............................63267
1206 Revised.......................................................42494
1220.2 Amended.....................................................31962
1220.34 Amended....................................................31962
1220.36 (c) amended................................................31962
1222.20 (a) amended................................................31962
1228.12 Introductory text amended..................................43253
1228.22 Introductory text amended..................................43253
1228.40 Revised....................................................31962
1228.42 (a) and (b) revised; (c) redesignated as (d); new (c) 
        added......................................................31962
    (d) corrected..................................................47701
1228.50 (a)(4) revised.............................................31963
1228.150 (a) amended...............................................43253
1228.160 (f) amended...............................................43253
1228.166 (b) amended...............................................43253
1228.224 (a) revised...............................................79518
1228.270 (a), (b), and (c) revised; (f) added......................79518
1230 Revised................................................31693, 34575
1230.2 Corrected...................................................39473
1250.12 (c) amended................................................43253
1250.24 Amended....................................................43253
1250.76 Amended....................................................43253
1253.3 (a) thorough (j) revised....................................43254
1253.5 Revised.....................................................43255
1253.6 (a) through (f) and (h) through (l) revised.................43255

[[Page 1062]]

1253.7 (b), (d), (g), (h) and (i) revised..........................43255
1253.8 Added.......................................................43255
1254.2 (a) revised.................................................43254
1254.6 Revised......................................................8200
    (a) corrected..................................................17286
    (a) revised....................................................63268
1254.25 Added.......................................................8200
1275 Authority citation revised....................................44766
1275.64 (d) revised................................................44766
1275.66 (a) revised................................................44766
1275 Appendix A amended............................................44766

                                  2003

36 CFR
                                                                   68 FR
                                                                    Page
Chapter IV
404 Revised.........................................................8826
405 Removed.........................................................8829
Chapter VII
704.25 Added.......................................................11975
704.26 Added.......................................................11975
704.27 Added.......................................................11975
704.28 Added.......................................................11975
704.29 Added.......................................................11976
704.30 Added.......................................................11976
704.31 Added.......................................................11976
704.32 Added.......................................................11976
704.33 Added.......................................................11976
Chapter XI
Chapter XII
1209 Revised................................................66544, 66616
1209.440 Added.....................................................66617
1212 Added..................................................66557, 66617
1212.510 (c) amended...............................................66617
1212.605 (a)(2) amended............................................66617
1253.3 (b), (e), (f), and (j) revised..............................33405
1253.4 Revised.....................................................33405
1253.6 (a) through (d) revised.....................................33405
1253.7 (a) through (d) revised.....................................33405
1280 Authority citation revised....................................53882
1280.1 (b) and (c) revised; (d) added..............................53882
1280.32 (l) added..................................................53882
1280.34 Added......................................................53882
1280.36 Added......................................................53882
1280.62 Revised....................................................53680
1280.100 Revised...................................................53883

                                  2004

36 CFR
                                                                   69 FR
                                                                    Page
Chapter IV
400 Revised........................................................17929
Chapter VII
701 Revised........................................................39838
702 Revised........................................................39840
704 Revised........................................................39840
705 Removed; new Part 705 added....................................39843
800.4 (d) revised..................................................40553
800.5 (c)(1), (2) and (3) revised..................................40553
800.8 (c)(3) revised...............................................40554
800.14 (c) revised.................................................40554
800.16 (y) revised; (z) added......................................40555
Chapter XI
1190 Removed.......................................................44151
1191 Revised.......................................................44151
Chapter XII
1200 Authority citation revised....................................26046
1200.1 Amended.....................................................26046
1200.2--1200.6 (Subpart B) Heading revised.........................26046
1200.7 Revised.....................................................26046
1200.8--1200.14 (Subpart C) Heading revised........................26051
1200.8 Introductory text, (a)(2), (3), (4) and (c) revised.........26051
1200.10 (b) revised................................................26051
1200.12 Introductory text revised..................................26051
1200.14 Heading, (a), (b) and (e) revised..........................26051
1200.16 (Subpart D) Heading and section revised....................26051
1228 Technical correction..........................................76848
1228.152 Table amended.............................................74977
1228.154 (b) and (c)(1)(vii) revised...............................74977
1253.3 (a) through (i) revised.....................................32876
1253.6 (b) through (f), (j), (k) and (m) revised...................32877
1253.7 (a), (d), (e), (f) and (i) through (m) revised..............32877
1254 Revised; eff. 7-30-04.........................................39314
1254.86 (h) added..................................................55505
1256 Revised; eff. 7-30-04.........................................39325
1256.28 Eff. 7-30-04...............................................39325
1284 Revised; eff. 7-30-04.........................................39323

                                  2005

36 CFR
                                                                   70 FR
                                                                    Page
Chapter IV
401 Revised........................................................32490

[[Page 1063]]

402 Removed........................................................32492
403 Removed........................................................32492
Chapter VII
701.6 Added........................................................36843
Chapter X
1011 Added.........................................................73588
Chapter XI
1190 Policy statement..............................................70734
1191 Appendix B correctly amended..................................45284
    Appendix C correctly amended...................................45291
    Appendix D correctly amended...................................45298
    Appendix E correctly amended...................................45308
    Policy statement...............................................70734
Chapter XII
1228.222 (b) revised...............................................50986
1228.224 (c) amended; (g) added....................................50986
1228.226 Amended...................................................50986
1228.228 (a), (b), (d), (g)(1), (h)(1), (i) introductory text, 
        (1), (2), (n)(1) and (4) revised...........................50987
1228.230 (a), (b), (e), (i), (l) and (s) revised...................50987
1228.232 (b) introductory text and (c) revised.....................50988
1228.236 (a)(2) revised............................................50988
1228.240 (c) revised...............................................50988
    (c) and (d) correctly revised..................................55730
1228.242 (a)(2) and (3) revised....................................50988
1230.1 Introductory text amended; following undesignated 
        paragraph, (a), (b) and (c) removed........................58978
1253.3 (k) added...................................................22800
1253.7 (e) revised.................................................22800
1270 Authority citation revised....................................16717
1270.42 (a), (b) and (d) revised...................................16717

                                  2006

36 CFR
                                                                   71 FR
                                                                    Page
Chapter X
Chapter X Regulation at 63 FR 35697 confirmed......................10610
1002.21 (a) revised................................................10610
1002.22 (a)(2) revised.............................................10610
1002.50 (a) revised................................................10610
1002.51 (a) revised................................................10610
1011.5 (e) corrected................................................2109
Chapter XI
1151.6 (b)(2) revised..............................................33254
Chapter XII
1200.7 (a)(1) and (2) revised......................................26835
1206 Revised.......................................................27624
1234 Authority citation revised.....................................8807
1234.24 (b)(2) revised; (b)(3) revised..............................8807
1234.32 (d) revised.................................................8808
1253.1 (a) revised; interim........................................42060
    Regulation at 71 FR 42060 confirmed; (a) revised...............56359
1253.2 (b) revised; interim........................................42060
    Regulation at 71 FR 42060 confirmed; (b) revised...............56359
1253.6 (d) and (l) revised.........................................35395
1253.7 (n) added; interim..........................................42060
    Regulation at 71 FR 42060 confirmed............................56359
1253.8 Revised; interim............................................42060
    Regulation at 71 FR 42060 confirmed............................56359
1260 Revised.......................................................14809
1280 Heading revised...............................................76166
1280.2 (d), (e) and (f) added......................................76166
1280.4 Redesignated as 1280.6; new 1280.4 redesignated from 1280.8 
        and revised................................................76167
1280.6 Redesignated as 1280.8; new 1280.6 redesignated from 1280.4
                                                                   76167
1280.8 Redesignated as 1280.4; new 1280.8 redesignated from 1280.6
                                                                   76167
1280.60 (b) revised; interim.......................................42060
    Regulation at 71 FR 42060 confirmed............................56359
1280.62 Revised; interim...........................................42060
    Regulation at 71 FR 42060 confirmed............................56359

                                  2007

36 CFR
                                                                   72 FR
                                                                    Page
Chapter XI
1191.1 (a) Note 1 and (b) Notes 1 and 2 added......................13707
1191 Appendix F added..............................................13707
Chapter XII
1206.72 (a) revised.................................................2768
1209 Removed........................................................2769
1228.24 (b)(3) and (4) redesignated as (b)(4) and (5); new (b)(3) 
        added......................................................64155
1228.31 Added......................................................64155

[[Page 1064]]

1258.2 (b) removed; (c) redesignated as (b); interim................8280
    Regulation at 72 FR 8280 confirmed.............................29429
1258.4 (d) revised.................................................46148
1258.10 (a) revised................................................46148
1258.12 Revised....................................................46148
1258.16 Revised....................................................46148
1280.2 (d) correctly revised........................................4432

                                  2008

36 CFR
                                                                   73 FR
                                                                    Page
Chapter XII
1228.24 (b)(3) correctly revised...................................57246
1228 Appendix B correctly amended..................................43099
1250 Authority citation revised....................................79393
1250.84 Removed....................................................79393
1251 Added.........................................................79393
1253.1 (a) revised; interim.........................................6031
    Regulation at 73 FR 6031 confirmed.............................18161
1253.2 (b) revised; interim.........................................6031
    Regulation at 73 FR 6031 confirmed.............................18161
1253.3 (g) through (k) redesignated as (h) through (l); new (g) 
        added; interim..............................................6031
    Regulation at 73 FR 6031 confirmed.............................18161
1253.6 (i) revised; interim.........................................6031
    Regulation at 73 FR 6031 confirmed.............................18161
1256.4 Removed.....................................................79396
1280 Authority citation revised....................................36793
1280.1 (a) revised; eff. 7-30-08...................................36793
1280.34 (b) and (c) amended; eff. 7-30-08..........................36793
1280.46 (b)(3) revised; eff. 7-30-08...............................36793
1280.48 (a) revised; (f) amended; eff. 7-30-08.....................36793
1280.52 (a) amended; eff. 7-30-08..................................36794
1280.68 Revised; eff. 7-30-08......................................36794
1280.70--1280.89 (Subpart D) revised; eff. 7-30-08.................36794
1281 Added; eff. 7-17-08...........................................34198

                                  2009

  (No regulations published from January 1, 2009, through July 1, 2009)


                                  [all]